On November 25, 2002, the President signed into law the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (HSA). As a result, on March 1, 2003, the former Immigration and Nationalization Service (INS) of the Department of Justice and the former U.S. Customs Service of the Department of the Treasury were transferred to the Department of Homeland Security (DHS) and reorganized to become the U.S. Citizenship and Immigration Services (USCIS), the Bureau of Immigration and Customs Enforcement (ICE), and the Bureau of Customs and Border Protection (CBP). 1

After passage of the HSA, both CBP and ICE retained authority to perform asset seizures and forfeitures under the provisions of 8 CFR part 274 and 19 CFR parts 162 and 171. For the purpose of improved efficiency, DHS consolidated the processing of asset forfeitures into CBP's operations. The regulations in titles 8 and 19, however, provided two different procedures. Pursuant to the provisions of section 618 of the Tariff Act of 1930, as amended (19 U.S.C. 1618), petitions for remission of forfeitures were accepted by CBP prior to initiation of any administrative or judicial forfeiture process. In contrast, the regulations adopted under section 274(b) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1324(b) (INA)), provided that the remission or mitigation of such forfeitures could occur only after completion of the forfeiture process despite the fact that this restriction was not imposed by statute.

On February 19, 2008, DHS issued an interim final rule amending DHS regulations to consolidate the procedures for processing administrative seizures and forfeitures and to make technical and conforming changes to the regulations. The interim final rule was published in the Federal Register at 73 FR 9010. Specifically, the interim final rule revised the text of 8 CFR 274.1 to provide that all seizures and forfeitures will be administered in accordance with 19 CFR parts 162 and 171. As a result, the procedures previously used for immigration-related forfeitures were eliminated and all asset forfeiture proceedings are now conducted under a consolidated procedure. The change permits CBP to entertain petitions for remission and return of seized property prior to completing the forfeiture process, regardless of whether the seizure was made under customs or immigration laws, and regardless of whether it was made by CBP or ICE. Additionally, the interim final rule revised the text of 8 CFR 274.2 to provide the Chief, Office of Border Patrol or his designees, with the same powers that are provided to Fines, Penalties and Forfeitures Officers in 19 CFR parts 162 and 171, for purposes of administering seizures and forfeitures made by Border Patrol Officers.

The interim final rule also amended the text of 19 CFR sections 162.21, 162.91, and 162.92 by replacing outdated references to Customs, the Customs Service, or legacy Customs officials with updated references to CBP, ICE, or the appropriate CBP or ICE officials. Additionally, the reference to section 460 of the Tariff Act of 1930, as amended (19 U.S.C. 1460) was removed from 19 CFR 162.22 (d) because it had been repealed by Public Law 99-570, title III, section 3115(b), Oct. 27, 1986, 100 Stat. 3207-82 and the paragraphs of section 162.22 were redesignated accordingly.

The interim final rule requested public comments. The prescribed comment period closed on April 21, 2008. Only one comment was received and its contents were beyond the scope of the interim final rule.

Accordingly, this rule adopts as a final rule, without change, the interim final rule published on February 19, 2008.

This rule is procedural in nature and does not alter the substantive rights of the affected parties. Therefore, this rule is exempt from the public notice and comment requirements pursuant to 5 U.S.C. 553(b)(A). In addition, since this final rule adopts without change an interim final rule, which has been in effect since February 19, 2008, the delayed effective date requirement under 5 U.S.C. 553(d) is unnecessary and does not apply.

This rule is not a significant regulatory action under Executive Order 12866.

Because a notice of proposed rulemaking was not required for this rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

DHS has determined that the collection of information required by this rule falls under the “administrative exception” to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The “administrative exception,” applies because any such collection is made during the conduct of administrative action taken by an agency against specific individuals or entities. 5 CFR 1320.4(a)(2).

The authority to prescribe regulations to administer and enforce the immigration laws was transferred by the Homeland Security Act to the Secretary of Homeland Security. The signing authority for these amendments, therefore, falls under 8 CFR 2.1.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on November 5, 2009 (74 FR 57271), and proposed to supersede AD 2009-06-17, Amendment 39-15854 (74 FR 13086, March 26, 2009). That NPRM proposed to correct an unsafe condition for the specified products.

Since we issued AD 2009-06-17, we have been advised that additional air-driven generators may have been installed between the effective date of Canadian Airworthiness Directive CF-2008-09, and the effective date of the equivalent FAA AD 2009-06-17. Therefore, we have determined that the actions specified in paragraph (f)(1) of AD 2009-06-17 also must be done on airplanes having serial numbers 8084 through 8102.

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

The Air Line Pilots Association, International supports the intent of the NPRM.

Air Wisconsin Airlines Corporation (Air Wisconsin) suggests that we revise the applicability statement of the NPRM to refer to the specific serial numbers of the air-driven generators (ADGs) as installed on Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes; certificated in any category. Air Wisconsin states that the FAA said in AD 2008-01-04, Amendment 39-15329 (73 FR 1964, January 11, 2008), that parts on the shelf pose no safety concern.

From these statements, we infer that Air Wisconsin requests that we change the applicability statement of the NPRM to refer to the ADG part numbers instead of the airplane model. We disagree. When an unsafe condition results from the installation of a particular component in only one particular make and model of airplane, we apply the AD to the airplane model, not the component. Thus, operators of those airplanes will be notified directly of the unsafe condition and the action required to correct it. Specifying the airplane models in the applicability of the AD will ensure affected operators are aware of their need to comply with the AD. We have not changed the AD in this regard.

Air Wisconsin requests that we rescind the NPRM for several reasons. Air Wisconsin states the unsafe condition has already been mitigated through AD 2009-06-17, Amendment 39-15854 (74 FR 13086, March 26, 2009), which this final rule supersedes. Air Wisconsin also notes that all the referenced data in the NPRM is the same as in AD 2009-06-17. Air Wisconsin points out that the airplanes referred to in paragraphs (f)(1)(i), (f)(1)(ii), (f)(1)(ii)(B), (f)(3), (g)(1)(i), (g)(1)(ii), (g)(1)(ii)(B), and (g)(2) of the NPRM do not indicate or reference the proposed airplane change. Therefore, Air Wisconsin argues, the NPRM does not apply to these airplanes. Finally, Air Wisconsin states that paragraph (f)(2) of AD 2009-06-17 and paragraph “B.” of Canadian Airworthiness Directive CF-2008-09, dated February 5, 2008, prohibit the installation of ADGs identified in Table 1 of the AD unless it is identified with the symbol “24-2.”

We disagree with the request to withdraw the NPRM. AD 2009-06-17 applies to Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes; certificated in any category; having serial numbers 7305 through 7990, and 8000 and subsequent. The inspection requirement in that AD applied to airplanes having serial numbers 7305 through 7990 inclusive, and 8000 through 8083 inclusive. We are now superseding AD 2009-06-17 to expand the inspection requirement and to include airplanes having serial numbers 8084 through 8102 inclusive. Because we have expanded the applicability, we are superseding AD 2009-06-17 to address the unsafe condition on those additional airplanes, even though the technical data remains the same. Additionally, the requirements in the previous AD do not address units that were installed on airplanes before April 30, 2009 (the effective date of AD 2009-06-17). We have not changed the AD in regard to this issue.

We have revised the NPRM to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

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

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

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

Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.

We estimate that this AD will affect about 686 products of U.S. registry.

The actions that are required by AD 2009-06-17 and retained in this AD take about 5 work-hours per product, at an average labor rate of $85 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $291,550, or $425 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

Background

On May 28, 2010, the FAA published a final rule entitled, “Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service” (75 FR 30160).

