The Administrator of the Small Business Administration (SBA) is authorized to establish size standards by which a business concern may be determined to be a small business concern for purposes of the Small Business Act and any other Act. 15 USC 632(a)(2)(A). The SBA Administrator is generally required to ensure that size standards vary from industry to industry to the extent necessary to reflect the differing characteristics of the various industries. 15 U.S.C. 632(a)(2)(A).

Prior to the American Recovery and Reinvestment Act of 2009, Public Law 111-5 (Recovery Act), a business concern was deemed small under the Surety Bond Guarantee Program (SBG) if: (1) With respect to any construction (general or special trade) concern or concern performing a contract for services, its average annual receipts, together with its affiliates, did not exceed $7 million (except as provided in (3) below); (2) with respect to any concern not specified in (1) above, the business concern met the size standard for the primary industry in which it, combined with its affiliates, was engaged; or (3) with respect to any construction (general or special trade) concern or concern performing a contract for services in the Presidentially-declared disaster areas resulting from the 2005 Hurricanes Katrina, Rita or Wilma, the business concern, together with its affiliates, met either the size standard for the primary industry in which it, together with its affiliates, was engaged, or the size standard set forth in (1) above, whichever was higher.

As required by section 508(c) of the Recovery Act, SBA amended its regulations with respect to the Surety Bond Guarantee Program to provide that, notwithstanding the size standards set forth above, from February 19, 2009, through September 30, 2010, a business concern would be eligible for assistance under the SBG Program only if it, together with its affiliates, did not exceed the size standard for the primary industry in which the business concern, together with its affiliates, was engaged. This change temporarily raised the size standard for many firms in the construction and service industries because, as described in (1) above, the size standard for most construction and service firms seeking surety bond guarantees prior to the Recovery Act was $7 million. SBA has decided to permanently adopt the Recovery Act size standard. Without this action, approximately 8% of the businesses that qualified for assistance under the Recovery Act provision in fiscal year 2010 would be ineligible for bond guarantees after September 30, 2010, and the lack of access to bonding would jeopardize the continuity and growth of these businesses.

In addition, from February 17, 2009, until now, firms in service industries with size standards lower than $7 million lost their eligibility for surety bond guarantees if their annual revenue exceeded the size standard for the industry in which the firm, together with its affiliates, was engaged. This change only affected service industry concerns because all construction size standards are $7 million or higher. Although SBA does not anticipate that many firms wishing to provide services in the Presidentially-declared disaster areas resulting from Hurricanes Katrina, Rita or Wilma would be adversely affected by eliminating the alternative $7 million size standard under (3) above, SBA has decided to retain this option to ensure that no firm wishing to do such business would be denied assistance through the SBG Program. For purposes of surety bonds in connection with these contracts, a concern will continue to be small if the concern, together with its affiliates, meets the size standard for the primary industry in which it, together with its affiliates, is engaged, or if its average annual receipts do not exceed $7 million, whichever is higher.

In accordance with 13 CFR 121.302(a), this rule will apply to applications for surety bond guarantees accepted for processing by SBA on or after October 1, 2010.

SBA believes that this direct final rule is non-controversial since it simply adopts the temporary size standard established for the Surety Bond Guarantee Program under the Recovery Act, and would make the Surety Bond Guarantee Program size eligibility criteria consistent with SBA industry based standards. SBA also notes that it received no adverse comments to the temporary size standard that was published in the Federal Register on July 22, 2009 (74 FR 36110), and anticipates no significant adverse comments to this direct final rule. If SBA receives any significant adverse comments, it will publish a notice in the Federal Register for a timely withdrawal of this direct final rule.

Section 121.301(d). SBA is permanently adopting a temporary provision of the American Recovery and Reinvestment Act of 2009 that specifies that a concern is small if it, together with its affiliates, meets the size standard corresponding to the NAICS code for the primary industry in which it, together with its affiliates, is engaged. This direct final rule will make the SBG Program size eligibility criteria consistent with SBA industry based standards. It will expand the scope of eligible small businesses and will enable SBA to assist more small businesses to obtain the bonding necessary for them to bid on and perform contracts. SBA is retaining the $7 million alternative size standard for construction or services contracts performed in the Presidentially-declared disaster areas resulting from the 2005 Hurricanes Katrina, Rita or Wilma.

The Office of Management and Budget (OMB) has determined that this direct final rule does not constitute a significant regulatory action under Executive Order 12866. This rule is also not a major rule under the Congressional Review Act.

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

For purposes of Executive Order 13132, SBA has determined that this direct final 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. Therefore, for the purpose of Executive Order 13132, Federalism, SBA has determined that this direct final rule has no federalism implications warranting preparation of a federalism assessment.

SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small non-profit enterprises, and small local governments. Pursuant to RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis which describes the impact of this rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. Within the meaning of RFA, SBA certifies that this rule will not have a significant economic impact on a substantial number of small entities. There are 18 Sureties that participate in the SBG Program, and no part of this direct final rule would impose any significant additional cost or burden on them.

History

On May 24, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace at Pine Mountain, GA (75 FR 28765) Docket No. FAA-2010-0498. Interested persons were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the Class E airspace extending upward from 700 feet above the surface at Pine Mountain, GA to provide controlled airspace required to support the SIAPs for Harris County Airport. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace at Pine Mountain, GA.

History

On May 11, 2010, the FAA published in the Federal Register a notice of proposed rulemaking to establish Class E airspace at Williamson, WV (75 FR 26150) Docket No. FAA-2010-0416. Subsequent to publication, the FAA found that the geographic coordinates needed to be adjusted. This action makes that adjustment by incorporating the revised geographic coordinates into the final rule. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. With the exception of editorial changes, and the changes described above, this rule is the same as that proposed in the NPRM.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes the Class E airspace extending upward from 700 feet above the surface at Williamson, WV, to provide controlled airspace required to support the SIAPs developed for Mingo County Regional. The geographic coordinates for the airport will be adjusted to coincide with the FAAs National Aeronautical Navigation Services. This action is necessary for the safety and management of IFR operations at the airports.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Williamson, WV.

On May 28, 2010, the final rule, “Automatic Dependent Surveillance-Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service,” was published in the Federal Register (75 FR 30160). In that rule, the FAA amended its regulations by adding equipage requirements and performance standards for Automatic Dependent Surveillance-Broadcast (ADS-B) Out avionics on aircraft operating in Classes A, B, and C airspace, as well as certain other specified classes of airspace within the U.S. National Airspace System (NAS).

In the DATES section of the final rule, the FAA noted that affected parties were not required to comply with the new information collection requirements in § 91.225 until OMB approved the FAA's request to collect the information. The regulation requires persons operating in the specified airspace to equip with Automatic Dependent Surveillance-Broadcast (ADS-B) Out avionics that continuously transmits aircraft information via automation for use in providing air traffic surveillance services. That information collection requirement had not been approved by OMB at the time of publication.

In accordance with the Paperwork Reduction Act, the FAA submitted a copy of the information collection requirements to OMB for its review. OMB approved the collection on July 29, 2010, and assigned the information collection OMB Control Number 2120-0728, which expires on July 31, 2013.

This document is being published to inform affected parties of the approval, and to announce that as of July 29, 2010, affected parties are required to comply with the information collection requirements in § 91.225.

In FR Doc. 2010-18201, appearing on page 44094 in the Federal Register of Wednesday, July 28, 2010, make the following preamble correction:

On page 44094, in the center column, in the SUMMARY section, beginning on the fourteenth line, correct the date “October 1, 2010” to read “October 1, 2009”.

1. The Federal Energy Regulatory Commission (Commission) previously amended its regulations in Order No. 680 by modifying certain filing requirements and establishing procedures to be effective during emergencies affecting the Commission that require it to implement its Continuity of Operations Plan (COOP Plan). The COOP Plan was developed to address emergency conditions lasting up to 30 days during which Commission headquarters operations may be temporarily disrupted or communications may be temporarily unavailable, either of which may prevent the public or the Commission from meeting regulatory or statutory requirements. 1 The COOP Plan temporarily suspends filing requirements and ensures that deadlines for Commission actions that fall during the period the COOP Plan is in operation are met, thereby providing continuity in the conduct of the Commission's business and certainty to parties with business before the Commission. 2

2. One procedure established by the COOP Plan tolls for purposes of further consideration the time periods for certain Commission actions that would otherwise be required during an emergency. 3 Examples of such actions include the 60-day period for acting on requests for Exempt Wholesale Generator or Foreign Utility Company status and the 30-day period for acting on requests for rehearing. 4 The Commission is now amending this list to also provide for the tolling of Commission action required in granting relief from, or reinstatement of, an electric utility's mandatory purchase obligation under section 210(m) of the Public Utility Regulatory Policies Act of 1978. 5

3. The Energy Policy Act of 2005 (EPAct 2005)  6 was signed into law on August 8, 2005. Section 1253(a) of EPAct 2005 added section 210(m) to the Public Utility Regulatory Policies Act of 1978  7 which provided, among other things, for termination of the requirement that an electric utility enter into a new contract or obligation to purchase electric energy from qualifying cogeneration facilities and qualifying small power production facilities (QFs) if the Commission finds that the QF has nondiscriminatory access to one of the three categories of markets defined in section 210(m)(1)(A), (B) or (C). 8 In consideration of the foregoing, the Commission previously amended Part 292 of the Commission's regulations.

4. Sections 292.309 and 292.310  9 set forth the standards and filing requirements for an application by an electric utility seeking to terminate the requirement to enter into new purchase contracts and obligations with QFs. Sections 292.311 and 292.313 similarly provide the standards and filing requirements for an application for reinstatement of an electric utility's mandatory purchase obligation. 10 In each of these situations the Commission issues an order within 90 days of such application either terminating or reinstating an electric utility's mandatory purchase obligation.

5. Section 376.209(c)  11 enables the Commission, during an emergency, to toll for purpose of further consideration the time periods for certain Commission actions. The Commission's regulations, while providing for the tolling of many Commission actions, do not address the termination of, or reinstatement of, the mandatory purchase obligation. To fill this gap, this rule amends the Commission's COOP Plan to include the tolling of the 90-day period for acting on applications requesting relief from, or reinstatement of, the mandatory purchase obligation.

6. The Regulatory Flexibility Act of 1980 (RFA)  12 generally requires a description and analysis of final rules that will have a significant economic impact on a substantial number of small entities. This final rule concerns a matter of internal agency procedure and it will not have such an impact. An analysis under the RFA is not required.

7. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. 13 This final rule contains no new information collections. Therefore, OMB review of this final rule is not required.

8. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. Excluded from this requirement are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended. 14 This rule is procedural in nature and therefore falls within this exception; consequently, no environmental consideration is necessary.

9. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( http://ferc.gov ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

10. From the Commission's Home Page on the Internet, this information is available in the eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

11. User assistance is available for eLibrary and the Commission's Web site during normal business hours. For assistance, please contact Online Support at 1-866-208-3676 (e-mail at FERCOnlineSupport@ferc.gov ), or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659 (e-mail at public.referenceroom@ferc.gov ).

12. The provisions of 5 U.S.C. 801 regarding Congressional review of final rules do not apply to this final rule, because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

13. These regulations are effective on August 11, 2010. The Commission finds that notice and public comments are unnecessary because this rule concerns only agency procedure or practice. Therefore, the Commission finds good cause to waive the notice period otherwise required before the effective date of a final rule.

The Department published a Notice of Proposed Rulemaking (NPRM) on April 7, 2006 (71 FR 17768), followed by the Interim Final Rule on June 19, 2007. Having thoroughly reviewed the comments received, the Department has determined that it will, and hereby does, adopt the Interim Final Rule with minor amendments to four regulatory provisions to provide greater specificity regarding the selection, screening, placement and monitoring of trainee and intern participants.

The Interim Final Rule addressed almost 1,600 comments received in response to the NPRM. Subsequently, the Department received a total of 120 comments involving multiple provisions of the Interim Final Rule. Of this total, 79 responses were identical form letters encouraged through a writing campaign directed by a third party organization that opposed the exclusion of trainees or interns from the field of veterinary sciences. As explained in both the proposed and interim final rules, the Department, as a matter of long established policy does not support use of the J-1 visa for clinical patient care including veterinary medicine. The sole exception to this policy are foreign medical graduates entering the United States for the purpose of graduate medical education of training. The activities undertaken by Foreign Medical Graduates (FMG) are specifically authorized by statute (The Mutual Educational and Cultural Exchange Act, as amended by the Health Care Professions Act, Pub. L. 94-484). The remaining 41 responses were from Exchange Visitor Program sponsors and the general public. The commenting parties addressed the following issues:

One comment was received recommending that the trainee and intern categories be separated into two distinct categories and one comment proposed a moratorium on all training programs. These two comments are beyond the scope of the Interim Rule in that such action was not proposed, nor is it current practice.

Six comments were received regarding § 62.22(b)(1), all of which were opposed to the requirement that internships must be related to the students' fields of study; these comments recommended that the Department eliminate this requirement. The Department has determined that for participants to benefit from the Exchange Visitor Program, it is essential that their training and internship programs be in their fields of study, and that they are adequately advanced in their chosen career fields to benefit from program participation. Otherwise, the risk exists that persons participating in these internships could be seen as a source of labor, rather than interns gaining hands-on experience in their chosen career fields. This aspect of this rulemaking is intended to correct potential deficiencies in this exchange category identified by the United States Government Accountability Office's (GAO) October 2005 report entitled, “Stronger Action Needed to Improve Oversight and Assess Risks of the Summer Work and Travel and Trainee Categories of the Exchange Visitor Program.” With respect to the importance of being adequately advanced in a career field, as an example, the Department questions whether an undergraduate with less than two semesters' credit in the field of education is sufficiently advanced in his or her field to engage in a classroom-based internship. Generally, it is common practice in the United States higher education community to pursue such experience during one's junior or senior year of study. Accordingly, the Department makes no change to the current requirement that students participating in an internship do so in their fields of study. Participants with insufficient academic preparation have been viewed as potential replacements for American workers rather than bona fide interns by the Government Accountability Office, as the activity is, or cannot be distinguished from ordinary work. Trainees and interns are therefore necessarily excluded from participation until such time as they have acquired sufficient education to justify this valuable experiential learning opportunity designed to further an established career track rather than to provide temporary employment to the non-immigrant alien. Further, and of particular concern to the Department is the past practice of placing participants as counter help in quick service restaurants or other counter service positions. The Department has found that training and internship placement plans submitted for these visitors are either questionable or in fact not adhered to by the third party host organizations. The Department finds that counter help positions are unskilled and casual labor. Placement of participants in these positions are prohibited as they are not suitable placements for interns and trainees and are seen as extended Summer Work Travel programs, and may bring the Department and the Exchange Visitor Program into notoriety and disrepute due to the potential displacement of American workers.

Fifteen (15) comments were received regarding § 62.22(d)(1). This regulation requires sponsors to ensure that trainees and interns have verifiable English language skills sufficient to function on a day-to-day basis in a training or internship environment. English language proficiency should, necessarily, be verified by a recognized English language test, by signed documentation from an academic institution or English language school, or through a measurable process ( i.e., an interview conducted by the sponsor in person, or by video conference). All comments suggested that telephone interviews also be permitted, as such telephonic interviewing is widely utilized in the business environment and deemed both reliable and sufficient. Noting that video conferencing is not as prevalent in some countries as in the United States, the Department agrees that use of telephone interviews is appropriate only if the availability of video conferencing is not available. The Department anticipates that sponsors will pursue diligently the video conferencing approach and will use telephone interviews as a secondary or tertiary method of determining English language proficiency. The text of § 62.22(d)(1) has been amended accordingly. The Department notes that many sponsors have already adopted this practice. Regardless of how the interview is conducted, sponsors' conclusions regarding English language proficiency must be documented and such information maintained by the sponsor in either documentary or electronic format for a three-year period following the completion of the exchange visitor's exchange program as stipulated in 22 CFR 62.10(h).

