The South American cactus moth ( Cactoblastis cactorum ) is a grayish-brown moth with a wingspan of 22 to 35 millimeters (approximately 0.86 to 1.4 inches) that is indigenous to Argentina, southern Brazil, Paraguay, and Uruguay. It is a serious quarantine pest of Opuntia spp., and an occasional pest of Nopalea spp., Cylindropuntia spp., and Consolea spp., four closely related genera of the family Cactaceae. After an incubation period following mating, the female South American cactus moth deposits an egg stick resembling a cactus spine on the host plant. The egg stick, which consists of 70 to 90 eggs, hatches in 25 to 30 days and the larvae bore into the cactus pad to feed, eventually hollowing it out and killing the plant. Within a short period of time, the South American cactus moth can destroy whole stands of cactus.

The South American cactus moth regulations in 7 CFR 301.55 through 301.55-9 (referred to below as the regulations) restrict the interstate movement of regulated articles from quarantined areas to prevent the artificial spread of South American cactus moth to noninfested areas of the United States.

In an interim rule  1 effective and published in the Federal Register on July 15, 2010 (75 FR 41073-41074, Docket No. APHIS-2010-0037), we amended the regulations by adding the State of Louisiana to the list of quarantined areas.

Comments on the interim rule were required to be received on or before September 13, 2010. We did not receive any comments. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule without change.

This action also affirms the information contained in the interim rule concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Orders 12372 and 12988, and the Paperwork Reduction Act.

Further, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

The plum pox virus (PPV) is an extremely serious viral disease of plants that can affect many Prunus (stone fruit) species, including plum, peach, apricot, almond, nectarine, and sweet and tart cherry. Infection eventually results in severely reduced fruit production, and the fruit that is produced is often misshapen and blemished. PPV is transmitted under natural conditions by several species of aphids. The long-distance spread of PPV occurs by budding and grafting with infected plant material and through movement of farm tools, equipment, and infected budwood, nursery stock, and other plant parts.

The regulations in Subpart—Plum Pox (7 CFR 301.74 through 301.74-5), referred to below as the regulations, quarantine areas of the United States where PPV has been detected and restrict the interstate movement of regulated articles from quarantined areas to prevent the spread of PPV into uninfected areas of the United States.

Surveys funded by the Animal and Plant Health Inspection Service (APHIS) and conducted by inspectors of the New York State Department of Agriculture and Markets have resulted in the detection of PPV in the State of New York. Officials in New York have quarantined the infected areas to prevent the spread of PPV to uninfected areas. By establishing these quarantined areas, the State of New York has restricted the intrastate movement of regulated articles from the quarantined areas. However, Federal regulations are necessary to restrict the interstate movement of regulated articles from the quarantined areas within New York to prevent the spread of PPV to other States.

The regulations in § 301.74-3(a) provide that the Administrator of APHIS will list as a quarantined area any State, or any portion of a State, where PPV has been detected through inspection and laboratory testing, where the Administrator has reason to believe that PPV is present, or that the Administrator considers necessary to quarantine because of its inseparability for quarantine enforcement purposes from localities where PPV has been detected.

Less than an entire State will be designated as a quarantined area only under certain conditions. Such a designation may be made if the Administrator determines that: (1) The State has adopted and is enforcing restrictions on the intrastate movement of regulated articles that are substantially the same as those imposed by the regulations on the interstate movement of regulated articles and (2) the designation of less than an entire State as a quarantined area will prevent the interstate spread of PPV.

In accordance with these criteria and the recent PPV findings described above, we are amending § 301.74-3(c) to add portions of Niagara, Orleans, and Wayne Counties, NY, to the list of quarantined areas. Descriptions of these quarantined areas are set forth in the regulatory text below.

Additionally, we are removing the townships of Latimore and Huntington in Adams County, PA, from the list of quarantined areas in § 301.74-3(c). The townships were removed from quarantine on October 29, 2009, based on 3 years of negative survey results and the subsequent determination by the Administrator that PPV no longer exists in Pennsylvania.

This rulemaking is necessary on an emergency basis to help prevent the spread of PPV to uninfected areas of the United States. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this rule effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule ( see DATES above). After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This interim rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. The full analysis may be viewed on the Regulations.gov Web site ( see ADDRESSES above for instructions for accessing Regulations.gov) or obtained from the person listed under FOR FURTHER INFORMATION CONTACT.

For producers in New York, the intent of the quarantine is to prevent the spread of PPV and to protect the rest of the stone fruit industry. The benefits of the quarantine, derived from preventing the spread of plum pox to other stone fruit producing regions, are expected to outweigh the costs. Producers in the quarantined area will bear the cost of having a limited marketing area for host material. Since the fruit itself is not a vector of the disease, the quarantine imposes no restrictions on the movement of fruit out of the quarantined area. Therefore, the growers in the quarantined area are able to sell and move their fruit production without restriction. The quarantine does restrict the movement of budwood and root stock. However, stone fruit growers move trivial quantities of plant material for commercial purposes. Because by far the vast majority of income of growers in this area is from fruit production, the restrictions placed on growers in the quarantined area should have little impact.

Producers in Adams County, PA, where the quarantine is being lifted, will benefit from the ability to move host material to areas outside the quarantined area. This action will impose no costs on producers in Pennsylvania while providing benefits in the form of increased ability to market goods that were previously restricted.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. ( See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This interim rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Brucellosis is a contagious disease, caused by bacteria of the genus Brucella that affects both animals and humans. The disease mainly affects cattle, bison, and swine; however, goats, sheep, horses, and humans are susceptible as well. In its principal animal hosts, it causes loss of young through spontaneous abortion or birth of weak offspring, reduced milk production, and infertility. There is no economically feasible treatment for brucellosis in livestock. In humans, brucellosis initially causes flu-like symptoms, but the disease may develop into a variety of chronic conditions, including arthritis. Humans can be treated for brucellosis with antibiotics.

The brucellosis regulations, contained in 9 CFR part 78 (referred to below as the regulations), provide a system for classifying States or portions of States according to the rate of Brucella abortus ( B. abortus ) infection present and the general effectiveness of a brucellosis control and eradication program. The classifications are Class Free, Class A, Class B, and Class C. States or areas that do not meet the minimum standards for Class C status are required to be placed under Federal quarantine. Restrictions on moving cattle and bison interstate become less stringent as a State or area approaches or achieves Class Free status.

APHIS' regulations support a cooperative Federal-State-industry program that has made considerable progress in eradicating brucellosis from the United States. By 2007, the national brucellosis program had achieved an all-time low national herd prevalence of 0.0001 percent (one affected herd in approximately 1 million cattle herds). In February 2008, every State, along with Puerto Rico and the U.S. Virgin Islands, achieved Class Free status for the first time in the program's 74-year history. Currently, all States, including Puerto Rico and the U.S. Virgin Islands, are Class Free for brucellosis. In addition, every State except Montana, Idaho, Wyoming, and Texas has been classified as free from brucellosis for at least 5 consecutive years. Each of the three States in the Greater Yellowstone Area, Idaho, Montana and Wyoming, experienced a temporary loss of Class Free status for a period of time during the past 7 years. The source of disease in these three States is attributable to exposure to brucellosis-affected wildlife in the Greater Yellowstone Area.

The brucellosis Class Free classification is based on a finding of no known brucellosis in cattle for the 12 months preceding classification as Class Free. In order to maintain Class Free classification, the regulations have required Class Free States or areas to conduct surveillance by carrying out as many brucellosis ring tests per year as are necessary to ensure that all cattle herds producing milk for sale are tested at least twice per year at approximately 6-month intervals. In addition, the regulations have required Class Free States or areas to collect blood samples from at least 95 percent of all cows and bulls 2 years of age or over at each recognized slaughtering establishment and subject the samples to an official brucellosis test. The regulations have further provided that a Class Free State or area may have no more than one herd determined to be affected with brucellosis within a 2-year period, and if a herd is found to be affected with brucellosis, the herd must be depopulated within 60 days of an infected animal being detected. If two or more herds are found to be affected with brucellosis within a 2-year period or if an affected herd is not depopulated within 60 days, the State or area loses its Class Free status. The regulations have provided no exceptions to these requirements for reclassification.

These requirements have encouraged producers to depopulate brucellosis-affected herds to prevent a reclassification of State status. Cattle and bison from States or areas reclassified to a lower status—usually Class A—are subject to testing requirements for interstate movement. Furthermore, the regulations in 9 CFR part 51 authorize APHIS to pay indemnity to owners of animals destroyed because of brucellosis. These payments provide a financial incentive for owners to elect depopulation instead of maintaining a herd under quarantine.

APHIS has reevaluated this approach and no longer uniformly recommends whole herd depopulation for disease management. The number of brucellosis-infected animals found in a herd is often small and test and removal of the infected animals will often mitigate transmission of brucellosis within and from the herd. In such circumstances, it is difficult to justify depopulation. Limited indemnity funds also make herd depopulation a less viable option, especially as herd sizes continue to increase. In addition, the public perceives whole-herd depopulation as a less acceptable approach for disease management. Changing social values concerning the care and well-being of livestock, the recognition of the environmental consequences of animal disposal, and the value of proteins derived from livestock also drive the need to develop new approaches to disease control.

APHIS has announced its intention to take a new approach to managing the bovine brucellosis eradication program that will allow APHIS and States to apply limited resources effectively and efficiently and focus on current program disease-risk issues. The new approach for the program, which includes strategies for surveillance and depopulation and would involve revisions to the brucellosis regulations, is described in the brucellosis concept paper that was made available for public comment on October 5, 2009. ( See “A Concept Paper for a New Direction for the Bovine Brucellosis Program,” 74 FR 51115-51116; Docket No. APHIS-2009-0006). In the meantime, the requirements for maintaining Class Free status give APHIS little flexibility in reclassifying States or areas based on risk. This lack of flexibility is an obstacle to effectively addressing the current challenges of the brucellosis program. When a Class Free State is reclassified to a lower status, APHIS and the State expend scarce resources to enable the State to regain its status or to establish split-State status. These resources could be applied more effectively to program activities that would have a greater impact on disease management and elimination. Additionally, many producers in Class Free States that are reclassified incur additional costs to meet testing and other interstate movement requirements associated with the reclassification, regardless of the risk associated with their particular herd.

As we proceed to develop this new approach, APHIS intends to continue making decisions regarding the disposition of each brucellosis-affected herd after evaluating the circumstances surrounding each herd. APHIS will continue to offer indemnity (depending on the availability of funding) to compensate producers considering depopulation when the evaluation indicates that other options will not mitigate disease spread, there is an imminent public or animal health risk, and/or it is cost-beneficial to do so. Where depopulation and indemnity are not considered appropriate, APHIS will continue to rely on State animal health agencies to maintain affected herds under quarantine and implement a program to periodically test the animals for brucellosis and remove and destroy those that do not test negative. “Test and remove” strategies can be an effective alternative to depopulation provided that the State or area maintains all affected herds under quarantine and applies adequate measures within the State to detect and prevent the spread of brucellosis, including from infected wildlife. When a Class Free State or area implements all of these measures, APHIS does not believe it is necessary to reclassify the State or area to a lower status or to restrict the interstate movement of all cattle and bison from the State or area in order to prevent the interstate spread of brucellosis.

For the reasons given above, we are removing the requirement that a Class Free State or area must lose its Class Free status if two or more herds are found to have brucellosis within 24 months or if a brucellosis-affected herd is not depopulated within 60 days. We will allow a Class Free State or area to maintain its Class Free status if:

• The affected herds are maintained under quarantine;

• A herd plan has been implemented for each affected herd to prevent the spread of brucellosis;

• The animals under quarantine are periodically tested for brucellosis as required by the Administrator and all animals that do not test negative are removed and destroyed until there is no evidence of brucellosis within the herd; and

• The State conducts surveillance adequate to detect brucellosis if it is present in other herds or species.

We are retaining the provision that an epidemiological investigation must be performed and that herds adjacent to the affected herd, herds from which animals may have been brought into the affected herd, and herds which may have had contact with or accepted animals from affected herds, must be epidemiologically investigated to confirm that brucellosis has not spread.

The Administrator may reclassify a State or area to a lower status if these conditions are not met or under any other circumstances if the Administrator determines it is necessary to do so to prevent the spread of brucellosis.

Cattle and bison from Class Free States or areas that maintain affected herds under quarantine without loss of Class Free status would be subject to the same interstate movement requirements as cattle and bison from Class Free States or areas with 0.0 percent of field strain brucellosis, except as otherwise required by a brucellosis management plan, as discussed below.

Consistent with this change in the regulations, APHIS is allowing Idaho to use a test and remove strategy on a brucellosis-affected herd identified in November 2009 without loss of Class Free status.

Another change to the requirements for maintaining Class Free status concerns brucellosis management plans. We are requiring any Class Free State or area in which the Administrator has determined wildlife are infected with B. abortus to develop and implement a brucellosis management plan approved by the Administrator. The existence of B. abortus in wildlife will be determined by the Administrator, based on, but not limited to, histopathology, testing data, or epidemiology. The Administrator may also require a Class Free State or area to develop and implement a brucellosis management plan under any other circumstances if the Administrator determines it is necessary to prevent the spread of brucellosis. The State must sign a memorandum of understanding (MOU) with the Administrator that describes its brucellosis management plan. The brucellosis management plan must define and explain the basis for the geographic area in which a disease risk exists from B. abortus and to which the brucellosis management plan applies. The brucellosis management plan must also describe the surveillance activities that the State will conduct to identify occurrence of B. abortus in domestic livestock and wildlife and potential risks for spread of the disease. The brucellosis management plan must also describe mitigation activities to prevent the spread of B. abortus from domestic livestock and/or wildlife, as applicable. The Administrator may reclassify to a lower status any State or area that has not implemented an approved brucellosis management plan within 6 months of being required to develop one.

For States or areas that have been Class Free for 5 or more years and do not have B. abortus in wildlife, we are also revising requirements for maintaining Class-Free status by removing the requirement for twice-yearly brucellosis ring testing of dairy cattle herds producing milk for sale and the requirement for each State to collect blood samples from at least 95 percent of all cows and bulls 2 years of age or over at each recognized slaughtering facility and subject the samples to an official brucellosis test. Instead, we will require that all recognized slaughtering establishments in such States or areas must, upon request by APHIS, agree to participate in slaughter surveillance testing as part of a new national bovine brucellosis surveillance plan being developed by APHIS. The new plan, along with the changes made in this interim rule, will allow us to reduce the level of surveillance testing in States or areas that have been Class Free for 5 or more years and do not have B. abortus in wildlife. This will eliminate redundancies in slaughter surveillance testing and increase the efficiency of the bovine brucellosis slaughter surveillance program, allowing us to focus activities on States and areas of greater risk for spreading brucellosis ( i.e., States and areas that have B. abortus in wildlife). The slaughter surveillance sampling strategy APHIS is developing as part of the new national bovine brucellosis surveillance plan provides 95 percent confidence of detecting brucellosis at a prevalence level of less than 1 infected animal per 1 million animals (0.0001 percent) in the National dairy and beef cattle populations. Information about the statistical analysis and the new national brucellosis surveillance plan is available to the public on APHIS' brucellosis Web site ( http://www.aphis.usda.gov/animal_health/animal_diseases/brucellosis/ ).

The regulations include, in some cases, requirements for blood testing of herds from which cattle and bison intended for interstate movement originate or blood testing of herds identified as adjacent, source, or contact herds in an epidemiologic investigation. In the definition for herd blood test, the regulations list cattle and bison to be included in herd blood tests. Prior to this interim rule, we required the following sexually intact cattle and bison to be included in herd blood tests:

• Cattle and bison 6 months of age and older if not vaccinated;

• Cattle and bison 20 months of age and older if vaccinated and a dairy breed;

• Cattle and bison 24 months of age and older if vaccinated and a beef breed; and

• Cattle and bison of any age if vaccinated and parturient or post-parturient.

These age requirements were established because the previously used B. abortus Strain 19 vaccine had the propensity to cause false positive test results in younger vaccinated animals. The B. abortus RB 51 vaccine that is now in use, and that has been in use for the past 13 years, does not have the propensity to cause false positive test results. Therefore, we are making a change in our definition of herd blood test to require that all sexually intact cattle and bison 6 months of age and older be included in all herd blood tests (vaccinated cattle and bison of any age that are parturient or post-parturient will continue to be included in herd blood tests). When herd blood tests are required, the inclusion of official vaccinates 6 months of age and older will ensure that brucellosis is detected in younger animals that may be infected.

Under the current regulations, interstate movement restrictions for cattle or bison from certified brucellosis-free herds may be less restrictive than those applied to other cattle or bison moving from the State or area. The requirements for achieving certified brucellosis-free herd status are contained in the definition of certified brucellosis-free herd. For dairy herds, the regulations have provided that certification may be achieved through negative results to two herd blood tests or through negative results to a series of brucellosis ring tests, followed by a negative herd blood test.

The brucellosis ring test is conducted on milk from dairy animals. Additional types of brucellosis tests for milk are under development and may be approved for use in the brucellosis program. To allow for use of new milk tests, if approved, we are amending the provisions for certifying dairy herds to provide for use of either the brucellosis ring test or another official brucellosis milk test approved by the Administrator.

To maintain certification, the regulations have required that dairy herds must test negative to a herd blood test conducted within a certain period of time following the initial certification. As an alternative, this rule will allow dairy herds to maintain certification through negative results to a series of four brucellosis ring tests, or through another testing protocol if the Administrator finds that the protocol is adequate to determine there is no evidence of brucellosis in the herd.

These changes will give producers more options for achieving and maintaining certified brucellosis-free status for dairy herds.

As explained earlier, the regulations require Class Free States or areas to conduct certain surveillance testing in order to maintain Class Free status. Under this interim rule, States that have not been Class Free for 5 or more years or that have B. abortus in wildlife must continue to conduct the same level of surveillance testing as in the past. However, as an alternative to conducting brucellosis ring tests, this interim rule will allow use of another official brucellosis milk test if one is approved by the Administrator for use in the brucellosis program. This change is in the definition of Class Free State or area, paragraph (a)(1)(ii)(A).

We are also making several other minor changes to the regulations. We are correcting an oversight in paragraph (d) under the definition for approved intermediate handling facility by extending the period of time from 1 year to 2 years for retaining documents related to cattle and bison that are or have been in the facility. We are making this change to be consistent with current record-keeping practices required under § 71.20 of the regulations, which contains provisions for stockyards, livestock facilities, buying stations, concentration points, or “any other premises under State or Federal veterinary supervision where livestock are assembled” to acquire and retain status as approved facilities. One of the requirements for qualifying as an approved facility, including an approved intermediate handling facility, is the retention, for a period of 2 years, of all documents such as weight tickets, sales slips, and records of origin, identification, and destination that relate to livestock that are in, or that have been in, the facility. When the 2-year record requirement was established in § 71.20 on October 31, 1996 (61 FR 56155-56165, Docket No. 96-041-1), we neglected to make the corresponding change in the definition of approved intermediate handling facilities. We are correcting that oversight now.

In addition, in paragraph (c)(1) under the definition for certificate, we are correcting a typographical error by replacing the word “stabled” with the word “stapled.”

Finally, we are reorganizing the requirements under the definitions for Certified brucellosis-free herd and Class Free State or area to make them clearer to read.

Immediate action is warranted to remove requirements that present an obstacle to effectively managing the brucellosis program. Changes to the requirements for maintaining Class Free status, in particular, are necessary so that APHIS and States can use available resources on program activities that will have the greatest impact on disease management and disease risk mitigation. The changes in age requirements for sexually intact vaccinates to be included in herd blood testing are necessary to ensure that brucellosis is detected in younger animals that may be infected. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the Federal Register .

We will consider comments we receive during the comment period for this interim rule ( see DATES above). After the comment period closes, we will publish another document in the Federal Register. The document will include a discussion of any comments we receive and any amendments we are making to the rule.

This interim rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis identifies beef cattle and dairy operations as the small entities most likely to be affected by this action and considers the effects of the rule on the beef and dairy industry. Based on the information presented in the analysis, the Administrator has certified that this action will not have a significant economic impact on a substantial number of small entities. The full economic analysis may be viewed on the Regulations.gov Web site ( see ADDRESSES for instructions for accessing Regulations.gov). Copies of the economic analysis are also available from the person listed under FOR FURTHER INFORMATION CONTACT.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. ( See 7 CFR part 3015, subpart V.)

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Has no retroactive effect; and (2) does not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the information collection or recordkeeping requirements included in this interim rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2009-0083. Please send a copy of your comments to: (1) Docket No. APHIS-2009-0083, Regulatory Analysis and Development, PPD, APHIS, Station 3A 03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Rroom 404 W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 60 days of publication of this interim rule.

