The Federal Credit Union Act (the Act) permits FCUs to make loans and extend lines of credit to members but prohibits FCUs from charging an annual percentage rate (APR), inclusive of all finance charges, above 15%. 12 U.S.C. 1757(5)(A)(vi). The Act, however, permits the NCUA Board (the Board), after considering certain statutory criteria, to establish a higher interest rate ceiling in 18-month cycles. Id. At its July 2009 meeting, the Board reapproved an APR ceiling of 18%, effective until March 10, 2011. NCUA Letter to Federal Credit Unions 09-FCU-06 (July 2009).

The Board reviewed NCUA's regulatory structure and recognized that under this current structure many FCUs could not provide their members with a reasonable alternative to traditional payday loans. The Board, therefore, considered amending its regulations to provide FCUs with a regulatory structure under which they could offer a responsible payday loan alternative to members in a safe and sound manner.

On April 29, 2010, the Board issued a proposed rule amending § 701.21 to increase the interest rate ceiling for STS loans, provided FCUs made the loans within the requirements of the rule. 75 FR 2447 (May 5, 2010). The Board also specifically asked for comments on the issues of amortization, utilizing a 36% APR inclusive of all fees, and requiring members to participate in direct deposit or payroll deduct. The comment period closed on July 6, 2010. The Board received 33 comments from: Two credit union trade associations; one bank trade association; two private citizens; sixteen credit unions; seven State credit union leagues; three consumer advocacy groups; one credit union service organization; and one philanthropic foundation. Commenters addressed a wide range of issues including the different requirements of the rule, those areas where the Board specifically requested comment, and other aspects of payday lending that were not related to this rule.

While most commenters supported the idea and framework of the rule, many commenters offered a suggestion on one or more aspects of the proposal. There were, however, three commenters that supported the proposed rule as drafted, four that did not support the rule, and one that only provided details about its payday alternative program. The commenters that supported the rule as written believe the rule would be a valuable tool FCUs could use to assist their members, is in line with the mission and purpose of the FCU charter, and would provide members with a way to safely break the payday loan cycle.

Of the commenters that did not support the rule, one commenter generally opposed the idea of payday lending and believed NCUA should monitor and regulate existing programs, rather than help foster an alternative. Two other commenters did not believe the terms of the rule would be attractive to FCUs or borrowers. Finally, one commenter believed credit unions should be permitted to develop their own programs instead of NCUA creating one. With respect to the last comment, the Board notes this final rule does not prohibit an FCU from continuing or participating in a closed or open-end payday loan program that operates successfully and legally under NCUA's Regulations and the Federal Reserve Board's Regulation Z (Reg Z). 12 CFR Part 226.

The remaining 25 commenters generally supported the rule, but offered suggestions on specific aspects of the rule or provided comments on the sections where the Board specifically requested comments. The Board considered all of the comments and modified the final rule where appropriate. The specific comments and NCUA's responses are discussed in the following section-by-section analysis.

A majority of the commenters believed an interest rate ceiling of 1000 basis points above the established general interest rate ceiling, as set by the Board, was sufficient for FCUs offering an STS product. As noted above, the Board set interest rate ceiling is currently at 18%. A few other commenters, however, provided alternative suggestions for the Board's consideration. Two commenters believed the interest rate ceiling for STS loans should be higher to account for the higher degree of risk associated with this type of lending, but did not provide a specific interest rate they favored. Two other commenters believed a 36% all inclusive APR was appropriate, citing a relation to the Department of Defense (DOD) regulations and the need to keep costs as low as possible for borrowers.

Two commenters advocated maximum flexibility and believed FCUs should be permitted to choose between a 36% all inclusive APR and the proposed rate and fee structure. One commenter believed the APR for STS loans should be 36% plus a $20 application fee. Other individual commenters suggested approaches, such as an 18% APR with a broader definition of finance charges, allowing a 28% APR for all legally permissible payday programs, and not increasing the APR at all.

The Board has considered these comments and, based on the reasons set forth in the preamble to the proposed rule, has decided to proceed with the proposed structure of an APR 1000 basis points above the Board approved interest rate ceiling, which currently would be 28%, and a $20 application fee.

With respect to the comments on FCUs being able to offer this product to members of the military, the Board notes that the definition of a payday loan in the DOD regulations would not include most loans made under this final rule. The DOD regulations provide the following definition of a payday loan:

(i) Payday loans. Closed-end credit with a term of 91 days or fewer in which the amount financed does not exceed $2,000 and the covered borrower:

(A) Receives funds from and incurs interest and/or is charged a fee by a creditor, and contemporaneously with the receipt of funds, provides a check or other payment instrument to the creditor who agrees with the covered borrower not to deposit or present the check or payment instrument for more than one day, or;

(B) Receives funds from and incurs interest and/or is charged a fee by a creditor, and contemporaneously with the receipt of funds, authorizes the creditor to initiate a debit or debits to the covered borrower's deposit account (by electronic fund transfer or remotely created check) after one or more days. This provision does not apply to any right of a depository institution under statute or common law to offset indebtedness against funds on deposit in the event of the covered borrower's delinquency or default.

Approximately one-third of the commenters submitted comments on the proposed permissible loan term. Of those commenters, most believed the minimum loan term should be greater than 30 days, with commenters citing a range between 90-120 days as an acceptable minimum term. Some commenters also believed the maximum loan terms should also be longer, citing 12 to 18 months as an acceptable range for the maximum loan term. The commenters who advocated for a longer term believed that a longer term was necessary to enable borrowers to pay back a loan in small, more manageable payments.

After considering the comments and for the reasons articulated in the preamble to the proposed rule, the Board has decided to keep the proposed terms of a minimum maturity of one month and a maximum maturity of six months. The Board believes this final rule should provide a high level of protection for borrowers, and is concerned that longer term loans may actually have unintended negative consequences. The Board is specifically concerned that borrowers with longer term STS loans may continue to use payday lenders to cover expenses that arise during repayment. While it is possible that this scenario may also occur under the maturity structure in this rule, the Board believes loans with maturities between one and six months will provide borrowers with frequent enough access to credit to minimize the need for additional loans from payday lenders. To effectuate the beneficial nature of a one to six month maturity and ensure maximum borrower protection, the Board is reaffirming its statement in the preamble to the proposed rule that FCUs should structure the terms of an STS loan in a way that allows a borrower to repay the loan in the given term. NCUA will scrutinize an FCU's program to ensure loans are being made in a way that provides a member with the best chance to successfully repay a loan made under this rule.

Approximately one-third of the commenters addressed the issues of roll-overs and the permissible number of loans. While most commenters agreed the final rule should prohibit roll-overs, there were three commenters that believed roll-overs could be appropriate in limited circumstances. The commenters cited that without roll-overs a borrower who cannot pay off the loan within the loan term will incur late fees and, possibly, a negative entry on his or her credit report. Also, one commenter asked for further clarification of the term “roll-over” in the final rule.

After considering these comments, the Board has determined to keep the prohibition against roll-overs, but will provide some flexibility in the final rule so borrowers can meet their payment obligations without incurring additional fees. While the Board continues to disagree that roll-overs are ever appropriate, it believes permitting FCUs to extend the term of a loan, without any additional fees, may be beneficial to both FCUs and borrowers. The prohibition against roll-overs in this rule applies to situations in which a borrower is charged additional fees for extending or “re-borrowing” funds to avoid delinquency. Under this rule, an FCU may, however, extend the term of the loan, within the maximum loan term set by this rule, provided the FCU does not charge any additional fees, except interest, or extend any additional funds. For example, if a borrower takes out a $300 loan for three months and, at some point within those three months, is unable to continue making payments, the FCU can extend the loan term for another one to three months, but cannot extend any new credit or charge additional fees in connection with this extension. The Board believes allowing for an extension without any additional fees will provide borrowers with the best opportunity to repay the loan and avoid delinquencies. NCUA generally expects FCUs, however, to set the term and amount of the loan in a way that allows borrowers to repay it within the term and avoid the need to extend a loan.

With respect to the number of loans, most commenters believed there should be a higher limit on the number of loans a borrower may have in a 12-month period or no cap at all. Commenters believed that the number imposed in the proposed rule was too limiting and could drive borrowers back to payday lenders.

After considering these comments the Board has determined to proceed with the terms in the proposed rule, which limit FCUs to making only one loan at a time to a member and no more than three in any rolling six-month period. In response to the commenters advocating for a higher number of loans, the Board disagrees that a limited number of loans will push borrowers back to payday lenders. As noted above, the Board intends this rule to provide borrowers with enough access to credit to preclude the need for a borrower to also borrow from a payday lender. The Board also intends this rule to help borrowers curtail the repetitive use of payday loans and transition them to more mainstream financial products and more responsible borrowing. A cap of three loans in any rolling six-month period coupled with the minimum and maximum maturities, set out above, achieves this balance of providing borrowers with sufficient access to credit while helping borrowers transition from a reliance on repetitive borrowings.