Fourteen (14) comments were received regarding § 62.22(d)(2), all of which opposed an eligibility requirement that trainees possess a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in their occupational field acquired outside the United States, or, in the alternative, five years of work experience outside the United States in their occupational field. These comments recommended that two years of work experience, rather than five, be required. Two additional comments recommended that trainees should be eligible to participate in a training program directly following graduation rather than after obtaining a year of experience. The Department takes administrative notice of the GAO October 2005 report referenced above. This report highlighted the potential for the Trainee Program to be misused as an employment program, suggesting that negative experiences for exchange participants could undermine the public diplomacy underpinnings of the program. The Department's acceptance of these concerns prompted an overhaul of regulations governing the Trainee category and the publication of the NPRM followed by the Interim Final Rule that has been in effect since July 19, 2007. The Interim Final Rule eliminated the “non-specialty” and “specialty” categorizations of training activities, establishing in its place a “trainee,” “intern” and “student intern” category, with participant eligibility requirements to ensure that the programs in these categories operate as intended and are not abused. With the benefit of two years of experience with these requirements, the Department finds that the Interim Final Rule eligibility requirements have addressed GAO concerns regarding program abuse; therefore, the Department sees no need to modify these requirements.

Nine (9) comments were received regarding § 62.22(f)(2)(vi), which requires that training and internship program sponsors certify that training and internship programs in the field of agriculture conform with the requirements of the Fair Labor Standards Act, as amended, and the Migrant and Seasonal Agricultural Worker Protection Act, as amended. The Department finds that these comments offered no compelling reason why agricultural training and internship programs should not meet the statutory protections afforded all workers in the United States. Thus, the Department has determined that this requirement is necessary to ensure the appropriate protections and treatment of foreign nationals, and makes no modification to these requirements.

One comment was received regarding § 62.22(g)(3)(i), the screening and vetting of host organizations. This comment opposed the collection of Dun & Bradstreet Identification Numbers. The requirement of a Dun & Bradstreet number was proposed to help the Department ensure the bona fides of a potential third party provider with whom sponsors contract for exchange visitor program-related services, or with whom they place program participants. The Department has examined further this interim requirement for a Dun & Bradstreet number and has determined that the potential financial and resource implications, to be borne by designated sponsors outweigh the utility of the report for oversight purposes. Accordingly, the Department has removed this requirement in the final rule.

A comment was received opposing site visits of host organizations by sponsors. The Department takes this opportunity to again draw attention to the sponsor's responsibility to ensure that host organizations for trainees and interns possess and maintain both the ability and resources to provide structured and guided training or internship programs. Thus, site visits will be required for host organizations that have not previously participated successfully in the sponsor's training and internship programs if such organizations have fewer than 25 employees or less than three million dollars in annual revenue. The Department has determined that these requirements are a reasonable methodology to ensure that foreign nationals participating in these programs are being placed with employers capable of providing the training or internship experience that has been offered to the trainee or intern participant and documented on the required Training/Internship Placement Plan (Form DS-7002). This approach further helps to ensure that any training provider is properly motivated to participate in an experiential learning public diplomacy based activity and is not motivated by the desire for a temporary worker to meet transient labor needs. In addition, this requirement directly addresses GAO concerns. The Department makes no change to this rule.

Six comments were received relating to activities that are excluded from the training and internship programs as set forth at § 62.22(j)(1). These comments requested clarification of the meaning of “social work” and “medical social work” and whether both activities are excluded from training and internship programs. In addition, two comments proposed allowing supervised clinical activities. With the exception of the Alien Physician category, and as a matter of policy and long-standing practice, the Department finds that clinical-based activities fall outside the purview of the Exchange Visitor Program. Given this policy, the rule prohibits training or internship programs that involve “clinical” activities, i.e. those activities by definition or actual practice that involve or require direct patient contact. Thus, occupational fields as classified by the Department of Education's Classification of Instructional Programs (CIP) codes that fall under Public Administration and Social Service Professions ( i.e., youth services) will be permitted while occupational fields that fall under the Health Professions and Related Clinical Sciences classification of the CIP codes ( i.e., clinical/medical social work, hairdressers, dental services, nursing, veterinary medicine and services, etc.) are prohibited and no changes to the current interim regulation are being made.

Two (2) comments were received regarding the duration of internship program participation § 62.22(k) and nine (9) comments were received opposing the change in the program length of agriculture training programs from 18 months to 12 months. All 11 comments requested that the program length of training and internship programs be set at 18 months duration, as previously allowed under the now defunct “non-specialty” category for training programs. Mindful of the expertise of the GAO, and desiring to address criticism raised in no less than three GAO reports regarding the potential misuse of the Exchange Visitor Program for work purposes, the Department has determined that 12 months permits sufficient time to pursue a training program in the field of agriculture. Before entering the United States to participate in an agricultural training program, trainees must already have either a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in their occupational field acquired outside the United States; or in the alternative, five years of work experience in their occupational field outside the United States. Thus, this level of expertise further supports the Department's view that 12 months provides an appropriate length of program participation and the Department makes no change to the rule.

Two comments were received opposing the provisions governing the eligibility of intern and trainee participants and their potential participation in additional internship and training programs, § 62.22(n). These requirements were adopted to ensure that the objectives of the Exchange Visitor Program are met ( i.e., that participants receive training that will advance their chosen career fields, that interns complete their education and return to their home country with enhanced skills, and that the Exchange Visitor Program is not utilized for ordinary work purposes). To meet these policy objectives, the rule at § 62.22(n) is amended to clearly permit foreign nationals to participate in additional internship programs as long as the participant maintains full-time student status, ( i.e., changes to a higher educational level, or begins a new internship program within 12 months of graduation). The Department concludes that this clarification augments the pool of potential participants and is desirable as a matter of policy.

Fourteen (14) comments were received regarding the certifications required on the Training/Internship Placement Plan (Form DS-7002). The Department acknowledges concerns raised regarding sponsor obligations to screen host organizations and has added a field to the Form DS-7002 that will collect the Employer Identification Number (EIN). The Department has ascertained that each state has adopted differing requirements for Workers' Compensation Insurance coverage. Accordingly, § 62.22(g) has been amended to require sponsors to verify the existence of either a Workers' Compensation Insurance Policy, equivalent coverage, or if applicable, evidence of state exemption from the requirement of coverage.

The regulatory language governing the duration of a training or internship program has been amended to clarify the inherent expectation that sponsors administer their programs in accordance with their letter of designation or most recent letter of redesignation. This language will ensure that the trainee or intern is fully aware of the expectations of their program identified in the outlined Training/Internship Placement Plan (T/IPP). Twelve-month training programs in the field of agriculture may not be extended to 18 months by adding six months of classroom participation and studies at the end of the original 12-month program duration. The six months of related classroom participation and studies must have been part of the trainee's original T/IPP.

Finally, the Department published a notice in the Federal Register on July 11, 2008, (73 FR 40008) which announced the termination of flight training from the Exchange Visitor Program as of June 1, 2010. The section which governed flight training regulations has been removed from the final rule. Current flight training sponsors continue to have obligations to their exchange visitors pursuant to 22 CFR 62.63, and they must fulfill their responsibilities to all exchange visitors who are in the United States until the individual's exchange program is completed.

The Department originally published this rulemaking as a Proposed Rule, with a 60-day comment period. 71 FR 17768 (April 7, 2006). The Department received almost 1,600 comments in response to the NPRM, and incorporating many of the comments received into an Interim Final Rule and again solicited public comment (72 FR 33669 (June 19, 2007)). In response, the Department received and analyzed 120 comments. Certain suggestions identified above are incorporated in this Final Rule. The Department of State is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and that regulations implementing this function are exempt from the provisions of 5 U.S.C. 553. This rulemaking process has been conducted without prejudice as to whether it involves a foreign affairs function of the United States exempt from the requirements of 5 U.S.C. 553 and without prejudice as to whether the Department may invoke that exemption in other contexts.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501-1504.

This Final Rule has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996. See 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

This rule will not have a substantial effect on the states, the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this Final Rule does not have sufficient federalism implications to warrant application of the consultation provisions of Executive Orders 12372 and 13132.

In its promulgation of the Interim Final Rule at 72 FR at page 33673, the Department certified that the proposed changes to the regulations were not expected to have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive Order 13272, section 3(b). As discussed above, the Department is of the opinion that this Final Rule is exempt from the provisions of 5 U.S.C. 553, and no other law requires the Department of State to give notice of proposed rulemaking, and accordingly this proposed rule is not subject to the requirements of the Regulatory Flexibility Act. However, the Department has examined the potential impact of this final rule on small entities. Entities conducting student exchange programs are classified under code number 6117.10 of the North American Industry Classification System. Some 5,573 for profit and tax exempt entities are listed as falling within this classification. Of this total number of so-classified entities, 1,226 are designated by the Department of State as sponsors of an exchange visitor program, designated as such to further the public diplomacy mission of the Department and U.S. Government through the conduct of exchange visitor programs. Of these 1,226 Department designated entities, 933 are academic institutions and 293 are for profit or tax exempt entities. Of the 293 for profit or tax exempt entities designated by the Department, 131 have annual revenues of less than $7 million thereby falling within the purview of the Regulatory Flexibility Act. Of these 131 entities with revenues of less than $7 million, 50 are either an internship or a training program. Eight large, i.e. state universities are designated to conduct training and or intern based exchange activities. No state, local or tribal governments are designated training or intern sponsors. Although, as stated above, the Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and, as such, that this final rule is exempt from the rulemaking provisions of § 553 of the Administrative Procedure Act, given the demonstrated lack of impact of this rule, discussed immediately below to the small entities conducting student exchange programs noted above, the Department has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities.

The Department notes that these regulations have been in place since June 2007 and that no entity designated to conduct training and intern programs has identified an additional cost of compliance, involving either money or manpower. The Department has been unable to identify any such additional cost as well, thus the Department certifies this Rule as not having a significant economic impact on its designated sponsoring organizations.

The Department's certification concerning impact on small entities is made without prejudice as to whether this rulemaking involves a foreign affairs function of the United States exempt from the Regulatory Flexibility Act, as the Department believes it is, and without prejudice as to whether the Department may invoke that exemption in any other context.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. The Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has nevertheless reviewed this proposed regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Training and Internship exchange programs conducted under the authorities of the Fulbright-Hays Act promote mutual understanding by providing exchange visitors in their academic or occupational fields through participation in structured and guided work-based training and internship programs and to improve participants' knowledge of American techniques, methodologies, and technology. Upon their return home, these students and participants enrich their schools and communities with different perspectives of U.S. culture and events, providing local communities with new and diverse perspectives. Training and internship exchanges also foster enduring relationships and lifelong friendships which help build longstanding ties between the people of the United States and other countries. Though the benefits of these exchanges to the United States and its people cannot be monetized, the Department is nonetheless of the opinion that these benefits outweigh the costs associated with this final rule. The final rule does not impose any additional costs, but does eliminate the cost associated with sponsor staff researching and identifying Dun and Bradstreet numbers as currently required by 22 CFR 62.22(g)(3)(i). The Department calculates that the elimination of this requirement provides a net savings to sponsors of $140,000 (7,000 staff hours × $20 per hour).

The Department has reviewed this Final Rule in light of Sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

The information collection requirements contained in this rulemaking (Form DS-7002) have been approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35, under OMB Control Number 1405-0170, expiration date: 07/31/2012.

Electronic and Facsimile Availability

This document and additional information concerning OFAC are available from OFAC's Web site ( http://www.treas.gov/ofac ). Certain general information pertaining to OFAC's sanctions programs also is available via facsimile through a 24-hour fax-on-demand service, tel.: 202/622-0077.

The Iranian Transactions Regulations, 31 CFR part 560 (the “ITR”), implement a series of Executive orders that began with Executive Order 12613, which was issued on October 29, 1987, pursuant to authorities including the International Security and Development Cooperation Act of 1985 (22 U.S.C. 2349aa-9). In that Order, after finding, inter alia, that the Government of Iran was actively supporting terrorism as an instrument of state policy, the President prohibited the importation of Iranian-origin goods and services. Subsequently, in Executive Order 12957, issued on March 15, 1995, under the authority of, inter alia, the International Emergency Economic Powers Act (50 U.S.C. 1701-1706) (“IEEPA”), the President declared a national emergency with respect to the actions and policies of the Government of Iran, including its support for international terrorism, its efforts to undermine the Middle East peace process, and its efforts to acquire weapons of mass destruction and the means to deliver them. To deal with that threat, Executive Order 12957 imposed prohibitions on certain transactions with respect to the development of Iranian petroleum resources. On May 6, 1995, to further respond to this threat, the President issued Executive Order 12959, which imposed comprehensive trade and financial sanctions on Iran. Finally, on August 19, 1997, the President issued Executive Order 13059 consolidating and clarifying the previous orders.

The ITR implement these Executive orders and prohibit various transactions, including, among others, transactions with the Government of Iran, a term defined in section 560.304. That definition includes:

(a) The state and the Government of Iran, as well as any political subdivision, agency, or instrumentality thereof;

(b) Any entity owned or controlled directly or indirectly by the foregoing; and

(c) Any person to the extent that such person is, or has been, or to the extent that there is reasonable cause to believe that such person is, or has been, * * * acting or purporting to act directly or indirectly on behalf of any of the foregoing * * *.

The phrase entity owned or controlled by the Government of Iran is itself defined in section 560.313 of the ITR. OFAC today is publishing the names of 21 persons it has determined to be the Government of Iran. The names of these persons will be added to Appendix A to Part 560 at a later date.

It is important to note that Appendix A to Part 560 is not a comprehensive list of persons falling within the definition of Government of Iran. Even if a person is not listed in Appendix A to Part 560 or has not otherwise been specifically determined by OFAC to be the Government of Iran, if the person satisfies the definition of the term Government of Iran in the ITR, U.S. persons and others engaging in transactions subject to the ITR are prohibited from engaging in transactions with that person, regardless of its location, to the same extent they are prohibited from engaging in transactions with the persons listed in Appendix A to Part 560 or that have otherwise been specifically determined by OFAC to be the Government of Iran. U.S. persons and others engaging in transactions subject to the ITR also are prohibited from engaging in most transactions with any person located in Iran, even if that person does not come within the definition of the term Government of Iran. Finally, a person listed in Appendix A to Part 560 or otherwise specifically determined by OFAC to be the Government of Iran also may be subject to other sanctions programs administered by OFAC, in which case that person's name would also appear in the list at Appendix A to 31 CFR chapter V or on OFAC's Specially Designated Nationals and Blocked Persons List (“SDN” list), available on OFAC's Web site. Such a person is identified in Appendix A to Part 560, Appendix A to 31 CFR chapter V, or the SDN list by references (“tags”), located at the end of the person's listing, to the sanctions program(s) to which the person is subject ( e.g., [IRAN] [NPWMD] or [IRAN] [SDGT]).

