1–24–08 Thursday Vol. 73 No. 16 Jan. 24, 2008

Pages 4051–4448

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The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.archives.gov. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge as one of the databases on GPO Access, a service of the U.S. Government Printing Office. The online edition of the Federal Register www.gpoaccess.gov/ nara, available through GPO Access, is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6 a.m. each day the Federal Register is published and includes both text and graphics from Volume 59, Number 1 (January 2, 1994) forward. For more information about GPO Access, contact the GPO Access User Support Team, call toll free 1-888-293-6498; DC area 202- 512-1530; fax at 202-512-1262; or via e-mail at [email protected]. The Support Team is available between 7:00 a.m. and 9:00 p.m. Eastern Time, Monday–Friday, except official holidays. The annual subscription price for the Federal Register paper edition is $749 plus postage, or $808, plus postage, for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $165, plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, is based on the number of pages: $11 for an issue containing less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Printing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1- 866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 73 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

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Contents Federal Register Vol. 73, No. 16

Thursday, January 24, 2008

Agriculture Department Corporation for National and Community Service See Commodity Credit Corporation NOTICES See Forest Service Agency Information Collection Activities; Proposals, Submissions, and Approvals, 4182–4183 Antitrust Division NOTICES Defense Acquisition Regulations System Public Comment and Response on Proposed Final RULES Judgment, 4268–4285 Defense Federal Acquisition Regulation Supplement: Closeout of Contract Files (DFARS Case 2006-D045), 4113–4114 Architectural and Transportation Barriers Compliance Combating Trafficking in Persons, 4115 Board Commercial Item Determinations, 4114 Payment Withholding - Deletion of Duplicative Text PROPOSED RULES (DFARS Case 2007-D010), 4116–4117 Telecommunications Act Accessibility Guidelines: Research and Development Contract Type Determination Electronic and Information Technology Accessibility (DFARS Case 2006-D053), 4117–4118 Standards; meeting, 4132 Technical Amendments, 4113 Trade Agreements - New Thresholds, 4115–4116 Centers for Medicare & Medicaid Services NOTICES See Inspector General Office, Health and Human Services Agency Information Collection Activities; Proposals, Department Submissions, and Approvals, 4188–4189

Children and Families Administration Defense Department NOTICES See Defense Acquisition Regulations System Agency Information Collection Activities; Proposals, See Navy Department Submissions, and Approvals, 4233–4234 NOTICES 36 (b)(1) Arms Sales Notification, 4183–4187 Agency Information Collection Activities; Proposals, Coast Guard Submissions, and Approvals, 4187–4188 RULES Federal Acquisition Regulation; Information Collection; Safety Zone: OMB Circular A-119, 4188 Trent River Between New Bern and James City, North Carolina, 4078–4080 Education Department NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 4249–4250 Submissions, and Approvals, 4195–4196 Application for Recertification of Prince William Sound Safe Schools/Healthy Students Program: Regional Citizens’ Advisory Council, 4251 Notice inviting applications for new awards for fiscal year (FY) 2008, 4196–4201 Commerce Department See International Trade Administration Energy Department See National Oceanic and Atmospheric Administration See Federal Energy Regulatory Commission See National Telecommunications and Information Administration Environmental Protection Agency See Patent and Trademark Office RULES Air quality implementation plans; approval and Commodity Credit Corporation promulgation; various States: NOTICES Connecticut, 4105–4109 Funds Availability: Approval and Promulgation of Implementation Plans: Inviting Applications for the Emerging Markets Program, New York; Clean Air Interstate Rule, 4109–4113 4172–4175 Revisions to the Continuous Emissions Monitoring Rule for the Acid Rain Program, NOx Budget Trading Program, Clean Air Interstate Rule, and the Clean Air Me, 4312– Comptroller of the Currency 4377 NOTICES Transportation Conformity Rule Amendments; Efficient Agency Information Collection Activities; Proposals, Transportation Equity Act, 4420–4441 Submissions, and Approvals, 4220–4229 PROPOSED RULES Air quality implementation plans; approval and Copyright Royalty Board, Library of Congress promulgation; various States: RULES Alabama, 4133–4136 Preexisting Subscription and Satellite Digital Audio Radio Emission Standards for Stationary Diesel Engines, 4136– Services; Determination of Rates and Terms, 4080–4104 4144

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NOTICES Federal Communications Commission Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 4205–4212 Ancillary or Supplementary Use of Digital Television Chlordecone (Kepone) Draft Toxicological Review; Capacity by Noncommercial Licensees, 4113 Integrated Risk Information System Summary NOTICES Information, 4213–4214 Consumer & Governmental Affairs Bureau Reports on the Clean Air Act Operating Permit Program: First Triennial Review of the Commission’s Policies Wisconsin Public Service Corp.; State Operating Permit and Practices, etc., 4218–4220 Objection Petition, 4214 Clean Water Act Section 303(d): Federal Deposit Insurance Corporation Arkansas Total Maximum Daily Loads, 4215–4216 NOTICES Arkansas Total Maximum Loads, 4215 Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 4220–4229 FIFRA Scientific Advisory Panel, 4216–4218 Federal Emergency Management Agency PROPOSED RULES Executive Office of the President Proposed Flood Elevation Determinations, 4144–4156 See Presidential Documents Withdrawal of Proposed Flood Elevation Determination for See Trade Representative, Office of United States the Unincorporated Areas of Richland County, South Carolina, 4156–4157 NOTICES Federal Aviation Administration Kansas; Amendment No. 1 to Notice of an Emergency RULES Declaration, 4251–4252 Airworthiness Directives: Major Disaster Declaration: Airbus Model A319 and A320 Series Airplanes, 4063– Washington, 4252 4066 Meetings: Boeing Model 727 Airplanes, 4053–4054 National Advisory Council, 4252–4253 Boeing Model 747-400, -400D, and -400F Series Nebraska; Major Disaster and Related Determinations, 4253 Airplanes; Boeing Model 757 Airplanes; and Boeing Nevada; Amendment No. 1 to Notice of a Major Disaster Model 767 Airplanes, 4066–4069 Declaration, 4253 Boeing Model 767 200 and 767 300 Series Airplanes, Oregon; Amendment No. 6 to Notice of a Major Disaster 4061–4063 Declaration, 4253–4254 Cessna Aircraft Company 172 and 182 Series Airplanes, 4051–4053 Federal Energy Regulatory Commission DG Flugzeugbau GmbH Model DG-500MB Gliders PROPOSED RULES Correction, 4051 Transparency Provision under Section 23 of the Natural Eurocopter France Model SA332C, L, L1, and L2 Gas Act, 4131 Helicopters, 4055–4057 NOTICES General Electric Company CF6 50, 80A1/A3, and 80C2A Combined Notice of Filings No. 1 Series Turbofan Engines, 4057–4059 Iroquois Gas Transmission System, L.P., et al., 4201–4202 McDonnell Douglas Model 717 200 Airplanes, 4059–4061 Northern Indiana Public Service Company, et al., 4202– Amendment of Class E Airspace: 4204 Issuance Order: Pottsville, PA, 4070 Alpha Domestic Power Trading, LLC, 4204 St. Marys, PA, 4069–4070 Notice of Complaint: State College, PA, 4070–4071 Maryland Public Service Commission Establishment of Class E Airspace; Springfield, CO; PJM interconnection, L.L.C., 4204–4205 Correction, 4071 Santa Maria Cogen, Inc.; Notice of Issuance of Order, 4205 Standard Instrument Approach Procedures: Trunkline Gas Company, LLC; Errata Notice, 4205 Miscellaneous Amendments, 4075–4077 Standard Instrument Approach Procedures, and Takeoff Federal Highway Administration Minimums and Obstacle Departure Procedures: NOTICES Amendments, 4073–4075 Environmental Impact Statement; Notice of Intent: Miscellaneous Amendments, 4071–4073 Mariposa County, California, 4302–4303 PROPOSED RULES Airworthiness Directives: Federal Maritime Commission Airbus Model A318, A319, A320, and A321 Series NOTICES Airplanes Equipped with Certain Northrop Grumman Agreements Filed, 4229–4230 Air Data Inertial Reference Units, 4129–4131 APEX Aircraft Model CAP 10 B Airplanes, 4121–4125 Federal Reserve System Bombardier Model CL 600 2B19 (Regional Jet Series 100 NOTICES & 440) Airplanes, 4125–4127 Agency Information Collection Activities; Proposals, Pacific Aerospace Limited Models FU24-954 and FU24A- Submissions, and Approvals, 4220–4229 954 Airplanes, 4127–4129 NOTICES Federal Trade Commission Meetings: NOTICES Aircraft Certification Service Meet the Regulators Herbs Nutrition Corporation, et al.; Analysis of Proposed Information Sharing and Listening, 4302 Consent Order to Aid Public Comment, 4230–4231

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Life is good, Inc., and Life is good Retail, Inc.; Analysis of Internal Revenue Service Proposed Consent Order to Aid Public Comment, PROPOSED RULES 4231–4233 Consolidated Returns; Intercompany Obligations; Hearing, 4131–4132 Fish and Wildlife Service NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Endangered and Threatened Wildlife and Plants: Submissions, and Approvals, 4307–4308 12-Month Finding on Petition to List the Siskiyou Art Advisory Panel Renewal, 4308 Mountains Salamander and Scott Bar Salamander as Threatened or Endangered, 4380–4418 International Trade Administration NOTICES NOTICES Environmental Impact Report/Statement; Notice of Intent: Helical Spring Lock Washers from the Peoples Republic of Regarding the Bay Delta Conservation Plan (BDCP) for the China: Sacramento-San Joaquin Delta, California, 4178–4180 Final Results of Antidumping Duty Administrative Review, 4175–4176 Food and Drug Administration RULES Justice Department Oral Dosage Form New Animal Drugs; Clindamycin, 4077 See Antitrust Division NOTICES Agency Information Collection Activities; Proposals, Labor Department Submissions, and Approvals, 4234–4235 NOTICES Agency Information Collection Activities; Proposals, Forest Service Submissions, and Approvals, 4286 NOTICES Wasatch-Cache National Forest, Utah; West Bear Landscape Land Management Bureau Management Project, 4175 NOTICES Eastern States: Filing of Plat of Survey, 4264 General Services Administration Meetings: NOTICES Twin Falls District Resource Advisory Council, 4264 Agency Information Collection Activities; Proposals, Proposed Reinstatement of Terminated Oil and Gas Lease, Submissions, and Approvals, 4187–4188 4265 Federal Acquisition Regulation; Information Collection; Realty Action: OMB Circular A-119, 4188 Direct and Competitive Sales of Public Land, Idaho and General Services Administration Acquisition Regulation: Proposed Plan Amendment, 4265–4268 Information Collection, 4233 Library of Congress Health and Human Services Department See Copyright Royalty Board, Library of Congress See Children and Families Administration National Aeronautics and Space Administration See Food and Drug Administration NOTICES See Indian Health Service Agency Information Collection Activities; Proposals, See Inspector General Office, Health and Human Services Submissions, and Approvals, 4187–4188 Department Federal Acquisition Regulation; Information Collection; OMB Circular A-119, 4188 Homeland Security Department See Coast Guard National Credit Union Administration See Federal Emergency Management Agency NOTICES See U.S. Customs and Border Protection Community Development Revolving Loan Fund for Credit Unions, 4286–4287 Indian Health Service NOTICES National Highway Traffic Safety Administration Native American Research Centers for Health (NARCH) PROPOSED RULES Grants Announcement Type: Tire Registration and Recordkeeping, 4157–4171 New and Competing Continuations Funding NOTICES Announcement Number: HHS-2009-IHS-NARCHV- Agency Information Collection Activities; Proposals, 0001 Catalog of Federal Domestic Assistance Submissions, and Approvals, 4303–4304 Number: 93.933, 4235–4248 Petition for Exemption from the Vehicle Theft Prevention Standard: Inspector General Office, Health and Human Services Hyundia-Kia America Technical Center, Inc., 4304–4305 Department National Oceanic and Atmospheric Administration NOTICES RULES Nursing Facilities Compliance Program Guidance Revision; Taking of Marine Mammals Incidental to Commercial Information and Recommendation Solicitation, 4248– Fishing Operations; Atlantic Large Whale Take 4249 Reduction Plan, 4118–4120 NOTICES Interior Department Endangered and Threatened Species: See Fish and Wildlife Service Final Recovery Plan for Southern Resident Killer Whales, See Land Management Bureau 4176–4177

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Environmental Impact Report/Statement; Notice of Intent: State Department Regarding the Bay Delta Conservation Plan (BDCP) for the RULES Sacramento-San Joaquin Delta, California, 4178–4180 Passports; Correction, 4077–4078 NOTICES National Telecommunications and Information Border Crossing Facility, U.S.-Mexico Border, San Diego, Administration CA and Tijuana, Baja California, Mexico; Presidential Permit Application, 4300–4301 NOTICES Culturally Significant Objects Imported for Exhibition Meetings: Determinations: Internet Domain Name and Addressing System: Midterm Khatchkar of Lori, 4301 Review of the Joint Project Agreement, 4181 Rococo: The Continuing Curve, 1730-2008, 4301 Works by Frans Hals and Philips Wouwerman, 4301– Navy Department 4302 NOTICES Decision Memorandum; Alternative Arrangements for Thrift Supervision Office Southern California Operating Area: NOTICES Composite Training Unit Exercises and Joint Task Force Agency Information Collection Activities; Proposals, Exercises Scheduled Between Today and January Submissions, and Approvals, 4220–4229, 4308–4309 2009, 4189–4193 Hiring or Indemnifying Senior Executive Officers or Privacy Act; Systems of Records, 4193–4195 Directors, 4309 Nuclear Regulatory Commission Trade Representative, Office of United States NOTICES Meetings: NOTICES WTO Dispute Settlement Proceedings Regarding Measures Advisory Committee on Reactor Safeguards, 4287–4288 of European Communities Affecting the Approval and Reactor Safeguards Advisory Committee, 4288 Marketing of Biotech Products, 4288–4290

Office of United States Trade Representative Transportation Department See Trade Representative, Office of United States See Federal Aviation Administration See Federal Highway Administration Patent and Trademark Office See National Highway Traffic Safety Administration NOTICES See Pipeline and Hazardous Materials Safety National Medal of Technology and Innovation Call for 2008 Administration Nominations, 4181–4182 NOTICES National Model of Technology and Innovation Nomination Meetings: Evaluation Committee, 4182 National Surface Transportation Infrastructure Financing Commission, 4302 Pipeline and Hazardous Materials Safety Administration NOTICES Treasury Department Notice of Application for Special Permits, 4305–4306 See Comptroller of the Currency Notice of Applications for Modification of Special Permit, See Internal Revenue Service 4306–4307 See Thrift Supervision Office

Presidential Documents U.S. Customs and Border Protection EXECUTIVE ORDERS NOTICES Committees; establishment, renewal, termination, etc.: Meetings: Financial Literacy, President’s Advisory Council on; Departmental Advisory Committee— establishment (EO 13455), 4443–4447 Commercial Operations of Customs and Border Protection and Related Homeland Security Securities and Exchange Commission Functions, 4254 NOTICES Transaction Value Method; Proposed Interpretation and Agency Information Collection Activities; Proposals, Comment Request, 4254–4264 Submissions, and Approvals, 4290–4292 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 4292–4293 Chicago Board Options Exchange, Inc., 4293–4295 Separate Parts In This Issue Financial Industry Regulatory Authority, Inc., 4295–4297 The Options Clearing Corporation, 4297–4299 Part II Environmental Protection Agency, 4312–4377 Small Business Administration NOTICES Mississippi Disaster No. MS-00014, 4299 Part III Missouri Disaster Number MO-00019, 4299–4300 Interior Department, Fish and Wildlife Service, 4380–4418 Nebraska Disaster No. NE-00018, 4300 Nevada Disaster Number NV-00008, 4300 Part IV Washington Disaster Number WA-00015, 4300 Environmental Protection Agency, 4420–4441

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Part V To subscribe to the Federal Register Table of Contents Executive Office of the President, Presidential Documents, LISTSERV electronic mailing list, go to http:// 4443–4447 listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Executive Orders: 13455...... 4445 14 CFR 39 (9 documents) ...4051, 4053, 4055, 4057, 4059, 4061, 4063, 4066 71 (4 documents) ...4069, 4070, 4071 97 (3 documents) ...4071, 4073, 4075 Proposed Rules: 39 (5 documents) ...4121, 4123, 4125, 4127, 4129 18 CFR Proposed Rules: 284...... 4131 21 CFR 510...... 4077 520...... 4077 22 CFR 51...... 4077 26 CFR Proposed Rules: 1...... 4131 33 CFR 165...... 4078 36 CFR Proposed Rules: 1193...... 4132 1194...... 4132 37 CFR 382...... 4080 40 CFR 51...... 4420 52 (2 documents) ....4105, 4109 72...... 4312 75...... 4312 93...... 4420 Proposed Rules: 52...... 4133 63...... 4136 44 CFR Proposed Rules: 67 (2 documents) ....4144, 4156 47 CFR 73...... 4113 48 CFR 204 (2 documents) ...... 4113 207...... 4114 212 (2 documents) ...... 4114, 4115 222...... 4115 225 (2 documents) ...... 4113, 4115 232...... 4116 234...... 4117 235...... 4117 244...... 4113 252 (2 documents) ...... 4115, 4116 49 CFR Proposed Rules: 574...... 4157 50 CFR 229...... 4118 Proposed Rules: 17...... 4380

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Rules and Regulations Federal Register Vol. 73, No. 16