Approximately one-half of the commenters addressed the appropriate amount of an application fee. Two commenters believed $20 was an appropriate amount but two other commenters felt an application fee should be capped at $25. Of the remaining commenters, four believed the application fee should be higher, but did not provide a specific amount and several commenters believed FCUs should be permitted to set their own application fees in accordance with Regulation Z or the application fee should be tied to the amount of the loan. All commenters who sought a higher application fee cited an increased risk in this type of lending. Two commenters believed FCUs should charge a borrower only one $20 application fee every six months and two commenters believed the Board should not permit FCUs to charge any fees for these loans, including application and late fees. All commenters who favored a lower fee or no fee cited a minimal underwriting process that does not justify a fee.

After considering the comments, the Board has decided to keep the proposed maximum application fee of $20. While the Board agrees that this type of lending is inherently riskier than many other types of lending, it is interest income and not the application fee that allows FCUs to offset the higher degree of risk. The Board notes, Reg Z limits application fees to the recovery of costs associated with processing applications for credit that are charged to all consumers who apply, regardless if credit is actually extended. 12 CFR 226.4(c)(1). For the reasons articulated in the preamble to the proposed rule, the Board believes a maximum application fee of $20 is sufficient to allow FCUs to recoup the costs associated with processing an application for an STS loan. With regard to those commenters who argued for a lower application fee or a restriction that application fees be charged only once in a six-month period, the Board points out that $20 under this rule is the maximum amount FCUs can charge for an application fee and that FCUs are still bound by the definition of application fee in Reg Z. As such, an FCU's application fee can only be the amount needed to recoup the actual costs associated with processing an application. If an FCU undertakes a more limited application process with repeat borrowers, there would be no justification for charging the same application fee each time the borrower applied. NCUA will scrutinize application fees to ensure FCUs are using the fee to recoup costs associated with processing an application and not to account for the riskier nature of this type of lending.

On the issue of the permissible amount of a loan, slightly less than one-half of the commenters provided suggestions. A majority of the commenters believed the minimum loan amount should be less than $200, citing a high demand for loans between $50 and $100. One commenter believed the minimum loan amount was acceptable, but the maximum loan amount should be $2,500. Finally, one commenter believed that the maximum amount should be lowered because most payday borrowers cannot pay back $1,000, even over a six-month period.

The Board believes the proposed minimum loan amount of $200 and the proposed maximum amount of $1000 are appropriate and has included these amounts in the final rule. With respect to those commenters who advocated for a lower minimum amount, the Board notes, as discussed above, that this rule does not prohibit FCUs from making smaller loans that are legal under NCUA's regulations and Reg Z. Also, as noted in the preamble to the proposed rule, a minimum loan amount of $200 is in-line with the typical loan extended to payday loan borrowers.

In response to the commenter who argued that the maximum loan amount should be $2,500, the Board does not believe it would be prudent to allow FCUs to lend amounts over $1,000 to borrowers at terms of six months or less. As noted in the preamble to the proposed rule, the Board chose a maximum loan amount of $1,000 because it may allow borrowers to repay loans from payday lenders and transition to more traditional FCU products while still being a manageable short-term loan.

Finally, in response to the comment that most borrowers could not pay back $1,000 in six months and, therefore, the maximum amount should be lower, the Board notes the discussion above regarding the impetus for a maximum loan of $1,000. In addition, as discussed earlier in this preamble, the Board expects FCUs to extend loans to borrowers in amounts and under terms in which the borrower can manage repayment of the loan, within the confines of this rule.

In response to the Board's specific request for comment on the issue of amortization, approximately one-third of the commenters provided a response. The majority of those commenters believed that the final rule should require FCUs to fully amortize STS loans. There were two commenters, however, that believed FCUs should have the option to use balloon payments, citing that, in limited circumstances, balloon payments may actually benefit members.

The Board agrees with the majority of the commenters that FCUs should fully amortize loans made under this rule, and is including a specific requirement in the final rule. The Board notes that balloon payments often create additional difficulty for borrowers trying to repay their loans, and requiring FCUs to fully amortize the loans will allow borrowers to make manageable payments over the term of the loan, rather than trying to make one large payment. Under the requirement to amortize a loan, FCUs must structure the payments so that the borrower is paying a portion of the principal and interest in equal or near-equal installments on a periodic basis over the course of the loan. While the Board is not prescribing specific payment schedules, i.e., monthly or bi-weekly, FCUs should offer payment schedules that allow borrowers to easily repay the loan within the given term.

Approximately one-quarter of the commenters addressed the issue of a length of membership requirement. Of those commenters, all but one believed FCUs should have the option to impose a length of membership requirement, but that it should not be a regulatory requirement. The Board disagrees that FCUs should have the option of setting a length of membership requirement and has included a requirement in the final rule that FCUs set a length of minimum membership requirement of at least one month. The Board wants to provide FCUs with as much flexibility as possible in developing an STS loan program, but it must consider the riskier nature of this type of loan and the safety and soundness of the FCUs offering them. The Board believes a minimum membership requirement of one month will build a meaningful relationship between the borrower and the FCU and help reduce the chance of a borrower defaulting on an STS loan. While the final rule imposes a minimum requirement of one month, individual FCUs should evaluate their risk tolerance and set a membership requirement accordingly.

Less than a quarter of the commenters addressed the issue of a lending cap. Of those commenters, there was an even split between the number of commenters that believed NCUA should impose a cap and those that believed the Board should permit FCUs to set their own cap. The Board received three suggestions on how to establish a cap: Setting a cap at 20% of net worth; 5-10% of assets; and a cap only on the dollar amount of total loans made as a percentage of net worth.

After considering these comments, the Board has decided to require FCUs to set a cap in their written lending policies on the aggregate dollar amount of loans outstanding not to exceed 20% of total net worth. While the Board believes it is preferential to allow an FCU to evaluate its own risk tolerance and resources in setting a cap, the Board also wants to provide FCUs with a ceiling to ensure any cap set by an FCU is sufficient from a safety and soundness perspective. The Board believes a cap on the aggregate dollar amount with a ceiling of 20% net worth will be sufficient to ensure FCUs are not exposed to unnecessary risks and their resources are not stretched. Depending on the success of these programs, the Board can consider raising the cap ceiling at a later date.

Over half of the commenters addressed the issue of requiring credit unions to provide STS loans only to members that had direct deposit or authorized payroll deduction. Of those commenters, nearly three-quarters believed FCUs should have the option to require direct deposit or payroll deduct as part of their program, but it should not be a regulatory requirement. One commenter believed it should be a regulatory requirement and three believed the rule should specifically prohibit the practices. One of the commenters that believed the rule should prohibit the practices stated that requiring payroll deduct to obtain a loan was prohibited by the Federal Reserve Board's Regulation E.

The Board agrees with a majority of the commenters that direct deposit and payroll deduct for members should not be regulatory requirements. While the Board believes direct deposit is a useful tool for limiting risk, it recognizes that a regulatory requirement may restrict FCUs from offering STS loans to members who may not have access to direct deposit. Rather, the Board believes an FCU should be able to evaluate its risk tolerance and members' needs in determining whether or not to require members to participate in direct deposit in order to borrow an STS loan.

On the issue of payroll deduct, the Board notes that Regulation E prohibits financial institutions, including FCUs, from conditioning an extension of credit to a consumer on the consumer's repayment by preauthorized electronic fund transfers. 12 CFR 205.10(e)(1). However, under Regulation E, FCUs can offer members a lower rate or other incentives if they participate in payroll deduct. 12 CFR Part 205, Supplement I, 205.10(e)(1). The Board believes that payroll deduction is an important tool for FCUs to utilize in lowering the risk associated with these loans. Based on these considerations, the Board will let individual FCUs decide if they wish to provide an incentive to or encourage members to utilize payroll deduct or other pre-authorized electronic fund transfers, but will not include any regulatory requirement. The Board is also modifying the best practices section in the final rule to reflect these legal considerations regarding payroll deduction.

In addition to comments on the specific requirements of the rule, the Board also received a few comments requesting that it not require specific underwriting criteria in the regulation and also not change the best practices section into regulatory requirements. With regard to underwriting, the Board will proceed with the approach in the proposed rule that an FCU is required to establish underwriting standards in its written lending policies, but the Board will not require specific standards. The Board believes an FCU is in the best position to evaluate the needs of its members and its risk tolerance and set appropriate underwriting standards. The Board will also keep the underwriting in the best practices section to provide FCUs with guidance on how to structure underwriting for STS loans. With respect to the best practice section, the Board will keep the approach in the proposed rule and offer this section as guidance and not as a regulatory requirement. While the Board believes the suggestions in the best practices section may be beneficial to FCUs and members, the Board also believes an FCU should have flexibility to determine the features of its own program.

In addition to the comments addressed above, the Board received several comments that did not address specific features of the rule, but warrant a discussion in this preamble. Several commenters asked NCUA to collect data about STS loans under this rule and reevaluate the requirements in a year. The Board agrees with these commenters and will modify the 5300 call report by January 2011 to include new sections to evaluate loan programs under this rule. One year from the effective date of this final rule the Board will evaluate the data collected on the 5300 call report and reevaluate the requirements in the final rule.

There were also several commenters that urged NCUA to take enforcement actions against FCUs that are offering predatory payday lending products. The Board notes that NCUA staff will continue to investigate programs that may be predatory in nature and take action where appropriate.

