In April 2008, NCUA proposed an amendment revising the requirements for use of the official insurance sign and official advertising statement to permit insured credit unions to use the basic form of the official advertising statement, a shortened form, or the official sign in advertisements. 73 FR 22839 (April 28, 2008). Additionally, the proposed amendment clarified the font of the text in the official sign may be altered to ensure it is legible when it is used as the official advertising statement. The proposal resulted from NCUA's 2007 regulatory review, and was identified to provide insured credit unions greater flexibility in how they meet the requirement of giving notice of their insured status.

The Federal Credit Union Act (Act) requires insured credit unions to display signs at their places of business indicating accounts are insured and also to include in all advertisements a statement to the effect that accounts are insured. 12 U.S.C. 1785(a). The Act authorizes the NCUA Board to promulgate regulations governing the substance of the official insurance sign and the manner it is displayed or used and, also, to address the practicality of including the official statement on insured status in advertisements. Id. NCUA implements this authority in part 740 of its regulations and, in § 740.5, NCUA requires insured credit unions to include the official advertising statement in all advertisements, including on their main internet pages, with certain exceptions.

NCUA received a total of eight comments on the proposed rule from credit unions and trade associations. All the commenters supported the rule. On September 10, 2008, NCUA received notice that one comment letter submitted via the Federal eRulemaking Portal regarding this rulemaking had not been forwarded to NCUA. This was due to a minor software problem that has been corrected. 1 The comment period for this rule closed on June 27, 2008. As noted above, all eight comment letters NCUA received fully supported the amendments and the Board believes, given the identity of these commenters, which includes major credit union trade associations and individual credit unions, that these comment letters broadly and fairly represent the views of interested parties.

The Board believes it is appropriate and fair in these circumstances to proceed with the final rule rather than delay implementation. This rule creates no burden for FCUs, but merely provides an alternative for insured credit unions to meet the advertising requirement regarding the existence of federal account insurance. For these reasons, the Board concludes there is no need to reopen the comment period and the interest of the public and FCUs is served by proceeding with the final rule.

One commenter suggested NCUA further condense the advertising statement and permit credit unions to use a brief statement such as, “NCUA Insured” or “Insured by NCUA.” Credit unions may use the shortened version of the official advertising statement, which is “Federally insured by NCUA.” Keeping the word “federally” in the shortened version ensures those who may not be familiar with credit unions, NCUA, or the National Credit Union Share Insurance Fund receive notice that member shares are backed by the full faith and credit of the United States government, especially when the shortened statement is used alone.

Accordingly, NCUA adopts the proposed rule, published at 73 FR 22839 (April 28, 2008), as a final rule.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact any regulation may have on a substantial number of small credit unions (those under $10 million in assets). The final amendment merely expands the options credit unions have to comply with the requirement to notify members and the public of their insured status in advertisements. Accordingly, the NCUA has determined and certifies that the final rule will not have a significant economic impact on a substantial number of small credit unions within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, Public Law 104-121, provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedures Act. 5 U.S.C. 551. The Office of Information and Regulatory Affairs, an office within OMB, has determined that, for purposes of SBREFA, this is not a major rule.

The final rule does not contain a “collection of information” within the meaning of section 3502(3) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3502(3), and would not increase paperwork requirements under the Paperwork Reduction Act of 1995 or regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The final rule would not have substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that this final rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

On April 17, 2008, the NCUA Board requested comment on a proposed rule to update and clarify the procedures for requesting access to agency records and other rights and requirements under the FOIA and Privacy Act provisions of part 792. 73 FR 22,289 (April 25, 2008). In addition to incorporating the 2007 FOIA amendments into the rule, the proposed rule added definitions, revised terminology and otherwise clarified provisions implementing the Privacy Act. Technical corrections also were made to both sections.

NCUA's policy is to review a third of its regulations periodically to “update, clarify and simplify existing regulations and eliminate redundant and unnecessary provisions.” Interpretive Ruling and Policy Statement (IRPS) 87-2, Developing and Reviewing Government Regulations. The proposed changes were the result of such a review. The changes also coincided with recent statutory amendments to FOIA and NCUA's updating of its Systems of Records Notice under the Privacy Act, periodically published in the Federal Register .

The NCUA Board received two comments in general support of the proposed rule. In response to proposed language clarifying when a FOIA request is considered received, one commenter urged the agency to make reasonable efforts to promptly notify a requester when a request is incorrectly addressed or otherwise deficient; forward incorrectly addressed requests to the proper Information Center; or if possible, disregard deficiencies having no impact on the ability to process the response. The amended language simply explains what conditions must be met to start the clock for the statutory processing period. As a general practice, Information Center staff communicates with requesters to obtain missing information and to clarify requests to enable their timely processing. Similarly, FOIA requests sent to the wrong Information Center are forwarded to the correct Information Center.

The commenter also suggested a deceased individual's records should receive protection consistent with that of a living individual and suggested the agency require a requester to obtain approval from the decedent's estate before releasing any records. As explained in the Department of Justice's 2007 FOIA Guide, there is a “longstanding FOIA rule that death extinguishes one's privacy rights.” USDOJ: OIP: Freedom of Information Act Guide, March 2007, page 566. Whether records pertaining to a deceased individual are actually released requires an evaluation of the privacy interests at issue in such a release, which may include surviving family members' right to personal privacy.

The other commenter questioned eliminating the ability to submit Privacy Act requests for records via telephone, believing the agency should facilitate all forms of electronic requests irrespective of how made. The proposed change does not eliminate a requester's ability to submit requests by facsimile or e-mail. The Board has added clarifying language to the procedures and requirements provisions to reflect this fact.

In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board has determined the final rule does not contain a collection of information subject to the PRA.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a proposed rule may have on a substantial number of small credit unions (those under $10 million in assets). This final rule does not impose any requirements on federally-insured credit unions. Therefore, it will not have a significant economic impact on a substantial number of small credit unions and a regulatory flexibility analysis is not required.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The final rule would not have substantial direct effects on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that this final rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

On December 27, 2007, SBA proposed to amend its regulations in the Federal Register , 72 FR 73285, with a request for comments to implement the WOSB Federal Contract Assistance Procedures (Procedures). These Procedures are authorized under Section 811 of the Small Business Reauthorization Act of 2000, Public Law 106-554, which is codified at Section 8(m) of the Small Business Act (Act), 15 U.S.C. 637(m).

The proposed rule concerned procedures to increase Federal procurement opportunities for WOSBs. More specifically, the proposed rule contained provisions that would authorize contracting officers to restrict competition to eligible WOSBs for Federal contracts not exceeding $3 million ($5 million for manufacturing) in those industries in which WOSBs are underrepresented or substantially underrepresented and in which the procuring agency has determined that the set-aside would satisfy constitutional requirements. The proposed rule also set forth the standards for determining the eligibility of a concern as a WOSB or EDWOSB and required any firm receiving a contract under these procedures to certify its status as a “small business concern owned and controlled by women” as defined in § 3(n) of the Small Business Act, 15 U.S.C. 632(n). In addition, the proposed rule identified the industries in which WOSBs were determined to be underrepresented and substantially underrepresented in Federal contracting. The proposed rule also established standards for eligibility examinations and protest procedures, as well as the penalties that can be imposed for a concern's misrepresentation of its status as an EDWOSB or WOSB. Lastly, the rule proposed the relevant conforming amendments to SBA's current procurement and appeal procedure regulations.

The comment period for the Proposed Rule closed on March 31, 2008. SBA received approximately 1,720 comments. These comments are available to the public for viewing at http://www.regulations.gov. The large majority of comments were received from individuals. Of the 1,720 comments, SBA received approximately 1,610 comments from individuals, thirty-one comments from individuals using form letters from various associations or organizations, forty-five comments from associations or organizations, thirty-one comments from members of Congress, and three comments from other Federal agencies through the public comment process and posted online at www.regulations.gov.

Of the 1,720 comments received, approximately twenty-seven of the comments were not applicable to the rule; four of the comments requested an extension of the public comment period; and 1,689 of the comments requested withdrawal of the proposed rule and/or stated opposition to some portion of the proposed rule. Of the comments that opposed the proposed rule, 1,591 comments requested that the proposed rule be withdrawn; 828 comments stated that some aspect of the proposed rule frustrated Congressional intent; 173 comments opposed the method by which the proposed rule requires a procuring agency to determine that the set-aside is consistent with constitutional standards; 104 comments were concerned with the methodology used by SBA to determine industries in which WOSBs were underrepresented or substantially underrepresented; thirty-six comments alleged that SBA and/or the Kauffman-RAND Institute for Entrepreneurship Public Policy (RAND) study applied the incorrect level of scrutiny to determine underrepresentation or otherwise addressed Constitutional concerns; seven comments addressed SBA's use of the value of contract dollars to determine underrepresentation; and four comments opposed the proposed self-certification process.

The SBA received several comments that requested an extension of the public comment period. In response to these comments and the general high level of interest that the proposed rule generated during the public comment period, SBA agreed with the recommendation in these comments and therefore reopened the comment period for an additional 30 days in order to allow the public more time to submit comments on the proposed rule. See 73 FR 10697. As a result, the comment period closed on March 31, 2008 and SBA received approximately 1,720 comments.

Of the comments that opposed the proposed rule, over 700 requested that SBA withdraw the proposed rule but did not provide a substantive reason why SBA should take such action. Accordingly, and for the reasons below, SBA will continue with this final rule setting forth the contracting procedures for WOSBs. In addition, SBA points out that Congress authorized the contracting assistance procedures for WOSBs contained in the final rule as a result of the Federal government's inability to reach the government-wide WOSB contracting goal of 5% of the value of all contract awards. Congress enacted Section 8(m) to authorize creation of a targeted procurement mechanism for WOSBs and it charged SBA with the responsibility for establishing and implementing the governing standards and regulations for these Procedures. The Procedures in the final rule will not only benefit WOSBs, but should help Federal agencies achieve their WOSB participation goals under Section 15(g) of the Small Business Act, 15 U.S.C. 644(g). For all of these reasons, SBA will not withdraw the proposed rule, but instead has decided to move forward with this final rule based on the authority in Section 8(m).

The SBA received approximately 104 comments expressing concern that the proposed rule limited WOSB eligibility for restricted-competition contracts to only four industry sectors. These comments stated that SBA should have used a broader methodology in the RAND study to identify the industries in which WOSBs are underrepresented or substantially underrepresented. The comments also state that SBA, without substantive justification, declined to adopt the approach in the RAND study that would have classified 87% of industries as underrepresented, and instead promulgated a rule based on the most restrictive approach proposed by the report. In addition, SBA received comments stating that it was the intent of Congress to increase federal contracts going to WOSBs and that the proposed rule will not accomplish increased participation by WOSBs. Lastly, SBA received a comment stating that the RAND report and therefore the proposed rule based its conclusions on the erroneous assumptions that the past contract opportunities analyzed by the RAND study are and will remain constant across all of the potentially affected industries.

In response to these comments, SBA notes that Section 8(m) requires SBA to conduct a study to identify the industries in which WOSBs are underrepresented and substantially underrepresented in Federal procurement. SBA initially completed the legislatively mandated study in September 2001. However, in March 2005, the National Academy of Sciences (NAS) issued an independent evaluation determining that SBA's original study was “fatally flawed.” In response to the NAS findings, SBA issued a solicitation in October 2005 seeking a contractor to perform a revised study in accordance with the NAS report. In February 2006, SBA awarded a contract to RAND to complete a revised study of the underrepresentation of WOSBs in Federal procurement in accordance with the NAS findings. The RAND report was published in April 2007. The report, along with the supporting back-up datasets used to identify underrepresentation, are available to the public at http://www.rand.org/pubs/technical_reports/TR442/ .

The RAND study outlines twenty-eight different approaches for measuring the underrepresentation of WOSBs by using a disparity ratio. Each approach uses a different data source or a different version of the same data source, and each of the data sources was recommended by the NAS findings. Depending on the approach used, the RAND study yielded different levels of WOSB representation in Federal procurement. For the reasons set forth in the proposed rule, SBA eliminated various non-justifiable approaches and selected the approach that it believed most appropriately conformed to the applicable statutory requirements, most accurately reflected the measure employed, and was legally justifiable. The selected approach compared the percentage of Federal contract dollars going to WOSBs to the percentage of total revenue from all sources going to WOSBs in 4-digit NAICS codes (“disparity ratio”). Using this approach, SBA issued a proposed rule that identified four industries in which WOSBs were underrepresented or substantially underrepresented. The comments that SBA received were opposed to the determination that WOSBs were eligible for contracts in only four industries.

Although SBA did not receive any comments on the reliability of the data sources used for the selected approach, as indicated above, SBA did receive a large number of comments opposing the selected approach. As a result, SBA engaged in a further review and examination of the RAND study, including the data sources and in particular the CCR data set, which was relied upon to arrive at the four industries in which WOSBs were found to be underrepresented and substantially underrepresented. As a result of this further examination, SBA has now identified a limitation inherent in the CCR data set. Specifically, when RAND computed the disparity ratio to determine underrepresentation, each firm's total revenue was counted in every NAICS code associated with the firm. This has resulted in firms' total revenue being counted for multiple NAICS codes, overstating the aggregate revenue figures. Although the CCR data set was publicly available along with the RAND report at http://www.rand.org/pubs/technical_reports/TR442/ , this CCR data set limitation was not specifically disclosed in the RAND study or to the public in the proposed rule.

Therefore, concurrently with the issuance of this final rule, SBA is issuing a Proposed Rule; Request for Comment that seeks input from the public on what effect, if any, the CCR data has on the disparity ratio, and ultimately, the determination that WOSBs are underrepresented or substantially underrepresented in the various industries. This CCR data limitation is fully explained in the Proposed Rule; Request for Comment. The Proposed Rule; Request for Comment also seeks comment on an alternative data set not analyzed by RAND or included in the proposed rule.

In light of the foregoing, this final rule does not identify the industries in which WOSBs are underrepresented or substantially underrepresented in Federal procurement. Therefore, SBA has determined that it is premature to address the public comments opposing SBA's identification of the eligible industries. Once SBA has received and evaluated the public's comments on the data limitation in response to the Proposed Rule; Request for Comments, SBA will publish a Notice in the Federal Register that contains the rationale for its final determination and a list of eligible industries. SBA will also post on its Internet Web site a list of 4-digit NAICS Industry Subsector industries it designates under § 127.501(a).

As indicated above, SBA determined that the most justifiable approach to determining WOSB representation compared the percentage of contract dollars going to WOSBs to the percentage of revenue dollars going to WOSBs. SBA received several comments on the decision to use contract dollars as the measure of underrepresentation. These comments stated that the use of the number of contracts as the measure of underrepresentation will more likely help to achieve the 5% goal and is therefore consistent with Congressional intent.

SBA disagrees with these comments and believes that the use of contract dollars as the measure is more consistent with the relevant statutory requirements and Congressional intent. When considering whether to use the dollar value of contract awards or the number of contract awards as the measure of underrepresentation, SBA evaluated the benefits and limitations of either choice. As indicated in the proposed rule, after careful analysis, SBA decided to adopt an approach consistent with statutory measures, which use dollars. Most importantly, Congress, through the Small Business Act, has given relevant direction only in dollars. Section 15(g)(1) is the section in the Act that provides direction on counting small business goals. All of those goals are aimed at achieving a dollar amount (total value) relative to all dollars expended in Federal procurement. In particular, the goal for small business concerns owned and controlled by women states that: “The Government-wide goal for participation by small business concerns owned and controlled by women shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.” 15 U.S.C. 644(g)(1) (emphasis added). Congress authorized the contracting assistance procedures in Section 8(m) to assist Federal agencies in achieving this goal.

In addition, Congress appropriates Federal funding in dollars, the Federal budget is divided in dollars, all Federal government contracts are awarded in dollars, and the accounting and auditing processes focus on how these dollars are spent. Dollar amounts can easily be compared across agencies, programs and NAICS codes. Tracking dollar amounts also avoids problems that arise from the contracting nuances of the individual agencies. Contract actions do not allow for an accurate accounting of the financial benefits and business development that occur when small businesses receive a Federal contract.

Based on the above, a measure that determines underrepresentation based on the number of contract awards going to WOSBs would not align with the purpose behind Congress's passage of the Section 8(m) legislation or with the other Congressional measures. On the other hand, a measure based on contract dollars is consistent with the 5% goal, which is also based on contract dollars, and therefore conforms more closely to the Congressional intent and purpose of Section 8(m). Based on this determination, the proposed rule defined “substantial underrepresentation” and “underrepresentation” as a ratio representing the WOSB share of Federal prime contract dollars divided by the WOSB share of total business receipts. For the reasons stated above, the final rule adopts the definitions of underrepresentation and substantial underrepresentation without modification.

Commenters also voiced concerns over the requirement in proposed § 127.501(b) that the procuring agency conduct its own, additional analysis of its procurement history, and make a determination whether the agency itself had discriminated against WOSBs in the relevant industry. The comments state that this requirement frustrates Congressional intent by applying a strict-scrutiny standard when gender-based preferences need only satisfy the standard of intermediate scrutiny. The comments also state that the disparity study analysis conducted by RAND is sufficient to satisfy the intermediate scrutiny standard and that the agency determination of discrimination requirement has no basis in law. The comments further state that the requirement would unduly limit the industries in which WOSBs were underrepresented or substantially underrepresented. Lastly, the comments state that this requirement would substantially burden the procuring agencies and that the procuring agencies will avoid set-asides to avoid self-incrimination and litigation.

As reflected in both the proposed rule and in this final rule, SBA agrees that the intermediate scrutiny standard applies to gender-based set-asides. The equal protection requirements of the Fifth Amendment prohibit Federal agencies from discriminating on the basis of sex in awarding contracts unless the preference furthers important governmental objectives and the means employed are substantially related to the achievement of those objectives. See United States v. Virginia , 518 U.S. 515, 533 (1996). This standard, which requires an “exceedingly persuasive justification,” id ., is commonly referred to as “intermediate scrutiny” and sometimes as “heightened scrutiny.” See id. at 555. The RAND study and the final rule acknowledge the application of the intermediate scrutiny standard to gender-based preferences.

In applying this standard, Federal courts have generally required that the government establish probative evidence of discrimination in the relevant economic sphere in order to justify sex-based contracting preferences. See, e.g., Engineering Contractors Ass'n of South Florida v. Metropolitan Dade County , 122 F.3d 895, 910 (11th Cir. 1998); Contractors Ass'n of Eastern Penna. v. City of Philadelphia , 6 F.3d 990, 1010-11 (3d Cir. 1993); Hershell Gill Consulting Engineers, Inc. v. Miami-Dade County , 333 F.Supp.2d 1305, 1317 (S.D. Fla. 2004). Based on the Federal Court precedents, the U.S. Department of Justice has advised SBA that before a contracting officer may restrict competition to WOSBs under section 8(m), it must be determined through appropriate analysis (which analysis may include examination of the concerned agency's procurement history) that the set-aside will be consistent with the foregoing constitutional standards. In particular, it must be determined whether the set-aside is substantially related to remedying sex discrimination in the affected industry. For the foregoing reasons, SBA cannot agree with the comments that section 127.501(b) of the proposed rule has no basis in the law and is inconsistent with intermediate scrutiny. As the cases above illustrate, intermediate scrutiny has been held to require evidence of discrimination in the relevant economic sphere in order to justify gender-based set asides in that sphere. The standard in section 127.501(b) is fully consistent with this judicially recognized discrimination requirement, and in fact represents one of the soundest, most reliable means of ensuring compliance with it. In addition, because the RAND study correctly acknowledges that the unrefined disparity ratios it found are not in and of themselves measures of discrimination, SBA disagrees with the comments that contend the RAND study alone is sufficient to satisfy the intermediate scrutiny.

As to the comments that the requirement of agency-specific findings of discrimination would be too burdensome for agencies, the SBA believes that individual contracting agencies are in a better position than the SBA to evaluate the connection between disparity and discrimination in certain contracting sectors because SBA does not have access to details of procurement history within other agencies. Accordingly, although requiring contracting agencies to identify evidence of discrimination in relevant contracting spheres would no doubt impose some burden, this allocation is less costly and burdensome than having SBA try to make discrimination findings based upon private sector or agency procurement data to which the agency does not have access. Furthermore, these additional agency findings will further augment the data upon which the RAND study is based and, in this way, more than compensate for any burden the procuring authorities might encounter.

The SBA further disagrees with the concern that an agency finding of discrimination could be perceived as an admission of unlawful conduct. An agency-specific finding of past discrimination would not necessarily constitute an admission of liability for past unlawful conduct because courts have noted that agency discrimination may in some instances result from an agency's passive participation in a discriminatory market.

For the foregoing reasons, the final rule adopts § 127.501 without any change.

SBA received at least one comment that was concerned with SBA's statement in the proposed rule that the provisions of Section 8(m) appear literally to authorize set-asides for Federal contracts only in industries in which WOSBs are determined to be substantially underrepresented. See 15 U.S.C. 637(m)(2)(C), (3). The comment states that this provision is unclear and conflicting, resulting in a disingenuous partial implementation of the statute that is not aligned with Congressional intent. The comment recommends SBA to recognize that, in industries where women are substantially underrepresented, the requirement of being economically and socially disadvantaged should not apply at all because of the disparity between utilization and availability.

