This rule has been determined to be Significant and was reviewed by the Office of Management and Budget in conformance with Executive Order 12866.

As required for all rules designated as Significant by the Office of Management and Budget, a Regulatory Impact Analysis was developed for the WIC Vendor Cost Containment Final Rule. A complete copy of the Impact Analysis is available by contacting the person indicated in the FOR FURTHER INFORMATION CONTACT section of this Preamble.

This action is needed to implement the vendor cost containment provisions of the Child Nutrition and WIC Reauthorization Act of 2004, Public Law 108-265, which amended the Child Nutrition Act (CNA). The rule requires WIC State agencies to operate vendor management systems that effectively contain food costs by ensuring that prices paid for supplemental foods are competitive. The rule also responds to data which indicate that WIC food expenditures increasingly include payments to above-50-percent vendors whose prices are not governed by the market forces that affect most retail grocers. As a result, the prices charged by these vendors tend to be higher than those of other retail grocery stores participating in the program. To ensure the program pays competitive prices, this rule confirms the codification of the new statutory requirements in the interim rule for State agencies to use in evaluating vendor applicants' prices during the vendor selection process and when paying vendors for supplemental foods following authorization, with a few exceptions. However, in response to comments, the interim rule's requirement for weighting food instruments in quarterly cost neutrality assessments has been made optional in § 246.12(g)(4)(i)(D) of this final rule. Also, the requirement for recouping excess payments or terminating vendor agreements based on food instruments which had exceeded cost neutrality levels calculated during quarterly cost neutrality assessments, but were submitted for redemption within the maximum allowable reimbursement levels in effect at the time of redemption, has been removed from § 246.12(g)(4)(i)(D). Further, the final rule includes one new requirement based on the comments received; a sentence has been added to § 246.12(g)(4) stating the State agency must inform all vendors of the criteria for peer groups, and must inform each individual vendor of its peer group assignment. This one new requirement is not expected to increase the administrative burden of State agencies since State agencies are already doing this, as indicated during the processing of the certification and exemption requests.

While the Child Nutrition and WIC Reauthorization Act mandates that State agencies establish peer groups, competitive price criteria and allowable reimbursement levels, and states that these requirements must result in the outcome of paying above-50-percent vendors no more than regular vendors, the Act does not specify particular criteria for peer groups or acceptable methods of setting competitive price criteria and allowable reimbursement levels. The Food and Nutrition Service (FNS) considered using the interim rule to mandate specific means of developing peer groups, competitive price criteria and allowable reimbursement levels in order to ensure the outcome of this legislation was achieved. However, given the responsibility of the State agencies to manage WIC as a discretionary grant program, the varying retail food market conditions in each State, and the wide variations in current vendor cost containment systems operated by State agencies, the interim rule provided State agencies with flexibility to develop their own peer groups, competitive price criteria and allowable reimbursement levels.

The State agency vendor cost containment plans and exemption requests approved by FNS following the implementation of the interim rule reflected considerable diversity in peer group criteria, competitive price criteria, and allowable reimbursement levels. Paragraph 246.12(g)(4)(vi) of the interim rule required State agencies which authorized above-50-percent vendors to obtain certification for their vendor cost containment systems from FNS. Also, State agencies could seek an exemption from the requirement to establish peer groups under § 246.12(g)(4)(v), from the requirements for a geographic peer group criterion, or for the use of more than one peer group criterion under § 246.12(g)(4)(ii)(A). The peer group requirements applied to all State agencies, regardless of whether above-50-percent vendors were authorized. These vendor cost containment certification submissions and requests for exemption provided the data needed to determine whether State agency vendor cost containment systems actually reflected the flexibility intended by the interim rule. The following chart summarizes this data from the vendor cost containment plans submitted by the 32 State agencies which sought certification from FNS:

Background

On November 4, 2005, The Boeing Company, P.O. Box 3707, Seattle, WA 98124, applied for an amendment to Type Certificate Number A20WE to include the new Model 747-8 passenger airplane and the new Model 747-8F freighter airplane. The Model 747-8 and the Model 747-8F are derivatives of the 747-400 and the 747-400F, respectively. Both the Model 747-8 and the Model 747-8F are four-engine jet transport airplanes that will have a maximum takeoff weight of 970,000 pounds and new General Electric GEnx-2B67 engines. The Model 747-8 will have two flight crew and the capacity to carry 660 passengers. The Model 747-8F will have two flight crew and a zero passenger capacity, although Boeing has submitted a petition for exemption to allow the carriage of supernumeraries.

Under the provisions of 14 CFR 21.101, Boeing must show that the Model 747-8 and 747-8F (hereafter referred as 747-8/-8F) meet the applicable provisions of part 25, as amended by Amendments 25-1 through 25-117, except for earlier amendments as agreed upon by the FAA. These regulations will be incorporated into Type Certificate No. A20WE after type certification approval of the 747-8/-8F.

In addition, the certification basis includes other regulations, special conditions and exemptions that are not relevant to these special conditions. Type Certificate No. A20WE will be updated to include a complete description of the certification basis for these model airplanes.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the 747-8/-8F because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the 747-8/-8F must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued under § 11.38, and become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

The Boeing Model 747-8/-8F airplane will incorporate the following novel or unusual design features: A four-post main landing gear system with two wing main landing gears and two body main landing gears.

The Boeing Model 747-8/-8F airplane will retain the landing gear arrangement which is unique to the 747 family of airplanes. The conventional arrangement for the main landing gear of transport category airplanes is two-underwing posts. The 747 was the first to introduce a four-post main landing gear arrangement, two underwing posts supplemented by two body posts. This arrangement was adopted to accommodate the then unprecedented increased weight and size of the Model 747 airplane.

Existing regulations are written to address the conventional landing gear configuration commonly found on transport category airplanes. This being the case, they are not appropriate to address the unique features of the Boeing 747 design. The increased number of posts alters the load distribution between the gear units during landing and ground handling conditions addressed by the regulations. This arrangement also loads the airframe differently than conventional landing gear designs. The FAA determined that, while the general conditions addressed by §§ 25.473 and 25.479 through 25.485 were still applicable, specific details contained in these regulations may not be directly relatable to the four-post arrangement.

In 1968 the FAA issued Special Condition A-4 to address the ground load requirements for the main landing gear system for Boeing Model 747-100 series airplanes. That special condition provided clarification on the applicability of §§ 25.473 and 25.479 through 25.485 to the Model 747 airplane. In 1971 Special Condition A-4 was amended to address Boeing Model 747 airplanes with the landing gear load evener system deleted or made inoperable.

The FAA has determined that Special Condition A-4 is applicable to the 747-8/-8F series airplanes, provided that all the applicable part 25 regulations cited in Special Condition A-4 (recorded as an enclosure to FAA Letter WE-120/8110 (CT3488WE-D) to the Boeing Company, dated May 12, 1971) are upgraded to the latest amendment level ( i.e., 25-117). Furthermore, as several of these regulations have been updated or consolidated, and acceptable methods of compliance have been described for some of these regulations via advisory circular (AC), new special conditions are needed to clarify the applicable requirements. By updating these special conditions, we are ensuring that the Boeing design provides an equivalent level of safety to conventional landing gear meeting these regulations.

Notice of proposed special conditions No. 25-09-05-SC for the Boeing Model 747-8/-8F airplanes was published in the Federal Register on April 27, 2009 (74 FR 19023). Airbus, an original equipment manufacturer, provided several specific comments.

Airbus suggested that certain special conditions be revised to follow the intent of rule changes and guidance recommended by the Aviation Rulemaking Advisory Committee (ARAC). This committee, comprised of representatives from industry and the regulatory authorities, developed recommendations that would revise many of the ground load requirements in 14 CFR 25.

While the FAA agrees with the ARAC recommendations, those recommendations have not yet been adopted into 14 CFR 25. Therefore, evaluation of the ARAC recommendations is not required per § 21.101, Designation of applicable regulations (the Changed Product Rule). Furthermore, the FAA does not believe that there is any safety concern that requires application of the ARAC recommendations. On past programs, the FAA has only applied parts of the ARAC recommendations, either by equivalent safety findings or by special conditions, and only when requested by an applicant. Even in those cases, the updated requirements have not been used in their entirety.

As previously indicated, the proposed special condition was derived from the original 747 special condition and was updated to the latest amendment level. The service history of the 747 landing gear design indicates that the original special condition provides adequate design requirements. Furthermore, the landing gear design has not been significantly changed for the 747-8/-8F. Finally, the proposed special condition is an improvement on the original as it takes into account numerous updates to the rules and guidance material it references.

Airbus proposed the following specific changes:

1. The special conditions require consideration of the effects of runway crown for ground handling conditions, as defined in § 25.511(b)(4). Airbus suggested that these effects should also be considered for landing conditions as specified in the ARAC recommendations.

FAA Response: While the ARAC recommendations represent an improvement in design standards, we do not believe consideration of runway crown is necessary. Furthermore, the FAA has not mandated this requirement on any other program.

2. The special conditions include the following: “The level landing criteria of § 25.479 are directly applicable. The four main landing gear units must be assumed to contact the ground with the airplane longitudinal axis in a horizontal attitude.” Airbus suggested that the second sentence is in conflict with the first, and that the conditions specified in the ARAC recommendations should be used.

FAA Response: The second sentence is intended to clarify how § 25.479 is applied to the 747 design, which is not envisaged by the current requirement. The FAA has not mandated the level landing requirement from the ARAC recommendations on any other program.

3. The special conditions include: “The criteria of § 25.495 (ground turning loads) are directly applicable.” Airbus suggests it is not correct to state that these criteria are directly applicable and that it would be more appropriate to apply the rational analysis described in the ARAC recommendations.

FAA Response: We believe that application of this requirement can be directly applied, as has been done on previous 747 designs, and that such application is sufficiently conservative.

4. With regard to the shock absorption test requirements of § 25.723, Airbus suggested that the test conditions be expanded as specified in the ARAC recommendations.

FAA Response: We do not believe that using the latest ARAC recommendations is necessary, nor has this requirement been mandated on any other program to date.

As discussed above, these special conditions are applicable to the Boeing Model 747-8/-8F airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features of the Boeing Model 747-8/-8F airplanes. It is not a rule of general applicability.

On January 19, 1995, USAID issued an interim final rule at 22 CFR part 226 which implemented Office of Management and Budget (OMB) Circular A-110.

As published, the regulation unduly limits the use of financial reporting forms to Standard Form 269 and Standard Form 270. The purpose of the amendment is to relieve this restriction and allow any such forms as OMB approves. OMB now requires Federal Agencies to use the Federal Financial Report (Standard Form 425 or 425a) to give recipients of grants and cooperative agreements a standard format for reporting the financial status of their grants and cooperative agreements (68 FR 17097, 73 FR 47246).

Electronic Access

This document, the notice of proposed rulemaking (NPRM), and all comments received may be viewed on line through the Federal eRulemaking portal at: http://www.regulations.gov . The Web site is available 24 hours each day, 365 days each year. Please follow the instructions.