Thursday, January 24, 2008

This section of the FEDERAL REGISTER 39–15317 (73 FR 400, January 3, 2008), DEPARTMENT OF TRANSPORTATION contains regulatory documents having general which applies to all DG Flugzeugbau applicability and legal effect, most of which GmbH Model DG–500MB gliders. AD Federal Aviation Administration are keyed to and codified in the Code of 2007–26–15 requires you to modify the Federal Regulations, which is published under 14 CFR Part 39 50 titles pursuant to 44 U.S.C. 1510. affected parts and exchange pages in the flight, maintenance, and repair manuals. [Docket No. FAA–2007–29317; Directorate The Code of Federal Regulations is sold by Current language in § 39.13 [Amended] Identifier 2007–CE–079–AD; Amendment the Superintendent of Documents. Prices of of AD 2007–26–15 references ‘‘2007– 39–15348; AD 2008–02–18] new books are listed in the first FEDERAL 26–25’’ instead of ‘‘2007–26–15.’’ REGISTER issue of each week. RIN 2120–AA64 Need for the Correction Airworthiness Directives; Cessna DEPARTMENT OF TRANSPORTATION This correction is needed to specify Aircraft Company 172 and 182 Series the correct AD number of AD 2007–26– Airplanes Federal Aviation Administration 15. AGENCY: Federal Aviation Correction of Publication Administration (FAA), Department of 14 CFR Part 39 Transportation (DOT). [Docket No. FAA–2007–28843 Directorate I Accordingly, the publication of ACTION: Final rule. Identifier 2007–CE–065–AD; Amendment January 3, 2008 (73 FR 400), of 39–15317; AD 2007–26–15] SUMMARY: We are adopting a new Amendment 39–15317; AD 2007–26–15, airworthiness directive (AD) for certain RIN 2120–AA64 which was the subject of FR Doc. E7– Cessna Aircraft Company 172 series 25212, is corrected as follows: Airworthiness Directives; DG airplanes with the BRS–172 Parachute I Flugzeugbau GmbH Model DG–500MB On page 400, in the second column, System installed via Supplemental Type Gliders in the third line under the heading 14 Certificate (STC) No. SA01679CH and CFR Part 39, replace ‘‘2007–26–25’’ with Cessna Aircraft Company 182 series AGENCY: Federal Aviation ‘‘2007–26–15.’’ airplanes that are equipped with the Administration (FAA), DOT. BRS–182 Parachute System installed via § 39.13 [Corrected] ACTION: Final rule; correction. STC No. SA01999CH. This AD requires I On page 401 in the second column, in you to replace the pick-up collar SUMMARY: This document makes a the third line under the heading § 39.13 support and nylon screws for the BRS– correction to Airworthiness Directive [Amended], replace ‘‘2007–26–25’’ with 172 and BRS–182 Parachute System. (AD) 2007–26–15, which was published ‘‘2007–26–15.’’ This AD results from notification by in the Federal Register on January 3, Ballistic Recovery Systems, Inc. (BRS) 2008 (73 FR 400), and applies to all DG I Action is taken herein to correct this that the pick-up collar assembly may Flugzeugbau GmbH Model DG–500MB reference in AD 2007–26–15 and to add prematurely move off the launch tube gliders. AD 2007–26–15 requires that this AD correction to section 39.13 of and adversely affect rocket trajectory you modify the affected parts and the Federal Aviation Regulations (14 during deployment. We are issuing this exchange pages in the flight, CFR 39.13). AD to prevent premature separation of maintenance, and repair manuals. The I The effective date remains February 7, the collar, which could result in the FAA incorrectly referenced the AD 2008. parachute failing to successfully deploy. number as ‘‘2007–26–25’’ instead of DATES: This AD becomes effective on ‘‘2007–26–15.’’ Current language in Issued in Kansas City, Missouri, on January 11, 2008. February 28, 2008. § 39.13 [Amended] of AD 2007–26–15 On February 28, 2008, the Director of references ‘‘AD 2007–26–25’’ instead of John Colomy, the Federal Register approved the ‘‘2007–26–15.’’ This document corrects Acting Manager, Small Airplane Directorate, incorporation by reference of certain that paragraph by replacing the Aircraft Certification Service. publications listed in this AD. reference of ‘‘2007–26–25’’ with ‘‘2007– [FR Doc. E8–830 Filed 1–23–08; 8:45 am] ADDRESSES: For service information 26–15.’’ BILLING CODE 4910–13–P identified in this AD, contact Ballistic DATES: The effective date of this AD Recovery Systems, Inc., 300 Airport (2007–26–15) remains February 7, 2008. Road, South Saint Paul, MN 55075– FOR FURTHER INFORMATION CONTACT: Greg 3551; telephone: (651) 457–7491; fax: Davison, Glider Program Manager, FAA, (651) 457–8651. Small Airplane Directorate, 901 Locust, To view the AD docket, go to U.S. Room 301, Kansas City, Missouri 64106; Department of Transportation, Docket telephone: (816) 329–4130; fax: (816) Operations, M–30, West Building 329–4090. Ground Floor, Room W12–140, 1200 SUPPLEMENTARY INFORMATION: New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at http:// Discussion www.regulations.gov. The docket On December 20, 2007, the FAA number is FAA–2007–29317; issued AD 2007–26–15, Amendment Directorate Identifier 2007–CE–079–AD.

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FOR FURTHER INFORMATION CONTACT: was published in the Federal Register safety and the public interest require Gregory Michalik, Senior Aerospace as a notice of proposed rulemaking adopting the AD as proposed except for Engineer, 2300 East Devon Avenue, (NPRM) on November 2, 2007 (72 FR minor editorial corrections. We have Room 107, Des Plaines, Illinois 60018; 62143). The NPRM proposed to require determined that these minor telephone: (847) 294–7135; fax: (847) the replacement of the pick-up collar corrections: 294–7834. support and screws for the BRS–172 and • Are consistent with the intent that BRS–182 Parachute System. SUPPLEMENTARY INFORMATION: was proposed in the NPRM for Comments correcting the unsafe condition; and Discussion • We provided the public the Do not add any additional burden On November 2, 2007, we issued a opportunity to participate in developing upon the public than was already proposal to amend part 39 of the Federal this AD. We received no comments on proposed in the NPRM. Aviation Regulations (14 CFR part 39) to the proposal or on the determination of Costs of Compliance include an AD that would apply to the cost to the public. certain Cessna Aircraft Company 172 We estimate that this AD affects 54 and 182 series airplanes that are Conclusion airplanes in the U.S. registry. equipped with the BRS–172 and BRS– We have carefully reviewed the We estimate the following costs to do 182 Parachute System. This proposal available data and determined that air the modification:

Total cost per Total cost on Labor cost Parts cost airplane U.S. operators

1 work-hour × $80 per hour = $80 ...... Not Applicable ...... $80 $4,320

Note: BRS will provide warranty credit to 2. Is not a ‘‘significant rule’’ under the Effective Date the extent noted in Ballistic Recovery DOT Regulatory Policies and Procedures (a) This AD becomes effective on February Systems, Inc. Service Bulletins SB 07–01 and (44 FR 11034, February 26, 1979); and 28, 2008. SB 07–02, both dated June 8, 2007. 3. Will not have a significant Affected ADs economic impact, positive or negative, Authority for This Rulemaking on a substantial number of small entities (b) None. Title 49 of the United States Code under the criteria of the Regulatory Applicability specifies the FAA’s authority to issue Flexibility Act. (c) This AD applies to the following rules on aviation safety. Subtitle I, We prepared a summary of the costs airplane models, all serial numbers, Section 106 describes the authority of to comply with this AD (and other certificated in any category, that are the FAA Administrator. Subtitle VII, information as included in the equipped with: Regulatory Evaluation) and placed it in (1) BRS–172 Parachute System installed Aviation Programs, describes in more via Supplemental Type Certificate (STC) No. detail the scope of the agency’s the AD Docket. You may get a copy of this summary by sending a request to us SA01679CH, or authority. (2) BRS–182 Parachute System installed at the address listed under ADDRESSES. via STC No. SA01999CH. We are issuing this rulemaking under Include ‘‘Docket No. FAA–2007–29317; the authority described in Subtitle VII, Directorate Identifier 2007–CE–079– Cessna 172 models Cessna 182 models Part A, Subpart III, Section 44701, AD’’ in your request. ‘‘General requirements.’’ Under that 172 182G section, Congress charges the FAA with List of Subjects in 14 CFR Part 39 172A 182H promoting safe flight of civil aircraft in Air transportation, Aircraft, Aviation 172B 182J air commerce by prescribing regulations safety, Incorporation by reference, 172C 182K for practices, methods, and procedures Safety. 172D 182L the Administrator finds necessary for 172E 182M safety in air commerce. This regulation Adoption of the Amendment 172F (USAF T–41A) 182N 172G 182P is within the scope of that authority I Accordingly, under the authority 172H (USAF T–41A) 182Q because it addresses an unsafe condition delegated to me by the Administrator, 172I 182R that is likely to exist or develop on the Federal Aviation Administration 172K 182S products identified in this AD. amends part 39 of the Federal Aviation 172L 182T Regulations (14 CFR part 39) as follows: 172M T182 Regulatory Findings 172N T182T 172P We have determined that this AD will PART 39—AIRWORTHINESS DIRECTIVES 172Q not have federalism implications under 172R Executive Order 13132. This AD will I 1. The authority citation for part 39 172S not have a substantial direct effect on continues to read as follows: R172J the States, on the relationship between R172K the national government and the States, Authority: 49 U.S.C. 106(g), 40113, 44701. or on the distribution of power and § 39.13 [Amended] Unsafe Condition responsibilities among the various I 2. FAA amends § 39.13 by adding the (d) This AD results from notification by levels of government. Ballistic Recovery Systems, Inc. (BRS) that following new AD: For the reasons discussed above, I the pick-up collar assembly may prematurely move off the launch tube and adversely affect certify that this AD: 2008–02–18 Cessna Aircraft Company: Amendment 39–15348; Docket No. rocket trajectory during deployment. We are 1. Is not a ‘‘significant regulatory FAA–2007–29317; Directorate Identifier issuing this AD to prevent premature action’’ under Executive Order 12866; 2007–CE–079–AD. separation of the collar. This condition could

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result in the parachute failing to successfully Compliance deploy. (e) To address this problem, you must do the following, unless already done:

Actions Compliance Procedures

Remove and replace the pick-up collar support Within the next 25 hours time-in-service after (i) For Cessna 172 series airplanes follow and two retaining screws. February 28, 2008 (the effective date of this BRS SB 07–01, dated June 8, 2007. AD). (ii) For Cessna 182 series airplanes, follow BRS SB 07–02, dated June 8, 2007.

Alternative Methods of Compliance DEPARTMENT OF TRANSPORTATION 1200 New Jersey Avenue, SE., (AMOCs) Washington, DC 20590. Federal Aviation Administration (f) The Manager, Chicago Aircraft FOR FURTHER INFORMATION CONTACT: Certification Office, FAA, has the authority to Berhane Alazar, Aerospace Engineer, 14 CFR Part 39 approve AMOCs for this AD, if requested Airframe Branch, ANM–120S, FAA, using the procedures found in 14 CFR 39.19. [Docket No. FAA–2007–28884; Directorate Seattle Aircraft Certification Office, Send information to ATTN: Gregory Identifier 2007–NM–116–AD; Amendment 1601 Lind Avenue, SW., Renton, Michalik, Senior Aerospace Engineer, FAA, 39–15343; AD 2008–02–13] Washington 98057–3356; telephone 2300 East Devon Avenue, Des Plaines, RIN 2120–AA64 (425) 917–6577; fax (425) 917–6590. Illinois, 60018; telephone: (847) 294–7135; SUPPLEMENTARY INFORMATION: fax: (847) 294–7834; e-mail: Airworthiness Directives; Boeing [email protected]. Before using any Model 727 Airplanes Discussion approved AMOC on any airplane to which the AMOC applies, notify your appropriate AGENCY: Federal Aviation We issued a notice of proposed principal inspector (PI) in the FAA Flight Administration (FAA), DOT. rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness Standards District Office (FSDO), or lacking ACTION: Final rule. a PI, your local FSDO. directive (AD) that would apply to all SUMMARY: We are adopting a new Boeing Model 727 airplanes. That Material Incorporated by Reference airworthiness directive (AD) for all NPRM was published in the Federal (g) You must use Ballistic Recovery Boeing Model 727 airplanes. This AD Register on August 8, 2007 (72 FR Systems, Inc. Service Bulletin No. 07–01, requires repetitive external high 44433). That NPRM proposed to require dated June 8, 2007, for Cessna 172 series frequency eddy current (HFEC) repetitive external high frequency eddy airplanes; or Ballistic Recovery Systems, Inc. inspections of the crown skin for cracks current (HFEC) inspections of the crown Service Bulletin No. 07–02, dated June 8, at certain stringer attachment holes, and skin for cracks at certain stringer 2007, for Cessna 182 series airplanes; to do repair if necessary. This AD results from attachment holes, and repair if the actions required by this AD, unless the a report of cracks at multiple locations necessary. AD specifies otherwise. on certain areas of the crown skin. We Comments (1) The Director of the Federal Register are issuing this AD to detect and correct approved the incorporation by reference of fatigue cracks of the crown skin, which We gave the public the opportunity to this service information under 5 U.S.C. could result in rapid decompression of participate in developing this AD. We 552(a) and 1 CFR part 51. the airplane. considered the comment received from (2) For service information identified in DATES: This AD is effective February 28, the commenter. this AD, contact Ballistic Recovery Systems, 2008. Request to Delegate Approval of Inc., 300 Airport Road, South Saint Paul, MN The Director of the Federal Register 55075–3551; telephone: (651) 457–7491; fax: Alternative Methods of Compliance approved the incorporation by reference (AMOC) for Repairs (651) 457–8651. of a certain publication listed in this AD (3) You may review copies at the FAA, as of February 28, 2008. Boeing requests that paragraph (h) of Central Region, Office of the Regional ADDRESSES: For service information the NPRM be revised to allow AMOCs Counsel, 901 Locust, Kansas City, Missouri identified in this AD, contact Boeing for any required repair to be approved 64106; or at the National Archives and by an Authorized Representative for the Records Administration (NARA). For Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124–2207. Boeing Commercial Airplanes information on the availability of this Delegation Option Authorization material at NARA, call 202–741–6030, or go Examining the AD Docket _ Organization who has been authorized to: http://www.archives.gov/federal register/ You may examine the AD docket on by the Manager, Seattle Aircraft code_of_federal_regulations/ the Internet at http:// Certification Office. ibr_locations.html. www.regulations.gov; or in person at the We agree with Boeing’s request and Issued in Kansas City, Missouri, on January Docket Management Facility between 9 have revised paragraph (h) of the AD 16, 2008. a.m. and 5 p.m., Monday through accordingly. James E. Jackson, Friday, except Federal holidays. The AD Conclusion Acting Manager, Small Airplane Directorate, docket contains this AD, the regulatory Aircraft Certification Service. evaluation, any comments received, and We reviewed the relevant data, [FR Doc. E8–1130 Filed 1–23–08; 8:45 am] other information. The address for the considered the comment received, and Docket Office (telephone 800–647–5527) determined that air safety and the BILLING CODE 4910–13–P is the Document Management Facility, public interest require adopting the AD U.S. Department of Transportation, with the change described previously. Docket Operations, M–30, West We also determined that this change Building Ground Floor, Room W12–140, will not increase the economic burden

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on any operator or increase the scope of List of Subjects in 14 CFR Part 39 manufacturer, this AD does not include that requirement. the AD. Air transportation, Aircraft, Aviation Costs of Compliance safety, Incorporation by reference, Alternative Methods of Compliance Safety. (AMOCs) There are about 842 airplanes of the Adoption of the Amendment (h)(1) The Manager, Seattle Aircraft affected design in the worldwide fleet. Certification Office (ACO), FAA, has the This AD affects about 459 airplanes of I Accordingly, under the authority authority to approve AMOCs for this AD, if U.S. registry. The inspection takes about delegated to me by the Administrator, requested in accordance with the procedures 110 work hours per airplane, at an the FAA amends 14 CFR part 39 as found in 14 CFR 39.19. average labor rate of $80 per work hour. follows: (2) To request a different method of Based on these figures, the estimated compliance or a different compliance time cost of the AD for U.S. operators is PART 39—AIRWORTHINESS for this AD, follow the procedures in 14 CFR $4,039,200, or $8,800 per airplane, per DIRECTIVES 39.19. Before using any approved AMOC on inspection cycle. any airplane to which the AMOC applies, I 1. The authority citation for part 39 notify your appropriate principal inspector Authority for This Rulemaking continues to read as follows: (PI) in the FAA Flight Standards District Title 49 of the United States Code Authority: 49 U.S.C. 106(g), 40113, 44701. Office (FSDO), or lacking a PI, your local FSDO. specifies the FAA’s authority to issue § 39.13 [Amended] rules on aviation safety. Subtitle I, (3) An AMOC that provides an acceptable I section 106, describes the authority of 2. The Federal Aviation level of safety may be used for any repair required by this AD, if it is approved by an the FAA Administrator. ‘‘Subtitle VII: Administration (FAA) amends § 39.13 Authorized Representative for the Boeing Aviation Programs,’’ describes in more by adding the following new Commercial Airplanes Delegation Option detail the scope of the Agency’s airworthiness directive (AD): Authorization Organization who has been 2008–02–13 Boeing: Amendment 39–15343. authority. authorized by the Manager, Seattle ACO, to Docket No. FAA–2007–28884; We are issuing this rulemaking under Directorate Identifier 2007–NM–116–AD. make those findings. For a repair method to the authority described in ‘‘Subtitle VII, be approved, the repair must meet the Part A, Subpart III, Section 44701: Effective Date certification basis of the airplane, and the General requirements.’’ Under that (a) This airworthiness directive (AD) is approval must specifically refer to this AD. section, Congress charges the FAA with effective February 28, 2008. Material Incorporated by Reference promoting safe flight of civil aircraft in Affected ADs air commerce by prescribing regulations (i) You must use Boeing Alert Service (b) None. for practices, methods, and procedures Bulletin 727–53A0224, dated April 10, 2003, the Administrator finds necessary for Applicability unless the AD specifies otherwise. safety in air commerce. This regulation (c) This AD applies to all Boeing Model (1) The Director of the Federal Register is within the scope of that authority 727, 727C, 727–100, 727–100C, 727–200, and approved the incorporation by reference of because it addresses an unsafe condition 727–200F series airplanes, certificated in any this service information under 5 U.S.C. that is likely to exist or develop on category. 552(a) and 1 CFR part 51. (2) For service information identified in products identified in this rulemaking Unsafe Condition this AD, contact Boeing Commercial action. (d) This AD results from a report of cracks Airplanes, P.O. Box 3707, Seattle, Regulatory Findings at multiple locations on certain areas of the Washington 98124–2207. crown skin. We are issuing this AD to detect (3) You may review copies of the service and correct fatigue cracks of the crown skin, This AD will not have federalism information incorporated by reference at the implications under Executive Order which could result in rapid decompression of the airplane. FAA, Transport Airplane Directorate, 1601 13132. This AD will not have a Lind Avenue, SW., Renton, Washington; or at substantial direct effect on the States, on Compliance the National Archives and Records the relationship between the national (e) You are responsible for having the Administration (NARA). For information on government and the States, or on the actions required by this AD performed within the availability of this material at NARA, call distribution of power and the compliance times specified, unless the 202–741–6030, or go to: http:// responsibilities among the various actions have already been done. www.archives.gov/federal_register/ _ _ _ levels of government. Repetitive Inspections and Repair code of federal regulations/ ibr_locations.html. For the reasons discussed above, I (f) Before the accumulation of 66,000 total certify that this AD: flight cycles, or within 3,500 flight cycles Issued in Renton, Washington, on January after the effective date of this AD, whichever (1) Is not a ‘‘significant regulatory 14, 2008. occurs later, do an external high frequency Stephen P. Boyd, action’’ under Executive Order 12866, eddy current inspection of the crown skin for (2) Is not a ‘‘significant rule’’ under cracks at stringer attachment holes between Assistant Manager, Transport Airplane DOT Regulatory Policies and Procedures stringer 11 left and stringer 11 right and from Directorate, Aircraft Certification Service. (44 FR 11034, February 26, 1979), and body station (BS) 259.5 to BS 1183. Repair [FR Doc. E8–1129 Filed 1–23–08; 8:45 am] any crack found before further flight. Do the BILLING CODE 4910–13–P (3) Will not have a significant actions in accordance with the economic impact, positive or negative, Accomplishment Instructions of Boeing Alert on a substantial number of small entities Service Bulletin 727–53A0224, dated April under the criteria of the Regulatory 10, 2003, except as provided by paragraph (g) Flexibility Act. of this AD. Repeat the inspection at intervals not to exceed 3,500 flight cycles. You can find our regulatory (g) Although Boeing Alert Service Bulletin evaluation and the estimated costs of 727–53A0224, dated April 10, 2003, specifies compliance in the AD Docket. to submit certain information to the