The Dodd-Frank Act, signed into law by President Obama on July 21, 2010, includes, as Title XII, the Improving Access to Mainstream Financial Institutions Act of 2010 (Title XII). Title XII includes, among other things, Federal assistance to Federally-insured financial institutions that are providing small-dollar value loans. Specifically, § 1205 of Title XII authorizes the Secretary of the Treasury to establish multi-year demonstration programs by means of grants, cooperative agreements, financial agency agreements, and similar contracts or undertakings with eligible entities to provide low-cost, small loans to consumers that will provide alternatives to more costly small dollar loans. The Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, § 1205 (2010). Institutions participating in programs under this section are required to promote and provide financial education and literacy to small-dollar loan borrowers.

In addition, section 1206 amends the Community Development Banking and Financial Institutions Act of 1994 by requiring the Community Development Fund (the Fund) to make grants to community development financial institutions (CDFIs) and to any other Federally insured depository institution with a primary mission to serve targeted investment areas to enable such institutions to establish a loan-loss reserve fund to defray the costs of a small dollar loan program established or maintained by such institution. Id. at section 1206(a)(1). Institutions accepting grants under this section are required to provide non-Federal matching funds in an amount equal to 50% of the grant. This section also requires the Fund to make technical assistance grants to be used for technology, staff support, and other costs associated with establishing a small-dollar loan program. To receive a grant or technical assistance grant under this section, a financial institution must have or establish a program with loans under $2,500 that are paid in installments with no pre-payment penalties, and the institution must report payments of the loan to at least one consumer reporting agency and meet any other affordability requirements established by the Administrator of the Fund. Id. at section 1206(b). Title XII also grants the Secretary of the Treasury the authority to issue regulations implementing and administering the grants and programs discussed in Title XII. Id. at section 1209.

The Board would like to clarify that the requirements of this final rule will not prohibit an FCU, which is otherwise eligible, from receiving a grant or participating in a program under Title XII. The requirements and best practices guidance in the final rule are in line with the requirements imposed by Title XII on participating financial institutions. FCUs will be able to comply with the requirements of the final rule to take advantage of the higher interest rate and still be within the limitations of Title XII.

As discussed above, the Secretary of the Treasury has the authority to issue regulations implementing Title XII and the Administrator of the Fund can impose other affordability requirements for grants. The Board will review any regulations or requirements related to the Title XII grants and programs and compare them to the requirements in the final rule to ensure FCUs with STS loan programs can continue to take advantage of the benefits included in Title XII.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a proposed rule may have on a substantial number of small credit unions (those under $10 million in assets). This final rule increases the interest rate ceiling for STS loans and sets out several STS loan program requirements an FCU must meet to take advantage of the higher interest rates. The final rule will not have a significant economic impact on a substantial number of small credit unions, and, therefore, a regulatory flexibility analysis is not required.

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

This rule adds a requirement that Federal credit unions establish a cap on short-term, small-dollar loans in their general written lending policies, which Federal credit unions are already required to maintain and is currently approved under the Paperwork Reduction Act control number 3133-0139. NCUA has determined that the requirements of this rule are additions to an FCU's customary business records and do not increase the paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on April 7, 2010 (75 FR 17630). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

On July 20, 2010, the FAA published the final rule “Re-Registration and Renewal of Aircraft Registration” (75 FR 41968).

The final rule contained information collection requirements in part 47 that had not yet been approved by OMB at the time of publication. In accordance with the Paperwork Reduction Act, the FAA submitted a copy of the new information collection requirements to OMB for its review. OMB approved the collection on August 16, 2010, and assigned the information collection OMB Control Number 2120-0729, which expires on February 29, 2012. In the notification of OMB approval document that was published on August 30, 2010, the FAA incorrectly stated that the expiration date was February 29, 2010. The FAA also incorrectly referenced docket number FAA-2008-0118 instead of docket number FAA-2008-0188. The FAA also inadvertently included references to parts 13 and 91 in the heading of the document; however, parts 13 and 91 did not contain information collection requirements.

In final rule FR Doc. 2010-21561 published on August 30, 2010 (75 FR 52859), make the following corrections:

Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.

This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that certain vessels of the PC-1 Class are vessels of the Navy which, due to their special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with their special function as naval ships: Rule 21(a) pertaining to the arc of visibility of a masthead light. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

In FR doc 2010-19326 appearing on page 47212 in the issue of Thursday, August 5, 2010, the following correction is made:

1. On page 47212, in the second column, revise amendatory instruction number 2 to read as follows:

“Revise § 3.65-10 to read as follows:

The Coast Guard will enforce the safety zone; Chicago Harbor, Navy Pier Southeast, Chicago, IL, 33 CFR 165.931 for the following events:

(1) Navy Pier Fireworks; on September 18, 2010 from 8:45 p.m. through 9:15 p.m.; on September 25, 2010 from 8:45 p.m. through 9:15 p.m.; on October 2, 2010 from 8:45 p.m. through 9:15 p.m.; on October 9, 2010 from 8:45 p.m. through 9:15 p.m.; on October 16, 2010 from 8:45 p.m. through 9:15 p.m.; on October 23, 2010 from 8:45 p.m. through 9:15 p.m.; on October 30, 2010 from 8:45 p.m. through 9:15 p.m.

All vessels must obtain permission from the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative to enter, move within or exit the safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice is issued under authority of 33 CFR 165.931 Safety Zone, Chicago Harbor, Navy Pier Southeast, Chicago, IL and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with advance notification of these enforcement periods via broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port, Sector Lake Michigan, will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended. If the Captain of the Port, Sector Lake Michigan, determines that the safety zone need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the safety zone. The Captain of the Port, Sector Lake Michigan, or his or her on-scene representative may be contacted via VHF Channel 16.

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

Each State has a SIP containing the control measures and strategies to attain and maintain the National Ambient Air Quality Standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Before formally adopting required control measures and strategies, each State must provide the public with an opportunity to comment on them. The States then submit them to EPA as requested SIP revisions on which EPA must formally act.

If and when these control measures and strategies are approved by EPA, after notice and comment rulemaking, they are incorporated into the Federally approved SIP and identified in title 40 of the Code of Federal Regulations, part 52 (Approval and Promulgation of Implementation Plans) (40 CFR part 52). The actual State regulations approved by EPA are not reproduced in their entirety in 40 CFR part 52, but are “incorporated by reference,” which means that EPA has approved a given State regulation with a specific effective date. This format allows both EPA and the public to know which measures are contained in a given SIP and to help determine whether the State is enforcing the regulations.

The SIP is periodically revised as necessary to address the unique air pollution problems in the State. Therefore, EPA from time to time takes action on State SIP submissions containing new and/or revised regulations and other materials; if approved, they become part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR).

As a result, EPA began the process of developing the following: (1) A revised SIP document for each State that would be incorporated by reference under the provisions of title 1 CFR part 51; (2) a revised mechanism for announcing EPA approval of revisions to an applicable SIP and updating both the IBR document and the CFR; and (3) a revised format of the “Identification of plan” sections for each applicable subpart to reflect these revised IBR procedures. The description of the revised SIP document, IBR procedures, and “Identification of plan” format are discussed in further detail in the May 22, 1997, Federal Register document.

The Federally approved regulations, source-specific requirements, and nonregulatory provisions (entirely or portions of) submitted by each State agency and approved by EPA have been organized into a “SIP compilation.” The compilation is contained in three-ring binders and will be updated, primarily on an annual basis. The Indiana SIP compilation is available at the Environmental Protection Agency, Region 5 office: 77 West Jackson Boulevard, Chicago, Illinois 60604; (312) 886-2395.

Each SIP compilation contains three parts approved by EPA: Part one contains regulations, part two contains source-specific requirements, and part three contains nonregulatory provisions. Each State's SIP compilation contains a table of identifying information for each of these three parts. In this action, EPA is publishing the tables summarizing the applicable SIP requirements for Indiana. The effective dates in the tables indicate the date of the most recent revision of each regulation. The EPA Region 5 Office has the primary responsibility for updating the compilation and ensuring its accuracy.

EPA's Region 5 Office developed and will maintain the compilation for Indiana. A copy of the full text of Indiana's regulatory and source-specific compilations will also be maintained at NARA and EPA's Air Docket and Information Center.

In order to better serve the public, EPA revised the organization of the “Identification of plan” section and included additional information to clarify which provisions are the enforceable elements of the SIP.

The revised Identification of plan section contains five subsections: (a) Purpose and scope, (b) Incorporation by reference, (c) EPA-approved regulations, (d) EPA-approved source-specific requirements, and (e) EPA-approved nonregulatory provisions such as transportation control measures, statutes, control strategies, and monitoring networks.

All revisions to the applicable SIP become Federally enforceable as of the effective date of the revisions to paragraphs (c), (d), or (e) of the applicable Identification of plan section found in each subpart of 40 CFR part 52.

To facilitate enforcement of previously approved SIP provisions and provide a smooth transition to the new SIP compilation, EPA has retained the original Identification of plan section, previously appearing in the CFR as the first or second section of part 52 for each State subpart. After an initial two-year period, EPA will review its experience with the new table format and will decide whether or not to retain the Identification of plan appendices for some further period.