An electronic copy of this document may also be downloaded by accessing the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's Web page at http://www.gpoaccess.gov/nara .

Section 1604 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144) includes provisions related to tolling of highways and facilities. Specifically, section 1604 establishes or amends three tolling programs: (1) The Value Pricing Pilot Program; (2) the Express Lanes Demonstration Program; and (3) the Interstate System Construction Toll Pilot Program. For each toll program under this section, section 1604(b)(6) requires the Secretary of Transportation to promulgate a final rule specifying requirements, standards, or performance specifications for automated toll collection systems.

Section 1604(b)(6) also requires that in developing the final rule to maximize the interoperability of electronic collection systems, the Secretary shall, to the maximum extent practicable:

(1) Accelerate progress toward the national goal of achieving a nationwide interoperable ETC system;

(2) Take into account the use of noncash electronic technology currently deployed within an appropriate geographical area of travel and the noncash electronic technology likely to be in use within the next 5 years; and

(3) Minimize additional costs and maximize convenience to users of toll facility and to the toll facility owner or operator.

An NPRM proposing the creation of a new Part 950 of 23 CFR was published on September 20, 2007, at 72 FR 53736. The purpose was to comply with the mandate of section 1604(b)(6) of SAFETEA-LU to promulgate a final rule specifying the requirements, standards, or performance specifications for automated toll collection systems implemented under section 1604. As stated in the NPRM, FHWA does not believe that it can effectively establish a national standard at this time. However, FHWA believes that requiring toll agencies to take interoperability issues into consideration in developing their toll collections systems addresses the objective of the statute to accelerate progress toward the goal of nationwide interoperability.

FHWA held two public meetings and received 40 responses to the NPRM. A major focus of the comments was that the current IntelliDrive  SM Program (formerly referenced as the Vehicle Infrastructure Integration or VII Program) is expected to result in establishing interoperable ETC standards using the 5.9 Gigahertz (GHz) band of the communications spectrum allocated for IntelliDrive  SM by the Federal Communications Commission. Commenters stated that efforts at this time to develop an interoperability standard prior to realization of the standards from the IntelliDrive  SM program were seen as being counterproductive and imposed unnecessary costs without apparent benefits to toll operators.

The following presents an overview of the comments received in response to the NPRM.

Comments were submitted by a representative cross-section of roadway tolling organizations and an individual. The respondents included tolling agencies or commissions; State departments of transportation; an automobile manufacturer; an international organization representing the interests of tolling authorities and supporting services; automobile trade associations; a government coalition; an association of tolling authorities; and individual firms providing tolling equipment and supporting services. The international organization representing the interests of tolling authorities that provided comments was the International Bridge, Tunnel, and Turnpike Association (IBTTA) which is comprised of 280 members in 25 countries. The government coalition comments were provided by the I-95 Corridor Coalition which is comprised of 17 transportation authorities located along Interstate 95. The association of tolling authorities' comments were provided by E-ZPass Interagency Group (IAG) which is comprised of 23 agencies in 12 States. The automobile trade association comments were provided by the VII Consortium which is comprised of 6 automobile manufacturers and the DOT through a cooperative agreement, and the Association of International Automobile Manufacturers (AIAM) which is comprised of 14 international automobile manufacturers.

There were 40 entries into the docket for comments on the proposed rule. Of these entries, 10 were letters of transmittal. Three were posted by FHWA (the proposed rule, a copy of the presentation material used by the FHWA during the public meetings, and the minutes of the proceedings of the public meeting). Two entries were requests to reschedule the public meeting or to hold an additional meeting (a second public meeting was held). And one entry was a duplicate of a previous entry. Of the remaining 23 entries into the docket, the comment of 8 entries was to endorse the E-ZPass IAG's comments.

Half of the respondents expressed support of FHWA's basic goal of improving mobility through national tolling interoperability. However, most emphasized the importance of considering existing regional interoperability standards and the financial investments that have been made in them throughout the United States during the establishment of national standards, and that the national standard should be backward compatible to them.

The respondents directed their comments within four categories. These categories are general comments, comments directed to the NPRM preamble, comments directed to specific sections of the proposed rule, and comments directed to the questions contained in the NPRM. The following summarizes the comments within each category.

Most of the general comments received are reflected in the following excerpts taken from the comments of IBTTA:

○ Some members are concerned that an effort by the Federal Government to establish a technical standard for ETC is premature without having a better understanding and recognition of the financial needs and methods of the toll agencies in assuring financial interoperability. More research is needed on the transition and coordination of “back rooms.”

○ Even though the NPRM clearly establishes a narrow scope for the application of interoperability standards, some members are concerned that codification of a “standard to be determined” will give Congress the impression that ETC interoperability is a function subject to their control. In reality, interoperability is more accurately a function of the agencies running the toll facilities and their relationships with other toll operators.

○ The NPRM language suggests a potential for creating conflict with existing State laws, as in the case of California which requires all toll operators to use Title 21 compliant systems.

○ Though the current proposal makes no effort to set an ETC standard, it alludes to a future period when FHWA concurrence would be required on technology selection and could potentially require the use of an ETC system incompatible with the State's requirements. Many IBTTA members are concerned about this possibility.

○ The NPRM is vague in establishing a time frame for compliance at such time as a Federal standard might be established. Electronic toll collection represents an enormous investment of capital in the transponders and associated data and communications systems. Toll agencies require adequate time to amortize prior investments and facilitate the very complex logistics needed to replace millions of transponders among their customers.

○ Is there a business case to be made for national interoperability? More analysis is needed to determine if sufficient value exists, for example, for the occasional traveler from California to pay their toll in New Hampshire with their California-based account. The tens of millions of dollars it would cost the toll industry to establish national account reciprocity may not be worth the limited benefit to a few consumers.

○ Barring a significant infusion of Federal funding into a tolling system that has historically been denied Federal support raises the issue of a potential unfunded Federal mandate that would be borne by the customers of current and future toll facilities.

The FHWA appreciates IBTTA's candor and has carefully considered their recommendations. The FHWA believes that this rule accommodates the concerns expressed.

This rule requires toll agencies to consider regional interoperability, which should mitigate potential conflicts with State laws and FHWA's review, and concurrence will ensure the selection of the toll collection technique addresses regional interoperability concerns.

Also, FHWA concurs that the complexity associated with “back office” billing and financial issues requires caution in addressing interoperability. We will cooperate with the industry in identifying, studying, and addressing accountability issues in nationwide interoperable ETC.

Additionally, this rule does not create Federal standards for automated toll collection. If and when FHWA creates such standards, a separate rulemaking action will be required. Any future rulemaking action would address business concerns with nationwide standardization, including the economic analysis of the cost and benefit distribution. Also, any interested party would be permitted to submit comments to FHWA to consider in developing the final rule as part of the rulemaking process.

The North Carolina Turnpike Authority (NCTA) requested clarification from FHWA on whether NCTA is considered “eligible” by FHWA's proposed rulemaking and whether they fall under section 1604(b)(6) of the SAFETEA-LU provisions. It is unclear from NCTA's comment exactly what NCTA is asking FHWA to clarify with respect to its eligibility. With respect to funding, the Value Pricing Pilot Program is the only 1604 toll program with funding. Under the Value Pricing Pilot Program, State and local governments and other public authorities are eligible grant recipients. Since NCTA appears to be a public authority, NCTA is eligible to receive a grant under the Value Pricing Pilot Program. Also, NCTA may apply directly for toll authority under the Value Pricing Pilot Program and Express Lanes Demonstration Program, and jointly with North Carolina DOT for toll authority under the Interstate System Construction Toll Pilot Program. If NCTA receives toll authority under any of these toll programs, NCTA would be subject to the requirements of this rule.

Comments directed at the SUPPLEMENTARY INFORMATION :

The following comments were received in response to the background information provided in the NPRM.

The AIAM pointed out that, in addition to the Institute of Electrical and Electronic Engineers (IEEE), other standards development organizations are involved in developing standards for 5.9 GHz Dedicated Short-Range Communication (DSRC), particularly the Society of Automotive Engineers (SAE) (see SAE standard J2735).

The omission of the contribution of SAE in the development of standards related to DSRC in the background discussion was not intentional, and FHWA acknowledges the efforts of SAE.

The AIAM also commented that if the requirements document referenced in the NPRM is the document OmniAir recently circulated entitled “ Vehicle Infrastructure Integration (VII), Tolling and Payment Applications Concept of Operations,” there are some fundamental assumptions in that document that need to be revised based on a consensus of the major IntelliDrive  SM stakeholders. This document has not yet been sufficiently vetted with the affected IntelliDrive SM stakeholders.

The OmniAir document referenced in the NPRM is its Electronic Payment Services National Interoperability Specification, which predates the VII document noted by the AIAM.

With reference to the NPRM's statement about IBTTA sharing information on their activities, AIAM commented that although ETC represents an important subset of the intended uses of 5.9 GHz DSRC, there are other major stakeholders planning higher-priority safety uses of 5.9 GHz DSRC with whose requirements the ETC requirements must be harmonized. The toll collection interoperability requirements and specifications should therefore be framed within the constraints of the overall IntelliDrive  SM system and a National IntelliDrive  SM Program, which take into account both technical and policy requirements of the major stakeholders anticipated to use this IntelliDrive  SM system.

The FHWA concurs with the potential of IntelliDrive  SM to address a range of applications beyond toll collection; however, this rulemaking does not specifically address the requirements of IntelliDrive  SM .

Raytheon commented that this section states that the proposed regulations establish interoperability requirements, standards, and performance specifications, but does not present or establish performance specifications in the proposed regulations. The FHWA concurs and herein revises section 950.1 to reflect that the purpose of the rule is to establish interoperability requirements.

Washington DOT and Raytheon commented that the ETC definition is too restrictive. They suggested that the language be strengthened to indicate a preference for the use of ETC where tolls are collected at highway speed and vehicles are not required to slow down. They recommended that the definition of ETC be changed to read:

They noted that if this change were made, then there would be no need for a definition of DSRC, because the term DSRC is never used in the proposed rule. Similar comments were made by others in response to the questions in the NPRM. The FHWA concurs and substantially adopts the alternate definition of ETC in section 950.3.

Washington and Texas DOT, the Port Authority of New York and New Jersey, and several toll support firms indicated support of section 950.5(a), if the definition of ETC in section 950.3 is generalized. As noted previously, FHWA concurs and the definitions in section 950.3 have been modified to remove reference to radio communication and to clarify the collection of tolls without altering speed or course.

Rummel, Klepper and Kahl, LLP commented that this section appears to contain ambiguous language when stating cash payments are allowed when the use of such methods do not create an unsafe condition. The commenter proposed that all cash tolling facilities are unsafe due to the stopping of traffic. The commenter based this on a National Transportation Safety Board (NTSB) report following a fatal accident at a cash tolling facility where the toll plaza was in the main stream of traffic. As demonstrated in the NTSB report, toll plazas in main lanes of travel may present some risks, which is one of the reasons these regulations prohibit toll booths from being located in the main lanes of travel. While FHWA believes that ETC systems are essential to facilitating efficient and safe operating conditions, FHWA wants toll collection agencies to provide a means for travelers that may not be enrolled in an ETC system to use the facility without incurring a legal infraction. The FHWA believes that toll agencies are capable of designing and implementing the necessary specifications that ensure the safe and efficient operation of a toll facility in accordance with the standards in this rule. Therefore, FHWA has not made any changes as a result of this comment.