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DEPARTMENT OF TRANSPORTATION Examining the AD Docket Relevant Service Information Federal Aviation Administration You may examine the AD docket on ECF has issued Alert Service Bulletin the Internet at http:// No. 67.00.36, dated October 9, 2006. 14 CFR Part 39 www.regulations.gov or in person at the The actions described in the MCAI are Docket Operations office between 9 a.m. intended to correct the same unsafe [Docket No. FAA–2008–0044; Directorate and 5 p.m., Monday through Friday, condition as that identified in the Identifier 2007–SW–40–AD; Amendment 39– except Federal holidays. The AD docket service information. 15341; AD 2008–02–11] contains this AD, the economic FAA’s Determination and Requirements evaluation, any comments received, and RIN 2120-AA64 of This AD other information. The street address for Airworthiness Directives; Eurocopter the Docket Operations office (telephone This product has been approved by France Model SA332C, L, L1, and L2 (800) 647–5527) is in the ADDRESSES the aviation authority of the member Helicopters section. Comments will be available in states of the European community and the AD docket shortly after receipt. is approved for operation in the United AGENCY: Federal Aviation States. Pursuant to our bilateral Administration (FAA), Department of FOR FURTHER INFORMATION CONTACT: agreement with France, the State of Transportation (DOT). Uday Garadi, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Regulations Design, a member of the European ACTION: Final rule; request for community, we have been notified of comments. and Guidance Group, Fort Worth, Texas 76193–0110, telephone (817) 222–5123, the unsafe condition described in the MCAI and service information. We are SUMMARY: We are adopting a new fax (817) 222–5961. airworthiness directive (AD) for the issuing this AD because we evaluated SUPPLEMENTARY INFORMATION: specified Eurocopter France (ECF) all pertinent information and model helicopters. This AD results from Streamlined Issuance of AD determined the unsafe condition exists mandatory continuing airworthiness and is likely to exist or develop on other information (MCAI) originated by an The FAA is implementing a new products of these same type designs. aviation authority to identify and process for streamlining the issuance of Differences Between the AD and the correct an unsafe condition on an ADs related to MCAI. This streamlined MCAI or Service Information aviation product. The European Safety process will allow us to adopt MCAI Agency (EASA), the Technical Agent for safety requirements in a more efficient We have reviewed the MCAI and France, with which we have a bilateral manner and will reduce safety risks to related service information and, in agreement, states in the MCAI: the public. This process continues to general, agree with their substance. follow all FAA AD issuance processes to However, our AD differs from the MCAI This Airworthiness Directive (AD) is meet legal, economic, Administrative and service information as follows: We issued following the failure of an attachment bolt securing the main rotor RH servo-control Procedure Act, and Federal Register have changed the word ‘‘check’’ to to the non-rotating swash-plate. requirements. We also continue to meet ‘‘inspect’’ to more clearly indicate that Failure of the servo-control/swash-plate our technical decision-making we are requiring the work to be attachment in flight leads to a catastrophic responsibilities to identify and correct performed by a certificated mechanic. situation. unsafe conditions on U.S.-certificated Also, this AD does not require that the This AD requires actions that are intended products. operator send the information to the to address this same unsafe condition. This AD references the MCAI and manufacturer as specified in the ASB. In DATES: This AD becomes effective related service information that we making these changes, we do not intend February 8, 2008. considered in forming the engineering to differ substantively from the The Director of the Federal Register basis to correct the unsafe condition. information provided in the MCAI and approved the incorporation by reference The AD contains text copied from the related service information. These of Eurocoper Alert Service Bulletin No. MCAI and for this reason might not differences are highlighted in the 67.00.36, dated October 9, 2006, as of follow our plain language principles. ‘‘Differences Between the FAA AD and February 8, 2008. the MCAI’’ section within the AD. We must receive comments on this Discussion FAA’s Determination of the Effective AD by March 24, 2008. The European Aviation Safety Agency Date ADDRESSES: You may send comments by (EASA), which is the technical agent for any of the following methods: An unsafe condition exists that • the Member States of the European Federal eRulemaking Portal: Go to Community, has issued Airworthiness requires the immediate adoption of this http://www.regulations.gov. Follow the Directive No. 2006–0306–E, dated AD. The FAA has found that the risk to instructions for submitting comments. October 10, 2006, to correct an unsafe the flying public justifies waiving notice • Fax: 202–493–2251. and comment prior to adoption of this • condition for the French-certificated Mail: U.S. Department of products. The MCAI states: rule because the EASA AD was issued Transportation, Docket Operations, M– following the failure of an attachment 30, West Building Ground Floor, Room This Airworthiness Directive (AD) is bolt securing the main rotor right-hand W12–140, 1200 New Jersey Avenue, SE., issued following the failure of an attachment servo-control or swash plate attachment Washington, DC 20590. bolt securing the main rotor RH servo-control in flight, which can lead to a complete to the non-rotating swash-plate. • Hand Delivery: U.S. Department of loss of control of the helicopter. Failure of the servo-control/swash-plate Transportation, Docket Operations, M– attachment in flight leads to a catastrophic Therefore, we determined that notice 30, West Building Ground Floor, Room situation. and opportunity for public comment W12–140, 1200 New Jersey Avenue, SE., before issuing this AD are impracticable Washington, DC 20590, between 9 a.m. You may obtain further information and that good cause exists for making and 5 p.m., Monday through Friday, by examining the MCAI and service this amendment effective in fewer than except Federal holidays. information in the AD docket. 30 days.

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Comments Invited or on the distribution of power and (1) For each swashplate attachment bolt, responsibilities among the various part number 332A31–1340–21, having 500 or This AD is a final rule that involves more hours time-in-service, inspect for requirements affecting flight safety, and levels of government. For the reasons discussed above, I tightening torque, wear, and a crack in each we did not precede it by notice and of these three bolts that attach the main servo opportunity for public comment. We certify this AD: controls to the nonrotating swashplate. Do invite you to send any written relevant 1. Is not a ‘‘significant regulatory this inspection by following the data, views, or arguments about this AD. action’’ under Executive Order 12866; Accomplishment Instructions, paragraph 2.B. Send your comments to an address 2. Is not a ‘‘significant rule’’ under the and Figure 1, of Eurocopter Alert Service listed under the ADDRESSES section. DOT Regulatory Policies and Procedures Bulletin No. 67.00.36, dated October 9, 2006 Include ‘‘Docket No. FAA–2008–0044; (44 FR 11034, February 26, 1979); and (ASB). (2) If there is a crack in a bolt or if the Directorate Identifier 2007-SW–40–AD’’ 3. Will not have a significant economic impact, positive or negative, differential wear on a bolt between areas F, at the beginning of your comments. We G, and H (as depicted in Figure 1 of the ASB) specifically invite comments on the on a substantial number of small entities under the criteria of the Regulatory is more than 0.005 millimeter, replace the overall regulatory, economic, bolt with an airworthy bolt before further environmental, and energy aspects of Flexibility Act. flight. this AD. We will consider all comments We prepared an economic evaluation of the estimated costs to comply with Differences Between the FAA AD and the received by the closing date and may MCAI amend this AD because of those this AD and placed it in the AD docket. (f) We have changed the word ‘‘check’’ to comments. List of Subjects in 14 CFR Part 39 ‘‘inspect’’ to more clearly indicate that we are We will post all comments we Air transportation, Aircraft, Aviation requiring the work to be performed by a receive, without change, to http:// certificated mechanic. Also, this AD does not www.regulations.gov, including any safety, Incorporation by reference, Safety. require that the operator send the personal information you provide. We information to the manufacturer as specified will also post a report summarizing each Adoption of the Amendment in the ASB. substantive verbal contact we receive I Subject about this AD. Accordingly, under the authority delegated to me by the Administrator, (g) Air Transport Association of America Costs of Compliance the FAA amends 14 CFR part 39 as (ATA) Code 6700 Rotor Flight Controls. We estimate that this AD will affect 4 follows: Other Information helicopters of U.S. registry and will take PART 39—AIRWORTHINESS (h) The following provisions also apply to about 3 work hours to inspect the bolts. this AD: The average labor rate is $80 per work- DIRECTIVES (1) Alternative Methods of Compliance hour. Required parts will cost about I 1. The authority citation for part 39 (AMOCs): The Manager, Safety Management $600 for three bolts per helicopter. continues to read as follows: Group, FAA, has the authority to approve Based on these figures, we estimate the AMOCs for this AD, if requested using the total cost to be $3,360. Authority: 49 U.S.C. 106(g), 40113, 44701. procedures found in 14 CFR 39.19. Send information to ATTN: Uday Garadi, Aviation Authority for This Rulemaking § 39.13 [Amended] Safety Engineer, FAA, Rotorcraft Directorate, Regulations and Guidance Group, Fort Title 49 of the United States Code I 2. The FAA amends § 39.13 by adding the following new AD: Worth, Texas 76193–0110, telephone (817) specifies the FAA’s authority to issue 222–5123, fax (817) 222–5961. rules on aviation safety. Subtitle I, 2008–02–11 Eurocopter France: (2) Airworthy Product: Use only FAA- section 106, describes the authority of Amendment 39–15341. Docket No. approved corrective actions. Corrective the FAA Administrator. ‘‘Subtitle VII: FAA–2008–0044; Directorate Identifier actions are considered FAA-approved if they Aviation Programs,’’ describes in more 2007–SW–40–AD. are approved by the State of Design Authority (or their delegated agent) if the State of detail the scope of the Agency’s Effective Date Design has an appropriate bilateral agreement authority. (a) This airworthiness directive (AD) We are issuing this rulemaking under with the United States. You are required to becomes effective February 8, 2008. assure the product is airworthy before it is the authority described in ‘‘Subtitle VII, Other Affected ADs returned to service. Part A, Subpart III, Section 44701: (3) Reporting Requirements: For any General requirements.’’ Under that (b) None. reporting requirement in this AD, under the section, Congress charges the FAA with Applicability provisions of the Paperwork Reduction Act, promoting safe flight of civil aircraft in the Office of Management and Budget (OMB) air commerce by prescribing regulations (c) This AD applies to Model AS332C, L, has approved the information collection L1, and L2 helicopters, certificated in any requirements and has assigned OMB Control for practices, methods, and procedures category. the Administrator finds necessary for Number 2120–0056. safety in air commerce. This regulation Reason Related Information is within the scope of that authority (d) The mandatory continued (i) MCAI European Aviation Safety Agency because it addresses an unsafe condition airworthiness information (MCAI) states: (EASA) Airworthiness Directive No. 2006– that is likely to exist or develop on This Airworthiness Directive (AD) is 0306–E, dated October 10, 2006, contains products identified in this rulemaking issued following the failure of an attachment related information. action. bolt securing the main rotor RH servo-control (j) The Director of the Federal Register to the non-rotating swash-plate. approved the incorporation by reference of Regulatory Findings Failure of the servo-control/swash-plate this Eurocopter Alert Service Bulletin No. We determined that this AD will not attachment in flight leads to a catastrophic 67.00.36, dated October 9, 2006, under 5 have federalism implications under situation. U.S.C. 552(a) and 1 CFR part 51. (k) For service information identified in Executive Order 13132. This AD will Actions and Compliance this AD, contact American Eurocopter not have a substantial direct effect on (e) Within 15 hours time-in-service (TIS), Corporation, 2701 Forum Drive, Grand the States, on the relationship between unless already done, do the following Prairie, Texas 75053–4005, telephone (972) the national government and the States, actions: 641–3460, fax (972) 641–3527.

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(l) You may review copies of Eurocopter Point 46, 103 Chesapeake Park Plaza, Airplane Reference Clarification Alert Service Bulletin No. 67.00.36, dated Baltimore, MD 21220, attn: Warranty October 9, 2006, at the FAA, Office of the One commenter, Airbus, requests that Support, telephone: (410) 682–0094, fax: we clarify paragraphs (i)(1), (i)(2), (j)(1), Regional Counsel, Southwest Region, 2601 (410) 682–0100. Meacham Blvd., Room 663, Fort Worth, and (j)(2) by referencing that they apply Texas, or at the National Archives and The Docket Operations office is to A300–600 series airplanes, instead of Records Administration (NARA). For located at Docket Management Facility, A300 and A310 series airplanes. We information on the availability of this U.S. Department of Transportation, 1200 agree and made those changes to the material at NARA, call (202) 741–6030, or go New Jersey Avenue, SE., West Building AD. to: http://www.archives.gov/federal-register/ Ground Floor, Room W12–140, NPRM Costs of Compliance Error cfr/ibr-locations.html. Washington, DC 20590–0001. Issued in Fort Worth, Texas, on December We inadvertently listed an incorrect 27, 2007. FOR FURTHER INFORMATION CONTACT: estimated cost total of $28,000 in the David A. Downey, Robert Green, Aerospace Engineer, NPRM ‘‘Costs of Compliance’’ Engine Certification Office, FAA, Engine Manager, Rotorcraft Directorate, Aircraft paragraph. We corrected the estimated Certification Service. and Propeller Directorate, 12 New cost total to $16,480, in this AD. England Executive Park, Burlington, MA [FR Doc. E8–1028 Filed 1–23–08; 8:45 am] 01803; e-mail: [email protected]; Conclusion BILLING CODE 4910–13–P telephone (781) 238–7754; fax (781) We have carefully reviewed the 238–7199. available data, including the comments received, and determined that air safety DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: The FAA and the public interest require adopting proposed to amend 14 CFR part 39 by the AD with the changes described Federal Aviation Administration superseding AD 99–18–20, Amendment previously. We have determined that 39–11286 (64 FR 48286, September 3, these changes will neither increase the 14 CFR Part 39 1999), with a proposed AD. The economic burden on any operator nor proposed AD applies to GE CF6–50, [Docket No. FAA–2007–0053; Directorate increase the scope of the AD. Identifier 98–ANE–54–AD; Amendment 39– –80A1/A3, and –80C2A series turbofan 15347; AD 2008–02–17] engines, installed on Airbus A300, Costs of Compliance RIN 2120–AA64 A300–600, and A310 series airplanes. We estimate that this AD will affect We published the proposed AD in the 206 engines installed on airplanes of Airworthiness Directives; General Federal Register on October 25, 2007 U.S. registry. We also estimate that it Electric Company CF6–50, –80A1/A3, (72 FR 60604). That action proposed to will take about one work-hour per and –80C2A Series Turbofan Engines require revised inspection thresholds engine to perform the additional and intervals, and proposed to require AGENCY: Federal Aviation inspection, and that the average labor the same actions as AD 99–18–20, and rate is $80 per work-hour. Based on Administration (FAA), Department of additional inspections of the thrust Transportation (DOT). these figures, we estimate the total reverser actuation system locking additional cost of the AD for one ACTION: Final rule. features. inspection of the U.S. fleet, to be SUMMARY: The FAA is superseding an Examining the AD Docket $16,480. existing airworthiness directive (AD) for Authority for This Rulemaking General Electric Company (GE) CF6–50, You may examine the AD docket on –80A1/A3, and –80C2A series turbofan the Internet at http:// Title 49 of the United States Code engines, installed on Airbus A300, www.regulations.gov; or in person at the specifies the FAA’s authority to issue A300–600, and A310 series airplanes. Docket Operations office between 9 a.m. rules on aviation safety. Subtitle I, That AD currently requires initial and and 5 p.m., Monday through Friday, Section 106, describes the authority of repetitive inspections and checks of the except Federal holidays. The AD docket the FAA Administrator. Subtitle VII, thrust reverser actuation systems. This contains this AD, the regulatory Aviation Programs, describes in more AD requires revised inspection evaluation, any comments received, and detail the scope of the Agency’s thresholds and intervals, and would other information. The street address for authority. We are issuing this rulemaking under require the same actions and additional the Docket Operations office (telephone the authority described in Subtitle VII, inspections of the thrust reverser (800) 647–5527) is provided in the Part A, Subpart III, Section 44701, actuation system locking features. This ADDRESSES section. Comments will be ‘‘General requirements.’’ Under that AD results from refined safety analyses available in the AD docket shortly after section, Congress charges the FAA with performed on the thrust reverser receipt. promoting safe flight of civil aircraft in systems by GE and Airbus. We are Comments air commerce by prescribing regulations issuing this AD to prevent inadvertent for practices, methods, and procedures in-flight thrust reverser deployment, We provided the public the the Administrator finds necessary for which can result in loss of control of the opportunity to participate in the safety in air commerce. This regulation airplane. development of this AD. We have is within the scope of that authority considered the comments received. DATES: This AD becomes effective because it addresses an unsafe condition February 28, 2008. The Director of the Service Bulletin Reference Error that is likely to exist or develop on Federal Register approved the products identified in this rulemaking incorporation by reference of certain One commenter, GE Aviation, points action. publications listed in the regulations as out that Alert Service Bulletin No. CF6– of February 28, 2008. 80C2 S/B 78A1015 should be No. CF6– Regulatory Findings ADDRESSES: You can get the service 80C2 S/B 78A1005, in paragraph (j)(2). We have determined that this AD will information identified in this AD from We agree and corrected the number in not have federalism implications under Middle River Aircraft Systems, Mail the AD. Executive Order 13132. This AD will