The APHIS bovine brucellosis program regulations in 9 CFR part 78 provide a system for classifying States or portions of States according to the rate of Brucella abortus infection present and the general effectiveness of a brucellosis control and eradication program. The program also provides for the creation of brucellosis management areas within a State and for testing and movement mitigation activities before regulated animals are permitted to move interstate. This system enhances the ability of States to move healthy, brucellosis-free cattle and bison interstate and internationally. This management area and testing system also enhances the effectiveness of the Bovine Brucellosis Eradication Program by decreasing the likelihood that infected animals will be moved interstate or internationally.

The creation of brucellosis management areas allow States that have found B. abortus in wildlife (which are nonregulated animals) to mitigate the risk of transmission and spread of disease while maintaining the State's disease-free status in regulated domestic livestock. The State must sign a memorandum of understanding (MOU) with the Administrator that describes its brucellosis management plan. The brucellosis management plan developed by the State must define the geographic brucellosis management area and describe the surveillance and mitigation activities that the State will conduct to identify occurrence of B. abortus in domestic livestock and wildlife and potential risks for spread of the disease.

The information provided by these documents is critical to APHIS' mission to prevent the introduction or spread of bovine brucellosis. APHIS is asking the Office of Management and Budget (OMB) to approve the use of these information-gathering activities for 3 years in connection with APHIS' bovine brucellosis program.

We are soliciting comments from the public (as well as affected agencies) concerning our information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 300 hours per response.

Respondents: State animal health and wildlife officials.

Estimated annual number of respondents: 3.

Estimated annual number of responses per respondent: 2.

Estimated annual number of responses: 6

Estimated total annual burden on respondents: 1,800 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Federal Home Loan Bank System (System) was created by the Bank Act to support mortgage lending and related community investment. See 12 U.S.C. 1421 et seq. The System is composed of 12 Banks with more than 8,000 member financial institutions, and the System's fiscal agent, the Office of Finance. The Banks fulfill their statutory mission primarily by providing secured loans (called advances) to their members. The Bank Act provides the Banks explicit authority to make secured advances. 12 U.S.C. 1430(a). Advances provide members with a source of funding for mortgages and asset-liability management, liquidity for a member's short-term needs, and additional funds for housing finance and community investment. Advances are collateralized primarily by residential mortgage loans and government and agency securities. 12 U.S.C. 1430(a)(3). Community financial institutions (CFIs) ( i.e., members with average total assets of less than $1 billion (as adjusted annually for inflation)) may also pledge small business, small agriculture or community development loans as collateral for advances. 12 U.S.C. 1430(a)(3)(E).

Consolidated obligations, consisting of bonds and discount notes, are the principal source for the Banks to fund advances and investments. The Office of Finance issues all consolidated obligations on behalf of the 12 Banks. Although each Bank is primarily liable for the portion of consolidated obligations corresponding to the proceeds received by that Bank, each Bank is also jointly and severally liable with the other eleven Banks for the payment of principal of, and interest on, all consolidated obligations. See 12 CFR 966.9.

In July 2000, the Federal Housing Finance Board (FHFB) adopted a final regulation authorizing the Banks to establish Acquired Member Assets (AMA) programs. See 12 CFR part 955. A Bank may participate in an AMA program at its discretion; FHFA does not have the authority to compel a Bank to engage in any mortgage purchase activities. Each Bank must receive approval from FHFA pursuant to the requirements for new business activities in order to establish an AMA program. See 12 CFR part 980. A majority of the Banks have implemented AMA programs pursuant to the AMA approval authority.

In order for a Bank to acquire a mortgage loan under an AMA program, the loan must meet the requirements set forth under a three-part test established by the regulation. The three-part test consists of: A loan type requirement; a member or housing associate nexus requirement; and a credit risk-sharing requirement. 12 CFR 955.2. The AMA regulation generally authorizes the Banks to purchase conforming whole loans on single-family residential real property not more than 90 days delinquent. In addition, the Banks are authorized to purchase conforming whole loans on single-family residential real property regardless of delinquency status if the loan is insured or guaranteed by the U.S. government, although such loans are not eligible to be counted toward the Enterprises' housing goals, as provided in the Safety and Soundness Act. 1 The Banks acquire AMA from their participating members through either a purchase or funding transaction. The Banks are not authorized under the AMA programs to securitize the mortgages they purchase.

To date, FHFA has approved two AMA programs—the Mortgage Partnership Finance (MPF) program and the Mortgage Purchase Program (MPP)—that authorize the Banks to purchase only eligible single-family, fixed-rate mortgages, including manufactured housing loans, from participating financial institution (PFI) members. The Banks are not approved to purchase any other types of mortgages under the AMA programs, including mortgages secured by multifamily properties. In operation, the Banks have limited their AMA programs to purchasing conforming, conventional and government-insured or -guaranteed fixed-rate whole first mortgages on single-family residential property with maturities ranging from 5 to 30 years. Banks have also purchased participations in AMA-approved loan pools after the original Bank acquired the loans. As of June 30, 2010, the combined value of the AMA mortgage loans in the 12 Banks' portfolios was $67 billion, representing approximately seven percent of the Banks' total combined assets. In contrast, the Banks' outstanding advances, their primary business line, totaled $540 billion as of June 30, 2010, representing 58 percent of the Banks' total combined assets. 2

The MPF and MPP programs are designed such that the Banks manage the interest-rate risk and the PFI assumes a substantial portion of the risks associated with originating the mortgage, particularly the credit risk. The AMA regulation requires that PFIs provide credit enhancement to give the mortgages the Banks purchase the credit quality equivalent to an instrument rated at least investment grade (the fourth highest credit rating category or triple-B), although the approved AMA programs require PFIs to enhance the loans to the second highest investment grade (double-A). 12 CFR 955.3. The PFI may provide this credit enhancement through various means, such as establishing a risk account to cover losses in excess of a borrower's equity and primary mortgage insurance on mortgages purchased by a Bank, accepting direct liability to pay credit losses up to a specified amount, or entering into a contractual obligation to provide supplemental mortgage guaranty insurance.

As previously noted, advances remain the core business activity of the Banks and a principal means by which they fulfill their mission. Participation in an AMA program is elective. The acquisition of AMA has presented certain risk management challenges for some Banks. The AMA are long-term, fixed-rate loans, and the portfolio requires careful attention to interest rate risk management in order to match the duration of assets and liabilities and to adjust for loan prepayments. The Banks must also competitively price their product in the market without eroding their own financial interest. Given these challenges and in light of recent interest rate and earnings volatility, several Banks have scaled down their purchases of AMA and returned to their core products. After peaking in 2003, when the Banks purchased over $91.2 billion in AMA, annual AMA purchases have steadily declined to an annualized average of about $6.7 billion during the period between 2006 and 2009. Several Banks either have stopped accepting additional master commitments to purchase AMA from their members or no longer accept delivery. In 2007, 2008 and 2009, the principal pay-down and maturities of AMA held for portfolio were greater than purchases and funding of new loans held for portfolio. 3

Section 10C(a) of the Bank Act, as amended by HERA, requires the Director of FHFA to “establish housing goals with respect to the purchase of mortgages, if any, by the [Banks],” which “shall be consistent with the goals established under sections 1331 through 1334 of the [Safety and Soundness Act, as amended].” 12 U.S.C. 1430c(a). Section 10C(b) provides that, in establishing the goals for the Banks, “the Director shall consider the unique mission and ownership structure of the [Banks].” 12 U.S.C. 1430c(b). In addition, section 10C(c) provides that, “to facilitate an orderly transition,” the Director shall establish interim target goals for the purchase of mortgages by the Banks for the calendar years 2009 and 2010. 12 U.S.C. 1430c(c). Section 10C(d) provides that the monitoring and enforcement requirements of section 1336 of the Safety and Soundness Act shall apply to the Banks in the same manner and to the same extent as they apply to the Enterprises. 12 U.S.C. 1430c(d). Section 10C(e) requires the Director to annually report to Congress on the performance of the Banks in meeting the housing goals under section 10C. 12 U.S.C. 1430c(e).

Sections 1331 through 1333 of the Safety and Soundness Act, as amended by HERA, require the Director of FHFA to establish new housing goals effective for 2010 and beyond for the Enterprises. The new Enterprise housing goals include four goals for conventional conforming single-family owner-occupied housing, one multifamily special affordable housing goal, and one multifamily special affordable housing subgoal. See 12 U.S.C. 4561, 4563(a)(2). The single-family housing goals target purchase money mortgages for low-income families, 4 families that reside in low-income areas, 5 and very low-income families, 6 and refinancing mortgages for low-income families. See 12 U.S.C. 4562. The multifamily special affordable housing goal targets multifamily housing affordable to low-income families, and the multifamily special affordable housing subgoal targets multifamily housing affordable to very low-income families. See 12 U.S.C. 4563. In a separate rulemaking, FHFA has published in the Federal Register a final rule for the new housing goals for the Enterprises for 2010 and 2011 pursuant to the requirements of sections 1331 through 1333 of the Safety and Soundness Act, as amended. 75 FR 55892 (Sept. 14, 2010).

Section 1313 of the Safety and Soundness Act, as amended, 12 U.S.C. 4513(f), requires the Director of FHFA to consider the differences between the Banks and the Enterprises whenever promulgating regulations that affect the Banks. In preparing the final rule, pursuant to section 1313, the Director considered the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure, mission of providing liquidity to members, affordable housing and community development mission, capital structure, and joint and several liability, and determined that the final rule is appropriate. As described below, there are significant differences between the Enterprise housing goals and the Bank housing goals—including establishing a volume threshold for the Banks to avoid adverse impact on Bank AMA programs, particularly with respect to CFIs that are PFIs—that recognize the significant differences between the Banks' businesses and purposes and those of the Enterprises.

Each Bank is a cooperative owned by financial institution members that act as both owners and customers of the cooperative. Members, as owners, are entitled to receive shares of the cooperative's earnings and access to the cooperative's products and services, including the AMA programs. A Bank is authorized to serve only members of its cooperative, and, as discussed above, its primary business is providing advances to its members.

Fannie Mae and Freddie Mac have been owned by investors through their holdings of preferred or common stock shares since 1968 and 1989, respectively. An Enterprise's primary business is securitizing mortgages originated by financial institutions, and guaranteeing the timely payment of principal and interest on the mortgage-backed securities (MBS). The Enterprises also purchase mortgages for their mortgage portfolios. FHFA has instructed the Enterprises to significantly reduce the size of their mortgage portfolios over time. The Banks are restricted to purchasing loans from their members, most of which are regulated depositories. By contrast, the Enterprises have access to a broad, nationwide network of financial institutions from which they purchase mortgages. Also, unlike the Banks, for which participation in the AMA is an elective activity, the fundamental statutory purpose of the Enterprises is to bring stability in the secondary market for residential mortgages by purchasing and making commitments to purchase residential mortgages. See 12 U.S.C. 1451 note; 12 U.S.C. 1716.

The Banks' and Enterprises' different ownership structures and associated statutory restrictions in the Bank Act and the Federal National Mortgage Association Charter Act and the Federal Home Loan Mortgage Corporation Act (together, the Charter Acts), respectively, have a significant impact on their respective mortgage purchase activities. The Enterprises' mortgage purchase activities are substantially greater than that of the Banks. In calendar year 2009, the Banks' combined number of single-family mortgage purchases was slightly over 48,000, while Fannie Mae purchased approximately 3.51 million single-family mortgages and Freddie Mac purchased approximately 2.42 million single-family mortgages. The disparity between the Banks' and Enterprises' mortgage purchase businesses was great even during the peak years of the AMA programs. In 2003, the Banks purchased approximately 606,000 single-family mortgages, which was only 4.3 percent of the approximately 14.02 million single-family mortgages purchased by the Enterprises in that year ( see Figure 1).

On May 28, 2010, FHFA published in the Federal Register a proposed rule to establish new housing goals for the Banks. The 45-day comment period closed July 12, 2010. See 75 FR 29947 (May 28, 2010). FHFA received a total of 9 comment letters on the proposed rule. Five of the comment letters were from Banks, one was from a not-for-profit organization, two were from trade associations, and one was from a corporation.

FHFA has considered all of the comments on the proposed rule and has determined to adopt a final rule that is substantially the same as the proposed rule. The comments are discussed below in the Analysis of Final Rule section. Comments that raised issues beyond the scope of the proposed rule are not addressed in this final rule, but may be considered by FHFA at a future date.

HERA requires FHFA to establish 2009 and 2010 interim target housing goals for the Banks that facilitate an orderly transition and are consistent with those of the Enterprises. In order to facilitate an orderly transition, the final rule establishes housing goals for 2011 and beyond. The Banks' unique ownership structure and mission is such that FHFA needed to add criteria to the Bank housing goals that are not necessary for those of the Enterprises, and FHFA required additional time to develop those criteria. The Banks' administrative and monitoring challenges will be reduced by enabling the Banks to establish policies and procedures to meet the housing goals requirements with the knowledge that these requirements will not be changed the following year. FHFA believes this approach will facilitate an orderly transition to housing goals.

Consistent with the proposed rule, the final rule establishes market-based single-family housing goals for the Banks in a manner largely consistent with the market-based single-family housing goals for the Enterprises. Separate goals are established for AMA-approved mortgages on owner-occupied single-family housing. The goals for purchase money mortgages separately measure performance on purchase money mortgages for low-income families, for families in low-income areas, and for very low-income families. The goal for refinancing mortgages measures performance on refinancing mortgages for low-income families.

The final rule does not establish benchmark levels to measure the Banks' housing goals performance. The Banks' performance under the housing goals will be measured relative to the actual goals-qualifying shares of the district-level primary mortgage market during the year in their districts. FHFA will calculate the actual goals-qualifying shares of the market using all mortgages originated in the geographic boundaries of each Bank district (meaning that the properties securing the mortgages are located in the district), including mortgages originated both by members and non-members.

A Bank meets a housing goal if its annual performance meets or exceeds the actual share of the market in that district that fits the criteria for a particular housing goal for that year. A Bank fails to meet a housing goal if it falls short of the actual market share for that goal in that year. All mortgages purchased by a Bank that meet the requirements of the final rule will count toward the Bank's goal performance, regardless of where the properties securing the mortgages are located, but the market share against which the Bank's performance will be evaluated will be the market share of mortgages secured by properties located in the district, as described above. The housing goals do not apply to an individual Bank unless it has exceeded the $2.5 billion volume threshold.

Consistent with the proposed rule, the final rule establishes a dollar volume threshold of $2.5 billion that a Bank's total unpaid principal balance (UPB) of AMA-approved mortgage purchases in a given year must exceed before the Bank is subject to the housing goals. The volume threshold recognizes the Banks' unique mission and ownership structure and the current status of the AMA programs, specifically, their mission to provide liquidity to their members.

The final rule sets forth definitions applicable to the Bank housing goals provisions. A number of the definitions are the same as those applicable to the Enterprise housing goals, and other definitions were modified to reflect their applicability to the Banks' AMA programs.

“Designated disaster area.” The definition of “families in low-income areas” includes families with incomes at or below 100 percent of area median income (AMI) who reside in “designated disaster areas.” The final rule defines “designated disaster area” as any census tract that is located in a county designated by the Federal Government as adversely affected by a declared major disaster administered by the Federal Emergency Management Agency (FEMA), where individual assistance payments were authorized by FEMA. In order to remain consistent with the revised definition in the final 2010-2011 Enterprise housing goals rule, the final Bank housing goals rule definition does not include the proposed requirement that average damage severity, as reported by FEMA, exceed $1,000 per household in a census tract.

Disaster areas are declared when an area is adversely affected by some unforeseen event. However, not all disasters impact housing to the same degree, and the severity of the impact varies within the declared area. Presidential Major Disaster Declarations are defined by FEMA at the county level in the area affected by the major disaster and can be declared to be eligible for public assistance, individual assistance, or both. Public assistance is available to local governments for the repair, replacement, or clean-up of public infrastructure. Individual assistance is broken down further into two categories, housing needs and “other than housing needs.”  7 Housing needs include repair, replacement, and construction of homeowner residences. Consistent with the proposed rule and with the Community Reinvestment Act (CRA), the final rule limits the definition of “designated disaster areas” to those counties eligible for individual assistance.

For purposes of complying with CRA, regulators have made the determination that “[e]xaminers will consider institution activities related to disaster recovery that revitalize or stabilize a designated disaster area for 36 months following the date of designation. Where there is a demonstrable community need to extend the period for recognizing revitalization or stabilization activities in a particular disaster area to assist in long-term recovery efforts, this time period may be extended.”  8 To accommodate the Banks' business planning requirements, for purposes of the low-income areas housing goal, the final rule, consistent with the proposed rule, will treat a designated disaster area as effective beginning on the January 1 after the FEMA designation of the county and continuing through December 31 of the third full calendar year following the FEMA designation. If data are available in a particular case to support treatment as a designated disaster area from an earlier date or for a longer period of time, FHFA may provide for such treatment by notice to the Banks.

“Families in low-income areas.” Consistent with the proposed rule, the definition of “families in low-income areas” in the final rule includes families with incomes at or below 100 percent of AMI who reside in “minority census tracts,” which is defined by the Safety and Soundness Act to mean a census tract that has a minority population of at least 30 percent and a median family income of less than 100 percent of AMI. 12 U.S.C. 4502(29). In addition, the definition of “families in low-income areas” includes families with incomes at or below 100 percent of AMI who reside in “designated disaster areas.”

“Mortgage.” Consistent with the proposed rule and the final Enterprise 2010-2011 housing goals rule, the definition of “mortgage” in the final rule does not include personal property manufactured housing loans. Therefore, any purchases of personal property manufactured housing loans will not qualify for credit under the Bank housing goals.

“Mortgage purchase.” Consistent with the proposed rule, the final rule defines “mortgage purchase” as a transaction in which a Bank bought or otherwise acquired a mortgage. The Banks commented that the phrase “otherwise acquired a mortgage” is overly broad and could be read to include the Banks' Affordable Housing Program (AHP) and collateral received from members. The Banks requested that FHFA clarify the definition to mean a transaction in which a Bank bought or otherwise acquired a mortgage pursuant to the Bank's authority under the AMA regulation. The final rule does not limit the definition of “mortgage purchase” to mean only purchases of AMA-approved mortgages, because the types of mortgage purchases that are covered by the Bank housing goals are set out in § 1281.11. That section provides that the Bank housing goals are limited to purchases of AMA-approved mortgages.

“Refinancing mortgage.” Consistent with the final Enterprise 2010-2011 housing goals rule, the definition of “refinancing mortgage” in the final Bank housing goals rule provides that changes to a loan as a result of a workout agreement generally will not be treated as a separate refinancing mortgage. The proposed Bank housing goals rule did not address workout agreements in the definition “refinancing mortgage,” but the provision is included in the final rule to maintain consistency with the long-standing definition of “refinancing” under the Enterprise housing goals.

General. Consistent with the proposed rule, § 1281.10 of the final rule provides an overview of the contents of this subpart. FHFA will evaluate Bank performance under the housing goals established for 2010 on a calendar year basis.

Volume Threshold. Consistent with the proposed rule, § 1281.11(a) of the final rule establishes a volume threshold that will trigger application of the housing goals to a Bank. Specifically, a Bank that in a calendar year purchased AMA-approved mortgages with a total UPB greater than $2.5 billion will be subject to the housing goals for that year, a threshold that FHFA selected as one which would result in goals being applied to substantial AMA programs, of a size that a number of Banks have operated in the past, while enabling small programs, which might serve as mortgage sales outlets for CFIs, to operate without compliance burdens that might cause them to be abandoned. To illustrate the magnitude of this volume threshold, it is currently equal to approximately 0.25 percent of the overall single-family market, which equaled $986 billion (approximately $1.0 trillion). (FHFA arrived at this estimate of the size of the market by using 2008 HMDA mortgage origination data to calculate the total UPB of conforming, first lien mortgages originated in 2008 that were secured by owner-occupied, single-family residences. Mortgages for home improvement and Home Ownership and Equity Protection Act (HOEPA) mortgages were excluded to be consistent with the market estimate approach for the Enterprise housing goals.) Looking at this threshold another way, assuming that the average UPB of the mortgages a Bank purchases equals $200,000, a Bank would need to purchase only 12,500 mortgages in a given year to meet the volume threshold. In FHFA's view, below this threshold it would be challenging for Banks to ensure that the small numbers of AMA mortgages purchased—in transactions that the Banks do not themselves initiate—are representative of the market and include sufficient affordable mortgages to meet housing goals.