As SBA accurately stated in the proposed rule, due to an apparent drafting error in the cross-reference and the inter-relationships between subparagraphs (2)(C), (3) and (4) of 15 U.S.C. 637(m), subparagraph (2)(C)—by its express cross-reference to subparagraph (3) rather than to subparagraph (4)—literally appears to authorize set-asides for Federal contracts only in industries in which WOSBs are determined to be substantially underrepresented. However, if the statute were construed by SBA not to authorize set-asides in industries in which WOSBs were merely underrepresented, the provision in the statute requiring SBA to conduct a study to determine industries in which WOSBs are underrepresented, as well as the section's waiver provision, would arguably be rendered inoperative or contradictory.

Accordingly, based on the above reasoning, and as already stated in the proposed rule, SBA believes that the legislation is properly interpreted to authorize set-asides industries in which WOSBs are determined to be underrepresented or substantially underrepresented.

SBA received two comments regarding the proposed protest procedures in § 127.600, et seq. These comments were concerned that the proposed rule did not address what would happen to a pending or already issued WOSB contract award when a status protest was filed with the contracting officer.

SBA agrees that proposed § 127.604 fails to provide any direction to contracting officers as to whether they are required to suspend the contract award or performance on the award until the status protest has been resolved. Therefore, SBA has amended § 127.604(f) to allow a contracting officer to award a contract or begin performance after receipt of a protest, but only if the contracting officer has determined that the award must be made to protect the public interest. The proposed rule's preamble did give some guidance for this decision, stating generally that a status protest “halts the procurement until SBA investigates the allegations and reaches a decision.” For the foregoing reasons, the following provision to § 127.604(d) will be added: The contracting officer may award the contract or begin performance after receipt of a protest if the contracting officer determines in writing that an award must be made to protect the public interest.

SBA received several comments on the self-certification process. These comments criticize SBA for creating a new certification process for these Procedures by requiring WOSBs to self-certify. The comments urge SBA to instead accept WOSB certifications from other organizations as the sole method for certification. In addition, a comment recommended that the certification rules be rewritten to prevent large corporate influence over the certification process. This comment fails to include any suggestion on how the recommendation can be accomplished.

SBA believes that the self-certification process set forth in this final rule is consistent with the statutory framework of Section 8(m) and with prevailing Supreme Court precedent. Section 127.300 requires WOSBs to be registered in the Central Contractor Registration (CCR) and have a current self-certification posted on Online Representations and Certifications Application (ORCA) that it qualifies as an EDWOSB or WOSB. Specifically, § 127.300 provides that at the time a concern submits an offer on a specific contract reserved for competition under these procedures, it must be registered in the CCR and have a current self-certification posted on the ORCA affirming that it qualifies as an EDWOSB or WOSB. That section further details the specific representations that concerns must include as part of their self-certification, including that: (1) The firm is a small business concern under the size standard assigned to the particular procurement; (2) it is at least 51 percent owned and controlled by one or more women who are United States citizens or it is at least 51 percent owned and controlled by one or more women who are United States citizens and are economically disadvantaged; and (3) neither SBA nor an SBA-approved certifier has determined that the concern does not currently qualify as an EDWOSB or WOSB.

Because ORCA is the Federal Government's generally accepted representations and certifications process that concerns currently utilize to self-certify other forms of small business status in Federal procurements, using that system for the WOSB self-certification process for Federal procurement would be the logical choice and would minimize interference with the procurement process and the burden on contracting officers and WOSBs. In addition, because certifying entities may not all use the same eligibility criteria applicable to EDWOSBs and WOSBs as provided under this rule, SBA does not intend automatically to accept additional third-party certifications for purposes of these Procedures. Rather, once SBA has determined that a certifier uses the same criteria and follows appropriate procedures and standards, SBA may designate that entity as an approved certifier. The SBA will maintain a list of all approved certifiers on its Web site.

SBA also believes the self-certification process in this rule will minimize delays and disruption to the contracting process by utilizing the existing system of representations and certifications in Federal procurement and by not requiring contracting officers to review voluminous documents supporting a concern's self-certification. It also puts a minimum burden on the EDWOSB and WOSB desiring to do business with the Federal government. At the same time, the self-certification in the CCR and ORCA will help minimize the likelihood of fraud and misrepresentation of WOSB and EDWOSB status through the use of robust protest procedures coupled with the provisions for appropriate examinations to monitor the eligibility of firms that self-certify their status and existing fraud statutes and procedures. These procedures are also consistent with other contracting preferences procedures.

SBA received one comment stating that the proposed rule wrongly creates procedures that must compete with other set-aside incentives, such as the 8(a) Business Development Program, for the attention of agency contracting officers.

In response to this comment, SBA assumes that the commenter was referring to § 127.503(c) of the proposed rule, which made clear that a contracting officer may not restrict competition to eligible EDWOSBs or WOSBs if an 8(a) BD Participant is currently performing the requirement under the 8(a) BD Program or SBA has accepted the requirement for performance under the authority of the 8(a) BD Program, unless SBA consented to release the requirement from the 8(a) BD Program. Because this limitation on the restriction of competition serves to reconcile the goal requirements of 15 U.S.C. 644(g) with the requirements of section 8(m), it is authorized by the Administrator's general authority to ”make such rules and regulations as he deems necessary to carry out the authority vested in him by or pursuant to this chapter.” 15 U.S.C. 634(b)(6). This final rule does not create an order of preference among SBA's contracting programs and is intended to be consistent with SBA's policy of parity among its contracting programs.

In addition, SBA notes that the Federal government spends billions of dollars each year in Federal procurement. Lastly, § 127.502 is necessary to ensure the integrity of the business development aspects of the 8(a) BD Program. Generally, the requirement will be retained for 8(a) participation, but may be released by SBA as indicated in the regulation. Thus, SBA has not amended the final rule to adopt this comment.

The Office of Management and Budget (OMB) has determined that this rule constitutes a “significant regulatory action” under Executive Order 12866, thereby necessitating a regulatory impact analysis. OMB has also determined that this rule is not a major rule as defined by the Congressional Review Act.

The SBA received one comment on the regulatory impact analysis. That comment questioned SBA's rationale that the Procedures will result in increased costs to the taxpayer. The comment cites a Department of Defense study which showed that price preference did not increase costs in contracts won by small disadvantaged businesses.

Although SBA did state in its regulatory impact analysis that the rule directs benefits to EDWOSBs and WOSBs at some cost to the taxpayer through restrictions on competition, the SBA also noted that, generally, the cost of transferring a contract from one business to another has minimal cost to society as a whole. In addition, the analysis stated that the loss of efficiency through restrictions in contracting has broader impacts that depend highly on the use of these Procedures by contracting officers and the availability of competition among EDWOSBs and WOSBs. SBA further analyzed that the most significant effect of this rule will be the transfer of contract dollars to EDWOSBs and WOSBs through the contracting officers' ability to restrict competition to EDWOSBs or WOSBs in industries in which SBA has determined that WOSBs are underrepresented and substantially underrepresented and where certain threshold determinations are made by an agency.

As to the remainder of SBA's Regulatory Impact Analysis, SBA did not receive any comments and is not aware of any additional information that would require revision of its initial conclusions. Therefore, SBA continues to believe that the initial analysis was accurate.

This action meets applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

This rule does not have federalism implications as defined in Executive Order 13132. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132.

In the event of a protest, this final rule will allow a WOSB concern to substantiate its self-certifications by submitting an existing certification from an SBA approved State Government certifier. In order for SBA to accept a State's certification, the State must show that its certification process meets certain standards, including a showing that its process is based on the same criteria for WOSB or EDWOSB eligibility, as set forth in this regulation. However, this final rule will not mandate how the States conduct their certification processes, and as such the rule will not have a direct effect on the States. Therefore, for the purposes of Executive Order 13132, SBA determines that this final rule has no federalism implications warranting preparation of a federalism assessment.

For purposes of the Paperwork Reduction Act, 44 U.S.C. chapter 35, SBA has determined that this proposed rule does not impose any new reporting or recordkeeping requirements. The certification process described in Subpart C, §§ 127.300 to 127.305, is not an information collection. In general, certifications are not subject to the PRA notice and review requirements unless such certifications are used as a substitute for collecting information. The proposed self-certification process does not require any concern seeking to benefit from Federal contracting opportunities designated for WOSBs or EDWOSBs to submit or maintain any information. Rather, the concern will use the existing electronic contracting system ( i.e. , ORCA) to confirm the following statements, under penalty of perjury:

(1) The concern is certified as a EDWOSB or WOSB by a certifying entity approved by SBA and there have been no changes in its circumstances affecting its eligibility since certification; or

(2) The concern meets each of the applicable individual eligibility requirements described in subpart B, including that:

(i) It is a small business concern under the size standard assigned to the particular procurement;

(ii) It is at least 51 percent owned and controlled by one or more women who are United States citizens, or it is at least 51 percent owned and controlled by one or more women who are United States citizens and are economically disadvantaged; and

(iii) Neither SBA, in connection with an examination or protest, nor an SBA-approved certifier has issued a decision currently in effect finding that it does not qualify as a EDWOSB or WOSB. The process for the annual recertification is similar in nature and as such also does not require any reporting or recordkeeping.

The only occasion on which concerns would have to submit information to SBA would be in the context of a protest or examination, when SBA might request that a particular WOSB submit documentation to substantiate its claim; however, this rule does not require the WOSBs to maintain any specific information for this purpose. Further, any request for substantiation would not be standardized but rather would be specific to a WOSB's particular status, and as such are also not subject to the PRA.

SBA has determined that this rule establishing a set-aside mechanism for WOSBs may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601, et seq. Accordingly, SBA prepared an Initial Regulatory Flexibility Analysis (IRFA) addressing the impact of the proposed rule in accordance with section 603, title 5, of the United States Code. The IRFA examined the objectives and legal basis for the proposed rule; the kind and number of small entities that may be affected; the projected recordkeeping, reporting, and other requirements; whether there were any Federal rules that may duplicate, overlap, or conflict with the proposed rule; and whether there were any significant alternatives to the proposed rule. The Agency's final regulatory flexibility analysis (FRFA) is set forth below.

SBA is establishing procedures pursuant to the SBA Reauthorization Act, Public Law 106-554, enacted December 21, 2000, codified at Section 8(m) of the Small Business Act, which authorizes the creation and implementation of a new mechanism for Federal contracting with WOSBs. The purpose of the final rule is to create a framework and infrastructure for implementing these Procedures, thereby providing a tool for Federal agencies to increase Federal procurement opportunities to WOSBs. SBA is finalizing this regulation pursuant to section 8(m) of the Small Business Act, 15 U.S.C. 637(m).

These Procedures will assist Federal agencies in achieving the Federal Government's goal of awarding five percent of Federal contract dollars to WOSBs, as provided in the Federal Acquisition Streamlining Act of 1994. Federal procurement was just over $340 billion in FY 2006, the most recent fiscal year for which procurement data are available, and only $11.6 billion, or barely more than 3.4 percent, was awarded to WOSBs.

SBA has set forth an analysis of the public comments on the Proposed Rule near the beginning of this final rule. However, the Agency did not receive any comments in response to the IRFA and is not aware of any additional information that would require revision of its initial conclusions. Therefore, SBA continues to believe that the initial analysis was accurate.

The RFA directs agencies to provide a description, and where feasible, an estimate of the number of small business concerns that may be affected by the rule. This final rule will ultimately establish in the Federal Acquisition Regulation (FAR) a new procurement mechanism to benefit WOSBs. Therefore, WOSBs that compete for Federal contracts are the specific group of small business concerns most directly affected by this rule. More specifically, when the required procuring agency determination is made, this rule may affect EDWOSBs that participate in Federal procurement in industries where SBA determines that WOSBs are underrepresented or substantially underrepresented and may affect WOSBs that participate in Federal procurement in industries where SBA determines that WOSBs are substantially underrepresented. In addition, the rule may affect other small businesses, as described below, to the extent that small businesses not owned and controlled by women or non-eligible WOSBs may be excluded from competing for certain Federal contracting opportunities.

The 2002 Survey of Business Owners published by the U.S. Bureau of the Census reported 6,489,493 women-owned businesses in the United States. More than 900,000 of these businesses have one or more paid employees. Most women-owned businesses, however, do not participate in the Federal contracting market. In addition, the SBO number represents all women-owned business (large and small) and only WOSBs are eligible under the regulations. As of January 21, 2007, approximately 93,000 businesses represented themselves as WOSBs in the Federal Government's CCR as actual or potential Federal contractors. The study conducted by the RAND Corporation for SBA narrowed the pool of WOSBs in the CCR to approximately 56,000 to more closely approximate the universe of firms who are ready, willing, and able to do business with the Government. 1 However, far fewer than 56,000 WOSBs are likely to be affected by this final rule because the number of entities to which the rule will apply will greatly depend on SBA's determination of the industries in which WOSBs are underrepresented or substantially underrepresented.

In addition, WOSBs who are not economically disadvantaged could be affected only to the extent that they compete for Federal contracts in industries in which WOSBs are determined to be substantially underrepresented. For industries in which WOSBs are determined to be substantially underrepresented, the potential number of WOSBs that could be direct beneficiaries of these Procedures restricting certain Federal contracts to WOSBs is also likely to be much fewer than the number of WOSBs registered in CCR, since not all WOSBs will satisfy the eligibility requirements for EDWOSB status. The CCR currently lists only 4,210 SDBs owned and controlled by one or more women. This is a useful statistic because the $750,000 net worth requirement is the same for SDBs and for WOSBs. While SBA acknowledges that there may be other WOSBs in existence besides those listed in the CCR as being certified by SBA as SDBs, it is difficult to envision more than 6,000 WOSBs that could meet SBA's eligibility criteria and that are also ready, willing, and able to bid on Government contracts.

Moreover, the anticipated benefits of these Procedures may be less attractive to many WOSBs than a number of other preferences designed to assist small businesses, such as HUBZone, 8(a)BD, and others. Not all areas of Federal procurement are likely to be designated as underrepresented or substantially underrepresented, and opportunities in some of the qualified industries may be limited. Consequently, many otherwise-qualified EDWOSBs and WOSBs may not find it advantageous to pursue contract opportunities under these Procedures.

This final rule will also affect non-WOSBs (small businesses not 51 percent owned and controlled by women) seeking Federal contracts for which competition has been restricted to participants in these Procedures. This would be particularly harmful for those businesses that derive a significant portion of their business from Federal contracting. As of January 2007, the CCR lists approximately 376,000 small businesses that are not WOSBs. To the extent that contracting officers use these Procedures, non-WOSBs may be excluded from competing for certain Federal contracting opportunities. However, this would occur only in industries in which WOSBs have been found to be underrepresented or substantially underrepresented and where the anticipated dollar value of the procurement does not exceed $3 million or $5 million, in the case of manufacturing contracts. The number of small businesses that would be excluded from eligibility for a set-aside under these procurements or from future such determinations is not known at this time, but it could be a substantial number.

Additional contracting opportunities identified by Federal agencies as candidates to be set aside for WOSBs will come from new contracting requirements and contracts currently performed by small and large businesses. At this time, SBA cannot accurately predict how the existing distribution of contracts by business type may change with this rule. However, SBA does not expect a great many of the contracts awarded through the 8(a), HUBZone, or SDVOSB Programs ($22.6 billion in FY 2006) to be re-competed as WOSB or EDWOSB set-aside contracts because those programs also support other socioeconomic goals that agencies strive to achieve through their contracting activities. It is acknowledged, however, that some redistribution of contracts among the various socioeconomic groups is likely to occur as a result of these Procedures.

As explained above, WOSBs and EDWOSBs will not be required to undergo any formal certification process to participate in these Procedures. Accordingly, there are no reporting or recordkeeping requirements on the affected industry. There will be some recordkeeping requirements for the Government; but since the Government already tracks procurement awards to WOSBs, the additional reporting requirements will require minimal changes to existing systems. SBA is working with the Integrated Acquisition Environment, which is managed by GSA, to ensure that CCR, ORCA, and the Federal Procurement Data System-Next Generation (FPDS-NG) contain the fields needed to capture the new socio-economic data. EDWOSB will be a new classification that the Government has not previously used.

SBA has minimized the significant economic impact on small entities. As discussed in the previous section, WOSBs and EDWOSBs will not be required to undergo any formal certification process to participate in these Procedures. Section 8(m) of the Small Business Act, which is the authorizing statutory provision for these Procedures, allows SBA to decide on the type of certification needed to implement these Procedures. Specifically, a WOSB may be certified by a Federal agency, a State government, or a national certifying entity approved by the Administrator; or a WOSB may self-certify to the contracting officer that it is a small business concern owned and controlled by women, along with adequate documentation in accordance with standards established by the Administration. As discussed earlier, SBA will allow EDWOSBs and WOSBs to self-certify their status in the existing CCR and ORCA databases.

An alternative approach would have been to require EDWOSBs and WOSBs to apply to SBA for formal certification. SBA has ruled out this approach as unnecessary and too costly. The SBA believes that eligibility examinations and protest procedures incorporated into the final rule will minimize the likelihood of fraud and misrepresentation of WOSB and EDWOSB status. SBA has decided that allowing self-certification and the option for firms to apply for certification from SBA-approved certifiers, when combined with random eligibility examinations and a formal protest procedure, is a more viable approach than formal certification by SBA and greatly reduces the burden on small entities.

In addition, SBA estimates that implementation of this regulation will require no additional proposal costs for WOSBs, as compared to submitting proposals under any other small business set-aside preferences. Moreover, WOSBs currently represent their status for purposes of data collection that is needed to implement 15 U.S.C. 644(g); therefore, the self-certification process of this final rule imposes no additional requirement on WOSBs.

Pursuant to Executive Order 13272 dated August 16, 2002, agencies issuing final rules are required to discuss any comments received from SBA's Office of Advocacy in response to the proposed rule. In this case, SBA's Office of Advocacy submitted formal comments on February 20, 2008, which recommended that the Final Regulatory Flexibility Analysis provide cost data on the effort required by WOSBs and EDWOSBs to play a role in compelling agencies to make a finding of discrimination prior to using a set-aside process for WOSB contract. With respect to this recommendation, SBA notes that each agency is responsible for conducting an analysis and making a determination of whether there has been past discrimination in a particular industry by that agency. Advocacy's position rests on the assumption that there is an expectation that WOSBs should play a role in the determination process. WOSBs are not required, nor are they expected, to participate in this process. The Small Business Act has set the Government-wide goals for contracts awarded to WOSBs at not less than 5% of the total value of all prime contract and subcontract awards for each fiscal year. SBA believes that the procuring agencies which have not achieved their agency goals for WOSB awards are likely to move forward to determine if there is discrimination in order to achieve the agency's individual goals for WOSB awards. Thus, SBA does not anticipate any cost to WOSBs and EDWOSBs to compel an agency to make a determination of discrimination.

Furthermore, the procuring agencies are best-suited to make a determination of whether there is discrimination within a certain industry because they have the necessary agency procurement data and history more readily available than the SBA. Therefore, while the SBA can conduct government-wide disparity studies identifying the industries that have been underrepresented by women, the individual procuring agencies have the necessary information to justify individual WOSB awards. This does not translate into an additional cost for WOSBs or EDWOSBs as they are not required or expected to participate in the process of determining evidence of discrimination.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That NPRM was published in the Federal Register on February 8, 2008 (73 FR 7488). That NPRM proposed to require replacing the existing straight-to-90-degree hose assembly for the Lavatory “A” water supply. The replacement is a new straight hose assembly and a separate 90-degree elbow fitting.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the four commenters.

Boeing concurs with the contents of the proposed rule. Air Transport Association, on behalf of its member, United Airlines (UA), states that UA supports the proposed rule as drafted.

Margie Tillotson, a private citizen, has no objections to the NPRM.

Aviation Data Research (ADR) and Modification and Replacement Parts Association (MARPA), make several comments related to PMA parts. ADR and MARPA state that the NPRM should be modified to embrace PMA alternatives to the original equipment manufacturer (OEM) part numbers listed in Boeing Alert Service Bulletin 737-38A1054, dated August 23, 2007 (which we cited as the appropriate source of service information for accomplishing the proposed actions). ADR states that two parts could conceivably be affected by the design problems underlying the proposed action: In 1992 Parker Hannifin obtained a PMA on part number (P/N) 3112002-139 by licensure to produce a replacement part for P/N 10-60871-139; in 1996 Crane Resistoflex obtained a PMA on P/N R 23582-0366 by licensure to produce a replacement part for P/N 10-60871-125.

ADR points out that under the wording of the NPRM, these parts, which presumably suffer the same defects as the OEM part, can be installed in place of the OEM parts. In contrast, MARPA states that it would appear that installation of PMA alternatives is forbidden, and that it is presumptuous to assume that the PMA alternatives are likely to be defective. ADR and MARPA request that the NPRM be revised to cover possible defective PMA alternative parts. MARPA adds that the AD should explicitly permit the installation of other FAA-approved replacement or modification parts. In addition, ADR states that there should be procedures “within all AD writing units” to perform PMA research any time a particular part number is affected by a discovered defect.