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not have a substantial direct effect on systems by GE and Airbus. We are issuing configuration, and with TRAS locks the States, on the relationship between this AD to prevent inadvertent in-flight thrust installed, perform repetitive inspections and the national government and the States, reverser deployment, which can result in loss checks. of control of the airplane. (3) On Airbus A300 series airplanes with or on the distribution of power and a Two Light Reverser Indication Circuit responsibilities among the various Compliance configuration, and without TRAS locks levels of government. (e) You are responsible for having the installed, perform repetitive inspections and For the reasons discussed above, I actions required by this AD performed within checks at the following: certify that this AD: the compliance times specified unless the (i) Within every 2,500 hours TSLI, perform (1) Is not a ‘‘significant regulatory actions have already been done. paragraph 2.D., Translating Cowl Air Seal, Dagmar Fairing and Aft Frame Inspection; action’’ under Executive Order 12866; Initial Inspection for CF6–50 Series and paragraph 2.I., Fan Reverser Operational (2) Is not a ‘‘significant rule’’ under Turbofan Engines DOT Regulatory Policies and Procedures Check. (f) For CF6–50 series turbofan engines, (ii) Within every 6,000 hours TSLI, perform (44 FR 11034, February 26, 1979); and perform initial thrust reverser inspections (3) Will not have a significant paragraph 2.C., Pneumatic Drive Motor using Section 2, Accomplishment (PDM) Disc Brake Holding Torque Check; economic impact, positive or negative, Instructions, of Middle River Aircraft paragraph 2.E., Feedback Rod to Yoke on a substantial number of small entities Systems (MRAS) Alert Service Bulletin (ASB) Alignment Check and Inspection of Feedback under the criteria of the Regulatory No. CF6–50 S/B 78A3001, Revision 4, dated Yoke and Feedback Rod; paragraph 2.G., Flexibility Act. August 30, 2007, as follows: Translating Cowl Auto Re-Stow Function We prepared a summary of the costs (1) On Airbus A300 series airplanes with Check; paragraph 2.H., Over Pressure Shutoff to comply with this AD and placed it in a Three Light Reverser Indication Circuit Valve (OPSOV) Indication Check; and the AD Docket. You may get a copy of configuration, and without thrust reverser paragraph 2.I., Fan Reverser Operational actuation system (TRAS) locks installed, this summary at the address listed Check. perform the initial inspections and checks (4) On Airbus A300 series airplanes with under ADDRESSES. within 1,500 hours time-in-service (TIS) after a Two Light Reverser Indication Circuit List of Subjects in 14 CFR Part 39 the effective date of this AD. configuration, and with TRAS locks (2) On Airbus A300 series airplanes with installed, perform repetitive inspections and Air transportation, Aircraft, Aviation a Three Light Reverser Indication Circuit checks within every 7,000 hours TSLI. safety, Incorporation by reference, configuration, and with TRAS locks Safety. installed, perform the initial inspections and Initial and Repetitive Inspections for CF6– checks within 7,000 hours TIS after the 80A1/A3 Series Turbofan Engines Adoption of the Amendment effective date of this AD. (h) For CF6–80A1/A3 series turbofan I Accordingly, under the authority (3) On Airbus A300 series airplanes with engines installed on Airbus A310–200 a Two Light Reverser Indication Circuit delegated to me by the Administrator, airplanes, perform initial and repetitive configuration, and without TRAS locks thrust reverser inspections using Section 2, the Federal Aviation Administration installed, perform the initial inspections and Accomplishment Instructions, of MRAS ASB amends 14 CFR part 39 as follows: checks within 1,500 hours TIS after the No. CF6–80A1/A3 S/B 78A1002, Revision 5, effective date of this AD. dated July 19, 2007, at the following: PART 39—AIRWORTHINESS (4) On Airbus A300 series airplanes with (1) For initial inspection, within 1,500 DIRECTIVES a Two Light Reverser Indication Circuit hours TIS after the effective date of this AD. configuration, and with TRAS locks I (2) For repetitive inspections, within every 1. The authority citation for part 39 installed, perform the initial inspections and 7,000 hours TSLI. continues to read as follows: checks within 7,000 hours TIS after the Initial Inspection for CF6–80C2A Series Authority: 49 U.S.C. 106(g), 40113, 44701. effective date of this AD. Turbofan Engines § 39.13 [Amended] Repetitive Inspections for CF6–50 Series (i) For CF6–80C2A series turbofan engines, Turbofan Engines I 2. The FAA amends § 39.13 by perform initial thrust reverser inspections (g) For CF6–50 series turbofan engines, using Section 2, Accomplishment removing Amendment 39–11286 (64 FR perform repetitive thrust reverser inspections Instructions, of MRAS ASB No. CF6– 48286, September 3, 1999), and by using Section 2, Accomplishment 80C2A1/A2/A3/A5/A8/A5F S/B 78A1015, adding a new airworthiness directive, Instructions, of MRAS ASB No. CF6–50 S/B Revision 7, dated August 30, 2007, at the Amendment 39–15347, to read as 78A3001, Revision 4, dated August 30, 2007, following: follows: as follows: (1) On Airbus A300–600 and A310 series (1) On Airbus A300 series airplanes with airplanes with left-hand and right-hand 2008–02–17 General Electric Company: a Three Light Reverser Indication Circuit reverser halves that do not have the double/ Amendment 39–15347. Docket No. configuration, and without TRAS locks backup P-seal introduced by MRAS SB No. FAA–2007–0053; Directorate Identifier installed, perform repetitive inspections and CF6–80C2 S/B 78A1005, and that do not 98–ANE–54–AD. checks at the following: have locking actuator assemblies (LAAs) Effective Date (i) Within every 2,500 hours time-since- installed, within 600 hours TIS after the last-inspection (TSLI), perform paragraph (a) This airworthiness directive (AD) effective date of this AD. becomes effective February 28, 2008. 2.D., Translating Cowl Air Seal, Dagmar (2) On Airbus A300–600 and A310 series Fairing and Aft Frame Inspection; and airplanes with left-hand and right-hand Affected ADs paragraph 2.I., Fan Reverser Operational reverser halves that have the double/backup (b) This AD supersedes AD 99–18–20, Check. P-seal introduced by MRAS SB No. CF6– Amendment 39–11286. (ii) Within every 6,000 hours TSLI, perform 80C2 S/B 78A1005, or that have LAAs paragraph 2.C., Pneumatic Drive Motor installed, within 7,000 hours TIS after the Applicability (PDM) Disc Brake Holding Torque Check; effective date of this AD. (c) This AD applies to General Electric paragraph 2.E., Feedback Rod to Yoke Directional Pilot Valve (DPV) Pressure Company (GE) CF6–50, –80A1/A3, and Alignment Check and Inspection of Feedback Switch Check on Airbus Airplanes With –80C2A series turbofan engines. These Yoke and Feedback Rod; paragraph 2.F., CF6–80C2A5F Engines Is Not Applicable engines are installed on Airbus A300, A300– Translating Cowl Auto Re-Stow Function 600, and A310 series airplanes. Check; and paragraph 2.I., Fan Reverser (3) The DPV pressure switch check per Operational Check. paragraph 2.F. is not applicable to Airbus Unsafe Condition (2) Within every 7,000 hours TSLI on airplanes with CF6–80C2A5F left-hand and (d) This AD results from refined safety Airbus A300 series airplanes with a Three right-hand fan reverser halves (model ES- analyses performed on the thrust reverser Light Reverser Indication Circuit CF6–5), because this check is performed

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through the full authority digital electronic Previous Credit (o) Contact Robert Green, Aerospace control fault detection system. (l) Initial and repetitive inspections and Engineer, Engine Certification Office, FAA, Repetitive Inspections for CF6–80C2A Series checks of the thrust reverser actuation Engine and Propeller Directorate, 12 New Turbofan Engines systems done before the effective date of this England Executive Park, Burlington, MA 01803; e-mail: [email protected]; (j) For CF6–80C2A series turbofan engines, AD that use the following ASBs, comply with perform repetitive thrust reverser inspections the requirements specified in this AD: telephone (781) 238–7754; fax (781) 238– using Section 2, Accomplishment (1) MRAS ASB No. CF6–50 S/B 78A3001, 7199, for more information about this AD. Instructions, of MRAS ASB No. CF6– Revision 2, dated December 18, 1997; and (p) You must use the service information 80C2A1/A2/A3/A5/A8/A5F S/B 78A1015, MRAS ASB No. CF6–50 S/B 78A3001, specified in Table 1 of this AD to perform the Revision 7, dated August 30, 2007, at the Revision 3, dated May 3, 2006. inspections required by this AD. The Director following: (2) MRAS ASB No. CF6–80A1/A3 S/B of the Federal Register approved the (1) On Airbus A300–600 and A310 series 78A1002, Revision 3, dated January 21, 1999; incorporation by reference of the documents airplanes with left-hand and right-hand and MRAS ASB No. CF6–80A1/A3 S/B listed in Table 1 of this AD in accordance reverser halves that do not have the double/ 78A1002, Revision 4, dated May 3, 2006. with 5 U.S.C. 552(a) and 1 CFR part 51. backup P-seal, introduced by MRAS SB No. (3) MRAS ASB No. CF6–80C2 S/B CF6–80C2 S/B 78A1005, and that do not Contact Middle River Aircraft Systems, Mail 78A1015, Revision 5, dated January 21, 1999; Point 46, 103 Chesapeake Park Plaza, have LAAs installed, within every 600 hours and MRAS ASB No. CF6–80C2A1/A2/A3/ TSLI. Baltimore, MD, 21220, attn: Warranty A5/A8/A5F S/B 78A1015, Revision 6, dated (2) On Airbus A300–600 and A310 series Support, telephone: (410) 682–0094, fax: May 3, 2006. airplanes with left-hand and right-hand (410) 682–0100 for a copy of this service reverser halves that have the double/backup Alternative Methods of Compliance information. You may review copies at the P-seal, introduced by MRAS SB No. CF6– (m) The Manager, Engine Certification FAA, New England Region, 12 New England 80C2 S/B 78A1005, or that have LAAs Executive Park, Burlington, MA; or at the installed, within every 7,000 hours TSLI. Office, FAA, has the authority to approve alternative methods of compliance for this National Archives and Records Engines That Fail an Inspection or Check AD if requested using the procedures found Administration (NARA). For information on (k) On engines that fail an inspection or in 14 CFR 39.19. the availability of this material at NARA, call check required by this AD, perform 202–741–6030, or go to: http:// Related Information corrective actions or deactivate the fan www.archives.gov/federal-register/cfr/ibr- reverser per Section 2, Accomplishment (n) France AD 1999–422–IMP(B), dated locations.html. Instructions, of the applicable MRAS ASB, October 20, 1999, also pertains to the subject before further flight. of this AD.

TABLE 1.—INCORPORATION BY REFERENCE

Middle River Aircraft Systems Alert Service Bulletin No. Page Revision Date

CF6–50 S/B 78A3001 ...... All 4 August 30, 2007. Total Pages: 50 CF6–80A1/A3 S/B 78A1002 ...... All 5 July 19, 2007. Total Pages: 38 CF6–80C2A1/A2/A3/A5/A8/A5F S/B 78A1015 ...... All 7 August 30, 2007. Total Pages: 36

Issued in Burlington, Massachusetts, on SUMMARY: We are adopting a new Commercial Airplanes, Long Beach January 15, 2008. airworthiness directive (AD) for certain Division, 3855 Lakewood Boulevard, Peter A. White, McDonnell Douglas Model 717–200 Long Beach, California 90846, Assistant Manager, Engine and Propeller airplanes. This AD requires Attention: Data and Service Directorate, Aircraft Certification Service. modification of the conduit for the Management, Dept. C1–L5A (D800– [FR Doc. E8–975 Filed 1–23–08; 8:45 am] forward boost pump of the center fuel 0024). BILLING CODE 4910–13–P tank. This AD results from the finding Examining the AD Docket that a potential chafing condition exists in the volute assembly of the forward You may examine the AD docket on DEPARTMENT OF TRANSPORTATION boost pump for the center fuel tank. We the Internet at http:// are issuing this AD to prevent chafing of www.regulations.gov; or in person at the Federal Aviation Administration the fuel boost pump wiring that could Docket Management Facility between 9 lead to arcing to the inside of the 45- a.m. and 5 p.m., Monday through 14 CFR Part 39 degree angle fitting, which, in Friday, except Federal holidays. The AD combination with flammable fuel docket contains this AD, the regulatory [Docket No. FAA–2007–29329; Directorate vapors, could result in a fuel tank evaluation, any comments received, and Identifier 2007–NM–205–AD; Amendment explosion and consequent loss of the other information. The address for the 39–15342; AD 2008–02–12] airplane. Docket Office (telephone 800–647–5527) is the Document Management Facility, RIN 2120–AA64 DATES: This AD is effective February 28, U.S. Department of Transportation, 2008. Docket Operations, M–30, West Airworthiness Directives; McDonnell The Director of the Federal Register Building Ground Floor, Room W12–140, Douglas Model 717–200 Airplanes approved the incorporation by reference 1200 New Jersey Avenue, SE., of a certain publication listed in this AD Washington, DC 20590. AGENCY: Federal Aviation as of February 28, 2008. Administration (FAA), DOT. FOR FURTHER INFORMATION CONTACT: ADDRESSES: For service information Samuel S. Lee, Aerospace Engineer, ACTION: Final rule. identified in this AD, contact Boeing Propulsion Branch, ANM–140L, FAA,

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Los Angeles Aircraft Certification accordance with the original issue of the Regulatory Findings Office, 3960 Paramount Boulevard, service bulletin, accomplishing a leak This AD will not have federalism Lakewood, California 90712–4137; check of the conduits using AMM Task implications under Executive Order telephone (562) 627–5262; fax (562) 28–22–28–700–801 should be 13132. This AD will not have a 627–5210. acceptable to ensure that the conduits substantial direct effect on the States, on SUPPLEMENTARY INFORMATION: are not leaking in lieu of accessing the the relationship between the national Discussion conduit connections again for a torque government and the States, or on the check. distribution of power and We issued a notice of proposed responsibilities among the various rulemaking (NPRM) to amend 14 CFR We agree that work done in levels of government. part 39 to include an airworthiness accordance with Boeing Service Bulletin 717–28–0007, dated August 22, 2002, is For the reasons discussed above, I directive (AD) that would apply to certify that this AD: certain McDonnell Douglas Model 717– acceptable for compliance with the requirements of this AD provided that a (1) Is not a ‘‘significant regulatory 200 airplanes. That NPRM was action’’ under Executive Order 12866, published in the Federal Register on leak check of the conduit is accomplished in accordance with (2) Is not a ‘‘significant rule’’ under October 11, 2007 (72 FR 57892). That DOT Regulatory Policies and Procedures NPRM proposed to require modification Boeing 717 AMM Task 28–22–28–700– 801. We have added a new paragraph (g) (44 FR 11034, February 26, 1979), and of the conduit for the forward boost (3) Will not have a significant to this AD to allow credit for previous pump of the center fuel tank. economic impact, positive or negative, accomplishment. Comments on a substantial number of small entities under the criteria of the Regulatory We gave the public the opportunity to Conclusion Flexibility Act. participate in developing this AD. We We reviewed the relevant data, You can find our regulatory have considered the two comments considered the comments received, and evaluation and the estimated costs of received from the one commenter. determined that air safety and the compliance in the AD Docket. Support for the NPRM public interest require adopting the AD with the change described previously. List of Subjects in 14 CFR Part 39 AirTran Airways supports the NPRM. We also determined that this change Air transportation, Aircraft, Aviation Request To Allow Use of Original Issue will not increase the economic burden safety, Incorporation by reference, of Service Bulletin on any operator or increase the scope of Safety. the AD. AirTran Airways requests that we Adoption of the Amendment revise this AD to specify that actions Costs of Compliance accomplished before the effective date I Accordingly, under the authority of this AD in accordance with Boeing There are about 77 airplanes of the delegated to me by the Administrator, Service Bulletin 717–28–0007, dated affected design in the worldwide fleet. the FAA amends 14 CFR part 39 as August 22, 2002, are considered This AD affects about 61 airplanes of follows: acceptable for compliance with the U.S. registry. The required actions take corresponding actions specified in PART 39—AIRWORTHINESS about 10 work hours per airplane, at an DIRECTIVES paragraph (f) of this AD provided that a average labor rate of $80 per work hour. leak check of the conduit is Based on these figures, the estimated I 1. The authority citation for part 39 accomplished in accordance with cost of the AD for U.S. operators is continues to read as follows: Boeing 717 Airplane Maintenance $48,800, or $800 per airplane. Authority: 49 U.S.C. 106(g), 40113, 44701. Manual (AMM) Task 28–22–28–700– 801, ‘‘Leak Test of the Fuel Pump Authority for This Rulemaking § 39.13 [Amended] Electrical Conduit.’’ AirTran Airways Title 49 of the United States Code I 2. The FAA amends § 39.13 by adding has accomplished the actions specified specifies the FAA’s authority to issue the following new AD: in the original issue of the service rules on aviation safety. Subtitle I, bulletin on all applicable airplanes in its 2008–02–12 McDonnell Douglas: section 106, describes the authority of fleet. AirTran Airways states that Amendment 39–15342. Docket No. FAA– the FAA Administrator. ‘‘Subtitle VII: 2007–29329; Directorate Identifier 2007– Revision 1, dated September 23, 2003, Aviation Programs,’’ describes in more NM–205–AD. of the service bulletin was published to detail the scope of the Agency’s provide a torque value for the conduits Effective Date authority. due to an instance of fuel leaking from (a) This airworthiness directive (AD) is the conduit at the front spar following We are issuing this rulemaking under effective February 28, 2008. the authority described in ‘‘Subtitle VII, accomplishment of the task. AirTran Affected ADs Airways notes that it accomplished a Part A, Subpart III, Section 44701: (b) None. leak check of the conduit during General requirements.’’ Under that accomplishment of the original issue of section, Congress charges the FAA with Applicability the service bulletin, and that the leak promoting safe flight of civil aircraft in (c) This AD applies to McDonnell Douglas check was later added to the AMM in air commerce by prescribing regulations Model 717–200 airplanes, certificated in any January 2004, as AMM Task 28–22–28– for practices, methods, and procedures category; as identified in Boeing Service 700–801. The leak check of the conduit the Administrator finds necessary for Bulletin 717–28–0007, Revision 1, dated ensured that the conduit was not safety in air commerce. This regulation September 23, 2003. leaking, in the absence of a specified is within the scope of that authority Unsafe Condition torque value in the original issue of the because it addresses an unsafe condition (d) This AD results from a finding that a service bulletin. AirTran Airways that is likely to exist or develop on potential chafing condition exists in the believes that, if operators have products identified in this rulemaking volute assembly of the forward boost pump accomplished the modification in action. for the center fuel tank. We are issuing this