OFAC has determined the following persons to be the Government of Iran:

1. ASCOTEC HOLDING GMBH (f.k.a. AHWAZ STEEL COMMERCIAL & TECHNICAL SERVICE GMBH ASCOTEC; f.k.a. AHWAZ STEEL COMMERCIAL AND TECHNICAL SERVICE GMBH ASCOTEC; a.k.a. ASCOTEC GMBH), Tersteegen Strasse 10, Dusseldorf 40474, Germany; Registration ID HRB 26136 (Germany); all offices worldwide [IRAN]

2. ASCOTEC JAPAN K.K., 8th Floor, Shiba East Building, 2-3-9 Shiba, Minato-ku, Tokyo 105-0014, Japan; all offices worldwide [IRAN]

3. ASCOTEC MINERAL & MACHINERY GMBH (a.k.a. ASCOTEC MINERAL AND MACHINERY GMBH; f.k.a. BREYELLER KALTBAND GMBH), Tersteegenstr. 10, Dusseldorf 40474, Germany; Registration ID HRB 55668 (Germany); all offices worldwide [IRAN]

4. ASCOTEC SCIENCE & TECHNOLOGY GMBH (a.k.a. ASCOTEC SCIENCE AND TECHNOLOGY GMBH), Tersteegenstrasse 10, Dusseldorf D 40474, Germany; Registration ID HRB 58745 (Germany); all offices worldwide [IRAN]

5. ASCOTEC STEEL TRADING GMBH (a.k.a. ASCOTEC STEEL), Tersteegenstr. 10, Dusseldorf 40474, Germany; Georg-Glock-Str. 3, Dusseldorf 40474, Germany; Registration ID HRB 48319 (Germany); all offices worldwide [IRAN]

6. BANK TORGOVOY KAPITAL ZAO (a.k.a. TC BANK; a.k.a. TK BANK; a.k.a. TK BANK ZAO; a.k.a. TORGOVY KAPITAL (TK BANK); a.k.a. TRADE CAPITAL BANK; a.k.a. TRADE CAPITAL BANK (TC BANK); a.k.a. ZAO BANK TORGOVY KAPITAL), 3 Kozlova Street, Minsk 220005, Belarus; Registration ID 30 (Belarus); all offices worldwide [IRAN]

7. BREYELLER STAHL TECHNOLOGY GMBH & CO. KG (a.k.a. BREYELLER STAHL TECHNOLOGY GMBH AND CO. KG; f.k.a. ROETZEL-STAHL GMBH & CO. KG; f.k.a. ROETZEL-STAHL GMBH AND CO. KG), Josefstrasse 82, Nettetal 41334, Germany; Registration ID HRA 4528 (Germany); all offices worldwide [IRAN]

8. EXPORT DEVELOPMENT BANK OF IRAN (a.k.a. BANK TOSEH SADERAT IRAN; a.k.a. BANK TOWSEEH SADERAT IRAN; a.k.a. BANK TOWSEH SADERAT IRAN; a.k.a. EDBI), Export Development Building, Next to the 15th Alley, Bokharest Street, Argentina Square, Tehran, Iran; Tose'e Tower, Corner of 15th St., Ahmed Qasir Ave., Argentine Square, Tehran, Iran; No. 129, 21's Khaled Eslamboli, No. 1 Building, Tehran, Iran; No. 26, Tosee Tower, Arzhantine Square, P.O. Box 15875-5964, Tehran 15139, Iran; No. 4, Gandi Ave., Tehran 1516747913, Iran; Registration ID 86936 (Iran) issued 10 Jul 1991; all offices worldwide [IRAN] [NPWMD]

9. IFIC HOLDING AG (a.k.a. IHAG), Koenigsallee 60 D, Dusseldorf 40212, Germany; Registration ID HRB 48032 (Germany); all offices worldwide [IRAN]

10. IHAG TRADING GMBH, Koenigsallee 60 D, Dusseldorf 40212, Germany; Registration ID HRB 37918 (Germany); all offices worldwide [IRAN]

11. INDUSTRIAL DEVELOPMENT AND RENOVATION ORGANIZATION OF IRAN (a.k.a. IDRO; a.k.a. IRAN DEVELOPMENT & RENOVATION ORGANIZATION COMPANY; a.k.a. IRAN DEVELOPMENT AND RENOVATION ORGANIZATION COMPANY; a.k.a. SAWZEMANE GOSTARESH VA NOWSAZI SANAYE IRAN), Vali Asr Building, Jam e Jam Street, Vali Asr Avenue, Tehran 15815-3377, Iran; all offices worldwide [IRAN]

12. IRAN FOREIGN INVESTMENT COMPANY (a.k.a. IFIC), No. 4, Saba Blvd., Africa Blvd., Tehran 19177, Iran; P.O. Box 19395-6947, Tehran, Iran; all offices worldwide [IRAN]

13. IRANIAN MINES AND MINING INDUSTRIES DEVELOPMENT AND RENOVATION ORGANIZATION (a.k.a. IMIDRO; a.k.a. IRAN MINING INDUSTRIES DEVELOPMENT AND RENOVATION ORGANIZATION; a.k.a. IRANIAN MINES AND MINERAL INDUSTRIES DEVELOPMENT AND RENOVATION), No. 39, Sepahbod Gharani Avenue, Ferdousi Square, Tehran, Iran; all offices worldwide [IRAN]

14. IRASCO S.R.L. (a.k.a. IRASCO ITALY), Via Di Francia 3, Genoa 16149, Italy; Registration ID GE 348075 (Italy); all offices worldwide [IRAN]

15. MACHINE SAZI ARAK CO. LTD. (a.k.a. MACHINE SAZI ARAK COMPANY P J S C; a.k.a. MACHINE SAZI ARAK SSA; a.k.a. MASHIN SAZI ARAK; a.k.a. “MSA”), Arak, Km 4 Tehran Road, Arak, Markazi Province, Iran; No. 1, Northern Kargar Street, Tehran 14136, Iran; P.O. Box 148, Arak 351138, Iran; all offices worldwide [IRAN]

16. MAHAB GHODSS CONSULTING ENGINEERING COMPANY (a.k.a. MAHAB GHODSS CONSULTING ENGINEERING CO.; a.k.a. MAHAB GHODSS CONSULTING ENGINEERS SSK; a.k.a. MAHAB QODS ENGINEERING CONSULTING CO.), 16 Takharestan Alley, Dastgerdy Avenue, P.O. Box 19395-6875, Tehran 19187 81185, Iran; No. 17, Dastgerdy Avenue, Takharestan Alley, 19395-6875, Tehran 1918781185, Iran; Registration ID 48962 (Iran) issued 1983; all offices worldwide [IRAN]

17. METAL & MINERAL TRADE S.A.R.L. (a.k.a. METAL & MINERAL TRADE (MMT); a.k.a. METAL AND MINERAL TRADE (MMT); a.k.a. METAL AND MINERAL TRADE S.A.R.L.; a.k.a. MMT LUXEMBURG; a.k.a. MMT SARL), 11b, Boulevard Joseph II L-1840, Luxembourg; Registration ID B 59411 (Luxembourg); all offices worldwide [IRAN]

18. MINES AND METALS ENGINEERING GMBH (M.M.E.), Georg-Glock-Str. 3, Dusseldorf 40474, Germany; Registration ID HRB 34095 (Germany); all offices worldwide [IRAN]

19. ONERBANK ZAO (a.k.a. EFTEKHAR BANK; a.k.a. HONOR BANK; a.k.a. HONORBANK; a.k.a. HONORBANK ZAO; a.k.a. ONER BANK; a.k.a. ONERBANK; a.k.a. ONER-BANK), Ulitsa Klary Tsetkin 51, Minsk 220004, Belarus; Registration ID 807000227 (Belarus) issued 16 Oct 2009; SWIFT/BIC HNRBBY2X (Belarus); all offices worldwide [IRAN]

20. SINA BANK (f.k.a. BFCC; f.k.a. BONYAD FINANCE AND CREDIT COMPANY; f.k.a. SINA FINANCE AND CREDIT COMPANY), 187 Motahhari Avenue, P.O. Box 1587998411, Tehran, Iran; Kish Financial Center, Sahel, Kish Island, Iran; SWIFT/BIC SINAIRTH (Iran); alt. SWIFT/BIC SINAIRTH418 (Iran); all offices worldwide [IRAN]

21. WEST SUN TRADE GMBH (a.k.a. WEST SUN TRADE), Winterhuder Weg 8, Hamburg 22085, Germany; Arak Machine Mfg. Bldg., 2nd Floor, opp. of College Economy, Northern Kargar Ave., Tehran 14136, Iran; Mundsburger Damm 16, Hamburg 22087, Germany; Registration ID HRB 45757 (Germany); all offices worldwide [IRAN]

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this rule. Under 5 U.S.C. 553(b)(3)(A), the Coast Guard finds this rule is exempt from notice and comment rulemaking requirements because these changes involve rules of agency organization, procedure, or practice. In addition, the Coast Guard finds notice and comment procedure are unnecessary under 5 U.S.C. 553(b)(3)(B) as this rule consists only of corrections and editorial, organizational, and conforming amendments and these changes will have no substantive effect on the public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective upon publication in the Federal Register .

This rule makes technical and editorial corrections to Title 33 parts 3 and 165 in the Code of Federal Regulations. This internal agency reorganization establishes Sector Columbia River and is part of a process begun in 2004, intended to strengthen unity of command in Coast Guard port, waterway and coastal areas.

This rule revises 33 CFR parts 3 and 165 to reflect changes in Coast Guard internal organizational structure. Sector Portland has been disestablished and Sector Columbia River has been established in its place. This rule revises 33 CFR parts 3 and 165 to reflect the Sector Columbia River and Captain of the Port Zone name change in current regulations. This rule is a technical revision reflecting changes in agency procedure and organization, and does not indicate new authorities nor create any substantive requirements.

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. Because this rule involves non-substantive changes and internal agency practices and procedures, it will not impose any additional costs on the public.

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.

We estimate this rule will not impose any additional costs and should have little or no impact on small entities because the provisions of this rule are technical and non-substantive, and will have no substantive effect on the public and will impose no additional costs. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this 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 that 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 section 2.B.2, figure 2-1, paragraph (34)(a) of the Instruction. This rule involves regulations which are editorial and/or procedural, such as those updating addresses or establishing application procedures. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

On June 15, 2009, the State of Delaware submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of administrative and non-substantive amendments to 32 of the SIP approved Delaware air pollution control regulations. In its SIP revision submittal, Delaware explains that under Title 29, Chapter 101 of the Delaware Codes (29 Del. C., Ch 101), regulatory agencies in Delaware are required to develop and adopt regulations, and publish the regulations in Delaware Register of Regulations. The State Registrar's Office under Division of Research of the General Assembly has developed guidelines and drafting manuals for Delaware regulations. Delaware issued the latest edition of drafting and style manual, entitled “Delaware Manual for Drafting Regulations” in March 2006 (“the 2006 Manual”). Since then, EPA has approved several Delaware SIP regulations in the manual-compliant format. However, a majority of the Delaware SIP regulations have not been updated.

The purpose of this SIP revision is to revise all Delaware SIP regulations so that they are consistent with the format prescribed in the 2006 Manual. In addition, Delaware has made some non-substantive changes and corrections of errors exclusively for this SIP revision:

• Administrative or editorial changes made under the administrative authority granted to Delaware Registrar's Office by 29 Del. C., Ch 1134 and applicable to all Delaware regulations for consistency purposes. Therefore, all Delaware air regulations, both existing ones and future ones, shall follow this format.

• Non-substantive changes made for clarification and consistency purposes and which do not alter or amend the intent or meaning of the subject regulation.

• Editorial changes, including correction of errors due to typos or misprints when a regulation was developed or revised to its current version.

The 32 regulations which Delaware has submitted administrative changes to EPA in this SIP revision are:

• Regulation 1 “Definitions and Administrative Principles”;

• Regulation 1102* “Permits”;

• Regulation 3 “Ambient Air Quality Standards”;

• Regulation 4 “Particulate Emissions From Fuel Burning Equipment”;

• Regulation 5 “Particulate Emissions From Industrial Process Operations”;

• Regulation 6 “Particulate Emissions From Construction and Materials Handling”;

• Regulation 7 “Particulate Emissions From Incineration”;

• Regulation 8 “Sulfur Dioxide Emissions From Fuel Burning Equipment”;

• Regulation 9 “Emissions of Sulfur Compounds From Industrial Operations”;

• Regulation 10 “Control of Sulfur Dioxide Emissions—Kent and Sussex Counties”;

• Regulation 11 “Carbon Monoxide Emissions From Industrial Process Operations New Castle County”;

• Regulation 12 “Control of Nitrogen Oxide Emissions”;

• Regulation 1113* “Open Burning”;

• Regulation 14 “Visible Emissions”;

• Regulation 15 “Air Pollution Alert and Emergency Plan”;

• Regulation 16 “Sources Having an Interstate Air Pollution Potential”;

• Regulation 17 “Source Monitoring, Recordkeeping and Reporting”;

• Regulation 23 “Standards of Performance for Steel Plants: Electric Arc Furnaces”;

• Regulation 1124* “Control of Volatile Organic Compound Emissions”;

• Regulation 1125* “Requirements for Preconstruction Review” (Sections 1, 2 and 3);

• Regulation 26 “Motor Vehicle Emissions Inspection Program”

• Regulation 27 “Stack Heights”;

• Regulation 1132* “Transportation Conformity”;

• Regulation 35 “Conformity of General Federal Actions to the State Implementation Plans”;

• Regulation 39 “Nitrogen Oxides (NO X ) Budget Trading Program”;

• Regulation 40 “Delaware's National Low Emission Vehicle (NLEV) Regulation”;

• Regulation 1141* “Limiting Emissions of Volatile Organic Compounds From Consumer and Commercial Products”;

• Regulation 1142* “Specific Emission Control Requirements (Section 1)”;

• Regulation 1144* “Control of Stationary Generator Emissions”;

• Regulation 1145* “Excessive Idling of Heavy Duty Vehicles”;

• Regulation 1146* “Electric Generating Unit (EGU) Multi-Pollutant Regulation”;

• Regulation 1148* “Control of Stationary Combustion Turbine Electric Generating Unit Emissions”.

The regulations marked with an asterisk (*) are SIP regulations (or a section or sections therein) which Delaware has revised after the issuance of the 2006 drafting manual.

Delaware has not submitted the following SIP regulations or sections in this SIP revision:

• Regulation 31 “Low Enhanced Inspection and Maintenance Program”;

• Regulation 37 “NO X Budget Program”;

Delaware did not include Regulation 31 because it is currently under substantive revision, and did not include Regulation 37 because it is no longer State enforceable. In addition, on June 10, 2010, Delaware withdrew the following regulations from this SIP submittal, as they are not currently part of the Delaware SIP: Regulation 1101, Section 2.0—those definitions not associated with SIP-approved regulations; Regulation 1103, Sections 7.0 and 9.0; Regulation 7, Section 2.0; Regulation 9, Section 2.2; and all regulatory provisions in Regulation 1146 governing the control of mercury emissions.

The following paragraphs summarize the global administrative amendments to Delaware's regulations that are part of this SIP revision:

1. Font Face and Size —All State regulations are converted to a standard font size. Such change does not alter any meaning of the subject regulations in any aspect.

2. Regulation Title Coding and Numbering —All revised regulations use a bold-face text for their titles.

3. Format of Definitions —All defined terms are highlighted in bold type, with the expression “means the” inserted at the beginning of each definition.

4. Section and Subsection Numbering —Two changes are made with respect to sections in a regulation under this SIP revision: (1) All prefixes of “Section-” in section title lines are deleted; (2) Sections are numbered using a consistent format of Arabic numeral “#.0”.

A majority of the current SIP regulations have subsections of various levels, and use different symbols for subsections, such as lower-case letters (a, b, * * * ), Roman numbers (i, ii, * * *), Arabic numbers in parenthesis [(1), (2), * * *], upper-case letters (A, B, * * *), and paired lower-case letters (aa, bb, * * *). All those subsection symbols in the current Delaware Air Quality Management (AQM) regulations are replaced by Arabic numbers under this SIP revision.

5. Citations in Regulations —All Delaware AQM regulations are to be cited as Delaware Administration Code by title and regulation number. Therefore, citations of another regulation are revised to a standard format.

6. Other Changes —The following changes are also made to the State AQM regulations submitted under this SIP revision, with strikeouts representing deletions and underlines for additions:

a. Changing “and/or” to “or”.

b. Changing “word(s)” to “word or words”.

c. Spelling out numbers from 1 to 9, except those followed by specifying symbols such as %, °C, °F, and those used for special terms such as “the 1-hour ozone standard.” However, numerals between 1.0 and 9.0 are not spelled out, due to the precision meaning held by the decimal place.

d. Using Arabic numbers for 10 and greater, except when used at the beginning of a sentence.

e. Changing word “percent” following a numeral to “%”.

f. Changing “deg C and deg F” to “°C and °F”, respectively.

g. Changing dates in the text, for example, from “12/02/94” to “December 2, 1994.”

a. Additions —In the current AQM regulations, sections and subsections may be referenced frequently in the regulation itself. In addition, the Federal Clean Air Act (the Act) may be cited frequently as well. To ensure precise citations and references, the terms “of (or in) this regulation” and “of (or in) the Act” are added wherever they seem necessary and adequate.

b. Deletions —In the current AQM regulations, terms such “section, subsection, part, subpart, paragraph, and subparagraph” are used extensively, but not consistently and properly. Under this SIP revision, the terms “section, subsection, part, subpart, paragraph, and subparagraph” are no longer used in front of section or subsection numbers.

c. Deleting Specific Section and Subsection Numbers —There are cases in the current AQM regulations where there is only one subsection in a section. This single subsection is no longer numbered.

The italic font is no longer used in Delaware's regulations.

A standard format of “X-Y” is adopted for all tables and equations, with X denoting a section and Y denoting table or equation order in that section.