The Washington DOT requested a description and more information about the design documents that will be required or needed by FHWA to provide concurrence on system design and a definition of non-cash electronic technology. They also requested clarification of the sentence, “* * * only applies if tolls are imposed on a facility after the effective date of this rule.” They noted that Washington State's Route 167 high occupancy toll (HOT) lane facility toll system is in design, but tolls are not yet being collected and inquired if FHWA would consider a system that is in design to meet this rule.

The FHWA will require the same design documentation that is routinely required for a Federal-aid project as specified in 23 CFR part 940. This documentation must show compliance with 23 CFR 950.7 of this rule.

If a facility is granted toll authority under a section 1604 toll program and tolls are not imposed at the time this rule becomes effective, the requirements of this rule apply. Section 1604 toll programs include only the Value Pricing Pilot Program, Express Lanes Demonstration Program, and Interstate System Construction Toll Pilot Program. However, this rule does not apply, for example, to facilities granted toll authority under section 166 of Title 23 of the United States Code, i.e., conversion of high occupancy vehicle to HOT facilities.

Raytheon expressed concern that some of the proposed requirements in sections 950.7(b) and 950.7(c) could actually inhibit progress toward the deployment of a next generation national system based on open standards. They expressed concerns that if FHWA approval is required, and if such approval demands that proposed toll system designs maximize compatibility with the most widely deployed DSRC devices, then agencies seeking approval will have no incentive to specify tolling systems with advanced capabilities or open standards. This could extend and expand the use of some proprietary or stagnant technologies beyond their natural lifetime, and could diminish innovation, competition, and user convenience. They suggested that any FHWA approval process would need to carefully balance the benefits of technological innovation with those of legacy system compatibility. In some cases it may be financially or technically impractical to support multiple technologies concurrently, and the benefits of a new or more capable technology may outweigh the benefits of supporting “legacy” users.

The FHWA appreciates the concern expressed by Raytheon. The intent of the rule is to advance interoperability and is not technology specific. It is incumbent on the tolling authority to demonstrate how it is addressing interoperability, including the incorporation of any emerging technologies. The review and concurrence by FHWA will evaluate the information provided by the tolling authority toward achieving interoperability. Accordingly, FHWA has made two changes to this rule. First, FHWA has modified subsection 950.7(b) to clarify that FHWA's concurrence is not intended to force the use of any particular type of technology, and subsection 950.7(c) to clarify that FHWA's concurrence will give appropriate weight to current and future interoperability with toll facilities. Second, FHWA has added a new subsection 950.7(f) to expressly provide that the rule is technology neutral.

TransCore commented that the NPRM states that ETC systems already in operation will not be subject to the present rulemaking. However, the NPRM further states in subsection 950.7(e) that “* * * any change to the facility's toll collection system after the effective date of the final rule would be subject to the regulations proposed in this rule.” TransCore believes that this proposed language was unclear as to whether the rule would apply to facilities that change in technology or change in facility size. TransCore believes that because adoption of a national standard is not urgent, regions that use existing technologies to meet their current and future needs should not be hampered from expanding their networks or unduly forced to change anything in their systems unless they have compelling internal reasons to do so.

The FHWA believes that the intent and wording of this section provides the flexibility needed to permit an assessment based on regional needs and requirements. The FHWA concurs with the need to clarify section 950.7(e) and modified it to clarify that changes to the method or technology for collecting tolls would cause the facility to be subject to this rule.

The NPRM requested comments on six questions to provide additional information for this or potential future rulemaking actions. Twelve of the respondents submitted specific comments to these questions. Comments on the questions were received from two tolling authorities (NCTA and the Port Authority of New York and New Jersey), two State departments of transportation (California and Texas), one automobile manufacturer (General Motors), two automobile trade associations (AIAM, Inc. and VII Consortium), one international tolling and supporting services association (IBTTA), one tolling authority association (E-ZPass IAG), and three tolling systems firms (Mark IV IVHS, Raytheon Highway Transportation Management Systems, and TransCore). Their responses are summarized below.

In the NPRM, the background discussion states that to ensure national interoperability, an ETC standard would need to include interoperability consideration for both the “front-end” toll collection communications technology and the “back-office” operations of properly identifying and accounting for ETC activities. None of the respondents disagreed with this premise and several suggested that the pursuit of a national standard should address both.

Back-office activities identified for standardization included the data exchanges that govern transaction details, financial reciprocity and settlement, and customer service and accounting. This includes the sharing of customer information regarding account status and includes confidential information such as name, address, credit card information, and vehicle owner information. Several commenters suggested that the financial aspect can be addressed by business agreements that include standards that identify and validate the transponders and standards for reporting toll activities and settling payments.

The IAG proposed that the business agreements and processing standards developed by the IAG be accepted by FHWA as a basis for developing the financial and administrative aspects of national interoperability. Others suggested that the regional solutions to interoperability such as the IAG should be studied to extract the lessons learned, but TransCore felt that most of these consolidations were done in a “brute-force” way that is not readily extrapolated to a full national system. The tolling Concept of Operations document generated by OmniAir was also suggested as a good resource document for the back-office standards.

It was pointed out that back-office standardization is further complicated by the many and varied restrictions and requirements bound into the local authority's existing bonding agreements and other binding documents. Many of these requirements and restrictions must be handled legally before any further consolidation actions can be taken.

The FHWA appreciates the comments and information provided by the respondents concerning the back-office and financial perspectives to be considered when developing a national interoperable tolling standard.

For the front-end standardization activities, several commented that any effort to develop interoperability standards at the lane-level should support existing technologies. A common front-end technology was identified as desirable in the long run, but it is not necessarily the only solution. Several commented that an interoperable lane-level solution is relatively easy to achieve today using multiprotocol readers, but cannot be implemented because of intellectual property and patent restrictions. It was suggested that FHWA should focus its efforts on making existing regional systems interoperable through negotiation to mitigate these restrictions that prevent existing proprietary systems' interoperability on an interim basis while working toward an open national standard.

The FHWA concurs that lane-level interoperability is potentially easier to accomplish than back-office interoperability because of advances in communication technology, but there may be issues related to intellectual property rights. All of these responses are valuable inputs in consideration of future development of Federal standards either for vehicle-to-roadside communications or back-office transactions.

As part of the interoperability effort, several respondents encouraged FHWA to improve the accuracy, timeliness, and accessibility of Department of Motor Vehicle or Motor Vehicle Commission records across the United States. The commenters indicated that tolling agencies need cost-effective access to accurate license plate information. The FHWA was also encouraged to work with the States to establish a more consistent look and coding structure of license plates. The FHWA will use these recommendations in considering future rulemaking for toll collection interoperability standards and in developing any guidance related to automated toll collection systems.

Several commented that interoperability standards should be open to new technologies and governed by data exchange standards. TransCore commented that there should be no attempt to specify or dictate specific technologies to be used for toll collection, noting that radio frequency identification, global positioning system, and video technologies all play a role in modern toll collection systems. TransCore recommended that any technology standards imposed should, at a minimum, allow these proven approaches to continue to develop, while simultaneously encouraging new technologies that can further improve toll collection efficiencies. The FHWA concurs and believes the modifications to the rule related to technology neutrality clarify the use of technology independent solutions.

Over one-half of those responding to the NPRM's questions indicated that a national toll collection standard should be pursued as an integrated part of the overall National IntelliDrive SM Program. They indicated that toll collection systems should use standard interfaces that are being defined for the IntelliDrive SM system and should function within the operational rules of a National IntelliDrive SM Program to provide an integrated technical and policy framework that supports nationwide interoperability beyond the confines of the tolling applications. General Motors indicated that safety applications should have the highest priority.

It was pointed out that government and industry are working cooperatively in IEEE technical committees to define 5.9 GHz DSRC standards and with OmniAir to define 5.9 GHz interoperability testing and e-payment transaction standards enabling back-office interoperability. These efforts should be continued. The IAG also noted that pilot projects should be initiated to validate the resulting standards.

Several respondents observed that the NPRM suggests that some sort of interim standard is necessary. They contended that implementation of an interim standard to be followed by a federally developed 5.9 GHz DSRC standard will place undue financial, operational, and logistical burdens on those entities covered by the rule without any real prospect of attaining the goal of national interoperability. One respondent stated, “The proposed rule should be set aside in favor of the inevitable adoption of 5.9 GHz DSRC standards.”

With the exception of the comment that the rule suggests imposing interim standards, the responses and comments above reinforce statements presented in the proposed rule. Specifically, the General Discussion of the Proposal section of the NPRM stated that, “the Department does not believe that it can effectively establish a national standard at this time.” The General Discussion also states that standards published as a result of the DSRC program may form the basis for future rulemaking to establish standards for a nationwide interoperable toll collection system. The FHWA agrees that any 5.9 GHz toll standards should be developed in concert with the IntelliDrive SM Program. The Department continues to support the IntelliDrive SM program and related activities including the IEEE, SAE and OmniAir efforts described previously.

One commented that the national standard should be developed with the FHWA supplying funds to multiple vendors to develop prototype equipment which is then tested for interoperability and specification compliance by an independent contractor.

Several commented that when a national interoperability standard is adopted, there will need to be a significant window of time for toll agencies to migrate to this standard to allow toll agencies to fully amortize their existing system costs and facilitate the complex logistics needed to replace millions of transponders among their customers.

These comments are appropriate considerations if future rulemaking actions are undertaken to identify and adopt a national standard for automated toll collection interoperability. These responses and comments do not necessitate any changes to this rule.

Many of the responses to this question were variations of the responses provided to question 1 that the front-end, lane-level solution, and the back-office data processing solution should be considered for standardization. The communications protocols, message sets, and all data flows for all transactions should be an open specification. Advancing standards that are independent of any specific technology allows toll operators the ability to fully amortize existing investments in roadside infrastructure and on-board units, while allowing for technological evolution and innovation to create new functionality, accuracy, and efficiency.

Several respondents emphasized standardization for the data structures, and the format and rules for exchanging ETC that support the full spectrum of ETC functions to clear the transactions and successfully transfer funds between account holders and facility operators. It was suggested that the FHWA should develop technology-neutral unified standards for data exchange that address transaction details, financial reciprocity and settlement, customer service and accounting, and revenue collection enforcement. One respondent noted that the most important aspects to be standardized are the data structures, formats, and exchange protocols that support the full spectrum of ETC functions.

The NCTA commented that, “Until a true standard file specification for all on-board unit transactions exists, FHWA should either select the most suitable file specification in operation or facilitate creation of a bridge file specification that includes minimum information as to the issuer of the account, the class of the vehicle, the vehicle weight, and the entry and exit point for transactions occurring on a closed system roadway.”