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AD to prevent chafing of the forward boost Issued in Renton, Washington, on January a.m. and 5 p.m., Monday through pump wiring that could lead to arcing to the 14, 2008. Friday, except Federal holidays. The AD inside of the 45-degree angle fitting, which, Stephen P. Boyd, docket contains this AD, the regulatory in combination with flammable fuel vapors, Assistant Manager, Transport Airplane evaluation, any comments received, and could result in a fuel tank explosion and Directorate, Aircraft Certification Service. consequent loss of the airplane. other information. The address for the [FR Doc. E8–971 Filed 1–23–08; 8:45 am] Docket Office (telephone 800–647–5527) Compliance BILLING CODE 4910–13–P is the Document Management Facility, (e) You are responsible for having the U.S. Department of Transportation, actions required by this AD performed within Docket Operations, M–30, West the compliance times specified, unless the DEPARTMENT OF TRANSPORTATION Building Ground Floor, Room W12–140, actions have already been done. 1200 New Jersey Avenue, SE., Modification Federal Aviation Administration Washington, DC 20590. (f) Within 78 months after the effective FOR FURTHER INFORMATION CONTACT: Sue date of this AD, modify the conduit for the 14 CFR Part 39 McCormick, Aerospace Engineer, Cabin forward fuel boost pump of the center fuel [Docket No. FAA–2007–28375; Directorate Safety and Environmental Systems tank, by accomplishing all of the actions Identifier 2007–NM–015–AD; Amendment Branch, ANM–150S, FAA, Seattle specified in Boeing Service Bulletin 717–28– 39–15346; AD 2008–02–16] Aircraft Certification Office, 1601 Lind 0007, Revision 1, dated September 23, 2003. Avenue, SW., Renton, Washington RIN 2120–AA64 Credit for Actions Done According to 98057–3356; telephone (303) 342–1082; Previous Issue of Service Bulletin Airworthiness Directives; Boeing fax (425) 917–6590. (g) Actions done before the effective date Model 767–200 and 767–300 Series SUPPLEMENTARY INFORMATION: of this AD in accordance with Boeing Service Airplanes Bulletin 717–28–0007, dated August 22, Discussion 2002, are acceptable for compliance with the AGENCY: Federal Aviation The FAA issued a notice of proposed requirements of paragraph (f) of this AD Administration (FAA), Department of rulemaking (NPRM) to amend 14 CFR provided that a leak check of the conduit is Transportation (DOT). part 39 to include an AD that would accomplished in accordance with Boeing 717 apply to certain Boeing Model 767–200 Airplane Maintenance Manual (AMM) Task ACTION: Final rule. 28–22–28–700–801, ‘‘Leak Test of the Fuel and 767–300 series airplanes. That Pump Electrical Conduit.’’ SUMMARY: The FAA is adopting a new NPRM was published in the Federal airworthiness directive (AD) for certain Register on June 19, 2007 (72 FR 33701). Alternative Methods of Compliance Boeing Model 767–200 and 767–300 That NPRM proposed to require (AMOCs) series airplanes. This AD requires reworking certain duct assemblies in the (h)(1) The Manager, Los Angeles Aircraft reworking certain duct assemblies in the environmental control system (ECS). Certification Office (ACO), FAA, has the environmental control system (ECS). authority to approve AMOCs for this AD, if Comments requested in accordance with the procedures This AD results from reports of duct assemblies in the ECS with burned We provided the public the found in 14 CFR 39.19. opportunity to participate in the (2) To request a different method of Boeing Material Specification (BMS) 8– compliance or a different compliance time 39 polyurethane foam insulation. This development of this AD. We have for this AD, follow the procedures in 14 CFR AD also results from a report from the considered the comments received. 39.19. Before using any approved AMOC on airplane manufacturer that airplanes Support for the Proposed AD any airplane to which the AMOC applies, were assembled with duct assemblies in Boeing concurs with the requirements notify your appropriate principal inspector the ECS wrapped with BMS 8–39 (PI) in the FAA Flight Standards District of this AD. Office (FSDO), or lacking a PI, your local polyurethane foam insulation, a FSDO. material of which the fire retardant Request To Remove Airplane From the properties deteriorate with age. We are Proposed Applicability Material Incorporated by Reference issuing this AD to prevent a potential Hawaiian Airlines requests that we (i) You must use Boeing Service Bulletin electrical arc from igniting the BMS 8– revise the proposed AD to remove one 717–28–0007, Revision 1, dated September 39 polyurethane foam insulation on the of its airplanes from the proposed 23, 2003, to do the actions required by this duct assemblies of the ECS, which could AD, unless the AD specifies otherwise. applicability. Hawaiian states that the (1) The Director of the Federal Register propagate a small fire and lead to a airplane came to them with two ducts approved the incorporation by reference of larger fire that might spread throughout installed in the affected area that do not this service information under 5 U.S.C. the airplane through the ECS. have insulation installed on them. Each 552(a) and 1 CFR part 51. DATES: This AD becomes effective of these ducts has a part number not (2) For service information identified in February 28, 2008. listed in Boeing Service Bulletin 767– this AD, contact Boeing Commercial The Director of the Federal Register 21A0167, Revision 1, dated December Airplanes, Long Beach Division, 3855 approved the incorporation by reference Lakewood Boulevard, Long Beach, California 19, 2006. We referred to Boeing Service 90846, Attention: Data and Service of a certain publication listed in the AD Bulletin 767–21A0167, Revision 1, as Management, Dept. C1–L5A (D800–0024). as of February 28, 2008. the appropriate source of service (3) You may review copies of the service ADDRESSES: For service information information for doing the actions information incorporated by reference at the identified in this AD, contact Boeing specified in the proposed AD. Hawaiian FAA, Transport Airplane Directorate, 1601 Commercial Airplanes, P.O. Box 3707, quotes text from a Boeing message, in Lind Avenue, SW., Renton, Washington; or at Seattle, Washington 98124–2207. which Boeing confirms that the two the National Archives and Records subject duct assemblies do not need Administration (NARA). For information on Examining the AD Docket the availability of this material at NARA, call rework in accordance with the service 202–741–6030, or go to: http:// You may examine the AD docket on bulletin because neither of the ducts www.archives.gov/federal_register/ the Internet at http:// assemblies are wrapped with Boeing code_of_federal_regulations/ www.regulations.gov; or in person at the Material Specification (BMS) 8–39 ibr_locations.html. Docket Management Facility between 9 polyurethane foam insulation.

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We agree. We have verified that the language to clarify whether or not BMS determined that air safety and the subject airplane should not be subject to 8–300 insulation must be installed on public interest require adopting the AD this AD for the reasons stated above. an affected duct. Hawaiian reiterates with the change described previously. Therefore, we have revised the that it has one airplane with two ducts We also determined that this change applicability of this final rule to remove installed, which do not have any will not increase the economic burden the subject airplane from the insulation installed. on any operator or increase the scope of applicability of this AD. We have also We do not agree that it is necessary the AD. revised the Costs of Compliance section to make the requested clarification. As of this final rule to remove the cost for stated previously, we have determined Costs of Compliance this airplane. that the subject airplane is not subject to this AD. Therefore, we have made no There are about 129 airplanes of the Request To Clarify Acceptable change to the final rule in this regard. affected design in the worldwide fleet. Compliance The following table provides the Conclusion estimated costs for U.S. operators to Hawaiian Airlines also requests that We reviewed the relevant data, comply with this AD. we revise the proposed AD to add considered the comments received, and

ESTIMATED COSTS

Number of Action Work hours Average labor Parts cost per Average cost U.S.-registered Average fleet rate per hour airplane per airplane airplanes cost

Duct assembly rework ...... 7, per duct (average 50 $80 $4,955 $32,955 95 $3,130,725 ducts per airplane).

Authority for This Rulemaking (3) Will not have a significant Applicability Title 49 of the United States Code economic impact, positive or negative, (c) This AD applies to Model 767–200 and specifies the FAA’s authority to issue on a substantial number of small entities 767–300 series airplanes, certificated in any under the criteria of the Regulatory category; as identified in Boeing Service rules on aviation safety. Subtitle I, Bulletin 767–21A0167, Revision 1, dated Section 106, describes the authority of Flexibility Act. We prepared a regulatory evaluation December 19, 2006; excluding variable the FAA Administrator. Subtitle VII, of the estimated costs to comply with number VK031. Aviation Programs, describes in more this AD and placed it in the AD docket. detail the scope of the Agency’s Unsafe Condition See the ADDRESSES section for a location authority. (d) This AD results from reports of duct to examine the regulatory evaluation. We are issuing this rulemaking under assemblies in the environmental control the authority described in Subtitle VII, List of Subjects in 14 CFR Part 39 system (ECS) with burned Boeing Material Specification (BMS) 8–39 polyurethane foam Part A, Subpart III, Section 44701, Air transportation, Aircraft, Aviation insulation. This AD also results from a report ‘‘General requirements.’’ Under that safety, Incorporation by reference, from the airplane manufacturer that airplanes section, Congress charges the FAA with Safety. were assembled with duct assemblies in the promoting safe flight of civil aircraft in ECS wrapped with BMS 8–39 polyurethane air commerce by prescribing regulations Adoption of the Amendment foam insulation, a material of which the fire for practices, methods, and procedures I Accordingly, under the authority retardant properties deteriorate with age. We the Administrator finds necessary for are issuing this AD to prevent a potential delegated to me by the Administrator, electrical arc from igniting the BMS 8–39 safety in air commerce. This regulation the FAA amends 14 CFR part 39 as is within the scope of that authority polyurethane foam insulation on the duct follows: assemblies or the ECS, which could because it addresses an unsafe condition propagate a small fire and lead to a larger fire that is likely to exist or develop on PART 39—AIRWORTHINESS that might spread throughout the airplane products identified in this rulemaking DIRECTIVES through the ECS. action. I 1. The authority citation for part 39 Compliance Regulatory Findings continues to read as follows: (e) You are responsible for having the We have determined that this AD will Authority: 49 U.S.C. 106(g), 40113, 44701. actions required by this AD performed within not have federalism implications under the compliance times specified, unless the § 39.13 [Amended] Executive Order 13132. This AD will actions have already been done. not have a substantial direct effect on I 2. The Federal Aviation ECS Duct Assembly Rework the States, on the relationship between Administration (FAA) amends § 39.13 (f) Except as provided by paragraph (g) of the national government and the States, by adding the following new this AD, within 72 months after the effective or on the distribution of power and airworthiness directive (AD): date of this AD, rework the duct assemblies responsibilities among the various 2008–02–16 Boeing: Amendment 39–15346. in the ECS for the air distribution system at levels of government. Docket No. FAA–2007–28375; sections 41, 45, and 46; the Gasper air system For the reasons discussed above, I Directorate Identifier 2007–NM–015–AD. at sections 41, 43, 45, and 46; the forward certify that this AD: electronic and electrical (E/E) compartment Effective Date air supply; and the instrument panel cooling (1) Is not a ‘‘significant regulatory (a) This AD becomes effective February 28, supply; in accordance with the action’’ under Executive Order 12866; 2008. Accomplishment Instructions and (2) Is not a ‘‘significant rule’’ under Appendices A and B of Boeing Service DOT Regulatory Policies and Procedures Affected ADs Bulletin 767–21A0167, Revision 1, dated (44 FR 11034, February 26, 1979); and (b) None. December 19, 2006.

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Optional Part Installed DEPARTMENT OF TRANSPORTATION 52309). That NPRM proposed to correct (g) If an affected duct assembly having a an unsafe condition for the specified part number other than part number Federal Aviation Administration products. The MCAI states: 217T2109–12, or a part number other than Some taperlocks used in the wing-to- any part number specified in the applicable 14 CFR Part 39 fuselage junction at rib 1 were found to be figure of Boeing Service Bulletin 767– [Docket No. FAA–2007–29170; Directorate non-compliant with the applicable 21A0167, Revision 1, dated December 19, Identifier 2007–NM–075–AD; Amendment specification, resulting in a loss of pre- 2006, is found installed, and that part 39–15345; AD 2008–02–15] tension in the fasteners. In such conditions, number is listed as an optional part number the structural integrity of the aircraft could be in the table in paragraph 3.B.2., ‘‘Optional RIN 2120–AA64 affected. Part Table,’’ of the Accomplishment This Airworthiness Directive mandates a Instructions of the service bulletin: No Airworthiness Directives; Airbus Model repetitive internal inspection of the lower rework is required for that duct assembly A319 and A320 Series Airplanes stiffeners, and a repetitive external only. inspection of the lower panels in center and AGENCY: Federal Aviation outer wing box at level of rib 1 junction. Parts Installation Administration (FAA), Department of The corrective action includes (h) As of the effective date of this AD, no Transportation (DOT). contacting Airbus for repair instructions person may install on any airplane an air ACTION: Final rule. distribution system, Gasper air system, and repair if any crack is found. You forward E/E compartment air supply, or SUMMARY: We are adopting a new may obtain further information by instrument panel cooling supply duct airworthiness directive (AD) for the examining the MCAI in the AD docket. assembly with BMS 8–39 polyurethane foam products listed above. This AD results Comments insulation. from mandatory continuing airworthiness information (MCAI) We gave the public the opportunity to Alternative Methods of Compliance participate in developing this AD. We (AMOCs) originated by an aviation authority of another country to identify and correct considered the comments received. (i)(1) The Manager, Seattle Aircraft an unsafe condition on an aviation Certification Office, FAA, has the authority to Request To Refer to Revised Service product. The MCAI describes the unsafe approve AMOCs for this AD, if requested in Information condition as: accordance with the procedures found in 14 The Air Transport Association (ATA), CFR 39.19. Some taperlocks used in the wing-to- on behalf of one of its members, United (2) To request a different method of fuselage junction at rib 1 were found to be Airlines, and Airbus ask that we refer to non-compliant with the applicable compliance or a different compliance time Airbus Service Bulletins A320–57–1129 for this AD, follow the procedures in 14 CFR specification, resulting in a loss of pre- and A320–57–1130, both Revision 02, 39.19. Before using any approved AMOC on tension in the fasteners. In such conditions, any airplane to which the AMOC applies, the structural integrity of the aircraft could be both dated July 17, 2007, for notify your appropriate principal inspector affected. accomplishing the specified actions. We agree with the requests to refer to (PI) in the FAA Flight Standards District We are issuing this AD to require Revision 02 of Airbus Service Bulletins Office (FSDO), or lacking a PI, your local actions to correct the unsafe condition A320–57–1129 and A320–57–1130. In FSDO. on these products. the NPRM, we referred to Airbus Material Incorporated by Reference DATES: This AD becomes effective Service Bulletins A320–57–1129, and (j) You must use Boeing Service Bulletin February 28, 2008. A320–57–1130, both Revision 01, both 767–21A0167, Revision 1, dated December The Director of the Federal Register dated July 28, 2006, as the appropriate 19, 2006, to do the actions required by this approved the incorporation by reference sources of service information for AD, unless the AD specifies otherwise. of certain publications listed in this AD accomplishing the required actions. (1) The Director of the Federal Register as of February 28, 2008. Revision 02 of the service bulletins approved the incorporation by reference of ADDRESSES: You may examine the AD this service information under 5 U.S.C. updates the operator and aircraft docket on the Internet at http:// effectivity to show the latest 552(a) and 1 CFR part 51. www.regulations.gov or in person at the (2) For service information identified in information. No additional work is this AD, contact Boeing Commercial U.S. Department of Transportation, required by these revisions of the Airplanes, P.O. Box 3707, Seattle, Docket Operations, M–30, West service bulletins. We have changed Washington 98124–2207. Building Ground Floor, Room W12–140, paragraphs (f)(1) and (f)(2) of this AD to (3) You may review copies of the service 1200 New Jersey Avenue, SE., refer to Revision 02 of the service information incorporated by reference at the Washington, DC. bulletins. We have also changed FAA, Transport Airplane Directorate, 1601 FOR FURTHER INFORMATION CONTACT: Tim paragraphs (f)(1) and (f)(2) to give credit Lind Avenue, SW., Renton, Washington; or at Dulin, Aerospace Engineer, to operators that have done the actions the National Archives and Records International Branch, ANM–116, FAA, previously in accordance with Revision Administration (NARA). For information on Transport Airplane Directorate, 1601 01 of the service bulletins. We have also the availability of this material at NARA, call Lind Avenue, SW., Renton, Washington revised the sentence giving credit for an 202–741–6030, or go to: http:// 98057–3356; telephone (425) 227–2141; www.archives.gov/federal_register/ earlier service bulletin in paragraph code_of_federal_regulations/ fax (425) 227–1149. (f)(2) of this AD for clarity. SUPPLEMENTARY INFORMATION: ibr_locations.html. Request To Allow Installation of a Pin Issued in Renton, Washington, on January Discussion and Sleeve Fastener 14, 2008. We issued a notice of proposed ATA, on behalf of one of its members, Stephen P. Boyd, rulemaking (NPRM) to amend 14 CFR Northwest Airlines (NWA), states that Assistant Manager, Transport Airplane part 39 to include an AD that would installation of a pin-and-sleeve fastener, Directorate, Aircraft Certification Service. apply to the specified products. That instead of the taperlok fastener, should [FR Doc. E8–972 Filed 1–23–08; 8:45 am] NPRM was published in the Federal be allowed due to the practical BILLING CODE 4910–13–P Register on September 13, 2007 (72 FR difficulties in accomplishing the NPRM