FHFA requested comment on whether a volume threshold should apply, whether the proposed volume threshold of $2.5 billion is appropriate, whether a higher or lower threshold should apply, and whether the volume threshold alternatives discussed in the proposed rule or any other alternatives might be used. The Banks recommended establishing a volume threshold at $5.0 billion, or on a sliding scale up to $5 billion, if the Bank met specified qualitative factors that serve the Banks' housing mission, such as a Bank's purchase of Federal Housing Administration (FHA) or U.S. Department of Veterans Affairs (VA) mortgages and its use of Bank AHP funds in conjunction with AMA mortgage purchases. The Banks stated that applying a higher threshold to Banks that met such qualitative measures would encourage the Banks to be accountable to their housing mission. The Banks also recommended that mortgages purchased from CFIs be excluded when determining whether a Bank exceeded the volume threshold. Finally, the Banks commented that because a Bank may not know until the fourth quarter whether it will exceed the volume threshold that year, the housing goals should apply to a Bank only in the year following the year for which the Bank exceeded the volume threshold.

A trade association recommended establishing a volume threshold of 6,000 AMA-approved mortgages purchased annually. Assuming that the average UPB of the mortgages a Bank purchases equals $200,000, the volume threshold would be equivalent to $1.2 billion. A not-for-profit organization recommended that there be no volume threshold.

FHFA has considered the comments on the proposed $2.5 billion volume threshold and concluded that this volume threshold will adequately balance the Banks' missions to support affordable housing and to provide liquidity to CFIs. The volume threshold is intended in part to ensure that Banks with significant AMA volume in any year are subject to the housing goals. For that reason, the Bank housing goals will apply in the same calendar year for which a Bank exceeded the volume threshold. In determining whether the proposed $2.5 billion is an appropriate level for the volume threshold, FHFA considered the volume of mortgages purchased by the Banks over the past decade. From 2002 to 2004, when the Banks had their largest presence in the national market, a number of Banks had annual volumes of AMA-approved mortgages greater than $2.5 billion: seven Banks in 2002, eight Banks in 2003 and four Banks in 2004. A significant percentage of Banks' annual volume of AMA-approved mortgage purchases exceeded $5.0 billion in 2002 and 2003: four Banks in 2002 and seven Banks in 2003. Annual volumes of AMA-approved mortgages were significantly lower from 2005 to 2009. Although a few Banks had annual volumes exceeding $2.5 billion during that period, none of the Banks exceeded an annual volume of $5.0 billion. ( See Table 1.)

Based on this analysis of the volume of the Banks' AMA-approved mortgage purchases, a volume threshold of $2.5 billion is mid-way between the higher volume threshold of $5.0 billion and housing goals that would apply without regard to the volume of mortgages purchased by the Bank. Increasing the volume threshold above $2.5 billion would unnecessarily reduce the likelihood that a Bank would be subject to housing goals in the future and would not meet the intent of Congress that the Banks be subject to housing goals, as reflected in HERA.

The volume threshold is also intended to ensure that Banks with a relatively low annual volume of purchases of AMA-approved mortgages, i.e., $2.5 billion or less, can continue to serve CFIs without being subject to the housing goals. Several Banks offer their AMA programs as a service to CFIs, which is consistent with their mission to provide liquidity to their members. FHFA set the volume threshold at an amount that would ensure that the housing goals would not cause the Banks that offer AMA programs primarily to service CFIs to discontinue their programs. The AMA programs are an important source of liquidity for such CFIs, and the discontinuance of an AMA program could adversely impact CFIs, such as those in rural areas, that may have limited or no access to the secondary market because of the higher per-mortgage sales cost associated with delivering a relatively small number of mortgages to purchasers, or the inability of these CFIs to meet purchasers' mortgage servicing requirements. Because the volume threshold already limits the impact of the housing goals on a Bank with an AMA program focused on its small members, the final rule does not exclude mortgages purchased from CFIs from counting for purposes of the volume threshold.

Market-Based Housing Goals. Consistent with the proposed rule, § 1281.11(b) of the final rule provides that compliance with the housing goals will be measured by comparing a Bank's performance with the actual goals-qualifying shares of the primary market during the year in the Bank's district. Under this retrospective, market-based approach, FHFA will calculate the actual goals-qualifying shares of the district-level primary mortgage market during the year using all mortgages originated in the geographic boundaries of each Bank district (meaning that the properties securing the mortgages are located in the district), including mortgages originated both by members and non-members. The Enterprise housing goals rule includes both this market-based approach and specific benchmark housing goal levels for the Enterprises. Under the Bank housing goals rule, a Bank's performance will not be measured against specific benchmark levels. Several provisions in the Enterprise housing goals rule that relate to the benchmark housing goal levels have been omitted from the Bank housing goals rule as unnecessary in light of the retrospective, market-based approach.

As noted in the proposed rule, FHFA believes that the advantages of comparing the Bank's performance to actual market performance outweigh the disadvantages. A more detailed discussion of the market-based approach is included in the final Enterprise 2010-2011 housing goals rule. See 75 FR at 55896-55898. The market size analysis used to establish the benchmark levels for the Enterprise housing goals does not reflect differences between the various Bank districts. The difficulties in accurately predicting the size of the market for each housing goal in each Bank district make it impractical to set meaningful annual benchmark levels for each Bank.

A disadvantage of the market-based approach is that public information on the goal-qualifying shares of the single-family primary mortgage market is not available until the release of Home Mortgage Disclosure Act (HMDA) data in late summer of the following year. However, a Bank that is subject to the housing goals will be active in the mortgage market in its district and hence positioned to understand how its performance is likely to compare to the overall market in its district.

In the proposed rule, FHFA discussed other possible alternatives for measuring market size that had been considered and rejected. The Banks recommended using a market measurement that is limited to mortgages that are similar to the types of mortgages a Bank might purchase under its AMA program, namely, prime, fixed rate, fully amortizing mortgage loans that are originated by regulated depository institutions in the member's district and that are intended for sale in the secondary market. However, FHFA has determined that a more inclusive measurement of the market will provide a better basis for evaluating the extent to which a Bank's purchases under its AMA program address mortgage credit needs in the Bank's district.

The Banks also recommended that mortgages purchased from CFIs be excluded from consideration under the Bank housing goals because such mortgages are not represented in the HMDA data used to measure the size of the market. The Banks recommended that such loans also be excluded when determining whether a Bank exceeded the volume threshold and when measuring a Bank's actual performance under the housing goals. The final rule does not exclude mortgages purchased from CFIs from consideration under the housing goals. As discussed above, the volume threshold already limits the impact of the housing goals on a Bank with an AMA program focused on its small members. In addition, removing all mortgages purchased from CFIs from consideration under the housing goals would lead to an inaccurate measure of the extent to which a Bank's purchases of AMA-approved mortgages meet the housing goals.

Consistent with the proposed rule, the final rule does not establish benchmark levels to measure the Banks' performance under the housing goals. FHFA requested comment on whether it would be appropriate to establish benchmark levels as a means of measuring the Banks' housing goals performance, in addition to measuring performance based on a Bank's actual share of goal-qualifying mortgages relative to its district-level market share, and if so, whether it would be appropriate to set benchmark levels for the Bank housing goals equal to the benchmark levels for the Enterprise housing goals. The comments did not specifically address establishing benchmark levels for the Banks, although a trade association suggested that the Banks should be encouraged to exceed the market share.

FHFA has concluded that it would be inappropriate to set benchmark levels for the Banks equal to the benchmark levels for the corresponding Enterprise housing goals, because the Enterprise benchmarks are based on national mortgage market estimates and no Bank has an AMA program with a national scope. In addition, FHFA has concluded that setting benchmark levels based on district-level market size estimates would be inappropriate because the market sizes cannot be reliably estimated in advance.

Section 1281.11(b) establishes criteria for determining the size of the market for each Bank district based on HMDA data on mortgages secured by property located in that Bank district. The criteria for establishing the size of the market reflect the types of mortgages that will count for purposes of the housing goals and that are typically eligible for purchase by a Bank. The criteria are the same as those in the proposed rule except for the definition of higher-priced loan to be used in the measurement of market size. The proposed rule would have excluded from the measurement of the market any mortgages with rate spreads of 300 basis points or more above the applicable Average Prime Offer Rate (APOR) reported under HMDA. Consistent with the definition in the final Enterprise 2010-2011 housing goals rule, for purposes of measuring the market for each Bank district, mortgages with rate spreads of 150 basis points above the applicable APOR reported under HMDA will be excluded. The 150 basis point rate spread is consistent with the definition of higher-priced loan used by the Federal Reserve Board.

Bank Housing Goals. Consistent with the proposed rule, § 1281.11(c) through 1281.11(f) of the final rule establishes four single-family housing goals applicable to any Bank that exceeds the volume threshold in a particular year. Goals are established for purchase money mortgages for low-income families, for families in low-income areas, and for very low-income families. In addition, a goal is established for refinancing mortgages for low-income families. The single-family housing goals will be based on an evaluation of the Bank's performance relative to the market for each housing goal in each year. The Banks have not been approved to purchase multifamily loans under the AMA programs. Accordingly, unlike the new Enterprise housing goals, the Bank housing goals do not include a multifamily special affordable housing goal or multifamily special affordable housing subgoal.

Two commenters recommended expanding the coverage of the Bank housing goals beyond the scope of the Enterprise housing goals. A not-for-profit organization recommended that FHFA give Bank housing goals credit for rental units in single-family properties, stating that such units provide an important source of affordable housing. A trade association suggested that FHFA consider adding a neighborhood goal for refinance lending, in addition to the borrower goal. In order to remain consistent with the Enterprise housing goals, the final rule does not alter the basic structure of the proposed Bank housing goals. The Bank housing goals do not include any investor-owned single-family properties, and they do not provide additional credit for any rental units in owner-occupied single-family properties. The Bank housing goals also do not include a separate goal for refinancing mortgages in low-income areas.

In contrast to the new Enterprise housing goals, the Bank housing goals also do not include a low-income areas subgoal. Because the Bank housing goals do not include benchmark levels set prospectively, there is no need for a separate subgoal to address the unpredictable impact designated disaster areas may have from year to year.

Consistent with the proposed rule, § 1281.12 of the final rule sets forth general requirements for the counting of Bank AMA-approved mortgage purchases toward the achievement of the housing goals. Performance under the housing goals will be evaluated based on the percentage of all AMA-approved mortgages on single-family, owner-occupied properties purchased by a Bank that meet a particular goal.

As proposed, § 1281.12(a) of the final rule provides that performance under each of the single-family housing goals shall be measured using a fraction that is converted into a percentage. Neither the numerator nor the denominator shall include Bank transactions or activities that are not AMA-approved mortgage purchases as defined by FHFA or that are specifically excluded as ineligible under § 1281.13(b). The numerator is the number of AMA-approved mortgage purchases of a Bank in a particular year that finance owner-occupied single-family properties that count toward achievement of a particular housing goal. The denominator is the total number of AMA-approved mortgage purchases of a Bank in a particular year that finance owner-occupied, single-family properties.

As proposed, § 1281.12(b) of the final rule provides that when a Bank lacks sufficient data or information, e.g., income of mortgagor, to determine whether the purchase of a mortgage counts toward achievement of a particular housing goal, that mortgage purchase shall be included in the denominator for that housing goal, but may not be included in the numerator. The Banks may not use missing data estimation methodologies, as used by the Enterprises, in light of the complexity of developing an estimation methodology suitable for the Banks. FHFA invited comment on whether a method for estimating missing affordability data would be feasible for the Bank housing goals but did not receive comments on this issue.

The provisions in § 1281.12(c) through (f), which address credit toward multiple goals, application of median income, sampling and newly available data, respectively, are consistent with the provisions in the proposed rule and the final Enterprise 2010-2011 housing goals rule.

The MPF program allows Banks to purchase a percentage of a mortgage or mortgage pool initially acquired by another Bank under the program. As discussed in the proposed rule, for purposes of receiving credit under one of the housing goals, each mortgage will be assigned to the Bank that initially acquired the mortgage regardless of whether an interest in the mortgage was later sold to another Bank.

In September 2008, FHFA approved the Chicago Bank's request to establish the MPF Xtra program, under which the Bank would buy certain qualified, conforming mortgages from eligible members for immediate sale to Fannie Mae. As discussed in the proposed rule, the MPF Xtra program is not an AMA program authorized under 12 CFR part 955. 9 Under the MPF Xtra program, the Bank serves essentially as a conduit or intermediary with respect to the sale of the mortgages to Fannie Mae. The mortgages may be counted by Fannie Mae toward compliance with its housing goals. If the mortgages were also to be considered for purposes of the Bank housing goals, double-counting of the mortgages could occur. Avoiding double-counting of mortgage purchases is consistent with the Enterprise housing goals. An Enterprise cannot receive credit towards a housing goal for a mortgage purchase if the other Enterprise received credit for that mortgage. Additionally, under the Enterprise housing goals, credit towards a housing goal is only awarded for a mortgage where the Enterprise purchases the mortgage or assumes the credit risks associated with the mortgage. The Bank does not fund MPF Xtra mortgages or assume any credit risks in MPF Xtra transactions. For these reasons, under the final rule, mortgages purchased by a Bank pursuant to the MPF Xtra program will not be considered for purposes of the Bank housing goals.

Consistent with the proposed rule, § 1281.13 of the final rule sets forth special counting requirements for the receipt of full, partial or no credit for a transaction toward achievement of the housing goals, a number of which are discussed further below.

Section 1281.13(b) specifies the types of transactions that shall not be counted for purposes of the housing goals and shall not be included in the numerator or the denominator in calculating a Bank's performance under the housing goals. The intent of this section is to specify the counting treatment for transactions in which the Banks are authorized to engage under the approved AMA programs. The counting rules do not purport to authorize the purchase of any types of mortgages, but are intended solely to indicate whether such mortgages shall receive full, partial or no credit toward the housing goals. Accordingly, transactions in which the Banks are not authorized to engage under the approved AMA programs are not included in paragraph (b). The Bank counting rules differ in some respects from the counting rules for the Enterprise housing goals. For example, the Banks are not authorized to purchase private label securities (PLS) under the AMA programs; therefore it is not necessary to exclude PLS from counting under the Bank housing goals. On the other hand, while the Banks are authorized to purchase non-conventional loans under the AMA authority, such loans are excluded from counting under the Enterprise housing goals and, therefore, have been excluded from counting under the Bank housing goals as well.

Section 1281.13(b) of the final rule makes clear that where a mortgage falls within one of the categories excluded from consideration under the housing goals, the mortgage shall be excluded even if it otherwise falls within one of the special counting rules in § 1281.13(c). For example, a non-conventional mortgage that would be excluded from consideration pursuant to § 1281.13(b)(1) cannot be counted even if it otherwise counts as a seasoned mortgage under § 1281.13(c)(2).

Home Equity Conversion Mortgages. Section 1281.13(b)(1) of the final rule excludes the purchases of all non-conventional single-family mortgages, including Home Equity Conversion Mortgages (HECMs), from counting towards the Banks' housing goals—that is, such purchases shall be excluded from both the numerator and denominator in calculating goal performance. This is consistent with the counting treatment for the new Enterprise housing goals, as HERA amended section 1332(a) of the Safety and Soundness Act to restrict the Enterprise single-family housing goals to include only conventional mortgages. See 12 U.S.C. 4562(a).

Mortgages financing secondary residences. Section 1281.13(b)(6) of the final rule prohibits the counting of mortgage purchases to the extent they finance any dwelling units that are secondary residences. This is consistent with the counting treatment for the new Enterprise housing goals, as HERA amended section 1332(a) of the Safety and Soundness Act to restrict the Enterprise single-family housing goals to include only purchases of owner-occupied mortgages. See 12 U.S.C. 4562.

Subordinate liens. Section 1281.13(b)(8) of the final rule excludes the purchases of subordinate lien mortgages (second mortgages) from counting towards the Banks' housing goals. HERA amended section 1331 of the Safety and Soundness Act to provide that the Enterprise single-family housing goals are limited to purchase money or refinancing mortgages. See 12 U.S.C. 4561. Consistent with the counting treatment for the new Enterprise housing goals, the Bank housing goals exclude home equity loans from counting for purposes of the housing goals. The Bank housing goals also exclude other subordinate lien mortgages, such as “piggy-back” loans that may be acquired by a Bank along with the corresponding first lien mortgage. Subordinate lien mortgages are excluded because it is difficult to determine whether such loans are purchase money loans or home equity loans, and because first lien mortgages provide a better measure of a Bank's support for residential housing.

Previously counted mortgages. Section 1281.13(b)(9) of the final rule prohibits the counting of mortgages toward performance under the housing goals if the mortgages have previously been counted for purposes of the performance of the Bank under the housing goals. In order to limit excessively burdensome recordkeeping that could result, the rule makes clear that this limitation only extends back for five years. Although the Banks have not previously been subject to housing goals, this language is included for applicability in future years.

Construction-to-permanent loans. Section 1281.13(b)(10) of the final rule excludes purchases of mortgages secured by properties that have not been approved for occupancy from consideration for purposes of the housing goals.

Housing goals credit for certain transactions. Section 1281.13(c) of the final rule provides that certain types of transactions shall be counted for purposes of the housing goals, including mortgages on cooperative housing and condominium units, seasoned mortgages, and refinancing mortgages. Section 1281.13(c) does not include certain types of transactions that are eligible for housing goals credit under the Enterprise housing goals, including credit enhancements for goal-qualifying mortgages, entering into risk sharing agreements with federal agencies to finance qualifying mortgages, and purchasing mortgage revenue bonds backed by qualifying mortgages. Such transactions are not eligible for Bank housing goals credit because of the more limited scope of the approved AMA programs. Section 1281.13(c) makes clear that where a transaction falls under more than one of the special counting rules in § 1281.13(c), all of the applicable requirements must be satisfied in order for the loan to be counted for purposes of the housing goals.

HOEPA mortgages and mortgages with unacceptable terms and conditions. Consistent with the proposed rule, § 1281.13(d) of the final rule provides that HOEPA mortgages and mortgages with unacceptable terms and conditions must be counted in the denominator as mortgage purchases but may not be counted in the numerator, regardless of whether the mortgages would otherwise qualify based on the affordability and other counting criteria. This treatment is consistent with past practice for the Enterprises and with section 1332(i) of the Safety and Soundness Act, as amended by HERA, which provides that no credit may be given for mortgages that FHFA determines are “unacceptable or contrary to good lending practices.” 12 U.S.C. 4562(i).

The proposed rule defined “mortgages with unacceptable terms or conditions” to include mortgages with excessive fees or interest rates, as well as mortgages with prepayment penalties, mortgages sold with prepaid single-premium credit life insurance products, and mortgages originated using practices that violate fair lending laws or that are contrary to the Interagency Guidance on Nontraditional Mortgage Product Risks (71 FR 58609) (Oct. 4, 2006), the Interagency Statement on Subprime Mortgage Lending (72 FR 37569) (July 10, 2007), or similar guidance subsequently issued by federal banking agencies.

A trade association commented that FHFA should strengthen the terms and conditions that constitute unacceptable mortgages, and recommended the use of Regulation Z and HOEPA rather than interagency guidance to determine whether a mortgage is eligible to be counted under the housing goals. The final rule does not change the proposed definition of “mortgages with unacceptable terms or conditions.” While the final rule specifically references interagency guidance on subprime and nontraditional loans, FHFA expects the Banks to ensure that mortgage loans they acquire comply with Regulation Z and HOEPA, as well as any federal law related to minimum standards for mortgages and predatory lending. As markets and abusive practices evolve, FHFA may determine additional terms and conditions to be unacceptable.

FHFA guidance. Section 1281.13(e) of the final rule provides that FHFA may provide guidance on the treatment of any transactions under the housing goals. The guidance may be provided in response to a request from a Bank, or at the initiation of FHFA.

Private label securities. As discussed in the proposed rule, because FHFA is counting only mortgages purchased through AMA programs in determining each Bank's housing goal performance, and the Banks are not authorized to purchase PLS through these programs, PLS will not be counted in determining a Bank's housing goals performance.

Housing finance agency obligations and other transactions. Consistent with the proposed rule, the final rule provides that only mortgages purchased through AMA programs will count in determining each Bank's housing goal performance. A trade association commenter recommended giving the Banks housing goals credit for Bank advances and investments, including transactions such as the purchase of housing finance agency (HFA) bonds, investment in housing-related bonds and tax credits, and advances to HFAs. The final rule does not expand the types of transactions that will receive credit under the housing goals to include transactions, such as purchases of HFA obligations, that are not AMA-approved mortgage purchases. Expanding the types of Bank transactions subject to housing goals beyond AMA-approved mortgage purchases would impede the ability of the Banks to make an orderly transition to the housing goals, because it would entail the Banks collecting information they may not currently collect, and for some Banks, modifying their activities involving HFAs.