There are three footnotes in the preamble for the final rule that refer the reader to the docket to find information on the analyses and evaluations performed by the Separation Standards Working Group. The FAA is revising two of those footnotes (footnotes 23 and 33) to clarify that the cited material is contained in Annexes B and G of RTCA DO-318 Safety, Performance and Interoperability Requirements Document for Enhanced Air Traffic in Radar-Controlled Areas Using ADS-B Surveillance (ADS-B RAD). A copy of those two annexes is in the docket. The third footnote (footnote 54) cites a SBS Working Group Report, dated November 30, 2006. This footnote should reference instead Annexes B and G of RTCA DO-318.

In addition, both the preamble discussion and the regulatory text of §§ 91.225 and 91.227 address equipment with an approved deviation under § 21.618. By separate rulemaking entitled “Production and Airworthiness Approval, Part Marking, and Miscellaneous Amendments,” published October 16, 2009 (74 FR 53368), the FAA revised part 21 subpart O, and § 21.609 Approval for deviation was renumbered as § 21.618, effective April 14, 2010. The FAA later published a correction to that rule on March 1, 2010 (75 FR 9095) changing the effective date for the revision of subpart O to April 16, 2011. In the ADS-B final rule, therefore, the FAA is changing the references from § 21.618 to § 21.609 to reflect the correct section number. The FAA also is issuing a separate technical amendment elsewhere in this issue of the Federal Register to change the reference from § 21.609 to § 21.618, effective April 16, 2011.

In final rule FR Doc. 2010-12645, beginning on page 30160, in the Federal Register of May 28, 2010, make the following corrections:

1. On page 30164, in the second column, in fourth line, revise “§ 21.618” to read “§ 21.609.”

2. On page 30166, in the second column, revise footnote 23 to read as follows:

3. On page 30169, in the third column, revise footnote 33 to read as follows:

4. On page 30179, in the third column, revise footnote 54 to read as follows:

Background

On October 16, 2009, the FAA published a separate rulemaking entitled “Production and Airworthiness Approval, Part Marking, and Miscellaneous Amendments” (74 FR 53368) in which the FAA revised part 21 subpart O. As part of that revision, current § 21.609 Approval for deviation was renumbered as § 21.618, effective April 14, 2010.

On May 28, 2010, the FAA published a final rule entitled, “Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service” (75 FR 30160). In that final rule, the FAA referenced § 21.618 Approval for deviation in both the preamble and the regulatory text of §§ 91.225 and 91.227. The FAA later published a correction to the October 16, 2009, part 21 rule on March 1, 2010 (75 FR 9095) changing the effective date for the revision of subpart O to April 16, 2011. The FAA inadvertently did not reflect the section is currently numbered § 21.609 and explain that it would become § 21.618 on April 16, 2011.

By a correction document published elsewhere in this issue of the Federal Register, the FAA is correcting the cross reference to read “§ 21.609” in the May 28, 2010, ADS-B final rule.

This technical amendment amends §§ 91.225 and 91.227 to revise the cross references to § 21.609 to read § 21.618 effective April 16, 2011.

As discussed above, this action makes the appropriate amendatory change to revise cross references to § 21.609 to read “§ 21.618” in §§ 91.225 and 91.227. This amendment will not impose any additional restrictions on operators affected by these regulations.

On April 16, 2011, the effective date of this technical amendment, the cross reference appearing on page 30164 in the preamble of the May 28, 2010, final rule, which now reads “§ 21.618” and is being corrected to read “§ 21.609” elsewhere in this issue of the Federal Register, will revert to reading “§ 21.618.”

I. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials on this rule and on the environmental effects of this rule on the Gulf of Mexico and on the areas from which response resources could be deployed. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket numbers for this rulemaking (USCG-2010-0592; EPA-HQ-OPA-2010-0559), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov , it will be considered received by the Coast Guard and EPA when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered received by the Coast Guard and EPA when it is received at either the Docket Management Facility or the EPA Docket Center. We recommend that you include your name and mailing address, e-mail address, or telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov , click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2010-0592” or “EPA-HQ-OPA-2010-0559” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change this rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov , click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2010- 0592” or “EPA-HQ-OPA-2010-0559” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit: the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays (the Coast Guard has an agreement with the Department of Transportation to use the Docket Management Facility); or the EPA Docket Center Public Reading Room in Room 3334 of the EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20460, between 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.

Anyone can search the electronic form of comments received into any of the dockets in http://www.regulations.gov by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding Coast Guard public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

The Coast Guard and the Environmental Protection Agency (EPA) are issuing this temporary interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard and EPA find that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to public interest to do so for the reasons set forth in the following paragraphs.

This temporary interim rule is part of the response to the explosion and sinking of the Mobile Offshore Drilling Unit “Deepwater Horizon” on April 20, 2010, causing an unprecedented crude oil discharge, which is a Spill of National Significance (SONS). Large quantities of oil continue to discharge into the waters of the Gulf of Mexico. Also recently, the Federal On-Scene Coordinator (FOSC) for the Deepwater Horizon SONS determined, after working with the appropriate Federal agencies, that an adequate number of available U.S. oil spill response vessels capable of skimming oil cannot be employed in a timely manner to recover the oil released from the Deepwater Horizon SONS. (Memorandum from Rear Admiral J.A. Watson, FOSC BP Deepwater Horizon Oil Spill, to National Incident Command (June 16, 2010), available in the docket).

This temporary interim rule provides, in light of these exigent circumstances, oil spill removal organizations (OSROs) and facilities and vessels with their own response resources that are deploying response resources in support of the response to the Deepwater Horizon SONS, with the opportunity to relocate additional response resources from their current locations to the Gulf of Mexico region to aid in the response to the Deepwater Horizon SONS.

This rule also confirms that the FOSC for the Deepwater Horizon SONS has requested that the Armed Forces relocate response resources, in particular those of the Navy, from their current locations within the continental United States to the Gulf of Mexico to aid in the response to the Deepwater Horizon SONS. This temporary rule is necessary to immediately relieve facilities and vessels from current regulatory requirements that would hinder OSROs, and facilities and vessels with response resources, in their opportunity to participate in the Deepwater Horizon SONS response.

This rule is also necessary to facilitate any incorporation of Armed Forces response resources into cascade plans with private facilities and OSROs. A cascade plan contains a strategy to maximize arrival times and the availability of response resources for plan holders when identified response resources are being used to respond to another facility's or vessel's incident. OSRO's often contract their response resources to multiple facilities and vessels given the unlikelihood of the need to respond to simultaneous incidents among their clients. To account for the unlikely event of simultaneous incidents, OSROs utilize cascade plans to ensure each of their clients will have the necessary response resources and meet Coast Guard and EPA regulatory response time requirements, and EPA response equipment identification and location requirements. This strategy may include the identification of secondary resources, or backfilling resources that can be accessed through cooperative agreements as needed (cascading resources), through increased partnerships and the increased pooling of resources among several OSROs and other stakeholders.

Publishing an NPRM is impractical because of the ongoing environmental and public health emergency created by the unprecedented release of oil from the Deepwater Horizon SONS, and the environmental damage which would occur during any delay in making this rule effective, including any time devoted to any comment period. In addition, publishing an NPRM is contrary to the public interest of addressing the ongoing environmental and public health emergency and minimizing environmental damage as quickly as possible in response to this situation.

Under 5 U.S.C. 553(d)(3), the Coast Guard and EPA find that good cause exists for making this rule effective fewer than 30 days after publication in the Federal Register for the same reasons discussed in the paragraphs above.

The Coast Guard and EPA request comments on this temporary interim rule, and will consider all material received as well as any evidence obtained from the field in order to determine whether any changes to this rule are necessary. The Coast Guard and EPA will perform the first such consideration of all material and evidence at the close of the comment period, and will then consider any new or additional material and evidence every 30 days thereafter.