Historically, all Delaware AQM regulations have placed a date immediately in front of or after a section title, indicating the date when the subject section was adopted in its latest version. Under this SIP revision, these dates are formatted as “mm/dd/yyyy.”

a. Numbering Appendices —All appendices in Regulation 24 are renumbered with un-quoted capital letters under this SIP revision, without strikeouts and underlines. In addition, all appendices of AQM regulations are identified using bold-face ( i.e., Appendix) to distinguish them from appendixes of other documents cited in the SIP regulations.

b. Footnotes in Appendices —According to Delaware's 2006 Manual, footnotes should be presented at the end of a regulation. For appendices, however, footnotes are placed at the end of each appendix under this SIP revision. For example, footnotes used in an appendix of Regulation 24 are presented at the end of the subject appendix, instead of at the far end of the entire regulation.

c. References in Appendices —Under this SIP revision, references in an appendix are no longer denoted by superscripts. Instead, a directing text in parenthesis “( see # of this appendix)” is used, where “#” is the order number of the reference listed at the end of the appendix.

Other non-substantive changes are made, mainly for consistency and clarification purposes.

Examples of global errors include:

• Correcting “cm3” to “cm 3 ”;

• Correcting “the 31st” to “the 31 st ”.

EPA is approving the described administrative and non-substantive amendments to the SIP approved Delaware air pollution control regulations as a revision of the Delaware SIP. As a result of this approval action, the format of Federally enforceable SIP regulations will be consistent with the format of the current Delaware AQM regulations. EPA's approval action does not revise the following sections of Regulations 1113, 1132, 1141, 1144, 1146, and 1148, as previous EPA SIP approvals had already incorporated these administrative and non-substantive changes:

• Regulation 1113, Sections 1.0, 2.0, 5.0 and 7.0.

• Regulation 1132, Section 1.0.

• Regulation 1141, Section 2.0.

• Regulation 1144, Sections 3.0, 8.0, and 9.0.

• Regulation 1146, Section 2.0, and Table 5-1.

• Regulation 1148, Sections 1.0 and 6.0.

Prior to Delaware's June 15, 2009 SIP revision submittal, Delaware submitted substantive amendments to Regulation 1102, Appendix A. EPA's action on that SIP revision is still pending. EPA will address the State's administrative revisions associated with these amendments concurrently with our review of the substantive amendments.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 12, 2010 without further notice unless EPA receives adverse comment by September 10, 2010. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action pertaining to administrative and non-substantive changes to Delaware's existing SIP-approved regulations may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

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

EPA is approving revisions to the SIP which will rescind the rule More Restrictive Emission Limitations for Particulate Matter in South St. Louis Area . This rule was originally established to control particulate matter and sulfur dioxide (SO 2 ) emissions for the South St. Louis “Hot Spot” which included restrictions applicable to the byproducts of coke ovens at 526 East Catalan Street owned and operated by Carondelet Coke Corporation and to a titanium pigment plant located at River des Peres and Mississippi River owned by N.L. Industries, Inc. The original rule was first adopted by the state and subsequently effective December 11, 1978. The EPA approved this new regulation through a final rulemaking on July 11, 1980. On August 30, 1982, EPA approved an amendment to this rule which provided for changes in ownership and operating responsibilities of the affected sources. On August 26, 1985, revisions to the state rule were made effective to delete provisions related to N.L. Industries, which was no longer in operation, and to make significant changes to provisions affecting Carondelet Coke. In addition, Missouri changed the title of this rule to More Restrictive Emission Limitations for Particulate Matter in South St Louis Area, which removed the reference to Sulfur Dioxide. These changes to the state rule were not approved Federally at that time. In 1988 Carondelet Coke went out of business and therefore Missouri is rescinding the rule as both entities subject to this rule are no longer in business.

In reviewing the rescission to the rule, EPA noted that this rule contained requirements for the restriction of fugitive particulates in the South St. Louis area. The state has a statewide fugitive dust rule, 10 CSR 10-6.170, which contains similar restrictions as the rule being addressed in this action. The statewide rule is also applicable in this South St. Louis “Hot Spot” area. EPA has compared the restrictions in the two rules and believes that the statewide 10 CSR 10-6.170 rule contains the same level of restrictions. In general, the statewide rule requires that “reasonable measures” be utilized to control fugitive emissions. EPA believes the statewide fugitive dust rule is as stringent as the requirements in the rescinded area rule and this action would not result in a relaxation of the SIP.

Because the two entities affected by the area-specific rule are no longer in operation, and because the state's statewide fugitive dust rule contains similar restrictions as this rule, EPA believes a rescission of the rule is appropriate, would ensure consistency between the state and federally-approved rules, and would not adversely affect air quality in the South St. Louis area.

The Restriction of Emission of Particulate Matter from Industrial Processes rule adds new exemptions and makes corrections and clarifications. The primary purpose of this rule is to limit the emissions of particulate matter in the source gas of an operation or activity from industrial processes. This is done through the use of process weight rate equations and tables contained in the rule. This rule was first adopted and subsequently effective on August 30, 2000. At that time, the rule consolidated the requirements of four similar out-state rules. The state initiated a follow-up rule action which addressed technical revisions to the rule that were adopted and subsequently effective on September 30, 2001. EPA approved this regulation and published the final rule making for this revision of the SIP on November 30, 2001. Subsequently, the state proposed these new rule revisions in October 2008 and submitted the revisions to the SIP on June 17, 2009. The revisions being addressed in this action are as follows:

1. Subsection (1)(B)8. was clarified to remove an outdated reference to 10 CSR 10-6.060 paragraphs (1)(D)1. and (1)(D)2. This subsection was amended to refer to appropriate provisions in 10 CSR 10-6.061. This reflects a prior rule revision by the state in which certain exemptions in rule 10-6.060 were moved to the new rule 10-6.061.

2. Subsection (1)(B)9. was added to clarify that emission sources permitted by rule under 10 CSR 10-6.062 were exempt from this regulation.

3. Subsection (1)(B)14. was added as an exemption for coating operations equipped with a control system designed to control at least ninety-five percent (95%) of the particulate overspray provided the system is operated and maintained in accordance with manufacturers' specifications or comparable maintenance procedures that meet or exceed manufacturers' specifications.

4. Subsection (1)(B)15. was added as an exemption for any particulate matter emission unit that is subject to a Federally enforceable requirement to install, operate, and maintain a particulate matter control device system that controls at least ninety percent (90%) of particulate matter emissions.

5. Subsection (1)(B)16. was added as an exemption for emission units that at maximum hourly design rate (MHDR) have an uncontrolled potential to emit less than the allowable emissions as calculated in subsections (3)(A)1. and (3)(A)2. of the rule.

6. Other general changes to the numbering systems were made.

EPA has reviewed the state's revisions to this rule as well as the state's technical support documentation (TSD) submitted with the SIP revision. The first two revisions to the rule (the revisions described in 1 and 2 above) are clarifying revisions. EPA has reviewed these revisions and believes these are appropriate and accurate.

The state also submitted three new exemptions to the rule. The first exemption (item 3 above) is for coating operations equipped to control at least ninety-five percent (95%) of particulate overspray. EPA believes that the TSD supports this exemption through a demonstration using one of the larger permitted facilities for spray coating operations. The demonstration shows that for applicable facilities, the controlled particulate matter levels are very minimal and that the controlled emission rate for this example facility is well below the emission rate limitation calculated using the process weight rule. The example unit would have a controlled emission rate of 0.01 lb/hr of particulate matter compared to the applicable process weight emission rate limit of 0.07 lb/hr.

In addition, Missouri indicated that that this rule does not change any actual processes related to coating operations, but instead will no longer require these exempt units to calculate emission rate limits which demonstrate that their units cannot physically exceed the limits contained in the rule.

The second exemption (item 4 above) is for any particulate matter emission unit that is subject to a federally enforceable requirement to install, operate, and maintain a particulate matter control device system that controls at least ninety percent (90%) of particulate matter emissions. Based on EPA's review, this exemption would not increase particulate matter emissions since the exemption requires controls, just through an enforceable mechanism other than this rule.

The third exemption (item 5) is for emission units that at maximum hourly design rate (MHDR) have an uncontrolled potential to emit less than the allowable emissions as calculated in subsections (3)(A)1. and (3)(A)2. of this rule. Based on EPA's review, this exemption would not increase particulate matter emissions limitations since the exemption is specifically for units which would not exceed the limits as calculated. This exemption was included in the rule so that units that are physically unable to reach the allowable emission limits would not have to run calculations each year to demonstrate this.

For item 6 above, these revisions did not change any emissions limits for any sources.

The state submitted the appropriate documentation to support the revisions to this rule and demonstrated that these exemptions will not adversely impact air quality. EPA believes the amendments to this rule are appropriate.

EPA is taking final action to approve the request to amend the Missouri SIP. The revisions pertain to a rescission and routine updates, corrections, clarifications and improvements as listed previously in this document. These modifications will not adversely affect air quality and will not relax the SIP. The state provided adequate justification where certain revisions could result in emissions increases.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. On October 1, 2008, Missouri published the proposed revisions to the rules in the Missouri Register. After considering public comments, the Missouri Air Conservation Commission (MACC) adopted the rule actions on February 3, 2009. Public comments were printed in the Missouri Register along with a re-print of the rule on April 15, 2009. The effective date was May 30, 2009. EPA received Missouri's SIP revision on June 17, 2009.

The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

EPA is processing this action as a direct final action because the revisions make routine changes to the existing rules which are noncontroversial. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:

EPA is approving revisions to the Nebraska SIP and Operating Permits Program which revise the state definition of volatile organic compounds; incorporate rules related to construction permit application fees and include a mechanism to use construction permits to accomplish other permitting needs; and clarify language related to open fires.

Changes to Chapter 1 revise the definition of volatile organic compounds (VOCs) to adopt changes that EPA made on November 29, 2004. In the first action (69 FR 69298), EPA added four chemicals to the list of excluded compounds at 40 CFR 51.100(s)(1), on the basis that these compounds make a negligible contribution to tropospheric ozone formation. These are: 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane;3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane; 1,1,1,2,3,3,3-heptafluoropropane; and Methyl formate.

In the second action (69 FR 69304), EPA modified the definition of VOC at 40 CFR 51.100(s)(5) to exclude t-butyl acetate as a VOC for purposes of VOC emission limitations or VOC content requirements. While EPA determined that t-butyl acetate has a negligible contribution to tropospheric ozone formation, and need not be considered in determining source compliance with restrictions on VOC emissions, it also concluded that the compound should still be subject to all recordkeeping, emissions reporting, modeling, and inventory VOC requirements. The EPA final rule was effective December 29, 2004. The Nebraska regulation does not retain the recordkeeping, emissions reporting, modeling, and inventory VOC requirements.

EPA has communicated with the state regarding this issue, and expects that Nebraska will revise its rule to retain the recordkeeping, emissions reporting, modeling, and inventory VOC requirements specified in the federal rule for sources using t-butyl acetate. Pending the state's revision of the rule, EPA is not approving the current submittal as it relates to t-butyl acetate. EPA is, however, approving the revision as it relates to the other compounds discussed above.

Changes to Chapter 17, construction permits, clarify various terms in the regulation, add cross-references, and delete redundant language. Additionally, Chapter 17, 003.01 adopts into Title 129 the construction permit application fee structure adopted by the Nebraska Legislature in 2004 at Neb. Rev. Stat. § 81-1505.06. EPA had determined that these primarily administrative changes are consistent with Federal requirements.

Changes to Chapter 17, 015 delineates the construction permit process to be used as a vehicle to accomplish other permitting needs when a construction permit is not actually required, including to establish enforceable limits to avoid otherwise applicable regulatory provisions, or to modify existing construction permits to incorporate modifications that cannot be processed otherwise. While EPA is approving this regulatory change as part of this SIP submission as consistent with EPA requirements, it should be noted that if this provision is used to establish requirements relating to another regulatory program required to be included in the SIP, such as a best available retrofit technology requirement to address Regional Haze, Nebraska would need to submit such requirements to EPA for SIP approval, in order to meet the requirements of the particular regulatory program. Therefore, EPA approval of this regulation does not imply approval of permit requirements which may be issued under the regulation.

Changes to Chapter 30 clarify language related to open fires, exemptions, and permits. Additionally, Chapter 30, 002.01 expands allowable exceptions to the Nebraska Department of Environmental Quality open fire ban to include fires set solely for religious activities. According to the state's documentation, this change was intended to end confusion about the allowability of fires used in Native American sweat lodge ceremonies in those areas where the state has jurisdiction. EPA believes that fires set solely for religious purposes are similar in terms of size, frequency, and emissions to fires set for recreational purposes, which are already exempted from the open fire ban. Therefore, this change is considered a clarification, and it is not expected to result in additional emissions increases or a SIP relaxation.

Changes to Chapter 30, 002.08 alter the wording to state that burning materials not authorized under a burn permit may result in withdrawal of the permit. The existing wording stating that burning unauthorized materials “will result in immediate withdrawal of the permit” is inconsistent with normal state enforcement procedures, which allow for case-by-case discretion. EPA notes that, in any event, burning of material not authorized under the permit would not be exempt from the open burning ban in the rule, and would, therefore, be a violation of the rule. Therefore, the change regarding withdrawal of permits does not affect the enforceability of the rule. EPA is approving the rule revision on this basis.

With the exception of the exemption of t-butyl acetate as discussed above, we are taking final action to approve revisions to the Nebraska SIP and Operating Permits Program. Approval of this revision will ensure consistency between the state and the Federally-approved rules. EPA has determined that these changes will not relax the SIP or adversely impact air emissions and will not substantively change the operating permits program.

We are processing this action as a direct final action because the revisions make noncontroversial changes to the existing rules. Therefore, we do not anticipate any adverse comments. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

Enforcement of the state regulation before and after it is incorporated into the Federally-approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in section 304 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 12, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

On November 13, 2009, the Council on Environmental Quality published a proposed rule that revised its existing regulations under the FOIA and added new provisions implementing the “Openness Promotes Effectiveness in our National Government Act of 2007” (OPEN Government Act of 2007), Public Law 110-175, 121 Stat. 2524 (Dec. 31, 2007) and the “Electronic Freedom of Information Act Amendments of 1996” (Electronic FOIA Amendments), Public Law 104-231, 110 Stat. 3048 (Oct. 2, 1996). See 74 FR 58576, Nov. 13, 2009. Interested persons were afforded an opportunity to participate in the rulemaking through submission of written comments on the proposed rule. CEQ received three responses to its proposed rule. CEQ has addressed the modifications suggested by the commenters and has made other revisions to its proposed rule for clarity as well.

CEQ coordinates Federal environmental efforts and works closely with agencies White House offices in the development of environmental policies and initiatives. CEQ was established within the Executive Office of the President by Congress as part of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., (NEPA); additional responsibilities were provided by the Environmental Quality Improvement Act of 1970, 42 U.S.C. 4372 et seq. CEQ's current FOIA regulations are published at 40 CFR part 1515 and are available on the CEQ's FOIA Web site at: http://www.whitehouse.gov/administration/eop/ceq/foia. Promulgated in 1977, 42 FR 65158 (Dec. 30, 1977), they have not been revised since to reflect current law or CEQ's policy and practice of conducting its activities in an open manner and providing the public with accurate and timely information about its activities. Amendments to the FOIA, including OPEN Government Act of 2007 and the 1996 Electronic FOIA Amendments, require changes in CEQ FOIA practices to promote openness and transparency in government, provide for public access to information in an electronic format and ensure a prompt and effective response to the public's requests for information. In addition, the Freedom of Information Reform Act of 1986 (1986 Act), Public Law 99-570, 100 Stat. 3207 (1986), the DOJ's “New FOIA Fee Waiver Policy Guidance” (April 2, 1987) and the OMB's Uniform FOIA Fee Schedule and Guidelines, 52 FR 10012, March 27, 1987, established pursuant to the FOIA, require amendments to the FOIA fee provisions, including a method for computing fees that is based upon the classification of the requester and the base pay of the employee making the search and a provision for waiving fees. Finally, the Presidential Memorandum of January 21, 2009, “Transparency and Openness,” 74 FR 4685, and the Attorney General's March 19, 2009 FOIA policy guidance have advised Federal agencies to apply a presumption of disclosure in FOIA decision-making. The Attorney General's guidance further advises that agencies should release information to the fullest extent of the law, including information that may be legally withheld, provided there is no foreseeable harm to an interest protected by an exemption or the disclosure is not prohibited by law.

Consistent with these laws and guidance, CEQ undertook a comprehensive review of its FOIA regulations. As a result CEQ proposes to revise its regulations to more clearly reflect current law, CEQ's current organizational structure, its record system configuration, and FOIA policy and practice as well as to eliminate outdated regulatory provisions. CEQ has modeled many of the provisions in today's rules on similar regulations previously adopted by other Federal agencies. Thus, many are identical to or closely resemble the requirements adopted by other Federal agencies, and as such represent regulatory “best practices” concerning FOIA procedures. The fee provisions reflect OMB's FOIA fee provisions. Additional provisions reorganize and renumber current FOIA regulations to reflect and implement the FOIA amendments referenced above.