The FAA recognizes the need for standardization of issues related to PMA parts to which the commenter refers, and is currently in the process of reviewing issues that address the use of PMAs in ADs at the national level. However, the Transport Airplane Directorate considers that to delay this particular AD action would be inappropriate, since we have determined that an unsafe condition exists and that replacement of certain parts must be accomplished to ensure continued safety. Therefore, no change has been made to the final rule in this regard.

We have evaluated the PMA part numbers to which the commenter refers. As a point of clarification, the part numbers that the commenter mentions, Boeing P/N 10-60871-139 (PMA replacement P/N 3112002-139) and Boeing P/N 10-60871-125 (PMA replacement P/N R 23582-0366), are replaced only at the location affected by the AD because of a change in design for that location. (These parts may be installed at other locations, and the continued use of these parts at those locations is acceptable.) We have found that Stratoflex makes replacements for both P/N 10-60871-139 and P/N 10-60871-125. Stratoflex (originally Crane Resistoflex) P/N 23582-0366, which is a replacement for Boeing P/N 10-60871-125, is not in production but some of these parts may be installed at the location affected by this AD. PMA P/N 3112002-139 and PMA P/N R 23582-0366 are marked with both the Boeing part number and the PMA part number. Therefore, the requirements of the AD apply to these PMA parts and the PMA parts must be removed from service at the location affected by the AD. No change has been made to the final rule in this regard.

MARPA points out that, since Boeing Alert Service Bulletin 737-38A1054 is not on the public record, it does not seem to meet the criteria for incorporation by reference, in which the document must be reasonably available to and usable by the persons affected by the publication. MARPA states that the regulated industry has repeatedly complained about unavailability of service information.

We infer that MARPA would like us to make Boeing service information available online. We are currently in the process of reviewing issues surrounding the posting of service bulletins online as part of an online AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. In the meantime, these documents are available for public review at the locations specified in paragraph (i)(3) of this AD. Further questions regarding publication of documents in the Federal Register or incorporation by reference should be directed to the OFR. No change to the final rule is necessary in response to this comment.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD affects 779 airplanes of U.S. registry. We also estimate that it takes between 4 and 7 work-hours per airplane to comply with this AD, depending on the airplane configuration. The average labor rate is $80 per work-hour. Required parts cost about $400 per product. Based on these figures, we estimate the cost of this AD to the U.S. operators to be between $560,880 and $747,840, or between $720 and $960 per product.

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

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

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

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

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

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

We received three reports of cracks in the fuselage skin common to stringer S-1 and between station (STA) 400 and STA 460. In all three cases, there were cracks in adjacent 10-inch tear strap bays. In one case, there were cracks in four adjacent 10-inch tear strap bays. The cracks measured between 4.0 and 10.5 inches long. The airplanes had accumulated between 42,038 and 57,523 total flight cycles. Analysis indicates that the cracks were caused by fatigue due to high tension stresses and local bending at the edge of the chem-mill pockets of the bonded fuselage skin. Airplanes with 20-inch tear strap bays are also susceptible to cracks at this location. Fatigue cracking of the fuselage skin panels at the chem-mill steps, if not detected and corrected, could result in sudden fracture and failure of the fuselage skin panels, and consequent rapid decompression of the airplane.

We reviewed Boeing Alert Service Bulletin 737-53A1293, dated August 13, 2008. The service bulletin describes procedures for repetitive external detailed inspections or non-destructive inspections (NDI) to detect cracks in the fuselage skin along the chem-mill steps at stringers S-1 and S-2R between STA 400 and STA 460, and contacting Boeing for repair instructions. The NDI inspections that can be used are medium frequency eddy current, magneto optical imaging, or c-scan. For the initial inspection, the service bulletin specifies a compliance time of before 35,000 total flight cycles, or within 500 flight cycles after the date on the service bulletin, whichever occurs later. For the repetitive inspections, the service bulletin specifies repeat intervals ranging between 1,200 and 4,500 flight cycles, depending on the airplane configuration and the type of inspection previously done.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the AD and the Service Information.”

Boeing Alert Service Bulletin 737-53A1293, dated August 13, 2008, specifies contacting the manufacturer for instructions on how to repair a certain condition, but this AD requires repairing that condition in one of the following ways:

• Using a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.

We consider this AD interim action. If final action is later identified, we might consider further rulemaking then.

We are issuing this AD to detect and correct fatigue cracking of the fuselage skin panels at the chem-mill steps, which could result in sudden fracture and failure of the fuselage skin panels, and consequent rapid decompression of the airplane. Because of our requirement to promote safe flight of civil aircraft and thus, the critical need to assure the structural integrity of the fuselage and the short compliance time involved with this action, this AD must be issued immediately.

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

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0947; Directorate Identifier 2008-NM-154-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

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

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

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Discussion

We issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-300, 747-400, 747-400D, and 747SR series airplanes. That supplemental NPRM was published in the Federal Register on May 22, 2008 (73 FR 29716). For certain airplanes, that supplemental NPRM proposed to require a material type inspection to determine if the lower forward corner reveal of the number 3 main entry doors (MEDs) is a casting. If the reveals are castings, that supplemental NPRM proposed to require repetitive inspections of the reveals for cracking, and corrective action if necessary. If the reveals are not castings, that supplemental NPRM proposed to require a detailed inspection of the reveals for a sharp edge and repetitive inspections of the reveals for cracking, and corrective action if necessary. For certain other airplanes, that supplemental NPRM proposed to require only a detailed inspection of the reveals for a sharp edge and repetitive inspections of the reveals for cracking, and corrective action if necessary. For certain other airplanes, that supplemental NPRM proposed to require repetitive inspections of the reveals for cracking only, and corrective action if necessary. That supplemental NPRM also proposed to allow a certain replacement as an optional action for the material type inspection for certain airplanes.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the two commenters.

Boeing concurs with the supplemental NPRM.

Northwest Airlines (NWA) requests that we revise the Costs of Compliance section in the supplemental NPRM. NWA points out that Boeing Special Attention Service Bulletin 747-53-2460, Revision 1, dated February 13, 2007 (which we referred to in the supplemental NPRM as the appropriate source of service information for doing the actions) specifies 11 hours to perform the inspection. NWA also states that it plans 8 hours to perform the inspection per doorway or 16 hours to perform the inspection per airplane.

We disagree with the request to revise the Cost of Compliance section. The 11 hours estimate specified in Boeing Special Attention Service Bulletin 747-53-2460, Revision 1, includes time to open and close access. The four-hour estimate specified in this AD represents the time necessary to perform only the actions actually required by this AD. We recognize that, in doing the actions required by an AD, operators might incur incidental costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. We have not changed this AD in this regard.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

There are about 715 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

The term “ de minimis ” generally refers to matters that are of minor significance. The de minimis provisions of the EAR promote U.S. export control objectives as set forth in the Export Administration Act of 1979, as amended, while limiting U.S. jurisdiction over non-U.S. products containing a de minimis percentage, by value, of sensitive U.S. components. To prevent the diversion of controlled U.S. items and foreign made items incorporating a significant amount of U.S.-origin controlled content, a foreign-made item that contains more than the de minimis amount of controlled U.S.-origin content value is subject to the EAR, i.e. , a license may be required from BIS for the export abroad to another foreign country or in-country transfer of the foreign-made item. Prior to March 1987, the EAR set no de minimis levels for U.S. content in foreign made items; foreign-made items were subject to the EAR if they contained any amount of U.S.-origin content, no matter how small. A rule published March 23, 1987 (52 FR 9147) revised what were then called the “parts and components” provisions to establish thresholds at which the amount of U.S.-origin commodities in foreign-made items would warrant exercise of U.S. jurisdiction over the foreign-made item when located outside the United States. The rule was established to alleviate a major trade dispute with allies who strenuously objected to U.S. assertion of jurisdiction over all reexports of non-U.S. items that contained even trivial amounts of U.S. content. A major revision of the EAR in 1996 (61 FR 12714) introduced the term “ de minimis ” and established de minimis thresholds for software and technology. The 1996 rule required a one-time report for software and technology, which had to be submitted before reexporters relied on the de minimis rules for such items, and it made no provision for the “incorporation” of software into commodities. These provisions have not been significantly revised since 1996.

The interested public has consistently expressed concerns about de minimis calculations and reporting requirements in requests for advisory opinions, industry meetings, Technical Advisory Committee (TAC) meetings, seminars (especially overseas), and at the annual Bureau of Industry and Security (BIS) Update conference. Both U.S. exporters and the foreign manufacturers who are their customers have said that determining the applicability of the de minimis rules is complicated and cumbersome. BIS recognizes that the export control objectives of the de minimis rules will be best served if those rules are clarified to facilitate compliance with them.

Accordingly, BIS intends this revision of the EAR to facilitate compliance efforts by foreign manufacturers and respond to both advances in technology and how products are manufactured and sold in practice. Foreign manufacturers incorporating U.S. content must determine their obligations under U.S. export controls, in addition to those of their own countries, in order to prevent the diversion of controlled U.S. items to destinations and end-users that would be inimical to the national security or foreign policy interests of the United States. BIS recognizes that the heavier the compliance burden is, the greater the incentive to purchase content elsewhere. Modifying U.S. rules may reduce the pressure to “design out” U.S. origin items from foreign products, and thereby provide significant benefit to U.S. businesses while enabling BIS to continue exercising appropriate jurisdiction over foreign-made items incorporating controlled U.S. content.

This rule revises the title of Supplement No. 1 to part 730, as well as the entry for Paperwork Reduction Act collection number 0694-0101. The title corresponding to collection number 0694-0101 is changed from “One-Time Report for Foreign Software or Technology Eligible for De Minimis Exclusion” to “One-Time Report for Foreign Technology Eligible for De Minimis Exclusion”, because this rule removes the requirement to submit a one-time report on de minimis calculations for foreign software, but retains the requirement for foreign technology. The entry for 0694-0101 in the table is amended by adding Supplement No. 2 to part 734 to the related citation for this collection, because much of the detail about the required report is in Supplement No. 2 to part 734 of the EAR.

This rule amends § 732.2 “Steps regarding scope of the EAR” by revising paragraph (d) “Step 4: Foreign-made items incorporating less than the de minimis level of U.S.-origin items” (revised title) and removing and reserving paragraph (e) “Step 5: Foreign-made items incorporating more than the de minimis level of U.S. parts, components, or materials.” Paragraph (d) is revised to avoid redundancies in the EAR by eliminating instructions, otherwise described in the newly modified Supplement No. 2 to part 734, for calculating the value of U.S.-origin content in a foreign item. Paragraph (d) is also revised to clarify instructions and modernize terminology regarding foreign-made items that incorporate U.S.-origin content. Paragraph (e) is removed and reserved, because Steps 4 and 5 have been combined.

This rule amends § 732.3 “Steps regarding the ten general prohibitions” by revising paragraph (e) “Step 10: Foreign-made items incorporating controlled U.S.-origin items and the de minimis rules.” This paragraph is revised to eliminate instructions, otherwise described in the newly modified Supplement No. 2 to part 734, for determining what constitutes ‘controlled' U.S.-origin content. This paragraph also clarifies instructions and modernizes terminology regarding foreign-made items that incorporate more than the de minimis level of U.S. content. This section has also been modified to reflect the fact that there are actually two de minimis rules described in part 734 of the EAR (rather than a single de minimis rule).

This rule amends § 734.3 “Items subject to the EAR” by revising paragraph (a)(3) regarding foreign-made items that incorporate controlled U.S.-origin items. The revisions to this section clarify which foreign produced items that incorporate controlled U.S.-origin items are subject to the EAR. This rule clarifies that foreign produced commodities that incorporate controlled U.S.-origin commodities, foreign produced commodities that are ‘bundled' with controlled U.S.-origin software, foreign produced software that is commingled with controlled U.S.-origin software, and foreign produced technology that is commingled with controlled U.S.-origin technology are subject to the EAR if the incorporated controlled U.S.-origin content exceeds the de minimis levels as defined in § 734.4 of the EAR. Prior to the publication of this rule, the de minimis rules in the EAR did not allow U.S.-origin software to be counted as a part of a foreign commodity it was bundled with. Rather, calculations of U.S. content value were required to be performed separately for commodities, software, and technology. This change is in response to the way that systems and software are now being developed and delivered to customers. Furthermore, this change is necessary because software is such an integral part of the system in which the hardware and software work and is generally customized to work with a specific hardware product.

This rule amends § 734.4 of the EAR to clarify the scope of the de minimis rules by adding the title “10% De Minimis Rule” to paragraph (c), and the title “25% De Minimis Rule” to paragraph (d). These two paragraphs, together with the exceptions they cross-reference, encapsulate the “ de minimis rules” that are referenced elsewhere in the EAR. This rule also amends paragraphs 734.4(c)(3) and 734.4(d)(3) of the EAR to clarify that there is a reporting requirement that must be fulfilled before the de minimis rules are relied upon for technology. The details of that reporting requirement are in Supplement No. 2 to part 734 of the EAR. As stated in more detail below, this reporting requirement previously existed for software and technology, but now only exists for technology. This requirement is more properly stated in the text of the de minimis rules rather than in the guidelines in Supplement No. 2 to part 734, where it was previously found. This rule also moves a caution regarding the applicability of Department of the Treasury, Office of Foreign Assets Control regulations to certain exports from abroad by persons subject to the jurisdiction of the United States (as defined therein) regardless of the de minimis rules in the EAR, from § 732.3 of the EAR to a new subparagraph (a)(5) of § 734.4 of the EAR. This caution is also reworded slightly to adopt the term “persons subject to the jurisdiction of the United States”, which is a defined term in the Foreign Assets Control Regulations, 31 CFR. 500.329.

In § 734.4 of the EAR, this rule removes paragraph (e) and (h), redesignates paragraphs (f) and (g) as paragraphs (e) and (f), respectively, and adds a new paragraph (g). Paragraph (e) was removed because the provisions in that paragraph were moved to Supplement No. 1 to part 734. Paragraph (h) was removed because the provisions in that paragraph were either moved to other paragraphs, or were otherwise redundant or outdated. The prior restriction on hot section technology that was in paragraph (h) is moved to paragraph (a) and amended to more clearly express BIS's intent with regard to this restriction. This rule also corrects the citation in § 734.4 for hot section technology, which is covered by ECCN 9E003.a.1 through a.11 and .h instead of ECCN 9E003.a.1 through a.12 and .f. The prior de minimis restriction on encryption software under ECCN 5D002 in paragraph (h) contradicted the special provisions for this software found in paragraph (b), and was thus outdated. The prior de minimis restriction in paragraph (h) concerning encryption technology under ECCN 5E002 repeated the restriction on the same technology in paragraph (a), and was therefore redundant. Only certain encryption items are eligible for de minimis treatment, and this rule does not change the scope of eligible encryption items nor the special requirements set forth in § 734.4(b) of the EAR for the application of de minimis to those items. As a reminder to the public, § 734.4(b)(1)(iii) of the EAR restricts foreign products that incorporate § 740.17(b)(2) EI software or hardware, or are bundled with § 740.17(b)(2) EI software, from being exported from abroad to E:1 countries (see Supplement No. 1 to part 740 of the EAR). The new paragraph (g) sets forth a recordkeeping requirement for the method used to determine the percentage of U.S. content in foreign software or technology. This change is described in more detail below.

The amendment to § 734.3 of the EAR described above introduces the concept of `bundled' software, which will require de minimis calculations to include certain software within the calculated value of U.S. origin content in a foreign made commodity. Previously, calculations of U.S. content value were required to be performed separately for commodities, software, and technology. This interim rule will allow foreign made commodities `bundled' with de minimis amounts of U.S. origin software to become not subject to the EAR in many instances.

This rule adds three notes to paragraph (c)(1) and to paragraph (d)(1) of § 734.4 of the EAR. The notes are substantively identical for each paragraph. The first note explains that U.S.-origin software (like hardware components) remains subject to the EAR when exported or reexported separately from (i.e., not incorporated or bundled with) a foreign-made commodity. Exports or reexports of software for additional users and upgrades of the software are considered separate exports or reexports of the software.

The second note explains the meaning of `bundled'. The term `bundled' refers to software that is configured for a specific commodity, but is not necessarily physically integrated into the commodity. For instance, printer driver software is generally not incorporated into a printer but is customarily delivered with the printer so that it may be loaded onto the computer to which it will be connected.

The third note provides the scope of software that may be bundled with foreign-made commodities for the purposes of the de minimis rules set forth in §§ 734.4(c)(1) and 734.4(d)(1) of the EAR. Eligible software is software that is listed on the Commerce Control List (CCL) and is controlled for anti-terrorism (AT) reasons or software that is designated EAR99 (subject to the EAR, but not listed on the CCL). Software that is listed on the CCL and does not require a license to the destination of a given foreign-made commodity is not considered “controlled” for purposes of the shipment of that commodity and should not be included in de minimis calculations for that shipment. Software that does not meet these criteria will not be considered to be `bundled' with any commodity for purposes of the de minimis rules. BIS is limiting bundling for software to that which is controlled for AT reasons because some software controlled for non-proliferation or national security reasons can be used to enhance the capabilities of equipment controlled for the same reasons.

Supplement No. 2 to part 734 is amended to clarify the guidelines for `controlled' U.S.-origin content and for determining content values for purposes of the de minimis rules. The supplement also is amended to clarify the definition of the term ‘incorporate', and remove the reporting requirement for foreign-made software that incorporates a de minimis level of controlled U.S.-origin software. Further, this supplement will now be the sole reference point for persons seeking details on how to determine whether their foreign-made item is subject to the EAR on the basis of the de minimis rules in § 734.4. Previously, guidance on performing de minimis calculations, and specifically on identifying ‘controlled' U.S.-origin content, was also contained in part 732 of the EAR.

This rule revises the term `controlled' for the purpose of determining if the U.S.-origin content value should be counted in the de minimis percentage calculation. This explanation is a clarification of BIS's existing interpretation. U.S.-origin content is considered controlled for the purpose of the de minimis rules when it requires a license to the intended ultimate country of destination of the foreign-made item. When making this license determination you should only use the Export Control Classification Number (ECCN) based on the Commerce Control List in Supplement No. 1 to part 774 of the EAR, the Commerce Country Chart in Supplement No. 1 to part 738 of the EAR, License Exception GBS (if applicable), and the special controls and embargo provisions in part 746 of the EAR. Note that items classified as EAR99 may be controlled content when going to some destinations. End-user and end-use provisions in part 744 of the EAR are not to be considered when determining if U.S.-origin content in a foreign-made item is controlled. This is because the de minimis rules are not intended to identify licensing requirements for the foreign-made item, but rather to identify whether the foreign-made item is subject to the EAR because it contains an amount of U.S. content that is significant not only in value, but also due to its sensitivity with regard to the intended ultimate country of destination. If it is determined the foreign-made item is subject to the EAR because of the percentage of controlled U.S.-origin content it contains, then the relevant provisions of the EAR (including end-use and end-user requirements) must be applied to the foreign-made item to make a license requirement determination.

This rule clarifies the definition of “incorporated” to be consistent with common business practices concerning the way equipment and systems are being sold today. In addition, the new definition is consistent with the way that classifications are performed in BIS and the way BIS interprets the export of a commodity. Previously, Supplement No. 2 to part 734 of the EAR stated only that the term “incorporated” did not include peripheral or accessory devices that were merely rack mounted with or cable connected into foreign equipment, even though intended for use with products made abroad. Under this new rule, U.S. items are “incorporated” when all of the following conditions are met: (1) They are essential to the functioning of the foreign equipment, (2) they are customarily included in the sale of foreign-made items, and (3) they are reexported with the foreign produced item.

This rule removes the one-time reporting requirement for foreign-made software that incorporates controlled U.S.-origin software. From its inception, the one-time report was intended to be a temporary measure to verify that industry understood how to perform the de minimis calculation. BIS, as well as the Departments of Defense and State, have reviewed numerous one-time reports for foreign-made software, and have concluded that industry is performing the de minimis calculation correctly. Therefore, the one-time reporting requirement for foreign-made software is removed. However, the requirement for one-time reports for foreign-made technology that incorporate controlled U.S.-origin technology will not be removed at this time, because there has not been a sufficient number of these reports to verify that industry is performing these correctly and the scope and value of technology is more difficult to calculate.

As stated above, the recordkeeping requirement for the method by which you determined the percentage of U.S. content in foreign software or technology is moved from Supplement No. 2 to part 734 to a new paragraph (g) in § 734.4 of the EAR, as requirements should be found in the main body related to de minimis rather than in the guidance for de minimis calculations found in Supplement No. 2 to part 734 of the EAR. The recordkeeping requirement is also more clearly stated, explicitly cross-referencing the EAR's general recordkeeping provision in part 762. In addition, this rule adds a reference to § 734.4(g) in § 762.2(b) because this paragraph lists references to record retention requirements in the EAR.