The Coast Guard and EPA have coordinated on this emergency temporary interim rule because many oil spill response plans address both Coast Guard and EPA oil spill response requirements. Similarly, many regulated entities utilize the same oil spill response assets for oil spill response plans to comply with Coast Guard and EPA oil spill response requirements. Additionally, States are authorized by Federal law to establish oil spill response standards more stringent than the Coast Guard and EPA. The Coast Guard and EPA, based on their roles and responsibilities under 40 CFR 300.175, will coordinate and consult with Regional Response Teams and Area Committees, which include State representatives, regarding the need to suspend Coast Guard and EPA response time requirements, and EPA response equipment identification and location requirements, as discussed below.

A major feature of the National Response System under the Federal Water Pollution Control Act (FWPCA) (codified at 33 U.S.C. 1251 et seq. ) is the requirement that owners and operators of facilities and vessels have approved response plans that identify and ensure the availability of personnel and equipment, by contract or other approved means, to remove to the maximum extent practicable a worst case discharge or to mitigate or prevent a substantial threat of such a discharge. Coast Guard implementing regulations establish three levels of specific response resources and response times for: (1) A worst case discharge (USCG-regulated facilities and vessels WCD), (2) a maximum most probable discharge (MMPD), and (3) an average most probable discharge (AMPD). See 33 CFR parts 154 and 155. EPA implementing regulations under the FWPCA provide for oil spill responses at similar levels: (1) A worst case discharge to the maximum extent practicable (EPA-regulated facilities WCD), (2) discharges greater than 2,100 gallons and less than or equal to 36,000 gallons or 10 percent of the capacity of the largest tank at the facility, whichever is less, provided that this amount is less than the worst case discharge (Medium Discharge), and (3) a discharge of 2,100 gallons or less, provided that this amount is less than the worst case discharge amount (Small Discharge). See 40 CFR part 112, subpart D.

Currently, there is an urgent need to maximize the availability of oil spill response assets in the U.S. for use in responding to the unprecedented and ongoing Deepwater Horizon SONS. Those assets are needed in the Gulf region for the response to the Deepwater Horizon SONS. Therefore, the Coast Guard is temporarily releasing facilities and vessels subject to 33 CFR parts 154 and 155, and the EPA is temporarily releasing facilities subject to 40 CFR part 112, subpart D, who own or have under contract response resources deployed in support of the response to the Deepwater Horizon SONS from Coast Guard and EPA regulatory response time requirements, and EPA equipment identification and location requirements, that would otherwise preclude them from relocating owned response resources or releasing contracted response resources to be moved to the Gulf region.

Some facilities and vessels subject to 33 CFR parts 154 and 155, and some facilities subject to 40 CFR part 112, subpart D, contract with OSROs for the availability of oil spill response resources to comply with Coast Guard and EPA regulatory requirements. These contractual obligations keep OSROs from making their response resources available for the response to the Deepwater Horizon SONS. Other such facilities and vessels have their own response resources to comply with these regulatory requirements, and these requirements make the facilities and vessels unable to make their response resources available for the response to the SONS. The Coast Guard and EPA are encouraging an increase in available response resources for the response to the SONS by temporarily releasing these facilities and vessels from the Coast Guard and EPA regulatory response time requirements, and EPA response equipment identification and location requirements, if and only if they have had their own or contracted response resources relocated to the Gulf of Mexico in support of the response to the Deepwater Horizon SONS.

Section 1321(j)(5)(D)(iii) of 33 U.S.C. requires the identification and the availability of private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge, and to mitigate or prevent a substantial threat of such a discharge. Existing facility and vessel response plans must adequately plan for a worst case discharge to comply with section 1321(j)(5)(D)(iii), as well as additional regulatory requirements under 33 CFR parts 154 and 155 and/or 40 CFR part 112, subpart D. Those regulatory requirements include response times for response resources to respond to incidents of varying degree. Response plans remain in effect as statutorily required by section 1321(j)(5)(D)(iii). The Coast Guard is temporarily suspending only the regulatory response time for those assets to respond to a USCG-regulated facilities and vessels WCD or a MMPD under the facility or vessel response plan, and the EPA is temporarily suspending only the regulatory response time requirements, and response equipment identification and location requirements, for those assets to respond to an EPA-regulated facilities WCD or Medium Discharge under the facility response plan, because of the unique challenges posed by the Deepwater Horizon spill.

Section 1321(j)(5)(D)(iii) also requires that these response resources be ensured “by contract or other means.” Because contractual agreements between facility and vessel owners and OSROs are not the only way to satisfy the requirements of section 1321(j)(5)(D)(iii), the Coast Guard and EPA are encouraging facilities and vessels to release OSROs under such contractual obligations to provide response resources within specified response times above the AMPD level and/or the Small Discharge level when those OSROs' response resources are deployed in response to the Deepwater Horizon SONS, and instead to prepare for USCG-regulated facilities and vessels WCDs and MMPDs and/or EPA-regulated facilities WCDs and Medium Discharges through “other means,” including cascade planning. The unique challenges posed by the Deepwater Horizon spill make “other means” more appropriate to ensure such capability while providing urgently needed response resources in the Gulf of Mexico.

Additionally, the Coast Guard and EPA believe this rule meets the intent of 33 U.S.C. 1321 (j)(5)(A) both in terms of dealing, to the maximum extent practicable, with the catastrophic emergency presented by the Deepwater Horizon SONS, and in terms of meeting, to the maximum extent practicable, the potential worst case discharge in all other locations. Response resources located outside the Gulf of Mexico region are urgently needed in the Gulf region to assist in the Deepwater Horizon SONS response. The urgent need to use these assets in response to the Deepwater Horizon SONS affects what is the “maximum extent practicable.”

The phrase “maximum extent practicable” is not defined in the FWPCA. The phrase, however, is defined in Coast Guard regulations for use in 33 CFR parts 154 and 155 to mean “the planned capability to respond to a worst case discharge in adverse weather, as contained in a response plan that meets the criteria [in Coast Guard regulations addressing oil spill response plans for facilities and vessels] or in a specific plan approved by the cognizant COTP.” See 33 CFR 154.1020. This rule temporarily suspends the response time requirements for 33 CFR parts 154 and 155, which in effect amends the regulatory definition of “maximum extent practicable” to exclude response time requirements for MMPD and USCG-regulated facilities and vessels WCD. The phrase is defined in EPA regulations for use in 40 CFR part 112 to mean “within the limitations used to determine oil spill planning resources and response times for on-water recovery, shoreline protection, and cleanup for worst case discharges from onshore non-transportation-related facilities in adverse weather. It includes the planned capability to respond to a worst case discharge in adverse weather, as contained in a response plan that meets the requirements in § 112.20 or in a specific plan approved by the Regional Administrator.” See 40 CFR 112.2. This rule temporarily suspends the response time requirements, and response equipment identification and location requirements, for 40 CFR part 112, which in effect amends the regulatory definition of “maximum extent practicable” to exclude response time requirements for Medium Discharges and EPA-regulated facilities WCD.

Therefore, from June 30, 2010 through December 31, 2010 (or such other date as may be established by publication in the Federal Register after the effective date of this rule):

• Oil spill and facility response plan holders need not require response times for MMPD and USCG-regulated facilities and vessels WCD levels, and need not require response time requirements and response equipment identification and location requirements for Medium Discharge and EPA-regulated facilities WCD levels when their existing plans and contracts for response resources will be impacted due to providing response resources in support of the Deepwater Horizon SONS so that meeting those response requirements is impossible. The Coast Guard and EPA will allow greater use of cascade plans which, in combination, will protect ports and coastlines to the MMPD and USCG-regulated facilities and vessels WCD levels and to Medium Discharge and EPA-regulated facilities WCD levels; and

• Owners of facilities and vessels with contracts with OSROs are encouraged to relieve those OSROs of their responsibility to respond to MMPD and USCG-regulated facilities and vessels WCD levels and to Medium Discharge and EPA-regulated facilities WCD levels within the required response times under such contracts when those OSROs' response resources are deployed in response to the Deepwater Horizon SONS.