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as currently written. NWA notes that policies. Any such differences are Examining the AD Docket installation of the taperlok fasteners highlighted in a NOTE within the AD. You may examine the AD docket on requires precision drilling and reaming Costs of Compliance the Internet at http:// of the tapered hole and countersink, and www.regulations.gov; or in person at the adds that industry data show that the We estimate that this AD will affect Docket Operations office between 9 a.m. installation of a MIL–B–85667 pin-and- 583 products of U.S. registry. We also and 5 p.m., Monday through Friday, sleeve fastener can be installed by estimate that it would take about except Federal holidays. The AD docket conventional manual drilling and between 16 and 77 work-hours per contains the NPRM, the regulatory reaming of a standard hole with relative product to comply with the basic evaluation, any comments received, and simplicity and still maintain the fatigue requirements of this AD. The average other information. The street address for strength capability of the taperlok labor rate is $80 per work-hour. Based the Docket Operations office (telephone fastener. NWA adds that the fastener on these figures, we estimate the cost of (800) 647–5527) is in the ADDRESSES capability properties of the MIL–B– the AD on U.S. operators to be between section. Comments will be available in 85667 pin-and-sleeve fastener (titanium $746,240 and $3,591,280, or between the AD docket shortly after receipt. tapered pin and aluminum sleeve) meet $1,280 and $6,160 per product. or exceed those of the Airbus taperlok List of Subjects in 14 CFR Part 39 fasteners for tensile, shear, and fatigue Authority for This Rulemaking Air transportation, Aircraft, Aviation strength. NWA provided a table that Title 49 of the United States Code safety, Incorporation by reference, identifies the fastener properties. specifies the FAA’s authority to issue Safety. We do not agree with the commenters’ rules on aviation safety. Subtitle I, Adoption of the Amendment request. The commenters have not section 106, describes the authority of provided sufficient data to demonstrate the FAA Administrator. ‘‘Subtitle VII: I Accordingly, under the authority that this installation would adequately Aviation Programs,’’ describes in more delegated to me by the Administrator, address the identified unsafe condition. detail the scope of the Agency’s the FAA amends 14 CFR part 39 as Although the MIL–B–85667 pin-and- authority. follows: sleeve fastener material properties may We are issuing this rulemaking under be equal to or better than the taperlok PART 39—AIRWORTHINESS the authority described in ‘‘Subtitle VII, fasteners, there are other considerations DIRECTIVES Part A, Subpart III, Section 44701: in selection of fasteners that must be General requirements.’’ Under that I 1. The authority citation for part 39 addressed, in addition to proper drilling section, Congress charges the FAA with continues to read as follows: and reaming of the tapered hole and promoting safe flight of civil aircraft in countersink. Therefore, we have not Authority: 49 U.S.C. 106(g), 40113, 44701. air commerce by prescribing regulations changed the AD in this regard. However, for practices, methods, and procedures § 39.13 [Amended] any operator may request an alternative the Administrator finds necessary for I 2. The FAA amends § 39.13 by adding method of compliance (AMOC) in safety in air commerce. This regulation the following new AD: accordance with the procedures in is within the scope of that authority paragraph (g) of the AD, provided that 2008–02–15 Airbus: Amendment 39–15345. because it addresses an unsafe condition sufficient data are submitted to Docket No. FAA–2007–29170; that is likely to exist or develop on Directorate Identifier 2007–NM–075–AD. substantiate that the proposed AMOC products identified in this rulemaking would provide an acceptable level of Effective Date action. safety. (a) This airworthiness directive (AD) Regulatory Findings becomes effective February 28, 2008. Conclusion Affected ADs We reviewed the available data, We determined that this AD will not including the comments received, and have federalism implications under (b) None. determined that air safety and the Executive Order 13132. This AD will Applicability public interest require adopting the AD not have a substantial direct effect on (c) This AD applies to Airbus Model A319 with the change described previously. the States, on the relationship between and A320 series airplanes, certificated in any This change will neither increase the the national government and the States, category, all certified models, all serial economic burden on any operator nor or on the distribution of power and numbers (MSN); except airplanes identified increase the scope of the AD. responsibilities among the various in paragraphs (c)(1) and (c)(2) of this AD. levels of government. Model A320 series airplanes MSN 2164 Differences Between This AD and the through MSN 2688 that have partially For the reasons discussed above, I MCAI or Service Information received Airbus Modification 33421 in certify this AD: production are affected by the requirements We have reviewed the MCAI and 1. Is not a ‘‘significant regulatory of this AD. related service information and, in action’’ under Executive Order 12866; (1) Model A319 series airplanes that have general, agree with their substance. But received Airbus Modifications 28238, 28162, we might have found it necessary to use 2. Is not a ‘‘significant rule’’ under the and 28342 in production, or Airbus different words from those in the MCAI DOT Regulatory Policies and Procedures Modification 33421 in production. (44 FR 11034, February 26, 1979); and (2) Model A320 series airplanes that have to ensure the AD is clear for U.S. received Airbus Modification 33421 fully operators and is enforceable. In making 3. Will not have a significant embodied in production. these changes, we do not intend to differ economic impact, positive or negative, substantively from the information on a substantial number of small entities Subject provided in the MCAI and related under the criteria of the Regulatory (d) Air Transport Association (ATA) of service information. Flexibility Act. America Code 57: Wings. We might also have required different We prepared a regulatory evaluation Reason actions in this AD from those in the of the estimated costs to comply with (e) The mandatory continuing MCAI in order to follow our FAA this AD and placed it in the AD docket. airworthiness information (MCAI) states:

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Some taperlocks used in the wing-to- of the rib 1 junction to detect cracks, and if which the AMOC applies, notify your fuselage junction at rib 1 were found to be any crack is found, before further flight appropriate principal inspector (PI) in the non-compliant with the applicable contact Airbus for repair instructions and FAA Flight Standards District Office (FSDO), specification, resulting in a loss of pre- repair. Repeat this inspection at the intervals or lacking a PI, your local FSDO. tension in the fasteners. In such conditions, defined in paragraph 1.E., ‘‘Compliance,’’ of (2) Airworthy Product: For any requirement the structural integrity of the aircraft could be the service bulletin. Actions done before the in this AD to obtain corrective actions from affected. effective date of this AD in accordance with a manufacturer or other source, use these This Airworthiness Directive mandates a Airbus Service Bulletin A320–57–1130, actions if they are FAA-approved. Corrective repetitive internal inspection of the lower dated September 10, 2004; or Revision 01, actions are considered FAA-approved if they stiffeners, and a repetitive external dated July 28, 2006; are acceptable for are approved by the State of Design Authority inspection of the lower panels in center and compliance with the corresponding actions (or their delegated agent). You are required outer wing box at level of rib 1 junction. of this paragraph. to assure the product is airworthy before it The corrective action includes contacting (3) Modification of the aircraft in is returned to service. Airbus for repair instructions and repair if accordance with the instructions contained (3) Reporting Requirements: For any any crack is found. in Airbus Service Bulletins A320–57–1131, reporting requirement in this AD, under the A320–57–1137, or A320–57–1140, all dated provisions of the Paperwork Reduction Act, Actions and Compliance November 21, 2006; terminates the repetitive the Office of Management and Budget (OMB) (f) Unless already done, do the following inspection requirements of this AD. has approved the information collection actions. FAA AD Differences requirements and has assigned OMB Control (1) For A320–200 aircraft: Before the Number 2120–0056. defined threshold or within the defined grace Note: This AD differs from the MCAI and/ period after the effective date of this AD, or service information as follows: Related Information whichever occurs later, as listed in paragraph (1) Although the MCAI or service (h) Refer to MCAI EASA Airworthiness 1.E., ‘‘Compliance,’’ of Airbus Service information does not specify a compliance Directive 2007–0067R1, dated June 7, 2007; Bulletin A320–57–1129, Revision 02, dated time for corrective action (repair of cracks), and Airbus Service Bulletins A320–57–1129 July 17, 2007, and following the instructions paragraphs (f)(1) and (f)(2) of this AD require and A320–57–1130, both Revision 02, both given in the service bulletin, perform an that the corrective action be done before dated July 17, 2007; for related information. internal ultrasonic inspection of the lower further flight. stiffeners in the center and outer wing box at (2) Although the MCAI and/or service Material Incorporated by Reference the level of the rib 1 junction to detect cracks, information specify a compliance time for (i) You must use the Airbus service and if any crack is found, before further flight accomplishing the inspections after the information specified in Table 1 of this AD contact Airbus for repair instructions and effective date of the MCAI, this AD requires to do the actions required by this AD, unless repair. Repeat this inspection at the intervals compliance within the specified compliance the AD specifies otherwise. defined in paragraph 1.E., ‘‘Compliance,’’ of time after the effective date of this AD. (1) The Director of the Federal Register the service bulletin. Actions done before the approved the incorporation by reference of effective date of this AD in accordance with Other FAA AD Provisions this service information under 5 U.S.C. Airbus Service Bulletin A320–57–1129, (g) The following provisions also apply to 552(a) and 1 CFR part 51. Revision 01, dated July 28, 2006, are this AD: (2) For service information identified in acceptable for compliance with the (1) Alternative Methods of Compliance this AD, contact Airbus, 1 Rond Point corresponding actions of this paragraph. (AMOCs): The Manager, International Maurice Bellonte, 31707 Blagnac Cedex, (2) For all aircraft: Before the defined Branch, ANM–116, FAA, has the authority to France. threshold or within the defined grace period approve AMOCs for this AD, if requested (3) You may review copies at the FAA, after the effective date of this AD, whichever using the procedures found in 14 CFR 39.19. Transport Airplane Directorate, 1601 Lind occurs later, as listed in paragraph 1.E., Send information to ATTN: Tim Dulin, Avenue, SW., Renton, Washington; or at the ‘‘Compliance,’’ of Airbus Service Bulletin Aerospace Engineer, International Branch, National Archives and Records A320–57–1130, Revision 02, dated July 17, ANM–116, FAA, Transport Airplane Administration (NARA). For information on 2007, and following the instructions given in Directorate, 1601 Lind Avenue, SW., Renton, the availability of this material at NARA, call the service bulletin, perform an external Washington 98057–3356; telephone (425) (202) 741–6030, or go to: http:// ultrasonic inspection of the lower stiffeners 227–2141; fax (425) 227–1149. Before using www.archives.gov/federal-register/cfr/ibr- in the center and outer wing box at the level any approved AMOC on any airplane to locations.html.

TABLE 1.—MATERIAL INCORPORATED BY REFERENCE

Airbus service bulletin Revision Date

A320–57–1129, including Appendix 01 ...... 02 ...... July 17, 2007. A320–57–1130, including Appendix 01 ...... 02 ...... July 17, 2007. A320–57–1131, including Appendix 01 and excluding Appendix 02 ...... Original ...... November 21, 2006. A320–57–1137, including Appendix 01 and excluding Appendix 02 ...... Original ...... November 21, 2006. A320–57–1140, including Appendix 01 and excluding Appendix 02 ...... Original ...... November 21, 2006.

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Issued in Renton, Washington, on January docket contains this AD, the regulatory instructions of Revision 1 of the service 14, 2008. evaluation, any comments received, and bulletins because in some cases the Stephen P. Boyd, other information. The address for the original top assembly module part Assistant Manager, Transport Airplane Docket Office (telephone 800–647–5527) number was not indicated anywhere, or Directorate, Aircraft Certification Service. is the Document Management Facility, was indicated unclearly. [FR Doc. E8–970 Filed 1–23–08; 8:45 am] U.S. Department of Transportation, The commenter believes that it is BILLING CODE 4910–13–P Docket Operations, M–30, West impossible to follow the part number Building Ground Floor, Room W12–140, change indicated in Revision 1 of the 1200 New Jersey Avenue SE., service bulletins and notes that because DEPARTMENT OF TRANSPORTATION Washington, DC 20590. it tracks the base module, it can ignore FOR FURTHER INFORMATION CONTACT: the top assembly module part number. Federal Aviation Administration Georgios Roussos, Aerospace Engineer, The commenter also states that Boeing Systems and Equipment Branch, ANM– agrees that Japan Airlines does not need 14 CFR Part 39 130S, FAA, Seattle Aircraft Certification to perform Revision 1 of the service [Docket No. FAA–2007–28973; Directorate Office, 1601 Lind Avenue SW., Renton, bulletins because the changes to the Identifier 2007–NM–118–AD; Amendment Washington 98057–3356; telephone bulletin caused by Revision 1 do not 39–15344; AD 2008–02–14] (425) 917–6482; fax (425) 917–6590. affect Japan Airlines’ fleet/units. SUPPLEMENTARY INFORMATION: We disagree with removing the RIN 2120–AA64 reference to Boeing Alert Service Discussion Airworthiness Directives; Boeing Bulletins 747–33A2280 and 767– Model 747–400, –400D, and –400F The FAA issued a notice of proposed 33A0087, both Revision 1. We Series Airplanes; Boeing Model 757 rulemaking (NPRM) to amend 14 CFR acknowledge that each operator may Airplanes; and Boeing Model 767 part 39 to include an AD that would wish to use different parts and have its Airplanes apply to certain Boeing Model 747–400, own tracking methods. However, we –400D, and –400F series airplanes; cannot accommodate every operator’s AGENCY: Federal Aviation Boeing Model 757 airplanes; and Boeing differences in each AD. We have Administration (FAA), Department of Model 767 airplanes. That NPRM was determined that the best way to handle Transportation (DOT). published in the Federal Register on such circumstances is for operators to ACTION: Final rule. August 16, 2007 (72 FR 45986). That request an alternative method of NPRM proposed to require an compliance (AMOC) in accordance with SUMMARY: The FAA is adopting a new inspection of certain lighted pushbutton paragraph (p) of this AD, rather than airworthiness directive (AD) for certain switches in the flight compartment for increasing the complexity of the AD by Boeing airplanes listed above. This AD configuration ‘D’ master modules and addressing each operator’s unique requires an inspection of certain lighted part numbers and corrective action if situation. We have not revised this AD pushbutton switches in the flight necessary. That NPRM also provided an in this regard. compartment for configuration ‘D’ option to inspect panel assemblies for Conclusion master modules and part numbers and part numbers. corrective action if necessary. This AD We have carefully reviewed the also provides an option to inspect panel Comments available data, including the comments assemblies for part numbers. This AD We provided the public the received, and determined that air safety results from a report indicating that the opportunity to participate in the and the public interest require adopting integrated drive generator failed in flight development of this AD. We have the AD as proposed. considered the comments received. due to a possible switch malfunction. Costs of Compliance We are issuing this AD to ensure that Support for the NPRM certain lighted pushbutton switches in There are about 2,511 airplanes of the the flight compartment do not Boeing, the airplane manufacturer, affected designs in the worldwide fleet. malfunction and cause the flightcrew to concurs with the content of the NPRM. This AD affects about 934 airplanes of be unable to control critical airplane Request To Remove Reference to U.S. registry. The inspection of switches takes systems and continue safe airplane Revision 1 of the Service Bulletins operation. about 8 work hours per airplane, at an Japan Airlines requests that we average labor rate of $80 per work hour. DATES: This AD becomes effective remove the reference in the NPRM to Based on these figures, the estimated February 28, 2008. Boeing Alert Service Bulletins 747– cost of the inspection for U.S. operators The Director of the Federal Register 33A2280 and 767–33A0087, both is $597,760, or $640 per airplane. approved the incorporation by reference Revision 1, both dated September 25, of certain publications listed in the AD 2003 (we referred to those service Authority for This Rulemaking as of February 28, 2008. bulletins as appropriate sources of Title 49 of the United States Code ADDRESSES: For service information service information for doing the actions specifies the FAA’s authority to issue identified in this AD, contact Boeing specified in the NPRM). The commenter rules on aviation safety. Subtitle I, Commercial Airplanes, P.O. Box 3707, notes that it has incorporated Boeing Section 106, describes the authority of Seattle, Washington 98124–2207. Alert Service Bulletins 747–33A2280 the FAA Administrator. Subtitle VII, and 767–33A0087, both dated December Aviation Programs, describes in more Examining the AD Docket 19, 2001, for its Model 747–400 and detail the scope of the Agency’s You may examine the AD docket on Model 767–200/–300 fleets. The authority. the Internet at http:// commenter notes that it strictly controls We are issuing this rulemaking under www.regulations.gov; or in person at the the configuration ‘D’ master module. the authority described in Subtitle VII, Docket Management Facility between 9 However, the commenter states it did Part A, Subpart III, Section 44701, a.m. and 5 p.m., Monday through not carry out some top assembly module ‘‘General requirements.’’ Under that Friday, except Federal holidays. The AD part number changes according to the section, Congress charges the FAA with

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promoting safe flight of civil aircraft in (2) Is not a ‘‘significant rule’’ under PART 39—AIRWORTHINESS air commerce by prescribing regulations DOT Regulatory Policies and Procedures DIRECTIVES for practices, methods, and procedures (44 FR 11034, February 26, 1979); and the Administrator finds necessary for 1. The authority citation for part 39 (3) Will not have a significant continues to read as follows: safety in air commerce. This regulation economic impact, positive or negative, is within the scope of that authority on a substantial number of small entities Authority: 49 U.S.C. 106(g), 40113, 44701. because it addresses an unsafe condition under the criteria of the Regulatory § 39.13 [Amended] that is likely to exist or develop on Flexibility Act. products identified in this rulemaking I 2. The Federal Aviation action. We prepared a regulatory evaluation Administration (FAA) amends § 39.13 of the estimated costs to comply with by adding the following new Regulatory Findings this AD and placed it in the AD docket. airworthiness directive (AD): We have determined that this AD will See the ADDRESSES section for a location to examine the regulatory evaluation. 2008–02–14 Boeing: Amendment 39–15344. not have federalism implications under Docket No. FAA–2007–28973; Executive Order 13132. This AD will List of Subjects in 14 CFR Part 39 Directorate Identifier 2007–NM–118–AD. not have a substantial direct effect on Effective Date the States, on the relationship between Air transportation, Aircraft, Aviation the national government and the States, safety, Incorporation by reference, (a) This AD becomes effective February 28, 2008. or on the distribution of power and Safety. responsibilities among the various Affected ADs Adoption of the Amendment levels of government. (b) None. For the reasons discussed above, I I Accordingly, under the authority Applicability certify that this AD: delegated to me by the Administrator, (c) This AD applies to Boeing airplanes (1) Is not a ‘‘significant regulatory the FAA amends 14 CFR part 39 as listed in Table 1 of this AD, certificated in action’’ under Executive Order 12866; follows: any category.

TABLE 1.—APPLICABILITY

Model— As identified in Boeing Alert Service Bulletin—

747–400, –400D, and –400F series airplanes ...... 747–33A2280, Revision 1, dated September 25, 2003. 757–200, –200CB, and –200PF series airplanes ...... 757–33A0044, Revision 1, dated September 25, 2003. 757–300 series airplanes ...... 757–33A0045, Revision 1, dated September 25, 2003. 767–200, –300, and –300F series airplanes ...... 767–33A0087, Revision 1, dated September 25, 2003. 767–400ER series airplanes ...... 767–33A0088, including Appendix A, dated December 19, 2001.