Consistent with the proposed rule, § 1281.14 of the final rule provides that the Director shall determine whether each Bank has exceeded the volume threshold on an annual basis. For any Bank that has exceeded the volume threshold, the Director will also determine whether the Bank has met the housing goals, in accordance with the standards established under the Safety and Soundness Act, as amended by HERA. If the Director determines that a Bank has failed to meet any housing goal, the Director shall provide notice to the Bank in writing of such preliminary determination.

Consistent with the proposed rule, § 1281.15 of the final rule includes requirements for submission of a housing plan by a Bank for failure to meet any housing goal that is determined to be feasible by FHFA. The requirement to submit a housing plan is at the discretion of the Director.

As required for the Enterprises, and consistent with the proposed rule, §§ 1281.20 through 1281.23 of the final rule establish reporting requirements for the Banks with respect to their housing goals performance. Section 1281.21(a) requires the Banks to collect and compile computerized loan-level data on each AMA-approved mortgage purchased, as described in FHFA's Data Reporting Manual (DRM). These reporting requirements apply to each Bank, regardless of whether in a particular year the Bank expects to exceed the volume threshold and thus be subject to the housing goals.

Section 1281.21(b) requires each Bank to submit to the Director, on a semi-annual basis, a Mortgage Report containing aggregations of the loan-level mortgage data for year-to-date AMA-approved mortgage purchases, and year-to-date dollar volume, number of units, and number of AMA-approved mortgages on owner-occupied properties purchased that do, and do not, qualify under each housing goal. The loan-level data that must be reported are currently collected by FHFA on a semi-annual basis. As advances in technology have made more frequent submissions less burdensome, FHFA will consider quarterly reporting for the Banks in future years. Quarterly reporting would be consistent with the current requirements for the Enterprises. The additional data provided facilitates FHFA's monitoring of Enterprise performance under the housing goals. The Enterprises are also required to submit Annual Housing Activities Reports (AHARs) to FHFA. The final rule does not require the Banks to submit AHARs, but FHFA will consider requiring such reports in the future.

Consistent with the proposed rule, § 1281.22 of the final rule requires each Bank to provide to the Director such reports, information and data as the Director may request from time to time, or as may be supplemented in the DRM.

As proposed, § 1281.23 of the final rule sets forth the data integrity process for Bank housing goals data. The final rule requires the senior officer of each Bank who is responsible for submitting any report, data or other information for which certification is requested by the Director, to certify such report, data or information. FHFA will determine on an annual basis the official housing goals performance figures for any Bank that is subject to the housing goals, and may resolve any error, omission or discrepancy by adjusting the Bank's official housing goals performance figure. If the Director determines that the year-end data reported by a Bank for a year preceding the latest year for which data on housing goals performance was reported to FHFA contained a material error, omission or discrepancy, the Director may increase the corresponding housing goal for the current year by the number of mortgages that the Director determines were overstated in the prior year's goal performance.

FHFA will implement the data integrity process pursuant to its general regulatory authority over the Banks. FHFA expects that the Banks will work cooperatively with FHFA to identify and resolve any discrepancies or errors in the housing goals data reported to FHFA.

The final rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). FHFA has considered the impact of the final rule under the Regulatory Flexibility Act. The General Counsel of FHFA certifies that the final rule is not likely to have a significant economic impact on a substantial number of small business entities because the regulation is applicable only to the Banks, which are not small entities for purposes of the Regulatory Flexibility Act.

Federal Register Document FAA-2010-0354, Airspace Docket No. 10-AAL-10, published on Tuesday, October 12, 2010 [75 FR 62457] establishes Class E airspace at Port Clarence CGS Airport, Port Clarence, AK. The airspace description referred to the Anchorage Arctic CTA/FIR boundary as a limitation of the western boundary of the Class E airspace area. This reference is in error and is corrected by substituting the actual coordinates of the boundary. The airport reference point coordinates also contained an error caused by rounding. This action corrects that error. The correct full legal description is provided below.

NESDIS operates NOAA's National Data Centers for Climate, Geophysics, Oceans, and Coasts. Through these Data Centers, NESDIS provides and ensures timely access to global environmental data from satellites and other sources, provides information services, and develops science products.

NESDIS maintains some 1,300 data bases containing over 2,400 environmental variables at three National Data Centers and seven World Data Centers. These centers respond to over 2,000,000 requests for these data and products annually from over 70 countries. This collection of environmental data and products is growing exponentially, both in size and sophistication.

Users have the ability to access the data offline, online and through the NESDIS.

e-Commerce System (NeS) online store. Our ability to provide these data, information, products and services depends on user fees.

The new fee schedule lists both the current fee charged for each item and the new fee to be charged to users that will take effect beginning February 1, 2011. The schedule applies to the listed services provided by NESDIS on or after this date, except for products and services covered by a subscription agreement in effect as of this date that extends beyond this date. In those cases, the increased fees will apply upon renewal of the subscription agreement or at the earliest amendment date provided by the agreement.

NESDIS will continue to review the user fees periodically, and will revise such fees as necessary. Any future changes in the user fees and their effective date will be announced through notice in the Federal Register .

This rule has been determined to be not significant for purposes of E.O. 12866. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking and the opportunity for public participation are inapplicable because this rule falls within the proprietary exception of subparagraph (a)(2) of section 553. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this [Act] * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this [Act].” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Montana program on April 1, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval in the April 1, 1980, Federal Register (45 FR 21560). You can also find later actions concerning Montana's program and program amendments at 30 CFR 926.15, 926.16, and 926.30.

By letter dated July 3, 2008, Montana sent OSMRE an amendment to its program (SATS number MT-029-FOR; Administrative Record No. OSM-2008-0022) under SMCRA (30 U.S.C. 1201 et seq. ). Montana sent the amendment to include the changes made at its own initiative.

We announced receipt of the proposed amendment in the November 10, 2008, Federal Register (73 FR 66569). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. OSM-2008-0022-0001). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on December 10, 2008. We did not receive any comments.

During our review of the amendment, we identified concerns regarding the proposed normal husbandry practices for Landscaping Activities and Erosion and Settling Repair. We notified Montana of these concerns by letter dated April 16, 2009 (Administrative Record No. OSM-2008-0022-0013). Our concerns are explained in detail in Section III of this notice.

Montana responded in a letter dated May 12, 2009, by sending us a revised amendment (Administrative Record No. OSM-2008-0022-0012). Montana made the appropriate changes to the normal husbandry practices for Erosion and Settling Repair and Landscaping Activities. The provisions were acceptable to OSMRE.

Based upon Montana's revisions to its amendment, we reopened the public comment period in the August 13, 2009, Federal Register (74 FR 40799) and provided an opportunity for a public hearing or meeting on the adequacy of the revised amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on September 14, 2009. We did not receive any comments.

This section contains our findings concerning the amendment to the Montana program. We are making these findings in accordance with the criteria and procedural requirements of SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment.

Montana proposes the addition of Normal Husbandry Practices Guidelines to the Administrative Rules of Montana. OSMRE must approve the list of normal husbandry practices that mine operators may employ without restarting the responsibility period prior to application for Phase III bond release. The September 7, 1988, Federal Register notice (53 FR 34641) states that OSMRE “would consider, on a practice-by-practice basis, the administrative record supporting each practice proposed by a regulatory authority as normal husbandry practice” and that the regulatory authority “would be expected to demonstrate (1) that the practice is the usual or expected state, form, amount or degree of management performed habitually or customarily to prevent exploitation, destruction or neglect of the resource and maintain a prescribed level of use or productivity of similar unmined lands and (2) that the proposed practice is not an augmentative practice prohibited by section 515(b)(20) of [SMCRA].”

The Federal regulations at 30 CFR 816.116(c)(1) for surface mining operations and 817.116(c)(1) for underground mining operations require that the period of extended responsibility for successful revegetation shall begin after the last year of augmented seeding, fertilizing, irrigation, or other work, excluding husbandry practices that are approved by the regulatory authority in accordance with 30 CFR 816.116(c)(4) and 817.116(c)(4).

The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) require that a regulatory authority may approve selective husbandry practices, excluding augmented seeding, fertilization, or irrigation, provided it obtains prior approval from OSMRE's Director that the practices are normal husbandry practices, without extending the period of responsibility for revegetation success and bond liability, if such practices can be expected to continue as part of the postmining land use or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent vegetation success. Approved practices shall be normal husbandry practices within the region for unmined land having land uses similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control; and any pruning, reseeding, and transplanting specifically necessitated by such actions.

Montana is proposing to add ten categories of normal husbandry practices that will not be considered augmented practices and will not result in the restart of the responsibility period. Each category has an associated list of Standard Conservation Practices currently approved by the Montana State Office of the Natural Resources Conservation Service that will be included as approved normal husbandry practices for the category. These National Resources Conservation Service (NRCS) Standards can be found at http://www.regulations.gov (Administrative Record No. OSM-2008-0022-0001).

During our initial review of the amendment proposal, OSMRE identified proposed normal husbandry practices that we determined could not be considered “normal” as defined in 30 CFR 816.116(c)(4) and 817.116(c)(4). These included the proposed normal husbandry practices for Erosion and Settling Repair and Landscaping Activities. We notified Montana of our concerns by letter dated April 16, 2009 (Administrative Record No. OSM-2008-0022-0009). We delayed final rulemaking to afford Montana the opportunity to submit new material to address the deficiencies. By letter dated May 12, 2009, Montana responded to the concern letter, providing rationale to demonstrate that the proposed guidelines for Erosion and Settling Repair and Landscaping Activities can be expected to continue as part of the post mining land use, or if discontinuance of the practices after the liability period expires, it will not reduce the probability of permanent revegetation success, as prescribed in 30 CFR 816.116(c)(4) and 817.116(c)(4) (Administrative Record No. OSM-2008-0022-0010). Montana also elected to omit the NRCS practices that were not relevant or that were potentially problematic. Please see sections III.D. and III.F. for more information about the proposed revised sections for Erosion and Settling Repair and Landscaping Activities. OSMRE announced the reopening of the comment period in the Federal Register on August 13, 2009 (74 FR 40799). The comment period closed September 14, 2009. No comments were received.

To remain clear and concise and to eliminate repetition, we have grouped the ten categories of proposed normal husbandry practices as follows: Interseeding and Supplemental Planting of Tree and Shrub Seedlings (III.A.); Mechanical Practices, Supplemental Mulching, Prescribed Burning, Pest Control, and Agricultural Activities (III.B.); Grazing (III.C.); Erosion and Settling Repair (III.D.); Development and Maintenance of Water Resources (III.E.); and Landscaping Activities (III.F.). The findings include whether the practice being approved as normal husbandry is subject to an acreage limitation. That is, the practice can be applied only to a percentage of the reclaimed acreage. Other practices have no acreage limitation.

A. Interseeding and Supplemental Planting of Tree and Shrub Seedlings. Montana proposes to add the following language regarding Interseeding and Supplemental Planting:

OSMRE previously approved similar language as a normal husbandry practice in New Mexico (65 FR 65770, November 2, 2000). The Montana proposal is based on language from the approved New Mexico program.

For regulatory purposes, interseeding is done to enhance revegetation rather than to augment it. Interseeding is defined as a secondary seeding into established revegetation to improve composition, diversity, or seasonality. In contrast, augmented seeding is reseeding with fertilization or irrigation, or in response to unsuccessful revegetation in terms of germination, establishment, or permanence. Based on these references and practices, it is clear that in certain cases, interseeding is desirable to increase the structural and vegetative diversity of the reclaimed lands for wildlife habitat and for rangeland improvement.

OSMRE considers, on a practice-by-practice basis, the administrative record supporting each normal husbandry practice proposed by a regulatory authority (53 FR 34641, September 7, 1988). In 1983, OSMRE considered and rejected the idea of allowing interseeding and supplemental fertilization during the first 5 years of the 10-year responsibility period. While allowing replanting of trees and shrubs “ to utilize the best technology available” without extending the responsibility period, OSMRE determined that augmented seeding, fertilizing, or irrigation is not allowed during the responsibility period ( See 48 FR 40156, September 2, 1983.)

However, in 1988, (53 FR 34641, September 7, 1988) OSMRE stated in the context of the Federal regulation at 30 CFR 816.116(c)(4) that seeding, fertilization, or irrigation performed at levels that do not exceed those normally applied in maintaining comparable unmined land in the surrounding area would not be considered prohibited augmentative activities.

This is consistent with the preamble to the 1979 Revegetation Regulations (44 FR 15238, March 13, 1979) which states, “The augmented seeding, fertilizing and irrigation does not apply to cropland and pastureland that can be expected to have a similar postmining use and which should be managed in accordance with acceptable local agricultural practices.” This was restated on September 7, 1988, in 53 FR 34640: “* * * the preamble to the 1979 revegetation regulations which explained that fertilization, seeding, and irrigation in accordance with local agricultural practices on cropland or pasture land is not considered a prohibited augmentative practice.”

Furthermore, 30 CFR 816.116(c)(4) and 817.116(c)(4) specifically require that any approved husbandry practice must be expected to continue as part of the postmining land use, or if the practices are discontinued after the liability period expires, cessation will not reduce the probability of permanent vegetation success. Therefore, any irrigation or fertilization (such as NRCS Standard Channel Bank Vegetation, 322 ), would have to comply with the spirit and intent of the regulations.

In response to comments received concerning an Ohio program amendment, OSMRE stated that the legislative history of the Act [SMCRA] reveals no specific Congressional intent in the use of the term “augmented seeding.” Accordingly, OSMRE's interpretation of augmented seeding is given deference so long as it has a rational basis ( see 63 FR 51832, September 29, 1998).

Included in the proposal to allow interseeding as a normal husbandry practice are proposed definitions for “augmented seeding” and “interseeding” to distinguish the differences between the two. Interseeding is done to enhance revegetation, rather than to augment revegetation. Montana defines interseeding as a secondary seeding into established revegetation to improve composition, diversity, or seasonality. In contrast, augmented seeding is defined as reseeding with fertilization or irrigation, or in response to unsuccessful revegetation in terms of germination, establishment, or permanence. Interseeding may be used to take advantage of favorable climatic conditions and to enhance germination and establishment of reclamation species requiring extended periods of stratification or other special environmental conditions. Interseeding may also be used to improve or alter the compositional balance between forage species and shrubs, or between warm and cool season grasses.

Interseeding is clearly aimed at establishing species that require special conditions for germination and the establishment or altering of species composition. Montana's discussion of interseeding as a normal husbandry practice further clarifies that interseeding is done to enhance the revegetation, rather than to augment the revegetation. Montana reiterates that interseeding is secondary seeding into established revegetation to improve composition, diversity, or seasonality. In contrast, augmented seeding is reseeding with fertilization or irrigation, or in response to unsuccessful revegetation in terms of germination, establishment, or permanence.

Montana also proposes appropriate time frames limiting the application of interseeding as a normal husbandry practice without restarting the bond liability period, requiring that interseeding of native species and approved introduced species may be implemented up to six (6) years prior to Phase III bond release for grazing land, fish and wildlife habitat, forestry, or recreation post-mining land uses.

While it is OSMRE's desire to encourage wetland development and the management of such systems in a proper functioning condition, it is also OSMRE's opinion that anything more than minor wetland related work ( see the referenced NRCS practices cited (wetland restoration (657), wetland creation (658), and wetland enhancement (659)) would need to be completed at least six (6) years prior to Phase III bond release. Appropriate limits on aerial extents and time frames for implementation have been set for all proposed normal husbandry practices that would potentially use the wetland restoration, wetland creation, and wetland enhancement practice standards.

Montana has demonstrated that the proposed normal husbandry practices for interseeding and supplemental planting are normal husbandry practices within the region for unmined lands having land uses similar to the approved post mining land use of the disturbed area. As appropriate limits on time frames for implementation have been set for all proposed practices, exceeding these limits would result in extending the period of responsibility. For these reasons, OSMRE has determined that the proposed normal husbandry practices for Interseeding and Supplemental Planting of Tree and Shrub Seedlings meet the criteria to be approved as normal husbandry practices under 30 CFR 816.116 (c)(4) and 817.116(c)(4). We approve these changes to the Administrative Rules of Montana.

B. Mechanical Practices, Supplemental Mulching, Prescribed Burning, Pest Control, and Agricultural Activities. Montana proposes to add the following language regarding Mechanical Practices:

Montana proposes to add the following language regarding Supplemental Mulching:

In support of the proposed practices for Mechanical Practices, Montana made reference to the NRCS Practice Standard for Mulching (484).

Montana proposes to add the following language regarding Prescribed Burning:

In support of the proposed practices for Prescribed Burning, Montana made reference to the NRCS Practice Standards for Prescribed Burning (338) and Firebreak (394).

Montana proposes to add the following language regarding Pest Control, including weeds, vertebrate and invertebrate animals, fungi and diseases:

In support of the proposed practices for Pest Control, Montana made reference to the NRCS Practice Standards for Prescribed Burning (338) and Pest Management (595).

Montana proposes to add the following language regarding Agricultural Activities:

In support of the proposed practices for Agricultural Activities, Montana made reference to the following NRCS Practice Standards for Montana: Conservation Crop Rotation (328), Residue and Tillage Management (329), Cover Crop (340), Residue Management, Seasonal (344), Residue Management, Mulch Till (345), Residue Management, Ridge Till (346), Field Border (386), Filter Strip (393), Forage Harvest Management (511), Strip Cropping (585), and Nutrient Management (590).

The Montana proposed husbandry practices for Mechanical Practices, Supplemental Mulching, Prescribed Burning, Pest Control, and Agricultural Activities are based on language in the approved New Mexico program (65 FR 65770).

As proposed, the normal husbandry practices for Mechanical Practices, Supplemental Mulching, Prescribed Burning, Pest Control, and Agricultural Activities are normal husbandry practices within the region for unmined lands having land uses similar to the approved post mining land use of the disturbed area. In addition, Montana set an appropriate limit on the time frame for the implementation of the proposed practice for Supplemental Mulching. If a permittee exceeded the time limit, the permittee would have to extend the period of liability for demonstrating success of revegetation. OSMRE finds that Montana's proposed normal husbandry practices identified above are consistent with and no less effective than the Federal regulations at 30 CFR 816.116/817.116(c)(1) and (4) in meeting the requirements of SMCRA. We approve the proposed changes.

C. Grazing. Montana proposes to add the following language regarding Grazing:

Montana proposes to include the NRCS Standards for Fence (382) and Prescribed Grazing (528) to support Grazing.

Montana's proposal makes it clear that grazing is a management tool used to meet particular objectives, including increased plant diversity, overall vegetative health, removal of dead (plant) material, harvest production, and the stimulation of vegetative growth.

It is also inherent in the approval that management will be within the bounds of normal husbandry practices within the region for unmined lands with similar uses regardless of whether or not a grazing plan, a grazing monitoring plan, or yearly recalculations of carrying capacities and stocking rates are performed.

Montana limits the practice of Grazing to the following postmining land uses: Cropland; pastureland; grazing land; fish and wildlife habitat; forestry; and recreation.

Montana demonstrates that the NRCS standard practices proposed for Grazing are the usual or expected state, form, amount, or degree of management performed habitually or customarily to prevent exploitation, destruction, or neglect of the resource and maintain a prescribed level of use or productivity of similar unmined lands within the region having land uses similar to the approved postmining land use of the disturbed area. The proposed normal husbandry practices for Grazing meet the criteria for approval under 30 CFR 816/817.116(c)(4). We, therefore, approve the proposed language.

D. Erosion and Settling Repair. Montana proposes to add the following language regarding Erosion and Settling Repair:

Montana proposes to include the NRCS Standards for Channel Bank Vegetation (322), Critical Area Planting (342), Stream Habitat Improvement and Management (395), Grassed Waterway (412), Use Exclusion (472), Range Planting (550), Heavy Use Area Protection (561), Streambank and Shoreline Protection (580), and Channel Stabilization (584) to be used for Erosion and Settling Repair.

Guidance concerning the repair of rills and gullies is found in the September 2, 1983, Federal Register notice (48 FR 40157). Here OSMRE states that the regulatory authority could allow the repair of rills and gullies as a husbandry practice without restarting the liability period only if the general standards of 30 CFR 816/817.116(c)(4) are met and after consideration of the normal conservation practices within the region.

Montana's proposed language for Erosion and Settling Repair is similar to language approved for New Mexico's Program in 65 FR 65770 (November 2, 2000). Montana is specific regarding the unit percentage of area that may be repaired (no more than ten percent), noting that if erosion and settling repairs are required on more than ten percent of the reclaimed unit, the liability period will be reinitiated. Montana satisfactorily demonstrates that the proposed normal husbandry practices for Erosion and Settling Repair are normal husbandry practices within the region for unmined lands having land uses similar to the approved post mining land use of the disturbed area. We find that Montana's proposed normal husbandry practices for Erosion and Settling Repair are consistent with and no less effective than the Federal regulations at 30 CFR 816/817.116(c)(4) in meeting the requirements of SMCRA, and we approve them.