The Coast Guard and EPA response time requirements, and EPA identification and location requirements, for response resources for an AMPD and/or Small Discharge, as applicable, remain in effect, except for installations of the Armed Forces that relocate spill response assets to the Gulf of Mexico in response to the FOSC's request for assets. Those installations are authorized to drop below the Coast Guard and EPA response time requirements, and EPA response equipment identification and location requirements, for response resources for an AMPD and/or a Small Discharge, as applicable.

The intent of this rule is to make available more response resources for use in responding to the Deepwater Horizon SONS. When the FOSC makes a request for response resources, the FOSC will coordinate with the cognizant Captains of the Port (COTPs), Regional Response Teams, Area Committees, EPA and the National Incident Commander in order to consider the relative environmental and other risks and impacts of requesting and accepting offers for specific response resources from locations outside the Gulf of Mexico.

This action is supported by 33 U.S.C. 1321(c) and (j), and is promulgated under 33 U.S.C. 1321(j)(5)(A).

This rule adds to Coast Guard regulations a temporary, new § 154.T150 to 33 CFR part 154, and a temporary, new § 155.T150 to 33 CFR part 155. Paragraph (a) of the temporary sections sets forth applicability of each section. These sections only apply to facilities and vessels that have contracted response resources, or their own response resources, that are deployed to participate in the Deepwater Horizon SONS response.

Paragraph (b) of the temporary sections suspend the regulatory response time requirements for (1) MMPD and (2) USCG-regulated facilities and vessels WCD. Paragraph (b) suspends these requirements only from June 30, 2010 through December 31, 2010. Except as described in paragraph (d), paragraph (c) of the temporary sections makes clear that the response time requirements for AMPD remain in effect for all facilities and vessels regulated by 33 CFR Parts 154 and 155.

In addition to OSROs and facilities and vessels regulated by 33 CFR parts 154 and 155, Armed Forces installations have response resources that are needed to respond to the Deepwater Horizon SONS. Paragraph (d) of § 154.T150 confirms that the FOSC has requested that the Armed Forces relocate response assets to support the SONS response, and authorizes Armed Forces installations responding to such a FOSC request to revise their response times below what is necessary for an AMPD in order to make the urgently needed response resources of Armed Forces installations available for deployment in support of the SONS response.

Armed Forces installations are more able than private facilities and vessels to mitigate their own risk of delayed response times and take advantage of any cascade planning, if they relocate response resources to assist in the response to the Deepwater Horizon SONS. The National Contingency Plan at 40 CFR 300.175(b)(4) specifically authorizes the Department of Defense “consistent with its operational requirements and upon request of the [F]OSC, provide locally deployed U.S. Navy oil spill equipment and provide assistance to other federal agencies on request.” Because of the inherent mobility of the Armed Forces, an Armed Forces installation could more quickly return response resources to the original installation, if necessary, than an individual, private facility or vessel. Additionally, an Armed Forces installation provides its own response resources, which are dedicated to that installation, compared to a facility or vessel that relies on one or more OSROs to provide response resources which are also contracted to other facilities or vessels. Therefore, the FOSC has requested that Armed Forces installations relocate response resources to the urgent situation in the Gulf of Mexico as set forth in this temporary interim rule.

This rule adds to EPA regulations a temporary, new § 112.22 to 40 CFR part 112. Paragraph (a) of the temporary section sets forth the applicability of this section. This section only applies to facilities that have contracted response resources, or their own response resources, that are deployed to participate in the SONS response.

Paragraph (b) of the temporary section suspends the regulatory requirements for response times and the identification of response equipment and its location for (1) Medium Discharges and (2) EPA-regulated facilities WCDs. Paragraph (b) suspends these requirements only from June 30, 2010 through December 31, 2010. Paragraph (b) also states that changes to facility response plans due to relocation of response equipment in support of the response to the Deepwater Horizon SONS are not required. Except as described in paragraph (d), paragraph (c) makes clear that the response times for Small Discharges remain in effect for facilities regulated by 40 CFR Part 112.

In addition to facilities regulated by 40 CFR Part 112, Armed Forces installations have response resources that are needed to respond to the Deepwater Horizon SONS. Paragraph (d) of § 112.22 authorizes Armed Forces installations responding to a FOSC request to support SONS response to revise their response times below what is necessary for a Small Discharge in order to make the urgently needed response resources of Armed Forces installations available for deployment in support of the SONS response. The National Contingency Plan at 40 CFR 300.175(b)(4) supports this provision for the Armed Forces.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.

This temporary interim rule is in response to an emergency situation and the Coast Guard and EPA must act more quickly than normal review procedures under Executive Order 12866, Regulatory Planning and Review. In accordance with section 6(a)(3)(D) of that Order, the Coast Guard and EPA have communicated with the Office of Management and Budget. The 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.

This rule will temporarily suspend Coast Guard and EPA response time requirements, and EPA response equipment identification and location requirements, for facilities and vessels subject to 33 CFR parts 154 and 155 and/or 40 CFR 112, subpart D, as applicable. The suspension of these regulatory requirements provides industry and government the opportunity to relocate oil spill response resources to the Gulf of Mexico to aid in the response to the Deepwater Horizon SONS. There may be additional costs for relocating these resources.

If OSROs, or facilities or vessels with their own response resources, temporarily relocate infrastructure and assets to the Gulf of Mexico, other regions may not have the same level of response times for response resources available in the event an oil spill occurred in those other regions. This may marginally increase the risk of delayed response times in those areas because there would be fewer assets immediately available for spill response. However, we expect these risks to be temporary and small, because the suspension of certain response time requirements is only until the end of this calendar year, and the Coast Guard and affected industry stakeholders will coordinate the positioning and deployment of additional response assets in the Gulf of Mexico.

Additionally, if planned-for response resources have relocated to the Gulf of Mexico, cascade plans can be used to help minimize the risk of delayed response times. A cascade plan contains an OSRO's strategy to maximize arrival times and the availability of response resources for plan holders given the deployment of response resources. This strategy may include the identification of secondary or cascading resources through increased partnerships and the increased pooling of resources among several OSROs and other stakeholders. Coast Guard COTPs will assist in facilitating the incorporation of Armed Forces installations into cascade plans when revising their respective Area Response Plans. The inclusion of Armed Forces installations in cascade planning may be necessary to provide Armed Forces installations that have temporarily revised their response times below that necessary for an average most probable discharge and/or a Small Discharge with access to additional response resources. The inclusion of Armed Forces installations in cascade planning will also allow Coast Guard regulated facilities and vessels to access remaining Armed Forces installation response resources in the event they are needed.

Additional assets are urgently needed in the Gulf region for the response to the unprecedented and ongoing Deepwater Horizon SONS. Current assets in the Gulf region have been fully utilized in response to the SONS. Based on the urgent need to maximize the availability of oil spill response assets from around the country, the Coast Guard is temporarily releasing facilities and vessels subject to 33 CFR parts 154 and 155, and the EPA is temporarily releasing facilities subject to 40 CFR part 112, subpart D, whose response plans are impacted by relocation of response resources in support of the response to the Deepwater Horizon SONS, from Coast Guard and EPA regulatory response time requirements, and EPA response equipment identification and location requirements, that would keep OSROs, and facilities with their own response resources, from relocating their response resources to the Gulf region. Some facilities and vessels subject to 33 CFR parts 154 and 155, and some facilities subject to 40 CFR part 112, subpart D, contract with OSROs for the availability of response resources to comply with these required regulatory response times. These contractual obligations keep OSROs from making their response resources available for the response to the SONS. Other such facilities and vessels have their own response resources to comply with these regulatory requirements, and these requirements preclude the facilities and vessels from making their response resources available for the response to the SONS. By releasing these facilities and vessels from the required Coast Guard and EPA regulatory response times, and EPA response equipment identification and location requirements, the Coast Guard and EPA are encouraging owners and contracting facilities and vessels to make more response resources available for the response to the SONS. This will allow these additional response resources from these areas to begin being brought into the Gulf of Mexico to respond to the SONS.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider whether regulatory actions 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. An RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). The Coast Guard and EPA determined that this rule is exempt from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Therefore, an RFA analysis is not required for this rule.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can 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 or EPA, call 1-888-REG-FAIR (1-888-734-3247). Neither the Coast Guard nor EPA will retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard or EPA.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, Coast Guard and EPA have made such a good cause finding, including the reasons therefor, and established an effective date of June 30, 2010. Coast Guard and EPA will submit a report, as described in § 801(a)(1)(A), containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 (adjusted for inflation) 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 cause 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 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.