This rule amends General Prohibition two in part 736 of the EAR by revising the title, harmonizing the text with § 734.4, and clarifying that foreign-made items that incorporate more than the de minimis amount of controlled U.S.-origin items are subject to all the provisions of the EAR and not just the license requirements indicated by the ECCN and the Commerce Country Chart. The title of General Prohibition two is amended to revise the parenthetical short title from “parts and components reexports” to “U.S.-content reexports,” in order to clarify that the de minimis rules apply to technology and software reexports, in addition to commodity reexports.

This rule amends guidance on the Wassenaar Arrangement statement of understanding on medical equipment in Supplement No. 3 to part 774 by revising the note defining “incorporate.” The revision harmonizes the definition of “incorporate” as it relates to U.S. commodities and software incorporated into medical equipment with the definition of “incorporate” as it is applied to the de minimis rules in part 734 of the EAR. This new definition is consistent with common business practices concerning the way equipment and systems are being sold today.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of July 23, 2008, 73 FR 43603 (July 25, 2008), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule involves a collection of information that has been approved by the OMB under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. This rule contains a collection that has been approved by the Office of Management and Budget under control number 0694-0101, which carries a burden hour estimate of 25 hours. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to Jasmeet Seehra, OMB Desk Officer, by e-mail at jseehra@omb.eop.gov or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, 14th & Pennsylvania Ave., NW., Room 2705, Washington, DC 20230.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. Pursuant to 5 U.S.C. 553(a)(1), this rule is exempt from the provision of the Administrative Procedure Act (5 U.S.C. 553) (APA) requiring notice and an opportunity for public comment because this regulation involves a military and foreign affairs function of the United States. For the same reason, good cause exists to waive the 30-day delay in effectiveness otherwise required by the APA. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this interim final rule. Accordingly, no regulatory flexibility analysis is required and none has been prepared. Although notice and opportunity for comment are not required, BIS is issuing this rule in interim final form and is seeking public comments on these revisions. The period for submission of comments will close December 1, 2008. BIS will consider all comments received before the close of the comment period in developing a final rule. Comments received after the end of the comment period will be considered if possible, but their consideration cannot be assured. BIS will not accept public comments accompanied by a request that a part or all of the material be treated confidentially because of its business proprietary nature or for any other reason. BIS will return such comments and materials to the persons submitting the comments and will not consider them in the development of the final rule. All public comments on this interim rule must be in writing (including fax or e-mail) and will be a matter of public record, available for public inspection and copying. The Office of Administration, Bureau of Industry and Security, U.S. Department of Commerce, displays these public comments on BIS's Freedom of Information Act (FOIA) Web site at http://www.bis.doc.gov/foia . This office does not maintain a separate public inspection facility. If you have technical difficulties accessing this Web site, please call BIS's Office of Administration at (202) 482-0953 for assistance.

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

Organization of this document. The following outline is provided to aid in locating information in this preamble.

This format revision will affect the “Identification of plan” section of 40 CFR part 52, as well as the format of the SIP materials that will be available for public inspection at the National Archives and Records Administration (NARA); the Air and Radiation Docket and Information Center located at EPA Headquarters in Washington, DC, and the EPA New England Regional Office.

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS) and achieve certain other Clean Air Act (Act) requirements (e.g., visibility requirements and prevention of significant deterioration). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring network descriptions, attainment demonstrations, and enforcement mechanisms.

Each SIP revision submitted by Maine must be adopted at the state level after undergoing reasonable notice and opportunity for public comment. SIPs submitted to EPA to attain or maintain the NAAQS must include enforceable emission limitations and other control measures, schedules and timetables for compliance.

EPA evaluates submitted SIPs to determine if they meet the Act's requirements. If a SIP meets the Act's requirements, EPA will approve the SIP. EPA's notice of approval is published in the Federal Register and the approval is then codified in the Code of Federal Regulations (CFR) at 40 CFR part 52. Once EPA approves a SIP, it is enforceable by EPA and citizens in Federal district court.

We do not reproduce in 40 CFR part 52 the full text of the Maine regulations that we have approved; instead, we incorporate them by reference (“IBR”). We approve a given state regulation with a specific effective date and then refer the public to the location(s) of the full text version of the state regulation(s) should they want to know which measures are contained in a given SIP (see “I.F. Where You Can Find a Copy of the SIP Compilation”).

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations.

On May 22, 1997 (62 FR 27968), EPA announced revised procedures for incorporating by reference federally approved SIPs. The procedures announced included: (1) A new process for incorporating by reference material submitted by states into compilations and a process for updating those compilations on roughly an annual basis; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the compilations and the CFR; and (3) a revised format for the “Identification of plan” sections for each applicable subpart to reflect these revised IBR procedures.

We have organized into a compilation the federally-approved regulations, source-specific requirements and nonregulatory provisions we have approved into the SIP. We maintain hard copies of the compilation in binders and we primarily update these binders on an annual basis.

Each compilation contains three parts. Part one contains the state regulations, part two contains the source-specific requirements that have been approved as part of the SIP (if any), and part three contains nonregulatory provisions that we have approved. Each compilation contains a table of identifying information for each regulation, each source-specific requirement, and each nonregulatory provision. The state effective dates in the tables indicate the date of the most recent revision to a particular regulation. The table of identifying information in the compilation corresponds to the table of contents published in 40 CFR part 52 for the state. The EPA Regional Offices have the primary responsibility for ensuring accuracy and updating the compilations.

EPA New England developed and will maintain a hard copy of the compilation for Maine. An electronic copy of the Maine regulations we have approved are available on the following Web site: http://www.epa.gov/ne/topics/air/sips.html . A hard copy of the regulatory and source-specific portions of the compilation will also be maintained at the Air and Radiation Docket and Information Center, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460; and National Archives and Records Administration (NARA). If you wish to obtain materials from a docket in the EPA Headquarters Library, please call the Office of Air and Radiation (OAR) Docket/Telephone number (202) 566-1742. For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html .

In order to better serve the public, EPA has revised the organization of the “Identification of plan” section in 40 CFR part 52 and included additional information to clarify the elements of the SIP.

The revised Identification of plan section for Maine contains five subsections:

1. Purpose and scope (see 40 CFR 52.1020(a));

2. Incorporation by reference (see 40 CFR 52.1020(b));

3. EPA-approved regulations (see 40 CFR 52.1020(c));

4. EPA-approved source-specific requirements (see 40 CFR 52.1020(d)); and

5. EPA-approved nonregulatory provisions such as transportation control measures, statutory provisions, monitoring networks, etc. (see 40 CFR 52.1020(e)).

All revisions to the applicable SIP are federally enforceable as of the effective date of EPA's approval of the respective revisions. In general, SIP revisions become effective 30 to 60 days after publication of EPA's SIP approval action in the Federal Register . In specific cases, a SIP revision action may become effective less than 30 days or greater than 60 days after the Federal Register publication date. In order to determine the effective date of EPA's approval for a specific Maine SIP provision that is listed in paragraph 40 CFR 52.1020 (c), (d), or (e), consult the volume and page of the Federal Register cited in the “EPA approval date” column of 40 CFR 52.1020 for that particular provision.

To facilitate enforcement of previously approved SIP provisions and to provide a smooth transition to the new SIP processing system, we are retaining the original Identification of plan section (see 40 CFR 52.1037). This section previously appeared at 40 CFR 52.1020. After an initial two-year period, we will review our experience with the new table format and will decide whether or not to retain the original Identification of plan section (40 CFR 52.1037) for some further period.

Today's action constitutes a “housekeeping” exercise to reformat the codification of the EPA-approved Maine SIP.

EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon a finding of “good cause,” authorizes agencies to dispense with public participation, and section 553(d)(3), which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's action simply reformats the codification of provisions which are already in effect as a matter of law.

Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Likewise, there is no purpose served by delaying the effective date of this action.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not involve technical standards; 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rules is discussed in previous actions taken on the State's rules.

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. Today's action simply reformats the codification of provisions which are already in effect as a matter of law, 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of March 1, 2007. 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 . These corrections to the Identification of plan for Maine is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Maine SIP compilation had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need to reopen the 60-day period for filing such petitions for judicial review for this reorganization of the “Identification of plan” section of 40 CFR 52.1020 for Maine.

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

EPA received two comments on its July 8, 2008, proposal from the Indiana Department of Environmental Management (IDEM), as follows:

Comment 1 . IDEM stated that in the table for particulate matter published in the Federal Register on July 8, 2008 (73 FR 38927), there is a typographical error in identifying the appropriate footnotes for the emission limitation. The first entry in the second column of the table reads “25 milligrams per dry standard cubic meter (mg/dscm)  1,4 ”when the appropriate footnote designation should be “25 milligrams per dry standard cubic meter (mg/dscm).  1 ”The final rule for amending 326 IAC 11-7-3 (LSA #06-434(F)) included in the State plan submitted on August 24, 2007 shows a strikeout over the number 4.

Comment 2 . IDEM submitted an agency correction to their August 24, 2007, submittal to amend 326 IAC 11-7-3 to correct footnotes for mercury and sulfur dioxide in the emissions limitations table. The agency correction was published on July 23, 2008 in the Indiana Register and is effective September 6, 2008. IDEM is requesting that these corrections be a part of the final Federal approval.

EPA response 1 and 2 . EPA is correcting the table to address both comments from IDEM as follows:

We are approving Indiana's revised State plan for large MWCs, submitted to EPA on August 24, 2007, with corrections submitted on July 29, 2008. This plan revision approval excludes certain authorities retained by EPA, as stated in 40 CFR 60.30b(b) and 60.50b(n).

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.

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” 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 (59 FR 22951, November 9, 2000).

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act (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 approves a state rule implementing a Federal Standard.

In reviewing state 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 state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2008. 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).

Throughout this document, whenever “we”, “us”, and “our” are used, we mean the EPA.

The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties. On April 30, 2004, we classified the area as a moderate nonattainment area for the 1997 8-hour ozone standard, with an attainment date no later than June 15, 2010 (69 FR 23858). On June 15, 2007, we received a request from the Governor of Texas seeking voluntary reclassification of the HGB area from a moderate nonattainment area to a severe nonattainment area under the 1997 standard. On December 31, 2007, we proposed to reclassify the HGB area to a severe nonattainment area for the 1997 8-hour ozone standard (72 FR 74252). In our proposal we discussed the consequences of reclassification. We also proposed and solicited comment on a range of dates, from December 15, 2008 to April 15, 2010, for the State to submit a revised SIP addressing the severe ozone nonattainment requirements. In this final rulemaking, for the reasons set forth below in Section II and in the responses to comments, we are (1) reclassifying the HGB area as a severe nonattainment area for the 1997 8-hour ozone standard and (2) selecting April 15, 2010 as the deadline by which the State must submit a revised SIP addressing the applicable severe area requirements. 1

After fully considering all comments received on the proposed rule and pursuant to CAA section 181(b)(3), the HGB area is reclassified as a severe nonattainment area for the 1997 8-hour ozone standard. The new severe area attainment date for the HGB area is as expeditiously as practicable, but no later than June 15, 2019. The plain language of CAA section 181(b)(3) mandates that we approve the request to reclassify the area to severe, as requested by the Governor of Texas, and that we have no discretion to deny the request. Section 181(b)(3) provides in relevant part that “[t]he Adminstrator shall grant the request of any State to reclassify a nonattainment area in that State in accordance with table 1 of subsection (a) of this section to a higher classification.”

A revised SIP for the HGB area must include all the requirements for serious ozone nonattainment area plans, such as: (1) Enhanced ambient monitoring (CAA section 182(c)(1)); (2) an enhanced vehicle inspection and maintenance program (CAA section 182(c)(3)); (3) a clean fuel vehicle program or an approved substitute (CAA section 182(c)(4)), and (4) gasoline vapor recovery for motor vehicle refueling emissions (CAA section 182(b)(3)  2 ). The revised SIP must also meet the severe area requirements, including: (1) An attainment demonstration (40 CFR 51.908); (2) provisions for reasonably available control technology (RACT) and reasonably available control measures (RACM) (40 CFR 51.912); (3) reasonable further progress (RFP) reductions in volatile organic compound (VOC) and nitrogen oxide (NO X ) emissions (40 CFR 51.910); (4) contingency measures to be implemented in the event of failure to meet a milestone or attain the standard (CAA sections 172(c)(9) and 182(c)(9)); (5) transportation control measures to offset emissions from growth in vehicle miles traveled (CAA section 182(d)(1)(A)); (6) reformulated gasoline (CAA section 211(k)(10)(D)); and (7) NSR permits (40 CFR part 165). See also the requirements for serious and severe ozone nonattainment areas set forth in CAA sections 182(c), 182(d) and 185. Because the HGB area was classified as severe under the 1-hour ozone standard, many of these requirements are currently being implemented.

In our proposal to this final rule, we identified a range of dates and requested supporting information to consider in setting the appropriate severe classification submittal date. We received a number of comments discussing the full range of dates offered. We considered each comment carefully before setting a submission date. Since CAA section 181(b)(3) does not establish a precise timeframe for submitting an attainment plan under a voluntary reclassification request, we reviewed the information provided by commenters and other information in the record before us and the particular set of circumstances related to HGB to establish a deadline that is consistent with and that will ensure that the 8-hour ozone standard will be attained as expeditiously as practicable but no later than June 15, 2019. After fully considering all comments received on the proposed rule and pursuant to CAA section 181(b)(3) we find that April 15, 2010, is the appropriate SIP submittal date for a revised SIP.

In selecting the April 15, 2010 date, we considered that this would allow the amount of time necessary to incorporate more recently available information into the photochemical modeling and provide time for control strategy development. The new information includes improved meteorological information available from the Texas Air Quality Study II (TexAQS II study) which took place in the 2005 and 2006 time period, improved emissions data from the HRVOC source monitoring rules that took effect in 2006, greater ambient data available from the TexAQS II study and incorporation of more advanced modeling techniques. An earlier date for submissions would have required the use of existing modeling episodes without the benefit of this more recent data. EPA believes, with this more robust data set, a more reliable control strategy can be developed. We discuss the points in more detail below.

Historically, the Houston area meteorology has been very difficult to model due to a combination of issues. The Houston area meteorology is very complex and is impacted by both a land/sea breeze interaction and a bay breeze function that make meteorological modeling of the area difficult. Modeling of other meteorological phenomena such as frontal passages/weak fronts, nocturnal jets, convergence zones, etc.; are also difficult to model and made even more difficult by the land/sea/bay breeze influences. TexAQS II data includes meteorological observations from numerous surface sites, two towers, hundreds of balloons, five aircraft, a research vessel and an offshore platform. These data will help to characterize important meteorological phenomena affecting ozone in the HGB area, including land/sea/bay breeze, nocturnal jets, stagnation, frontal passages, dispersion and mixing of ozone precursors, and transport.

Photochemical modeling of the Houston Area is also complicated by the significant difference between reported emissions from industrial sources and emissions estimated from actual monitored emissions from ambient concentrations. Previous 1-hour modeling included in a 2004 HGB 1-hour ozone SIP showed the benefit of modeling episodes that had more data collected than normal, such as in a field study. In the past, adjustments to reported emissions have been necessary to resolve the discrepancy between the emissions inventory and emissions estimated from ambient measurements. The field study data from 2005 and 2006 will help identify and quantify any continuing discrepancies between reported and actual emissions. During 2006, intensive monitoring was conducted that included monitoring from aircraft, intensive monitoring from a ship based platform, additional ground monitoring, collection of hourly specific emission inventory information for over 100 industrial facilities, and numerous additional meteorological monitoring sites. TCEQ has chosen to include episodes from 2006 that will benefit from the additional data and will result in higher confidence in any emission inventory adjustments that are done and the resulting photochemical modeling.

In addition, a large amount of federal, state, and scientific community resources have been enlisted to refine and analyze the data collected for use in the new 2005 and 2006 modeling. Analyses from the TexAQS II study only recently have become available in 2007 and 2008, and are critical to guiding the TCEQ modeling development and validating the results. Texas should be allowed time to incorporate these results, since otherwise the modeling would then likely need to be redone to incorporate these findings. We expect the TexAQS II data will contribute to better understanding of the adequacy of emissions inventories in several key areas, including shipping, onroad mobile sources, industrial VOCs and formaldehyde. It should also aid in the representation of chemical pathways in the models, since key parameters controlling the formation and destruction of ozone in the HGB area were investigated. Texas is also engaged in a number of activities to improve the model's ability to replicate the complex interactions leading to high ozone, including model enhancements to incorporate temperature variations, better land use and land cover data, improved information on biogenic emissions, better data for emissions and monitored concentrations, and advanced modeling techniques. See TCEQ Comments, page 3. TCEQ is modeling more than 50 episode days while making improvements in the modeling process and incorporating TexAQS II results.

TCEQ estimates it will take until March 2009 to complete the modeling work and associated quality assurance and peer review to support a proposed modeling and attainment demonstration. An April 15, 2010 submission date will allow a little more than a year for control strategies to be proposed and adopted. EPA believes that a year's period of time is as expeditious as practical for the development of the necessary control strategies given the complexity and difficulty of the HGB area ozone problem. The HGB area has one of the most severe ozone problems in the country. High ozone results from emissions both from the large industrial sector and the large urban population. The necessary controls to reach attainment are likely to be far reaching and technology forcing. Texas has already initiated a stakeholder process for strategy development so that they will be well positioned when the modeling work is completed.

An earlier date would mean the TCEQ would have to rely on a less reliable 2000 modeling episode that would yield more uncertainty to the modeling analysis, and suspend work on the new modeling episodes. At best, a June 2009 date may have included initial work with the 2005 and 2006 episodes in addition to the 2000 episode, but would not have incorporated much of the data that was collected during TexAQS II, and thus, would have more uncertainties and would be less representative. A deadline for submission of the attainment demonstration that is earlier than April 2010 would inhibit the development of effective attainment strategies based upon new modeling of ozone episodes that occurred in 2005 and 2006, the more recent 2006 emissions inventory, and incorporation of findings from TCEQ's most recent field study of ozone formation, TexAQS II. Relying on the 2000 episode likely would result in the need to subsequently revise the SIP, and would delay the development of effective and defensible control strategies. Overall, it is EPA's judgment that the longer submittal date will give TCEQ the necessary time to develop the modeling and control strategies using the 2005 and 2006 episodes with the TexAQS II field study data resulting in a more representative and accurate attainment demonstration.

In addition to modeling, TCEQ must also analyze emissions data to develop ozone control strategies. To do so, TCEQ must incorporate the findings from TexAQS II into its SIP planning, and must also rely on the 2006 NO X and VOC emissions inventory, which was not expected to be complete until early 2008 and would therefore not allow for some early aspects of control strategy development until 2008. It is important to use the 2006 inventory since it will provide the most accurate VOC emissions data, in part as a result of monitoring and testing requirements established in the HRVOC rules for flares, vents and cooling towers. The 2006 point source inventory represents years of efforts to improve emissions data, including more accurate speciation and reporting of VOC emissions.

In summary, the April 15, 2010 is appropriate as the submission date due to: (1) The complexity in developing and implementing effective emission reductions for the area; and (2) the opportunity for a more robust attainment demonstration plan that relies on better data and modeling. Developing and implementing effective emission reductions for the area is complex due to its: (1) Complex coastal meteorology; (2) large urban population; (3) large industrial area; and (4) the current underestimation issues of industrial emissions. With this submission, more recent data and modeling episodes may be used to identify control strategies and demonstrate attainment of the standard. In our December 31, 2007, proposal, we stated that the new attainment demonstration should be based on the best information available (72 FR 74252, 74254). A SIP revision submission date of April 15, 2010, allows for the best information to be used to produce an attainment demonstration that is representative, robust and accurate. This date is most likely to ensure that the 8-hour ozone standard will be attained as expeditiously as practicable but no later than June 15, 2019.

We received 35 comments on our December 31, 2007 proposal from citizens, public interest groups, business groups, elected officials and governmental organizations. The comments we received on our proposal can be found on the internet in the electronic docket for this action. To access the comments, please go to http://www.regulations.gov and search for Docket No. EPA-R06-OAR-2007-0554, or contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph above. The discussion below addresses the comments we received on our proposed action. The discussion addresses comments received on (1) reclassification of the area to severe, (2) the date for a revised SIP submittal, and (3) relief of CAA attainment demonstration and related requirements.

Comment: Comments were received that EPA should not reclassify the area to severe. Comments were submitted that (1) EPA is limited by language in CAA section 181(b)(3) that EPA “* * * shall grant the request of any State to reclassify a nonattainment area in that State in accordance with table 1 of subsection (a) to a higher classification” (emphasis added); (2) table 1 had been superseded by the 8-hour ozone standard table at 40 CFR 51.903; and (3) the appropriate 8-hour ozone design value range for table 1 is 0.107-0.199 parts per million (ppm), which would make the area's classification “serious”. Comments were also submitted that reclassification to severe, which is two levels higher than moderate, conflicts with other CAA provisions for ozone nonattainment areas (CAA Title I, Part D, Subpart 2), and EPA's action on the State's reclassification request must be reasonable.