E. Development and Maintenance of Water Resources. Montana proposes to add the following language regarding Development and Maintenance of Water Resources:

The proposed language lists the NRCS Standards for Channel Bank Vegetation (322), Critical Area Planting (342), Ponds (378), Fence (382), Grassed Waterway (412), Dry Hydrant (432), Micro-irrigation Systems (441), Sprinkler Irrigation Systems (442), Surface and Subsurface Irrigation Systems (433), Water Management Irrigation system (449), Use Exclusion (472), Spring Development (574), Streambank and Shoreline Protection (580), Channel Stabalization (584), Watering Facility (614), Water Harvesting Catchment (636), Water Well (642), and Shallow Water Development and Management (646) as practices used to develop and maintain water resources.

As previously mentioned, in 1983, OSMRE considered and rejected the idea of allowing interseeding and supplemental fertilization during the first 5 years of the 10-year responsibility period. While allowing replanting of trees and shrubs “to utilize the best technology available” without extending the responsibility period, OSMRE determined that augmented seeding, fertilizing, or irrigation is not allowed during the responsibility period (48 FR 40156, September 2, 1983.)

However, in 1988, (53 FR 34641, September 7, 1988) OSMRE stated, in the context of the Federal regulation at 30 CFR 816/817.116(c)(4), that seeding, fertilization, or irrigation performed at levels that do not exceed those normally applied in maintaining comparable unmined land in the surrounding area would not be considered prohibited augmentative activities.

This is consistent with the preamble to the 1979 revegetation regulations (44 FR 15238, March 13, 1979) which states that “the augmented seeding, fertilizing and irrigation does not apply to cropland and pastureland that can be expected to have a similar postmining use and which should be managed in accordance with acceptable local agricultural practices.” This was restated on September 7, 1988, in FR 53 3640, which states, “* * * the preamble to the 1979 revegetation regulations which explained that fertilization, seeding, and irrigation in accordance with local agricultural practices on cropland or pasture land is not considered a prohibited augmentative practice.”

Furthermore, 30 CFR 816/817.116(c)(4) specifically requires that any approved husbandry practice must be expected to continue as part of the postmining land use, or if the practices are discontinued after the liability period expires, cessation will not reduce the probability of permanent vegetation success.

Therefore, any irrigation, fertilization, or seeding such as those used in the incorporated NRCS Practices for Channel Bank Vegetation (322), or Critical Area Planting (342), or the NRCS Practices relating to irrigation, etc., would have to comply with the Federal regulations at 30 CFR 816/817.116(c)(1) and (c)(4).

It is OSMRE's desire to encourage wetland development and the management of such systems in a proper functioning condition. Therefore, all Federal, State, and local laws and regulations need to be adhered to when working in aquatic or wetland systems, and/or in ways that might affect water quality. Impacts to existing hydrology will need to be assessed ( e.g. Code 378—Ponds).

Montana demonstrates that the proposed practices for the Development and Maintenance of Water Resources are normal husbandry practices within the region for unmined lands having land uses similar to the approved post mining land use of the disturbed area. As appropriate limits on time frames and acreages for implementation have been set for all proposed practices, exceeding these limits would result in extending the period of responsibility. This proposed language meets the criteria to be approved under 30 CFR 816/817.116(c)(4). We approve this proposed change to the Administrative Rules of Montana.

F. Landscaping Activities. Montana proposes to add the following language regarding Landscaping Activities:

Initially, Montana proposed the following NRCS Standards to support Landscaping Activities: Fuel Break (383), Firebreak (394), Hedgerow Planting (422), Irrigation System, Micro-irrigation (441), Irrigation System, Sprinkler (442), Irrigation System, Surface and Subsurface (443), Irrigation Water Management (449), Stream Crossing (578), Tree, Shrub Establishment (612), Windbreak/Shelterbelt Renovation (650), Wetland Restoration (657), Wetland Creation (658), Wetland Enhancement (659), and Forest Stand Improvement (666).

The Standard Conservation Practices that Montana referenced in its original amendment proposal relating to Irrigation, specifically Micro-irrigation Systems (441), Sprinkler Irrigation Systems (442), Surface and Subsurface Irrigation Systems (443), and Water Management Irrigation Systems (449), did not meet the requirements of 30 CFR 816/817.116(c)(4), which specifically exclude augmentative irrigation as being approved as a normal husbandry practice.

The preamble to the 1979 revegetation regulations (44 FR 15238, March 13, 1979) clearly states, “The augmented seeding, fertilizing and irrigation does not apply to cropland and pastureland that can be expected to have a similar postmining use and which should be managed in accordance with acceptable local agricultural practices.” This was restated on September 7, 1988, in FR 53, 3640: “* * * the preamble to the 1979 revegetation regulations which explained that fertilization, seeding and irrigation in accordance with local agricultural practices on cropland or pasture land is not considered a prohibited augmentative practice.”

In our concern letter dated April 16, 2009 (Administrative Record No. OSM-2008-0022-0013), OSMRE requested that Montana justify why irrigation would be applicable to all land uses without extending the period of responsibility, or define when and for what land use such irrigation practices would be applicable under the constraints cited in the regulations, thereby specifying when such irrigation practices could be reasonably considered to be a normal husbandry practice.

OSMRE reminded Montana that anything more than minor wetland related work (wetland restoration (657), wetland creation (658), and wetland enhancement (659)), or any activity that requires more than minor stabilization, interseeding, or replanting would need to be completed at least six (6) years prior to Phase III bond release.

Regarding the Stream Crossings (578), OSMRE felt that this NRCS standard was overly broad and far-reaching. We requested that Montana explain why stream crossings would be applicable to all crossing types cited in the incorporated NRCS reference, at any time during the liability period without extending the period of responsibility; or define reasonable limits. Of particular concern are large projects, such as a bridge associated with a road crossing that might be installed near the end of the liability period. OSMRE believes that, in general, stream crossings should be restricted and clearly stated under what conditions and what types of stream crossings should be included, or at least which would be prohibited. OSMRE requested that Montana include some reasonable time limit before a Phase III bond release beyond which any stream crossings would be prohibited, so as to demonstrate the stability of such crossings and that no negative consequences are reasonably likely after Phase III bond release.

In Montana's May 12, 2009, response letter (Administrative Record No. OSM-2008-0022-0012), the State elected to eliminate the following NRCS Standards for Landscaping Activities: Hedgerow Planting (422), Irrigation System, Micro-irrigation (441), Irrigation System, Sprinkler (442), Irrigation System, Surface and Subsurface (443), Irrigation Water Management (449), Stream Crossing (578), Tree, Wetland Restoration (657), Wetland Creation (658), and Wetland Enhancement (659).

Montana expressed that proposals for the use of irrigation systems will be addressed during the permitting or permit revision process and will be required to address OSMRE's limitations on the use of irrigation for landscaping activities. Montana proposed to delete the Stream Crossing standard (578) as it is essentially irrelevant to reclamation activities at Montana coal mines. Additionally, Montana responded to OSMRE's concern regarding Wetland Restoration (657), Wetland Creation (658), and Wetland Enhancement (659) by deleting these standards from the list of standards used to support Landscaping Activities, as they will be addressed through normal reclamation practices and time frames.

As a result of Montana's May 12, 2009, response to our concern letter dated April 16, 2009, OSMRE approves only the following NRCS Standards for Landscaping Activities: Fuel Break (383), Firebreak (394), Tree, Shrub Establishment (612), Windbreak/Shelterbelt Renovation (650), and Forest Stand Improvement (666).

For the proposed normal husbandry practice of Landscaping Activities, Montana referenced the NRCS supplements which support the use of these practices as normal husbandry for the region and set appropriate limits on time frames for implementation for all proposed practices. Exceeding these limits would result in extending the period of responsibility.

Montana thus has demonstrated that the proposed normal husbandry practices listed for Landscaping Activities are normal husbandry practices within the region for unmined lands having land uses similar to the approved post mining land use of the disturbed area. The changes that Montana made to the normal husbandry practice for Landscaping Activities meet the requirements for approval under 30 CFR 816/817.116(c)(4). We approve the proposed changes.

We asked for public comments on the amendment (Administrative Record No. OSM-2008-0022-0001), but did not receive any.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Montana program (Administrative Record No. OSM-2008-0022-0014). We did not receive any comments from other Federal agencies.

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that Montana proposed to make in this amendment pertains to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. We did, however, solicit comments from EPA in a letter dated October 3, 2008 (Administrative Record No. OSM-2008-0022-0014). We received an e-mail on October 20, 2008 (Administrative Record No. OSM-2008-0022-0016), notifying OSMRE that the EPA did not plan to review the proposed changes because they did not pertain to air or water quality standards.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. Since this amendment has no effect on historic properties, OSMRE was not required to request comments from the SHPO and the ACHP. We did not request comments from the ACHP. The Montana SHPO was notified of the amendment proposal by a letter dated October 3, 2008, soliciting comments (Administrative Record No. OSM-2008-0022-0014), but did not submit any comments regarding this amendment proposal.

Based on the above findings, we approve Montana's July 3, 2008, proposed amendment for Normal Husbandry Practice Guidelines, as revised on May 12, 2009. We find that the proposed normal husbandry practices will not extend the period of responsibility for revegetation success and bond liability, and the proposed practices can be expected to continue as part of the postmining land use. If the practices are discontinued after the liability period expires, the probability of permanent vegetation success will not be reduced. The proposed practices listed for each category are normal husbandry practices within the region for unmined land having land uses similar to the approved postmining land use of the disturbed area.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 926, which codify decisions concerning the Montana program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

Section 503 of SMCRA provides that a State may not exercise jurisdiction under SMCRA unless the State program is approved by the Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an approved State program be submitted to OSMRE for review as a program amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any changes to approved State programs that are not approved by OSMRE. In the oversight of the Montana program, we will recognize only the statutes, regulations, and other materials we have approved, together with any consistent implementing policies, directives, and other materials. We will require Montana to enforce only those approved provisions.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSMRE. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects 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. The rule does not involve or affect Indian Tribes in any way.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 CFR U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C) et seq .).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded Mandate on State, local, or Tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the North Dakota program on December 15, 1980. You can find background information on the North Dakota program, including the Secretary's findings, the disposition of comments, and conditions of approval in the December 15, 1980, Federal Register (45 FR 82214). You can also find later actions concerning North Dakota's program and program amendments at 30 CFR 934.15, 934.16, and 934.30.

By letter dated November 12, 2009, North Dakota sent us an amendment to its program (Amendment number XXXVIII, Administrative Record Docket ID: OSM-2009-0013) under SMCRA (30 U.S.C. 1201 et seq. ). North Dakota submitted the amendment on its own accord. The amendment reduces the reclamation liability period on previously mined areas from ten full years to five full years. The Federal regulations at 30 CFR 816.116 provide incentives for eligible remining operations including reduced revegetation responsibility periods (2 years in the East and 5 years in the West).

Specifically, North Dakota proposes revisions to the North Dakota Century Code at Chapter 38-14.1-24(18) (Environmental protection performance standards) and to the North Dakota Administrative Code at Article 69-05.2-09-02(14) (Permit applications—operation plans—maps and plans) and Article 69-05.2-22-07(2) and (4)(i) (Performance standards—Revegetation—Standards for success).

North Dakota proposes to reduce the reclamation liability period on previously mined areas from ten years to five years. This change will apply to the North Dakota Century Code as well as the North Dakota Administrative Code. North Dakota defines previously mined areas as “lands that were affected by coal mining activities prior to January 1, 1970.” North Dakota also proposes to require permit applications that include previously mined areas to include additional maps and information addressing potential environmental and safety problems that might occur at the mining site.

We announced receipt of the proposed amendment in the February 9, 2010, Federal Register (Vol. 75, No. 26, FR page number 6330). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record Docket ID: OSM-2009-0013).

We did not receive any comments. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on March 11, 2010.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below.

North Dakota proposed revisions to the following rules containing language that is the same as or similar to the corresponding section of the Federal regulations. North Dakota Administrative Code (NDAC) 69-05.2-22-07 (30 CFR 816.116), Performance standards—Revegetation—Standards for success.

North Dakota proposes for areas meeting the definition of previously mined area to require a five year liability period for revegetation success. All other areas in North Dakota have a ten year liability period. The Federal regulations at 30 CFR 818.116 allow the same five year period.

Because these proposed rules contain language that is the same as or similar to the corresponding Federal regulations, we find that they are no less effective than the corresponding Federal regulations and we approve it.

North Dakota Century Code Chapter (NDCC) 38-14.1-24(18) (SMCRA Section 515(20)(B)), Environmental Protection Performance Standards.

North Dakota proposes to add a definition for “previously mined areas.” The definition would adopt January 1, 1970, the effective date of North Dakota's first reclamation law, as the cut-off eligibility date for lands eligible for remining. Previously mined areas are those that were mined prior to January 1, 1970. The Federal definition of previously mined areas are those mined prior to August 3, 1977, and for which investigation reveals, are not reclaimed to the standards of SMCRA. Under North Dakota's proposed definition far fewer lands would be considered but there is no determination as to their condition.

This date is more restrictive than SMCRA as clarified by the State. North Dakota states, “North Dakota's definition of lands eligible for remining will apply to fewer lands as compared to the SMCRA provisions. Since North Dakota's first reclamation law went into effect on January 1, 1970, we will only apply the special performance standard (the reduced revegetation liability period) to lands that were mined prior to that date. Therefore, for the purposes of remining under the coal regulatory program, land must have been mined prior to January 1, 1970, and be left in an inadequate reclamation status. Any lands that were mined in North Dakota between January 1, 1970, and August 3, 1977, are subject to certain reclamation standards as required by the pre-SMCRA State reclamation laws and will not be eligible for the reduced 5-year revegetation liability period. However, under the SMCRA provisions, the special remining standards can be applied to lands that were mined prior to August 3, 1977. We consider North Dakota's remining provisions to be more stringent than SMCRA since fewer lands are eligible for the special performance standards. In North Dakota, lands mined between January 1, 1970, and August 3, 1977, that are proposed to be remined or re-disturbed will be subject to the 10-year revegetation liability period, whereas under SMCRA they could qualify for the 5-year liability period.”

North Dakota's explanation that the special performance standard (the 5-year revegetation liability period) will only apply to lands that were mined prior to January 1, 1970, but not to those lands mined between January 1, 1970, and August 3, 1977, that are proposed to be remined or re-disturbed, clarifies which lands qualify for the shorter responsibility period under its revised statute at NDCC Chapter 38, Section 14.1-24, subsection 18. North Dakota's adoption of the January 1, 1970, date rather than August 3, 1977, (the effective date of SMCRA) renders its definition no less stringent than the Act and we approve it.

NDAC 69-05.2-09-02, Permit applications—Operation plans—Maps and plans.

This addition to North Dakota's rules does not have a Federal Counterpart. It requires the permit application under the remining provision to include potential environmental and safety hazards that could be reasonably anticipated to occur as well as include the mitigative measures that will be taken to ensure that the applicable reclamation requirements can be met. It is more stringent than the Federal rules since the Federal rules have no such requirement and we approve it.

We asked for public comments on the amendment (Administrative Record Docket ID: OSM-2009-0013), but did not receive any.

Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the North Dakota program (Administrative Record Docket ID: OSM-2009-0013).

Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

We note that none of the proposed changes relate to air or water quality standards. Nevertheless, under 30 CFR 732.17(h)(11)(ii), OSM requested comments on the amendment from EPA (Administrative Record Docket ID: OSM-2009-0013). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On November 25, 2009, we requested comments on North Dakota's amendment (Administrative Record Docket ID: OSM- 2009-0013), but neither responded to our request.

Based on the above findings, we approve North Dakota's November 12, 2009, amendment.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 934, which codify decisions concerning the North Dakota program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrates that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review).

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects 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. The rule does not involve or affect Indian Tribes in any way.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C) et seq .).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded Mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Texas program effective February 16, 1980. You can find background information on the Texas program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the February 27, 1980, Federal Register (45 FR 12998). You can find later actions on the Texas program at 30 CFR 943.10, 943.15, and 943.16.

By letter dated January 5, 2010 (Administrative Record No. TX-666), Texas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Texas sent the amendment at its own initiative.

We announced receipt of the proposed amendment in the April 26, 2010, Federal Register (75 FR 21534). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on May 26, 2010.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.

Texas proposed to revise its regulations at 16 TAC sections 12.108(b)(1) through (b)(3) regarding annual permit fees by:

(1) Decreasing, from $150.00 per acre to $130.00 per acre, the amount of the fee in paragraph (b)(1) for each acre of land within the permit area on which coal or lignite was actually removed during the calendar year,

(2) Increasing, from $3.75 to $5.50, the amount of the fee in paragraph (b)(2) for each acre of land within a permit area covered by a reclamation bond on December 31st of the year, and

(3) Increasing, from $4,200.00 to $4,250.00, the amount of the fee in paragraph (b)(3) for each permit in effect on December 31st of the year.

The Federal regulations at 30 CFR 777.17, concerning permit fees, provide that applications for surface coal mining permits must be accompanied by a fee determined by the regulatory authority. The Federal regulations also provide that the fees may be less than, but not more than, the actual or anticipated cost of reviewing, administering, and enforcing the permit.

Texas' amendment describes how Texas funds its coal mining regulatory program. Texas operates on a biennial budget which appropriates general revenue funds for permitting and inspecting coal mining facilities within the state. This appropriation is contingent on the Railroad Commission of Texas (Commission) assessing fees sufficient to generate revenue to recover the general revenue appropriation. When calculating anticipated costs to the Commission, for regulating coal mining activity, Texas anticipates OSM providing grant funding up to fifty percent of the regulatory program costs based on section 705(a) of SMCRA. However, OSM does not agree that this is a reasonable expectation in light of the Administration's proposed fiscal year 2011 budget announced on February 2, 2010. The proposed fiscal year 2011 budget reduces overall funding to States, which may result in them receiving less than fifty percent of their anticipated regulatory program costs, consistent with Section 705 of SMCRA.

Texas adjusts its fees biennially to recover the amounts expended from State appropriations in accordance with a formula and schedule agreed to in 2005 by the coal mining industry and the Commission. This amendment represents the third adjustment to surface mining fees based upon that agreement. Adjustments are expected to continue for a ten year period that began in 2005. This amendment identifies historical and anticipated costs of conducting coal regulatory functions, describes how these costs are allocated to each of the fee types assessed by the Commission, and identifies the per unit rate for each fee that will be assessed during State fiscal years 2010 and 2011. OSM is concerned that the rate for each fee will not generate funds sufficient to cover the cost of the regulatory program.

We find that Texas' changes are consistent with the discretionary authority provided by the Federal Regulations at 30 CFR 777.17. OSM approves Texas' proposed permit fees, including the annual permit fees, recognizing that Texas has a process to adjust its fees to cover the cost of its regulatory program that exceeds fifty percent of the total program costs not covered by the Federal grant.

We asked for public comments on the amendment, but did not receive any.

On January 22, 2010, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Texas program (Administrative Record No. TX-664.02). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Texas proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on January 22, 2010, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. TX-664.02). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On January 22, 2010, we requested comments on Texas' amendment (Administrative Record No. TX-664.02), but neither responded to our request.

Based on the above findings, we approve the amendment Texas sent us on January 5, 2010.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 943, which codify decisions concerning the Texas program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

The Burlington Northern Santa Fe Railway requested a temporary deviation for the Crescent Railroad Drawbridge, across the Upper Mississippi River, mile 481.4, at Rock Island, Illinois to open on signal if at least 24 hours advance notice is given for 44 days from 12:01 a.m., January 17, 2011 to 9 a.m., March 1, 2011 to allow the bridge owner time for preventive maintenance. The Crescent Railroad Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that drawbridges shall open promptly and fully for the passage of vessels when a request to open is given in accordance with the subpart.

There are no alternate routes for vessels transiting this section of the Upper Mississippi River.

Winter conditions on the Upper Mississippi River coupled with the closure of Army Corps of Engineer's Lock No. 20 (Mile 343.2 UMR), Lock No. 21 (Mile 324.9 UMR) and Lock No. 22 (Mile 301.2 UMR) from January 3, 2011 to February 28, 2011 will preclude any significant navigation demands for the drawspan opening for most of the deviation period.

The Crescent Railroad Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 25.7 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. The drawbridge will open if at least 24-hours advance notice is given. This temporary deviation has been coordinated with waterway users.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Maryland State Highway Administration owns and operates this bascule-type drawbridge and requested a temporary deviation from the current operating regulations set out in 33 CFR 117.570 to facilitate mechanical repairs and barrier gate replacement.