Several suggested a standardized vehicle classification system such that agencies have common framework for metrics, such as vehicle size, axles and configurations to appropriately determine the toll charge.

The IAG repeated its recommendation that the E-ZPass standards provide a basis until such time as a uniform, low cost, easily verifiable point of service payment system is established and accepted.

Several commented that a national clearinghouse should be used for financial transactions with the suggestion that the credit card transaction system may be a good model to study. The Port Authority of New York and New Jersey observed that “Existing ETC systems in the U.S. have largely been developed by having some combination of toll operators, systems integrators and back office contractors providing the financial clearing functions for toll reciprocity and settlement. This has resulted in inherent inefficiencies, redundant investments and systems, and delays from extended financial settlement processes. As the U.S. considers electronic tolling interoperability, the focus should be on more fully integrating established financial institutions in the financial clearing functions.”

At the lane level, it was suggested that it is important to avoid specifying a single technical approach to allow the industry to take maximum advantage of new technologies as they emerge. As a general statement, the eventual standards should not be overly prescriptive and should allow as much latitude as possible to the local toll authorities.

General Motors suggested that regulatory requirements for ETC devices must help ensure that operation does not interfere with other vehicle signal transmissions, operations, and functionality. The standard should specify testing to specific performance criteria stipulated in the regulations for vehicle-based ETC and for automated tolling booths to allow developers of on-board vehicle devices to develop and validate independent of the manufacturers of the automated tolling booth technology. Testable performance criteria were mentioned by several other responders as well.

Both of the automobile associations indicated that the Human Machine Interface in the vehicle, or other internal vehicle system components or operations, should not be standardized and are not part of the IntelliDrive SM system. Further, the applications themselves should not be standardized; rather message sets should be standardized to support interoperability allowing for proprietary application differentiation and innovation.

Mark IV IVHS, Inc. indicated that, in the short-term, none of the aspects should be standardized pending the outcome of the 5.9 GHz program. In the long-term, both technical and financial compatibility aspects should be standardized, although the latter is not an absolute requirement, as the same device can be registered for use in multiple systems with different accounts.

The FHWA appreciates the comments and contributions of the respondents. The information provided will serve as valuable input if a national interoperability tolling standard is developed. Since this rule does not address development of a specific standard, no changes are needed based on these comments.

One-third of the respondents considered the timing to be non-critical, with one referring to it as a “back-burner” issue. Another respondent felt the timing of the proposed rule is ill-conceived and counter to the federally sponsored 5.9 GHz DSRC effort. The California DOT commented that the timing of a national standard is critical. They suggested that it should have a rapid development time with an aggressive implementation plan.

Almost one-half of the respondents felt it was important to harmonize the timing for establishment of a national ETC standard with the overall National IntelliDrive SM Program development and potential deployment. This is considered important so that consensus on common issues can be maintained. Such harmonization would help to foster coordinated deployment of the necessary vehicle, infrastructure communications equipment, and complementary applications. Several commenters indicated that the tolling community should take advantage of the capabilities afforded by the national IntelliDrive SM initiative, but it is not practical to mandate its use in the near future.

General Motors suggested that regulatory requirements for ETC systems should be paced to, and coordinated with, the standards for vehicle safety and mobility applications. The IAG observed that a critical concern with the 5.9 GHz system is the rollout of the fleet and the timing for massive capital investments in roadside equipment to support a small portion of the users. A program, providing for an initial in-vehicle device that is provided as an after market transponder, could make the establishment of a national standard more realistic.

The IAG stated that establishment of a national standard must be done in a manner that takes into consideration existing standards and the financial investments made in deployed systems. They emphasized that it is important that any call for implementation recognize that the E-ZPass network alone has over 3,000 toll lanes, which would have to be equipped or renovated to make the overall system work. The time to replace or supplement existing systems would be critical since most lanes must operate with daily traffic. They believe that at least a 4-year window would be necessary between the date on which the standards are established and the day the ETC systems are expected to be fully operational. Another respondent suggested it should be fully deployed within 5 years of adoption.

Several respondents stated that hardware interoperability is available to any who need it through use of multimode, multiprotocol devices that are available today. It was suggested that FHWA should explore facilitating a negotiation process to mitigate current patent restrictions to allow agencies to utilize multiprotocol readers. This should be accompanied by the timely implementation of the data interchanges, financial, and procedural requirements to allow current and future interoperable systems.

As noted previously, FHWA concurs that any national interoperable tolling standard developed for the 5.9 GHz DSRC effort must be coordinated with the overall IntelliDrive SM Program. Implementation and adoption of any future standard must address the transition to the new standard and consider current and future investments by the tolling authorities.

The Port Authority of New York and New Jersey recommended that a plan for national interoperability should begin with an evaluation of the applicability of the E-ZPass standards for data exchange, file formats and financial reciprocity, and settlement practices to a national approach. The Texas DOT suggested that the first step was to emphasize video aspects that enhance ETC and establish uniform standards for the collection of data between the camera, the classification system, and the data network. The second step was to establish standards to create a national data repository to facilitate the exchange of information between agencies, similar to that used by the credit card industry. The IBTTA suggested that any national standard should incorporate the functions articulated by IBTTA's ETC performance specification document.

A majority of the respondents stated that compatibility with existing standards should be incorporated in a national interoperability standard to lessen the impact of transitioning from regional standards to the national standards. Any movement toward a national standard must recognize that there is a large investment in place in roadside equipment, transponders, and multiyear back-office contracts that support regional interoperability today. Several noted that the migration period must include a transitional period for the current technologies to operate in parallel with the national standard until tolling agencies are assured it mirrors and captures all of the transactions that the legacy system capture. One respondent commented, “It would be unconscionable to develop a national standard that does not recognize the investment made in ETC systems and accommodate the existing technologies and functions.”

Several respondents recommended integrating the ETC standard into the overall IntelliDrive SM technology approach so that compatibility with planned technologies under development will be ensured, including the collective agreement of the major IntelliDrive SM stakeholders. General Motors suggested that national interoperability standards should focus on performance-based standards that include requirements to ensure ETC devices do not impact vehicle operation and safety communications.

Raytheon suggested that a national 5.9 GHz DSRC standard should not incorporate legacy technologies; rather, it should focus on the next generation. They also suggested that current tolling functions will apply to future systems. However, Raytheon does not believe that it is necessary or efficient for FHWA to standardize all tolling functions and performance parameters.

The comments above will provide valuable input should a national interoperable tolling standard be developed and adopted in the future. As noted previously, this rule does not impose the creation of standard; hence, there are no changes needed to the rule.

A number of the responses reiterated points made in response to previous questions. The point reiterated that the standard should provide a way for any system to evolve over time, but remain backward compatible for a reasonable time. Electronic identification appears to remain the most cost-effective means going forward, but other forms of electronic identification will also be important and should be anticipated and provided for in the standards. The standard should emphasize approach rather than a technology, device, or vendor. It was again noted that the national standard should be harmonized with the IntelliDrive SM program.

The Texas DOT recommended that technology should be viewed as a tool to support the interoperable network, by focusing on not only ETC, but also the supporting agreements, networks, and procedures, plus video tolling so that changes in technology can be more easily integrated into the manner in which revenue is collected. Several others responded that if there are to be changes in any of the standardized fundamental technologies, these changes should always be accomplished in a way that allows backward compatibility to support existing vehicles and infrastructure equipment. General Motors suggested focusing on performance-based requirements with open-standards developed through industry voluntary consensus process consistent with the National Technology Transfer and Advancement Act of 1995.

It was suggested that the national standard must provide for flexibility to handle future methods for charging a toll to customers by providing expandability within the financial standards to associate potential multiple devices and business rules to an account. The standards should extend beyond today's norms for ETC by considering electronic payment systems that would employ more ubiquitous data collection, account management, and payment methods than are available in today's transponder-based electronic tolling business models.

Several suggested that a national ETC standard should focus on the data protocol, how the data is stored in a device, and how it is presented to the toll agency, not the means by which the data is transmitted. Similarly, the automobile manufacturers' associations suggested that by focusing on standards for message sets, rather than applications, innovation in applications development may proceed unabated. Similarly, by not standardizing the vehicle human machine interface, automobile manufacturers may proceed rapidly with innovation and product differentiation in this area to best meet the needs of their customers.

Mark IV noted that toll operators must be allowed to realize the safety, efficiency, and environmental benefits of the investments they have made and commitments to amortization schedules. They must be allowed to make their own decisions on conversion based upon the financial, operational, political, and practical considerations unique to their organization.

The FHWA generally agrees with the comments. They will provide valuable input should a national interoperable tolling standard be developed and adopted in the future. As noted previously, this rule does not impose the creation of standards; hence, there are no changes needed to the rule.

All of the respondents expressed the importance of preservation of personal privacy. However, Mark IV IVHS commented that there are no personal privacy aspects related to the technology. They indicated that privacy issues should be legislated rather than regulated and, in that context are beyond the scope of this proposed rule.

The NCTA recommended that privacy principles be developed under the national ETC standard to ensure that individuals using the national standard equipped vehicles may be able to do so anonymously. They recommended that personal information used within a national standards program should be limited to information necessary to carry out an articulated and valid national standard purpose.

More than one-half responded that transaction information, spending patterns, and all information related to the personal and financial sources backing an account should be adequately protected. Personal information including account status, credit card information, address information, and travel must be kept private and used solely for the collection of tolls and fines. If the standards accommodate devices that exchange information for multiple purposes, there should be safeguards to ensure that the data flow involving payment transactions is unique and not able to be replicated by legitimate equipment designed for other purposes.

The NCTA noted that, for the collection of tolls for non-toll applications, it recommends the practice of utilizing fair information practices, such as notice and consent by patrons that will establish their agreement that certain private information will be used in the conduct of the business function in which they have agreed to participate. The national standard must contain the tools necessary for the careful protection of personal information and set limits that can be audited on how long personal information will be retained by users and administrators in a national program. The national standard must also provide the opportunity for a customer to terminate their participation ( i.e., opt-out) in a non-ETC function.

The automobile manufacturers' associations noted that the VII Coalition has devoted considerable effort and consensus-building into the development and adoption of the “VII Privacy Policies Framework.” This document forms the basis for privacy rules expected to govern a National IntelliDrive SM Program. As a potential IntelliDrive SM application, it is important that ETC systems intending to use the IntelliDrive SM system are designed in ways that meet the principles and limits expressed in the “VII Privacy Policies Framework.”

Raytheon suggested that FHWA should consider requiring that the subject privacy policies be developed in accordance with specific recognized guidelines such as the Organization for Economic Cooperation and Development Privacy Guidelines on the Protection of Privacy or the more recently developed Asia Pacific Economic Cooperation Privacy Framework.

The previous comments provide valuable input toward potential development of national interoperable tolling standards, or guidance for implementing toll collection interoperability. The comments reiterate the need for privacy policies as required in section 950.5(c) of this rule. No changes to the rule are needed based on these comments.