Response: We reiterate our position that the plain language of section 181(b)(3) mandates that we approve the request to reclassify the area to severe, as requested by the Governor of Texas, and that we have no discretion to deny the request. Section 181(b)(3) provides in relevant part that “[t]he Adminstrator shall grant the request of any State to reclassify a nonattainment area in that State in accordance with table 1 of subsection (a) of this section to a higher classification.” Several commenters agreed with EPA's position on this matter as well as the position that the State could select the higher classification best suited to its needs. EPA agrees with these commenters.

One commenter cited to our Phase 1 final rule to implement the 8-hour ozone national ambient air quality standard (NAAQS) response to comments section for EPA's rationale for voluntary reclassifications (69 FR 23951, 23962). We agree with this commenter. In the response to comments on that rule, we stated that voluntary reclassification is the mechanism defined in the CAA for states to obtain additional time for attainment when necessary. In the Phase 1 rule responses to comments, we stated:

Table 1 of CAA section 181(a) (for the 1-hour ozone standard) and table 1 of 40 CFR 51.903 (for the 8-hour ozone standard) list classifications for nonattainment designations, the ozone design values used for initial designations, and the maximum period for attainment of the standard. Table 1 from 40 CFR 51.903 is reprinted below. Table 1 refers to classifications ranging from marginal to extreme. For the reasons set forth below, in acting on a request for voluntary reclassification, we are not constrained by the 8-hour design values for initial classifications set forth in table 1. Therefore the request by Texas to reclassify the area from moderate to severe is in accordance with table 1.

Some commenters contended that a severe classification is not justified by the HGB area's air quality design value as interpreted by table 1, and thus the request is not in accordance with table 1 and EPA is not mandated to grant the request. This contention misreads section 181(b)(3).

The plain meaning of CAA section 181(b)(3) is clear, and, in addition, if one compares it with the other provisions of section 181(b) of the CAA it supports our position that Congress meant there to be no discretion on the part of EPA in approving a voluntary reclassification, and the State can request any higher reclassification it deems appropriate. The authority to seek a reclassification beyond the next highest classification is evident when one contrasts the statutory language governing voluntary reclassification in section 181(b)(3) with statutory language governing reclassification upon failure to attain in the previous paragraph of the CAA. In section 181(b)(2), Congress specified that:

The specific direction in section 181(b)(2) that, upon failure to attain, a nonattainment area shall be reclassified to the higher of “the next higher classification” or “the classification applicable to the area's design value” contrasts with the language of section 181(b)(3), which states that a voluntary reclassification may be to “a higher classification.” In section 181(b)(3), there is no reference to the area's design value or limitation that the reclassification must be equivalent to the area's design value. Under section 181(b)(3), reference to “in accordance with table 1” means in accordance with the area classification categories of marginal to extreme, not air quality design values used for initial classifications. Section 181(b)(3), unlike section 181(b)(2), does not direct comparison to the area's air quality design value. As in section 181(b)(2), Congress also referred explicitly to design values in section 181(a), providing that an ozone nonattainment area's initial classification should be “based on the design value of the area.” No such limitation is placed on a voluntary reclassification under section 181(b)(3). As one commenter pointed out, reclassification from “moderate” to “severe” is in accordance with table 1, since it defines the range of what is a “higher classification” and the associated attainment dates. If Congress had meant to restrict or specifically direct what classification a State could choose, it would have written similar limiting language into section 181(b)(3), and would have included, as it did in section 181(b)(2), a specific time for determining the design value of the area. (Without such a timeframe being defined, it is not possible to determine the area's design value). While both sections 181(b)(2) and 181(b)(3) provide that reclassification shall be “in accordance with table 1 of subsection (a)”, section 181(b)(3) does not direct that the design value of the area being reclassified fall within the range of design values corresponding to a particular classification. Even under section 181(b)(2), reclassification is not required to be equivalent to the air quality of the area at the time of classification. Under section 181(b)(2), an area being reclassified is not required to match its design value to the design value for the classification category in table 1, but rather to the “higher” of the next classification or its design value at the time of reclassification. It would be illogical for Congress, as it did, to require areas to be reclassified to classifications higher than their design value under the mandatory provisions of section 181(b)(2), while prohibiting such reclassification under the voluntary provision of 181(b)(3). Nor is there any basis, as a commenter suggests, to construe the reference in section 181(b)(3) to reclassification to “a higher classification” to be limited to “the next higher classification” or a single classification level. Therefore EPA's approval of the voluntary reclassification from moderate to severe is reasonable and in keeping with the statutory provisions, which provide EPA no discretion to deny a request for voluntary reclassification to a higher classification.

A commenter's argument that, in order to be “in accordance with table 1,” the area's design value at the time of reclassification must match the design value for initial classification in table 1, contradicts the commenters' own position that the area should be reclassified to serious, since, according to the commenter, the more recent design values do not match the severe area concentrations. The area's most recent design values are 103 parts per billion (ppb) in both 2005 and 2006, and 96 ppb in 2007—these levels match the design value for initial classification for moderate areas. Of course, as pointed out above, section 181(b)(3) makes no reference to design values nor any timeframe for determining them—thus there is confusion in the commenters' discussions about the appropriate dates for determining the area's design value, with one commenter arguing that “the HGB area's design value is most consistent with 0.107-0.119 ppm,” the serious range, EDF Comments at 8, while another notes that the “2005 eight-hour design value was 103 ppb”. GHASP Comments, at 2. Thus the commenters' argument that a voluntary reclassification can only be to a classification that matches the area's design value, is further undermined by the indeterminacy of the relevant design value with regard to section 181(b)(3). To the extent that the most recent design values match the initial classification levels for moderate areas, this also conflicts with the commenters' assertions that the area should be reclassified to serious and not severe.

Other provisions in the CAA do not conflict with our action to reclassify the area to severe. Sections 181(a)(4) and (5) were cited in a comment. Neither section has anything to do with the voluntary reclassification provision in section 181(b)(3). CAA section 181(a)(4) gives the Administrator discretion, within 90 days of an original classification, to “adjust” that initial classification upwards or downward if an area's design value places it within 5 percent of the next classification. It has no bearing on the circumstances for granting a request for voluntary reclassification as set forth in section 181(b)(3). For more information, please see our September 22, 2004, action reclassifying certain 8-hour ozone nonattainment areas from moderate to marginal under section 181(a)(4) (69 FR 56697). CAA section 181(a)(5) simply sets forth the criteria for granting attainment date extensions if an area is not being reclassified , and it does not affect or shed light on the criteria for granting voluntary reclassifications. It provides for a maximum of two 1-year extensions of the attainment date for the 1-hour ozone NAAQS. The attainment date can be extended—without reclassifying the area—if the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan and there was no more than 1 exceedance of the 1-hour ozone NAAQS preceding the extension year. CAA section 181(a)(4) contains very specific language regarding how to make immediate, minor adjustments to initial classifications, and section 181(a)(5) contains specific language on how to extend an attainment date when an area is not being reclassified. Congress addressed separately and equally specifically voluntary reclassifications in section 181(b)(3). Thus EPA interprets the voluntary reclassification differently from these other provisions. Based on the language in CAA section 181(b)(3), our action is consistent with the CAA, and it is reasonable. Section 181(a)(4) applies only in limited circumstances to initial designations, and is not applicable here. Section 181(a)(5) applies to circumstances for extending attainment dates without changing the classification of the area, and is not applicable here. Neither provision conflicts with or limits the scope of section 181(b)(3).

Comment: Several comments were received stating that HGB had never attained any standard and that further delay in attaining the standard by granting the reclassification is not warranted. Comments were received that the goal of the SIP is attainment of the 8-hour ozone standard, not simply a reduction in ozone precursors. Comments contended that TCEQ has repeatedly failed to reach this goal and to implement adequate control measures, and that sanctions should be imposed and that it should not be rewarded with extra time. One commenter cited an April 2007 letter from the Mayor of Houston and Harris County Judge Emmett, stating that they opposed the idea of a double “bump-up” and that the resulting delay in attainment was unacceptable.

Response: As stated above, voluntary reclassification is a legitimate option under the CAA, and it is an appropriate option if the State is unable to develop a plan that demonstrates that an area will attain within the time period for its assigned classification. Texas' 8-hour submittal demonstrated that the State could not model attainment by its moderate attainment date. Moreover, under the Act, EPA does not have discretion to deny a request for voluntary reclassification.

With respect to the April letter from the Mayor of Houston and Judge Emmett, subsequent comments from them on EPA's proposed reclassification were more supportive of EPA's proposed action than the April 2007 letter indicated. These comments stated that “whether the EPA determines that a single or double bump up in classification for the HGB is appropriate, our concern remains the timely attainment of the NAAQS. The control measures included in the SIP must ensure that the NAAQS is attained as expeditiously as practicable as required by the Clean Air Act.” The comments noted that “[w]hile the City and County are concerned that the SIP submittal date of 2010 could delay achieving attainment, the TCEQ believes that this extended period will allow TCEQ to develop the most effective SIP possible. This up front investment of time should result in a SIP that will not have to be significantly changed or corrected to include revised data. Developing a quality SIP should avoid delays in implementation.” EPA notes that, under the Clean Air Act, when an area is reclassified, it must still attain the standard as expeditiously as practicable. Thus the concerns expressed in the comment should be alleviated by an appropriate attainment demonstration.

As set forth in other responses to comments, EPA does not believe it appropriate to impose sanctions for attainment demonstration-related moderate area SIP requirements, where the area has been unable to demonstrate attainment by the moderate area deadline, is being reclassified to severe, and is in the process of developing a severe area attainment demonstration and related requirements. As set forth in the proposal, Texas has submitted other non-attainment demonstration-related moderate area requirements, and as a former 1-hour severe ozone nonattainment area, is already implementing other severe area requirements. Once reclassified the area is no longer required to submit an attainment demonstration for the prior classification, so sanctions for failure to submit such a SIP would be inappropriate. The area has demonstrated that it could not develop a reasonable attainment demonstration for a moderate area deadline so sanctions could never be cured in the area, if applied.

Comment: A comment was received that if we grant Texas' reclassification request of the area to severe that the approval should be conditioned upon adoption by Texas of further control measures within 12 months of approval of the reclassification.

Response: CAA section 181(b)(3) directs EPA to grant a State's request to reclassify a nonattainment area in that State to a higher classification. Section 181(b)(3) does not authorize EPA to attach conditions (such as additional control measures) upon our granting of such a request, but there are consequences to being reclassified. Reclassification to a severe designation will result in the HGB ozone nonattainment area being subjected to severe 8-hour ozone nonattainment area requirements, including New Source Review (NSR) and Title V permit requirements, in addition to applicable 1-hour requirements. For example, Texas will have to meet the more stringent reasonable further progress (RFP) reductions in VOC and NO X emissions required by a severe classification (40 CFR 51.910).

In addition, TCEQ has already initiated stakeholder meetings addressing additional control measures. CAA section 172(c)(1) requires SIPs for all nonattainment areas to provide for the implementation of all reasonably available control measures (RACM) as expeditiously as practicable. When we receive the HGB attainment demonstration for the 1997 ozone standard, we will review it to determine whether it provides for all RACM necessary to attain the standard as expeditiously as practicable and provides for implementation of those measures as expeditiously as practicable. For more information on RACM, please see our “Guidance on Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas,” (Memorandum from John Seitz, Director, Office of Air Quality Planning and Standards, November 30, 1999, available at http://www.epa.gov/ttn/oarpg/t1/memoranda/revracm.pdf ). With respect to the commenter's suggestion that additional controls be adopted and submitted within 12 months, please see Section II above, as well as EPA's responses to comments on the timing of submission for the revised SIPs that are due as a result of reclassification to severe.

Comment: A comment was received that reclassification of the area to severe subjects the action to review under Executive Order 12866 (Regulatory Planning and Review, 58 FR 51735, October 4, 1993) as a significant regulatory action. The commenter also noted that protecting children from environmental health risks is a priority concern, as expressed in Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks, 62 FR 19885, April 23, 1997).

Response: We continue to believe that reclassification of the area to severe is not a “significant regulatory action” under Executive Order 12866, and therefore is not subject to Executive Order 12866. Voluntary reclassifications to a higher classification under section 181(b)(3) of the CAA are based solely on requests by the State, and we are required under the CAA to grant them. As we explained in response to comments above, EPA's approval of the State's request for reclassification is mandatory and is in accordance with the requirements of section 181(b)(3) of the CAA. Contrary to commenter's contention, the reclassification of HGB from moderate to severe is consistent with the statutory provisions. With respect to the commenter's concern regarding E.O. 13045, EPA interprets that provision as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the E.O. has the potential to influence the regulation. This action is not subject to E.O. 13045 because it grants a voluntary reclassification, and EPA's approval is mandatory. Moreover, regardless of its classification, the HGB area remains subject to the obligation to attain as expeditiously as practicable.

Comment: Comments were received opposing April 15, 2010, the date requested by TCEQ, as the submission date for a SIP revision. One commenter stated that: (1) There is no precedent for such a long timeframe; (2) for the San Joaquin Valley area voluntary reclassification, EPA allowed only 7 months to submit a new attainment plan and 12 months to incorporate new extreme area SIP elements; (3) EPA should treat these two voluntary “bump-up” requests similarly and apply an equally short SIP submission date to the HGB area; and (4) EPA should not reward delay by Texas in implementing all RACM and completing an attainment demonstration with a protracted timeframe in which to develop a new SIP.

One commenter stated that: (1) A state is generally provided 12 months to modify and revise the applicable SIP if there was a failure to meet an attainment date; (2) when EPA finds that the applicable implementation plan for any area is substantially inadequate to attain or maintain the relevant NAAQ standard, it has the authority to require the state to revise the plan and submit a new plan no later than 18 months after notice to the state of the need for revision; (3) the initial SIP submission deadline when drafting a plan for the first time “from scratch” is a maximum of three years; and (4) it seems unreasonable to need 34 months to revise a SIP that was revised in May 2007. Another commenter stated that it was unacceptable that TCEQ would be allowed to delay until April 2010 before it had to adopt further control measures. Other commenters stated that the sooner we reach the point when planning stops and action starts, the sooner we will all enjoy the benefits of cleaner, healthier air.

Response: In our proposal to this final rule, we identified a range of dates and requested supporting information to consider in setting the appropriate severe classification submittal date. Many of these factors were discussed by the commenters who advocated a shorter timeframe than requested by Texas. We considered each comment carefully before setting a submission date. Since CAA section 181(b)(3) does not establish a precise timeframe for submitting an attainment plan under a voluntary reclassification request, we must review the record before us and each particular set of circumstances to establish a deadline that is consistent with and that will ensure that the 8-hour ozone standard will be attained as expeditiously as practicable but no later than June 15, 2019. See section 182(i), which provides that when reclassifying areas under section 181(b)(2), EPA may adjust applicable deadlines for requirements other than attainment dates to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions. EPA believes that, by analogy, it would be logical to assume that EPA has this same authority in granting reclassifications under section 181(b)(3). We requested in the proposal that commenters state their choice of a submittal date and justify their selection. After reviewing all the justifications before us, we have determined the April 15, 2010, date is appropriate and reasonable based on the totality of the information. As we set forth in Section II above, and in our responses to comments, we believe that TCEQ and the other commenters supporting an April 15, 2010, date presented compelling support for this submission deadline.

Historically, the Houston area has been very difficult to model due to a combination of issues. The Houston area meteorology is very complex and is impacted by both a land/sea breeze interaction and a bay breeze function that make meteorological modeling of the area difficult. Modeling of other meteorological phenomena such as frontal passages/weak fronts, nocturnal jets, convergence zones, etc. are also difficult to model and made even more difficult by the land/sea/bay breeze influences. TexAQS II data includes meteorological observations from numerous surface sites, two towers, hundreds of balloons, five aircraft, a research vessel and an offshore platform. These data will help to characterize important meteorological phenomena affecting ozone in the HGB area, including land/sea/bay breeze, nocturnal jets, stagnation, frontal passages, dispersion and mixing of ozone precursors, and transport.

Photochemical modeling of the Houston Area is also complicated by the significant difference between reported emissions from industrial sources and emissions estimated from ambient concentrations. Previous 1-hour modeling included in a 2004 HGB 1-hour ozone SIP highlights the benefit of using modeling episodes that had more data collected than normal, such as in a field study. In the past, adjustments to reported emissions have been necessary to resolve the discrepancy between the emissions inventory and emissions estimated from ambient measurements. The field study data from 2005 and 2006 will help identify and quantify any continuing discrepancies between reported and actual emissions. During 2006 intensive monitoring was conducted that included monitoring from aircraft, intensive monitoring from a ship based platform, additional ground monitoring, collection of hourly specific emission inventory information for over 100 industrial facilities, and numerous additional meteorological monitoring sites. TCEQ has chosen to include episodes from 2006 that will benefit from the additional data and will result in higher confidence in any emission inventory adjustments that are done and also in the resulting photochemical modeling.

In addition, a large amount of federal, state, and scientific community resources have been enlisted to refine and analyze the data collected for use in the new 2005 and 2006 modeling. Analyses from the TexAQS II study only recently have become available in 2007 and 2008, and are critical to guiding the TCEQ modeling development and validating the results. Texas should be allowed time to incorporate these results, since otherwise the modeling would likely need to be redone to incorporate these findings. We expect the TexAQS II data will contribute to better understanding of the adequacy of emissions inventories in several key areas, including shipping, onroad mobile sources, industrial VOCs and formaldehyde. It should also aid in the representation of chemical pathways in the models, since it investigated key parameters controlling the formation and destruction of ozone in the HGB.

Overall, it is EPA's judgment that the longer submittal date will give TCEQ the necessary time to develop the modeling and control strategies using the 2005 and 2006 episodes with the TexAQS II field study data resulting in a more representative and accurate attainment demonstration. It will take time to incorporate the field study data collected in 2005 and 2006 into the meteorological and photochemical modeling for the area. This includes processing of radar data (available in mid-2008), compilation and review of 2006 emission inventory data (mid-2008), inclusion of additional meteorological data (2007-2008), inclusion of Continuous Emission Monitoring (CEM) data from the HRVOC sources that have CEMs (mid-2008), analysis and inclusion of data from ground, ship, and aircraft data collected (2007-2009).

With regard to the commenter's contention that the SIP was revised in May 2007, it is important to note that the 2007 SIP revision did not demonstrate attainment and that extensive additional work would be required to do so and to adopt new requirements as appropriate.

Even with an April 15, 2010, submission date, we expect the area to continue to reduce VOC and NO X emissions through Federal, State and local controls. Provisions for reasonable further progress (RFP) reductions in these ozone precursor emissions is a requirement for a severe area SIP (40 CFR 51.910). For the HGB area where 15% VOC reductions have already been achieved, required severe area reductions are an average of 3 percent per year of VOC and/or NO X for: (1) The 6-year period following the baseline emissions inventory year (2002); and (2) all remaining 3-year periods after the first 6-year period out to the area's attainment date (40 CFR 51.910(a)(1)(B)). These reductions will lead to lower ozone levels. As noted above, TCEQ has already conducted stakeholder meetings on additional control measures. TCEQ is also implementing the Texas Emission Reduction Program (TERP) and the AirCheckTexas program to reduce emissions. TERP provides funding for reducing NO X emissions from diesel engines. AirCheckTexas provides funding for replacing older, higher polluting automobiles with newer less polluting ones.

With respect to the comments supporting submission dates earlier than April 2010, see the responses to comments below. With respect to the comment concerning the 7-month submission deadline for the San Joaquin Valley voluntary reclassification, EPA notes that contrary to commenter's contention, EPA's actions in setting the submittal date and the timeframes in the voluntary reclassification of San Joaquin are consistent with the deadline set here. Although in its April, 2004 notice EPA set a submittal date of November 15, 2004 (and some months later for Title V and NSR requirements), EPA noted that additional time was not warranted “because the District has been working on the extreme area plan since 2002, and has indicated that they can meet the November 15, 2004 deadline.” 69 FR 20550, 20551. (April 16, 2004). Thus the time period for work on the plan in San Joaquin is comparable to that being afforded the State here, and, as in San Joaquin, is consistent with what the State has requested. Moreover, as set forth in detail elsewhere in this notice, under the circumstances presented here, the complex challenges confronting the HGB area justify the length of time provided for submittal of the plan.

Comment: Comments were received supporting dates earlier than April 15, 2010, as the submission date for a SIP revision. One comment stated that the submission date for a revised SIP should be as expeditiously as practicable but no later than December 15, 2008, which would be 18 months from the reclassification request. Other comments supported a June 2009 date by which the SIP revision should be submitted. Commenters stated that a June 15, 2009, date allows Texas much more time than normal, but less than requested. One commenter stated that a June 2009 date would ensure that sufficient work can be completed on the plan while respecting the need for urgent action.