This is an emergency rulemaking, and in accordance with the Council on Environmental Quality (CEQ) Regulations Implementing the Procedural Requirements of the National Environmental Policy Act (40 CFR parts 1500-1508) and the National Environmental Policy Act of 1969 (NEPA) (43 U.S.C. 4321-4370f), the Coast Guard, with the assistance of EPA, is consulting with CEQ for this action. The Coast Guard, with the assistance of EPA, will continue to consult CEQ as well as the National Oceanic and Atmospheric Administration and other key authorities in order to determine appropriate environmental impact analysis. The Coast Guard and EPA especially invite public comment on environmental impacts and management of relative risks of this regulatory action to address an immediate environmental need in the context of preparedness to meet potential environmental needs.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because delaying the effective date by first publishing an NPRM would be contrary to the safety zone's intended objective since immediate action is needed to protect person's and vessels against the hazards associated with air shows. Additionally, the zone should have negligible impact on vessel transits due to the fact that vessels will be limited from the area for only three hours on one day while the zone is in effect and vessels can still transit in the majority of the Neuse River during the event. Accordingly, under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to public interest, since immediate action is needed to ensure the safety of human life and property from the hazards associated with air show operations.

Coast Guard Sector North Carolina has been notified that on July 4, 2010, New Bern, North Carolina will host an air show event on the Neuse River in the vicinity of New Bern, North Carolina. In recent years, there have been unfortunate instances of aircraft crashes during performances at air shows. Typical of plane crashes, there is a wide area of scattered debris that damages property and could cause significant injury or death. Due to the hazards associated with air show events the Coast Guard is establishing a temporary safety zone on the waters of the Neuse River immediately below the air show.

The Coast Guard is establishing a temporary safety zone to encompass the specified waters of the Neuse River in the vicinity of New Bern, North Carolina within a 1,700-yard by 1,100-yard boundary, located at the following coordinates: 35°06′55.5″ N., 077°02′5.9″ W., thence to 35°07′9.2″ N., 077°01′32.9″ W., thence to 35°06′38.8″ N., 077°01′16.7″ W., thence to 35°06′6.1″ N., 077°01′23″ W., thence to 35°06′2.9″ N., 077°01′56.6″ W., thence to 35°06′40.4″ N., 077°01′54.7″ W., Access to this area will be temporarily restricted for public safety purposes. All vessels are prohibited from transiting, anchoring in, or loitering in this section of the waterway while the safety zone is in effect. This zone will be in effect from 6 p.m. until 9 p.m. on July 4, 2010. Entry into the zone during the closure period will not be permitted except as specifically authorized by the Captain of the Port or a designated representative. To seek permission to transit the area, mariners can contact Sector North Carolina at telephone number (252) 247-4570.

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.

Although this regulation will restrict access to the area, the effect of this rule will not be significant because: (i) The safety zone will only be in effect from 6 p.m. until 9 p.m. July 4, 2010 (ii) the Coast Guard will give advance notification via maritime advisories so mariners can adjust their plans accordingly, and (iii) although the safety zone will apply to the section of the Neuse River, vessel traffic can use the federally marked channel to transit safely around the safety zone.

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

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

This rule will affect the following entities, some of which may be small entities: The owners or operators of recreational and commercial fishing vessels intending to transit the specified portion of the Neuse River from 6 p.m. until 9 p.m. on July 4, 2010.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be in effect from 6 p.m. until 9 p.m. on July 4, 2010. Although the safety zone will apply to this section of the Neuse River, vessel traffic can use the federally marked channel to transit safely around the safety zone. Before the effective period, the Coast Guard will issue maritime advisories widely available to the users of the waterway.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can 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, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) 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 cause 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 that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing a temporary safety zone to protect the public from the hazards associated with air show events. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

In FR doc 2010-14294 appearing on page 33696 in the issue of Tuesday, June 15, 2010, the following corrections are made:

This action is directed to the public in general. This action may, however, be of interest to those persons who are concerned about OMB approval for information collections required by EPA regulations. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

This document updates the OMB control numbers listed in 40 CFR part 9 for various actions published in the Federal Register and issued under the Toxic Substances Control Act (TSCA) (15 U.S.C. 2601), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136), and the Federal Food, Drug, and Cosmetic Act (FFDCA) (21 U.S.C. 408). Under PRA, 44 U.S.C. 3501 et seq ., an agency may not conduct or sponsor, and a person is not required to respond to an information collection request unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are codified in title 40 of the CFR, after appearing in the preamble of the final rule. These numbers are listed in 40 CFR part 9, displayed in a subsequent publication in the Federal Register , or displayed by other appropriate means, such as on a related collection instrument or form, or as part of the instructions to respondents. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9. In addition to displaying the applicable OMB control number in the final rule and on the applicable collection instruments, the Office of Chemical Safety and Pollution Prevention (OCSPP) has also typically listed the OMB control number in the table at 40 CFR 9.1 for regulations it has issued under TSCA, FIFRA, and FFDCA. With this technical amendment, OCSPP is updating the table in 40 CFR 9.1 to list the OMB control number assigned to several final rules that have published since its last update.

The information collection activities referenced in this document were previously subject to public notice and comment as part of the rulemaking process, and this action does not in any way affect the referenced information collection activities or rulemakings. This action only amends the table at 40 CFR 9.1 to update the list of OMB control numbers listed there. Due to the technical nature of the table, EPA finds that further notice and comment about amending the table is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), to amend this table without further notice and comment.

EPA is adding several entries to the table in 40 CFR part 9 to reflect the promulgation of new regulatory provisions since the last update of this table. The paperwork burden associated with these new provisions was approved by OMB under PRA when the rules were promulgated.

EPA is amending the OMB control numbers of several existing entries to reflect changes to the OMB control numbers since the table was last updated. For example, EPA consolidated the activities that were approved under OMB control numbers 2070-0067 (EPA ICR No. 922), 2070-0107 (EPA ICR No. 1504), and 2070-0164 (EPA ICR No. 1911) under a single OMB control number 2070-0174 (EPA ICR No. 2288). The approval of the consolidated ICR was announced in the Federal Register on June 15, 2009 (74 FR 28237) (FRL-8918-8).

EPA is removing several entries in the table in 40 CFR part 9. These entries are being removed due to erroneous entry, rule revocation, and re-designations. Since these provisions no longer exist or were erroneously entered, the corresponding listings in the table should be removed as well.

EPA is modifying the table through technical corrections to the text as well as the consolidation of several listings. Issues such as typographical errors, section duplications, and mislabeled headings are corrected through this amendment. In addition, the table listing has been consolidated into a single listing for the part when every section under a specific part shares an identical OMB control number. For information on the specific sections affected by this amendment, please refer to the docket.

This final rule implements technical amendments to 40 CFR part 9 to reflect changes to OMB approvals under PRA. It does not otherwise impose or amend any requirements. As such, this action does not require review by OMB under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), the Paperwork Reduction Act (44 U.S.C. 3501 et seq .), or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). Nor does it impose any enforceable duty, contain any unfunded mandate, or impose any significant or unique impact on small governments as described in the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq .).