CEQ's policy of disclosure follows the Presidential Memorandum and the Attorney General's guidance. Congress established CEQ to advise the President on matters of environmental policy. Therefore, members of the public should be advised that communications between CEQ and the President (and their staff) may be confidential and thus may not be released if they fall within a FOIA exemption. However, based on the recommendation of the CEQ FOIA Officer or Appeals Officer, CEQ considers the release of an entire record, even if it comes within an exemption or contains policy advice, if its disclosure would not impair Executive Branch policymaking processes or CEQ's participation in decision-making.

CEQ received three responses to its request for comments: one from an organization that represents state and local associations of home builders and regularly relies on FOIA as part of its advocacy and two from private citizens who submit FOIA requests. Each of these responses contained several comments, which are available at the CEQ Proactive Disclosure Reading Room at: http://www.whitehouse.gov/administration/eop/ceq/foia/readingroom .

In general, all commenters supported CEQ's proposed regulatory revisions. One commenter observed that it was encouraging to see that CEQ was bringing its FOIA response practices “up to date”; another noted that the regulatory changes will facilitate greater access and public disclosure of information: “the public in general and FOIA requesters will greatly benefit from these proposed changes.” Within this context, all three commenters requested clarifications and, in several instances, additions to the FOIA regulations.

One commenter was “encouraged” that CEQ's proposed revisions specifically respond to the Presidential Memorandum of January 21, 2009 and the Attorney General's March 19, 2009, FOIA policy guidance but noted that “CEQ makes no mention of a presumption of openness, full disclosure, or increased transparency anywhere in its revisions.” The same commenter states that CEQ's proposed deletion of § 1515,10(c) is in direct conflict with the 2009 directives. A commitment to the Presidential Memorandum as well as the Attorney General's guidelines is the driving force behind the revision of CEQ's FOIA regulations. CEQ has revised Section 1515.10(c) to make this intention clear.

One commenter stated that CEQ's designation of its Chief FOIA Officer as also the agency's Appeals Officer constitutes “a conflict of interest.” CEQ appreciates the commenter's interest in ensuring that FOIA appeals decisions are rendered on their own merits and without consideration of potentially conflicting administrative or policy considerations. However, CEQ has observed no such conflicts and, to the contrary, has found that its FOIA program has functioned well with a Chief FOIA Officer who benefits from the practical experience of appeals work. Moreover, CEQ remains a small agency that typically does not maintain sufficient career staff with FOIA expertise to ensure that the Chief FOIA Officer and Appeals Officer positions can be maintained by different individuals. Therefore, Section 1515.4(b) of the final regulation makes clear that the Chief FOIA Officer is responsible for oversight of the CEQ's administration of the Freedom of Information Act; he or she does not encounter FOIA requests and responses directly but, rather, designates a CEQ FOIA Officer to manage daily business, including receiving, routing, and overseeing the processing of all FOIA requests. The Chief FOIA Officer maintains general familiarity with CEQ's FOIA practice, which makes the Chief FOIA Officer the logical choice for Appeals Officer.

Two commenters expressed concerns about CEQ's proposed response time. The first asserts that CEQ would like to use a “complicated formula of tolling to delay a timely response” and that Section 1515.6 “should not be put into practice or into the CEQ's rules.” The OPEN Government Act of 2007 amended FOIA's existing time period provision by setting forth statutory provisions regarding when the time period commences and when and how often it can be “tolled,” or stopped. Section1515.6 of CEQ's revised regulations are consistent with those statutory provisions ( See OPEN Government Act § 6 (codified at 5 U.S.C. 552(a)(6)(A)). CEQ proposed shortening the interval during which a requester can file an appeal from 45 days to 30 days once the requester has received an adverse determination through a request for clarification. While supporting this proposed reduction of the interval, a commenter noted inconsistencies between the time period specified in the section-by-section analysis of the proposed regulation and the regulatory language itself. CEQ has decided to provide a 60-day time period for submitting an appeal.

One comment questions the justification for CEQ's adjustment of its fee schedule. CEQ finds that this modest adjustment, the first since the initial publication of CEQ's FOIA regulations in 1977, reflects the increased cost of human resources, specifically the base salary of FOIA staff, in addition to a rise in paper costs and copying equipment. The final fee adjustment is consistent with OMB Fee Guidelines ( See 52 FR 10012).

The same commenter states that CEQ's policy of consulting requesters about costs associated with a search likely to surface a voluminous amount of records before the search constitutes a means to “withhold information.” CEQ experience with requests for voluminous records, including extensive e-mail records, confirms that consulting with requesters can reduce costs and provide for more timely and informative responses. FOIA provides for two hours of free search time and copies the first 100 pages of records at no cost to all but commercial requesters.

One commenter requested the addition of language in the preamble or the regulations that provides for the protection of sensitive archeological information in response to FOIA requests. Several other statutes and regulations relating to cultural resources provide this authority for withholding of archeological resource information. CEQ does not typically maintain non-public records related to archeological sites, but would protect those records in accordance with FOIA and other applicable law. CEQ finds that the regulations adequately protect these interests and has declined to specifically identify other applicable authorities at this time.

Another comment concerned the intersection of the proposed regulations with CEQ's NEPA regulations, specifically 40 CFR 1506(f) which provides that Environmental Impact Statements, the comments received, and the underlying information be made available to the public by Federal agencies pursuant to FOIA at no charge to the extent practicable. The commenter suggested that this section should be referenced in the preamble or the rule. CEQ agrees that its FOIA resources, particularly its Proactive Disclosure Reading Room, should be used to advance NEPA's goals of transparency and public accountability in decision-making. As resources allow, CEQ will use its Proactive Disclosure Reading Room and associated Web sites (particularly http://www.nepa.gov ) to make environmental documents more accessible to the public.

Section 1515.1. The FOIA, 5 U.S.C. 552, allows the public access to Federal agency records except those that are protected from release by nine specified exemptions. Language is added to the end of this section advising requesters that the regulations should be read together with the FOIA.

Sections 1515.2(b) and 1515.2(c). Sections 1515.2(b) and Section 1515.2(c) are deleted in their entirety. Information about CEQ's purpose and functions is available online at http://www.whitehouse.gov/administration/eop/ceq. In 1995 Congress passed the Federal Reports Elimination and Sunset Act (Pub. L. 104-66) aimed at reducing paperwork in government, in part through the elimination of a list of reports identified in House Document No. 103-7. CEQ's Environmental Quality Report was listed on page 41. In addition, CEQ no longer maintains the “Quarterly Reports” referred to in Section 1515.2(c)

Sections 1515.3(a) and (c). These sections have been revised to reflect the current organizational structure of CEQ. Although the National Environmental Policy Act creates CEQ to have three members appointed by the President and confirmed by the Senate (42 U.S.C 4342), in accordance with CEQ annual appropriations, the Council consists of one member.

Section 1515.3(e). This section has been deleted to reflect CEQ's current organizational structure. CEQ currently has an Associate Director for Communications but does not have a “Public Affairs” office.

Section 1515.3(f). The hours of operation and CEQ telephone number and zip code have been updated in this section.

Section 1515.4(a). The Open Government Act of 2007, amending 5 U.S.C. 552(j), requires agencies to designate a Chief FOIA Officer who is responsible for the efficient and appropriate compliance with and implementation of the FOIA. At CEQ, this official may also serve as the FOIA Appeals Officer and, along with the FOIA Public Liaison designated in Subsection 1515.3(d), is designated to provide a clear point of contact for the public in dealing with the CEQ on FOIA matters. Thus, a new Section 1515.4(a) implements these laws and incorporates the information described in the current Section 1515.5(a).

Section 1515.4(b) . The OPEN Government Act of 2007, amending 5 U.S.C. 552(k)(6), requires agencies to designate a FOIA Public Liaison who reports to the Chief FOIA Officer and whose role is to provide information to the public regarding the status of its FOIA requests and to receive “concerns about the service a requester has received from the [FOIA Requester Service] Center.” The OPEN Government Act of 2007, at 5 U.S.C. 552(l), further directs the Public Liaison to “assist, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes.” At CEQ, the FOIA Public Liaison is the FOIA Officer responsible for reviewing and making the initial determination on a FOIA request. Thus, a new Section 1515.4(b) is added to implement these laws and CEQ current practice.

Section 1515.5(a). The language in this section has been deleted, and the information concerning CEQ's “Chief FOIA Officer” and “Appeals Officer” has been moved to a new Section 1515.4. In addition, this section has been renamed “Availability of Records.” Pursuant to Section 2(c)(i) of E.O. 13392, CEQ maintains an online FOIA Requester Service Center “which shall serve as the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's FOIA response.” The 1996 FOIA Amendments, amending 5 U.S.C 552(a)(2), requires agencies to make records that may be the subject of future requests, including computer telecommunications, created on or after November 1, 1996, available by electronic means. Accordingly, language is added to this section to implement these laws.

Section 1515.5(b)(1). To reflect current CEQ practice, the language in this section is deleted in its entirety and replaced with the process the public follows when requesting information from CEQ. Like the original section, the new Section 1515.5(b)(1) requires all requests to be in writing and provides updated address and telephone contact information. It has also been revised to add language notifying requesters that they may submit FOIA requests via e-mail or facsimile.

Section 1515.5(b)(2). The first two sentences of this section are deleted in their entirety, and the information contained in these deletions are reorganized and stated in Section 1515.5(b)(1). The language in current Section 1515.5(b)(3) is moved to this section. Additionally, the 1996 Amendments, amending 5 U.S.C. 552(a)(3)(B), require agencies to provide records in the form or format requested “if the record is readily reproducible by the agency in that form or format.” Accordingly, language is added to this section notifying requesters to specify the form or format in which they wish to receive their response; otherwise CEQ will produce the request in the form or format most accessible to CEQ. Requesters are advised that FOIA requests themselves are part of CEQ's agency records subject to public release under FOIA.

Section 1515.5(b)(3). This language has been reorganized and incorporated into Section 1515.5(b)(2). In addition, the Open Government Act of 2007, amending 5 U.S.C. 552(a)(6)(B)(iii)(III), grants agencies the authority to consult with another agency with a substantial interest in the determination of the request. The 1996 Amendments, amending 5 U.S.C 552(a)(6)(D)(i) and (ii), allow agencies to provide for multi-track processing of requests for records based on the amount of time and/or work involved in processing of requests and to allow a FOIA requester whose request does not qualify for the fastest multi-track processing an opportunity to limit the scope of the request in order to qualify for faster processing. Thus language is added to this section to implement these amendments.

Section 1515.5(b)(5). The Open Government Act of 2007, amending 5 U.S.C. 552(a)(6)(A), provides that the statutory time period for determination commences “on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency's regulations under this section to receive requests.” The language in the current Section 1515.5(b)(5) is deleted to reflect current law. In addition, the new § 1515.6 contains new language notifying requesters that the determination period begins on the date CEQ receives the request.

Section 1515.6(a) This section renumbers and revises current Section 1515.5(c)(1). The 1996 Act, amending 5 U.S.C. 552(a)(6)(A)(i), lengthened the time within which agencies must respond to FOIA requests from 10 to 20 working days. Moreover, the OPEN Government Act of 2007 added Sections 552(a)(6)(A)(ii)(I) and (II) to the FOIA which provide authority for agencies to toll the 20 day determination period. Specifically, an agency “may make one request to the requester for information and toll” the statutory time period “while it is awaiting such information that it has reasonably requested from the requester.” It may also toll the time period “if necessary to clarify with the requester issues regarding fee assessment.” There is no limit given for the number of times the agency may go back to a requester to clarify issues regarding fee assessments, which may need to be done in stages as the records are being located and processed. In both situations, the agency's receipt of the requester's response to the agency's request “ends the tolling period.” Accordingly, the time limit for determination is revised and language is added to this subsection to implement these laws.

Section 1515.6(b). The OPEN Government Act of 2007, which added 5 U.S.C. 552(a)(7), requires agencies to assign a tracking number for each request that will require more than 10 days to process and provide requesters with information regarding the status of their request. It further requires agencies to establish a phone number or an internet site to enable requesters to inquire about the status of their request. Accordingly, this section has been added to implement these requirements.

Section 1515.6(c). This section renumbers current Section 1515.5(c)(2).

Section 1515.6(d). This section renumbers and revises current Section 1515.5(c)(4). The 1996 Act and the OPEN Government Act of 2007, amending 5 U.S.C. 552(a)(2), require agencies in the event of a denial, in whole or in part, to indicate the extent of any deletion made in released records and publicly available records and to inform the requester of the estimated volume of material withheld. Thus language is added to this section to implement these laws.

Section 1515.7. The 1996 Act, amending 5 U.S.C. 552(a)(6)(E)(i), directs agencies to provide for expedited processing of FOIA requests in cases of “compelling need” and in other cases, if any, determined by the agency. Thus this new subsection 1515.7 is added which tracks the language of the FOIA amendments. The FOIA also sets out procedures for handling requests for expedited processing and for appeals which are followed and incorporated in this section.

Section 1515.8(a). This section renumbers and revises current § 1515.5(d)(1) and explains the appeals process to a FOIA request determination. In order to streamline CEQ's FOIA process and provide prompt responses, the time period for filing an appeal is increased to 60 days.

Section 1515.8(b). This section is added to advise requesters that they may file written appeals via e-mail or facsimile.

Section 1515.8(d). This section renumbers and revises current § 1515.5(d)(4). Language is added to notify requesters that the 20 day appeal determination period does not include Saturdays, Sundays, and Federal holidays.

Section 1515.9. This section renumbers and revises current Section 1515.5(e). The FOIA at 5 U.S.C. 552(a)(6)(B) and Section 1515.5(e) of CEQ's current regulations permit CEQ, upon written notice to the requester, to extend the time limit for acting on a request or appeal if “unusual circumstances” exist. The 1996 Act, amending 5 U.S.C. 552(a)(6)(B)(ii), expanded this authority to permit agencies to further extend the response time by notifying the requesters and providing them with an opportunity to either limit the scope of their request so that no extension is needed, or to arrange with the agency an alternative time frame for processing the request. Accordingly, a new § 1515.9(b) is added to implement this law, and the definition of “unusual circumstances” currently at § 1515.5(e)(i), (ii) and (iii) is renumbered and restated in a new § 1515.9(c).

Section 1515.10(a). The 1996 Act, amending 5 U.S.C. 522(a)(3) (C) and (D) requires agencies to provide requested records in any form or format requested, if the record is readily reproducible by the agency in that form or format. Agencies must make reasonable efforts to maintain their records in forms or formats that are reproducible electronically and to search for requested records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system. Accordingly, language is added to this section to implement this law. Language is also added to this section advising requesters that CEQ will make requested materials available at its online FOIA Center.

Section 1515.10(b). The OPEN Government Act of 2007, amending 5 U.S.C. 522(b), amends the current FOIA provision listing exemptions and generally requiring agencies to indicate directly “on the released portion of the record” the amount of information deleted, by adding the requirement that agencies also indicate “the exemption under which the deletion is made.” Accordingly, this section is added as § 1515.10(b) which follows the language of this law.

Section 1515.10(c). In a Memorandum to Heads of Executive Departments and Agencies dated January 21, 2009, the President directed Federal agencies to implement the FOIA with a presumption of openness and in favor of disclosure. CEQ is committed to operating transparently and subject to public scrutiny and accountability and has revised this provision of its regulations accordingly while providing for the withholding of confidential communications in accordance with CEQ's authorizing legislation.

Section 1515.11. The current § 1515.15 regarding “Costs” is deleted in its entirety, and is replaced with updated fee structure and policy, §§ 1515.11 through 1515.15, to be consistent with “The Freedom of Information Reform Act of 1986,” Public Law 99-570, 1801-1804, 100 Stat. 3207, 3207-48 (1986), which established the current FOIA fee structure and waiver standard, and subsequent policy guidance and guidelines issued by the U.S. Department of Justice, “New FOIA Fee Waiver Policy Guidance” (4-2-87), and the Office of Management and Budget, “Uniform Freedom of Information Act Fee Schedule and Guidelines.” 52 FR 1007, March 27, 1987. CEQ's fee structure includes a method for computing fees that is based upon the classification of the requester and the base pay of the employee making the search, an increase of copying costs from $0.10 to $0.15 per page, and provides for waiver of fees.