Response: As stated above, we believe that TCEQ and the other commenters who supported the April 15, 2010, date have presented compelling arguments and information, and that this date is as soon as practicable. If December, 2008 were set as the deadline, TCEQ would have to rely on a 2000 modeling episode instead of newer, more comprehensive and representative modeling episodes. Due to the limitations of the 2000 episode (since the 2000 episode large reductions in NO X and HRVOCs with the Cap and Trade program have occurred which add uncertainity to future year modeling projections and the 2000 episode had some periods of unrepresentative meteorological conditions), reliance on it would likely result in less accurate and representative projections of future design values (especially when weighed against using the more recent field study data collected in 2005 and 2006 and the modeling of more recent episodes). See the Comments of the TCEQ, pages 1-2. Thus, TCEQ is modeling a number of episodes from 2005 and 2006, in order to develop an adequate basis for developing an attainment strategy. This allows for the episodes to include the effects of earlier reductions of NO X and HRVOCs in the base inventories and also base the episodes on periods with more intensive data collection to further lessen the uncertainties in modeling projections. The episodes from 2005 and 2006 are more representative of the typical conditions that lead to high ozone levels. Due to complicated source-receptor relationships and meteorology in the HGB, this modeling requires an intensive effort, involving six-twelve months more time than when modeling more typical urban areas. These complex relationships are in large part due to the complicated meteorological characteristics of the HGB area, including land/bay/sea breeze and their interaction with other meteorological features that impact the dispersion and mixing of ozone precursors; and also the complex mixture of industrial emissions of VOCs (including HRVOCs) and NO X that make modeling the HGB area much different than most other areas of the country. The additional field study data and detailed emission inventory data collected during the 2005 and 2006 period will improve the accuracy of the base case modeling (meteorology, emissions, and chemistry) and help to yield more representative SIP modeling demonstration.

A large amount of federal, state, and scientific community resources have been enlisted to refine and analyze the data collected for use in the new 2005 and 2006 modeling. Analyses from the TexAQS II study only recently have become available in 2007 and 2008, and are critical to guiding the TCEQ modeling development and validating the results. Texas should be allowed time to incorporate these results, otherwise the modeling would then likely need to be redone to incorporate these findings. We expect the TexAQS II data will contribute to better understanding of the adequacy of emissions inventories in several key areas, including shipping, onroad mobile sources, industrial VOCs and formaldehyde. It should also aid in the representation of chemical pathways in the models, since key parameters controlling the formation and destruction of ozone in the HGB area were investigated. TexAQS II data includes meteorological observations from numerous surface sites, two towers, hundreds of balloons, five aircraft, a research vessel and an offshore platform. These data will help to characterize important meteorological phenomena affecting ozone in the HGB area, including land/sea/bay breeze, nocturnal jets, stagnation, frontal passages, dispersion and mixing of ozone precursors, and transport. In addition, Texas is engaged in a number of activities to improve the model's ability to replicate the complex interactions leading to high ozone, including model enhancements to incorporate temperature variations, better land use and land cover data, improved information on biogenic emissions, better data for emissions and monitored concentrations, and advanced modeling techniques. See TCEQ Comments, page 3. TCEQ is modeling more than 50 episode days while making improvements in the modeling process and incorporating TexAQS II results. TCEQ estimates it will take until March 2009 to complete the modeling work and associated quality assurance and peer review to support a proposed modeling and attainment demonstration.

A December 2008 date would mean the TCEQ would have to rely on the less reliable 2000 modeling episode, and suspend work on the new modeling episodes. At best a June 2009 date may have included initial work with the 2005 and 2006 episodes in addition to the 2000 episode, but would not have incorporated much of the data that was collected during TexAQS II, and thus would have more uncertainties and would be less representative. A deadline for submission of the attainment demonstration that is earlier than April 2010 would inhibit the development of effective attainment strategies based upon new modeling of ozone episodes that occurred in 2005 and 2006, the more recent 2006 emissions inventory, and incorporation of findings from TCEQ's most recent field study of ozone formation, TexAQS II. Relying on the 2000 episode would likely result in the need to subsequently revise the SIP, and would delay the development of effective control strategies.

In addition to modeling, TCEQ must also analyze emissions data to develop ozone control strategies. To do so, TCEQ must incorporate the findings from TexAQS II into its SIP planning, and must also rely on the 2006 NO X and VOC emissions inventory, which was not complete until the middle of 2008, and would therefore not allow for some early aspects of control strategy development until late 2008. It is important to use the 2006 inventory since it will provide the most accurate VOC emissions data, as a result of monitoring and testing requirements established in the HRVOC rules for flares, vents and cooling towers. The 2006 point source inventory represents years of efforts to improve emissions data, including more accurate speciation and reporting of VOC emissions. For details of these improvements, see TCEQ Comments at 5.

Due to the extensive controls already required for major sources in the HGB area, TCEQ may need to consider more stringent strategies that will require time for conducting more inventory and survey work on area sources, as well as for researching control technologies on sources that have not historically been regulated for ozone, or that are smaller than what has previously been regulated. More evaluation and stakeholder outreach may also be needed for control strategies that impact small businesses and sources not historically regulated for ozone. Issues being studied that could have an affect on control strategies include the role of ozone levels aloft in model performance and control strategy assessment, differences between measured on-road mobile source CO-to-NO X ratios and those predicted by the national mobile source emissions model, MOBILE6, and indications that a great degree of variability exists in VOC emissions, with some sources emitting large quantities within a short period of time and also the general underestimation for many industrial sources of VOCs (recent field study information indicates VOCs may still be under-reported by a factor of 2 or more). As one commenter has pointed out, in the past when results and insights from field studies were not included in the development of attainment plans, the plans subsequently had to be revised. Moreover, if an earlier deadline is imposed, it would result in the loss of the full complement of modeled episode days, and diminish confidence that the control strategies would work under a range of meteorological conditions. Since different control strategies were being introduced in 2005 and 2006, eliminating the 2006 episodes would result in the loss of information about the effectiveness of these controls. A deadline prior to April, 2010 also would not allow sufficient time for rule development after identification of control strategies. The rulemaking process under the Texas Administrative Procedure Act, combined with TCEQ rulemaking practice, typically takes about one year. Texas has also commented that sensitivity analyses to assess the benefits of selected controls also are not currently available.

In developing control measures, an extensive public participation process is needed, since emissions reductions will be required from all source categories. A shorter timeline would not allow sufficient input by community stakeholders and outside scientists, on such issues as data, modeling, and other analyses, as well as emissions factors. This input is important for the development of effective control strategies and their implementation. Thus, EPA finds that the April 2010 deadline is necessary to provide sufficient time to allow adequate modeling episodes and control strategies based on best available data.

Comment: A comment was received that if EPA is convinced that it will legitimately take until 2010 to complete the technical work to support the required demonstration of attainment, EPA should require TCEQ to work with local stakeholders to adopt available control measures on an expedited schedule.

Response: As noted above: (1) TCEQ has already initiated stakeholder meetings on additional control measures, and is implementing the Texas Emission Reduction Program and the AirCheckTexas program to reduce emissions; and (2) control measures will be adopted as expeditiously as practicable, and will be submitted with the attainment demonstration in 2010. Given the time necessary for updating the emissions inventory, episode modeling, and control strategy development adoption of significant numbers of new control measures cannot be expected earlier than April 2010.

Comment: We invited comments on a range of dates from December 15, 2008 to April 15, 2010 for a revised SIP submittal. Comments were received supporting April 15, 2010 as the submission date for a SIP revision. One commenter (TCEQ) recommended this date due to: (1) The extraordinarily complex nature of ozone formation in the HGB area; (2) the need to successfully model a large number of ozone days; (3) the new scientific information beginning to emerge from the Texas Air Quality Study II; (4) complicated issues associated with developing and implementing emission reduction measures; and (5) the need for extensive stakeholder involvement. TCEQ further stated that: (1) Requiring the state to submit an attainment demonstration any time before April 2010 does not change the attainment date nor does it advance the protection of public health; (2) an earlier submission date is counterproductive to protecting public health; (3) a December 2008 deadline would mean that all initial technical work on the HGB SIP would be discontinued; and (4) the SIP revision would contain little more than previous modeling and a control strategy package that relies on fleet turnover from federal rules. Texas also provided detailed justification for the April 15, 2010 submission date addressing: (1) Modeling, (2) control strategy development, (3) the stakeholder process, and (4) the reasonable further progress SIP.

Another commenter stated that: (1) The timeline requested by Texas is necessary in order to integrate recent field study data, new episodes, and state-of-the-art modeling; (2) imposing artificial deadlines would mean that key components would be omitted, which would all but guarantee a flawed plan; and (3) the result (of a flawed plan) would be a costly and wasteful regulatory re-work, which could delay, rather than accelerate attainment.

Response: We agree with these commenters that April 15, 2010 is appropriate as the submission date for a SIP revision due to: (1) The complexity in developing and implementing effective emission reductions for the area; and (2) the opportunity for a more robust attainment demonstration plan that relies on better data and modeling. Developing and implementing effective emission reductions for the area is complex due to its: (1) Complex coastal meteorology; (2) large urban population; and (3) large industrial area (4) the current underestimation issues of industrial emissions. With a SIP submission date of April 15, 2010, more recent data and modeling episodes may be used to identify control strategies and demonstrate attainment of the standard. In our December 31, 2007, proposal, we stated that the new attainment demonstration should be based on the best information available (72 FR 74252, 74254). A SIP revision submission date of April 15, 2010, allows for the best information to be used. See also section II above, and responses to comments above.

Comment: Several commenters stated that reclassification should not be a means to avoid meeting fundamental CAA requirements, and that Texas is therefore still required to complete and submit, as components of its May 2007 SIP, an adequate RACM analysis, an adequate attainment demonstration, supporting photochemical modeling, and contingency measures. Comments stated that “Congress intended the reclassification process to be used as a last resort, [to be undertaken] after all [RACM] have been implemented and all best efforts undertaken to reduce emissions.”

Response: As we stated in the proposal, Texas has a continuing responsibility for certain elements of the moderate area requirements. EPA has stated that reclassification does not provide a basis for extending submission deadlines for SIP elements unrelated to the attainment demonstration that were due for the area's moderate classification. In June 2007, Texas submitted an 8-hour SIP to EPA that included the requirements of (1) a moderate area reasonable further progress demonstration (40 CFR 51.910), which includes contingency control measures if the area fails to meet reasonable further progress (CAA section 172(c)(9)); (2) a reasonably available control technology (RACT) demonstration (40 CFR 51.912); and (3) a 2002 emissions inventory (40 CFR 51.915). Other moderate area SIP requirements are currently being implemented. These include NSR rules (40 CFR part 165) and a vehicle inspection and maintenance program (40 CFR 51.905(a)(1)(i)). Also, as stated above, reclassification is not without consequences for the area. Reclassification to a severe designation will result in the HGB ozone nonattainment area being subjected to severe 8-hour ozone nonattainment area requirements, including New Source Review (NSR) and Title V permit requirements, in addition to applicable 1-hour requirements. For example, Texas will have to meet the more stringent reasonable further progress (RFP) reductions in VOC and NO X emissions required by a severe classification (40 CFR 51.910). For other serious and severe area requirements, see section 182(c) and (d).

EPA disagrees with the commenters to the extent they believe that a full attainment demonstration plan including modeling, attainment contingency measures and RACM needs to be submitted and approved by the moderate area deadline. Once an area is reclassified it retains the SIP due date for certain SIP elements that applied for the area's initial classification. However it can receive a new date for the attainment demonstration and related elements, in addition to the SIP elements required under its new (higher) classification. It is EPA's belief that the CAA provides that, upon reclassification, relief can be granted from the submittal deadline for the requirements of the lower classification related to the attainment demonstration. As a reclassified area the area is no longer obligated to demonstrate attainment by the date previously required for the prior classification. The area must then provide an attainment demonstration for the new classification, but must still demonstrate attainment as expeditiously as practicable. Such deadlines are determined on a case-by-case basis for each area and proposed and finalized through rulemaking. As discussed previously, we believe it is appropriate in this case to allow time to develop an attainment demonstration based on more complete information available through additional episode days and the TexAQS II study. This approach is balanced by the fact that the CAA provides for additional more stringent requirements to be placed upon a nonattainment area when it is given a higher classification. In addition, we expect that the additional time will provide for a more robust attainment demonstration. In the meantime, the State has made submittals to meet and/or is implementing the moderate area requirements not related to an attainment demonstration. When a nonattainment area is reclassified, the CAA attainment demonstration requirements of the new classification supersede those of the previous classification. In other words, once a nonattainment area has been reclassified and as a result has a new attainment deadline, the deadline applicable to the attainment demonstration under the previous classification no longer has any logical, practical or legal significance. The State has already demonstrated its inability to meet the moderate area deadline for attainment, and is preparing its new demonstration under the severe classification. Therefore, EPA is not evaluating the sufficiency of the attainment demonstration or RACM submissions made pursuant to the area's moderate classification, or imposing sanctions for insufficiency. EPA's conclusion not to require a moderate area attainment demonstration is logical, since the State is unable to demonstrate attainment by the moderate area attainment date, and the area is being reclassified. It is also consistent with its action in the voluntary reclassification of San Joaquin Valley, 69 FR 20550 (April 16, 2004).

As noted in EPA's proposal, Texas submitted contingency measures to be triggered if the area fails to meet reasonable further (RFP) progress under the moderate area requirements. 72 FR 74253. A commenter contends that the State's failure to include an attainment demonstration under its moderate area classification makes an attempt to include contingency measures impossible, arguing that such contingency measures can only be determined if they are surplus to the measures needed for attainment. For contingency measures to meet RFP, however, EPA will be able to evaluate and, if appropriate, approve these measures in advance of an attainment demonstration. If, when the attainment demonstration is submitted, it is determined that additional contingency measures are required to meet severe area RFP or attainment, EPA will require such measures. A commenter cited to the February 12, 2007 Thomas Diggs (Chief, Air Planning Section, EPA Region 6) letter to Joyce Spencer (TCEQ), which stated: “EPA cannot approve any contingency measures unless and until the state makes an adequate demonstration that they are surplus to the measures needed for attainment.” In response, EPA is clarifying Mr. Diggs statement to make explicit that it is limited it to the context of contingency measures for failure to attain. Contingency measures for failure to meet RFP are only those surplus to the RFP demonstration, and, as noted above, unlike contingency measures for attainment, EPA can evaluate such contingency measures in advance of the attainment demonstration.

One commenter contended that in the General Preamble EPA stated that when an area is reclassified it must submit and implement RACM consistent with the moderate area schedule. 57 FR 13537.

EPA notes that the passage quoted above by the commenter is contained in the section of the General Preamble addressing the PM-10 standard, and does not relate to the ozone standard. In addition, this statement is at odds with statements elsewhere in the General Preamble about RACM being a component of an area's attainment demonstration under section 172(c)(1) (57 FR 13560), and is superseded by a much more extensive discussion of PM-10 RACM and Best Available Control Measures (BACM) in the Addendum to General Preamble for State Implementation Plans for Serious PM-10 Nonattainment Areas. 59 FR 41998, 42008-42011, (August 16, 1994). The Addendum makes clear that RACM, as distinguished from BACM, is to be analyzed “according to what is reasonable in light of the overall attainment needs of the area.” 59 FR 42011. The Addendum notes that the “pronounced difference in timing for the serious area submittals * * * is to be contrasted with the timing for submittal of similar provisions for moderate areas. Under section 189(a)(2), both the RACM plans and the attainment demonstration for moderate PM-10 areas must as a general matter be submitted at the same time.” The Addendum explains that the fact that BACM, unlike RACM, requires adoption and implementation before the attainment demonstration, shows that Congress intended BACM to be based on the feasibility of implementation rather than, as for RACM, the attainment needs of the area. 59 FR 42012. Thus it is clear that, for RACM for ozone, for the same reason that the deadline for an attainment demonstration should be extended when an area is reclassified, the deadline for RACM should also be extended. This is buttressed by EPA's interpretation, upheld by the United States Court of Appeals for the Fifth Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745 (5th Cir. 2002) and by the U.S. Court of Appeals for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002), that the statute requires only implementation of RACM measures that would advance attainment. Thus RACM can only be determined in conjunction with an attainment demonstration. A commenter's contention that “areas that are not attaining the NAAQS must implement all technologically and economically feasible control measures” is at odds with the statute as interpreted by EPA and the courts. Moreover, the commenter's reliance for support on Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990), is misplaced. Delaney was decided before the 1990 Amendments to the Clean Air Act were enacted and the General Preamble was issued, and it does not reflect the current statute and guidance. (See Ober v. EPA , 84 F. 3d 304 (9th Cir. 1996), noting that Delaney was decided before the 1990 Amendments and before EPA changed its guidance with respect to transportation control measures and RACM.) Delaney focused on a specific set of circumstances, applying requirements for attainment under a previous version of the statute and guidance, and it did not require attainment as expeditiously as practicable with reasonably available control measures but rather attainment as soon as possible with all possible measures. It is not pertinent to evaluating the RACM requirement under the current version of the Act in the circumstances presented by HGB.

EPA believes it would be unreasonable to require the implementation of RACM before a determination can be made of what is “reasonably” available based on whether implementation will expedite attainment. EPA's statements in the General Preamble are consistent with this approach. In the General Preamble EPA repeatedly stated, that it would be unreasonable to require a plan to include the implementation of all technologically and economically available control measures even though such measures would not expedite attainment. General Preamble, 57 FR 13498, 13543, 13560 (April 16, 1992). Texas is in the process of developing an attainment demonstration that will ascertain which measures will expedite attainment. It would be unreasonable, in the meantime, to require implementation of all measures before a determination of their usefulness and necessity can be determined. Texas is not being excused from adopting RACM; Texas will make its RACM submission at the time it submits its attainment demonstration under the severe area classification. EPA will review the State's submission at that time

A commenter cites Ober v. EPA , 84 F.3d 304 (9th Cir. 1996), for the proposition that a moderate area that is reclassified as serious must comply with moderate area SIP requirements, and that reclassification does not delay or supersede existing SIP requirements. But Ober's discussion of the obligation to meet SIP requirements was not based on section 181(b)(3), but rather was in the context of the provisions governing the PM-10 standard, and was explicitly based on the consideration that there were separate requirements for the 24-hour and annual PM-10 standards. The Court concluded that given these two standards, the inability of the area to attain the annual PM-10 standard by the moderate area deadline, and resulting reclassification to serious, did not relieve the State of the obligation to meet the moderate area requirements of the separate 24-hour standard. The passage cited by the commenter, from footnote 2 of the opinion, makes clear that the moderate area PM-10 requirements referred to relate to the 24-hour standard. In the case of HGB, which involves the ozone standard, there is no such separate standard. In addition, the passage the commenter quotes from Ober cites section 7513a(b)(1), which merely states that a serious PM-10 nonattainment area must comply with moderate as well as serious area requirements. It does not address the issue of whether an area that has been voluntarily reclassified under the ozone standard must submit an attainment demonstration by a deadline that has been rendered obsolete by reclassification.

Comment: Comments were received that EPA has correctly deferred submittal requirements, as CAA attainment demonstration requirements of the new classification supersede requirements of the previous classification.

Response: We agree with the commenters that certain attainment-demonstration related requirements of the lower classification are superseded. See Responses above.

Comment: Comments were received that a reclassification to severe will release Texas from sanctions for failing to submit a proper SIP or meet the attainment deadlines of the former moderate classification. Comments stated that Texas should not be able to avoid any penalties for noncompliance by virtue of “an improper reclassification”. A commenter stated that Congress intended the reclassification process to be used as “a last resort”.

Response: Congress placed no limitations on a State's ability to request reclassification to a higher classification, and provided for no discretion for EPA to deny such a request. EPA believes that a voluntary reclassification is a legitimate method provided by the CAA to deal with the circumstances of HGB, as discussed earlier in these Responses. Since Texas submitted its request for reclassification in a timely fashion, EPA sees no reason to make any finding regarding whether or not Texas' moderate attainment plan demonstrated attainment or to apply sanctions at this time. Upon reclassification, the moderate area attainment demonstration-related requirements are superseded by the severe area attainment demonstration requirements. See Responses to Comments above. Texas has not been released from the obligation to comply with SIP submission deadlines for other moderate area requirements not related to the attainment demonstration.

Comment: A commenter stated that EPA contends that more stringent requirements accompanying the higher classification removes the incentive for states to request an improper reclassification with a later attainment date. The commenter states, however, that EPA acknowledges that because HGB was classified as severe under the 1-hour standard, many of the more stringent requirements are already being implemented. The commenter asserts that with the increased compliance burden removed, reclassification appears to be an effort by Texas to postpone attainment and sanctions.

Response: EPA does not agree that reclassification relieves Texas's compliance burden. Texas still confronts additional and more stringent requirements under a severe classification for the 8-hour standard, and must still attain the standard as expeditiously as practicable, and meet the requirements under its severe classification for RACM and RFP. These are important consequences of reclassification, and Texas's obligation to comply with these requirements under the 8-hour ozone standard is a significant one.

After fully considering all comments received on the proposed rule and pursuant to CAA section 181(b)(3): (1) The HGB area is reclassified as a severe nonattainment area for the 1997 8-hour ozone standard; and (2) we find that April 15, 2010, is the appropriate SIP submittal date for a revised SIP meeting the requirements for the severe area classification and demonstrating that the HGB area will attain the 1997 8-hour standard as expeditiously as practicable, but no later than June 15, 2019.