The FHWA has determined that this rule is a significant regulatory action within the meaning of Executive Order 12866 and is significant within the meaning of Department of Transportation regulatory policies and procedures. This action is considered significant because of the substantial State and local government and public interest in the requirements for automated toll collection systems. This rule provides interoperability requirements, standards, or performance specifications for toll projects initiated under section 1604 of SAFETEA-LU that use ETC. Section 1604 of SAFETEA-LU establishes or amends three tolling programs: (1) The Value Pricing Pilot Program, which has a maximum of 15 cooperative agreements; (2) the Express Lanes Demonstration Program, which has a maximum of 15 tolling projects; and (3) the Interstate System Construction Toll Pilot Program, which has a maximum of three tolling projects. This rule only establishes conditions on a Federal grant of authority for toll programs under section 1604 and does not require a State to impose tolls on any particular facility nor mandate how a State or toll authority operates, maintains or enforces its tolling program.

It is expected that the economic costs of this rule will be minimal while the benefits could be significant. These changes are not anticipated to adversely affect, in a material way, any sector of the economy. Since this rule only applies to new projects initiated under section 1604 of SAFETEA-LU, no significant encumbrances are added to the project's design or implementation.

Interoperability will afford potential reductions in implementation and operating costs in several ways for the implementing agencies and the public. First, it will allow the leveraging of existing resources, specifically the toll transponders that are being used by vehicle operators. By designing for interoperability, a new ETC project will not need to distribute as many toll transponders as it would if it designed a unique toll collection system. The public users will not need to purchase or fund additional devices and accounts. According to the proceedings of a seminar conducted by the World Bank Group in March 1999, agencies implementing a toll facility may realize additional cost savings of installed equipment of $5,000 per toll collecting lane for ETC versus traditional manual methods. 1 Studies indicate that the costs for adding ETC to existing or already constructed roadways varies from $1.7 million (in 2005 dollars) for seven collection sites along 26 miles of Interstate route 5 in San Diego  2 to $35.7 million for 31 miles of roadway in Dade County, Florida. 3 Different levels of communication and technology infrastructure help account for the variation in implementation costs.

Second, the operating cost for an electronic toll lane is less than one-tenth that of a standard lane. A 1997 report indicated that the Oklahoma Turnpike Authority spent approximately $16,000 per year on the operational cost of an ETC lane. In contrast, the Authority spent approximately $176,000 per year to operate a manual toll collection lane. While this report represents a rural implementation, and may not be fully representative of a more metropolitan implementation with a great number of transactions, the increased number of tolled lanes and the cost savings of automating toll collection lanes versus staffed lanes provides for similar cost savings for operations.

Third, there are also environmental savings associated with congestion reduction. Increasing access to electronic toll lanes will decrease time spent waiting to pay tolls. As an example of reduced delays, attended toll collection facilities can process approximately 300 vehicles per hour, or 12 seconds per vehicle. Dedicated ETC facilities can process approximately 1,200 vehicles per hour, or 3 seconds per vehicle. 4 Using a conservative estimate for a queue of four vehicles for processing per lane, the delay for not using ETC equals 36 seconds. During peak periods, queues would be longer and delays increased. When multiplied by the number of transactions, these time savings can be considerable based on the value of $15+ per hour that an average person in the United States earns. While the total savings are dependant on how many new systems are built, they could be considerable. Costs would be dependent on the methods that are instituted to collect payments. For example, it may take longer to pay using a lane that allows for multiple types of payment as opposed to lanes dedicated to ETC or barrier-free collection techniques. However, the Department believes that these differences would be minimal or more than offset by the delays caused by current systems.

Toll plazas and barriers reduce a facility's throughput of vehicles, resulting in traffic congestion and its associated hazards as the demand and volume of vehicles increase. Electronic tolling helps to mitigate congestion by eliminating the bottlenecks caused by toll plazas and barriers. For example, in 1995, researchers compared vehicle throughput on lanes with manual toll collections versus ETC on the Tappan Zee Bridge in New York. The manual collection lane accommodated up to 400 to 450 vehicles per hour while an electronic lane peaked at 1,000 vehicles per hour. 5 Also, in another example, the E-ZPass ETC system saved commuters approximately 2.1 million hours of delay on the New Jersey Turnpike in 2000. 6 An evaluation from Florida indicated that enhancing ETC with open road tolling decreased delay by 50 percent for manual cash customers and by 55 percent for automatic coin machine customers, and increased speed by 57 percent in the open road tolling lanes. The addition of open road tolling also decreased crashes by an estimated 22 to 26 percent. 7

Therefore, this rule will result in only minimal costs to those affected. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) the FHWA has evaluated the effects of this rule on small entities and has determined that the rule will not have a significant economic impact on a substantial number of small entities.

This rule does not change the roles or responsibilities of small entities in ETC projects. The rule neither improves nor worsens small entities' opportunities to participate in ETC projects, so it results in no economic effect on the small entities. For these reasons, FHWA certifies that this action will not have a significant economic impact on a substantial number of small entities.

This rule will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one year (2 U.S.C. 1532). This rule only establishes conditions on a Federal grant of authority for toll programs under section 1604 and does not require a State, public authority, or private entity designated by a State, to impose tolls on any particular facility nor mandates how a State or toll authority operates, maintains or enforces its tolling program.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FHWA has determined that this action will not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this action does not contain collection of information requirements for the purposes of the PRA.

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321) and has determined that this action will not have any effect on the quality of the environment.

The FHWA has analyzed this rule under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.

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

The FHWA has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action will not cause any environmental risk to health or safety that might disproportionately affect children.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that this action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. The rule addresses interoperability requirements, standards, or performance specifications for toll projects initiated under section 1604 of SAFETEA-LU that use ETC and would not impose any direct compliance requirements on Indian tribal governments.

The FHWA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use dated May 18, 2001. We have determined that this is not a significant energy action under that order since it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

A regulation identification 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 contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) allows the establishment of definitive viticultural areas and the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) contains the list of approved viticultural areas.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region distinguishable by geographical features, the boundaries of which have been recognized and defined in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to its geographical origin. The establishment of viticultural areas allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of a viticultural area is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations outlines the procedure for proposing an American viticultural area and provides that any interested party may petition TTB to establish a grape-growing region as a viticultural area. Section 9.3(b) of the TTB regulations requires the petition to include—

• Evidence that the proposed viticultural area is locally and/or nationally known by the name specified in the petition;

• Historical or current evidence that supports setting the boundary of the proposed viticultural area as the petition specifies;

• Evidence relating to the geographical features, such as climate, soils, elevation, and physical features, that distinguish the proposed viticultural area from surrounding areas;

• A description of the specific boundary of the proposed viticultural area, based on features, found on United States Geological Survey (USGS) maps; and

• A copy of the appropriate USGS map(s) with the proposed viticultural area's boundary prominently marked.

TTB received a petition from Wes Hagen, Vineyard Manager and Winemaker at Clos Pepe Vineyards, Lompoc, California, on behalf of Happy Canyon vintners and grape growers, proposing the establishment of the Happy Canyon of Santa Barbara American viticultural area. According to the petitioner, the proposed viticultural area encompasses 23,941 acres, 492 acres of which are in commercial viticulture in 6 vineyards. The proposed viticultural area is entirely within the Santa Ynez Valley viticultural area (27 CFR 9.54), which in turn is completely within the multicounty Central Coast viticultural area (27 CFR 9.75).

The petitioner stated that the viticulture of the proposed Happy Canyon of Santa Barbara viticultural area, in eastern Santa Ynez Valley, is distinguishable from that of the rest of the valley, including the Sta. Rita Hills viticultural area (27 CFR 9.162), in western Santa Ynez Valley. We summarize below the supporting evidence submitted with the petition.

According to the petitioner and USGS maps, the “Happy Canyon of Santa Barbara” name applies to a canyon located in Santa Barbara County. TTB notes that a search of the USGS Geographical Names Information System (GNIS) includes 10 hits for “Happy Canyon,” 3 of which are in California. The petitioner originally proposed “Happy Canyon” as the name of the viticultural area. However, based on results of the GNIS search, TTB determined that the Happy Canyon name would require a geographical modifier to pinpoint its physical location and avoid potential consumer confusion with other identical or similar names. After careful consideration, the petitioner modified the name of the petitioned-for viticultural area to “Happy Canyon of Santa Barbara.” The petitioner believes that the proposed Happy Canyon of Santa Barbara viticultural area name will identify the area as a unique grape-growing region for both consumers and industry members.

According to the USGS Lake Cachuma, Santa Ynez, and Figueroa Mountain maps that the petitioner provided, Happy Canyon is a region that descends in elevation northeast-to-southwest, north and west of Lake Cachuma in Santa Barbara County. Happy Canyon Road, a light-duty road, meanders through the proposed viticultural area.

A road map of Santa Barbara County shows that the Happy Canyon area and Happy Canyon Road are to the east of the town of Santa Ynez (Automobile Club of Southern California, California State Automobile Association, January 2003 edition). The map also shows that the Happy Canyon area is within Santa Barbara County.

The petitioner documents that the proposed Happy Canyon of Santa Barbara viticultural area lies in the eastern part of the 40-mile-wide Santa Ynez Valley and the northern part of Santa Barbara County, California. As shown on USGS maps, Happy Canyon comprises canyon terrain, hills, and river and creek basins to the east and south of the San Rafael Mountains, west of Lake Cachuma, and north of the Santa Ynez River.

The petitioner explains that the proposed boundary line of the Happy Canyon of Santa Barbara viticultural area was drawn by a local committee of viticulturists, consultants, and vintners, all of whom had formal training in geology, geography, and agriculture. The proposed boundary line encompasses a unique geological and climatic grape-growing region on the east side of the Santa Ynez Valley viticultural area. The proposed boundary line skirts the San Rafael Mountains to the north, the Los Padres National Forest to the east, and the Lake Cachuma Recreation Area on portions of the south side, according to the written boundary description. The proposed boundary line, continuing in a clockwise direction, incorporates a portion of the Santa Ynez River as the south boundary line, and uses a series of straight lines between elevation points to skirt the steep foothills west of Santa Agueda and Figueroa Creeks.

According to the petitioner, the northern and northeastern portions of the boundary line of the proposed Happy Canyon of Santa Barbara viticultural area are based on the location of the best grape-growing areas, viable agricultural soils, sparse and rocky pine forests, and high elevations. Photographs and descriptions of the landscape in the proposed viticultural area tell of the change from green pastures to stony, infertile soils at the Los Padres National Forest to the northeast. The U.S. Department of Agriculture, Soil Conservation Service, did not map the soils in the national forest. However, as shown on the USGS maps submitted with the petition, elevations north of Happy Canyon rise from 1,200 to 3,200 feet, far exceeding the average 1,200-foot elevation within the proposed viticultural area.