Section 1515.16. This new section advises requesters that CEQ's FOIA regulations do not “entitle any person, as of right, to any service or to the disclosure of any records to which such person is not entitled under the FOIA.”

This rulemaking is in compliance with the Administrative Procedure Act (5 U.S.C. 553). Interested persons were invited to submit written comments to CEQ on the proposed regulation. CEQ reviewed all comments received and made modifications to the proposal which appear warranted.

For purposes of the Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6), the final rule will not have a significant economic impact on a substantial number of small entities. The rule addresses only the procedures to be followed: (1) To request CEQ records; or (2) in the production or disclosure of CEQ materials and information in litigation where CEQ is not a party. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for certain categories of requesters. CEQ's proposed fee structure is in accordance with DOJ guidelines and based upon OMB fee schedules which calculate costs based upon the category of requester and kind of employee duplicating the records. Thus, fees assessed by CEQ are nominal and will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), the final rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation).

In issuing this regulation, CEQ has adhered to the regulatory philosophy and the applicable principles of regulation as set forth in Section 1 of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735. This final rule has not been reviewed by the Office of Management and Budget under that Executive Order since it is not a significant regulatory action within the meaning of the Executive Order.

CEQ has reviewed this regulation in light of Section 3 of Executive Order 12988, Civil Justice Reform, and certifies that it meets the applicable standards provided therein.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this regulation does not impose any reporting or recordkeeping requirements.

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., and the CEQ regulations which implement the NEPA, 40 CFR 1500-1508, impose requirements for considering the environmental impacts of proposed agency decisions and actions. They provide for each agency to develop a list of categories of actions called categorical exclusions (CEs) that are determined through agency experience to typically have no significant environmental impact and thus may generally be excluded from detailed analysis and documentation. It further directs agencies to prepare an environmental impact statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.” If an action may have a significant impact and the agency has not decided to prepare an EIS, the agency must prepare an environmental assessment (EA). If, as a result of this assessment, the agency makes a Finding of No Significant Impact (FONSI), no further action is necessary. If it will have a significant effect, then the agency uses the EA to develop an EIS.

CEQ's NEPA regulations do not have a CE for either the dissemination of information under the FOIA or the preparation, revision, and adoption of regulations, directives, and other guidance documents. Thus, as set forth in CEQ's November 13, 2009 Federal Register notice for its proposed rulemaking, CEQ developed an EA to determine whether the proposed revisions to CEQ's FOIA regulations may or may not have a significant impact on the human environment. CEQ received no comments on the EA. Because these rules pertain solely to procedures regarding the dissemination of information and will have not only a minimal impact on CEQ resources, including paper consumption, but will conserve resources and improve the FOIA process, CEQ has found that these final regulations will have no significant impact on the human environment and therefore, an EIS is not required.

I. Background

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) directs Federal agencies to use technical standards and design specifications developed by voluntary consensus standard bodies instead of government-developed technical standards, when practicable. The Office of Management and Budget (OMB) Circular A-119: “Federal Participation in the Development and Use of Voluntary Consensus Standards,” sets the policies on Federal use of voluntary consensus standards. As defined in OMB Circular A-119, voluntary consensus standards are technical standards developed or adopted by organizations, both domestic and international. These organizations use agreed upon procedures to update and revise their published standards every three to five years to reflect modern technology and best technical practices.

PHMSA's Office of Pipeline Safety employees participate in more than 25 national voluntary consensus standards committees. PHMSA reviews, and may adopt, standards that are applicable to pipeline design, construction, maintenance, inspection, and repair. Prior to adopting any standard, PHMSA reviews each new edition to determine whether it should be incorporated in whole or in part into the pipeline safety regulations. When PHMSA believes some aspect of a standard does not meet this directive, it will not incorporate the new edition. PHMSA has the ultimate responsibility to ensure the best interests of public safety are served. There are more than 60 standards and specifications incorporated by reference in 49 CFR part 192, Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards; 49 CFR part 193, Liquefied Natural Gas Facilities: Federal Safety Standards; and 49 CFR part 195, Transportation of Hazardous Liquids by Pipeline.

Previous updates to incorporate industry standards by reference were published May 24, 1996, (61 FR 26121), June 6, 1996, (61 FR 2877), February 17, 1998, (63 FR 7721), June 14, 2004, (69 FR 32886), June 9, 2006, (71 FR 33402), February 1, 2007, (72 FR 4657), and April 14, 2009, (74 FR 17099).

On July 22, 2009, PHMSA published a Notice of Proposed Rulemaking (NPRM) to incorporate by reference new, updated, or reaffirmed editions of voluntary consensus standards into the Federal pipeline safety regulations. PHMSA proposed to incorporate by reference all or parts of 40 technical standards and make editorial corrections to certain regulations. PHMSA did not propose to incorporate four new editions of ASTM International (ASTM) standards (ASTM D638, D2513, D2517, and F1055). Therefore, the gas pipeline safety regulations continue to reference standards found in ASTM D638 (2003 edition), ASTM D 2513 (1987 edition), ASTM D2513 (1999 edition), ASTM 2517 (2000 edition) and ASTM F1055 (1998 edition). In addition, PHMSA did not propose to incorporate the 2008 editions of the National Fire Protection Association (NFPA) NFPA 58: “Liquefied Petroleum Gas Code” (LP-Gas Code) and NFPA 59: “Utility Liquefied Petroleum Gas Plant Code (Utility LP-Gas Plant Code). Therefore, PHMSA will continue to reference the 2004 editions of NFPA 58 and 59 in part 192 of the Federal pipeline safety regulations.

PHMSA received a total of 19 comments in response to the NPRM. Several comments were from trade and standards associations including: The American Gas Association (AGA); the Interstate Natural Gas Association of America (INGAA); the National Propane Gas Association (NPGA); the American Petroleum Institute (API); the Oklahoma Independent Petroleum Association (OIPA); the Southern California Gas Association (SCGA); the National Fire Protection Association (NFPA) and the Gas Piping Technology Committee (GPTC). One state agency, the Iowa Utilities Board, filed a comment as well as the National Association of Pipeline Safety Representatives (NAPSR), an organization of state agency pipeline safety managers responsible for the administration of their state's pipeline safety programs. Five operators, Southern California Gas Company and San Diego Gas & Electric, Baltimore Gas and Electric Company, CenterPoint Energy Resources Corporation, and Distrigas of Massachusetts LLC submitted comments. Three private citizens also submitted comments.

PHMSA also met with representatives from NFPA during the comment period. A summary of this September 8, 2009, meeting is available in the docket (PHMSA-2008-0301).

The majority of the comments received were in opposition to a proposed change to § 192.11(c) altering the primacy of the NFPA 58 and 59 standards over part 192. The comments are summarized and discussed under each issue area below:

Under the current version of § 192.11(c), if a conflict arises between NFPA 58 and 59 and part 192, NFPA 58 and 59 would prevail. However, since this primacy was established in 1996, some operators have been misinterpreting the meaning of “conflict.” Operators are complying with the NFPA standards when the requirements of these NFPA standards and part 192 are in direct conflict; however, the misinterpretation arises when NFPA is silent or nonspecific on a subject covered in part 192. In these situations, some operators have misinterpreted § 192.11(c) to mean they do not need to comply with these additional requirements listed in part 192.

The NPRM had proposed to reverse this primacy so that part 192 would prevail if the two conflict. In the NPRM, PHMSA explained that NFPA 58 was originally developed as a design and installation code and, as such, did not cover ongoing corrosion control issues or operations and maintenance (O&M) activities. Recently, NFPA 58 adopted several O&M requirements; however, they are significantly less stringent than the requirements found in part 192. PHMSA believes that NFPA 58 currently fails to sufficiently address damage prevention, odorization, distribution valve maintenance, leak surveys, emergency plans, failure investigation, and public awareness. Because NFPA 58 and 59 currently prevail, when there is a conflict in one of these areas with part 192, operators would be allowed to comply with a less stringent requirement. Additionally, propane gas does not safely dissipate when it leaks and as a result can represent a greater potential hazard to the public than natural gas. Therefore, it would be inappropriate to impose weaker standards on propane distribution facilities than on natural gas distribution facilities. Without a change to § 192.11(c), PHMSA believes that the NFPA's O&M requirements would actually decrease safety in areas where they conflict with part 192 requirements.

Nine commenters objected to this proposed change. Commenters requested an explanation of the misinterpretations referred to in the NPRM and suggested that the proposed change is substantive and therefore inappropriate for this type of rulemaking. Commenters maintained that petroleum gas systems are often installed by plumbers who may not be aware of part 192 requirements but are familiar with NFPA 58.

Commenters also stated that the NFPA 58 and NFPA 59 consensus standards were developed by industry, manufacturers, listing agencies, state and Federal regulators, and insurance professionals and that these standards are specific to the installation and utilization of liquefied petroleum gas (LPG). Commenters stated there are extensive differences between propane-air plants and pipeline transportation facilities and the physical properties of LPG are not compatible with the current regulations for natural gas systems.

One commenter supported the change noting that the O&M requirements are clearer in part 192 than NFPA 58 and, therefore, the primacy of part 192 over NFPA 58 and 59 would be beneficial.

According to the NFPA, the proposed change would create conflicts between NFPA 58 or 59 and part 192. The proposed change would affect inspection of pressure vessel relief valves, process piping design standards, welding standards and the use of threaded connections, polyethylene (PE) pipe in LPG systems above 30 psig, gray cast iron, and regulator configuration for smaller LPG systems. NFPA recommended that the reference to NFPA 58 and NFPA 59 in § 192.11 be revised to clarify that these NFPA standards are applicable to propane storage systems only and not to underground gas distribution systems. NFPA also recommended that § 192.11 specify which operating requirements of part 192 are applicable to propane storage systems, including operations, maintenance, qualification of pipeline personnel, and public awareness planning. NFPA suggested that the conflicts between its NFPA 58 and 59 standards and part 192 can be resolved through the NFPA standards updating process.

NPGA asserted that NFPA is better suited than PHMSA to develop petroleum gas regulations.

PHMSA response: Petroleum gas transportation requirements need to achieve the same level of safety as natural gas transportation requirements. PHMSA continues to have concerns regarding the level of safety required in NFPA 58 and 59 standards in certain subject areas. The newer editions of NFPA 58 have expanded the scope of covered facilities and have more conflicting requirements than the currently incorporated editions. PHMSA believes that the NFPA 58 and 59 committees should analyze the following topics in consideration of public safety: Internal valves on tank penetrations transporting propane, relief valves, equipment separation and location distances, facility cathodic protection, and requirements for “retroactive” application of the standards.

PHMSA will address the subject of NFPA 58 and 59 primacy under a separate rulemaking. In the interim, compliance with part 192 requirements has not changed. When a requirement exists in part 192 that does not exist in NFPA 58 or 59, operators are required to comply with it. A conflict only exists when an operator cannot comply with a requirement in NFPA 58 and 59 because it conflicts with a requirement in part 192. When a conflict exists, NFPA 58 or 59 continue to prevail.

PHMSA proposed to amend § 192.557(c) in response to a petition by the GPTC to clarify that a previous pressure test would allow for a pipeline to operate at the higher maximum allowable operating pressure (MAOP). Several commenters stated that this explanation misstated the purpose of the change. Many commenters objected that this is a substantive change and therefore inappropriate for this type of rulemaking.

The Iowa Utilities Board (IUB) and the NAPSR stated that the amendment will not accomplish the purpose of the GPTC petition. The proposed change occurs in a section of the code that addresses pressure increments (§ 192.557(c)). The requirements of § 192.553(d) (“ Limitation on increase in maximum allowable operating pressure”), would not be counteracted. To accomplish the purpose of the GPTC petition, additional code sections would need to be amended.

Sempra Energy and GPTC stated that they support the proposed change to § 192.557(c) but the language of the NPRM misstates the GPTC intent which is to clarify that a pressure test is not required to validate the new MAOP.

PHMSA response: PHMSA has removed the proposed change to § 192.557(c) from the final rule. PHMSA agrees that the proposed change may cause confusion with the requirements of § 192.553(d) which were amended after the GPTC petition was submitted. PHMSA may consider a revised GPTC petition in a separate rulemaking action.

Three commenters expressed concern regarding the proposal to not adopt the 2008 edition of NFPA 58. These commenters surmised that PHMSA's decision to not adopt the 2008 edition stemmed from concerns with Section 14.4 Small LP-Gas Systems and recommended that PHMSA adopt the 2008 edition of NFPA 58 excluding Section 14.4.

There were also objections to PHMSA's proposal to not adopt the latest edition of NFPA 59. These commenters believe the 2008 edition is superior to the 2004 edition. They stated that the 2008 edition included reorganization of the document to conform to the NFPA Manual of Style. This edition eliminated confusing language, reorganized the standard to logically group requirements, and expanded use of excerpts from NFPA 58 instead of referencing NFPA 58. The commenters stated that many stakeholders have worked extensively to develop the 2008 edition of the NFPA 59 consensus standard. They noted that the AGA Supplemental Gas Committee task force performed a great deal of work to review the NFPA standard and that NFPA ultimately adopted 62 of the 72 proposals the AGA task force submitted to the technical committee. The commenters asserted that safety measures are not decreased in the areas of damage prevention, odorization, distribution valve maintenance, operation and maintenance, and emergency and public awareness planning by moving from the 2004 edition to the 2008 edition.

NFPA encouraged PHMSA to work with the NFPA 59 committee in a manner similar to its work with the NFPA 58 committee to address relevant issues through the normal course of scheduled revisions or, for unforeseen issues, through the Tentative Interim Amendment process.

PHMSA response: PHMSA appreciates the work of the NFPA 58 and 59 committees and their responsiveness to PHMSA's concerns. However, PHMSA is not changing the editions currently incorporated by reference (2004 editions of NFPA 58 and 59). The 2008 edition of NFPA 58 included changes in the requirements for small LPG operators which are in conflict with part 192 requirements. Further, the 2008 edition of NFPA 59 references NFPA 58. If we were to adopt the 2008 edition of NFPA 59, the referenced sections of NFPA 58 would also be incorporated by reference unless we were to prescribe otherwise. Therefore, PHMSA has decided not to adopt either of the new editions. PHMSA looks forward to working with the committees to improve public safety and resolve issues which may lead to the adoption of the newest editions in the next Periodic Updates of Regulatory References to Technical Standards.

The NFPA maintained that incorporating both the 2001 and 2006 editions of NFPA 59A by reference would create confusion for operators. NFPA recommends that to address PHMSA's concern with Section 5.3 of the 2006 edition, PHMSA should adopt the 2006 edition and reference the 2001 edition solely for the requirements applicable to those specific subjects. This approach would recognize and capture the other improvements in the 2006 edition.

NFPA further stated that the 2001 edition of NFPA 59A incorporates by reference 70 other technical standards of which all but three have been superseded or removed. Some of the standards were discontinued and are no longer for sale. During the generation of an updated edition, the technical committee does not consider the interrelation of a provision in one edition with related provisions in a prior edition. Each edition stands on its own. Since 2006, when PHMSA incorporated NFPA 59A by reference in the pipeline safety regulations, PHMSA has incorporated different editions of the standards that are cross-referenced within NFPA 59A. This rulemaking does not address this conflict.

PHMSA response: PHMSA wishes to remind all who commented on proposed changes to NFPA 59A and part 193 that the process for changing a regulation is significantly different than developing a consensus standard process. PHMSA must assess the impact of new editions of NFPA 59A on the public and the environment. When revised safety standards are clearly an improvement to the public, the environment, and pipeline safety, the adoption of a standard may be more easily justified.

After NFPA 59A's 2006 edition was published, PHMSA noted that revisions to NFPA 59A lacked sufficient justification. In some instances, the historical basis for adopting a safety standard could not be explained. In these cases, PHMSA observed NFPA's committee work and concluded it would be premature to adopt revisions that were incomplete or could not be appropriately justified. For these reasons, PHMSA has infrequently adopted new provisions within NFPA 59A and has not changed its decision to not adopt the new edition in response to these comments.

PHMSA is supportive of NFPA's efforts on standards and safety research and believes its work is beneficial to the public. We encourage NFPA and its members to continuously improve its NFPA 59A standard and ensure that new revisions are complete, properly justified, and adequately explained to the public.