This action will not have substantial direct effects on State or tribal governments, on the relationship between the Federal Government and States or Indian tribes, or on the distribution of power and responsibilities between the Federal Government and States or Indian tribes. As such, it will not have any “federalism implications” as described by Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999) or “tribal implications” as described by Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000). Nor does it involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA)(15 U.S.C. 272 note), environmental justice-related issues that would require consideration under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994), or otherwise involve anything that would have any adverse effect on the supply, distribution, or use of energy that would require consideration under Executive Order 13211, entitled Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001).

In addition, since this action is not subject to notice-and-comment requirements under the APA or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .).

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. Section 808 of CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement (5 U.S.C. 808(2)). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 30, 2010. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

On March 22, 2010(75 FR 13468), EPA proposed to disapprove the following rule that was submitted for incorporation into the California SIP.

We proposed to disapprove this rule because one rule provision does not satisfy the requirements of section 110 and part D of the Act. Specifically:

• New section 3.2.3 places no time limitation on opacity between 20% and 40% for gas turbines except as defined in the District permit pursuant to new section 2.5. This is inconsistent with long-standing national policy on excess emissions, which explains that SIP rules must ensure that emissions during startup conditions are minimized. We believe this could be addressed by adding rule text establishing appropriate time limitations on gas turbine startup, requiring sources to minimize time and emissions during startup, and demonstration in the staff report that the rule minimizes emissions during startup.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, EPA is finalizing a full disapproval of the submitted rule. As a result, this action will retain the version of Rule 400 approved in 2005 in the SIP. Sanctions will not be imposed under section 179 of the Act, because revision of Rule 400 is not a required submittal under the CAA and the Monterey Bay area continues to meet the NAAQS for multiple pollutants, including ozone and PM. A final disapproval would similarly not trigger the federal implementation plan (FIP) obligation under section 110(c).

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply disapprove requirements that the State is already imposing. Therefore, because the Federal SIP disapproval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the disapproval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action disapproves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely disapproves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it disapproves a State rule implementing a Federal standard.

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

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States. The Executive Order has informed the development and implementation of EPA's environmental justice program and policies. Consistent with the Executive Order and the associated Presidential Memorandum, the Agency's environmental justice policies promote environmental protection by focusing attention and Agency efforts on addressing the types of environmental harms and risks that are prevalent among minority, low-income and Tribal populations.

This action will not have disproportionately high and adverse human health or environmental effects on minority, low-income or Tribal populations because it maintains the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2). This rule will be effective July 30, 2010.

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 August 30, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements ( see section 307(b)(2)).

On October 28, 2009, we promulgated general control requirements to control emissions of hazardous air pollutants from heat exchange systems at petroleum refineries. 74 FR 55670 (40 CFR part 63, subpart CC). In this action, we are correcting technical errors in the promulgated rule.

Table 1 below describes the miscellaneous technical corrections we are making to 40 CFR part 63, subpart CC.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an agency, for good cause, finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment because only simple typographical errors are being corrected and these corrections do not substantially change the Agency actions taken in the final rule. Thus, notice and public procedure are unnecessary and we find that this constitutes good cause under 5 U.S.C. 553(b)(B). ( See also the final sentence of section 307(d)(1) of the Clean Air Act (CAA), 42 U.S.C. 307(d)(1), indicating that where the good cause exception is invoked pursuant to section 553(b)(B) of the APA, the procedures in section 307(d) in subsection 553(b) of the APA, the procedures in section 307(d) of the CAA do not apply.)

Under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget. This action is not a “major rule” as defined by 5 U.S.C. 804(2). The technical corrections do not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ).

Because EPA has made a “good cause” finding that this action is not subject to notice and comment requirements under the APA or any other statute ( see Section I of this preamble), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of the UMRA.

This technical correction does not have substantial direct effects on the States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, Federalism (64 FR 43255, August 10, 1999).

This action does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000). This correction also is not subject to Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) because it is not economically significant.

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

This technical correction does not involve changes to the technical standards related to test methods or monitoring requirements; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply.

This technical correction also does not involve special consideration of environmental justice-related issues as required by Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

The Congressional Review Act (CRA), 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. The CRA does, however, exclude any rule that does not substantially affect the rights and obligations of outside parties. Therefore, the scope of the CRA does not include technical corrections. This action is not a “major rule” as defined by 5 U.S.C. 804(2). The final rule will be effective July 30, 2010.

EPA published in the Federal Register on March 3, 2010 (75 FR 9674) a document amending the national emission standards for hazardous air pollutants for existing stationary compression ignition reciprocating internal combustion engines. 40 CFR 63.6590 was amended by revising paragraphs (b)(1) and (3). Inadvertently, paragraphs (b)(1)(i) and (ii) of section 63.6590(b)(1) were removed. This correction amends section 63.6590 by reinstating paragraphs 63.6590(b)(1)(i) and (ii).

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the Agency may issue a rule without providing notice and an opportunity for public comment. We have determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment because this action only corrects a simple and obvious instructional error that would cause a change that was clearly not intended by the Agency in the final rule, as indicated by the preamble to the final rule. Thus, notice and public procedure is unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(3)(B). ( See also the final sentence of section 307(d)(1) of the Clean Air Act (CAA), 42 U.S.C. 307(d)(1), indicating that the good cause provisions in subsection 553(b) of the APA continue to apply to this type of rulemaking under section 307(d) of the CAA.)

Under Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. This action is not a “major rule” as defined by 5 U.S.C. 804(2). The correction does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Because EPA has made a “good cause” finding that this action is not subject to notice and comment requirements under the APA or any other statute ( see Section I of this preamble), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act [5 U.S.C. 601 et seq. ], or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) [Pub. L. 104-4]. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of the UMRA.

This action does not have substantial direct effects on the States, or on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of Government, as specified in Executive Order 13132, Federalism (64 FR 43255, August 10, 1999).

This action does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 9, 2000). This action also is not subject to Executive Order 13045, Protection of Children from Environmental Health and Safety Risks (62 FR 19885, April 23, 1997) because it is not economically significant.

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

This action does not involve changes to the technical standards related to test methods or monitoring requirements; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply.

This action also does not involve special consideration of environmental justice-related issues as required by Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 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 U.S. Section 808 allows the issuing Agency to make a rule effective sooner than otherwise provided by the CRA if the Agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, we have determined that there is good cause for making this correction final without prior proposal and opportunity for comment because this action only corrects a simple and obvious instructional error that would cause a change that was clearly not intended by the Agency in the final rule, as indicated by the preamble to the final rule. Thus, notice and public procedure is unnecessary. EPA has therefore established an effective date of June 30, 2010. The EPA will submit a report containing this final action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S. prior to publication of this action in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). The final rule is effective June 30, 2010.

Because EPA received adverse comment, we are withdrawing several provisions of the direct final rule to amend the Renewable Fuel Standard program requirements, published on May 10, 2010. We stated in that direct final rule that if we received adverse comment by June 9, 2010, the portion of the direct final rule on which adverse comment was received would not take effect, and we would publish a timely withdrawal of such portions of the direct final rule in the Federal Register .