A revised SIP for the HGB area must include all the requirements for serious ozone nonattainment area plans, such as: (1) Enhanced ambient monitoring (CAA section 182(c)(1)); (2) an enhanced vehicle inspection and maintenance program (CAA section 182(c)(3)); (3) a clean fuel vehicle program or an approved substitute (CAA section 182(c)(4)), and (4) gasoline vapor recovery for motor vehicle refueling emissions (CAA section 182(b)(3)). The revised SIP must also meet the severe area requirements, including: (1) An attainment demonstration (40 CFR 51.908); (2) provisions for reasonably available control technology (RACT) and reasonably available control measures (RACM) (40 CFR 51.912); (3) reasonable further progress reductions in volatile organic compound (VOC) and nitrogen oxide (NO X ) emissions (40 CFR 51.910); (4) contingency measures to be implemented in the event of failure to meet a milestone or attain the standard (CAA sections 172(c)(9) and 182(c)(9)); (5) transportation control measures to offset emissions from growth in vehicle miles traveled (CAA section 182(d)(1)(A)); (6) reformulated gasoline (CAA 211(k)(10)(D)); and (7) NSR permits (40 CFR part 165). See also the requirements for serious and severe ozone nonattainment areas set forth in CAA sections 182(c), 182(d) and 185. Because the HGB area was classified as severe under the 1-hour ozone standard, many of these requirements are currently being implemented.

The revised SIP for the HGB area must also contain adopted measures sufficient to achieve required reasonable further progress in emission reductions and to attain the 8-hour ozone NAAQS as expeditiously as practicable but not later than June 15, 2019. The new attainment demonstration should be based on the best information available.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to Executive Order 12866. Voluntary reclassifications under section 181(b)(3) of the CAA are based solely on requests by the State, and EPA is required under the CAA to grant them. These actions do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by reclassification, reclassification does not impose a materially adverse impact under Executive Order 12866. 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).

In addition, I certify 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. ). And these actions do 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), because EPA is required to grant requests by states for voluntary reclassifications and such reclassifications in and of themselves do not impose any federal intergovernmental mandate. 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 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 EPA interprets E.O. 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it grants a voluntary reclassification, and EPA's approval is mandatory.

As discussed above, a voluntary reclassification under section 181(b)(3) of the CAA is based solely on the request of a state, and EPA is required to grant such a request. In this context, it would be inconsistent with applicable law for EPA, when it grants a state's request for a voluntary reclassification, to use voluntary consensus standards. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) also do not apply. In addition, 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. ).

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. As stated earlier in this Notice, EPA is taking final action granting the State's request for a voluntary reclassification. The plain language of section 181(b)(3) of CAA mandates that we “shall” approve such a request if it is made in accordance with the requirements of the Act, and, as such, does not provide the Agency with the discretionary authority to address concerns raised outside the Act, including those contained in Executive Order 12898.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 2008. 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 to reclassify the HGB area as a severe ozone nonattainment area and to adjust applicable deadlines may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under section 408(g) of FFDCA, 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2008-0381 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 1, 2008.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2008-0381, by one of the following methods.

•  Federal eRulemaking Portal : http://www.regulations.gov . Follow the on-line instructions for submitting comments.

•  Mail : Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

•  Delivery : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of June 18, 2008 (72 FR 34734) (FRL-8366-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 7F7302) by Circle One Global, Inc. (Circle One), P.O. Box 28, Shellman, GA 39886-0028. The petition requested that 40 CFR 180.1254 be amended by expanding the existing exemption from the requirement of a tolerance for residues of Aspergillus flavus NRRL 21882 on corn. A summary of the petition prepared by the petitioner Danny Gay, Acta Group, 1203 Nineteenth St., NW., Suite 300, Washington DC 20036, on behalf of Circle One Global, Inc., was included in the docket at www.regulations.gov (Docket No. EPA-HQ-OPP-2008-0381). On July 9, 2008, Acta Group posted a comment to this docket to clarify that the pending amendment to the current exemption from tolerance for Aspergillus flavus NRRL 21882 is intended to apply to field corn, sweet corn, and pop corn as harvested. The tolerance exemption is being granted for these food commodities on the basis of the toxicology studies which support all food commodities.

A temporary exemption from the requirement of tolerance for Aspergillus flavus NRRL 21882 on corn currently exists at 40 CFR 180.1254(b). That temporary tolerance is connected with Experimental Use Permit No. 75624-EUP-2 and is set to expire on May 2, 2009. The Agency issued this temporary rule on May 16, 2007, after determining that the temporary exemption from the requirement of tolerance was safe (72 FR 27460, May 16, 2007).

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . . ” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Aspergillus flavus NRRL 21882 is a non-aflatoxin-producing fungal active ingredient for use in microbial pesticides. It will be used to displace the ubiquitous Aspergillus flavus group of microbes, many of which can produce aflatoxin, a potent carcinogen. The toxicological profile of this conditionally registered active ingredient has been previously described in the final rule of the Federal Register of June 30, 2004, (69 FR 39341) (FRL-7364-2). On the basis of those studies, the exemption from tolerance of Aspergillus flavus NRRL 21882, a non-aflatoxin-producing strain of Aspergillus flavus , on peanuts was established in 40 CFR 180.1254.

The acute oral toxicology studies provided for peanuts are cited in support of the tolerance exemption for field, pop and sweet corn. Those studies placed Aspergillus flavus NRRL 21882 in Toxicity Category IV for acute oral effects. This active ingredient was not toxic, infective or pathogenic to mammals on the basis of acute oral and pulmonary studies. That database supporting the exemption from tolerance on peanut also supports the proposed exemption of this active ingredient on corn. Even though the active ingredient has demonstrated toxic and infective effects in the acute intraperitoneal studies, there was clearance from all tissues by day 22. The results of these studies were considered a worse case scenario relevant to issues of occupational exposure for which the agency required appropriate Personal Protective Equipment (PPE) to mitigate risk to workers. In addition, the pesticide is not to be applied to residential areas, but rather to commercial corn fields. Thus, potential non-occupational exposure is not expected. For a summary of the studies and discussions of dietary and non-dietary, non-occupational dermal and inhalation exposures, as well as aggregate and cumulative, exposures, and potential endocrine effects refer to the aforesaid June 30, 2004 final rule (69 FR 39341). All studies met, and continue to meet, the safety standards of the Food Quality Protection Act (FQPA) of 1996. This pesticide has been used for more than a decade in experimental laboratory and field trials without any reports of adverse dermal irritation or hypersensitivity effects.

The Agency has determined that the previously reviewed acute toxicological studies do support the proposed exemption from tolerance of Aspergillus flavus NRRL 21882 on corn. Summaries of the rationales for this determination may be found in the aforesaid Federal Register final rule of June 30, 2004. No further toxicological data are required for this exemption from the requirement of a tolerance for Aspergillus flavus NRRL 21882 on corn. The applicant must, however, report any incidents of hypersensitivity, or any other adverse effects to comply with the requirements of FIFRA section 6(a)(2).

In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

In evaluating dietary exposure to Aspergillus flavus NRRL 21882, EPA considered exposure under the petitioned-for tolerances as well as the existing Aspergillus flavus NRRL 21882 tolerance for peanuts in (40 CFR 180.1254(a)).

1. Food . Pesticides containing Aspergillus flavus NRRL 21882 are to be applied aerially to corn once per season at the first sign of corn tasseling. Because there is a long period of time between application and harvesting, residues of Aspergillus flavus NRRL 21882 are not expected to be greater than the normal background levels, when the food commodity is harvested. In addition, corn and its byproducts will be subject to several stages of food processing and manufacturing. These stages include washing, threshing, dehulling, dry and wet milling, and fractionation by aspiration and the other food manufacturing and processing technologies which are associated with preparing and marketing corn as a food commodity. Thus, because of the low application rate and food processing steps, this naturally occurring active ingredient is not expected to be present at greater than background levels on consumable corn commodities. Even if it is present, it is not likely to cause harm because it is not toxic, infective or pathogenic as demonstrated in the acute oral toxicity study in rats.

These observations from the acute toxicology tests are also relevant to dietary exposure of human adults, infants and children to peanuts treated with Aspergillus flavus NRRL 21882. The Agency, taking both crops into consideration, concluded that the aggregate exposure to this active ingredient with low toxicity potential will not cause harm if the pesticide is used as labeled.

2. Drinking water exposure . The analysis provided for the tolerance exemption for residues of Aspergillus flavus NRRL 21882 on peanuts also supports the drinking water exposure analysis for corn. As in the case of peanuts, the pesticide is to be applied in drought ridden areas and is not directly applied to crops grown in water. Thus accumulation in drinking water is not expected. Percolation through the soil and municipal treatment of drinking water are expected to preclude exposure of the U.S. population, infants and children to residues of the pesticide. Thus incremental exposure via drinking water is not expected when both corn and peanuts are treated.

Non-occupational dermal and inhalation exposure is expected to be minimal to non-existent when the microbial pesticide containing the active ingredient Aspergillus flavus NRRL 21882 is used as labeled on corn and peanuts. For both crops, the pesticide is to be applied to agricultural sites not in the proximity of residential areas, schools, nursing homes or daycares. While there is a potential for dermal sensitivity to the Aspergillus group of fungi, the specific pesticide at issue here, Aspergillus flavus NRRL 21882, is not intended for residential applications. Instead, it is to be applied once per growing season to commercial agricultural fields. Pesticide drift is not expected to residential areas from the agricultural applications of the granular End-use Product which is applied at a very low rate (approximately 1 gram or 0.002 pound of active ingredient per acre). Thus, non-occupational residential exposure is expected to be minimal to non-existent.

In summary, the Agency considered dietary exposure (including drinking water), as well as non-occupational exposure to treated peanuts and corn, and concluded that aggregate exposure to Aspergillus flavus NRRL 21882 will not cause harm to the U.S. adult, population, infants and children.

Section 408(b)(2)(D)(v) of the FFDCA requires the Agency to consider the cumulative effect of exposure to Aspergillus flavus NRRL 21882 and to other substances that have a common mechanism of toxicity. These considerations include the possible cumulative effects of such residues on infants and children. Based on tests in mammalian systems, Aspergillus flavus NRRL 21882 does not appear to be toxic to humans via dietary and pulmonary exposure. Therefore, the requirement to consider cumulative effects does not apply.

For the same reasons as stated in the rule issued on June 30, 2004 (69 FR 39341), the Agency has determined that the additional margin of safety is not necessary to protect infants and children, and that not adding any additional margin of safety will be safe for infants and children. As a result, EPA has not used a margin of exposure (safety) approach to assess the safety of Aspergillus flavus NRRL 21882.

See Federal Register , June 30, 2004, (69 FR 39341).

See Federal Register , June 30, 2004, (69 FR 39341).

There is no Codex Maximum Residue Level (MRL) for residues of Aspergillus flavus NRRL 21882 on corn.

In summary, the Agency has determined that, based on available data and information, there is a reasonable certainty that the use of Aspergillus flavus NRRL 21882 on field, sweet and pop corn will not cause harm to the U.S. adult, children and infant populations via dietary, aggregate and cumulative exposure. Thus, an exemption from the requirement of a tolerance on field, sweet and pop corn is being granted.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

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

* * * * *

(b) An exemption from the requirement of a tolerance is established for residues of Aspergillus flavus NRRL 21882 on corn, field, forage; corn, field, grain; corn, field, stover; corn, field, aspirated grain fractions; corn, sweet, kernel plus cob with husk removed; corn, sweet, forage; corn, sweet, stover; corn, pop, grain; and corn, pop, stover.

In FR Doc. E8-17948 of August 8, 2008 (73 FR 46416), there were two technical errors that this notice serves to identify and correct. The corrections in this correction notice are effective as if they had been included in the document published on August 8, 2008. Accordingly, the corrections are effective October 1, 2008.

On page 46430 of the August 8, 2008 final rule, we are correcting the title of Table 10. This table illustrates the skilled nursing facility (SNF) prospective payment system (PPS) payment rate computations for a hypothetical “XYZ” SNF located in Cedar Rapids, IA. In the table's title, the wage index value for Cedar Rapids, IA is incorrectly identified as 0.8924. Accordingly, in section III of this document (“Correction of Errors”), we are correcting the wage index value in the title of Table 10 to reflect the correct wage index value of 0.8919. We note that the entries for this value that appear in the “wage index” column of the table itself, as well as the corresponding entry for CBSA 16300 in Table 8 (“FY 2009 Wage Index for Urban Areas Based on CBSA Labor Market Areas,” which appeared as an addendum to the August 8, 2008 final rule), both correctly reflect this value as 0.8919.

In addition, in the addendum to the August 8, 2008 final rule, we are revising an entry in Table 9 (“FY 2009 Wage Index Based on CBSA Labor Market Areas for Rural Areas”) in order to correct a technical error made to the wage data for one inpatient hospital provider in rural New Hampshire. We are revising the wage index value displayed in Table 9 for rural New Hampshire from “1.0182” to the corrected value of “1.0219”. Since this revision involves only a single entry in Table 9, we are not republishing the table in its entirety in this notice; however, we note that the corrected version of this table is available on the SNF PPS Web site, which can be accessed online at http://www.cms.hhs.gov/SNFPPS/ .

In FR Doc. E8-17948 (73 FR 46416), make the following corrections:

1. On page 46430, in Table 10, the wage index value “0.8924” displayed in the title is revised to read “0.8919”.

2. On page 46462, in Table 9, in the wage index column for New Hampshire, State code 30, the wage index value “1.0182” is revised to read “1.0219”.

We ordinarily publish a proposed rule in the Federal Register to provide a period for public comment before the provisions of a rule such as this take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). We also ordinarily provide a 30-day delay in the effective date of the provisions of a notice in accordance with section 553(d) of the APA (5 U.S.C. 553(d)). However, we can waive both the notice and comment procedure and the 30-day delay in effective date if the Secretary finds, for good cause, that a notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons for it in the notice.

We find for good cause that it is unnecessary to undertake notice and comment rulemaking because this notice merely provides technical corrections to the regulations. We are not making substantive changes to our payment methodologies or policies, but rather, are simply implementing correctly the payment methodologies and policies that we previously proposed, received comment on, and subsequently finalized. The public has already had the opportunity to comment on these payment methodologies and policies, and this correction notice is intended solely to ensure that the FY 2009 SNF PPS final rule accurately reflects them. Therefore, we believe that undertaking further notice and comment procedures to incorporate these corrections into the final rule is unnecessary and contrary to the public interest.

Further, we believe a delayed effective date is unnecessary because this correction notice merely corrects inadvertent technical errors. The changes noted above do not make any substantive changes to the SNF PPS payment methodologies or policies. Moreover, we regard imposing a delay in the effective date as being contrary to the public interest. We believe that it is in the public interest for providers to receive appropriate SNF PPS payments in as timely a manner as possible and to ensure that the FY 2009 SNF PPS final rule accurately reflects our payment methodologies, payment rates, and policies. Therefore, we find good cause to waive notice and comment procedures, as well as the 30-day delay in effective date.

In title 47 of the Code of Federal Regulations, parts 20 to 39, revised as of October 1, 2007, in § 25.208, on page 239, in Table 1G in paragraph (g) and, on page 240, in Table 1H in paragraph (h) make the following change:

For each entry in the tables, remove the number “40” from the third column, “Percentage of time during which EPFD down level may not be exceeded” and add it to the fourth column, “Reference bandwidth (kHz)”.

This is a summary of the Federal Communications Commission's Declaratory Ruling in FCC 08-192, adopted August 20, 2008, and released September 3, 2008. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( http://www.fcc.gov/cgb/ecfs/ ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. The Commission has before it a Petition for Inquiry into Network Practices (Petition), a Motion for Declaratory Ruling (Motion), and a Joint Request of Network Affiliated Stations Alliance (NASA) and the ABC, CBS, NBC and Fox Television Networks (Networks) to Resolve NASA Petition. NASA and the Networks request that the Commission affirm a number of basic principles relating to the Commission rules governing network/affiliate relationships to avoid future disputes. Pursuant to § 1.2 of the Commission's rules, we grant NASA's request for declaratory ruling in part and grant the Joint Request in full.

2. In its Petition, NASA asked the Commission to institute an inquiry as to whether certain alleged practices of the Networks regarding their affiliates were consistent with the Commission's network rules, the Communications Act, and the public interest. NASA subsequently filed the Motion, in which it sought a declaratory ruling that certain specified practices engaged in by the Networks are inconsistent with the Communications Act and the Commission's rules and policies. In response, the Networks contended that it would be improper for the Commission to involve itself in the private contractual relationships between networks and affiliates.

3. On January 19, 2005, NASA filed a Third Update of Record and Continued Request that Commission Issue Declaratory Ruling on Basic Principles in which it stated that each of the Networks has reformed its contracts to address the central issues raised by NASA. At the same time, NASA asked the Commission to clarify the meaning of the existing network/affiliate rules, consistent with the reformed affiliation agreements. In response, the Networks asked the Commission to reject NASA's request and to close this proceeding, arguing that there is no longer any basis for Commission action.

4. On June 9, 2008, NASA and the Networks filed the Joint Request, stating that they had revised their standard affiliation agreements to address the issues raised by NASA with respect to particular contractual provisions, and that a Commission ruling regarding the resolved contractual issues is unnecessary. Nevertheless, they state that “NASA and the Networks have a mutual interest in avoiding future controversies regarding the meaning of the Commission's network/affiliate rules and in assuring that the rules of the road for the network/affiliate relationship are clear.” The parties thus request that the Commission issue an order ratifying a number of principles “with which both NASA and the Networks agree, consistent with the revisions to the standard affiliation agreements by the Networks and the amendments negotiated by the Networks and their affiliates to their current affiliation agreements.”

5. Under § 1.2 of the rules, the Commission “may * * * issue a declaratory ruling terminating a controversy or removing uncertainty.” The Commission has broad discretion whether to issue such a ruling. We agree with NASA and the Networks that additional guidance concerning licensee control, the right-to-reject rule, and the option-time rule would be helpful to avoid future disputes, and that the principles identified below are consistent with the Act and our rules.

6. Section 310(d) of the Communications Act prohibits the direct or indirect transfer of control of any station license to another entity without a Commission finding that “the public interest, convenience, and necessity will be served thereby.” We affirm that the following principle identified in the Joint Request is consistent with the Act and the Commission's rules:

• Affiliates, as the licensees of local television stations, must retain ultimate control over station programming, operations and other critical decisions with respect to their stations, and network affiliations must not undercut this basic control. Retention of this control by Commission licensees is required by section 310(d) of the Communications Act and the Commission's rules.

7. To ensure that licensees retain sufficient control over programming to fulfill their obligation to operate in the public interest, the Commission's right-to-reject rule prohibits a television broadcast station from entering into “any contract, arrangement, or understanding, express or implied, with a network organization” that prevents or hinders the station from “[r]ejecting or refusing network programs which the station reasonably believes to be unsatisfactory or unsuitable or contrary to the public interest” or from “[s]ubstituting a program which, in the station's opinion, is of greater local or national importance.”

8. We affirm that the following principles relating to the right-to-reject rule identified in the Joint Request are consistent with the Act and the Commission's rules:

• Pursuant to § 73.658(e) of the Commission's rules, networks and their affiliates are prohibited from “having any contract * * * which, with respect to programs offered or already contracted for pursuant to an affiliation contract, prevents or hinders the station from: (1) Rejecting or refusing network programs which the station reasonably believes to be unsatisfactory or unsuitable or contrary to the public interest, or (2) Substituting a program which, in the station's opinion, is of greater local or national importance.” This language does not give an affiliate the unfettered right to preempt network programs, but where a preemption is made pursuant to one of the two prongs of the right-to-reject rule, the economic consequence to the affiliate is irrelevant.

• Consistent with the Commission's right-to-reject rule, affiliation agreements should not include provisions that limit right-to-reject preemptions for “greater local or national importance” to breaking news events or any other specific type of programming. Affiliation agreements should not include provisions that prevent affiliates from rejecting a program as “unsatisfactory or unsuitable or contrary to the public interest” because they have carried a similar network program in the past. Affiliation agreements should not include provisions that impose monetary or non-monetary penalties on affiliates based on preemptions protected by the right-to-reject rule. Affiliation agreements should not include provisions that subject right-to-reject preemptions to, or count them against, contractual preemption limits (or “baskets”) (though baskets are perfectly appropriate for preemptions not protected by the right-to-reject rule).

9. The Commission's option-time rule proscribes any clause in an affiliation agreement that “prevents or hinders the station from scheduling programs before the network agrees to utilize the time during which such programs are scheduled, or which requires the station to clear time already scheduled when the network organization seeks to utilize the time.” In its Petition, NASA argued that certain contract provisions, with respect to both analog and digital broadcasting, violated the option-time rule by allowing networks to reserve an option to use an affiliate's broadcast time without committing to supply programming for the optioned time. To clarify the reciprocal obligations of networks and affiliates under the Commission's option-time rule, we affirm that the following principles set forth in the Joint Request are consistent with the Act and our rules:

• Consistent with the option-time rule, affiliation agreements should not include provisions that result in the optioning of the station's time to the network organization or that have the same restraining effect as time optioning. Network affiliation agreements may not, under the Commission's option-time rule, obligate stations to carry a network's programming or other content during certain time periods without reciprocally obligating the network to provide the content for those time periods. Similarly, network affiliation agreements may not require affiliates to carry, at some unspecified future date, unspecified digital content that the network may (or may not) choose to offer.