The Sassafras River Bridge (Route 213), at mile 10.0, in Georgetown, MD has a vertical clearance in the closed position to vessels of four feet, above mean high water. Under normal operating conditions, the draw would open on signal from November 1 through March 31, except from midnight to 8 a.m. when the draw only need open when at least a six-hour advance notice is given.

Under this temporary deviation, the Sassafras River (Route 213) Bridge will be maintained in the closed-to-navigation position beginning at 5 a.m. on January 10, 2011 until 5 p.m. on January 21, 2011. The drawbridge will not be able to open in the event of an emergency. Vessels that can pass under the bridge without a bridge opening may do so at all times. Based on historical bridge log data this may affect up to one vessel per day. Vessels with heights greater than 4 feet have no alternate routes.

The project being conducted during the month of January should have the least impact on mariners due to the lack of waterway use. The Coast Guard has and will continue to inform the users of the waterway through our Local and Broadcast Notices to Mariners Closure periods for the bridge will be announced so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

This action applies to State, territorial, and local air quality management programs that are responsible for ambient air monitoring under 40 CFR part 58. This action may also affect tribes that conduct ambient air monitoring similar to that conducted by States and that wish EPA to use their monitoring data in the same manner as State monitoring data.

Categories and entities potentially regulated by this action include:

In addition to being available in the docket, an electronic copy of this rule will also be available on the Worldwide Web through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the final rule will be placed on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control.

The EPA issued a final rule on November 12, 2008, that revised the NAAQS for lead and associated ambient air lead monitoring requirements (73 FR 66964, codified at 40 CFR part 58). As part of the lead monitoring requirements, monitoring agencies are required to monitor ambient air near lead sources which are expected to or have been shown to have a potential to contribute to a 3-month average lead concentration in ambient air in excess of the level of the NAAQS. At a minimum, the 2008 rule required monitoring agencies to monitor near lead sources that emit 1.0 ton per year (tpy) or more. However, the 2008 rule allows this requirement to be waived by the EPA Regional Administrator if the monitoring agency can demonstrate that the source will not contribute to a 3-month average lead concentration in ambient air in excess of 50 percent of the level of the NAAQS (based on historical monitoring data, modeling, or other means).

Monitoring agencies were also required by the 2008 rule to conduct lead monitoring in large urban areas (identified as Core Based Statistical Areas, or CBSA, as defined by the Office of Management and Budget (OMB)) with a population of 500,000 people or more. The locations for these monitoring sites are intended to measure neighborhood-scale lead concentrations in urban areas impacted by resuspended dust from roadways, closed industrial sources which previously were significant sources of lead, hazardous waste sites, construction and demolition projects, or other fugitive dust sources of lead.

Following promulgation of the revised lead NAAQS and monitoring requirements, the Natural Resources Defense Council (NRDC), the Missouri Coalition for the Environment Foundation, Physicians for Social Responsibility, and Coalition to End Childhood Lead Poisoning (“the Petitioners”) petitioned (NRDC, 2009) EPA to reconsider the lead emission rate at which monitoring is required (the “emission threshold,” set at 1.0 tpy by the 2008 rule). 1 On July 22, 2009, EPA granted the petition to reconsider aspects of the monitoring requirements (Jackson, 2009). In response to the petition, EPA reviewed and reconsidered the monitoring requirements and on December 30, 2009, EPA proposed revisions to the requirements for both source-oriented and non-source-oriented monitoring for lead (74 FR 69050). We proposed to lower the emission threshold at which monitoring would be required (or a waiver granted) to 0.50 tpy, to require lead monitoring at NCore sites, and remove the existing CBSA-based non-source-oriented monitoring requirement. The comment period ended February 16, 2010. This action promulgates changes to the lead monitoring requirements reflecting our consideration of the comments received on the proposed revisions.

We are finalizing revisions to the source-oriented monitoring requirements. Specifically, we are lowering the emission threshold from 1.0 tpy to 0.50 tpy for industrial sources of lead ( e.g., lead smelters and foundries). However, as discussed more thoroughly in Section V, we are maintaining the emission threshold for airports at 1.0 tpy, and implementing an airport monitoring study to determine the need for monitoring of airports which emit less than 1.0 tpy of lead. The following paragraphs discuss what we proposed, the comments we received, and our rationale for our final decisions regarding the emission thresholds in response to the petition for reconsideration.

An emission threshold is used to identify lead emission sources which should be monitored because their emissions may cause or contribute to ambient lead concentrations that exceed the lead NAAQS. Monitoring agencies are required to conduct source-oriented lead monitoring (unless a waiver is granted as allowed by 40 CFR part 58 Appendix D, paragraph 4.5(a)(ii)) to measure the maximum lead concentration in ambient air resulting from each lead source which emits lead at a rate equal to or more than the emission threshold. The emission threshold for the revised NAAQS was first set at 1.0 tpy as part of the October 2008 lead NAAQS revisions (73 FR 66964, codified at 40 CFR part 58). On December 30, 2009, we proposed to lower the emission threshold from 1.0 tpy to 0.50 tpy (74 FR 69050).

We based our proposed revision on a review of the analyses conducted to identify an appropriate emission threshold at the time of final NAAQS revision. The analyses and our review are documented in the preamble to the proposed monitoring revisions (74 FR 69052). Specifically, we re-evaluated one of the analyses that EPA believed provided the best information on the potential impact of lead sources on ambient lead concentrations. This analysis used source-monitor pairs to estimate the lowest emission rate at which an industrial facility could exceed the lead NAAQS (Cavender 2008). In this analysis, source-oriented lead monitors within one mile of a lead source (identified from the 2002 National Emissions Inventory (NEI)) were identified. This group of sites was then narrowed down to sites near facilities emitting 1 tpy or more of lead into the ambient air, and then to sites which were only impacted by one lead emitting facility. Also, in cases where more than one monitor was identified within one mile of the same facility emitting 1 tpy or more of lead annually, EPA only used the monitor measuring the maximum lead concentration in the analysis. In this manner, EPA identified seven monitor-facility pairs meeting the emissions and distance criteria. Using data in the Air Quality System (AQS) database ( http://www.epa.gov/ttn/airs/airsaqs/ ) for the years 2001-2003, EPA developed an estimate of the maximum 3-month average lead concentration for each monitoring site. 2 Next, EPA calculated a ratio of the maximum 3-month average concentration to the facility annual emissions (as identified in the 2002 NEI) to provide an estimate of the impact from the facility in units of micrograms per meter cubed (µg/m  3 ) per tpy. Dividing the level of the lead NAAQS (0.15 µg/m  3 ) by this ratio provides an estimate of the annual emissions level for the facility which would result in ambient lead concentrations just meeting the lead NAAQS, referred to here as a “site-specific emission threshold” ( see Table 1).

This analysis shows that four of these seven lead sources support an emission threshold less than the emission threshold of 1.0 tpy set by the final rule on the revised lead NAAQS.

As part of the reconsideration, EPA evaluated the stability and sensitivity of the above analysis. To evaluate the stability of the site-specific emission threshold calculation, EPA performed the same analysis for these same seven facilities based on the emission estimates from the 2002 and 2005 NEI (Table 2) and estimated design values ( i.e., 3-month rolling average Pb concentration as determined by 40 CFR part 50 Appendix R) over the periods 2001-2003 and 2004-2006 (Table 3). Table 4 summarizes the site-specific emission thresholds calculated for these periods.

Table 4 shows that, in most cases, the calculated emission threshold remained fairly constant for a given facility over time, in general, varying by a factor of 2 or less. Site-specific emission thresholds varied from 0.32 tpy to 4.9 tpy with a median of 0.63 tpy.

EPA noted that these metrics may be exaggerated by outliers due to the limited number of facilities being evaluated. As such, EPA looked at how these metrics changed when the extreme sites ( i.e., the highest and lowest emitting sources) were removed. Excluding site 290990013 resulted in a lowering of the upper range to 3 tpy and the median to 0.62 tpy but did not affect the minimum (0.32 tpy). Excluding site 171190010 increased the minimum to 0.42 and the median to 0.64 tpy but did not affect the maximum.

In our discussion of the review, we noted that four of the seven lead sources used to determine an emission threshold support an emission threshold less than 1.0 tpy. Based on our review, we concluded that lead sources emitting less than 1.0 tpy of lead could cause or contribute to an exceedence of the lead NAAQS, and, as such, we proposed to lower the emission threshold to 0.50 tpy for all sources of lead. We requested comment on setting the emission threshold at a level above or below 0.50 tpy.

We received 616 comments on our proposal to lower the emission threshold for all lead sources to 0.50 tpy. Of these comments, 601 were in favor of the proposed change to the emission threshold, four commenters supported maintaining the current 1.0 tpy emission threshold, and three commenters suggested emission thresholds below 0.50 tpy. The following paragraphs summarize the significant comments received and our responses to these comments.

The NRDC, on behalf of 20 additional organizations and two individuals, 5 supported our proposed revision of the emission threshold to 0.50 tpy, stating, “The latest and best available scientific evidence supports the adoption of a near-source monitoring threshold of 0.50 tons per year of lead to protect public health with an adequate margin of safety. The available evidence demonstrates that facilities emitting 0.5 tons per year of lead or more have the potential to contribute to a violation of the NAAQS.” NRDC also states, “monitoring downwind of facilities that emit between 0.5 and 1 tons per year of lead is necessary to provide sufficient information about airborne lead levels near these facilities in order to adequately enforce the NAAQS and to protect health with an adequate margin of safety.”

The National Association of Clean Air Agencies (NACAA) agreed there is evidence that high levels of lead exposure can occur near sources (other than airports) emitting 0.50 tpy of lead and supported the proposal to lower the source-oriented emissions threshold to 0.50 tpy, stating that lowering the threshold will help regulatory agencies gather the data necessary for fully implementing the lead NAAQS. Northeast States for Coordinated Air Use Management (NESCAUM) agreed with the proposal to change the emission threshold from 1.0 to 0.50 tpy at lead sources (other than airports). Other monitoring agencies that supported the change to an emission threshold of 0.50 tpy for industrial sources include the states of Maine, Illinois, and Wisconsin. In addition, several hundred comments supporting the change to a 0.50 tpy emission threshold were received from individuals as part of two mass comment campaigns.

The Doe Run Company offered two comments regarding the analysis used to identify the emission threshold. In its first comment, Doe Run questioned the use of the median of the site-specific emission thresholds rather than the arithmetic average of the individual site-specific emission thresholds. In response, we chose to use the median rather than the arithmetic average because the median is more representative of the central tendency of the site-specific emission thresholds. Outliers (values much higher or lower than the rest of the data set) can dramatically impact the arithmetic average, whereas the median is less affected by outliers. As can be seen in Table 1 above, the site-specific emission threshold calculated for site 290990013 is much higher than the rest of the site-specific emission thresholds, appears to be an outlier, and, as such, skews the average to a level much higher than the median ( i.e., central tendency) of the data. As can be seen, five of the seven site-specific emission threshold estimates (71 percent) are less than the average. Since the emission threshold is intended to represent an estimate of the lowest lead emission rate that under reasonable worst-case conditions ( e.g., meteorological and emission release conditions that lead to poor dispersion and high lead concentrations) could result in lead concentrations exceeding the NAAQS (Cavender, 2008), setting the emission threshold at a level that is higher than the site-specific emission thresholds for 71 percent of the sites evaluated is inappropriate. As such, we believe it is appropriate to use the median of this data set rather than the arithmetic mean to determine the emission threshold.

Doe Run also questioned why we limited the sites selected for the analysis to sources that were estimated to emit 1 tpy or more of lead. In response, we elected to only evaluate monitor-source pairs where the source was estimated to emit 1 tpy or more to better focus the analysis on those monitor-source pairs where the lead source was the primary contributor to the ambient lead concentrations. Based on our earlier review of the existing ambient lead measurements, we determined that even in areas where there is no current industrial source of lead, ambient lead concentrations were typically in the range of 0.02 to 0.03 μg/m 3 (USEPA, 2007). This “urban background” level of lead can impact the calculated site-specific emission thresholds, and has a higher impact as the source emissions (and consequently ambient lead concentrations) decrease. Therefore, we elected to limit our analysis to monitor-source pairs where the source was estimated to emit 1 tpy or more to minimize the impact on the emission threshold calculation from the ambient lead concentration impacts that were not due to the source's lead emissions. As can be seen in Table 1 above, the lead concentrations around the source-monitor pairs used were considerably higher than background, ranging from 0.23 to 1.8 μg/m 3 on a 3-month rolling average, and as such, by limiting the analysis to sources with emissions greater than 1 tpy, background Pb concentrations had a small impact on the emission threshold calculation.

Our review of the emission threshold analyses reflects a greater certainty that an emission source (other than airports which is discussed separately below) emitting 0.50 tpy or greater may cause ambient lead concentrations to approach or exceed the lead NAAQS. We believe it is necessary to lower the emission threshold for industrial sources to 0.50 tpy to better identify areas where the lead NAAQS may be exceeded. Therefore, we are revising the emission threshold for industrial sources to 0.50 tpy. Based on the 2005 NEI, 96 industrial facilities are estimated to emit 0.50 tpy or more. 6 Monitoring agencies will be required to install and operate lead monitors at these sources, demonstrate actual emissions are less than 0.50 tpy based on the more current emissions or improved emission estimates, or request a waiver if they can demonstrate that the impact for the source will not contribute to ambient lead concentrations in excess of 50 percent of the lead NAAQS (as allowed for under 40 CFR part 58 appendix D, paragraph 4.5(a)(ii)).

We are maintaining a lead emission threshold for airports of 1.0 tpy, and are requiring a monitoring study at 15 airports with lead emission inventories of 0.50 to 1.0 tpy that we have identified as having characteristics that may cause or contribute to ambient lead concentrations that approach or exceed the lead NAAQS. This section summarizes what we proposed, the comments we received and our response to these comments, and our final decision and rationale.

We proposed to lower the emission threshold for airport monitoring from 1.0 tpy to 0.50 tpy. We explained that we had limited information on the ambient lead impact from airports. We identified one study conducted near the Santa Monica airport which measured a maximum 3-month average lead concentration of 0.1 μg/m 3 near the runway blast fence (Cavender, 2009a). Based on the 2002 lead emission estimate for the Santa Monica airport of 0.4 tpy (USEPA, 2008), an estimated site-specific emission threshold of 0.6 tpy was calculated using the same procedures used to estimate a site-specific emission threshold for industrial sources [i.e., 0.15 μg/m 3 /(0.1 μg/m 3 /0.4 tpy) = 0.6 tpy]. We noted that this site-specific emission threshold (0.6 tpy) falls within the lower end of the range of specific emission thresholds calculated for industrial sources above (0.32 to 4.9 tpy) and did not support the case for different treatment of airports. As such, we proposed to require monitoring at airports that had an estimated emission rate of 0.50 or more tpy (or request a monitoring waiver as allowed under 40 CFR part 58, Appendix D, paragraph 4.5(a)(ii)).

We also requested information on additional data that could be used in setting a different emission threshold for airports, and comments on whether we should consider other factors or criteria that might be useful in determining whether a different approach is appropriate for identifying those airports that have the potential to cause or contribute to ambient lead concentrations approaching or exceeding the lead NAAQS. We provided one example of an alternative where we could require monitoring at airports that EPA determines have the potential to cause or contribute to increased ambient lead concentrations approaching or exceeding the NAAQS based on criteria including the estimated lead emissions and other factors such as the number of runways where piston-engine aircraft operate.

We received 16 comments on our proposal to lower the emission threshold for airport monitoring to 0.50 tpy. Of these, two commenters (on behalf of 21 organizations and three individuals) supported the proposed lowering of the emission threshold, and nine did not support the change. Five additional commenters provided input and advice for improving the emission inventories for airports. The following paragraphs summarize the significant comments received and our responses to these comments.

NRDC, on behalf of itself, 20 additional organizations and two individuals, supported the change to a 0.50 tpy emission threshold for airports, stating that the available evidence supports a 0.50 tpy monitoring threshold for airports. NRDC also stated that because piston-engine powered aircraft continue to be a significant presence at general aviation airports, these airports continue to be a source of lead emissions with the potential to result in lead concentrations in exceedence of the NAAQS, and that there is no evidence to support a departure from the monitoring threshold for industrial sources.

Based on the limited available ambient lead concentration data near airports, we agree that lead emissions from some airports have the potential to cause or contribute to exceedances of the lead NAAQS, and that lead monitoring of airports is necessary to ensure compliance with the lead NAAQS. To identify airports that have the greatest potential to cause or contribute to increased ambient lead concentrations approaching or violating the NAAQS, we are applying a 0.50 tpy emission threshold and additional criteria as described further below in the discussion of the airport monitoring study.

A number of States and State organizations commented against the use of a 0.50 tpy emission threshold for airports. NACAA urged EPA to develop an airport monitoring study of general aviation airports emitting more than 1.0 tpy of lead prior to the deployment of a full airport monitoring program. NACAA claimed that a study is necessary in order to determine sound sampling siting criteria and to evaluate whether the 0.50 tpy threshold should be applicable to airports. NESCAUM commented that a 0.50 tpy threshold is not appropriate for NAAQS monitoring purposes at general aviation airports, arguing that the airport study cited in the Federal Register (74 FR 69054) does not support the need for lowering the monitoring threshold for general aviation airports. NESCAUM claims the study indicates that neither the Santa Monica nor the Van Nuys airports showed lead concentrations higher than the Los Angeles basin average of 0.018 μg/m 3 at sites beyond the airport property. NESCAUM recommended that the monitoring threshold for general aviation airport lead monitoring remain at 1.0 tpy. NESCAUM noted that based on the draft 2008 NEI, a 1.0 tpy threshold would require monitoring at the eight largest general aviation airports. NESCAUM suggests that EPA reassess the need for additional lead monitoring at smaller general aviation airports in a future rulemaking based on information gathered from monitoring of the airports that emit 1.0 tpy or more. The State of New York also commented that the emission threshold for airports should remain at 1.0 tpy and that the data obtained from these airports should be used to assess the need for additional monitoring at airports. Other States, including Florida, Michigan, and North Carolina, suggested that an airport monitoring study should be conducted to gain information on the potential for airports to exceed the lead NAAQS.

In response, we agree that there is limited information available on which to evaluate the potential for lead emissions from piston-engine aircraft operations at airports to exceed or contribute to exceedances of the lead NAAQS. However, we believe that lead emissions from piston-engine aircraft operations at airports may cause ambient lead concentrations to exceed the lead NAAQS at some airports based on the limited data available on ambient lead concentrations at and near airports. We also agree with the commenters that an airport monitoring study would provide useful information that could be used to determine whether a revision to the 1.0 tpy threshold for monitoring of airports would be appropriate.

A number of States asserted that monitoring should not be required at airports because States do not have the authority to require controls on aircraft emissions that are not identical to EPA's standards, and regulatory authority to reduce or eliminate lead emissions from piston-engine aircraft resides with the Federal Government. We understand States are preempted by Clean Air Act (CAA) section 233 from adopting or attempting to enforce any standard for aircraft or aircraft engine emissions that is not identical to an EPA standard. However, that does not negate the responsibility to monitor sources of criteria pollutants to identify whether exceedences of the NAAQS are occurring.

EPA has made some designations under the 2008 Lead NAAQS and anticipates making the remaining initial designations under that standard by October 2011. EPA does not anticipate that the additional monitors required under this rule would be installed and operating in time to provide data for consideration when EPA completes the remaining initial designations under the 2008 Lead NAAQS. If EPA receives monitoring data exceeding the NAAQS after the date of initial designations, EPA may determine whether to undertake a redesignation to nonattainment, issue a “SIP Call” under section 110(k)(5), or take other discretionary steps to ensure that an area attains and maintains the NAAQS. EPA recognizes that, if ambient air near an airport was found to be exceeding the standard, and EPA were to take such discretionary action, there would be limits under federal law as to the measures a state could propose to adopt in a state implementation plan. EPA may take such limits into consideration in determining what steps to take following an exceedance of the standard.

Separate from this Pb monitoring rule, EPA is responding to a petition submitted by Friends of the Earth (FOE) requesting that EPA determine whether Pb emissions from aircraft cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare. As part of this work, EPA published in April 2010 an Advance Notice of Proposed Rulemaking (ANPR) on Lead Emissions from Piston-Engine Aircraft Using Leaded Aviation Gasoline. In this action we described and requested comment on the data available for evaluating lead emissions, ambient concentrations and potential exposure to lead from the use of leaded aviation gasoline (avgas) in piston-engine powered aircraft. This ANPR also described considerations regarding emission engine standards and requested comment on approaches for transitioning the piston-engine fleet to unleaded avgas. The EPA and FAA are working with industry to evaluate alternatives to leaded avgas. As part of this assessment, EPA and FAA are also considering safety, fuel supply, and economic impact issues including effects on small business.