We subsequently received adverse comment on the following provisions: Certain of the amendments to 40 CFR 80.1401 (moved the definitions of “actual peak capacity,” “baseline volume,” and “permitted capacity” from 40 CFR 80.1403(a), revised the definition of “actual peak capacity” to clarify how it is calculated and revised the definition of “permitted capacity” to clarify the dates before which permits used to establish a facility's permitted capacity must have been issued or revised); 40 CFR 80.1425 (clarified that RINs generated after July 1, 2010, may only be generated and transferred using the EPA-Moderated Transaction System (EMTS) and will not be identified by a 38-digit code and that the value of EEEEEEEE in a batch-RIN will be determined by the number of gallon-RINs generated for the batch); 40 CFR 80.1426(d)(1), 80.1426(f)(3)(iv), and 80.1426(f)(3)(v) (clarified that a unique BBBBB code in the RIN, or its equivalent in EMTS, is used to identify a batch of renewable fuel from a given renewable fuel producer or importer); 40 CFR 80.1426 Table 2 (clarified the extent to which renewable fuel producers must use certain advanced technologies in order for them to be considered when determining the proper D code for their fuel); 40 CFR 80.1426(f)(12) (clarified the requirements for gas to be considered biogas for purposes of determining a renewable fuel's D code); 40 CFR 80.1452(b) (clarified that RINs must be generated in EMTS within five (5) business days of being assigned to a batch of renewable fuel and clarified the information required to be submitted via EMTS for each batch of renewable fuel produced or imported); and, 40 CFR 80.1452(c) (clarified that transactions involving RINs generated on or after July 1, 2010 must be conducted via EMTS within five (5) business days of a reportable event, and clarified the meaning of the term “reportable event” and the information required to be submitted via EMTS for each transaction involving RINs generated on or after July 1, 2010).

EPA published a parallel proposed rule on the same day as the direct final rule. The proposed rule invited comment on the substance of the direct final rule. We will address the comments received on the portions of the direct final rule listed above in a subsequent final action based on the parallel proposed rule also published on May 10, 2010 (75 FR 26049). The provisions for which we did not receive adverse comment will become effective on July 1, 2010, as provided in the May 10, 2010, direct final rule.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.gpoaccess.gov/ecfr . To access the harmonized test guidelines referenced in this document electronically, please go to http://www.epa.gov/oppts and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0179 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 30, 2010. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2009-0179, by one of the following methods:

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

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

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

In the Federal Register of April 8, 2009 (74 FR 15969) (FRL-8407-6), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 9F7539) by MacIntosh and Associates Incorporated, 1203 Hartford Avenue, Saint Paul, MN 55116-1622 (on behalf of Pasteuria Bioscience Incorporated, 12085 Research Drive, Suite 185, Alachua, FL 32615). The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Pasteuria usgae . This notice referenced a summary of the petition prepared by the petitioner, MacIntosh and Associates Incorporated (on behalf of Pasteuria Bioscience Incorporated), which is available in the docket, http://www.regulations.gov . There were no substantive comments received in response to the notice of filing.

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

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

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

Pasteuria , a genus of bacteria, includes a number of species that have shown potential in controlling plant-parasitic nematodes. These bacteria are obligate endoparasites, organisms that grow internally in a limited range of hosts. Pasteuria usgae , a recently discovered strain isolated from soil samples collected in Florida, is host-specific for the sting nematode [ Belonolaimus longicaudatus ]. This strain of Pasteuria is pending recognition by the Judicial Commission of the International Committee for Systematic Bacteriology. There is sufficient evidence from morphology, host specificity, and genomics to justify Pasteuria usgae as a distinct strain. In developing products for crop applications, such as uses on strawberries and a wide variety of vegetables, the difficulty of growing Pasteuria outside of a nematode host has always been an obstacle. This host specificity is at the core of EPA's conclusions that Pasteuria usgae may be granted a permanent exemption from the requirement of a tolerance for all food commodities. Additional information regarding Pasteuria usgae can be found in the Biopesticides Registration Action Document (BRAD) on the Biopesticides and Pollution Prevention Division (BPPD) website: http://www.epa.gov/pesticides/biopesticides .

Studies submitted to the Agency were issued Master Record Identification (MRID) Numbers and reviewed by BPPD scientists. The following summaries of the toxicological profile of Pasteuria usgae are based on an Agency risk assessment memorandum and related data evaluation records dated April 9, 2009.

a. Acute Oral Toxicity and Pathogenicity - Rat : Harmonized Test Guideline 885.3050; MRID No. 474267-09. Pasteuria usgae does not appear to be toxic and/or pathogenic in rats when dosed at 1 x 10 8 spores/animal. There were no treatment-related clinical signs or necropsy findings in rats receiving a single oral dose of 1 x 10 8 Pasteuria usgae spores. Three males in the microbial pest control agent (MPCA) - treated group gained weight through day 14 but lost weight by day 21. All other animals gained weight prior to scheduled sacrifice. Microbial enumeration was not performed because the testing laboratory showed that the test material would not grow on agar media. Therefore, while no significant adverse effects were seen, the typical clearance of the microbe could not be confirmed. However, because the spores are highly specific to sting nematode, infectivity is unlikely to be a concern. This study was rated “Acceptable,” and Pasteuria usgae was classified as Toxicity Category IV.

b. Acute Injection Toxicity and Pathogenicity - Rat : Harmonized Test Guideline 885.3200; MRID No. 474267-11. There were no treatment-related significant adverse effects seen in the rats receiving a single intravenous dose of 10 8 Pasteuria usgae spores. One treated female lost weight by day 7 but gained weight prior to sacrifice on day 14. All other animals gained weight throughout the study. All animals survived and appeared normal during the study. No abnormalities were observed in any animal at necropsy or in harvested organs. No significant variations in organ weight were found between different groups or sexes. The acute intravenous median lethal dose (LD 50 ) of Pasteuria usgae was greater than 1 x 10 8 spores/animal in male and female rats. Pasteuria usgae does not appear to be toxic and/or pathogenic in rats when dosed at 10 8 spores/animal. MRID No. 474267-09 reported that microbial enumeration was not done because the test material would not grow on agar media. Since microbial enumeration was not performed, the infectivity was uncertain. However, because the spores are highly specific to sting nematode, infectivity is unlikely to be a concern. Pasteuria usgae was not pathogenic as tested in this study. This study was rated as “Acceptable.”

c. Acute Dermal Toxicity - Rat : Harmonized Test Guideline 885.3100; MRID No. 474267-12. Based on the results of this study, Pasteuria usgae does not appear to be toxic in rats when treated with 2,000 milligrams/kilogram (mg/kg) at 10 8 spores/milliliter (mL). Thus, the acute dermal LD 50 was greater than 2,000 mg/kg for 10 8 spores/mL in male and female rats. There were no treatment-related significant adverse effects seen in the dosed rats. Two males and one female had very slight erythema on day 1 with clearance by day 4. One male lost weight slightly during the second week and one male and two females lost weight during the first week, but all gained weight by the end of the study. All other animals gained weight throughout the study. This study was rated “Acceptable,” and Pasteuria usgae was classified as Toxicity Category IV.

d. Acute Pulmonary Toxicity and Pathogenicity - Rat : Harmonized Test Guideline 885.3150; MRID No. 474267-10. In an acute pulmonary toxicity and pathogenicity assessment, there were no test substance-related significant adverse effects seen in rats receiving a single dose of approximately 1-3 x 10 8 spores of Pasteuria usgae . One dosed female exhibited pale lungs. Additionally, one untreated control female lost weight by day 21, and another untreated control female lost weight by day 14 but gained weight by day 21. One MPCA-treated male did not gain weight by day 7 but gained weight thereafter. All other animals gained weight throughout the study. Based on these results, Pasteuria usgae does not appear to be toxic and/or pathogenic in rats when dosed at approximately 1-3 x 10 8 spores/animal. Microbial enumeration was not performed because the testing laboratory showed that the test material would not grow on agar media. Therefore, while no significant adverse effects were seen, the typical clearance of the microbe could not be confirmed. However, because the spores are highly specific to sting nematode, infectivity is unlikely to be a concern. This study was rated “Acceptable,” and Pasteuria usgae was classified as Toxicity Category IV.

e. Hypersensitivity Incidents : Harmonized Test Guideline 885.3400; MRID No. 474350-02. No hypersensitivity incidents—involving Pasteuria usgae and occurring during fermentation, processing, formulation, or research—have been reported to the Agency. Any future hypersensitivity incidents must be reported per Harmonized Test Guideline 885.3400.