Today's rule constitutes a record keeping exercise to ensure that all revisions to the State programs and accompanying SIP that have already occurred are accurately reflected in 40 CFR part 52. State SIP revisions are controlled by EPA regulations at 40 CFR part 51. When EPA receives a formal SIP revision request, the Agency must publish proposed rulemaking in the Federal Register and provide for public comment before approval.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately, thereby avoiding the 30-day delayed effective date otherwise provided for in the APA. Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Accordingly, we find that public comment is “unnecessary” and “contrary to the public interest” under section 553 of the APA, since the codification of the revised format for denoting IBR of the State materials into the SIP only reflects existing law and since immediate notice in the CFR benefits the public by removing outdated citations from the CFR.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a significant regulatory action and is therefore not subject to review by the Office of Management and Budget. This rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. Because the agency has made a good cause finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the Supplementary Information section above, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C 601 et seq. ), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. This rule does not involve technical standards; thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1998) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. This rule does not impose an information collection burden under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). EPA's compliance with these statutes and Executive Orders for the underlying rules are discussed in previous actions taken on the State's rules.

The Congressional Review Act (5 U.S.C. 801 et seq. ), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. Today's action simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of September 24, 2010. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a major rule as defined by 5 U.S.C. 804(2).

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

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

The background for today's actions is discussed in detail in EPA's July 20, 2010, proposal (75 FR 42018). In that rulemaking, we noted that, under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations is less than or equal to 0.08 ppm. (See 69 FR 23857 (April 30, 2004) for further information.) Under the CAA, EPA may redesignate nonattainment areas to attainment if sufficient complete, quality-assured data are available to determine that the area has attained the standard and if it meets the other CAA redesignation requirements in section 107(d)(3)(E).

The MDNRE submitted a request to redesignate the Allegan County area to attainment for the 1997 8-hour ozone standard on May 12, 2010, and supplemented it on June 16, 2010. The redesignation request is based on three years of complete, quality-assured, certified data for the period of 2007 through 2009, indicating the 8-hour NAAQS for ozone, as promulgated in 1997, has been attained in the Allegan County area. Preliminary monitoring data available for 2010 is consistent with continued attainment. The July 20, 2010, proposed rule provides a detailed discussion of how Michigan met this and other CAA requirements.

EPA provided a 30-day review and comment period. The comment period closed on August 19, 2010. EPA received comments in support of the redesignation from Consumers Energy. EPA received no adverse comments on the proposed rule.

EPA is making a determination that the Allegan County area has attained the 1997 8-hour ozone NAAQS. EPA is also approving the maintenance plan SIP revisions for the Allegan County area. EPA's approval of the maintenance plan is based on the State's demonstration that the plan meets the requirements of section 175A of the CAA. After evaluating the redesignation requests submitted by MDNRE, EPA believes that the request meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. Therefore, EPA is approving the redesignation of the Allegan County area from nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA is also approving MDNRE's 2005 base year emissions inventory for the Allegan County area as meeting the requirements of section 172(c)(3) of the CAA. Finally, EPA has found adequate and is approving Michigan's 2021 MVEBs for the Allegan County area.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the state of various requirements for this 8-hour ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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. These actions do not impose additional requirements beyond those imposed by state law and the CAA. For that reason, these actions:

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

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

• Are 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. );

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

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

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

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

• Are 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

• Do 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 redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on the tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone NAAQS in tribal lands. However, because there are tribal lands located in Allegan County, we provided the affected tribe with the opportunity to consult with EPA on the redesignation. The affected tribe raised no concerns with the proposed rule.

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 November 23, 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. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

Eastman submitted a petition under 40 CFR 260.20 and 260.22(a). Section 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268 and 273. Section 260.22 (a) specifically provides generators the opportunity to petition the Administrator to exclude a waste on a “generator specific” basis from the hazardous waste lists.

The Agency bases its proposed decision to grant the petition on an evaluation of waste-specific information provided by the petitioner. This proposed decision, if finalized, would conditionally exclude the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA).

If finalized, we would conclude the petitioned waste from this facility is non-hazardous with respect to the original listing criteria and that the waste process used will substantially reduce the likelihood of migration of hazardous constituents from this waste. We would also conclude that the processes minimize short-term and long-term threats from the petitioned waste to human health and the environment.

EPA is approving the delisting petition submitted by Eastman to have three waste streams generated from its rotary kiln incinerator (RKI) excluded, or delisted, from the definition of a hazardous waste. These waste streams are the rotary kiln incinerator (RKI) bottom ash, RKI fly ash, and RKI scrubber water blowdown. The RKI bottom ash and the RKI fly ash are derived from the management of several F-, K-, and U-waste codes. These waste codes are F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. The Scrubber water blowdown produced by the RKI's air pollution control equipment is also derived from the management of several F-, K-, and U-waste codes as well as certain characteristic hazardous wastes. These waste codes are D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. The RKI is authorized to manage a list of additional F-, K-, U-, and P-codes to cover off-site sources not attributed to the above waste codes. If these waste codes are not specifically listed in the delisting exclusion, they are not covered by the exclusion and can not be managed as non-hazardous, unless and until, the exclusion is modified to include them.

Eastman's petition requests a delisting for three waste streams: The RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown listed as D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. Eastman does not believe that the petitioned wastes meet the criteria for which EPA listed them. Eastman also believes no additional constituents or factors could cause the wastes to be hazardous. EPA's review of this petition included consideration of the original listing criteria, and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4). In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in § 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is non-hazardous with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned wastes do not meet the listing criteria and thus should not be a listed waste. EPA's decision to delist the wastes identified above from the facility is based on the information submitted in support of this rule, including descriptions of the waste and analytical data from the Eastman, Longview, Texas facility.

Eastman will dispose of the fly ash and bottom ash in an onsite landfill. The scrubber water blowdown will be managed in the waste water treatment plant (WWTP). The sludge from the WWTP has been delisted. See Appendix IX to Part 261, Table 1. All management occurs on-site and will remain the same after the delisting is granted.

RCRA section 3001(f) specifically requires EPA to provide notice and an opportunity for comment before granting or denying a final exclusion. Thus, EPA will not grant the exclusion unless and until it addresses all timely public comments (including those at public hearings, if any) on this proposal.

RCRA section 3010(b)(1), at 42 USCA 6930(b)(1), allows rules to become effective in less than six months after EPA addresses public comments when the regulated facility does not need the six-month period to come into compliance. That is the case here, because this rule, if finalized, would reduce the existing requirements for persons generating hazardous wastes.

EPA believes that this exclusion should be effective immediately upon final publication because a six-month deadline is not necessary to achieve the purpose of section 3010(b), and a later effective date would impose unnecessary hardship and expense on this petitioner. These reasons also provide good cause for making this rule effective immediately, upon final publication, under the Administrative Procedure Act, 5 U.S.C. 553(d).

Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude states which have received authorization from EPA to make their own delisting decisions.

EPA allows the states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA, 42 U.S.C. 6929. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the state. Because a dual system (that is, both Federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, EPA urges petitioners to contact the state regulatory authority to establish the status of their wastes under the state law. Delisting petitions approved by EPA Administrator under 40 CFR 260.22 are effective in the State of Texas only after the final rule has been published in the Federal Register.

EPA published an amended list of hazardous wastes from nonspecific and specific sources on January 16, 1981, as part of its final and interim final regulations implementing section 3001 of RCRA. EPA has amended the lists several times and codified them in §§ 261.31 and 261.32. EPA lists these wastes as hazardous because: (1) They typically and frequently exhibit one or more of the characteristics of hazardous wastes identified in Subpart C of Part 261 (that is, ignitability, corrosivity, reactivity, and toxicity) or (2) they meet the criteria for listing contained in § 261.11(a)(2) or (a)(3).

Individual waste streams may vary, however, depending on raw materials, industrial processes, and other factors. Thus, while a waste described in these regulations generally is hazardous, a specific waste from an individual facility meeting the listing description may not be hazardous.

For this reason, §§ 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that EPA should not regulate a specific waste from a particular generating facility as a hazardous waste.

A delisting petition is a request from a facility to EPA or an authorized State to exclude wastes from the list of hazardous wastes. The facility petitions EPA because it does not believe the wastes should be hazardous under RCRA regulations.

In a delisting petition, the petitioner must show that wastes generated at a particular facility do not meet any of the criteria for which the waste was listed. The criteria for which EPA lists a waste are in Part 261 and further explained in the background documents for the listed waste.

In addition, under § 260.22, a petitioner must prove that the waste does not exhibit any of the hazardous waste characteristics and present sufficient information for EPA to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. See Part 261 and the background documents for the listed waste.

Generators remain obligated under RCRA to confirm whether their waste remains non-hazardous based on the hazardous waste characteristics even if EPA has “delisted” the waste.

Besides considering the criteria in § 260.22(a) and section 3001(f) of RCRA, 42 U.S.C. 6921(f), and in the background documents for the listed wastes, EPA must consider any factors (including additional constituents) other than those for which EPA listed the waste, if a reasonable basis exists to determine that these additional factors could cause the waste to be hazardous.

EPA must also consider as hazardous waste mixtures containing listed hazardous wastes and wastes derived from treating, storing, or disposing of listed hazardous waste. See § 261.3(a)(2)(iii) and (iv) and (c)(2)(i), called the “mixture” and “derived-from” rules, respectively. These wastes are also eligible for exclusion and remain hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

Eastman petitioned EPA on December 1, 2008, to exclude from the lists of hazardous wastes contained in §§ 261.24, 261.31, and 261.32, certain wastes from its rotary kiln incineration system. The three waste streams included in the petition were: the RKI fly ash, RKI bottom ash and RKI scrubber water blowdown.

