36116 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Rules and Regulations 

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on federallyrecognized 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 a Federal 

regulation involving Indian lands. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

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. 

National Environmental Policy Act 

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)). 

Paperwork Reduction Act 

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.). 

Regulatory Flexibility Act 

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 has a 

special reclamation tax of $0.074 per ton 

of clean coal mined which is due to 

expire on June 30, 2009. The tax is used 

to reclaim bond forfeiture sites in the 

State. On May 4, 2009, the Governor 

signed into law a bill that will reinstate 

and increase the special reclamation tax 

to $0.144 per ton of clean coal mined. 

The additional $0.07 tax is being 

removed, and the previous one-year 

expiration period for the special 

reclamation tax is being deleted. Under 

the amended language, the Legislature 

will review the special reclamation tax 

every two years to determine whether 

the tax should be continued. The tax is 

payable by all operators mining coal in 

West Virginia, regardless of size. The 

tax, which is an important source of 

revenue for the State’s alternative 

bonding system, is used to supplement 

reclamation bond amounts in the event 

of forfeiture. 

Small Business Regulatory Enforcement 

Fairness Act 

Based upon the above analysis and 

discussion, we have determined that 

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. 

Unfunded Mandates 

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 analysis performed under various 

laws and executive orders for the 

counterpart Federal regulations. 

List of Subjects in 30 CFR Part 948 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: June 15, 2009. 

Thomas D. Shope, 

Regional Director, Appalachian Region. 

■ For the reasons set out in the 

preamble, 30 CFR part 948 is amended 

as set forth below: 

PART 948—WEST VIRGINIA 

■ 1. The authority citation for part 948 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. Section 948.15 is amended by 

adding a new entry to the table in 

chronological order by ‘‘Date of 

publication of final rule’’ to read as 

follows: 

§ 948.15 Approval of West Virginia 

regulatory program amendments. 

* * * * * 

Original amendment submission 

date Date of publication of final rule Citation/description of approved provisions 

* * * * * * * 

May 28, 2009 July 22, 2009 W. Va. Code 22–3–11(h)(1) (interim approval). 

[FR Doc. E9–16796 Filed 7–21–09; 8:45 am] 

BILLING CODE 4310–05–P 

POSTAL SERVICE 

39 CFR Part 111 

Express Mail Refunds for Shipments of 

Live Animals 

AGENCY: Postal ServiceTM. 

ACTION: Final rule. 

SUMMARY: The Postal Service is revising 

its standards for postage refunds for 

Express Mail® shipments of live animals 

in an effort to maintain the economic 

viability of shipping animals via 

Express Mail service. 

DATES: Effective Date: September 8, 

2009. 

FOR FURTHER INFORMATION CONTACT: Joel 

Rosen, 202–268–4329 or Monica Grein, 

202–268–8411. 

SUPPLEMENTARY INFORMATION: On April 

14, 2009, the Postal Service published a 

proposed rule in the Federal Register 

(74 FR 17128–17129) inviting comments 

on a revision to change the postage 

refund standards for Express Mail 

shipments of live animals delivered or 

attempted to be delivered within 3 days 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Rules and Regulations 36117 

of the date of mailing. After reviewing 

the comments, and upon further 

consideration of the proposed revisions, 

the Postal Service has decided to adopt 

the proposed regulations with minor 

revisions. 

As noted in the Supplementary 

Information section of the proposed 

rule, the Postal Service is revising the 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM®) to change the postage refund 

standards for Express Mail shipments of 

live animals delivered or attempted to 

be delivered within 3 days of the date 

of mailing. In some instances, the Postal 

Service must reroute Express Mail 

shipments of live animals to alternative 

flights or routes in order to protect the 

well-being of live animals. This is 

particularly necessary if other 

shipments on the same flight contain 

dry ice or solid carbon dioxide, which 

will evaporate en route and may 

displace oxygen. If live animals were 

shipped in the same cargo hold, the 

carbon dioxide could cause 

asphyxiation. The use of alternative 

flights and rerouting to protect the wellbeing of the live animals can delay 

shipments. Therefore, even though the 

live animals arrive as promptly as 

possible and alive, these shipments may 

not meet the scheduled delivery date. In 

those instances, some mailers then 

apply for full postage refunds. 

Currently, postage refunds for Express 

Mail shipments of live animals are 

granted based on the next-day or 

second-day delivery date scheduled at 

the time of mailing. This current postage 

refund policy does not account for the 

flight changes that may occur to protect 

the well-being of the animals. Therefore, 

under this final rule, postage refunds 

will not be available for Express Mail 

shipments of live animals delivered or 

attempted to be delivered within 3 days 

from the date of mailing. Postage refund 

requests for Express Mail shipments of 

live animals delivered after 3 days from 

the date of mailing may be granted. 