The USGS maps show that the eastern boundary line of the proposed Happy Canyon of Santa Barbara viticultural area runs, north to south, along the border of the Los Padres National Forest, and continues south along the dividing line of several land grants. The proposed boundary line cuts through steep, mountainous terrain where elevations are between approximately 800 and 3,400 feet. The petitioner explains that the proposed eastern boundary line uses the same line established in 1983 for the eastern border of the Santa Ynez Valley viticultural area. Local winegrowers in Happy Canyon assert that the eastern boundary line applies equally well to the Santa Ynez Valley and the proposed Happy Canyon of Santa Barbara viticultural areas.

According to the written boundary description in the petition and the USGS maps, the southern boundary line of the proposed Happy Canyon of Santa Barbara viticultural area coincides with the southern boundary line of the Santa Ynez Valley viticultural area along the boundary line of the Lake Cachuma Recreation Area to its intersection with the Santa Ynez River. The proposed boundary line then follows the Santa Ynez River west to its intersection with a road, where the boundary line turns north.

The petitioner explains that the committee, in determining the southwestern portion of the boundary of the proposed viticultural area, considered only areas that were traditionally known as Happy Canyon and that had similar potential for viticulture.

The petitioner explains that the central and northerly portions of the western boundary line of the proposed Happy Canyon of Santa Barbara viticultural area define the boundaries of grazed, rolling hills and deep canyons with ridge lines 1,200 to 1,800 feet in elevation. According to the written boundary description and USGS maps, the rolling foothills of the Santa Agueda Creek Valley, where cattle graze both sides of the creek, lie immediately inside the proposed western boundary line. As the Santa Agueda Creek Valley rises to the west, rolling foothills meet steep canyons at the western boundary line of the proposed Happy Canyon of Santa Barbara viticultural area. The petitioner notes that the steepness of the terrain to the west and outside of the proposed boundary line contrasts with the topography and geology of the preserved oak scrubland, open rolling grazing land, and vineyards to the east, inside the proposed boundary line.

The petitioner states that the distinguishing features of the proposed Happy Canyon of Santa Barbara viticultural area are climate, topography, drainage, soils, and geology. Happy Canyon, in the eastern portion of the Santa Ynez Valley, and the western portion of the Santa Ynez Valley have overt differences in climate, geological parent material, and soil drainage patterns.

According to the petitioner, of all the grape-growing areas in the Santa Ynez Valley, Happy Canyon is the furthest inland and has the warmest climate. It is located in the easternmost part of the Santa Ynez Valley, and the daytime highs and nighttime lows in that part of the county vary more in a 24-hour period than those in other parts of the valley. At about 12 miles west of the proposed viticultural area, the inland mountain ranges change direction from west-east to north-south. The north-south mountain ridge blocks the Pacific coastal breezes, preventing them from cooling the canyon. As a result, the ridge traps in heat in Happy Canyon during the warmer growing months.

The petition for the Happy Canyon of Santa Barbara viticultural area includes climatic data for the period 2004-6 provided by Kerry Martin of Coastal Vineyard Care Associates. Some of the data for the Happy Canyon area and the areas to the west and north of Happy Canyon were obtained from data stations located in vineyards and maintained by Coastal Vineyard Care Associates. The data for the areas to the east and south of Happy Canyon were retrieved from the Western Regional Climate Center (at http://www.wrcc.dri.edu/ ) and the California Irrigation Management Information System (at http://wwwcimis.water.ca.gov/cimis/welcome.jsp ), respectively. The petitioner used those data in creating the table below, which compares growing degree days, based on the Winkler climate classification system, for Happy Canyon and the surrounding areas; see “General Viticulture,” by Albert J. Winkler, University of California Press, 1974.

In the Winkler system, as a measurement of heat accumulation during the growing season, 1 degree day accumulates for each degree Fahrenheit that a day's mean temperature is above 50 degrees, which is the minimum temperature required for grapevine growth. The data, in degree days, show that, compared to the Happy Canyon area, areas to the north, south, and west of Happy Canyon average between 5 and 20 percent cooler and the area to the east averages 15 percent warmer.

The petitioner explains that the topography of the proposed Happy Canyon of Santa Barbara viticultural area includes varying elevations, rolling foothills, and a distinctive southwest drainage. According to the USGS maps, the proposed viticultural area lies on the east side and in the higher elevations of the Santa Ynez Valley region. Elevations within the proposed boundary line range from 500 feet in the southwest corner to 3,430 feet in the northeast corner, in the foothills of the San Rafael Range.

The petitioner explains that between the Pacific Ocean and the Santa Ynez Valley, hills and mountains trend west-to-east. As the elevation of the Santa Ynez Valley rises from west to east, the hills and mountains turn from a west-east direction to a generally north-south direction. The proposed viticultural area, located inland, lies along mountains and hills with a north-south orientation.

According to the petitioner, the southwest drainage pattern of the proposed viticultural area is comparatively unique. To the west of the proposed boundary line, between Santa Agueda Creek and Figueroa Mountain Road, the drainage pattern trends south-southeast.

According to the current soil survey, the two major soil types in the proposed Happy Canyon of Santa Barbara viticultural area are related to topography (“Soil Survey of Northern Santa Barbara Area, California,” issued by the United States Department of Agriculture, Soil Conservation Service, 1972). Alluvial soils are at lower elevations and on bottoms of canyons; upland soils are at higher elevations of canyons and on surrounding peaks and hilltops.

The petitioner explains that the current soil survey shows that the soil characteristics of the proposed Happy Canyon of Santa Barbara viticultural area include green serpentine (magnesium silicate hydroxide) parent material, elevated levels of exchangeable magnesium, lower levels of exchangeable sodium, and a high cation exchange capacity (CEC). High CEC levels, because of the amount of positively charged ions in the soils, increase the uptake of nutrients by plant roots.

The proposed viticultural area comprises the Shedd-Santa Lucia-Diablo and Toomes-Climara associations on uplands. The Shedd-Santa Lucia-Diablo association consists of strongly sloping to very steep, well drained shaly clay loams and silty clays. The Toomes-Climara association consists of moderately steep to very steep, somewhat excessively drained and well drained clay loams and clays.

The Chamise-Arnold-Crow Hills association is of greater extent in the western portion of the Santa Ynez Valley viticultural area, west of the proposed Happy Canyon of Santa Barbara viticultural area. This association consists of gently sloping to very steep, well drained and somewhat excessively drained sands to clay loams on high terraces and uplands.

The petitioner explains that the soils in the western portion of the Santa Ynez Valley viticultural area, compared to the soils in the proposed Happy Canyon of Santa Barbara viticultural area, have less magnesium, a significantly lower CEC level, and higher amounts of exchangeable sodium. Although drainage patterns change along the proposed western boundary line, the soils on both sides of the boundary line are similar.

The Positas-Ballard-Santa Ynez soil association is scattered throughout much of the southern part of the proposed Happy Canyon of Santa Barbara viticultural area. Sedimentary rock, unfavorable for viticulture, is predominant along the south side of the Santa Ynez River, outside the proposed boundary line.

The petitioner provides the results of two soil studies conducted in connection with the proposed Happy Canyon of Santa Barbara viticultural area. The first study details the differences in CEC among soils tested at sites in the proposed viticultural area and in areas immediately southwest and further west of the proposed boundary line, in the western end of the Santa Ynez Valley. The study shows that the soils in the proposed viticultural area have significantly more magnesium and an elevated CEC level as compared to the soils in areas beyond the proposed boundary line to the southwest and west (see table below). The petitioner also notes that the levels of calcium and sodium in the soils in the Happy Canyon are less than half those in the soils to the southwest and west.

The second study that the petitioner provided examines the differences in soils in the proposed Happy Canyon of Santa Barbara viticultural area and in canyons outside the boundary line, as far west as Figueroa Mountain Road, which is located approximately 4 miles away. The study is based on an acreage table of the soils on approximately 35,000 acres within the proposed viticultural area and on an equal number of acres to the west (see “Soil Survey of Northern Santa Barbara Area, California”). The results of that study confirm the differences in total acreage and slope of soils in areas on either side of the proposed western boundary line of the Happy Canyon of Santa Barbara viticultural area (see table below).

According to the petitioner, the results of the soil study above show a unique geological pattern that justifies placing the western portion of the proposed boundary line in the vicinity of the Santa Agueda and Figueroa Creeks. The results also show that the Happy Canyon area comprises a group of soils different from those found to the west.

TTB published Notice No. 89 regarding the proposed Happy Canyon of Santa Barbara viticultural area in the Federal Register (73 FR 46830) on August 12, 2008. In that notice, TTB invited comments by October 14, 2008, from all interested persons. We expressed particular interest in receiving comments on whether the evidence regarding name and distinguishing features is sufficient to warrant the establishment of this new viticultural area within the existing Santa Ynez Valley and the larger Central Coast viticultural areas. We also solicited comments on the sufficiency and accuracy of the name, boundary, climatic, and other required information submitted in support of the petition. We received seven comments from individuals in response to that notice, and all supported the establishment of the Happy Canyon of Santa Barbara viticultural area as originally proposed.

As stated above, the proposed viticultural area is entirely within the Santa Ynez Valley viticultural area (27 CFR 9.54), which in turn is completely within the multicounty Central Coast viticultural area (27 CFR 9.75). The Central Coast viticultural area, established by T.D. ATF-216 published in the Federal Register on October 24, 1985 (50 FR 43128), identified an area between the Pacific Ocean and the California Coastal Ranges as being under marine influence on climate. T.D. ATF-216 stated that the marine influence caused precipitation, heat summation, maximum high temperatures, minimum low temperatures, length of frost free season, wind, marine fog incursion, and relative humidity to be significantly different from those on the opposite side of the Coastal Ranges, which is typically arid or semiarid. It also recognized the existence of microclimates within this relatively large AVA. The Santa Ynez Valley viticultural area, established by T.D. ATF-132 published in the Federal Register on April 15, 1983 (48 FR 16250), was recognized as having a cool Region II climate on the Winkler system, citing the average degree days in Solvang in the center of the valley, and also that summertime temperatures increase going west to east. T.D. ATF- 132 also identifies rainfall average of 16 inches, fog, and three major soils associations (Positas-Ballard-Santa Ynez, Chamise-Arnold-Crow Hill, and Shedd Santa Lucia-Diablo) as being distinguishing geographical features. Although the proposed Happy Canyon of Santa Barbara viticultural area shares some of the characteristics of the Central Coast and Santa Ynez Valley viticultural areas, its location furthest inland and near a north-south mountain ridge blocking some of the marine influence and its unique soil characteristic of high CEC justify recognition of Happy Canyon of Santa Barbara as a distinct viticultural area within the two existing AVAs.

Accordingly, after careful review of the petition and the comments received, TTB finds that the evidence submitted supports the establishment of the proposed viticultural area. Therefore, under the authority of the Federal Alcohol Administration Act and part 4 of our regulations, we establish the “Happy Canyon of Santa Barbara” viticultural area in Santa Barbara County, California, effective 30 days from the publication date of this document.

See the narrative boundary description of the viticultural area in the regulatory text published at the end of this document.