The waste streams are generated from the Eastman facility located in Longview, Texas. The RKI fly ash and RKI bottom ash are listed under EPA Hazardous Waste No. F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. The Scrubber water blowdown produced by the RKI's air pollution control equipment is also derived from the management of several F-, K-, and U- waste codes as well as certain characteristic hazardous wastes. These waste codes are D001, D002, D003, D007, D008, D018, D022, F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359. Specifically, in its petition, Eastman requested that EPA grant exclusions for 1,000 cubic yards per calendar year of RKI fly ash; 750 cubic yards per calendar year of RKI bottom ash; and 643,000 cubic yards (500,000 million gallons) of RKI scrubber water blowdown waste resulting from the operations of the rotary kiln incinerator at its facility.

Eastman manufactures a variety of chemicals and plastics at its facility located in Longview, Texas. The Longview, Texas facility occupies roughly 6,000 acres of land and produces approximately 40 chemical and plastic product lines. While Eastman owns and operates a majority of individual production plants at the facility, there are some production plants that are not owned by Eastman but are located on the facility. Eastman provides utility support to these captured facilities, such use of the wastewater treatment plant and waste management in the RKI through service agreements. The production processes employed by the captured facilities produce products in conjunction with Eastman. The Eastman-Longview Texas facility also accepts waste for processing in the RKI from other off-site Eastman facilities. This facility does not accept wastes from sources outside the Eastman family. The unit is dedicated to wastes similar to those generated by Eastman only facilities.

The RKI is a thermal combustion unit owned and operated by Eastman that is used for the destruction of hazardous and non-hazardous wastes generated by Eastman Chemicals as well as its captured facilities. The RKI operates at 1700-2200 °F and is RCRA permitted to manage a large variety of wastes including wastes generated from other Eastman divisions. These wastes can have a variety of D-, F-, U-, K-, and P- codes. In practice, the waste codes managed in the RKI will be associated with production processes from Eastman Chemicals.

The RKI Bottom and Fly Ashes and Scrubber Water Blowdown are generated by the RKI as residuals from the waste combustion process. Bottom ash is generated when large particulate matter drops from the secondary combustion chamber (SCC) into an ash removal pit situated directly under the SCC. Bottom ashes are removed from the pit via a chain driven ash conveyor system and placed in large containers for subsequent management. They are tested, may have polymers added to them for stabilization and disposed of in an on-site hazardous waste landfill. Fly ash is lighter than bottom ash and is associated with finer particulate matter that leaves the SCC as part of the “exhaust” gas. From the SCC, exhaust gases pass through a rapid quench tank and condenser, which have water layers to capture smaller particulate matter. Exhaust gas then proceeds through a wet scrubber where more particulate matter is removed. The “blowdown” water streams through the quench/condenser and scrubber systems are routed to a blowdown tank (clarifier). In the tank, the combined blowdown stream (fly ash and water) is phase separated with the scrubber water blowdown then going to the wastewater system and fly ash slurry going to a rotary filter for dewatering. It is at this point in the system that scrubber water blowdown is defined. It is also at this point in the system that dewatered solids from the rotary filter are considered fly ash. The dewatered fly ash is removed from the filter and placed in large containers for subsequent management which can consist of testing, addition of polymers (as needed), and disposal in the on-site hazardous waste landfill.

Eastman intends to dispose of the delisted RKI bottom ash and RKI fly ash at a on-site Subtitle D Landfill, and the RKI scrubber water blowdown will be treated in the Wastewater Treatment Plant. Treatment of process wastes and wastes from captured facilities generate the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown that is classified as F001, F002, F003, F005, F039, K009, K010, U001, U002, U031, U069, U107, U112, U117, U140, U147, U161, U213, and U359 listed hazardous wastes pursuant to 40 CFR 261.31 and 261.32. The 40 CFR Part 261 Appendix VII hazardous constituents which are the basis for listing can be found in Table 1 and Table 2.

To support its petition, Eastman submitted:

1. Analytical results of the toxicity characteristic leaching procedure and total constituent analysis for volatile and semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and metals for eight samples for the RKI fly ash and RKI bottom ash, and RKI scrubber water blowdown;

2. Analytical results of the total constituent analysis for volatile and semivolatile organics, pesticides, herbicides, dioxins/furans, PCBs and metals for eight samples for the RKI scrubber water blowdown;

3. Analytical results from multiple pH leaching of metals and;

4. Description of the operations and waste received of the RKI.

EPA believes that the descriptions of Eastman's waste, and the analytical data submitted in support of the petition show that the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown are non-hazardous. Analytical data from Eastman's RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown samples were used in the Delisting Risk Assessment Software (DRAS). The data summaries for detected constituents are presented in Table 3, 4, and 5. EPA has reviewed the sampling procedures used by Eastman and has determined that they satisfy EPA's criteria for collecting representative samples of the variations in constituent concentrations in the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown. The data submitted in support of the petition show that constituents in Eastman's wastes are presently below health-based risk levels used in the delisting decision-making. EPA believes that Eastman has successfully demonstrated that the RKI bottom ash, RKI fly ash, and RKI scrubber water blowdown are non-hazardous.

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, a State must change its program accordingly and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, the State must change its program because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

Nebraska initially received final authorization on January 24, 1985, effective February 7, 1985 (50 FR 3345), to implement the RCRA hazardous waste management program. EPA granted authorization for changes to Nebraska's program on October 4, 1985, effective December 3, 1988 (53 FR 38950); June 25, 1996, effective August 26, 1996 (61 FR 32699); April 10, 2003, effective June 9, 2003 (68 FR 17553); and October 4, 2004, effective December 3, 2004.

On April 29, 2008, Nebraska submitted a final complete program revision application, seeking authorization of its changes in accordance with 40 CFR 271.21. On December 30, 2008, EPA published both an Immediate Final Rule (73 FR 79661) granting Nebraska final authorization for these revisions to its Federally-authorized hazardous waste program, along with a companion Proposed Rule announcing EPA's proposal to grant such a final authorization (73 FR 79761). EPA announced in both documents that the Immediate Final Rule and the Proposed Rule were subject to a thirty-day comment period. The public comment period ended on January 29, 2009. EPA received written comments from one commenter during the public comment period. Today's action responds to the comments EPA received and publishes EPA's final determination granting Nebraska final authorization of its program revisions. Further background on EPA's Immediate Final Rule and its tentative determination to grant authorization to Nebraska for its program revisions appears in the aforementioned Federal Register notices. The issues raised by the commenter are summarized and responded to as follows.

The comments did not address specific concerns with EPA's approval of the additional RCRA regulatory provisions in Nebraska's authorized hazardous waste program; rather the comments address a previous rule promulgated by EPA. The commenter's arguments relate specifically to EPA's promulgation of the Zinc Fertilizer Rule on July 24, 2002 (67 FR 48393). Specifically, the commenter argued that the Phase IV Land Disposal Restriction (LDR)—which is more stringent than the Zinc Fertilizer Rule—resulted from an “affirmative finding of safety” when zinc-containing hazardous wastes were disposed in Subtitle C landfills, so it is counterintuitive to claim that the same zinc-containing hazardous wastes can now “safely” be used as fertilizer. For the reasons set forth below, we do not agree with the commenter.

EPA promulgated all of the rules included in Nebraska's revision pursuant to the authority granted to EPA by Congress under RCRA. Those rules, including the Zinc Fertilizer Rule, were finalized after full consideration of any and all comments submitted in a timely manner. By adopting the rule promulgated by EPA, Nebraska revised its hazardous waste program to be equivalent to and consistent with the Federal program. Pursuant to 42 U.S.C. 6926(b), EPA has the authority to authorize State programs that are equivalent to and consistent with the Federal program. The comments submitted speak directly to the Federal rule and not to EPA's authorization of Nebraska's program revisions. Therefore, we have determined that there is no basis to deny authorizing approval based on these comments.

In addition, the commenter argues that exempting zinc-containing hazardous wastes from regulation as solid waste is not supported by Nebraska Revised Statute 75-362. This comment is not relevant to this action. The criteria for authorization of a State hazardous waste program are set forth at section 3006 of RCRA, 42 U.S.C. 6926(b). In reviewing an application under this section, EPA considers whether the State program (1) is equivalent to the Federal program under subchapter III, which governs hazardous waste; (2) is consistent with Federal or “State programs applicable to other States”; and (3) provides adequate enforcement of compliance with the requirements of subchapter III of RCRA. As part of this review, EPA considers whether the State is imposing requirements less stringent than those authorized under subchapter III respecting the same matter as governed by such regulation. The commenter's argument with regard to Nebraska Revised Statute 75-362 falls outside the scope of our review of Nebraska's application for the hazardous waste rules authorized herein. Therefore, the comment regarding Nebraska Revised Statute 75-362 is not relevant to this action.