Evaluation of Comments Received 

The Postal Service received three sets 

of comments. One commenter suggested 

we stop shipping animals altogether. 

The Postal Service has determined that 

this suggestion is outside the scope of 

this final rule. 

One commenter suggested we add the 

proposed language for 601.9.3.4 to all 

the subsections under 601.9.3. The 

Postal Service added the proposed 

language only to the adult fowl section 

because this is the only type of animal 

for which Express Mail shipment is 

required. To be consistent, the Postal 

Service has decided to remove the 

proposed language from the adult fowl 

section and address the refund policy in 

the Postage Refund section only. 

The commenter also suggested that 

DMM section 601.9.3.2 is inconsistent 

with the proposed rules in that the 

proposal allows for an extended arrival 

time. The Postal Service believes that 

this suggestion does not recognize the 

limited purpose of this final rule. While 

the new rule extends the arrival time of 

Express Mail shipments of live animals 

before refunds may be granted, the 

acceptance time conditions as indicated 

in 601.9.3 remain unchanged. At the 

time of acceptance, the Postal Service 

cannot predict whether the shipment 

will be delayed due to procedures taken 

to preserve the life of the contents. 

Therefore, the dispatch, transportation, 

and delivery processes must continue to 

be governed by the estimated service 

standard provided at the time of 

mailing. 

Two commenters expressed concern 

regarding purposeful delays of live 

animal shipments. The Postal Service is 

not changing the way we handle live 

animals and is not making any 

operational changes. Our first priority is 

to keep live animals alive, and we will 

continue to provide the most 

expeditious handling that meets that 

priority. 

The Postal Service adopts the 

following changes to Mailing Standards 

of the United States Postal Service, 

Domestic Mail Manual, which is 

incorporated by reference in the Code of 

Federal Regulations. See 39 CFR 111. 

List of Subjects in 39 CFR Part 111 

Administrative practice and 

procedure, Postal Service. 

■ Accordingly, 39 CFR part 111 is 

amended as follows: 

PART 111—[AMENDED] 

■ 1. The authority citation for 39 CFR 

part 111 continues to read as follows: 

Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 

401, 403, 404, 414, 416, 3001–3011, 3201– 

3219, 3403–3406, 3621, 3622, 3626, 3632, 

3633, and 5001. 

■ 2. Revise the following sections of 

Mailing Standards of the United States 

Postal Service, Domestic Mail Manual 

(DMM) as follows: 

100 Retail Mail Letters, Cards, Flats, 

and Parcels 

* * * * * 

110 Retail Mail Express Mail 

* * * * * 

114 Postage Payment Methods 

* * * * * 

3.0 Postage Refunds 

3.1 Postage Not Refunded 

[Revise the introductory paragraph of 

3.1 to read as follows:] 

Postage refunds may not be available 

if delivery was attempted within the 

times required for the specific service, 

or for any of the following reasons: 

[Revise the first sentence of item a, 

and add a new item c as follows:] 

a. If the item was properly detained 

for law enforcement purpose; strike or 

work stoppage; delayed because of an 

incorrect ZIP Code or address; 

forwarding or return service was 

provided after the item was made 

available for claim; delay or cancellation 

of flights. * * * 

* * * * * 

c. The shipment contained live 

animals and was delivered or delivery 

was attempted within three days of the 

date of mailing as shown in the ‘‘Date 

In’’ box on Label 11. 

* * * * * 

400 Commercial Mail Parcels 

* * * * * 

410 Commercial Parcels Express Mail 

* * * * * 

414 Postage Payment and 

Documentation 

* * * * * 

3.0 Postage Refunds 

[Revise the introductory paragraph of 

3.0 to read as follows:] 

Postage refunds may not be available 

if delivery was attempted within the 

times required for the specific service, 

or for any of the following reasons: 

[Revise the first sentence of item a 

and add a new item c as follows:] 

a. If the item was properly detained 

for law enforcement purpose; strike or 

work stoppage; delayed because of an 

incorrect ZIP Code or address; 

forwarding or return service was 

provided after the item was made 

available for claim; delay or cancellation 

of flights. * * * 

* * * * * 

c. The shipment contained live 

animals and was delivered or delivery 

was attempted within three days of the 

date of mailing as shown in the ‘‘Date 

In’’ box on Label 11. 

* * * * * 

600 Basic Standards for All Mailing 

Services 

* * * * * 

604 Postage Payment Methods 

* * * * * 


jlentini on DSKJ8SOYB1PROD with RULES
36118 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Rules and Regulations 

9.0 Refunds and Exchanges 

* * * * * 

9.2 Postage and Fee Refunds 

* * * * * 

9.2.4 Full Refund 

A full refund (100%) may be made 

when: 

* * * * * 

[Revise item l to read as follows:] 

l. Express Mail is not delivered 

according to the applicable service 

standard, except as provided in 114.3.1 

and 414.3.0. * * * 

* * * * * 

Stanley F. Mires, 

Chief Counsel, Legislative. 