Unsafe Condition the compliance times specified, unless the module, and for doing various operational (d) This AD results from a report indicating actions have already been done. tests after the replacement. that the integrated drive generator (IDG) Service Bulletin References failed in flight due to possible switch Component Service Bulletin References (f) The term ‘‘the service bulletin,’’ as used malfunction. We are issuing this AD to (g) The Boeing service bulletins listed in in this AD, means the Accomplishment ensure that certain lighted pushbutton Table 1 of this AD refer to the Boeing switches in the flight compartment do not Instructions of the service bulletins listed in Table 1 of this AD, as applicable. component service bulletins specified in malfunction and cause the flightcrew to be Table 2 of this AD as additional sources of unable to control critical airplane systems Note 1: The Boeing service bulletins refer service information for replacing the switch and continue safe airplane operation. to Korry Service Bulletin 433–33–05, dated July 23, 2001, as an additional source of or switch master module at critical locations, Compliance service information for finding configuration for doing operational tests after the (e) You are responsible for having the ‘D’ switches, for replacing the switch master replacement, and for identifying new panel actions required by this AD performed within module with a configuration ‘D’ master part numbers.

TABLE 2.—BOEING COMPONENT SERVICE BULLETINS: SECONDARY SOURCES OF SERVICE INFORMATION

Boeing Component Service Bulletin— Date— Model— Critical location—

233N3203–21–01, Revision 1 ...... September 25, 757 airplanes ...... Equipment Cooling Panel. 2003. 233N3204–30–02, Revision 1 ...... September 25, 757 airplanes ...... Anti-ice Panel. 2003. 233N3206–28–02, Revision 1 ...... September 25, 757–200, –200CB, and –200PF series Fuel Control Panel. 2003. airplanes. 233N3209–24–03, Revision 1 ...... September 25, 757 airplanes and 767–200, –300, and Electrical Systems Panel. 2003. –300F series airplanes. 233N3211–24–02, Revision 1 ...... September 25, 757 airplanes and 767 airplanes ...... Battery/Standby Power Panel. 2003. 233N3215–36–01, Revision 1 ...... September 25, 757 airplanes ...... Bleed Air Panel Assembly. 2003. 233N3216–22–01, Revision 1 ...... September 25, 757 airplanes and 767 airplanes ...... Yaw Damper Panel Assembly. 2003.

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TABLE 2.—BOEING COMPONENT SERVICE BULLETINS: SECONDARY SOURCES OF SERVICE INFORMATION—Continued

Boeing Component Service Bulletin— Date— Model— Critical location—

233N3219–33–01, including Appendix A December 19, 757–200, –200CB, and –200PF series Emergency Lights/Passenger Oxygen 2001. airplanes. Panel. 233N3223–31–03, Revision 1 ...... September 25, 757 airplanes ...... Engine Start/Ram Air Turbine Panel As- 2003. sembly. 233N3224–73–01, Revision 1 ...... September 25, 757–200, –200CB, and –200PF series Electronic Engine Control Power Panel 2003. airplanes. Assembly. 233N6203–26–10, Revision 1 ...... September 25, 757 airplanes and 767–200, –300, and Auxiliary Power Unit/Cargo Fire Control 2003. –300F series airplanes. Panel Assembly. 233T3210–33–01, Revision 1 ...... September 25, 757 airplanes and 767 airplanes ...... Emergency Lights Panel. 2003. 233T3215–24–01, including Appendix A December 19, 767–400ER series airplanes ...... Electrical Control Module Assembly. 2001. 233T3235–28–05, Revision 1 ...... September 25, 767–200, –300, and –300F series air- Fuel Management Panel Assembly. 2003. planes. 233T3236–21–05, Revision 1 ...... September 25, 767 airplanes ...... Temperature Control Panel. 2003. 233T3237–36–04, Revision 1 ...... September 25, 767 airplanes ...... Bleed Air Control Panel. 2003. 233T3241–30–03, Revision 1 ...... September 25, 757–200, –200CB, and –200PF series Wing and Engine Anti-ice Control 2003. airplanes, and 767–200, –300, and Panel. –300F series airplanes. 233T3242–73–02, Revision 1 ...... September 25, 757 airplanes and 767–200, –300, and Electronic Engine Control Panel. 2003. –300F series airplanes. 233T3244–74–03, Revision 1 ...... September 25, 767 airplanes ...... Engine Ignition and Start Control Panel. 2003. 233T6211–26–01, including Appendix A December 19, 767–400ER series airplanes...... Auxiliary Power Unit and Cargo Fire 2001. Control Module Assembly. 233U3201–30–04, Revision 1 ...... September 25, 747–400, –400D, and –400F series air- Rain Removal/Anti-ice Module. 2003. planes. 233U3202–24–02, Revision 1 ...... September 25, 747–400, –400D, and –400F series air- Electrical and Standby Power/Auxiliary 2003. planes. Power Unit Start Module. 233U3203–36–01, Revision 1 ...... September 25, 747–400, –400D, and –400F series air- Bleed Air Control Module. 2003. planes. 233U3206–28–01, Revision 1 ...... September 25, 747–400, –400D, and –400F series air- Engine Ignition Control/Fuel Jettison 2003. planes. Module. 233U3208–22–02, Revision 1 ...... September 25, 747–400, –400D, and –400F series air- Passenger Oxygen and Yaw Damper 2003. planes. Module. 233U3214–26–06, Revision 1 ...... September 25, 747–400, –400D, and –400F series air- Fire Control Module. 2003. planes. 257U0002–32–04, including Appendix A December 19, 747–400, –400D, and –400F series air- Landing Gear Actuator Control Lever 2001. planes. Module Assembly.

Inspection (1) For Model 757–200, –200CB, and specified in paragraph (h) of this AD. If the (h) Within 60 months after the effective –200PF series airplanes: Switches identified part number is identified as a new part date of this AD: Do a general visual in step 1 and step 3 of Figure 1 of Boeing number in paragraph 2.E. ‘‘Existing Parts inspection of the switches specified in Alert Service Bulletin 757–33A0044, Accountability’’ or Appendix B of the paragraphs (h)(1), (h)(2), (h)(3), (h)(4), and Revision 1, dated September 25, 2003. applicable service bulletin, no further action (h)(5) of this AD, as applicable, to identify (2) For Model 757–300 series airplanes: is required. If the part number is not configuration ‘D’ master modules and the Switches identified in step 1 of Figure 1 of identified as a new part number, the part number (P/N) of the switch, in Boeing Alert Service Bulletin 757–33A0045, inspection required by paragraph (h) of this accordance with the applicable service Revision 1, dated September 25, 2003. AD must be done at the specified time. bulletin, except as provided by paragraph (i) (3) For Model 767–200, –300, and –300F (1) For switches identified in paragraphs series airplanes: Switches identified in step of this AD. (h)(1), (h)(2), (h)(3), and (h)(4) of this AD: P3– 1 of Figure 1 of Boeing Alert Service Bulletin Note 2: For the purposes of this AD, a 1 and P10 panel assemblies, as applicable. 767–33A0087, Revision 1, dated September (2) For switches identified in paragraph general visual inspection is ‘‘A visual 25, 2003. (h)(5) of this AD: The panel assemblies examination of a interior or exterior area, (4) For Model 767–400ER series airplanes: identified in the applicable service bulletin. installation or assembly to detect obvious Switches identified in step 1 of Figure 1 of damage, failure or irregularity. This level of Boeing Alert Service Bulletin 767–33A0088, Corrective Action inspection is made from within touching dated December 19, 2001. (j) If during any inspection required by distance unless otherwise specified. A mirror (5) For all airplanes: Switches identified paragraph (h) of this AD, any switch is found may be necessary to ensure visual access to for the panel assemblies specified in the all surfaces in the inspection area. This level applicable service bulletin. that does not have a configuration ‘D’ switch of inspection is made under normal available master module and no switch part number lighting conditions such as daylight, hangar Optional Inspection specified in paragraph (j)(1)(i) or (j)(1)(ii) of lighting, flashlight or drop-light and may (i) Instead of doing the inspection required this AD is found: Before further flight, do the require removal or opening of access panels by paragraph (h) of this AD, operators may actions specified in either paragraph (j)(1) or or doors. Stands, ladders or platforms may be inspect the part number of the panel (j)(2) of this AD and do the part number required to gain proximity to the area being assemblies specified in paragraphs (i)(1) and revision, as applicable, specified in checked.’’ (i)(2) of this AD, as applicable, at the time paragraph (j)(3) of this AD.

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(1) Replace the switch with a switch (l)(2) of this AD for installation, as Boeing Alert Service Bulletin 747–33A2280, specified in paragraph (j)(1)(i), (j)(1)(ii), or applicable. 757–33A0044, 757–33A0045, or 767– (j)(1)(iii) of this AD, in accordance with the (1) Remove the module/panel assembly by 33A0087, all dated December 19, 2001, are applicable service bulletin, except as doing the actions specified in paragraphs considered acceptable for compliance with provided by paragraph (k) of this AD. (l)(1)(i), (l)(1)(ii), and (l)(1)(iii) of this AD. the corresponding action specified in this (i) Switches having Boeing P/N S231T290– (i) Hold the module/panel assembly in AD, provided that the actions specified in position and loosen the quick-release screws. 4201 through –4325 inclusive. this AD are done on the switches for the (ii) Carefully lower the module/panel (ii) Switches having Korry P/N additional panel assemblies specified in 4336731004–4201 through –4325 inclusive. assembly from the overhead panel. (iii) Remove the electrical connectors Revision 1 of the service bulletin. Note 3: One-to-one switch correlation attached to the rear of the module/panel between the existing switches and the new Alternative Methods of Compliance assembly. (AMOCs) part number switches can be found in Korry (2) Install the module/panel assembly by Service Bulletin 433–33–06, dated November doing the actions specified in paragraphs (p)(1) The Manager, Seattle ACO, has the 7, 2001. (l)(2)(i) and (l)(2)(ii) of this AD. authority to approve AMOCs for this AD, if (iii) Switches that have a configuration ‘D’ (i) Make sure that the module/panel requested in accordance with the procedures master module. assembly is correctly aligned, and connect found in 14 CFR 39.19. (2) Replace the switch master module with the electrical connectors to the rear of the (2) To request a different method of a new configuration ‘D’ master module in unit. compliance or a different compliance time accordance with the applicable service (ii) Carefully lift the module/panel for this AD, follow the procedures in 14 CFR bulletin. assembly into position and install it with the 39.19. Before using any approved AMOC on (3) If all switches on a panel assembly have quick-release screws. any airplane to which the AMOC applies, a configuration ‘D’ master module or have a Operational Tests notify your appropriate principal inspector switch part number specified in paragraph (PI) in the FAA Flight Standards District (j)(1)(i) or (j)(1)(ii) of this AD: Revise the part (m) If any panel assemblies, switches, or master modules are replaced during any Office (FSDO), or lacking a PI, your local number of the panel assembly in accordance FSDO. with the applicable service bulletin. action required by this AD: Before further (k) If during any inspection required by flight, do all applicable operational tests in Material Incorporated by Reference accordance with the applicable service paragraph (h) of this AD, a configuration ‘D’ bulletin, except as provided by paragraph (n) (q) You must use the service bulletins switch master module is found or the switch of this AD. listed in Table 3 of this AD to perform the part number is specified in paragraph (j)(1)(i) (n) Where paragraph 3.B.14.b.(3) of the actions that are required by this AD, unless or (j)(1)(ii) of this AD on all switches for a Accomplishment Instructions of Boeing Alert the AD specifies otherwise. The Director of panel assembly: Before further flight, revise Service Bulletin 747–33A2280, Revision 1, the Federal Register approved the the part number of the panel assembly, in dated September 25, 2003, specifies incorporation by reference of these accordance with the applicable service procedures to do a test of the engine ignition documents in accordance with 5 U.S.C. bulletin. control/fuel jettison module assembly, this 552(a) and 1 CFR part 51. Contact Boeing Contact the FAA/Removal and Installation AD requires that operators dry-motor the Commercial Airplanes, P.O. Box 3707, Procedures engine to remove the fuel from the tailpipe Seattle, Washington 98124–2207, for a copy before doing the procedures in paragraph (l) If the applicable service bulletin of this service information. You may review 3.B.14.b.(3). All fuel must be removed from copies at the FAA, Transport Airplane specifies removal or installation of certain the engine tailpipe before performing the test, Directorate, 1601 Lind Avenue SW., Renton, parts and does not specify removal or because during the test the engine igniter will installation instructions: Before further flight, be energized. Washington; or at the National Archives and remove or install those parts according to a Records Administration (NARA). For method approved by the Manager, Seattle Actions Accomplished According to information on the availability of this Aircraft Certification Office (ACO), FAA, or Previous Issue of Service Bulletins material at NARA, call 202–741–6030, or go by doing the actions specified in paragraph (o) Actions accomplished before the to: http://www.archives.gov/federal-register/ (l)(1) of this AD for removal or paragraph effective date of this AD in accordance with cfr/ibr-locations.html.

TABLE 3.—MATERIAL INCORPORATED BY REFERENCE

Boeing Alert Service Bulletin— Revision— Dated—

747–33A2280 ...... 1 ...... September 25, 2003. 757–33A0044 ...... 1 ...... September 25, 2003. 757–33A0045 ...... 1 ...... September 25, 2003. 767–33A0087 ...... 1 ...... September 25, 2003. 767–33A0088, including Appendix A ...... Original ...... December 19, 2001.

Issued in Renton, Washington, on January DEPARTMENT OF TRANSPORTATION ACTION: Direct final rule; confirmation of 14, 2008. effective date. Stephen P. Boyd, Federal Aviation Administration SUMMARY: This action confirms the Assistant Manager, Transport Airplane effective date of a direct final rule that Directorate, Aircraft Certification Service. 14 CFR Part 71 amends a Class E airspace area to [FR Doc. E8–969 Filed 1–23–08; 8:45 am] support Area Navigation (RNAV) Global BILLING CODE 4910–13–P [Docket No. FAA–2005–22492; Airspace Docket No. 05–AEA–020] Positioning System (GPS) Special Instrument Approach Procedures (IAPs) Amendment of Class E Airspace; St. that serve the Elk Regional Medical Marys, PA Center (7PS9), St. Marys, PA. DATES: Effective 0901 UTC, December AGENCY: Federal Aviation 20, 2007. The Director of the Federal Administration (FAA), DOT. Register approves this incorporation by

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reference action under Title 1, Code of reference action under Title 1, Code of Localizer (LOC) and confirms the Federal Regulations, part 51, subject to Federal Regulations, part 51, subject to effective date of the direct final rule that the annual revision of FAA Order the annual revision of FAA Order amends Class E airspace to support an 7400.9 and publication of conforming 7400.9 and publication of conforming Instrument Approach Procedure serving amendments. amendments. the Centre Community Hospital (PS57), State College, PA. FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: Daryl Daniels, Airspace Specialist, Daryl Daniels, Airspace Specialist, DATES: Effective 0901 UTC, December System Support, AJO2–E2B.12, FAA System Support, AJO2–E2B.12, FAA 20, 2007. The Director of the Federal Eastern Service Center, 1701 Columbia Eastern Service Center, 1701 Columbia Register approves this incorporation by Ave., College Park, GA 30337; telephone Ave., College Park, GA 30337; telephone reference action under Title 1, Code of (404) 305–5581; fax (404) 305–5572. (404) 305–5581; fax (404) 305–5572. Federal Regulations, part 51, subject to the annual revision of FAA Order SUPPLEMENTARY INFORMATION: SUPPLEMENTARY INFORMATION: 7400.9 and publication of conforming Confirmation of Effective Date Confirmation of Effective Date amendments. The FAA published this direct final The FAA published this direct final FOR FURTHER INFORMATION CONTACT: rule with a request for comments in the rule with a request for comments in the Daryl Daniels, Airspace Specialist, Federal Register on October 30, 2007 Federal Register on November 2, 2007 System Support, AJO2–E2B.12, FAA (72 FR 61296–61297). The FAA uses the (72 FR 62108–62110). The FAA uses the Eastern Service Center, 1701 Columbia direct final rulemaking procedure for a direct final rulemaking procedure for a Ave., College Park, GA 30337; telephone non controversial rule where the FAA non-controversial rule where the FAA (404) 305–5581; fax (404) 305–5572. believes that there will be no adverse believes that there will be no adverse SUPPLEMENTARY INFORMATION: public comment. This direct final rule public comment. This direct final rule Confirmation of Effective Date advised the public that no adverse advised the public that no adverse comments were anticipated, and that comments were anticipated, and that The FAA published this direct final unless a written adverse comment, or a unless a written adverse comment, or a rule with a request for comments in the written notice of intent to submit such written notice of intent to submit such Federal Register on October 30 (72 FR an adverse comment, were received an adverse comment, were received 61293) amending Class E airspace to within the comment period, the within the comment period, the support a Special Copter Point in Space regulation would become effective on regulation would become effective on Instrument Approach Procedure into the December 20, 2007. No adverse December 20, 2007. No adverse Centre Community Hospital (PS57). The comments were received, and thus this comments were received, and thus this FAA uses the direct final rulemaking notice confirms that effective date. notice confirms that effective date. procedure for a non controversial rule where the FAA believes that there will Issued in College Park, GA on December Issued in College Park, GA, on December be no adverse public comment. This 17, 2007. 17, 2007. direct final rule advised the public that Mark D. Ward, Mark D. Ward, no adverse comments were anticipated, Manager, System Support Group, Eastern Manager, System Support Group, Eastern and that unless a written adverse Service Center. Service Center. comment, or a written notice of intent [FR Doc. 08–203 Filed 1–23–08; 8:45 am] [FR Doc. 08–204 Filed 1–23–08; 8:45 am] to submit such an adverse comment, BILLING CODE 4910–13–M BILLING CODE 4910–13–M were received within the comment period, the regulation would become effective on December 20, 2007. No DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION adverse comments were received, and thus this notice confirms that this direct Federal Aviation Administration Federal Aviation Administration final rule will become effective on that date. 14 CFR Part 71 14 CFR Part 71 Correction to Final Rule [Docket No. FAA–2005–22490; Airspace [Docket No. FAA–2007–29375; Airspace Docket No. 05–AEA–018] Docket No. 07–AEA–06] I After publication, it was observed that a technical correction was required to Amendment of Class E Airspace; Amendment of Class E Airspace; State correct the geographical coordinates for Pottsville, PA College, PA the University Park Airport and to add AGENCY: Federal Aviation AGENCY: Federal Aviation the University Park Airport’s ILS LOC Administration (FAA), DOT. Administration (FAA), DOT. with its coordinates to the legal description. Therefore, in the Federal ACTION: Direct final rule; confirmation of ACTION: Direct final rule; correction, effective date. confirmation of effective date. Register Docket No. FAA–2007–29375; Airspace Docket No. 07–AEA–06, SUMMARY: This action confirms the SUMMARY: The Federal Aviation published October 10, 2007, (72 FR effective date of a direct final rule that Administration published in the 61293–61294) make the following amends a Class E airspace area to Federal Register of October 30, 2007, correction. On page 61294, in the support Area Navigation (RNAV) Global (72 FR 61293–61294), a document second column, immediately under Positioning System (GPS) Special amending Class E airspace at State ‘‘University Park Airport, State College, Instrument Approach Procedures (IAPs) College, PA. This action technically PA’’, correct the geographical that serve the Pottsville Hospital (91PN), corrects the geographical coordinates of coordinates to read ‘‘(lat. 40°50′57″ N., Pottsville, PA. the University Park Airport, adds the Long. 77°50′55″ W.)’’ On the next line DATES: Effective 0901 UTC, December coordinates for the University Park add the following: 20, 2007. The Director of the Federal Airport, adds the coordinates for the University Park Airport ILS LOC Register approves this incorporation by Instrument Landing System’s (ILS) (Lat. 40°50′38″ N., long. 77°51′30″ W.)