Based on EPA's response to public comments, the Agency has determined that approval of Nebraska's RCRA program revisions should proceed. EPA has made a final determination that Nebraska's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Nebraska final authorization to operate its hazardous waste program with the changes described in its application for program revisions. Nebraska is responsible for carrying out the aspects of the RCRA program described in its approved program applications, subject to the limitations of the Hazardous and Solid Waste Amendments (HSWA) of 1984. New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement any such HSWA requirements and prohibitions in Nebraska, including issuing HSWA permits, until the State is granted authorization to do so. For further background on the scope and effect of today's action to approve Nebraska's RCRA program revisions, please refer to the preambles of EPA's December 30, 2008, Proposed and Immediate Final Rules at 73 FR 79761 and 73 FR 79661 respectively.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by state law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000). This action 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, “Federalism” (64 FR 43255, August 10, 1999), because it merely authorizes state requirements as part of the state RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks that may affect children. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform” (61 FR 47729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630, “Government Actions and Interference with Constitutionally Protected Property Rights (53 FR 8859, March 15, 1988) by examining the takings implications the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document 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 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). This action will be effective September 24, 2010.

A. Background

On October 19, 1998, the President signed into law the Travel and Transportation Reform Act of 1998 (Pub. L. 105-264). Subsection 5(b) of Public Law 105-264, codified at 5 U.S.C. 5739, permits the Administrator of General Services to authorize Federal agencies to test new and innovative methods of reimbursing relocation expenses without seeking authorizing legislation or a waiver of regulations. This statutory provision is implemented in part 300-80 the Federal Travel Regulation (FTR) (41 CFR part 300-80), “Relocation Expenses Test Programs.” Public Law 109-325 extended the test program authority through October 19, 2009. Public Law 111-112, enacted on November 30, 2009, extended the test program authority indefinitely.

This final rule:

• Revises section 300-80.4 to update the maximum number of test programs that may be simultaneously running from 10 to 12;

• Revises section 300-80.6 to clarify test programs are limited to making payments in lieu of the relocation reimbursements contained in 5 U.S.C. chapter 57, subchapter II;

• Revises section 300-80.7 to update the duration of test programs and possible extensions from 24 months to four years;

• Redesignates current section 300-80.8 as section 300-80.9 and removes current section 300-80.9 because it is no longer valid;

• Adds new section 300-80.8 to add instructions for agencies wishing to apply for a test program extension; and

• Revises newly designated section 300-80.9 to clarify the reporting requirements for agencies conducting test programs.

This regulation is excepted from the definition of “regulation” or “rule” under Section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993 and, therefore, was not subject to review under Section 6(b) of that Executive Order.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. This final rule is also exempt from the Regulatory Flexibility Act per 5 U.S.C. 553 (a)(2) because it applies to agency management. However, this final rule is being published to provide transparency in the promulgation of federal policies.

The Paperwork Reduction Act does not apply because the changes to the Federal Travel Regulation do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

In Title 43 of the Code of Federal Regulations, Part 1000 to End, revised as of October 1, 2009, on page 331, in § 3000.12, move paragraph (b) to below the table on page 332.

You can get an electronic copy using the Internet by—

(1) Searching the electronic Federal Docket Management System (FDMS) Web page at http://www.regulations.gov;

(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or

(3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov and accessing the link for “Research Center” at the top of the page.

In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT . Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.

This rule will be effective upon publication in the Federal Register . The Administrative Procedure Act, 5 U.S.C. 553, allows an agency, upon finding good cause, to make a rule effective immediately. There is good cause for making this final rule effective immediately. A final rule, published on July 21, 2009, is already in effect. 74 FR 36030. There is no need to provide advance notice that this final rule will become effective because this final rule is substantively the same as the July 21, 2009, final rule; the only changes in this final rule expand the period of time in which a party may respond to motions and final decision from 10 to 30 days.

On July 21, 2009, TSA published a final rule in the Federal Register (74 FR 36030) reorganizing and amending its Investigative and Enforcement Procedures. When TSA published the rule, TSA invited public comments on the rule until September 21, 2009. TSA received one letter to the public docket that raised a number of comments. This final rule responds to the comments and makes one minor procedural change and corrects a section reference, discussed below.

Informal Conferences: The commenter stated that permitting an Informal Conference with an agency attorney or another agency official, as § 1503.421 provides, is beneficial for expedited resolution of cases. However, the commenter cautioned that agency personnel authorized to conduct such informal conferences must understand the TSA regulations and their intent and expressed the view that sometimes they do not.

TSA trains its attorneys and other agency officials so that they are well versed in any regulations at issue in an informal conference. TSA equips its attorneys and agency officials with proper knowledge and skills to address any relevant concerns at informal conference.

Enforcement of “TSA Requirements”: Another comment recommended that TSA amend the regulation to make it clear that individuals may only be charged with violations of regulations or agency orders as to which “proper notice has been given pursuant to the Administrative Procedure Act.” The commenter stated that, if TSA seeks to hold individuals responsible through the enforcement process for violating non-regulatory “TSA requirements” such as agency orders, Subpart G should be amended to make clear that § 1503.607 does not preclude the Administrative Law Judge (ALJ) from making a full factual record as to whether the “TSA requirement” at issue was properly applicable to the individual charged, including whether the individual charged received legally sufficient actual or constructive notice of the binding nature of the TSA requirement.

TSA agrees that persons must have notice of a requirement before TSA can enforce it. In the case of violation of a statutory provision, the provision's inclusion in the public laws of the United States establishes notice. In the case of a regulation published in the Federal Register , filing the document with the Office of the Federal Register establishes notice. In the case of another enforceable requirement, such as an agency order, the person charged must have had adequate notice of the requirement; an ALJ proceeding could include resolution of this issue.

Warning Notices, Letters of Correction: Another comment focused on language in § 1503.301 providing that, if TSA determines that an alleged violation does not require assessment of a civil penalty, an appropriate official may take administrative action, such as warning notices and letters of correction, in disposition of the case. The rule provides: “The issuance of a Warning Notice or Letter of Correction is not subject to appeal under this part.” The commenter expressed the following objections to the absence of an appeal process for Warning Notices:

1. TSA has made mistakes in interpreting its rules, resulting in the incorrect adjudication of matters under investigation, leading to TSA issuing Warning Notices to innocent parties.

2. Improperly issued Warning Notices can result in future negative consequences, such as increased civil penalties, if the recipient of the Warning Notice is the subject of future enforcement actions. The commenter referenced the language of Subpart E— Assessment of Civil Penalties by TSA, § 1503.425, Compromise Orders, (b)(5) to support the position that an improperly-issued Warning Notice may have negative consequences. Specifically, the commenter referenced the following statement: “A compromise order contains the following: (5) A statement that the compromise order will not be used as evidence of a prior violation in any subsequent civil penalty proceeding.” The commenter suggested that, if TSA does not allow formal or informal appeals of Warning Notices, at a minimum TSA should incorporate similar language declaring that such Warning Notices will not be used as evidence of a prior violation in any subsequent civil proceeding.

3. The inability to seek redress of an improperly issued Warning Notice presents future risk to other innocent individuals; TSA errors may lead to similar actions against other individuals who may be accused, erroneously, of the same type of alleged violation.

TSA believes that the Warning Notice process is adequate to address these concerns. A Warning Notice does not constitute a legal finding of a violation; therefore, no formal appeal process is required. TSA generally affords persons the opportunity to respond to an investigation before TSA takes enforcement action, including the issuance of a Warning Notice. The most efficient and effective means for resolving allegations of noncompliance is for the person to respond to TSA inquiries promptly and thoroughly.

Penalties Against Individuals: The commenter acknowledged that TSA has the statutory authority to raise the maximum civil penalties assessed against individuals, but objected to TSA's doing so now in view of the recession, high unemployment rates, and stagnant economic growth. The commenter added that airline workers, including pilots, have suffered significant wage reductions. The commenter, a trade association that represents airline workers, expressed its view that airline workers are more likely to be the subject of penalties than other individuals because of the amount of time they spend at airports and transiting checkpoints; these activities might lead to potential charges of a violation of TSA regulations. The commenter recommended that TSA take these factors into account when TSA considers mitigating factors for purposes of proposing penalties. The comment noted that this should be the case particularly in regard to proposed penalties for first-time offenders.

As explained in the preamble to the rule published on July 21, 2009, TSA has adjusted the penalty amounts as required by statute. See 74 FR 36034. The Federal Civil Penalties Inflation Adjustment Act of 1990 (Adjustment Act), as amended, 1 includes a detailed formula for inflation adjustments. TSA recognizes that many parties may experience financial hardship due to the current economic environment. Hence, TSA always considers multiple factors, including financial distress, when assessing civil penalties. TSA uses a publicly available sanctions policy in assessing penalties. See http://www.tsa.gov/research/laws/editorial_1504.shtm. Finally, TSA disagrees with the view that airline workers' occupation should be considered a mitigating factor for assessing penalties. Individuals who spend considerable time in the aviation environment should be aware of TSA's requirements and take particular care to comply with them.

Formal Complaints: The commenter raised objections to the procedures for formal complaints in subpart I, § 1503.801. This provision of the rule allows any person to file a complaint with the TSA Administrator with respect to “any act or omission by any person in contravention of” any rules, regulations or provisions administered by the TSA. Paragraph (d) of that section provides that TSA will place complaints that meet the tests of Subpart I on its Complaint Docket, mail a copy to each person named in the complaint and, per paragraph (f), the person named in the complaint “must file an answer within 20 days after service of a copy of the complaint.” Pursuant to paragraph (k), TSA maintains in the public docket “the complaint and other pleadings and official TSA records relating to the disposition of the complaint.”