[FR Doc. E9–17124 Filed 7–21–09; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[HI–126–NBK; FRL–8916–9] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

Hawaii; Update to Materials 

Incorporated by Reference 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; notice of 

administrative change. 

SUMMARY: EPA is updating the materials 

submitted by the State of Hawaii that 

are incorporated by reference (IBR) into 

the State Implementation Plan (SIP). 

The regulations affected by this update 

have been previously submitted by the 

State of Hawaii and approved by EPA. 

This update affects the SIP materials 

that are available for public inspection 

at the National Archives and Records 

Administration (NARA), the Air and 

Radiation Docket and Information 

Center located EPA Headquarters in 

Washington, DC, and the Regional 

Office. 

DATES: Effective Date: This action is 

effective July 22, 2009. 

ADDRESSES: SIP materials which are 

incorporated by reference into 40 CFR 

part 52 are available for inspection at 

the following locations and online at 

EPA Region IX Web site: 

Air Division, Environmental Protection 

Agency, Region IX, 75 Hawthorne 

Street San Francisco, CA 94105–3901. 

Air and Radiation Docket and 

Information Center, U.S. 

Environmental Protection Agency, 

Headquarters Library, Room Number 

3334, EPA West Building, 1301 

Constitution Ave., NW., Washington, 

DC 20460. 

Office of the Federal Register, 800 North 

Capitol Street, NW., Suite 700, 

Washington, DC. 

If you wish to obtain materials from 

a docket in the EPA Headquarters 

Library, please call the Office of Air and 

Radiation (OAR) Docket/Telephone 

number: (202) 566–1742; or the National 

Archives and Records Administration 

(NARA). For information on the 

availability of this material at NARA, 

call 202–741–6030, or go to: http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

FOR FURTHER INFORMATION CONTACT: 

Cynthia G. Allen, (415) 947–4120 or by 

e-mail at allen.cynthia@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The SIP is a living document which 

the State revises as necessary to address 

the unique air pollution problems. 

Therefore, EPA from time to time must 

take action on SIP revisions containing 

new and/or revised regulations to make 

them part of the SIP. On May 22, 1997 

(62 FR 27968), EPA revised the 

procedures for incorporating by 

reference federally-approved SIPs, as a 

result of consultations between EPA and 

the Office of the Federal Register (OFR). 

The description of the revised SIP 

document, IBR procedures and 

‘‘Identification of plan’’ format are 

discussed in further detail in the May 

22, 1997 Federal Register document. On 

August 4, 2005 (70 FR 44852), as 

corrected on August 23, 2005 (70 FR 

49377), EPA published a document in 

the Federal Register beginning the new 

IBR procedure for the State of Hawaii. 

Today’s action is an update to the 

August 4, 2005 document. 

II. EPA Action 

In this document, EPA is doing the 

following: 

A. Announcing an update to the IBR 

material as of May 1, 2009; and 

B. Revising the entries in paragraphs 

52.620(b) and (c) to reflect this update. 

EPA has determined that today’s rule 

falls under the ‘‘good cause’’ exemption 

in section 553(b)(3)(B) of the 

Administrative Procedure Act (APA) 

which, upon finding ‘‘good cause,’’ 

authorizes agencies to dispense with 

public participation, and section 

553(d)(3) which allows an agency to 

make a rule effective immediately 

(thereby avoiding the 30-day delayed 

effective date otherwise provided for in 

the APA). Today’s rule simply codifies 

provisions which are already in effect as 

a matter of law. Under section 553 of the 

APA, an agency may find good cause 

where procedures are ‘‘impractical, 

unnecessary, or contrary to the public 

interest.’’ Public comment is 

‘‘unnecessary’’ and ‘‘contrary to the 

public interest’’ since the codification 

only reflects existing law. Likewise, 

there is no purpose served by delaying 

the effective date of this action. 

Immediate notice in the CFR benefits 

the public by removing outdated 

citations and incorrect chart entries. 

III. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

is therefore not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). Because the agency has made 

a ‘‘good cause’’ finding that this action 

is not subject to notice-and-comment 

requirements under the Administrative 

Procedure Act or any other statute as 

indicated in the SUPPLEMENTARY

INFORMATION section above, it is not 

subject to the regulatory flexibility 

provisions of the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), or to sections 

202 and 205 of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4). In addition, this action does not 

significantly or uniquely affect small 

governments or impose a significant 

intergovernmental mandate, as 

described in sections 203 and 204 of 

UMRA. 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

action also does not have Federalism 

implications because it does 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 (64 FR 43255, 

August 10, 1999). This rule also is not 

subject to Executive Order 13045, 

‘‘Protection of Children from 


jlentini on DSKJ8SOYB1PROD with RULES