The maps for determining the boundary of the viticultural area are listed below in the regulatory text.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. With the establishment of this viticultural area and its inclusion in part 9 of the TTB regulations, its name, “Happy Canyon of Santa Barbara,” is recognized under 27 CFR 4.39(i)(3) as a name of viticultural significance. The text of the new regulation clarifies this point.

Once this final rule becomes effective, wine bottlers using “Happy Canyon of Santa Barbara” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the viticultural area's full name as an appellation of origin.

For a wine to be labeled with a viticultural area name or with a brand name that includes a viticultural area name or other term identified as being viticulturally significant in part 9 of the TTB regulations, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name or other term, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with the viticultural area name or other viticulturally significant term and that name or term appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the viticultural area name or other viticulturally significant term appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Accordingly, if a previously approved label uses the name “Happy Canyon of Santa Barbara” for a wine that does not meet the 85 percent standard, the previously approved label will be subject to revocation, upon the effective date of the establishment of the Happy Canyon of Santa Barbara viticultural area.

Different rules apply if a wine has a brand name containing a viticultural area name or other term of viticultural significance that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

We certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name is the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

This rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

Brady Groscost of the Regulations and Rulings Division drafted this notice.

The Department of the Treasury published a notice of proposed rule on December 7, 2005 (Volume 70, No. 234), pages 72739-72740, exempting the new system of records from certain provisions of the Privacy Act of 1974, as amended. The IRS published the proposed system notice in its entirety on December 7, 2005 (Volume 70, Number 234), pages 72876-72878.

Under 5 U.S.C. 552a(k)(2), the head of an agency may promulgate rules to exempt any system of records within the agency from certain provisions of the Privacy Act if the system contains investigatory material compiled for law enforcement purposes. Treasury/IRS 52.222—Tax Exempt/Government Entities (TE/GE) Case Management Records contains investigatory material compiled for law enforcement purposes.

The proposed rule requested that public comments be sent the Office of Governmental Liaison and Disclosure, 1111 Constitution Avenue, NW., Washington, DC 20224, no later than January 6, 2006.

The IRS received one comment on the proposed rule and the system of records notice urging the IRS: (1) not to exempt the system of records from requirements that its information be relevant and necessary for its purpose; and, (2) to limit the scope of its exemptions from the Privacy act requirements to provide access and correction rights to individuals.

After consideration, the IRS determined that the public comment did not present any new information that would be a basis for changes being made to the proposed rule or system of records notice because: (1) Relevance and necessity can only be established with certainty after the information is evaluated; and, (2) the access provisions, as written, are consistent with the language and intent of the Privacy Act, comport with the Treasury regulation language for (k)(2), and explain that the release of information to the individual covered by the system would provide the individual or entity subject to investigation with significant information concerning the nature of the investigation and could result in altering or destruction of documentary evidence, the improper influencing of witnesses, and other activities that could impede or compromise the investigation. Accordingly, the Department of the Treasury is hereby giving notice that the system of records entitled “Treasury/IRS 50.222—Tax Exempt/Government Entities (TE/GE) Case Management Records” is exempt from certain provisions of the Privacy Act.

The provisions of the Privacy Act from which the system of records is exempt pursuant to 5 U.S.C. 552a(k)(2) are as follows: 552a(c)(3), (d)(1), (2), (3) and (4), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f) because the system contains investigatory material compiled for law enforcement purposes.

The following are the reasons why this system of records maintained by the IRS is exempt pursuant to 5 U.S.C. 552a(k)(2) of the Privacy Act of 1974.

(1) 5 U.S.C. 552a(c)(3). This provision of the Privacy Act provides for the release of the disclosure accounting required by 5 U.S.C. 552a(c)(1) and (2) to the individual named in the record at his/her request. The reasons for exempting this system of records from the foregoing provision are:

(i) The release of disclosure accounting would put the tax exempt or government entity subject to investigation or individuals connected with those entities on notice that an investigation exists and that such person is the subject of that investigation.

(ii) Such release would provide the subject of an investigation with an accurate accounting of the date, nature, and purpose of each disclosure and the name and address of the person or agency to which disclosure was made. The release of such information to the individual covered by the system would provide the individual or entity subject to investigation with significant information concerning the nature of the investigation and could result in the altering or destruction of documentary evidence, the improper influencing of witnesses, and other activities that could impede or compromise the investigation.

(iii) Release to the individual of the disclosure accounting would alert the individual as to which agencies were investigating the tax exempt government entity subject to investigation, would provide information concerning the scope of the investigation, and could aid the individual in impeding or compromising investigations by those agencies.

(2) 5 U.S.C. 552a(d)(1), (2), (3) and (4), (e)(4)(G), (e)(4)(H), and (f). These provisions of the Privacy Act relate to an individual's right to be notified of: The existence of records pertaining to such individual; Requirements for identifying an individual who requested access to records; the agency procedures relating to access to records; the content of the information contained in such records; and; the civil remedies available to the individual in the event of adverse determinations by an agency concerning access to or amendment of information contained in record systems.

The reasons for exempting this system of records from the foregoing provisions are as follows:

Notifying an individual (at the individual's request) of the existence of an investigative file pertaining to such individual or granting access to an investigative file pertaining to such individual could: Interfere with investigative and enforcement proceedings; deprive co-defendants of a right to a fair trial or an impartial adjudication; constitute an unwarranted invasion of the personal privacy of others; disclose the identity of confidential sources and reveal confidential information supplied by such sources; or, disclose investigative techniques and procedures.

(3) 5 U.S.C. 552a(e)(1). This provision of the Privacy Act requires each agency to maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order. The reasons for exempting this system of records from the foregoing are as follows:

(i) The IRS will limit the system to those records relevant and necessary for identifying, monitoring, and responding to complaints, allegations and other information received concerning violations or potential violations of Title 26. However, an exemption from the foregoing is needed because, particularly in the early stages of an investigation, it is not always possible to determine the relevance or necessity of specific information.

(ii) Relevance and necessity are questions of judgment and timing. What appears relevant and necessary when first received may subsequently be determined to be irrelevant or unnecessary. It is only after the information is evaluated that the relevance and necessity of such information can be established with certainty.

(4) 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act requires the publication of the categories of sources of records in each system of records. The reasons for exempting this system of records from the foregoing provision are as follows:

(i) Revealing categories of sources of information could disclose investigative techniques and procedures;

(ii) Revealing categories of sources of information could cause sources that supply information to investigators to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality.

As required by Executive Order 12866, it has been determined that this rule is not a significant regulatory action, and therefore, does not require a regulatory impact analysis.

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

Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, it is hereby certified that these regulations will not significantly affect a substantial number of small entities. The rule imposes no duties or obligations on small entities.

In accordance with the provisions of the Paperwork Reduction Act of 1995, the Department of the Treasury has determined that this rule would not impose new recordkeeping, application, reporting, or other types of information collection requirements.

The Coast Guard will enforce the special local regulation for the annual San Francisco Bay Navy Fleet Week Parade of Ships and Blue Angels Demonstration in 33 CFR 100.1105; the Navy Parade of Ships will be enforced from 10:30 a.m. to 1 p.m. on October 10, 2009; and the U.S. Navy Blue Angels Activities will be enforced from 12:30 p.m. to 5 p.m. on October 8, 2009 through October 12, 2009. If the U.S. Navy Blue Angels Activities are delayed by inclement weather, the regulation will also be enforced on October 12, 2009, from 12:30 p.m. to 5 p.m. These regulations can also be found in the October 1, 1993, issue of the Federal Register 58 FR 51242. Under the provisions of 33 CFR 100.1105 a vessel may not enter the regulated area, unless it receives permission from the COTP. Additionally, no person or vessel may enter or remain within 500 yards ahead of the lead Navy parade vessel, within 200 yards astern of the last parade vessel, and within 200 yards on either side of all parade vessels. No person or vessel shall anchor, block, loiter in, or impede the transit of ship parade participants or official patrol vessels. When hailed by U.S. Coast Guard patrol personnel by siren, radio, flashing light, or other means, a person or vessel shall come to an immediate stop. Persons or vessels shall comply with all directions given. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 100.1105 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with extensive advance notification of this enforcement period via the Local Notice to Mariners, and Broadcast Notice to Mariners.

On July 1, 2009, we published a direct final rule entitled “Anchorage Regulations; Port of New York” in the Federal Register (74 FR 31354). That direct final rule revised the southern boundary of Anchorage Ground No. 20-F such that it no longer interferes with the expanded Port Jersey Federal Channel, removing authorization for vessels to mistakenly anchor within a Federal Channel, and therefore removing this hazardous condition for vessels navigating in this area. Additionally, the direct final rule updated two geographic coordinates that make up the northern boundary. The physical location of these points is unchanged; however slight changes in the coordinates reflect the update to datum NAD 83.

In the direct final rule we notified the public of our intent to make the rule effective on September 29, 2009, unless an adverse comment, or notice of intent to submit an adverse comment, was received on or before August 31, 2009. We did not receive any comments or notices of intent to submit an adverse comment on that rule. Therefore, under 33 CFR 1.05-55(d), we now confirm that the “Anchorage Regulations; Port of New York” rule became effective, as scheduled, on September 29, 2009.

On May 26, 2009, we published a notice of proposed rulemaking (NPRM) entitled “Anchorages; New and Revised Anchorages in the Captain of the Port Portland, OR, Area of Responsibility” in the Federal Register (74 FR 24718). We received one comment on the proposed rule. There were no requests made for a public hearing regarding this rule and none was held. No other documents have been published for this rulemaking.

The establishment of a new anchorage, modification of existing anchorages, and revision of the regulations governing anchorages contained in this rule are necessary to ensure that there are sufficient anchorage opportunities in the Captain of the Port Portland, Oregon, area of responsibility, and ensure that the locations of those opportunities are clear. In addition, the changes will help prevent conflicts with navigable channels and other uses of anchorage waters. Currently, there are insufficient anchorage opportunities in the Captain of the Port Portland, Oregon, area of responsibility, and many of them conflict with navigable channels and other uses of the anchorage waters.

The one comment made about this proposed rule explained that the changes being made are the result of a collaborative effort of the members of the Lower Columbia Region Harbor Safety Committee and that the Columbia River Bar Pilots fully support the rule as written. No changes were made as a result of this comment.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The establishment of a new anchorage, modification of existing anchorages, and revision of the regulations governing anchorages do not have any significant costs associated with them.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the Captain of the Port Portland, Oregon, area of responsibility. However, the establishment of a new anchorage, modification of existing anchorages, and revision of the regulations governing anchorages that result from this rule will have no economic impact on small entities because anchorages can still be transited and used for other maritime activities besides anchoring.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(f), of the Instruction. This rule involves the establishment of a new anchorage, modification of existing anchorages, and revision of regulations governing anchorages in the Captain of the Port Portland, Oregon, area of responsibility, which are categorically excluded under section 2.B.2 Figure 2-1, paragraph 34(f), of the Instruction. An environmental analysis checklist and categorical exclusion determination are available in the docket where indicated under ADDRESSES .