The commenter questioned TSA's legal authority for these procedures. The commenter also recommended that TSA consider adding a provision allowing TSA to assess penalties for those who file ill-founded, baseless or false charges against individuals, as well as a provision that would allow the individuals who are the subject of these charges to seek compensation for attorneys' fees and other economic losses incurred as a result of responding to false complaints.

TSA has legal authority for the provision stated in § 1503.801. The provision is based on 49 U.S.C. 46101, as amended by section 140(b) of the Aviation and Transportation Security Act, Public Law. 107-71 (ATSA). Moreover, § 1503.801(a) through (k) is substantively the same as § 1503.5(a) through (k) of the preceding regulation. If TSA were to conclude that a formal complaint consisted of false or baseless charges, TSA would dismiss the complaint and send written notification of the dismissal to the complainant and the person(s) named in the complaint.

Previously, § 1503.629(d) provided that parties must reply to motions not later than 10 days after service of the motion on the party. Similarly, § 1503.659(e) required a party to reply to a Petition to Reconsider or Modify a Final Decision and Order of the TSA Decision Maker on appeal within 10 days after service of the petition on that party. These time periods did not afford parties a sufficient time to reply, partly because parties often receive mail well after the date on which the regulations presume service. Moreover, the 10-day periods were inconsistent with other time periods in the regulation, such as § 1503.609 (30 days to file a Complaint), § 1503.611 (30 days to answer a Complaint), and § 1503.657(e) (35 days to file a reply brief in an appeal from an initial decision by TSA). For these reasons, TSA amends §§ 1503.629(d) and 1503.659(e) to provide that parties will have 30 days from service to reply.

In the July 2009 rule, TSA reorganized part 1503 and moved § 1503.215 to § 1503.623, Withdrawal of complaint or request for hearing. TSA inadvertently did not change the section reference in § 1503.631(c)(2) to the appropriate section. In this rule, TSA replaces the incorrect reference to § 1503.215 with the correct reference to § 1503.623.

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501. et seq. ) requires that TSA consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations.

TSA has determined that there are no current or new information collection requirements associated with this rule.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order (E.O.) 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 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 $100 million or more annually (adjusted for inflation).

Because this rule does not add any requirements to those in the July 21, 2009, final rule, TSA has not performed a cost/benefit analysis.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993) provides for making determinations as to whether a regulatory action is “significant” and therefore subject to OMB review and the requirements of the Order. Executive Order 12866 classifies a rule as significant if it meets any one of a number of specified conditions, including economic significance, which is defined as having an annual impact on the economy of $100 million. A regulation is also considered a significant regulatory action if it raises novel legal or policy issues.

This regulation is not significant under E.O. 12866. This final regulation will have no economic impact because the regulation makes no substantive changes to 49 CFR part 1503.

The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), requires agencies to perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities when the Administrative Procedure Act (APA) requires notice and comment rulemaking. TSA has not assessed whether this rule will have a significant economic impact on a substantial number of small entities, as defined in the RFA. When an agency publishes a rulemaking without prior notice and an opportunity for comment, the RFA analysis requirements do not apply.

This rulemaking is a final rule that follows a final rule that TSA issued on July 21, 2009. Therefore, no RFA analysis is provided.

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this rulemaking and has determined that it will not create any unnecessary obstacles to foreign commerce.

The Unfunded Mandates Reform Act of 1995 is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”

This rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply and TSA has not prepared a statement under the Act.

TSA has analyzed this final rule under the principles and criteria of E.O. 13132, Federalism. We have determined that this action will not have a substantial direct effect on the States, or the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, have determined that this action does not have federalism implications.

TSA has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment.

The energy impact of the action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.

The Gulf reef fish fishery is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On June 2, 2010, NMFS implemented a recreational quota for Gulf red snapper of 3.403 million lb (1.544 million kg) and a commercial quota of 3.542 million lb (1.607 million kg) through a regulatory amendment (75 FR 23186, May 3, 2010). These quotas are based on the Councils( recommended total allowable catch of 6.945 million lb (3.150 million kg) for 2010 and subsequent fishing years, and the allocation ratios in the FMP.

The Magnuson-Stevens Act requires NMFS to close the recreational red snapper component of the Gulf reef fish fishery in Federal waters when the quota is met or projected to be met. Finalized 2009 recreational landings data indicated the recreational quota was projected to be met on or by July 23, 2010. Therefore, in the rule that published May 3, 2010 (75 FR 23186), NMFS announced the recreational red snapper fishing season would close at 12:01 a.m., local time, July 24, 2010, which constituted a 53-day fishing season.

Because of the Deepwater Horizon MC252 oil spill, NMFS subsequently closed a large area in the north-central Gulf to fishing (fishery closed area), resulting in lower than expected landings for recreational red snapper. Because the fishery closed area is located where a substantial portion of the recreational red snapper fishing occurs, the Council did not expect the recreational red snapper quota to be met by July 23rd. Therefore, at its June 2010 meeting, the Council requested NMFS publish emergency rulemaking to authorize the RA to re-open the recreational red snapper season after September 30th, the end of the fishing season. A proposed rule was published on August 16, 2010 (75 FR 49883) and NMFS requested public comment through August 31, 2010. NMFS published a final rule in the same issue of the Federal Register , authorizing the RA to re-open the recreational red snapper fishing season after September 30th.

Based on the most recent landings data, NMFS has determined that 32 percent of the available recreational quota was landed by the July 23rd closure date. Based on landings rates and the remaining recreational quota of approximately 2.3 million lb (1.1 million kg), NMFS has determined the recreational red snapper season can re-open. At its August 2010 meeting, the Council voted to re-open the season on eight consecutive Fridays, Saturdays, and Sundays, beginning at 12:01 a.m., local time, on October 1, 2010 and closing at 12:01 a.m., local time, on Monday, November 22, 2010 (24 fishing days). In the interim, weekend openings would start at 12:01 a.m., local time, on Fridays and stay open through 12:01 a.m., local time, on Mondays. The season will then be closed until 12:01 a.m., local time, June 1, 2011, the beginning of the 2011 recreational fishing season.

During the open period, the bag and possession limit for recreational Gulf red snapper is two fish. However, no red snapper may be retained by the captain and crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero.

During the closed period, the bag and possession limit for recreational Gulf red snapper is zero. A person aboard a vessel for which a Federal charter vessel/headboat permit for Gulf reef fish has been issued, must also abide by these closure provisions in state waters if Federal regulations are more restrictive than applicable state law.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B). Allowing prior notice and opportunity for public comment on the re-opening is unnecessary because the rule establishing the annual quota has already been subject to notice and comment, and all that remains is to notify the public that additional harvest remains in the established quota and, therefore, the fishery will re-open for a limited time period.

This rule relieves a restriction by re-opening the recreational red snapper season after September 30, the end of the fishing season. Because it relieves a restriction, this rule is not subject to the 30-day delayed effectiveness provision of the Administrative Procedures Act pursuant to 5 U.S.C. 553(d)(1).

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

The Gulf reef fish fishery is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801, et seq. (Magnuson-Stevens Act). The Magnuson-Stevens Act provides the legal authority for the promulgation of emergency regulations under section 305(c) (16 U.S.C. 1355(c)).

On August 16, 2010, NMFS published a proposed emergency rule to grant the RA the authority to re-open the Gulf recreational red snapper season after September 30, and requested public comment (75 FR 49883). The rationale for the measures contained in this emergency rule is provided in the environmental assessment and the proposed emergency rule and is not repeated here.

A total of 139 comments were received on the proposed emergency rule. A summary of those comments, and NMFS responses, follows.

Comment 1 : More than 50 percent of the comments expressed broad general support re-opening the recreational red snapper fishing season during 2010 without regard to specific timing. Another 25 percent specifically expressed support for re-opening later in the year and/or giving NMFS the authority to re-open the season after the September 30 end of the fishing season. At its August 2010 meeting, the Council recommended re-opening the recreational red snapper fishing season on eight consecutive weekends (Friday through Sunday) beginning October 1, 2010. Several comments received after this meeting expressed opinions regarding weekend openings versus opening during the week as well.

Response : This emergency rule gives the RA the authority to re-open the recreational red snapper fishing season after September 30, 2010. Without this rulemaking NMFS is only authorized to re-open the season through the end of the designated June 1 through September 30 fishing season. The recreational red snapper quota is established based on an allowable biological catch level determined from the results of a peer-reviewed and vetted stock assessment, which is based on the best scientific information available. This rulemaking will provide the opportunity for the recreational sector to harvest the remaining quota and achieve the Council's designated optimum yield (OY) for the fishery, thus enhancing social and economic benefits to fishermen and the tourism industries of Gulf coastal communities. The timing and duration of a re-opening will not affect the goal of harvesting the allowable catch established in accordance with the red snapper rebuilding plan, which seeks to achieve OY for the red snapper component of the reef fish fishery. NMFS will publish an additional rulemaking specifying the dates of a re-opening.