PHMSA proposed not to incorporate by reference ASTM D2513: Standard Specification for Thermoplastic Gas Pressure Pipe, Tubing and Fittings (2007) edition at this time but will continue to reference the 1987 & 1999 editions. Southwest Gas and AGA commented that the 2007 edition of ASTM D2513 incorporates changes which occurred since 1999 including advances in manufacturing and installation of polyethylene (PE) pipe, recognition of applicability of more recent ASTM standards for fittings, and provisions for updated storage requirements. If the 2007 edition is not incorporated, both commenters recommended that PHMSA provide a Stay of Enforcement from Section A.1.5.7 in the 1999 edition of ASTM D2513 to recognize the safe, longer storage time of PE pipe. AGA noted that gas utility operators and their state regulators have already sought waivers to take advantage of the new standard. If they are not granted the waiver, they may have to dispose of a significant amount of polyethylene (PE) pipe that was purchased in response to the shortages that operators experienced in the aftermath of hurricane Katrina.

Southwest Gas recommended deleting the reference in § 192.7 to the 1987 edition of ASTM D2513 for § 192.63(a)(1). A 1993 amendment to § 192.63 stated that the reference was retained due to temperature marking of fittings. The 1999 edition of ASTM D2513 restored the temperature marking requirements for fittings.

PHMSA response: PHMSA has made no change in the response to these comments. PHMSA appreciates the work of the ASTM Committee F-17 and D20.10. There are important issues that are being finalized including the subject of NAPSR Resolution SR-2-01, marking of materials. The resolution of these issues will impact ASTM D638, D2513-87, D2513-99, D2517, and F1055 standards. These issues include but are not limited to the review of:

• Revisions of material categories.

• PENT test duration for PA-11 and PA-12 materials.

• Development process for new materials.

• Review of existing standards for re-grind, quality assurance, and quality control due to recent failures.

• Cyclic fatigue and long-term cyclic fatigue testing of plastic mechanical appurtenances.

• Need for new or modified regulations or standards due to the impact of new materials.

• Impact of findings from Standard Dimension Ratio and side wall fusion Research and Development programs.

PHMSA will address Southwest Gas and AGA's request for a Stay of Enforcement separately from this rulemaking. The special permit process offers operators an existing mechanism to request an extension from the current storage requirements for polyethylene (PE) pipe.

PHMSA has considered these comments but has not changed its decision to not adopt the more recent edition of ASTM D2513.

Technology & Management Systems commented on the proposal to replace GRI-89/0176 “LNGFIRE: A Thermal Radiation Model for LNG Fires” (June 29, 1990) with GTI -04/0032 LNGFIRE3: A Thermal Radiation Model for LNG Fires (2004). The commenter recommended that in consideration of fire research conducted in the past three years, PHMSA should reevaluate performance criteria for fire models and consider alternate models that have been scientifically assessed, verified, and validated to the Administrator's approval.

PHMSA response: The Gas Technology Institute (GTI) (formerly the Gas Research Institute) changed the title of this material. The contents of the software and the report have not changed. PHMSA's purpose for this amendment is solely to reference the new title. The commenter's statements regarding performance criteria are beyond the scope of this rulemaking. PHMSA is updating the title of this standard in the regulation to reflect the title currently used by GTI.

The Oklahoma Independent Petroleum Association stated that the costs to smaller oil and gas operators to purchase the updated standards and to identify and assess all regulatory compliance requirements are burdensome. They requested that PHMSA place the applicable reference documents on its web site for easy access.

PHMSA response: PHMSA regrets that we are prohibited from posting the technical standards to our web site as most standards have copyright protection. All incorporated materials are available for inspection in the Office of Pipeline Safety, Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC, 20590-0001, 202-366-4595, or at the National Archives and Records Administration (NARA), 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

The incorporated materials are available from the respective organizations listed in § 192.7 (c)(1).

On December 9, 2009, PHMSA discussed the proposed rule with the Technical Pipeline Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC). These are statutorily-mandated advisory committees that advise PHMSA about the technical feasibility, reasonableness and cost-effectiveness of its proposed regulations. At the meeting, PHMSA discussed the comments received in response to the NPRM. NFPA emphasized that small operators have difficulty determining which requirements of part 192 or NFPA 59A apply to them. The committee urged PHMSA to take action to work out the issues presented by NFPA, ASME, GPTC, and/or State Industry Regulatory Review Committee (SIRRC), a committee comprised of state and federal pipeline safety regulators, AGA and APGA formed to coordinate issues pertaining to part 192.

With the exception of NFPA's abstention, the committees voted unanimously that the NPRM was technically feasible, reasonable, practicable, and cost effective. Since the NPRM included proposed changes to the NFPA standards, the NFPA abstained from voting in accordance with its bylaws. A transcript of the meeting is available in the docket for this rulemaking.

This final rule accepts the following updated editions of technical standards in parts 192, 193, 195. PHMSA is also amending titles, dates, and references as applicable. Before describing each newly incorporated standard, PHMSA is providing additional information regarding the partial incorporation of NFPA 59A and the full incorporation of several API standards.

PHMSA will incorporate only those sections of NFPA 59A, “Standard for the Production, Storage, and Handling of Liquefied Natural Gas (LNG)” (2006 edition) relating to ultrasonic inspection and seismic design requirements. PHMSA believes the NFPA 59A committee needs to reconcile differences relating to dispersion analyses for vapor releases from process and safety equipment; containers with liquid penetrations at grade; design spill cases for full and double containment containers; standards for impoundment sizing for snow accumulation, severe weather, emergency depressurization, and fuel bunkering. Therefore, except for specified sections in the 2006 edition mentioned above, PHMSA will continue to reference NFPA 59A (2001 edition).

In a Direct Final Rule (74 FR 17099) published on April 14, 2009, PHMSA incorporated by reference the 2007 editions of ANSI/API Specification 5L, “Specification for Line Pipe” and API Standard 1104, “Welding of Pipelines and Related Facilities.” However, it did not eliminate the use of the previously referenced editions of these standards. In this final rule, PHMSA eliminates the use of the previous editions of these standards, API Specification 5L (43rd edition and errata, 2004) and API Standard 1104 (19th edition, 1999, including errata October 31, 2001).

PHMSA is incorporating by reference API Recommended Practice 5L1/ISO 3183 “Specification for Line Pipe” (6th edition, 2002) into the newly-created § 195.207. This standard provides a standard for hazardous liquid operators for the transportation of certain API Specification 5L steel line pipe by railroad.

PHMSA is also incorporating API Recommended Practice 5LW (API RP 5LW), “Transportation of Line Pipe on Barges and Marine Vessels” (2nd edition, 1996) into Parts 192 and 195. This standard is referenced in § 192.65(a) and in the newly-created § 195.207(a). API RP 5LW provides a standard for transportation of certain API Specification 5L steel line pipe by ship or barge on both inland and marine waterways.

• ANSI/API Specification 5L/ISO 3183, “Specification for Line Pipe” (44th edition, 2007), includes errata (January 2009) and addendum (February 2009).

Replaces incorporated by reference (IBR): API Specification 5L, “Specification for Line Pipe” (43rd edition and errata, 2004);

Referenced in 49 CFR 192.55(e); 192.112; 192.113; Item I, Appendix B to Part 192; 195.106(b)(1)(i); 195.106(e), 195.207(a).

• API Recommended Practice 5L1 “Recommended Practice for Railroad Transportation of Line Pipe,” (6th Edition, 2002)

• API Recommended Practice 5LW, “Transportation of Line Pipe on Barges and Marine Vessels” (2nd edition, 1996, effective March 1, 1997).

• API Specification 6D/ISO 14313, “Specification for Pipeline Valves” (23rd edition (April 2008, effective October 1, 2008) and errata 3 (includes 1 & 2, February 2009).

• API Specification 12F, “Specification for Shop Welded Tanks for Storage of Production Liquids (11th edition, November 1, 1994, reaffirmed 2000, errata, February 2007).

• API Standard 510, “Pressure Vessel Inspection Code: In-Service Inspection, Rating, Repair, and Alteration” (9th edition, June 2006).

• API Standard 620, “Design and Construction of Large, Welded, Low-Pressure Storage Tanks,” (11th edition February 2008, addendum 1, March 2009).

• API Standard 650, “Welded Steel Tanks for Oil Storage” (11th edition, June 2007, addendum 1, November 2008).

• ANSI/API Recommended Practice 651, “Cathodic Protection of Aboveground Petroleum Storage Tanks” (3rd edition, January 2007).

• ANSI/API Recommended Practice 652, “Linings of Aboveground Petroleum Storage Tank Bottoms” (3rd edition, October 2005).

• API Standard 653, “Tank Inspection, Repair, Alteration, and Reconstruction” (3rd edition, December 2001, includes addendum 1 (September 2003), addendum 2 (November 2005), addendum 3 (February 2008), and errata (April 2008).

• API Standard 1104, “Welding of Pipelines and Related Facilities” (20th edition November 2005, errata/addendum (July 2007) and errata 2 (2008)).

• API Recommended Practice 1130, “Computational Pipeline Monitoring for Liquids Pipeline Segment” (3rd edition, September 2007).

• API Standard 2000, “Venting Atmospheric and Low-Pressure Storage Tanks Nonrefrigerated and Refrigerated” (5th edition, April 1998, errata, November 15, 1999).

• API Recommended Practice 2003, “Protection Against Ignitions Arising Out of Static, Lightning, and Stray Currents” (7th edition, January 2008).

• API Publication 2026, “Safe Access/Egress Involving Floating Roofs of Storage Tanks in Petroleum Service” (2nd edition, April 1998, reaffirmed, June 2006).

• API Recommended Practice 2350, “Overfill Protection for Storage Tanks in Petroleum Facilities” (3rd edition, January 2005).

• ASCE/SEI 7-05, “Minimum Design Loads for Buildings and Other Structures” (2005 edition, includes supplement number 1 and errata)

• ASTM A53/A53M-07 (2007), “Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless” (September 1, 2007).

• ASTM A106/A106M-08 (2008), “Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service” (July 15, 2008).

• ASTM A372/A372M-03 (reapproved 2008), “Standard Specification for Carbon and Alloy Steel Forgings for Thin-Walled Pressure Vessels” (March 1, 2008).

• ASTM A381-96 (Reapproved 2005), “Standard Specification for Metal-Arc-Welded Steel Pipe for Use with High-Pressure Transmission Systems” (October 1, 2005).

• ASTM A671-06, “Standard Specification for Electric-Fusion-Welded Steel Pipe for Atmospheric and Lower Temperatures” (May 1, 2006).

• ASTM A672-08, “Standard Specification for Electric-Fusion-Welded Steel Pipe for High-Pressure Service at Moderate Temperatures” (May 1, 2008).

• ASTM A691-98 (reapproved 2007), “Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded for High-Pressure Service at High Temperatures” (November 1, 2007).

• ANSI/ASME B16.1 -2005, “Gray Iron Pipe Flanges and Flanged Fittings: (Classes 25, 125, and 250)” (August 31, 2006).

• ANSI/ASME B16.9 -2007, “Factory-Made Wrought Butt Welding Fittings” (December 7, 2007).

• ANSI/ASME B31.4 -2006, “Pipeline Transportation Systems for Liquid Hydrocarbons and Other Liquids” (October 20, 2006).

• ANSI/ASME B31.8 -2007, “Gas Transmission and Distribution Piping Systems” (November 30, 2007).

• 2007 ASME Boiler & Pressure Vessel Code, Section I: Rules for Construction of Power Boilers (2007 edition, July 1, 2007).

Introduction

This rule was preceded by a notice of proposed rulemaking (NPRM) that NHTSA published on May 7, 2010 (75 FR 25169).

The National Traffic and Motor Vehicle Safety Act, as amended by the Imported Vehicle Safety Compliance Act of 1988, and recodified at 49 U.S.C. 30141-30147 (“the Act”), provides for fees to cover the costs of the importer registration program, the cost of making import eligibility decisions, and the cost of processing the bonds furnished to Customs. Certain fees became effective on January 31, 1990, and have been in effect, with modifications, since then. On June 24, 1996, we published a notice in the Federal Register at 61 FR 32411 that discussed the rulemaking history of 49 CFR Part 594 and the fees authorized by the Act. The reader is referred to that notice for background information relating to this rulemaking action.

We last amended the fee schedule in 2008. See final rule published on September 24, 2008 at 73 FR 54981. Those fees apply to Fiscal Years 2009 and 2010.

The fees adopted in this final rule are based on time expenditures and costs associated with the tasks for which the fees are assessed. They reflect the increase in hourly costs in the past two fiscal years attributable to the approximately 4.78 and 2.42 percent raises (including the locality adjustment for Washington, DC) in salaries of employees on the General Schedule that became effective on January 1, 2009, and on January 1, 2010, respectively.

There were no comments in response to the notice of proposed rulemaking.

Section 30141(a)(3) of Title 49, U.S. Code provides that RIs must pay the annual fee the Secretary of Transportation establishes “* * * to pay for the costs of carrying out the registration program for importers * * *.” This fee is payable both by new applicants and by existing RIs. To maintain its registration, each RI, at the time it submits its annual fee, must also file a statement affirming that the information it furnished in its registration application (or in later submissions amending that information) remains correct. 49 CFR 592.5(f).

In compliance with the statutory directive, we reviewed the existing fees and their bases in an attempt to establish fees that would be sufficient to recover the costs of carrying out the registration program for importers for at least the next two fiscal years. The initial component of the Registration Program Fee is the fee attributable to processing and acting upon registration applications. We will increase this fee from $295 to $320 for new applications. We have also determined that the fee for the review of the annual statement submitted by existing RIs who wish to renew their registrations will be increased from $186 to $195. These fee adjustments reflect our time expenditures in reviewing both new applications and annual statements with accompanying documentation, as well as the inflation factor attributable to Federal salary increases and locality adjustments in the two years since the regulation was last amended.

We must also recover costs attributable to maintenance of the registration program that arise from the need for us to review a registrant's annual statement and to verify the continuing validity of information already submitted. These costs also include anticipated costs attributable to the possible revocation or suspension of registrations and reflect the amount of time that we have devoted to those matters in the past two years.

Based upon our review of these costs, the portion of the fee attributable to the maintenance of the registration program is approximately $475 for each RI, an increase of $10. When this $475 is added to the $320 representing the registration application component, the cost to an applicant comes to $795, which is the fee we are adopting. This represents an increase of $35 over the existing fee. When the $475 is added to the $195 representing the annual statement component, the total cost to an RI renewing its registration comes to $670, which represents an increase of $19.

Section 594.6(h) enumerates indirect costs associated with processing the annual renewal of RI registrations. The provision states that these costs represent a pro rata allocation of the average salary and benefits of employees who process the annual statements and perform related functions, and “a pro rata allocation of the costs attributable to maintaining the office space, and the computer or word processor.” The indirect costs that were previously calculated and are now being applied at $20.31 per man-hour (73 FR 54983, Sep. 24, 2008) are being increased by $0.36, to $20.67. This increase is based on the difference between enacted budgetary costs within the Department of Transportation for the last two fiscal years, which were higher than the estimates used when the fee schedule was last amended, and takes account of further projected increases over the next two fiscal years.

Section 30141(a)(3) also requires RIs to pay other fees the Secretary of Transportation establishes to cover the costs of “* * * (B) making the decisions under this subchapter.” This includes decisions on whether the vehicle sought to be imported is substantially similar to a motor vehicle that was originally manufactured for importation into and sale in the United States and certified by its original manufacturer as complying with all applicable FMVSS, and whether the vehicle is capable of being readily altered to meet those standards. Alternatively, where there is no substantially similar U.S.-certified motor vehicle, the decision is whether the safety features of the vehicle comply with, or are capable of being altered to comply with, the FMVSS based on destructive test information or such other evidence that NHTSA deems to be adequate. These decisions are made in response to petitions submitted by RIs or manufacturers, or on the Administrator's own initiative.

The fee for a vehicle imported under an eligibility decision made in response to a petition is payable in part by the petitioner and in part by other importers. The fee to be charged for each vehicle is the estimated pro rata share of the costs in making all the eligibility decisions in a fiscal year. Inflation and General Schedule raises must also be taken into account in the computation of costs.

The agency believes that the volume of petition-based imports for the next two fiscal years should not be projected on the basis of any single year. The agency estimates the number of vehicles that will be imported under an import eligibility petition in each year for Fiscal Years 2011 and 2012 will equal the average number of such imports over that past five years. Further, the agency estimates the number of import eligibility petitions that will be filed in each year for Fiscal Years 2011 and 2012 will equal the average number of petitions filed each year since 2000. Based on these estimates, we project that 554 vehicles would be imported under petition-based eligibility decisions and that 25 petition-based import eligibility decisions would be made.