The SIP is a living document which the State revises 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 to make them part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally approved SIPs, as a result of consultations between EPA and the Office of Federal Register. The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

On June 29, 1999, EPA published a document in the Federal Register (64 FR 34717) beginning the new IBR procedure for Missouri. On May 24, 2004 (69 FR 29435), EPA published an update to the IBR material for Missouri.

In this document, EPA is doing the following:

1. Announcing the update to the IBR material as of August 1, 2009.

2. Correcting the date format in the “State effective date” or “State Submittal date” and “EPA approval date” columns in § 52.820 paragraphs (c), (d) and (e). Dates are numerical month/day/year without additional zeros.

3. Modifying the Federal Register citation in § 52.1320 paragraphs (c), (d) and (e) to reflect the beginning page of the preamble as opposed to the page number of the regulatory text.

4. Removing the first entry for 10-5.220 in § 52.1320 paragraph (c) under Chapter 5.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “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 rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. 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. Immediate notice in the CFR benefits the public by providing notice of the updated Missouri SIP compilation.

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

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

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

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

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

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

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

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

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

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

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

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

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. This action is simply an announcement of prior rulemakings that have previously undergone notice and comment. Prior EPA rulemaking actions for each individual component of the Missouri SIP compilation 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.

Throughout this rulemaking action, whenever “we,” “us,” or “our” is used, we are referring to EPA. The following outline is provided to aid in locating information in this preamble.

EPA is approving a formal revision to the Delaware State Implementation Plan submitted by the state on August 12, 2005. This SIP revision consists of a regulation (formerly titled Regulation No. 45) that restricts extended idling of most on-road heavy-duty vehicles (those having a gross vehicle weight rating (GVWR) of greater than 8,500 pounds) while operating in the State of Delaware. The regulation sets a time limit of three consecutive minutes of idling time ( i.e., when a vehicle's engine is on, but it is not in motion). Section 5 of Delaware's Regulation No. 45 specifies exemptions to the idling limit for certain vehicle types and situations. These exemptions include: temperature-based exceptions for cold or hot days; vehicles idling for use of a sleeper berth, where the vehicle is not within 25 miles of a parking facility with available truckstop electrification equipment; vehicles which are stuck in traffic; vehicles being brought to manufacturer's recommended operating temperature; vehicles using auxiliary equipment powered by the engine ( e.g., take-off power); emergency vehicles; tactical military vehicles in training operations; school and transit buses with passengers onboard (or within five minutes of passenger boarding); and situations where a vehicle is being repaired or is being tested to ensure safe operation.

Per section 1 of Delaware's rule, this rule applies to “all on-road heavy-duty motor vehicles with a GVWR of greater than 8,500 pounds operating in the State of Delaware.” Section 6 of Regulation No. 45 indicates that this regulation is enforceable under Title 7 Chapter 60 §§ 6005 and 6013 of the Delaware Code, with violators subject to a penalty of not less than $60 and no more than $500 for each offense.

On June 15, 2009, Delaware submitted a SIP revision which recodifies and makes general administrative changes to the regulatory language of its approved or submitted SIP rules. This recodification SIP revision does not change the substance of the August 2005 SIP revision, but does affect the numbering and format of the state regulation contained in the August 2005 SIP revision. EPA will take separate action on this renumbered version, Regulation No. 1145, in a separate rulemaking action along with a larger Delaware recodification SIP action.

EPA is approving, via direct final rulemaking action, Delaware's Regulation No. 45, entitled “Excessive Idling of Heavy Duty Vehicles,” and is incorporating this rule into the Delaware SIP.

Delaware Regulation No. 45 results in reduced emissions of pollutants that contribute to nonattainment of National Ambient Air Quality Standards for ozone and fine particulate matter. Specifically Regulation 45 leads to elimination of such pollutants resulting from unnecessary extended idling of heavy-duty vehicles. The pollutants reduced by this regulation are volatile organic compounds and nitrogen oxides, both of which are ground level ozone pollution precursors. Delaware's rule will also reduce emissions of carbon monoxide, fine particulate matter, and the greenhouse gas carbon dioxide.

The approval of Delaware's Regulation No. 45 will strengthen the Delaware SIP and assist the state in meeting and maintaining compliance with air quality standards, including the national ambient air quality standards for ground level ozone and fine particulate matter.

Delaware's Regulation No. 45 is generally consistent with EPA's “Model State Idling Law” (EPA420-S-06-001, April 2006). This model rule was developed with input from the states and affected industry to address extended idling issues in a consistent manner from state to state and to aid those being regulated in compliance with compliance with idling limits. Although Delaware's excessive idling regulation was adopted in 2005, prior to EPA's issuance of its model state idling rule, Delaware captured the major elements of the EPA model rule in its regulation.

EPA is approving Delaware's Air Quality Management Regulation No. 45, entitled “Excessive Idling of Heavy Duty Vehicles,” and incorporating this rule into the Delaware SIP. The rule is intended to reduce unnecessary idling from heavy duty motor vehicle engines within the boundaries of the state of Delaware.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. Similar provisions for reduced idling have been adopted in other states, and Delaware's regulation has been in place since 2005. Further, Delaware's Regulation No. 45 follows the spirit of EPA's model state idling rule, so we anticipate the regulated parties will understand Delaware's requirements as they relate to other nearby states and localities with similar excessive idling limits. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 7, 2009 without further notice unless EPA receives adverse comment by November 9, 2009. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 7, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action to approve Delaware's SIP revision to reduce unnecessary idling of heavy-duty vehicles may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document, “we,” “us” and “our” refer to EPA.

The Clean Air Act (CAA or “Act”) was first enacted in 1970. In the 1970's and early 1980s, thousands of state and local agency regulations were submitted to EPA for incorporation into state implementation plans (SIPs) in order to fulfill the new federal requirements. In many cases, states submitted entire regulatory air pollution programs, including many elements not required by the Act. Due to time and resource constraints, EPA's review of these submittals focused primarily on the new substantive requirements, and we approved many other elements into the SIP with minimal review.

We now recognize that many of these elements were not appropriate for approval into the SIPs because they are not required for SIPs and are not related to the SIPs' purpose under CAA section 110(a) of implementing, maintaining, and enforcing the national ambient air quality standards. Examples of inappropriately-approved SIP elements include statutes and rules that consist of general statements of policy; that govern local advisory boards; that specify incidental fees, method of payment, and refunds; and that regulate nuisance odors. Most of the statutes and rules we are deleting in today's action fall under one of these categories.

In addition, we are deleting certain variance-related provisions that were orphaned by a previous EPA rulemaking deleting most such provisions from the Nevada Division of Environmental Protection (NDEP) portion of the Nevada SIP and the Pima County portion of the Arizona SIP. See EPA's proposed rule at 61 FR 38664 (July 25, 1996) and final rule at 62 FR 34641 (June 27, 1997) for the rationale concerning the inappropriateness of variance provisions in a SIP. As explained EPA 1996 rule proposing to remove various variance-related provisions, variance provisions are generally prohibited by, and are not legally enforceable pursuant to, section 110(i) of the Act.

EPA has determined that the statutes and rules listed in the tables below were inappropriate for inclusion in the SIP, but were previously approved into the SIP in error. Dates that these statutes and rules were submitted by Arizona and Nevada and approved by EPA are provided. We are deleting these statutes and rules from the Arizona and Nevada SIPs under CAA section 110(k)(6)  1 as inconsistent with the requirements of CAA section 110(a).

We are also taking this opportunity to correct certain clerical and typographical errors in a certain paragraph from the Arizona subpart of part 52 (“Approval and promulgation of implementation plans”) listing approved rules from the Pima County Health Department as submitted by Arizona on October 9, 1979, and approved by EPA on April 18, 1982 (47 FR 16326). The subject paragraph is 40 CFR 52.120(c)(38)(i)(A). In our 1982 final rule approving certain Pima County rules, we inadvertently identified the rules approved under “Regulation 21” as “Rules 221-225.” The correct listing for the approved rules under “Regulation 21” is “Rules 211-215.”

In addition, as noted in an EPA final rule published at 69 FR 2509 (January 16, 2004), beginning with the 1993 version of the Code of Federal Regulations (CFR), the Government Printing Office (GPO) inadvertently omitted two lines of codified rules from 40 CFR 52.120(c)(38)(i)(A), the same paragraph listing the Pima County rules approved by us in 1982. Our 2004 correcting amendment replaced most of the Pima County rules inadvertently omitted by the GPO but inadvertently failed to include “Regulation 21, Rules 221-225,” which, as noted above, should read: “Regulation 21: Rules 211-215.”

In addition, beginning with the 2004 version of the CFR, the paragraph (that omitted certain Pima County rules) that was intended to be replaced in its entirety through our 2004 correcting amendment has been published in addition to the replacement paragraph. In this action, we are correcting all of these errors with a revision to 40 CFR 52.120(c)(38)(i)(A) that correctly lists the rules approved under “Regulation 21” and that deletes the paragraph that we intended to replace in 2004.

EPA has reviewed the statutes and rules listed in the tables above and determined that they were previously approved into the respective SIPs in error. Deletion of these rules will not relax the applicable SIP and is consistent with the Act. Therefore, EPA is deleting these statutes and rules under section 110(k)(6) of the Act, which provides EPA authority to remove these statutes and rules without additional State submission.

We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same action. If we receive adverse comments by November 9, 2009, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 7, 2009.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 7, 2009. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (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.

The 2009 yellowfin sole TAC assigned to the Bering Sea and Aleutian Islands trawl limited access sector is 39,154 metric tons (mt) and to the Amendment 80 cooperative is 87,987 mt in the BSAI as established by the final 2009 and 2010 harvest specifications for groundfish in the BSAI (74 FR 7359, February 17, 2009).

The Administrator, Alaska Region, NMFS, has determined that 6,000 mt of the yellowfin sole TAC assigned to the BSAI trawl limited access sector will not be harvested. Therefore, in accordance with § 679.91(f), NMFS reallocates 6,000 mt of yellowfin sole from the BSAI trawl limited access sector to the Amendment 80 cooperative in the BSAI. In accordance with § 679.91(f), NMFS will reissue cooperative quota permits for the reallocated yellowfin sole following the procedures set forth in § 679.91(f)(3).

The harvest specifications for yellowfin sole included in the harvest specifications for groundfish in the BSAI (74 FR 7359, February 17, 2009) are corrected as follows: 33,154 mt to the BSAI trawl limited access sector and 93,987 mt to the Amendment 80 cooperative in the BSAI. Table 7a is corrected as set forth below:

This will enhance the socioeconomic well-being of harvesters dependent upon yellowfin sole in this area. The Regional Administrator considered the following factors in reaching this decision: (1) The current catch of yellowfin sole by the BSAI trawl limited access sector and, (2) the harvest capacity and stated intent on future harvesting patterns of the Amendment 80 cooperative that participates in this BSAI fishery.

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 reallocation of yellowfin sole from the BSAI trawl limited access sector to the Amendment 80 cooperative in the BSAI. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 1, 2009.

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 § 679.91 and is exempt from review under Executive Order 12866.