Comment 2 : A few comments suggested that areas that had been open to fishing during the June 1 through July 23 recreational red snapper season should remain closed. Any re-opening of the season should be restricted to those areas that had been closed to all fishing because of BP Deepwater Horizon MC252 oil spill, but are now re-opened to fishing.

Response : The recreational red snapper quota is a Gulf-wide quota; it is not separated into regional components. Current regulations do not allow NMFS to designate fishing season openings for specific geographic regions. In addition, many areas are still closed to all fishing because of the BP Deepwater Horizon MC252 oil spill, and may not be re-opened to fishing during the recommended eight consecutive weekend openings. Re-opening the recreational red snapper fishing season to specific geographic regions would create substantial regulatory confusion for the public, and increase the difficulty of enforcement.

Comment 3 : A few comments suggested that the recreational red snapper fishing season should remain closed for 2010. It was suggested NMFS should not be authorized to change the existing regulations intended to protect the red snapper stock just because the quota was not harvested. It would be irresponsible to re-open the recreational red snapper fishing season without first determining the effects of the BP Deepwater Horizon MC252 oil spill to the environment and associated fish stocks. A stock assessment should be conducted before allowing additional fishing mortality.

Response : NMFS acknowledges the concern for potential impact to fishery stocks from the BP Deepwater Horizon MC252 oil spill. Oil from the spill dispersed on the surface as well as within the water column. Red snapper spawn during summer and fall. Oil in surface waters could affect the survival of eggs and larvae; however, if oil has not dispersed to the ocean floor, the impacts to the demersal juvenile and adult red snapper and their benthic habitat may not be substantial. This anthropogenically-induced natural mortality on larvae caused by the oil spill could result in declines in recruitment in future year classes.

At this time, data are not available to demonstrate any specific adverse effects of the BP Deepwater Horizon MC252 oil spill on the red snapper resource or its habitat. As a result, no information is available indicating that the 2010 recreational red snapper quota should not be harvested. The current rebuilding schedule is intended to allow a specific harvest that will allow the stock to rebuild on a specified schedule, while providing for a quota-controlled harvest that will achieve maximum economic and social benefits. No information is available that indicates reduced harvests are necessary to maintain the current rebuilding schedule, i.e., to mitigate biological harm resulting from the oil spill. In the absence of biological harm or a need for beneficial mitigation (although not harvesting the quota would reduce overall fishing mortality), this would not be expected to result in greater economic and social benefits. In addition, substantial portions of the red snapper population are found in the northwestern and western Gulf (western Louisiana and Texas) and an increasing population of red snapper is re-establishing off the west Florida continental shelf. Spawning by these segments of the stock should mitigate the overall impact of any potentially compromised spawn by that part of the stock located in oil-affected areas.

This action is issued pursuant to section 305(c) of the Magnuson-Stevens Act, 16 U.S.C. 1855(c).

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

NMFS prepared an FRFA. The FRFA describes the economic impact this emergency rule is expected to have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the FRFA is available from NMFS (see ADDRESSES ). A summary of the FRFA analysis follows.

The purpose of this emergency rule is to authorize the Regional Administrator, Southeast Region, NMFS (RA), to re-open the Gulf of Mexico recreational red snapper season after the September 30, 2010, end of the fishing season in order to provide fishermen the opportunity to harvest the recreational red snapper quota, and to achieve the OY for the fishery, thus enhancing the social and economic benefits to the fishery. The Magnuson-Stevens Act provides the statutory basis for this emergency rule.

This emergency rule does not establish any new reporting, record-keeping, or other compliance requirements. No duplicative, overlapping, or conflicting Federal rules have been identified.

No significant issues were raised by public comments in response to the Initial Regulatory Flexibility Analysis (IRFA) and no changes were made in the emergency rule as a result of such comments.

This emergency rule will grant NMFS the authority to re-open the Gulf recreational red snapper season. Because this emergency rule will only grant the authority to re-open the red snapper fishing season, and not actually re-open the season (re-opening would only occur as a result of subsequent rule-making), this emergency rule is an administrative action and no direct effects on any small entities have been identified or are expected.

However, a reasonably foreseeable consequence of this emergency rule is the re-opening of the Gulf red snapper fishing season. If the recreational red snapper season is re-opened, federally permitted for-hire fishing businesses that sell services to fish for red snapper in the Gulf of Mexico would be expected to be directly affected. The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. A Gulf reef fish for-hire permit is required to harvest red snapper in the Federal waters of the Gulf of Mexico. During 2009, there were 1,424 valid (non-expired) Federal reef fish for-hire permits that allowed permit holders to fish during any portion of the year. Although the Federal for-hire permit does not distinguish between headboats and charter boats, an estimated 79 headboats operate in the Gulf of Mexico. It cannot be determined with available data how many of the for-hire vessels permitted to operate in the reef fish fishery fish for or harvest red snapper, either through directed effort or incidental harvest, so all permitted vessels are assumed, for this analysis, to comprise the universe of potentially affected vessels. The average charterboat is estimated to earn approximately $88,000 (2008 dollars) in annual revenues, while the average headboat is estimated to earn approximately $461,000 (2008 dollars).

The Small Business Administration has established size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in the for-hire fishing industry is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $7.0 million (NAICS code 713990, recreational industries). Based on the average revenue estimates provided above, all for-hire vessels that would be expected to be directly affected by actual re-opening of the red snapper season are determined for the purpose of this discussion to be small business entities.

As stated previously, this emergency rule is an administrative action and no direct economic effects on any small entities have been identified or are expected.

For-hire vessels that would be directly affected by subsequent rule-making to re-open the red snapper season would be expected to receive an increase of approximately $4.4 million (2008 dollars) in net operating revenues (revenues minus non-labor variable operating costs) compared to not re-opening. As previously discussed, it cannot be determined how many of the for-hire vessels permitted to operate in the reef fish fishery fish for or harvest red snapper. If spread over all 1,424 vessels with Federal reef fish for-hire permits, this increase in net operating revenues would equate to an average of approximately $3,000 per vessel. However, not all for-hire vessels with Federal reef fish permits would be expected to benefit from re-opening the red snapper season, and some vessels would be expected to benefit more than others. Estimates of the average annual net operating revenues per vessel are not available, and estimates of the average annual gross revenues per vessel, provided above, are an inappropriate proxy because gross revenues do not account for operating expenditures. As a result, estimates of the average percentage increase in net operating revenues are not available. It is noted, however, that because these effects would only occur in response to subsequent rule-making, these effects would indirectly result from this emergency rule.

Because no direct effects on any small entities have been identified or are expected to occur as a result of this emergency rule, the issue of significant alternatives is not relevant.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(d)(3), the Assistant Administrative for Fisheries (AA) finds good cause to waive the delay in effectiveness of this final emergency rule. This rule grants NMFS the authority to re-open the Gulf recreational red snapper season. The re-opening of the red snapper fishing season would only occur as a result of subsequent rule-making. This emergency rule is purely procedural in nature, and does not impose any new compliance requirements or reporting burdens on the public for which a delay in effectiveness would be necessary. For these reasons, the AA finds good cause to waive the 30-day delay in effectiveness of this rulemaking.

Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands.

A final rule was published in the Federal Register on August 30, 2010 (75 FR 53026) that revises several sections of regulations that pertain to the management of Chinook salmon bycatch in the Bering Sea subarea of the Bering Sea and Aleutian Islands Management Area (BSAI). This final rule applies to owners and operators of catcher vessels, catcher/processors, motherships, inshore processors, and the six Western Alaska Community Development Quota (CDQ) Program groups participating in the pollock ( Theragra chalcogramma ) fishery that is managed under the Fishery Management Plan for Groundfish of the BSAI.

The first error is an incorrect table number that exists within a table used to determine the amount of Chinook salmon associated with each CDQ group. The second and third errors occur in the “locate and remove” table. The “locate and remove” table is used to define specific technical changes in regulatory citations. The errors occurred in the listing of specific citation changes in this table. These changes are unnecessary and need to be removed because the citations are identified earlier for removal in the amendatory instructions. These errors should be corrected immediately to eliminate potential confusion by the regulated public.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be unnecessary and contrary to the public interest. These errors should be corrected immediately to eliminate potential confusion by the regulated public. If the effective date for these corrections is delayed to solicit prior public comment, these technical errors will not be corrected by the effective date of this final rule, thereby undermining the conservation and management objectives of the FMP. The AA further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the thirty (30) day delayed effectiveness period for the reasons stated above.

NMFS is correcting these errors and is not making substantive changes to the document in rule FR Doc. 2010-20618 published on August 30, 2010 (75 FR 53026).

Accordingly, the final rule published on August 30, 2010 (75 FR 53026), to be effective September 29, 2010, is corrected as follows:

§ 679.21 [ Corrected ]

1. On page 53061, in § 679.21 (f)(4)(i)(D), in the fourth column of the table, under the column heading “Reduce the B season allocation by the sum of the amount of Chinook salmon associated with each vessel or CDQ group not participating in an IPA:”, correct the reference to “Table 43d” to read as “Table 47d”.

§§ 679.7 and 679.26 [ Corrected ]

2. On page 53069, in the “locate and remove” table at the bottom of the page, under all four columns, remove line seven, that starts with, “§ 679.7(d)(18)” and remove line eleven that starts with “§ 679.26(c)(1).”