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

Dietary exposure to Pasteuria usgae may occur, mainly through food. However, the lack of acute oral toxicity/pathogenicity, based on the toxicology test on rats presented in Unit III., along with the inability of the bacterium to grow outside of a specific nematode host, support the establishment of a permanent exemption from the requirement of a tolerance for Pasteuria usgae . There is presently a temporary exemption from the requirement of a tolerance established for residues of Pasteuria usgae under 40 CFR 180.1290, which will expire and be revoked on December 31, 2010. Pasteuria usgae is exempt from the requirement of a tolerance when applied/used as a nematicide on strawberries in accordance with the terms of Experimental Use Permit 85004-EUP-1 August 5, 2009, (74 FR 38970) (FRL-8429-1). Additionally, under 40 CFR 180.1135, a similar active ingredient, Pasteuria penetrans , was assessed previously and granted a permanent exemption from the requirement of a tolerance in or on all raw agricultural commodities, except roots and tubers, when used as a nematicide in the production of fruits and vegetables in greenhouses December 28, 1994, (59 FR 66740) (FRL-4924-4).

1. Food . Dietary exposure to the naturally occurring soil bacterium, Pasteuria usgae , although a possibility, is anticipated to be negligible. For optimal control of sting nematode, Pasteuria usgae is applied in a manner that facilitates movement of spores into the root zone of the affected crop. This requires that end users take two particular actions that would inevitably minimize the amount of Pasteuria usgae residues on aboveground food commodities-soil-directed applications and irrigation with a specified amount of water following any such applications. For food commodities that develop underground, exposure to Pasteuria usgae residues is a more likely scenario, although standard post-harvest practices of washing, cooking, or processing would reduce such residues. In general, any actual dietary exposure is expected to be several orders of magnitude lower than the dose used in the acute oral toxicity/pathogenicity test referenced in Unit III., during which no toxic or pathogenic effects were observed in rats. Moreover, Pasteuria usgae is an obligate endoparasitic bacterium specific to the sting nematode. The Agency concludes that there is a reasonable certainty that no harm will result from the aggregate exposure to the residues of Pasteuria usgae in food.

2. Drinking water exposure . Exposure of humans to residues of Pasteuria usgae in consumed drinking water is unlikely. The currently approved and proposed use patterns, use sites, and application methods for Pasteuria usgae do not include direct application to aquatic environments. Furthermore, given that Pasteuria usgae spores attach specifically to the sting nematode, which is a plant-parasitic nematode that thrives only in sandy soil environments and is dependent upon plant roots to sustain life, future proposals to add aquatic use sites to pesticide products containing this bacterium are not expected. Even if oral exposure should occur through consumed drinking water, the Agency concludes that there is a reasonable certainty that no harm will result from the exposure to the residues of Pasteuria usgae in all the anticipated drinking water exposures because of the lack of acute oral toxicity/pathogenicity to mammals and the host-specific nature of the bacterium, as stated previously.

Non-occupational exposure is considered unlikely for Pasteuria usgae as all currently approved or proposed uses occur in distinctly agricultural or commercial settings, and there are no currently approved or proposed uses for residential areas.

The only other non-occupational exposure is that which would normally be encountered as part of the natural environment (i.e., not as a result of pesticide use). As expected since Pasteuria usgae is an obligate endoparasite of the sting nematode, there have been no reports of adverse effects from human exposure to this bacterium that naturally occurs in sandy soils, particularly those of the southeastern and midwestern United States.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information concerning the cumulative effects of [a particular pesticide's] residues and other substances that have a common mechanism of toxicity.”

EPA has not found Pasteuria usgae to share a common mechanism of toxicity with any other substances, and Pasteuria usgae does not appear to produce a toxic metabolite as its mode of action against the target pest. For the purposes of this tolerance action, therefore, EPA has assumed that Pasteuria usgae does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative .

FFDCA section 408(b)(2)(C) provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, FFDCA section 408(b)(2)(C) provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless EPA determines that a different margin of safety will be safe for infants and children. Margins of exposure (MOE) (safety), which are often referred to as uncertainty factors (UFs), are incorporated into EPA risk assessments either directly or through the use of a MOE analysis, or by using UF (safety) in calculating a dose level that poses no appreciable risk.

Based on the acute toxicity and pathogenicity data discussed in Unit III., EPA concludes that there is a reasonable certainty that no harm will result to the United States population, including infants and children, from aggregate exposure to the residues of Pasteuria usgae . This includes all anticipated dietary exposures and all other exposures for which there is reliable information. The Agency has arrived at this conclusion because the data available on Pasteuria usgae do not demonstrate toxic, pathogenic, or infective potential to mammals. Thus, there are no threshold effects of concern and, as a result, the provision requiring an additional margin of safety does not apply.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for Pasteuria usgae .

Therefore, an exemption is established for residues of Pasteuria usgae in or on all food commodities when applied preharvest and used as a nematicide in accordance with good agricultural practices.

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

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

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

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

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

The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

EPA published a final rule in the Federal Register of August 12, 2009 (74 FR 40513) (FRL-8428-3) establishing a time-limited tolerance for residues of 1-naphthaleneacetic acid ethyl ester in or on avocados. That time-limited tolerance was inadvertently removed by a final rule published in the Federal Register of September 11, 2009 (74 FR 46689) (FRL-8426-2). Today's rule restores the time-limited tolerance for 1-naphthaleneacetic acid in or on avocados inadvertently deleted by the September 11, 2009 final rule.

Section 408(l)(6) of FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Section 408(l)(6) authorizes EPA to establish such tolerances without providing notice or period for public comment. Section 408(e) of FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

In addition, section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical correction final without prior proposal and opportunity for comment, because the final rule amendment to §180.155 previously published August 12, 2009 (74 FR 40513) (FRL-8428-3) was inadvertently deleted September 11, 2009 (74 FR 46689) (FRL-8426-2). EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

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

Since tolerances and exemptions that are established in accordance with sections 408(e) and 408(l)(6) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply.

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

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

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

NMFS published the final rule for the 2010 Specifications and Management Measures for the Atlantic Mackerel, Squid, and Butterfish Fisheries in the Federal Register on February 3, 2010 (75 FR 5537). The final rule modified accounting procedures for underages of Trimester 1 quota in the Loligo fishery, so that Trimester 1 quota underages that are greater than 25 percent of the Trimester 1 quota are allocated equally to Trimesters 2 and 3, and underages that are less than 25 percent of the Trimester 1 quota are allocated to Trimester 3.

For FY 2010, the initial Loligo Trimester 1 quota was 17,696,509 lb (8,027 mt), which is equal to 43 percent of the domestic annual harvest (DAH), excluding research set-aside (RSA) quota. The best available landings information indicates that 3,133,110 lb (1,421 mt) of Loligo was landed during Trimester 1, and 14,563,399 lb (6,606 mt) remain. Consistent with the 2010 Specifications and Management Measures, as the quota underages for Trimester 1 are greater than 25 percent of the Trimester 1 quota, the underages are divided in half, with half applied to Trimester 2, and the other half applied to Trimester 3. This results in a revised Trimester 2 quota from the initial quota of 6,995,269 lb (3,173 mt) to a new quota of 14,276,968 lb (6,476 mt) and a revised Trimester 3 quota from the initial quota of 16,461,920 lb (7,467 mt) lb to a new quota of 23,743,619 lb (13,770 mt).

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action modifies the Trimester 2 and 3 Loligo quotas for FY 2010, as specified in the FY 2010 Specification and Management Measures for the Atlantic Mackerel, Squid, and Butterfish Fisheries. The regulations at § 648.22(a)(2)(i) require such action to ensure the quota is not under-harvested and is distributed evenly throughout the year. Landings information indicates that underages from Trimester 1 are greater than 25 percent of the Trimester 1 Loligo quota. Trimester 2 began on May 1, 2010, and a delay in increasing the quota could result in premature closure of the fishery. As such, the distribution of Trimester 1 underages to Trimesters 2 and 3 must occur without delay. The AA further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.