We are maintaining the previously promulgated 1.0 tpy monitoring threshold for airports, rather than promulgating the proposed lowering of the threshold to 0.50 tpy, and are requiring lead monitoring for a minimum of one year at 15 additional airports that we have identified as having characteristics that could lead to ambient lead concentrations approaching or exceeding the lead NAAQS. We are also revising the provision regarding the Regional Administrator's (RA) authority (40 CFR part 58, Appendix D, paragraph 4.5(c)), which allows the RA to require additional lead monitoring at locations where the RA suspects the lead NAAQS may be exceeded, to clarify that this RA authority also applies to airports. The following paragraphs provide our rationale for this approach to monitoring of ambient lead concentrations at airports.

As stated above and in the proposal to this rulemaking, we believe that lead emissions may approach or exceed the lead NAAQS at some airports based on the limited data available on ambient lead concentrations at airports. As such, we believe monitoring of airports is necessary. However, in light of the limited available data, and in consideration of the comments we have received, we believe that monitoring at airports with certain characteristics (as discussed below) is appropriate to identify airports with the potential for the highest ambient lead concentrations that could approach or exceed the lead NAAQS.

We agree with the comments that a monitoring study should be conducted to determine whether a revision to the 1.0 tpy threshold for monitoring airports would be appropriate. We do not agree with the comments that suggested the study should be limited to airports that emit 1.0 tpy or more, as airports emitting 1.0 tpy or more of lead often have much larger footprints and multiple runways (characteristics that we believe will result in lower ambient lead concentration impacts per ton of lead emitted) than many of the airports in the 0.50 tpy to 1.0 tpy emissions range. These differences would make the information gathered at 1.0 tpy airports less applicable to smaller airports. Consequently, we are requiring monitoring agencies to conduct monitoring at 15 selected airports where the most recent year of activity data indicates lead emissions are above 0.50 tpy, but below 1.0 tpy, for a minimum of one year as part of a monitoring study (Hoyer, 2010). 7 Details of the monitoring study are provided below. Table 5 lists the 15 selected airports for this monitoring study.

These airports were selected because they have characteristics that we believe will result in lead concentrations higher than those at other airports with estimated emission rates between 0.50 tpy and 1.0 tpy. Specifically, in addition to having emissions greater than or equal to 0.50 tpy and less than 1.0 tpy (based on current emission inventories), these airports have ambient air within 150 meters of the location of maximum emissions ( e.g., the end of a runway or run-up location), and an airport configuration and meteorological scenario that leads to a greater frequency of operations from one runway. These characteristics were selected because we expect that, collectively, they allow us to identify airports with the highest potential to have ambient lead concentrations approaching or exceeding the lead NAAQS. A cutoff of 0.50 tpy was selected because it was the proposed emission threshold, and the higher the emission rate, the higher the ambient impact if all other factors are equal. We selected a maximum distance to ambient air from the location of maximum emissions of 150 meters because the available information indicates that ambient lead concentrations drop off quickly with distance, and it is less likely that an exceedence of the lead NAAQS will occur at greater distances. Finally, airport configuration and meteorology were evaluated because the lead impacts will be highest if the take-offs (and therefore lead emissions) are conducted at one or two runways. We evaluated every airport in the draft 2008 NEI based on these three characteristics and identified the 15 airports listed in Table 5 as those airports most likely to have the highest ambient lead impacts that could lead to ambient lead concentrations in excess of the lead NAAQS.

As part of the airport monitoring study, monitoring agencies will be required to conduct lead monitoring for a period of 12 consecutive months. Monitors will be sited at the location of estimated maximum lead concentration in ambient air, taking into account logistical considerations and the potential for population exposure. To ensure that the results of the study will be directly comparable to the lead NAAQS, monitoring agencies will be required to monitor using either Federal Reference Method (FRM) or Federal Equivalent Method (FEM) Pb-TSP samplers, and will not be allowed to use Pb-PM 10 samplers for the study. Any monitoring location that measures a rolling 3-month average that exceeds 50 percent of the NAAQS as determined according to 40 CFR part 50, Appendix R during the monitoring study will become a required monitor according to 40 CFR part 58 paragraph 4.5(c). Data collected during the monitoring study will be reported to the AQS according to 40 CFR 58.16.

Data from this monitoring study will be used to assess the need for additional lead monitoring at airports. Under EPA's previously established monitoring network requirements, required source-oriented monitors that read above 50 percent of the NAAQS (0.075 μg/m 3 on a rolling 3-month average) may not be taken down or stop operating (40 CFR part 58 Appendix D, paragraph 4.5(a)(ii)). The purpose of that provision is to ensure monitoring of an area where ambient concentrations could be of concern. EPA continues to believe that this rationale is also applicable to monitors at airports; therefore, 40 CFR part 58 Appendix D, paragraph 4.5(a)(ii) will apply to the results of airport monitors that show concentrations higher than 50 percent of the NAAQS. Such monitors will remain in operation, affected States will include them in annual monitoring network plans, and the monitors will become a part of the State and local monitoring network.

If after a review of the data from the monitoring study we have information that indicates additional airports may have the potential to cause or contribute to ambient lead concentrations that exceed the lead NAAQS, we will consider use of the RA authority to require monitoring at additional airports where appropriate. Finally, data from this study will be used in future lead NAAQS reviews when considering requirements for monitoring at airports.

We are revising the non-source-oriented lead monitoring requirements. We are requiring lead monitoring at NCore sites in CBSA with a population greater than 500,000 people in lieu of the requirement for non-source-oriented monitoring in each CBSA with a population of 500,000 people or more. This section summarizes what we proposed, the comments we received and our response to these comments, and our final decision and rationale for the revisions to the non-source-oriented monitoring requirement.

We proposed to replace the existing requirement to have one non-source-oriented monitor in each CBSA with a population greater than 500,000 people with the requirement to monitor lead at NCore sites. We indicated that the existing requirement was intended to monitor non-inventoried lead sources such as closed industrial sources, hazardous waste sites, and construction and demolition projects. We noted that non-inventoried sources would be better addressed under the existing source-oriented monitoring requirements, and that the existing RA authority could be used to require source-oriented monitoring at locations where it was suspected that a non-inventoried source was likely to cause an exceedence of the lead NAAQS.

We discussed the original objectives for non-source-oriented monitors ( i.e., measuring typical neighborhood-scale lead concentrations in urban areas so we can better understand the risk posed by lead to the general population and provide information that could assist with the determination of nonattainment boundaries) and that non-source-oriented sites are important to support the development of long-term trends at typical concentrations sites. We noted that these objectives match those of the multi-pollutant NCore network required under section 3 of Appendix D to 40 CFR part 58. We also noted that many NCore sites will have the low-volume PM 10 sampler appropriate for conducting Pb-PM 10 monitoring, reducing the cost and time necessary to implement the non-source-oriented monitoring requirements. Due to the many advantages of including lead monitoring at NCore sites rather than having separate non-source-oriented monitoring requirements, we proposed to revise the existing non-source-oriented monitoring requirements (paragraph 4.5(b) of Appendix D to 40 CFR part 58) to require lead monitoring at all NCore sites in place of the current CBSA population-based requirements. Finally, we requested comments on whether lead monitoring should be required at all NCore sites or only NCore sites in large urban areas ( e.g., in CBSA with a population greater than 500,000 people).

We received 13 comments on our proposal to require lead monitoring at NCore sites instead of the existing requirement to have one non-source-oriented monitor in each CBSA with a population greater than 500,000 people. Of these, three supported the proposed change to require lead monitoring at all NCore sites, six supported changing the requirement to require lead monitoring at only urban NCore sites, and no comments supported maintaining the existing non-source-oriented monitoring requirement. In addition, two commenters requested we provide guidance on when the RA authority should be used to require monitoring at non-inventoried lead sources. The following paragraphs summarize the significant comments received and our responses to these comments.

In their comments, NACAA supported the proposal to conduct non-source-oriented lead monitoring using the NCore network but recommended that EPA require monitoring only at NCore sites located in larger urban areas ( i.e., CBSA with a population greater than 500,000). NACAA indicated that doing so would allow States to use their limited resources to focus non-source-oriented monitoring and control strategies in the most sensitive areas. NESCAUM commented that the proposed inclusion of the rural NCore sites is inconsistent with the monitoring goal and would be a waste of State resources. New York commented that in many CBSA, the tentatively approved NCore monitoring location is probably well suited for non-source-oriented monitoring objectives, but that there is no need to monitor lead at the rural NCore sites. North Carolina commented that using the NCore sites provides efficient use of EPA and State resources and provides data on background levels of lead most cost-effectively. Wisconsin supported population-oriented sites located at urban NCore locations and questioned monitoring at rural NCore sites where concentrations likely will be extremely low.

In their comments, NRDC supported the inclusion of lead at all NCore sites stating that it will provide valuable data on multi-pollutant exposures in cities and towns across the county. However, they added that inclusion of lead at NCore sites does not sufficiently address all of the original objectives of the non-source-oriented monitoring, and that the RA authority is not adequate to ensure that non-inventoried sources that have the potential to exceed the NAAQS will be monitored without additional guidance to the States. They suggested that the source-oriented monitoring requirement should be revised to provide additional guidance to States on monitoring non-inventoried sources that have the potential to exceed the NAAQS. We agree that additional guidance is needed on identifying locations that have the potential to exceed the lead NAAQS due to re-suspension of deposited lead and, as discussed below, are clarifying the language for the RA authority provision to include requiring monitoring of re-entrained dust sources as well as other sources of lead.

Several commenters suggested we provide for the use of alternative sites such as National Air Toxic Trends Sites (NATTS) where measuring lead at NCore is either impractical or the alternative site would provide more useful information on urban lead concentrations. We note that lead measurements taken at NATTS sites would satisfy the objectives for non-source-oriented monitoring. Furthermore, we proposed to require lead non-source-oriented monitoring at NCore in part due to expected efficiencies ( i.e., use of the same equipment needed for PM 10-2.5 mass measurements). We believe that the requested flexibility is appropriate for situations where non-NCore sites such as NATTS sites can meet the non-source-oriented monitoring objectives at a lower cost to monitoring agencies. 8

Two commenters noted that the non-source-oriented lead monitoring sites will be the only lead monitoring site in many primary quality assurance organizations (PQAO). The collocation requirement in Appendix A to 40 CFR part 58, paragraph 3.3.4.3, would require these PQAO to collocate a second lead monitor at each of the non-source-oriented lead monitoring sites, nearly doubling the cost of non-source-oriented lead monitoring in these CBSA. Both commenters questioned the need for such extensive collocation when lead concentrations are expected to be well below the lead NAAQS at the non-source-oriented lead monitoring sites. We agree with the commenters that, as currently written, the collocation requirement would lead to an unnecessarily high level of collocation at the non-source-oriented monitoring sites. We have modified the quality assurance requirements to allow the 15 percent collocation requirement to be based on the entire NCore network rather than on a per PQAO basis which is consistent with the PM 10-2.5 collocation requirement for NCore sites.

We are adding the requirement for lead monitoring to the list of pollutants to be monitored for NCore sites in CBSA with a population of 500,000 people or more and revoking the existing requirement for non-source-oriented monitoring (40 CFR part 58, Appendix D, paragraph 4.5(b)). Also, we are revoking the existing requirement to conduct lead monitoring at 10 NCore sites because it is redundant to the new non-source-monitoring requirement being promulgated today (40 CFR part 58, Appendix D, paragraph 3(c)). This change will improve our ability to track changes in typical urban lead concentrations and provide useful information on typical urban lead exposures. In addition, we are revising the RA authority (40 CFR part 58, Appendix D, paragraph 4.5(c)) provision to clarify that the RA may require monitoring of re-entrained lead dust sources which are expected to cause or contribute to ambient lead concentrations that may approach or exceed the lead NAAQS. Finally, we are revising the 15 percent collocation requirement for non-source-oriented lead monitors to be based on the entire NCore network rather than based on each PQAO.

We are requiring that monitoring agencies install and begin operation of source-oriented monitors near lead sources emitting 0.50 tpy or more but less than 1.0 tpy, and at the 15 airports identified for the airport monitoring study by December 27, 2011. We are requiring monitoring agencies to install and begin operation of non-source-oriented monitors at NCore sites (or approved alternative sites) in CBSA with a population of 500,000 people or more by December 27, 2011. We are also requiring that monitoring agencies update their annual monitoring network plans by July 1, 2011, to incorporate plans for all required source-oriented (including airports) and non-source-oriented lead monitors. This section summarizes what we proposed, the comments we received and our response to these comments, and our final decision and rationale for the final monitoring deployment schedule.

We proposed that monitoring agencies would have six months from the effective date of the final rule to update their annual monitoring network plans. The update would incorporate plans for source-oriented monitors near lead sources emitting 0.50 tpy or more, but less than 1.0 tpy. We also proposed to allow one year from the date of the final rule for monitoring agencies to install and begin operation of source-oriented monitors near lead sources emitting 0.50 tpy or more, but less than 1.0 tpy. We also requested comment on staggering the monitor deployment over two years. Note, we did not propose changes to the existing schedules for updating plans (July 1, 2009) and beginning operation (January 1, 2010) of source-oriented monitors near lead sources emitting 1.0 tpy or more.

We proposed to require monitoring agencies to commence lead sampling at NCore sites when NCore sites are to become operational no later than January 1, 2011. Monitoring agencies must have installed and begun operation of required NCore sites and monitors (other than lead) by January 1, 2011. Many NCore sites will have the necessary PM 10 sampler needed to conduct Pb-PM 10 sampling due to the existing requirement to conduct PM 10-2.5 sampling. As such, we proposed to require monitoring agencies to commence lead sampling at NCore sites when NCore sites are to become operational no later than January 1, 2011.

We received several comments on the proposed monitoring deployment schedule. Seven commenters supported allowing for a longer deployment period. NACAA recommended that States' new source-oriented monitoring be deployed over a two year period which would give State and local agencies adequate time to adjust their resources and ensure that new monitors are properly sited and supported. Iowa commented that any new source-oriented monitors required under the provisions of this rule should be installed over a two year period, with the first tier of source-oriented monitors operational by January 2012, and the second tier of monitors by January 2013. Iowa states that this would allow States adequate time to refine emissions estimates by use of stack tests, to model the refined estimates, and to attempt to locate monitoring sites in the “hot spots” indentified by the modeling. Other monitoring agencies requesting a deployment period longer than one year include Texas, New York, Illinois, and Arkansas.

We recognize the difficulty monitoring agencies will have in deploying the newly required monitors. However, as is discussed below, we believe it is feasible for monitoring agencies to deploy the monitors necessary to comply with this final rule within one year. We note that the estimated number of new sites that States will need to site and install (or receive waivers for) in this final rule is 111, 9 which is 50 less than the number estimated based on the proposed rule. Following the 2008 revision, monitoring agencies were able to install approximately 100 new lead sites, and were granted waivers for an additional 35 sites. Based on the success and the experience gained from the deployment of the monitors to address the 2008 revision, we believe requiring up to 111 new sites to be sited and installed within one year will not create an excessive burden on monitoring agencies.

One commenter requested that we synchronize the dates of the required revision to the lead monitoring plan with the date for the existing annual monitoring plan requirement. We recognize the efficiency of having the same dates for the revision to the lead monitoring plan and required annual monitoring plan. We also note that due to the timing of this final rule, the proposed deadline of 6-months following the final rule (June 27, 2011) is close to the deadline for the required 2011 annual monitoring network plans (July 1, 2011). We agree that it is appropriate to use the same date for the two plans due to the proximity of the two dates.

Several commenters noted a discrepancy in the required dates in the preamble to the proposed rule and the proposed regulatory language. We note that the proposed regulatory language published in the Federal Register inadvertently indicated dates for the required plan and installation and operation of new monitors based on the date of the proposed rule. The preamble correctly indicated that the proposed dates would be based on the date the final rule was published.

We are requiring that monitoring agencies install and begin operation of source-oriented monitors near lead sources emitting 0.50 tpy or more but less than 1.0 tpy and at the 15 airports identified for the airport monitoring study by December 27, 2011, one year from the date of publication of this final rule. We estimate that monitoring agencies will be required to site and install up to 111 new source-oriented monitors  10 based on the final monitoring requirements. This number is slightly higher than the 100 monitors that have already been installed near sources emitting 1.0 tpy or more. We believe monitoring agencies can install the newly required source-oriented-monitoring sites within one year of the publication of this final rule especially in light of the experience and success achieved by monitoring agencies in complying with the previous source-oriented-monitoring requirement.

We are requiring monitoring agencies to install and begin operation of non-source-oriented monitors at NCore sites in CBSA with a population of 500,000 people or more by December 27, 2011. To allow monitoring agencies sufficient time to plan for and install any necessary equipment, we are allowing monitoring agencies a reasonable time, 1 year, from the time of publication of this final rule to comply with the non-source-oriented monitoring requirements.

We are also requiring that monitoring agencies update their annual monitoring network plans by July 1, 2011, to incorporate plans for all required source-oriented (including airports) and non-source-oriented lead monitoring. This date is the same as the existing requirement for States to submit their 2011 annual monitoring plan as required by 40 CFR Part 58.10(a)(i).

Under section 307(b)(1) of the CAA, judicial review of this final rule is available by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by February 25, 2011. Moreover, under section 307(b)(2) of the CAA, the requirements established by this action may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it was deemed to “raise novel legal or policy issues.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action.

The information collection requirements in this rule will be submitted for approval to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them.

The information collected and reported under 40 CFR part 58 is needed to determine compliance with the NAAQS, to characterize air quality and associated health and ecosystem impacts, to develop emissions control strategies, and to measure progress for the air pollution program. The final amendments revise the technical requirements for lead monitoring sites, require the siting and operation of additional lead ambient air monitors, and the reporting of the collected ambient lead monitoring data to EPA's AQS database. We have estimated the burden based on the final monitoring requirements of this rule. Based on these requirements, the annual average reporting burden for the collection under 40 CFR part 58 (averaged over the first 3 years of this Information Collection Request(ICR)) for 100 respondents is estimated to increase by a total of 1,726 labor hours per year with an increase of $119,172 per year. Burden is defined at 5 CFR 1320.3(b).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final rule.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration (SBA) regulations at 13 CFR 121.21; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities. Rather, this rule establishes monitoring requirements for State and local (where applicable) monitoring agencies.

This rule does not contain a federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The amendments to 40 CFR part 58 are estimated to increase the ambient air monitoring costs by 22,376 labor hours per year with an increase of $1,910,059 per year from present levels. Thus, this rule is not subject to the requirements of sections 202 or 205 of UMRA.

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. Small governments that may be affected by the amendments are already meeting similar requirements under the existing rules, and the costs of changing the network design requirements would be borne, in part, by the federal government through State assistance grants.

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The rule does not alter the relationship between the federal government and the States regarding the establishment and implementation of air quality improvement programs as codified in the CAA. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicited comment on the proposed rule from state and local officials.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It does not have a substantial direct effect on one or more Indian tribes, since tribes are not obligated to adopt or implement any NAAQS. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 F.R. 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule would result in an insignificant increase in power consumption associated with the additional power required to run 111 additional lead monitors nationwide.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d)(15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

This proposed action revises the ambient monitoring requirements for measuring airborne lead. As such, the rule does not establish an environmental standard. Instead, by lowering the emissions threshold from 1.0 tons per year (tpy) to 0.5 tpy used to determine if an air quality monitor for lead should be placed near an industrial facility, this rule requires assessment of compliance at smaller emissions sources, and therefore effectively strengthens the lead monitoring requirements and, in turn, may increase the public health protection provided by the NAAQS itself. The rule maintains a 1.0 tpy emissions threshold for airports and implements an airport monitoring study to determine the need for monitoring of airports which emit less than 1.0 tpy of lead. The rule also replaces the existing non-source-oriented monitoring requirement for lead monitoring in large urban areas with a requirement that lead be added to the list of pollutants to be monitored at NCore sites in CBSA with a population of 500,000 people or more. These rule amendments are designed to improve the lead monitoring network's capability to better assess compliance with the revised NAAQS (73 FR 66964, codified at 40 CFR part 58).

Pursuant to E.O. 12898 EPA has undertaken to determine the aggregate demographic makeup of the communities potentially affected by this proposed rule revision. The EPA focused its analysis on 111 industrial sources of lead ( e.g. , lead smelters, and foundries) impacted by the lowering of the emissions threshold from 1.0 tpy to 0.5 tpy. The analytical approach, which assumed “proximity-to-a-source” as a surrogate for determining a population's potential exposure to lead emissions from these sources, evaluated several socio-demographic parameters and compared them against the respective national averages for the same parameters.