10. Accordingly, it is ordered that the Network Affiliated Stations Alliance's Motion for Declaratory Ruling filed June 22, 2001 is granted in part as discussed above.

11. It is further ordered that the Joint Request is granted and that this proceeding is terminated .

I. Background

PHMSA annually reviews the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) to identify typographical and other errors, outdated addresses or other contact information, and similar errors. In this final rule, we are correcting typographical errors; incorrect CFR references and citations; an incorrect address; inaccurate office names; inconsistent use of terminology; misstatements of certain regulatory requirements; and inadvertent omissions of information. In addition, this final rule revises the address for PHMSA to indicate the new location for the headquarters office. Because these amendments do not impose new requirements, notice and public comment procedures are unnecessary. By making these amendments effective without the customary 30-day delay following publication, the changes will appear in the next revision of Title 49.

The following is a summary by section of the major changes made in this final rule. The summary does not include minor editorial corrections such as punctuation errors, or similar minor revisions.

This section prescribes requirements for transporting hazardous waste under the HMR. Paragraph (b)(1) requires each motor vehicle to be marked in accordance with 49 CFR 390.21 and 1058.2. Because § 1058.2 no longer exists, in this final rule we are removing this reference in paragraph (b)(1).

Paragraph (a) of § 171.7 lists materials incorporated by reference into the HMR. In paragraph (a)(3), we are correcting the mailing address for the American Pyrotechnic Association.

Paragraph (b) of § 171.7 lists information materials that are not incorporated by reference. In a final rule published on January 28, 2008 (Docket No. 05-21812 (HM-218D); 73 FR 4699, effective October 1, 2008), we added in paragraph (b) an entry for the Compressed Gas Association's (CGA's) publication, CGA C-1.1 in § 171.7(b). A new paragraph (g)(6) in § 180.205 listed CGA C-1.1 as an example of training material that may be used by persons who requalify cylinders using the volumetric expansion test method. Following the publication of the HM-215D final rule, we received an appeal from Hydro-Test (PHMSA-2005-21812-0025) asking us to either remove this reference to CGA C-1.1 or add examples of other training materials that may be used. Hydro-Test noted that referencing only the CGA publication in the HMR could suggest that other training materials are not acceptable. We added CGA C-1.1 as an example of guidance material that may be used to assist requalifiers in setting up their cylinder training procedures and recordkeeping requirements. The publication is not a stand alone tool for training persons on how to perform requalification of cylinders using the volumetric expansion test method. However, to alleviate confusion for cylinder requalifiers, in this final rule, we are removing the new entry for CGA C-1.1 from § 171.7(b) and paragraph (g)(6) from § 180.205.

This section contains definitions for terms used in the HMR. We inadvertently omitted replacing the name “Diagnostic specimens” with the name “Biological substances, category B” when we revised the HMR to harmonize its infectious substance requirements with international requirements and removed the name “Diagnostic specimens” under Docket No. PHMSA-2004-16895 (HM-226A; 71 FR 32244, 6/2/06). In this final rule, we are correcting this oversight. Also, we are revising the definitions for “Elevated temperature material” and “Liquid phase” to specify the metric conversion of 100 °F as 38 °C for consistency throughout the HMR and with that specified in the American Society for Testing and Materials (ASTM) Standard ASTM D 4359, “Standard Test Method for Determining Whether a Material is a Liquid or a Solid,” which the HMR incorporates by reference under § 171.7.

This section prescribes requirements for specific materials and packagings transported under the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions), International Maritime Dangerous Goods Code (IMDG Code), Transport Canada's Transportation of Dangerous Goods Regulations (Transport Canada TDG Regulations), and the International Atomic Energy Agency Regulations for the Safe Transport of Radioactive Material (IAEA Regulations). In this final rule, we are revising paragraph (a)(3)(iii) to correct the reference “(a)(3)” to “(a)(4).”

This section prescribes additional requirements for the use of the IMDG Code under the HMR. In this final rule, we are correcting several inadvertent errors in this section. In paragraph (b)(1), we are revising the regulatory text to clarify that the segregation requirements in Part 7 of the IMDG Code may be utilized for both rail and highway transportation. The rail mode was inadvertently removed in the printing of the HM-215F final rule published on May 3, 2007. We are also correcting the word “subpart” to read “subchapter” in the second sentence of this paragraph, and the reference to “Part 7, Chapter 2,” of the IMDG Code to read “Part 7, Chapter 7.2” in the last sentence. In paragraph (b)(2), we are clarifying that the paragraph applies to transportation by vessel.

In the heading to Part 172, we are adding the words “Security Plans” to reflect the security plan requirements in Subpart I of Part 172.

This section prescribes requirements on the preparation and retention of shipping papers. Paragraph (a)(1)(iii) is corrected to clarify the use of the letter “X” to identify hazardous materials on a shipping paper. The clarification allows the letter “X” to be placed in a column titled “HM” appearing before the basic shipping description instead of the proper shipping name of a hazardous material to recognize that the identification number may appear first in the basic shipping description as provided in § 172.202(b).

This section prescribes requirements for shipping descriptions on shipping papers. In paragraphs (a)(5) and (a)(6)(ii), we are inserting the U.S. standard measurement conversions after the metric measurements for clarity.

This section prescribes additional description requirements for hazardous materials on shipping papers. In this final rule, we are correcting the examples provided in this section as follows:

• We are revising paragraph (c)(2) to reflect in the example the basic shipping description sequence prescribed in § 172.202(b), with the UN identification number appearing first, and to correct the example of the basic description for “Allyl alcohol” to state that this material is a Zone B toxic inhalation hazard.

• We are revising paragraph (d)(1) to correct the spelling of the word “radionuclides” in the second sentence.

• We are revising paragraph (i)(2), which contains additional shipping paper description requirements for flammable liquids transported by vessel, to reflect a flash point at 60 °C (140 °F) in place of 61 °C for consistency with the provisions contained in 49 CFR 173.120(a) and paragraph 5.4.1.4.3 of the IMDG Code.

• Paragraph (k) requires the use of a technical name with a proper shipping name designated as generic with the letter “G” in Column 1 of the § 172.101 Table. We are making a minor editorial revision to the last sentence in paragraph (k) and adding two new sentences to refer readers to the definition of “Technical name” in § 171.8 and to other relevant information in § 172.301.

This section prescribes the marking requirements for explosive hazardous materials. In paragraph (b), we are correcting the reference to the regulation requiring a product code for commercial explosives from “27 CFR part 55” to read “27 CFR part 555.”

In addition, we are removing current paragraph (e)(4), which contains an expired transitional provision, and redesignating current paragraph (e)(5) as paragraph (e)(4).

This section prescribes training requirements for hazmat employees. In paragraph (a)(2)(ii), we are revising the reference to “§§ 171.11 and 171.12” to read “authorized by subpart C of part 171 of this subchapter” to be consistent with revisions adopted in the final rule issued under Docket No. PHMSA-2005-24131 (HM-215F, 72 FR 25162, 3/5/07).

This section prescribes the hazardous materials and packages that are forbidden in transportation. In this final rule, we are revising paragraph (f)(3) to clearly state that approvals issued by the Bureau of Explosives are no longer valid.

This section prescribes requirements for transporting hazardous materials packages in overpacks. In this final rule, we are removing the second sentence in paragraph (a)(4) because it contains an expired compliance date.

This section prescribes requirements for transporting life-saving appliances and matches. In this final rule, we are amending paragraph (a) by replacing the word “movement” with “shifting” to clarify the devices must be placed in inner packagings that are packed in outer packagings in a manner to prevent the devices from shifting within the outer packaging.

This section prescribes requirements for packaging poisonous-by-inhalation materials, in Division 6.1, Packing Group I, Hazard Zone B. We are revising paragraph (b) to include UN 6HH1 composite packagings with an inner protective plastic drum. This revision was inadvertently omitted in a final rule issued under Docket No. RSPA-04- 17036 (HM-215G, 69 FR 76043, 12/20/04).

This section sets forth requirements for the transportation of lighters. In this final rule, we are revising paragraph (b)(3)(ii) to specify the metric conversion of 100 °F as 38 °C for consistency throughout the HMR.

This section prescribes requirements for inspecting hazardous materials shipments aboard an aircraft. A capitalization error is corrected in paragraph (a)(2). In paragraph (a)(3), we are revising the reference to § 171.11 to read “as authorized by subpart C of part 171 of this subchapter” to be consistent with the revisions adopted under HM-215F.

This section prescribes segregation requirements for hazardous materials transported by vessel. In this final rule, we are revising paragraph (b) to clarify that although Column 1 of Table § 176.83(b) is titled “Class,” it also lists certain hazard class divisions.

This section contains the design and manufacture requirements for DOT 3A and 3AX seamless steel cylinders. In paragraph (a)(2), we are correcting the wording “seamless stainless steel cylinder” to remove the word stainless, and in the first sentence in paragraph (f), the wording “service pressure less than 900 pounds” to read “service pressure less than 900 psig”.

This section prescribes design and manufacture standards for UN portable tanks intended for the transportation of liquid and solid hazardous materials. In the HM-215G final rule, paragraph (i)(2), the introductory text was revised to clarify the combined delivery capacity of a UN portable tank's relief system. However, the amendatory language incorrectly stated that paragraph (i)(2) was revised. As a result, all the vent capacity formulas and tables referenced in the paragraph were removed. We are reinstating paragraphs (i)(2)(i)-(iv) in this final rule. In addition, in paragraph (d)(3), the reference to “(c)(2)” is corrected to read “(d)(2).”

This section prescribes the hydrostatic test requirements for non-bulk UN standard packagings. In this final rule, we are relocating the last sentence in paragraph (d)(3) requiring the performance of a pressure test on packagings intended to contain Packing Group I hazardous materials at a minimum test pressure of 250 kPa (36 psig) to paragraph (d) introductory text, preceding the list of methods contained in paragraphs (d)(1)-(d)(3). We are making this revision to clarify that this pressure test requirement applies regardless of the method chosen to determine the pressure.

This section prescribes pressure test requirements for the inner tanks of DOT-113 and DOT-107A cryogenic liquid tank car tanks and seamless steel tanks. Paragraph (a) is revised to specify the metric conversion of 100 °F as 38 °C for consistency throughout the HMR.

This section prescribes requirements for the periodic requalification of DOT specification cylinders. We are revising paragraph (l) introductory text to change “§ 171.12a” to correctly reference §§ 171.12(a) and 171.23(a), and paragraph (l)(2) to correctly reference certain export requirements contained in § 171.23(a)(4).

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). This final rule does not impose new or revised requirements for hazardous materials shippers or carriers; therefore, it is not necessary to prepare a regulatory impact analysis.

This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule does not adopt any regulation that: (1) Has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; or (2) imposes substantial direct compliance costs on state and local governments. PHMSA is not aware of any state, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

I certify that this final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor editorial changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses, or other organizations.

This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

There are no new information collection requirements in this final rule.

There are no environmental impacts associated with this final rule.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

In title 49 of the Code of Federal Regulations, part 172, revised as of October 1, 2007, beginning on page 132, in § 172.101 the following corrections are made to the Hazardous Materials Table:

1. The first entry for Amines, flammable, corrosive, n.o.s. or Polyamines, flammable corrosive, n.o.s. UN2733 is removed.

2. The entry for Amines, liquid, corrosive, flammable n.o.s. or Polyamines, liquid corrosive, flammable n.o.s. UN2734 PG I is reinstated above the second PG II entry in UN2733.

3. The entry for Calcium UN1401 is reinstated.

4. In Caustic alkali liquids, n.o.s. UN1719, “, 52” is added to both entries after the number “29”.

5. The entry for Chromosulfuric acid UN2240 is reinstated.

6. The second entry for Lighters containing flammable gas UN1057 is removed.

7. In the entry for Methylhydrazine UN1244, “49, 52 and 100” are added in the last column.

8. The entry for Organometallic substance solid, water reactive UN3395 is reinstated.

The reinstated text reads as follows:

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley ( Lepidochelys kempii ), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) turtles are listed as endangered. The loggerhead ( Caretta caretta ) and green ( Chelonia mydas ) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.

Sea turtles are incidentally taken, and some are killed, as a result of numerous activities, including fishery-related trawling activities in the Gulf of Mexico and along the Atlantic seaboard. Under the ESA and its implementing regulations, the taking of sea turtles is prohibited, with exceptions identified in 50 CFR 223.206(d), or according to the terms and conditions of a biological opinion issued under section 7 of the ESA, or according to an incidental take permit issued under section 10 of the ESA. The incidental taking of turtles during shrimp or summer flounder trawling is exempted from the taking prohibition of section 9 of the ESA if the conservation measures specified in the sea turtle conservation regulations (50 CFR 223) are followed. The regulations require most shrimp trawlers and summer flounder trawlers operating in the southeastern United States (Atlantic area, Gulf area, and summer flounder sea turtle protection area, see 50 CFR 223.206) to have a NMFS-approved TED installed in each net that is rigged for fishing to allow sea turtles to escape. TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description, the flounder TED, and one type of soft TED the Parker soft TED (see 50 CFR 223.207).

TEDs incorporate an escape opening, usually covered by a webbing flap, which allows sea turtles to escape from trawl nets. To be approved by NMFS, a TED design must be shown to be 97 percent effective in excluding sea turtles during testing based upon specific testing protocols (50 CFR 223.207(e)(1)). Most approved hard TEDs are described in the regulations (50 CFR 223.207(a)) according to generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape.

The regulations governing sea turtle take prohibitions and exemptions provide for the use of limited tow times as an alternative to the use of TEDs for vessels with certain specified characteristics or under certain special circumstances. The provisions of 50 CFR 223.206(d)(3)(ii) specify that the NOAA Assistant Administrator for Fisheries (AA) may authorize compliance with tow time restrictions as an alternative to the TED requirement if the AA determines that the presence of algae, seaweed, debris, or other special environmental conditions in a particular area makes trawling with TED-equipped nets impracticable. The provisions of 50 CFR 223.206(d)(3)(i) specify the maximum tow times that may be used when tow time limits are authorized as an alternative to the use of TEDs. Each tow may be no more than 55 minutes from April 1 through October 31 and no more than 75 minutes from November 1 through March 31, as measured from the time that the trawl doors enter the water until they are removed from the water. These tow time limits are designed to minimize the level of mortality of sea turtles that are captured by trawl nets not equipped with TEDs.

On September 5 and 15, 2008, the NMFS Southeast Regional Administrator received requests from the Louisiana Department of Wildlife and Fisheries (LDWF) and the Mississippi Department of Marine Resources (MDMR), respectively, to allow the use of tow times as an alternative to turtle excluder devices (TEDs) in state and Federal waters because of excessive storm-related debris on the fishing grounds as a result of Hurricanes Gustav and Ike. When a TED is clogged with debris, it can no longer catch shrimp effectively nor can it effectively exclude turtles. Phone conversations between NMFS Southeast Region's Protected Resources staff, fishermen, and the states' resource agency staffs confirm there are problems with debris in state and Federal waters off Louisiana (from the Mississippi/Louisiana boundary to the Texas/Louisiana boundary) extending offshore 20 nautical miles, which are likely to affect the effectiveness of TEDs; discussions between NMFS Southeast Region's Protected Resources staff, fishermen, and the states' resource agency staffs, and a survey of Mississippi waters found no significant remaining issues stemming from storm-related debris on the shrimp fishing grounds. Louisiana has stated that their marine enforcement agents will enforce the tow time restrictions.

The AA finds that debris washed into hurricane-affected state and Federal waters off of Louisiana (from the Mississippi/Louisiana boundary to the Texas/Louisiana boundary), extending offshore 20 nautical miles, has created special environmental conditions that make trawling with TED-equipped nets impracticable. Therefore, the AA issues this notification to authorize the use of restricted tow times as an alternative to the use of TEDs in state and Federal waters off of Louisiana (from the Mississippi/Louisiana boundary to the Texas/Louisiana boundary) extending offshore 20 nautical miles, for a period of 30 days. Tow times must be limited to no more than 55 minutes measured from the time trawl doors enter the water until they are retrieved from the water.

A survey of Mississippi waters found no significant remaining issues stemming from storm-related debris in the shrimp fishery. Therefore, the MDMR request for an exemption was not granted.

NMFS encourages shrimp trawlers in the affected areas to continue to use TEDs if possible, even though they are authorized under this action to use restricted tow times.

NMFS' gear experts have provided several general operational recommendations to fishermen to maximize the debris exclusion ability of TEDs that may allow some fishermen to continue using TEDs without resorting to restricted tow times. To exclude debris, NMFS recommends the use of hard TEDs made of either solid rod or of hollow pipe that incorporate a bent angle at the escape opening, in a bottom-opening configuration. In addition, the installation angle of a hard TED in the trawl extension is an important performance element in excluding debris from the trawl. High installation angles can trap debris either on or in front of the bars of the TED; NMFS recommends an installation angle of 45 , relative to the normal horizontal flow of water through the trawl, to optimize the TED's ability to exclude turtles and debris. Furthermore, the use of accelerator funnels, which are allowable modifications to hard TEDs, is not recommended in areas with heavy amounts of debris or vegetation. Lastly, the webbing flap that is usually installed to cover the turtle escape opening may be modified to help exclude debris quickly: the webbing flap can either be cut horizontally to shorten it so that it does not overlap the frame of the TED or be slit in a fore-and-aft direction to facilitate the exclusion of debris. The use of the double cover flap TED will also aid in debris exclusion.

All of these recommendations represent legal configurations of TEDs for shrimpers fishing in the affected areas. This action does not authorize any other departure from the TED requirements, including any illegal modifications to TEDs. In particular, if TEDs are installed in trawl nets, they may not be sewn shut.

The authorization provided by this temporary rule applies to all shrimp trawlers that would otherwise be required to use TEDs in accordance with the requirements of 50 CFR 223.206(d)(2) who are operating in hurricane-affected state and Federal waters off Louisiana (from the Mississippi/Louisiana boundary to the Texas/Louisiana boundary), extending offshore 20 nautical miles, for a period of 30 days. Through this temporary rule, shrimp trawlers may choose either restricted tow times or TEDs to comply with the sea turtle conservation regulations, as prescribed above.

The AA, at any time, may withdraw or modify this temporary authorization to use tow time restrictions in lieu of TEDs through publication of a notice in the Federal Register , if necessary to ensure adequate protection of endangered and threatened sea turtles. Under this procedure, the AA may modify the affected area or impose any necessary additional or more stringent measures, including more restrictive tow times, synchronized tow times, or withdrawal of the authorization if the AA determines that the alternative authorized by this rule is not sufficiently protecting turtles or no longer needed. The AA may also terminate this authorization if information from enforcement, state authorities, or NMFS indicates compliance cannot be monitored effectively. This authorization will expire automatically on October 27, 2008, unless it is explicitly extended through another notification published in the Federal Register .

This action has been determined to be not significant for purposes of Executive Order 12866.

The AA has determined that this action is necessary to respond to an environmental situation to allow more efficient fishing for shrimp, while providing effective protection for endangered and threatened sea turtles pursuant to the ESA and applicable regulations.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds that there is good cause to waive prior notice and opportunity to comment on this temporary rule. The AA finds that unusually high amounts of post-hurricane debris are creating special environmental conditions that make trawling with TED-equipped nets impractical. Prior notice and the opportunity to receive public comment are impracticable and contrary to the public interest in this instance because providing notice and comment would prevent the agency from providing the affected industry timely relief from the effects of Hurricanes Gustav and Ike, while providing effective protection for sea turtles.

Many shrimp fishermen in Louisiana may be unable to operate under the special environmental conditions created by Hurricanes Gustav and Ike without an alternative to the use of TEDs. Therefore, The AA finds that there is good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553(d)(3) to provide alternatives to comply with the sea turtle regulations in a timely manner. For the reasons above, the AA finds that this temporary rule should not be subject to a 30-day delay in effective date, pursuant to 5 U.S.C. 553(d)(1).

Since prior notice and an opportunity for public comment are not required to be provided for this action by 5 U.S.C. 553, or by any other law, the analytical requirements of 5 U.S.C. 601 et seq. are inapplicable.

The AA prepared an Environmental Assessment (EA) for this rule. Copies of the EA are available (see ADDRESSES ).

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The 2008 Pacific cod sideboard limit established for non-AFA crab vessels that are subject to sideboard limits catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA is 980 metric tons (mt) for the GOA, as established by the 2008 and 2009 harvest specifications for groundfish of the GOA (73 FR 10562, February 27, 2008).

In accordance with § 680.22(e)(2)(i), the Regional Administrator has determined that the 2008 Pacific cod sideboard limit established for non-AFA crab vessels catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a sideboard directed fishing allowance of 970 mt, and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 680.22(e)(3), the Regional Administrator finds that this sideboard directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by non-AFA crab vessels that are subject to sideboard limits catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the sideboard directed fishing closure of Pacific cod for non-AFA crab vessels that are subject to sideboard limits catching Pacific cod for processing by the inshore component in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 25, 2008.

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

This action is required by § 680.22 and is exempt from review under Executive Order 12866.