Based on these estimates, we project that for Fiscal Years 2011 and 2012, the agency's costs for processing these 25 petitions will be $95,479. The petitioners will pay $8,125 of that amount in the processing fees that accompanied the filing of their petitions, leaving the remaining $87,354 to be recovered from the importers of the 554 vehicles imported under petition-based import eligibility decisions. Dividing $87,354 by 554 yields a pro rata fee of $158 for each vehicle imported under an eligibility decision that resulted from the granting of a petition. We are therefore decreasing the pro rata share of petition costs that are to be assessed against the importer of each vehicle by $40, from $198 to $158. The same $158 fee would be paid regardless of whether the vehicle was petitioned under 49 CFR 593.6(a), based on the substantial similarity of the vehicle to a U.S.-certified model, or was petitioned under 49 CFR 593.6(b), based on the safety features of the vehicle complying with, or being capable of being modified to comply with, all applicable FMVSS.

We are not increasing the current fee of $175 that covers the initial processing of a “substantially similar” petition. We are also maintaining the existing fee of $800 to cover the initial costs for processing petitions for vehicles that have no substantially similar U.S.-certified counterparts.

In the event that a petitioner requests an inspection of a vehicle, the fee for such an inspection will remain $827 for vehicles that are the subject of either type of petition.

The importation fee varies depending upon the basis on which the vehicle is determined to be eligible. For vehicles covered by an eligibility decision on the agency's own initiative (other than vehicles imported from Canada that are covered by import eligibility numbers VSA-80 through 83, for which no eligibility decision fee is assessed), the fee remains $125. NHTSA determined that the costs associated with previous eligibility decisions on the agency's own initiative will be fully recovered by October 1, 2010. We will apply the fee of $125 per vehicle only to vehicles covered by determinations made by the agency on its own initiative on or after October 1, 2010.

Section 30141(a)(3) also requires an RI to pay any other fees the Secretary of Transportation establishes “* * * to pay for the costs of—(A) processing bonds provided to the Secretary of the Treasury * * *.” Under Section 30141(d), the bond is provided at the time a nonconforming vehicle is imported to ensure that the vehicle will be brought into compliance within 120 days, as required by 49 CFR 591.8(d)(1), or if the vehicle is not brought into compliance within such time, that it be exported, without cost to the United States, or abandoned to the United States. See Section 30141(d)(1)(B).

The Department of Homeland Security (Customs) administers the functions associated with the processing of these bonds. The statute contemplates that we will make a reasonable determination of the cost that Customs incurs in processing the bonds. In essence, the cost to Customs is based upon an estimate of the time that a GS-9, Step 5 employee spends on each entry, which Customs has judged to be 20 minutes.

Based on General Schedule salary and locality raises that were effective in January 2009 and 2010 and the inclusion of costs for benefits, we are decreasing the processing fee by $0.30, from $10.23 per bond to $9.93. This decrease reflects the fact that GS-9 salaries were increased by a smaller amount than we previously projected when we last amended the fee schedule in 2008. This fee will reflect the direct and indirect costs that are actually associated with processing the bonds.

In lieu of sureties on a DOT conformance bond, an importer may offer United States money, United States bonds (except for savings bonds), United States certificates of indebtedness, Treasury notes, or Treasury bills (collectively referred to as “cash deposits”) in an amount equal to the amount of the bond. 49 CFR 591.10(a). The receipt, processing, handling, and disbursement of the cash deposits that have been tendered by RIs cause the agency to consume a considerable amount of staff time and material resources. NHTSA has concluded that the expense incurred by the agency to receive, process, handle, and disburse cash deposits may be treated as part of the bond processing cost, for which NHTSA is authorized to set a fee under 49 U.S.C. 30141(a)(3)(A). We first established a fee of $459 for each vehicle imported on and after October 1, 2008, for which cash deposits or obligations of the United States are furnished in lieu of a conformance bond. See final rule published on July 11, 2008 at 73 FR 39890.

The agency considered its direct and indirect costs in calculating the fee for the review, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on a DOT conformance bond. We are increasing the fee $55, from $459 to $514. The factors that the agency has taken into account for this fee include time expended by agency personnel, the increase in General Schedule salary raises that were effective in January 2009 and 2010, and increased contractor and overhead costs.

Each RI is currently required to pay $14 per vehicle to cover the costs the agency incurs in reviewing a certificate of conformity. We have found that these costs have increased to an average of $17 per vehicle because of increased contractor and overhead costs. Based on these costs, we are increasing the fee charged for vehicles for which a paper entry and fee payment is made, from $14 to $17, a difference of $3 per vehicle. However, if an RI enters a vehicle through the ABI system, has an e-mail address to receive communications from NHTSA, and pays the fee by credit card, the cost savings that we realize allow us to significantly reduce the fee to $6. We are maintaining the fee of $6 per vehicle if all the information in the ABI entry is correct.

Errors in ABI entries not only eliminate any time savings, but also require additional staff time to be expended in reconciling the erroneous ABI entry information with the conformity data that is ultimately submitted. Our experience with these errors has shown that staff members must examine records, make time-consuming long distance telephone calls, and often consult supervisory personnel to resolve the conflicts in the data. We have calculated this staff and supervisory time, as well the telephone charges, to amount to approximately $57 for each erroneous ABI entry. Adding this to the $6 fee for the review of conformity packages on automated entries yields a total of $63, representing a $9 increase in the fee that is currently charged when there are one or more errors in the ABI entry or omissions in the statement of conformity.

NHTSA is required under 49 U.S.C. 30141(e) to “review and make appropriate adjustments at least every 2 years in the amounts of the fees” relating to the registration of importers, the processing of bonds, and making decisions concerning the importation of nonconforming vehicles. The statute further requires the agency to “establish the fees for each fiscal year before the beginning of that year.” This final rule implements the statutory provisions. In the NPRM, we proposed to make this rule effective October 1, 2010, and did not receive any comments on this issue. Accordingly, the effective date of this final rule is October 1, 2010.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, Oct. 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is not significant. Accordingly, the Office of Management and Budget has not reviewed this rulemaking document under Executive Order 12886. Based on the level of the fees and the volume of affected vehicles, NHTSA currently anticipates that the costs of the final rule would be so minimal as not to warrant preparation of a full regulatory evaluation. The action does not involve any substantial public interest or controversy. There would be no substantial effect upon State and local governments. There would be no substantial impact upon a major transportation safety program. A regulatory evaluation analyzing the economic impact of the final rule establishing the registered importer program, adopted on September 29, 1989, was prepared, and is available for review in the docket.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBFEFA) of 1996, whenever an agency is required to publish a notice of proposed rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR Part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a). No regulatory flexibility analysis is required if the head of an agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities.

The agency has considered the effects of this rulemaking under the Regulatory Flexibility Act, and certifies that the adopted amendments will not have a significant economic impact upon a substantial number of small entities.

The following is NHTSA's statement providing the factual basis for the certification (5 U.S.C. 605(b)). The adopted amendments will primarily affect entities that currently modify nonconforming vehicles and which are small businesses within the meaning of the Regulatory Flexibility Act; however, the agency has no reason to believe that these companies would be unable to pay the fees adopted in this rulemaking action. In most instances, these fees would not be changed or be only modestly increased (and in some instances decreased) from the fees previously being paid by these entities. Moreover, consistent with prevailing industry practices, these fees should be passed through to the ultimate purchasers of the vehicles that are altered and, in most instances, sold by the affected registered importers. The cost to owners or purchasers of nonconforming vehicles that are altered to conform to the FMVSS may be expected to increase (or decrease) to the extent necessary to reimburse the registered importer for the fees payable to the agency for the cost of carrying out the registration program and making eligibility decisions, and to compensate Customs for its bond processing costs.

Governmental jurisdictions will not be affected at all since they are generally neither importers nor purchasers of nonconforming motor vehicles.

Executive Order 13132 on “Federalism” requires NHTSA 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.” Executive Order 13132 defines the term “policies that have federalism implications” 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, NHTSA 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 NHTSA consults with State and local officials early in the process of developing the proposed regulation.

The amendments adopted in this final 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. Moreover, NHTSA is required by statute to impose fees for the administration of the RI program and to review and make necessary adjustments in those fees at least every two years. Thus, the requirements of section 6 of the Executive Order do not apply to this rulemaking action.

NHTSA has analyzed this action for purposes of the National Environmental Policy Act. The action would not have a significant effect upon the environment because it is solely concerned with the adjustment of fees associated with the agency's vehicle importation program. On account of those fee adjustments, the annual volume of motor vehicles imported through registered importers is not anticipated to vary significantly from that existing before promulgation of the rule.

Pursuant to Executive Order 12988 “Civil Justice Reform,” this agency has considered whether the amendments adopted in this final rule will have any retroactive effect. NHTSA concludes that those amendments will not have any retroactive effect. Judicial review of the final rule may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with the base year of 1995). Before promulgating a rule for which a written assessment is needed, Section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Because this final rule will not require the expenditure of resources beyond $100 million annually, this action is not subject to the requirements of Sections 202 and 205 of the UMRA.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Part 594 includes collections of information for which NHTSA has obtained OMB Clearance No. 2127-0002, a consolidated collection of information for “Importation of Vehicles and Equipment Subject to the Federal Motor Vehicle Safety, Bumper and Theft Prevention Standards,” approved through 11/30/2010. This final rule would not affect the burden hours associated with Clearance No. 2127-0002 because we are only adjusting the fees associated with participating in the registered importer program. These proposed new fees will not impose new collection of information requirements or otherwise affect the scope of the program.

Executive Order 13045 applies to any rule that (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned rule is preferable to other potentially effective and reasonably feasible alternatives considered by us. This rulemaking is not economically significant and does not concern an environmental, health, or safety risk.

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) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs the agency to provide Congress, through the OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

In this final rule, we are adjusting the fees associated with the registered importer program. We are making no substantive changes to the program nor do we adopt any technical standards. For these reasons, Section 12(d) of the NTTAA would not apply.

Anyone is able to search the electronic form of all submissions received into any of our dockets by the name of the individual submitting the comment or petition (or signing the comment or petition, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN that appears in the heading on the first page of this document to find this action in the Unified Agenda.

In consideration of the foregoing, Part 594, Schedule of Fees Authorized by 49 U.S.C. 30141, in Title 49 of the Code of Federal Regulations is amended as follows:

Regulations governing possession and landing limits for vessels fishing under common pool regulations are found at 50 CFR 648.86. The regulations authorize vessels issued a valid limited access NE multispecies permit and fishing under a NE multispecies day-at-sea (DAS), or fishing under a NE multispecies Small Vessel or Handgear A or B category permit, to fish for and retain NE multispecies, under specified conditions. The vessels fishing in the common pool are allocated a sub-ACL equivalent to that portion of the commercial groundfish ACL that is not allocated to the 17 approved NE multispecies sectors for FY 2010. The final rule implementing FW 44 (75 FR 18356, April 9, 2010) established ACLs for FY 2010, including the common pool sub-ACL for witch flounder of 25 mt. A subsequent emergency rule published on July 20, 2010 (75 FR 41996), increased the ACL for pollock based on the results of a new stock assessment, and changed the FY 2010 common pool sub-ACL from 62 mt to 375 mt. Currently, there is no landing limit for witch flounder, and the landing limit for pollock is 1,000 lb (453.6 kg) per DAS up to 10,000 lb (4,535.9 kg) per trip.

The regulations at § 648.86(o) authorize the Administrator, Northeast (NE) Region, NMFS (Regional Administrator) to increase or decrease the trip limits for vessels in the common pool to prevent over-harvesting or under-harvesting the common pool sub-ACL. Exceeding the common pool sub-ACL prior to April 30, 2011, would likely require drastic trip limit reductions and/or imposition of differential DAS counting for the remainder of FY 2010 to minimize the overage, and would trigger accountability measures (AMs) in FY 2011, including differential DAS counting, to prevent future overages.

Initial Vessel Monitoring System (VMS) and dealer reports indicate that approximately 93.5 percent of the witch flounder common pool sub-ACL has been harvested as of August 4, 2010. Analysis of historic landings of witch flounder indicates that a trip limit of 130 lb (59.0 kg) per trip will result in achieving the sub-ACL without exceeding it. Historically, 80 percent of trips that land witch flounder land less than 500 lb (226.8 kg), and 78 percent of those trips land less than 200 lb (90.7 kg). Therefore, this trip limit is expected to allow vessels to land witch flounder that are caught incidentally, but prevent trips with large landings of witch flounder which have been having a significant impact on the overall catch rate. This possession limit is expected to prevent the common pool from exceeding the sub-ACL for witch flounder while still allowing vessels an opportunity to fish for all other NE multispecies.

As a result of the recent sub-ACL increase for pollock, the current rate of harvest would leave a substantial portion of the sub-ACL unharvested by the common pool in FY 2010. Initial VMS and dealer reports indicate that approximately 7.3 percent of the increased pollock allocation has been harvested as of August 4, 2010. Given the available sub-ACL and current trip limit of 1,000 lb (453.6 kg) per DAS, up to 10,000 lb (4,535.9 kg) per trip, projections indicate complete removal of the trip limit is warranted to allow greater harvest of the common pool sub-ACL by the end of the FY (April 30, 2011).

An inseason action that published on July 30, 2010 (75 FR 44924), reduced the common pool landing limit for Gulf of Maine (GOM) cod by 75 percent, and made a proportional adjustment to the trip limit for all stocks of cod for vessels with a limited access Handgear A permit from 300 lb (136.1 kg) per trip, to 75 lb (340 kg) per trip. However, the regulations at § 648.82(b)(6), specify the “Handgear A cod trip limit shall be adjusted proportionally to the trip limit for GOM cod (rounded up to the nearest 50 lb (22.7 kg)).” Therefore, the new limit should have been rounded up to 100 lb per trip.

Based on this information, the Regional Administrator is removing the pollock trip limit for all common pool vessels, and the cod limit for Handgear A vessels is corrected to 100 lb (45.4 kg) per trip effective August 6, 2010, through April 30, 2011. In addition, the Regional Administrator is imposing a 130-lb (59.0-kg) per trip limit on witch flounder for all common pool vessels effective August 9, 2010, through April 30, 2011.

Catch will be closely monitored through dealer-reported landings, VMS catch reports, and other available information. Further inseason adjustments to increase or decrease the trip limits, as well as differential DAS measures, may be considered, based on updated catch data and projections. Conversely, if the common pool sub-ACL is projected to be under-harvested by the end of FY 2010, in-season adjustments to increase the trip limit will be considered.

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

Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment, as well as the delayed effectiveness for this action, because notice, comment, and a delayed effectiveness would be impracticable and contrary to the public interest. The regulations under § 648.86(o) grant the RA the authority to adjust NE multispecies trip limits to prevent over-harvesting or under-harvesting the common pool sub-ACLs. This action implements a trip limit for witch flounder and removes the trip limit for pollock, in order to ensure that the common pool sub-ACLs are not overharvested or underharvested, respectively, and that the biological and economic objectives of the FMP are met.

It is important to take this action immediately because, based on current data and projections, continuation of the status quo trip limits will result in reaching the common pool sub-ACL for witch flounder prior to the end of the FY and under-harvesting the sub-ACL for pollock. Exceeding any of the common pool sub-ACLs prior to the end of the FY on April 30, 2011, would likely result in lower trip limits and differential DAS counting for the remainder of FY 2010 to minimize the amount of over harvest, and would result in AMs to be put in place for the common pool in FY 2011. These restrictions could result in the loss of yield of other valuable species of groundfish caught by vessels in the common pool.

The information that is the basis for this action includes ACLs updated after May 1, 2010, and recent catch data. The time necessary to provide for prior notice and comment, and delayed effectiveness for this action would prevent NMFS from implementing a reduced trip limit in a timely manner. A resulting delay in the trip limit changes of these two stocks could result in less revenue for the fishing industry and be counter to the objective of achieving optimum yield.

The Regional Administrator's authority to decrease or increase trip limits for the common pool to help ensure that the common pool sub-ACL for all NE multispecies are harvested, but not exceeded, was considered and open to public comment during the development of FW 44. Therefore, any negative effect the waiving of public comment and delayed effectiveness may have on the public is mitigated by these factors.