The socio-demographic parameters used in the analysis included estimates of the percentage of the population near the sources that were White, Minority ( i.e., all Non-White), African American, Native American, Other/Multiracial, and Hispanic. The study also evaluated the percentages of the same populations less than or equal to 18 years of age; greater than or equal to 65 years of age; and the total below poverty line.

The analysis determined the composition of those census blocks that lay within a circular distance of one mile (or approximately 1.6 kilometers) of affected sources with respect to the selected socio-demographic parameters. The study area radius ( i.e., 1 mile) was used because available data generally indicate that lead emissions from such sources are rapidly deposited and ambient lead concentrations decline quickly with distance from the emission source.

The analysis indicated that the aggregate population living within a one-mile area around these sources tends to have lower proportions of Whites and higher proportions of African-Americans, Hispanics, and “Other and Multi-racial” populations than their respective national averages. The Minority ( i.e., total Non-White) population in these areas is greater than the national average ( i.e., 29% versus 25% respectively). The Tribal population percentages are similar for both those living within the study area and the national average ( i.e., both < 1%). The percentage of the population of those living below the poverty line within the area of study is higher than the national average ( i.e., 17% versus 13% respectively). However, the percentage of the population less than or equal to 18 years of age and the percentage age 65 or older are similar for those within the area of study and the national average.

Based on the fact that this proposed rule does not allow emission increases, but promulgates revisions to existing monitoring requirements that lower the threshold at which monitoring by state and local monitoring agencies would be required, the EPA has determined that the proposed rule will not have disproportionately high and adverse human health or environmental effects on minority, low-income, or Tribal populations. Furthermore, to the extent that any minority, low-income, or Tribal subpopulation is disproportionately impacted by current lead emissions as a result of the proximity to lead emissions sources, that group also stands to benefit from the improvement in compliance with the lead NAAQS which will result from this rule and thereby potentially experience associated increases in environmental and health benefits.

This proposed change is a “notice and comment rulemaking” and public involvement is encouraged. All monitoring changes at the local level will be documented in each state's monitoring plan and are available for public review and comment. In addition, EPA defines “Environmental Justice” to include meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. To promote meaningful involvement, EPA has developed a communication and outreach strategy to ensure that interested communities have access to this proposed rule, are aware of its content, and have an opportunity to comment during the comment period. During the comment period, EPA will publicize the rulemaking via EJ newsletters, Tribal newsletters, EJ listservs, and the internet, including the Office of Policy (OP) Rulemaking Gateway Web site ( http://yosemite.epa.gov/opei/RuleGate.nsf/ ). EPA will also provide general rulemaking fact sheets ( e.g., why is this important for my community) for EJ community groups and conduct conference calls with interested communities.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective January 26, 2011.

In FR Doc. 2010-27778 of November 17, 2010 (75 FR 70372), there was a technical error that this notice serves to identify and correct. The provisions of this notice are effective as if they had been included in the “Medicare Program; Home Health Prospective Payment System Rate Update for Calendar Year 2011; Changes in Certification Requirements for Home Health Agencies and Hospices” final rule. Accordingly, the correction is effective January 1, 2011.

On page 70417, in Table 13B, the calculation of the NRS payment amounts for services provided in rural areas is incorrect. In Table 13B, we multiplied the NRS payment amounts (from Tables 8B and 9B) by the rural add-on (X 1.03). However, we should have multiplied the NRS conversion factors for rural areas (from Table 13A) by the appropriate relative weights. We are replacing Table 13B in its entirety in order to show the correct calculation of the NRS payment amounts for services provided in rural areas.

In FR Doc. 2010-27778 of November 17, 2010 (75 FR 70372), make the following corrections:

1. On page 70417, Table 13B is corrected to read as follows:

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

We find for good cause that it is unnecessary to undertake notice and comment rulemaking because this notice merely provides typographical and technical corrections to the regulations. We are not making substantive changes to our payment methodologies or policies, but rather, are simply implementing correctly the payment methodologies and policies that we previously proposed, received comment on, and subsequently finalized. The public has already had the opportunity to comment on these payment methodologies and policies, and this correction notice is intended solely to ensure that the CY 2011 HH PPS final rule accurately reflects them. Therefore, we believe that undertaking further notice and comment procedures to incorporate these corrections into the CY 2011 HH PPS final rule is unnecessary and contrary to the public interest.

Further, we believe a delayed effective date is unnecessary because this correction notice merely corrects inadvertent typographical and technical errors. The changes noted above do not make any substantive changes to the HH PPS payment methodologies or policies. Moreover, we regard imposing a delay in the effective date as being contrary to the public interest. We believe that it is in the public interest for providers to receive appropriate HH PPS payments in as timely a manner as possible and to ensure that the CY 2011 HH PPS final rule accurately reflects our payment methodologies, payment rates, and policies. Therefore, we find good cause to waive notice and comment procedures, as well as the 30-day delay in effective date.

We, the U.S. Fish and Wildlife Service, published a final rule in the Federal Register on October 8, 2008 (73 FR 59448), to revise our regulations governing falconry in the United States. These regulations are found in title 50 of the Code of Federal Regulations (CFR) at § 21.29. The regulations provide that, when a State meets the requirements for operating under the regulations, falconry permitting must be delegated to the State.

The States of Arkansas, Colorado, Idaho, Maine, Michigan, Missouri, South Dakota, and Washington have submitted revised falconry regulations and supporting materials and have requested to be allowed to operate under the revised Federal regulations. We have reviewed the regulations administered by these States and have determined that their regulations meet the requirements of 50 CFR 21.29(b). According to the regulations at § 21.29(b)(4), we must issue a rule to add a State to the list at § 21.29(b)(10) of approved States with a falconry program. Therefore, we change the Federal regulations accordingly, and a Federal permit will no longer be required to practice falconry in the States of Arkansas, Colorado, Idaho, Maine, Michigan, Missouri, South Dakota, and Washington beginning January 1, 2011.

We also make several nonsubstantive corrections and improvements to the falconry regulations in 50 CFR 21.29. In paragraph (d)(9), we add a paragraph heading for consistency with the other subordinate paragraphs in paragraph (d), which all have headings. We correct an incorrect reference in paragraph (e)(6)(ii). Finally, we remove redundant subparagraphs from paragraphs (e)(2) and (e)(3): The same text appears at both of these locations. We are removing this text from both of these locations and moving it to a more logical location in paragraph (c)(3)(i) in a new paragraph (E). The information in this text pertains to the possession of raptors by Apprentice Falconers, and we believe this information fits better with other information about the possession options for Apprentice Falconers presented in paragraph (c) than it does in either of its current locations in paragraph (e) of the regulations.

In accordance with section 553 of the Administrative Procedure Act (5 U.S.C. 551 et seq. ), we are issuing this final rule without prior opportunity for public comment. Under the regulations at 50 CFR 21.29(b)(1)(ii), the Director of the U.S. Fish and Wildlife Service must determine if a State, tribal, or territorial falconry permitting program meets Federal requirements. When the Director makes this determination, the Service is required by regulations at 50 CFR 21.29(b)(4) to publish a rule in the Federal Register adding the State, tribe, or territory to the list of those approved for allowing the practice of falconry. On January 1st of the calendar year following publication of the rule, the Service will terminate Federal falconry permitting in any State certified under the regulations at 50 CFR 21.29.

This is a ministerial and nondiscretionary action that must be enacted shortly to enable the subject States to assume all responsibilities of falconry permitting by January 1, 2011, the effective date of this regulatory amendment. Further, the relevant regulation at 50 CFR 21.29 governing the transfer of permitting authority to these States has already been subject to public notice and comment procedures. Therefore, in accordance with 5 U.S.C. 553(b)(3)(B), we did not publish a proposed rule in regard to this rulemaking action because, for good cause as stated above, we found prior public notice and comment procedures to be unnecessary. In addition, per 5 U.S.C. 553(d)(1), we are making this rule effective in less than 30 days because this rule relieves a restriction: It relinquishes Federal control of the falconry permitting program to the approved States.

The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866. OMB bases its determination upon the following four criteria:

a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

b. Whether the rule will create inconsistencies with other Federal agencies' actions.

c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. Whether the rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (that is, small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

We have examined this rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action will not have a significant economic impact on a substantial number of small entities. This rule delegates authority to States that have requested it, and those States have already changed their falconry regulations. This rule does not change falconers' costs for practicing their sport, nor does it affect businesses that provide equipment or supplies for falconry. Consequently, we certify that, because this rule will not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.

This rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). It will not have a significant economic impact on a substantial number of small entities.

a. This rule does not have an annual effect on the economy of $100 million or more. There are no costs to permittees or any other part of the economy associated with this regulations change.

b. This rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The practice of falconry does not significantly affect costs or prices in any sector of the economy.

c. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Falconry is an endeavor of private individuals. Neither regulation nor practice of falconry significantly affects business activities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

a. This rule will not “significantly or uniquely” affect small governments in a negative way. A small government agency plan is not required. The eight States affected by this rule applied for the authority to issue permits for the practice of falconry.

b. This rule will not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, the rule does not have significant takings implications. A takings implication assessment is not required. This rule does not contain a provision for taking of private property.

This rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. The States being delegated authority to issue permits to conduct falconry have requested that authority. No significant economic impacts are expected to result from the State regulation of falconry.

In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

We examined this rule under the Paperwork Reduction Act of 1995. OMB has approved the information collection requirements of the Migratory Bird Permits Program and assigned OMB control number 1018-0022, which expires November 30, 2013. This regulation change does not add to the approved information collection. Information from the collection is used to document take of raptors from the wild for use in falconry and to document transfers of raptors held for falconry between permittees. A Federal agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

We evaluated the environmental impacts of the changes to these regulations, and determined that this rule does not have any environmental impacts. Within the spirit and intent of the Council on Environmental Quality's regulations for implementing the National Environmental Policy Act (NEPA), and other statutes, orders, and policies that protect fish and wildlife resources, we determined that these regulatory changes do not have a significant effect on the human environment.

Under the guidance in Appendix 1 of the Department of the Interior Manual at 516 DM 2, we conclude that the regulatory changes are categorically excluded because they “have no or minor potential environmental impact” (516 DM 2, Appendix 1A(1)). No more comprehensive NEPA analysis of the regulations change is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and 512 DM 2, we have evaluated potential effects on Federally recognized Indian Tribes and have determined that this rule will not interfere with Tribes' ability to manage themselves or their funds or to regulate falconry on Tribal lands.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Because this rule only affects the practice of falconry in the United States, it is not a significant regulatory action under E.O. 12866, and will not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

Socioeconomic. This action will not have discernible socioeconomic impacts.

Raptor populations. This rule will not change the effects of falconry on raptor populations. We have reviewed and approved the State regulations.

Endangered and threatened species. This rule does not change protections for endangered and threatened species.

Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq. ), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter” (16 U.S.C. 1536(a)(1)). It further states that the Secretary must “insure that any action authorized, funded, or carried out * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536(a)(2)). Delegating falconry permitting authority to States with approved programs will not affect threatened or endangered species or their habitats in the United States.

The fishery management plan (FMP) for Atlantic surfclams and ocean quahogs requires that NMFS, in consultation with the Mid-Atlantic Fishery Management Council (Council), specify quotas for surfclam and ocean quahog for a 3-year period, with an annual review, from a range that represents the OY for each fishery. It is the policy of the Council that the levels selected allow sustainable fishing to continue at that level for at least 10 years for surfclams, and 30 years for ocean quahogs. In addition to this constraint, the Council policy also considers the economic impacts of the quotas. Regulations implementing Amendment 10 to the FMP (63 FR 27481, May 19, 1998) added Maine ocean quahogs (locally known as Maine mahogany quahogs) to the management unit, and provided for a small artisanal fishery for ocean quahogs in the waters north of 43°50′ N. lat., with an annual quota within a range of 17,000 to 100,000 Maine bu (5,991 to 35,240 hL). As specified in Amendment 10, the Maine mahogany ocean quahog quota is allocated separately from the quota specified for the ocean quahog fishery. Regulations implementing Amendment 13 to the FMP (68 FR 69970, December 16, 2003) established the ability to set multi-year quotas. An evaluation, in the form of an annual quota recommendation, is conducted by the Council every year to determine if the multi-year quota specifications remain appropriate. The fishing quotas must be in compliance with overfishing definitions for each species. In recommending these quotas, the Council considered the most recent stock assessments, data reported by harvesters and processors, and other relevant information concerning exploitable biomass and spawning biomass, fishing mortality rates, stock recruitment, projected fishing effort and catches, and areas closed to fishing.

In June 2010, the Council voted to recommend maintaining the 2010 quota levels of 5.333 million bu (284 million L) for the ocean quahog fishery, 3.400 million bu (181 million L) for the Atlantic surfclam fishery, and 100,000 Maine bu (35,240 hL) for the Maine ocean quahog fishery for 2011-2013. The basis for the Council's quota recommendations was provided in the proposed rule published on October 25, 2010 (75 FR 65442), and is not repeated here.

With this rule, NMFS approves and implements the quotas proposed by the Council. The final quotas for the 2011-2013 Atlantic surfclam and ocean quahog fishery are shown in the table below. The Atlantic surfclam and ocean quahog quotas are specified in “industry” bu of 53.24 L per bu, while the Maine ocean quahog quota is specified in “Maine” bu of 35.24 L per bu. Because Maine ocean quahogs are the same species as ocean quahogs, both fisheries are assessed under the same ocean quahog overfishing definition. When the two quota amounts (ocean quahog and Maine ocean quahog) are added, the total allowable harvest is still lower than the level that would result in overfishing for the entire stock.

NMFS published proposed specifications on October 25, 2010, with a comment period that ended November 24, 2010. During the comment period on the proposed rule, NMFS received four comments. Three comments were received from commercial Atlantic surfclam and ocean quahog industry participants, and one comment was received from a private citizen.

Comment #1: One commenter proposed significant reductions to all quotas in order to end overfishing, but offered no scientific basis for this suggestion, and the comment does not speak to Atlantic surfclams or ocean quahogs specifically.

Response: Neither ocean quahogs nor Atlantic surfclam are overfished nor are subject to overfishing; therefore, there is no scientific basis for reducing the quotas as suggested by this commenter.

Comment #2: Three commenters suggested that the ocean quahog allocation should be reduced 25 percent to 4.0 million bushels.

Response: This request is based, in part, on concern over the health of the resource; two commenters raised a concern that the stock biomass may be less than half of the virgin biomass in the Virginia, Delmarva, and New Jersey regions, and that making determinations about the health of the stock based on the whole stock, rather than just the exploitable component of the stock, is a violation of the National Standards. However, as noted above, the most recent stock assessment (completed in 2009) concluded that ocean quahogs were not overfished and were not subject to overfishing. The stock assessment reviewed all available information on the ocean quahog stock. The decision to base the status determination and the quota on the entire stock rather than just the exploitable biomass is consistent with the best available scientific advice.

Comment #3: Two commenters also raised concerns with the economic implications of setting a quota higher than recent landings. The concern appears to be that, because surplus quota is allocated to the fishery, this could reduce the value of the fishing quota allocated to individuals, who are left with less demand for quota to lease.

Response: The Council has the discretion to act on this issue pursuant to the Magnuson-Stevens Act and has discussed this issue during the development of proposed specifications for the clam fishery. The Council's proposed quota of 5.33 million bushels is consistent with the best available scientific information on the stock, and the management approach selected by the Council remains consistent with the National Standards of the Magnuson-Stevens Act.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the NMFS Assistant Administrator has determined that this final rule is consistent with the FMP, other provisions of the MSA, and other applicable law.

This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause, under 5 U.S.C. 533(d)(3), to waive the 30-day delay in effectiveness period for the implementation of the 2011-2013 surfclam, ocean quahog, and Maine ocean quahog quotas. A delay in the effective date of this final rule would cause a disruption in the ordinary commerce of the surfclam and ocean quahog fisheries. ITQ shareholders each receive a portion of the overall annual quotas for the two species. An allocation holder receives an amount of cage tags equivalent to his/her share of the overall quota. Fishing for surfclams and ocean quahogs begins on January 1, 2011, regardless of the publication of the annual quota, as tags for the 2011 fishing year have already been issued by the vendor pursuant to § 648.75(b). ITQ allocations are often transferred either permanently or temporarily to meet changing economic circumstances in the fishery beginning immediately upon the commencement of these fisheries. Without a quota in effect, the industry does not have the ability to make a transfer of part or all of an allocation either permanently or temporarily. The inability of the industry to make such transfers effective would preclude the intended recipients of such transfers from fishing. Accordingly, a delay in the effectiveness of this rule would be contrary to the rule's intent to maintain current quota levels that have the full support of the fishing industry and facilitate the transfer of quotas requested by the industry.

This rule could not be published sooner because the Council did not provide its quota specification until September of 2010. As a result of that timing, in order for NMFS to provide a proposed rulemaking stage with adequate opportunity for comment, it is necessary to waive the 30-day delay in effectiveness, as it would compromise the start of the fishing year and thereby undermine the intent of the rule. The inability to transfer quota would be contrary to the public interest because it would preclude the intended recipients of such transfers from fishing, thereby resulting in a negative economic impact on the industry. Additionally, a delay in quota transfers would result in fewer days available to fish, and a vessel operator may feel obligated to fish during periods when they may otherwise choose not to do so. Given the increase in foul weather and hazardous seas during certain months, a vessel's ability to operate safely at sea could be compromised.

NMFS, pursuant to section 604 of the Regulatory Flexibility Act (RFA), has prepared a FRFA in support of these specifications. The FRFA incorporates the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, and a summary of the analyses completed to support the action. A copy of the IRFA, RIR, and EA are available upon request ( see ADDRESSES ). A summary of the IRFA was published in the proposed rule for this action and is not repeated here. A description of why this action was considered, the objectives of, and the legal basis for, this rule is contained in the preamble to the proposed rule and this final rule and is not repeated here.

Four public comments were submitted on the proposed rule. Although none of the comments were made in direct response to the IRFA, two commenters did raise concerns about the economic impacts associated with the quota levels implemented in this final rule. NMFS has responded to these comments in the Comments and Responses section of this preamble. No changes have been made in this final rule as a result of the comments provided on the proposed rule.

The Small Business Administration (SBA) defines a small commercial fishing entity as a firm with gross annual receipts not exceeding $4.0 million. In 2009, a total of 43 vessels reported harvesting surfclams and/or ocean quahogs from Federal waters under the IFQ system. In addition, 19 vessels participated in the limited access Maine ocean quahog fishery, for a total of 62 participants in the 2009 fisheries. Average 2009 gross income from surfclam IFQ trips was $833,333 per vessel, and from ocean quahog IFQ trips was $1,533,333 per vessel. The Maine ocean quahog fishery reported an average value of $105,263 per vessel. Each vessel in this analysis is treated as a single entity for purposes of size determination and impact assessment. All 62 commercial fishing entities fall below the SBA size threshold for small commercial fishing entities.

In addition to the active vessels that participate in the fishery there are 45 ocean quahog quota IFQ allocation holders, 57 surfclam allocation holders, and 40 Federal limited access Maine mahogany quahog permit holders. An allocation holder may choose to fish or lease his or her quota allocation.

This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This final rule does not duplicate, overlap, or conflict with other Federal rules.

The final quotas for 2011-2013 reflect the same quota levels set for 2008-2010. Therefore, it is not expected that there will be any different economic impacts beyond status quo resulting from the final quota level. Leaving the ocean quahog quota at the harvest level of 5.333 million bu (284 million L) is not expected to constrain the fishery. In fact, actual ocean quahog landings for 2008 and 2009 did not exceed 65 percent of the available quota. The total 2010 harvest is expected to be similar to that of recent years (as of October 31, 2010, only 53.6 percent of the quota had been harvested). In comparison, 56.5 percent of the quota had been harvested as of October 31, 2009.

The surfclam quota is to be set to the maximum allowed under the FMP. In contrast to the ocean quahog harvest, the surfclam fishery has harvested over 80 percent of the available quota each year since 2005. The Maine ocean quahog quota is to be also set at the maximum allowed under the FMP. The Maine ocean quahog quota is often fully harvested on an annual basis. It is anticipated that, by maintaining the status quo quota level for the next 3 years, the fishing industry will benefit from the stability of product demand from the seafood processors and being able to predict future fishery performance based on past performance from the last 3 years.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. All ITQ allocation holders and fishermen in the Atlantic surfclam and ocean quahog fishery that would be impacted by this final rulemaking are considered to be small entities. Copies of this final rule are available from the Northeast Regional Office, and the guide, i.e., permit holder letter, will be sent to all holders of commercial Federal Atlantic surfclam, ocean quahog, and the limited access Maine ocean quahog fishery permits. The guide will also be available on the internet at http://www.nero.noaa.gov. The guide and this final rule will be available upon request from the Regional Administrator ( see ADDRESSES ).