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I For verification and to avoid Federal Register approves this Issued in Seattle, Washington, on January confusion, the entire description should incorporation by reference action under 3, 2008. read as follows: 1 CFR part 51, subject to the annual Clark Desing Paragraph 6005 Class E Airspace Areas revision of FAA Order 7400.9 and Manager, System Support Group, Western Extending Upward from 700 feet or More publication of conforming amendments. Service Center. Above the Surface of the Earth. [FR Doc. E8–846 Filed 1–23–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: BILLING CODE 4910–13–P * * * * * Eldon Taylor, Federal Aviation AEA PA E5 State College, PA [AMENDED] Administration, System Support Group, University Park Airport, State College, PA Western Service Area, 1601 Lind DEPARTMENT OF TRANSPORTATION (Lat. 40°50′57″ N., long. 77°50′55″ W.) Avenue, SW., Renton, WA 98057; University Park Airport ILS LOC telephone (425) 917–6726. Federal Aviation Administration (Lat. 40°50′38″ N., long. 77°51′30″ W.) SUPPLEMENTARY INFORMATION: PENUE NDB 14 CFR Part 97 ° ′ ″ ° ′ ″ (Lat. 40 54 37 N., long. 77 44 30 W.) History Centre Community Hospital, State College, [Docket No. 30587; Amdt. No. 3251] PA On October 30, 2007, a final rule for Standard Instrument Approach Point in Space Coordinates Airspace Docket No. 07–ANM–4, FAA (Lat. 40°49′14″ N., long. 77°49′44″ W.) Procedures, and Takeoff Minimums Docket No. FAA–2007–27430 was That airspace extending upward from 700 and Obstacle Departure Procedures; published in the Federal Register (72 feet above the surface within a 6.5-mile Miscellaneous Amendments radius of University Park Airport and within FR 61300), establishing Class E airspace 3.1 miles each side of the University Park in Springfield, CO. The longitude AGENCY: Federal Aviation Airport ILS Runway 24 localizer course referencing Springfield Municipal Administration (FAA), DOT. extending from the PENUE NDB to 9.2 miles Airport, CO was incorrect in that the ACTION: Final rule. northeast of the NDB; and that airspace longitude stated ‘‘* * * long. within a 6-mile radius of the point in space ° ′ ″ SUMMARY: This Rule establishes, ° ′ ″ ° ′ ″ 103 37 05 W.’’ instead of ‘‘* * * long. (Lat. 40 49 14 N., long. 77 49 44 W.) 102°37′05″ W.’’. Also added to the legal amends, suspends, or revokes Standard serving the Centre Community Hospital. description is the location of the TOBE Instrument Approach Procedures * * * * * VORTAC. This action corrects those (SIAPs) and associated Takeoff Issued in College Park, GA, on December errors. Minimums and Obstacle Departure 17, 2007. Procedures for operations at certain Mark D. Ward, Correction to Final Rule airports. These regulatory actions are needed because of the adoption of new Manager, System Support Group, Eastern I Service Center. Accordingly, pursuant to the authority or revised criteria, or because of changes delegated to me, the legal description as [FR Doc. 08–205 Filed 1–23–08; 8:45 am] occurring in the National Airspace published in the Federal Register on BILLING CODE 4910–13–M System, such as the commissioning of October 30, 2007 (72 FR 61300), new navigational facilities, adding new Airspace Docket No. 07–ANM–4, FAA obstacles, or changing air traffic DEPARTMENT OF TRANSPORTATION Docket No. FAA–2007–27430, and requirements. These changes are incorporated by reference in 14 CFR designed to provide safe and efficient Federal Aviation Administration 71.1, is corrected as follows: use of the navigable airspace and to promote safe flight operations under § 71.1 [Amended] 14 CFR Parts 71 instrument flight rules at the affected I [Docket FAA No. FAA–2007–27430; On page 61301, correct the legal airports. Airspace Docket No. 07–ANM–4] description for Springfield, CO, to read DATES: This rule is effective January 24, as follows: 2008. The compliance date for each Establishment of Class E Airspace; Paragraph 6005 Class E airspace areas SIAP, associated Takeoff Minimums, Springfield, CO extending upward from 700 feet or more and ODP is specified in the amendatory AGENCY: Federal Aviation above the surface of the earth. provisions. Administration (FAA), DOT. * * * * * The incorporation by reference of ACTION: Final rule; correction. certain publications listed in the ANM CO, E5 Springfield, CO [New] regulations is approved by the Director SUMMARY: This action corrects a final Springfield Municipal Airport, CO of the Federal Register as of January 24, rule published in the Federal Register (Lat. 37°27′31″ N., long. 102°37′05″ W.) 2008. October 30, 2007 (72 FR 61300), TOBE VORTAC ADDRESSES: Availability of matters Airspace Docket No. 07–ANM–4, FAA (Lat. 37°15′31″ N., long. 103°36′00″ W.) incorporated by reference in the Docket No. FAA–2007–27430. In that That airspace extending upward from 700 amendment is as follows: rule, an error was made in the legal feet above the surface within a 7.0-mile For Examination— description for Springfield, CO. radius of Springfield Municipal Airport; that 1. FAA Rules Docket, FAA Specifically, the longitude referencing airspace extending upward from 1,200 feet Headquarters Building, 800 Springfield, Municipal Airport, CO above the surface beginning at TOBE Independence Avenue, SW., stated ‘‘* * * long. 103°37′05″ W.’’ VORTAC, thence north along V–169 to lat. Washington, DC 20591; instead of ‘‘* * * long. 102°37′05″ W.’’ 38°34′00″ N., thence to lat. 38°34′00″ N., 2. The FAA Regional Office of the Also added to the legal description is long. 102°00′00″ W., thence to lat. 36°30′00″ region in which the affected airport is the location of the TOBE VORTAC. This N., long. 102°00′00″ W., thence west on lat. located; action corrects those errors. 36°30′00″ N. to V–81, thence northwest along 3. The National Flight Procedures DATES: Effective Date: 0901 UTC, V–81 to point of beginning. Office, 6500 South MacArthur Blvd., February 14, 2008. The Director of the * * * * * Oklahoma City, OK 73169 or,

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4. The National Archives and Records amendment also identifies the airport List of Subjects in 14 CFR Part 97 Administration (NARA). For and its location, the procedure, and the Air Traffic Control, Airports, information on the availability of this amendment number. Incorporation by reference, and material at NARA, call 202–741–6030, Navigation (Air). or go to: http://www.archives.gov/ The Rule federal_register/ Issued in Washington, DC on December 28, This amendment to 14 CFR part 97 is 2007. code_of_federal_regulations/ _ effective upon publication of each James J. Ballough, ibr locations.html. separate SIAP, Takeoff Minimums and Availability—All SIAPs and Takeoff Director, Flight Standards Service. ODP as contained in the transmittal. Minimums and ODPs are available Some SIAP and Takeoff Minimums and Adoption of the Amendment online free of charge. Visit nfdc.faa.gov to register. Additionally, individual textual ODP amendments may have I Accordingly, pursuant to the authority SIAP and Takeoff Minimums and ODP been issued previously by the FAA in a delegated to me, under Title 14, Code of copies may be obtained from: Flight Data Center (FDC) Notice to Federal Regulations, Part 97 (14 CFR 1. FAA Public Inquiry Center (APA– Airmen (NOTAM) as an emergency part 97) is amended by establishing, 200), FAA Headquarters Building, 800 action of immediate flight safety relating amending, suspending, or revoking Independence Avenue, SW., directly to published aeronautical Standard Instrument Approach Washington, DC 20591; or charts. The circumstances which Procedures and/or Takeoff Minimums 2. The FAA Regional Office of the created the need for some SIAP and and/or Obstacle Departure Procedures region in which the affected airport is Takeoff Minimums and ODP effective at 0901 UTC on the dates located. amendments may require making them specified, as follows: FOR FURTHER INFORMATION CONTACT: effective in less than 30 days. For the remaining SIAPs and Takeoff PART 97— STANDARD INSTRUMENT Harry. J. Hodges, Flight Procedure APPROACH PROCEDURES Standards Branch (AFS–420), Flight Minimums and ODPs, an effective date Technologies and Programs Division, at least 30 days after publication is I 1. The authority citation for part 97 Flight Standards Service, Federal provided. continues to read as follows: Aviation Administration, Mike Further, the SIAPs and Takeoff Authority: 49 U.S.C. 106(g), 40103, 40106, Monroney Aeronautical Center, 6500 Minimums and ODPs contained in this 40113, 40114, 40120, 44502, 44514, 44701, South MacArthur Blvd., Oklahoma City, amendment are based on the criteria 44719, 44721–44722. OK 73169 (Mail Address: P.O. Box contained in the U.S. Standard for I 2. Part 97 is amended to read as 25082, Oklahoma City, OK 73125) Terminal Instrument Procedures follows: telephone: (405) 954–4164. (TERPS). In developing these SIAPs and Effective 14 FEB 2008 SUPPLEMENTARY INFORMATION: This rule Takeoff Minimums and ODPs, the amends Title 14 of the Code of Federal TERPS criteria were applied to the Bettles, AK, Bettles, LOC/DME RWY 1, Amdt Regulations, Part 97 (14 CFR part 97), by conditions existing or anticipated at the 5A establishing, amending, suspending, or Gadsden, AL, Northeast Alabama Regional, affected airports. Because of the close RNAV (GPS) RWY 6, Orig revoking SIAPs, Takeoff Minimums and immediate relationship between Gadsden, AL, Northeast Alabama Regional, and/or ODPs. The complete regulatory these SIAPs, Takeoff Minimums and RNAV (GPS) RWY 18, Orig description of each SIAP and its ODPs, and safety in air commerce, I find Gadsden, AL, Northeast Alabama Regional, associated Takeoff Minimums or ODP that notice and public procedure before RNAV (GPS) RWY 24, Orig for an identified airport is listed on FAA adopting these SIAPs, Takeoff Gadsden, AL, Northeast Alabama Regional, form documents which are incorporated Minimums and ODPs are impracticable RNAV (GPS) RWY 36, Orig by reference in this amendment under 5 Gadsden, AL, Northeast Alabama Regional, and contrary to the public interest and, GPS RWY 24, Orig-B, CANCELLED U.S.C. 552(a), 1 CFR part 51, and 14 where applicable, that good cause exists CFR part 97.20. The applicable FAA Gadsden, AL, Northeast Alabama Regional, for making some SIAPs effective in less VOR RWY 6, Amdt 13 Forms are FAA Forms 8260–3, 8260–4, than 30 days. Gadsden, AL, Northeast Alabama Regional, 8260–5, 8260–15A, and 8260–15B when Takeoff Minimums and Obstacle DP, Amdt required by an entry on 8260–15A. Conclusion 3 The large number of SIAPs, Takeoff Mobile, AL, Mobile Regional, ILS OR LOC Minimums and ODPs, in addition to The FAA has determined that this RWY 14, Amdt 30 their complex nature and the need for regulation only involves an established Mobile, AL, Mobile Regional, ILS OR LOC a special format make publication in the body of technical regulations for which RWY 32, Amdt 6A Federal Register expensive and frequent and routine amendments are Mobile, AL, Mobile Regional, RNAV (GPS) impractical. Furthermore, airmen do not necessary to keep them operationally RWY 14, Amdt 1 Mobile, AL, Mobile Regional, RNAV (GPS) use the regulatory text of the SIAPs, current. It, therefore—(1) Is not a ‘‘significant regulatory action’’ under RWY 32, Amdt 1 Takeoff Minimums or ODPs, but instead Mobile, AL, Mobile Regional, Takeoff refer to their depiction on charts printed Executive Order 12866; (2) is not a Minimums and Obstacle DP, Orig by publishers of aeronautical materials. ‘‘significant rule’’ under DOT Troy, AL, Troy Muni, RNAV (GPS) RWY 14, Thus, the advantages of incorporation Regulatory Policies and Procedures (44 Orig by reference are realized and FR 11034; February 26, 1979); and (3) Troy, AL, Troy Muni, RNAV (GPS) RWY 25, publication of the complete description does not warrant preparation of a Orig of each SIAP, Takeoff Minimums, and regulatory evaluation as the anticipated Troy, AL, Troy Muni, RNAV (GPS) RWY 32, ODP listed on FAA forms is impact is so minimal. For the same Orig reason, the FAA certifies that this Benton, AR, Saline County/Watts Field, GPS unnecessary. This amendment provides RWY 17, Orig-A, (CANCELLED) the affected CFR sections and specifies amendment will not have a significant Benton, AR, Saline County/Watts Field, GPS the types of SIAPs and the effective economic impact on a substantial RWY 35, Orig-A, (CANCELLED) dates of the SIAPs, the associated number of small entities under the Benton, AR, Saline County/Watts Field, Takeoff Minimums, and ODPs. This criteria of the Regulatory Flexibility Act. VOR–A, Amdt 6, Orig-A, (CANCELLED)

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Pagosa Springs, CO, Stevens Field, RNAV Corinth, MS, Roscoe Turner, ILS OR LOC Pasco, WA, Tri-Cities, RNAV (GPS) RWY 12, (GPS)–A, Orig RWY 18, Amdt 2 Orig Pagosa Springs, CO, Stevens Field, Takeoff Corinth, MS, Roscoe Turner, RNAV (GPS) Pasco, WA, Tri-Cities, RNAV (GPS) RWY 30, Minimums and Obstacle DP, Orig RWY 18, Amdt 1 Amdt 1 LaVerne, CA, Brackett Field, ILS RWY 26L, Corinth, MS, Roscoe Turner, RNAV (GPS) Pasco, WA, Tri-Cities, VOR RWY 21R, Amdt Amdt 3 RWY 36, Orig 5A LaVerne, CA, Brackett Field, LOC RWY 26L, Corinth, MS, Roscoe Turner, Takeoff Appleton, WI, Outagamie County Regional, Orig Minimums and Obstacle DP, Orig ILS OR LOC RWY 3, Amdt 17 Modesto, CA, Modesto City-Co-Harry Sham Winona, MS, Winona-Montgomery County, Effective 13 MAR 2008 Fld, ILS O RLOC/DME RWY 28R, Amdt 14 RNAV (GPS) RWY 3, Orig Placerville, CA, Placerville, RNAV (GPS) Winona, MS, Winona-Montgomery County, Rockland, ME, Knox County Regional, ILS RWY 5, Orig RNAV (GPS) RWY 21, Orig OR LOC RWY 13, Amdt 1C Placerville, CA, Placerville, GPS RWY 5, Winona, MS, Winona-Montgomery County, Waterville, MD, Waterville Robert LaFleur, Amdt 1A, CANCELLED Takeoff Minimums and Obstacle DP, Orig ILS OR LOC RWY 5, Amdt 2B Placerville, CA, Placerville, Takeoff Rutherfordton, NC, Rutherford Co/Marchman Seattle, WA, Boeing Field/King County Intl, Minimums and Obstacle DP, Amdt 2 Field, LOC RWY 1, Amdt 2A RNAV (GPS) Z RWY 13R, Orig-A Adel, GA, Cook County, RNAV (GPS) RWY Beatrice, NE, Beatrice Muni, VOR RWY 13, Effective 10 APR 2008 5, Orig Amdt 17 Oroville, CA, Oroville Muni, NDB RWY 1, Adel, GA, Cook County, GPS RWY 5, Orig, Beatrice, NE, Beatrice Muni, VOR RWY 17, Amdt 3, CANCELLED CANCELLED Amdt 1 Augusta, GA, Augusta Regional At Bush Petaluma, CA, Petaluma Muni, VOR RWY 29, Beatrice, NE, Beatrice Muni, VOR RWY 35, Orig, CANCELLED Field, Takeoff Minimums and Obstacle DP, Amdt 8 Amdt 12 Red Bluff, CA, Red Bluff Muni, NDB RWY Beatrice, NE, Beatrice Muni, Takeoff 33, Amdt 2A, CANCELLED Augusta, GA, Daniel Field, Takeoff Minimums and Obstacle DP, Orig Minimums and Obstacle DP, Amdt 5 Burlington, VT, Burlington Intl, ILS OR LOC/ Omaha, NE, Epply Field, ILS OR LOC RWY DME RWY 33, Amdt 1 Canton, GA, Cherokee County, RNAV (GPS) 32L, Amdt 1 RWY 4, ORIG Burlington, VT, Burlington Intl, Takeoff Omaha, NE, Epply Field, ILS OR LOC/DME Minimums and Obstacle DP, Amdt 12 Canton, GA, Cherokee County, GPS RWY 4, RWY 14L, Amdt 1 Amdt 1, CANCELLED Newport, VT, Newport State, NDB–A, Amdt Omaha, NE, Epply Field, ILS OR LOC/DME 3, CANCELLED Thomson, GA, Thomson-McDuffie County, RWY 14R, ILS RWY 14R (CAT II), ILS The FAA published an Amendment in Takeoff Minimums and Obstacle DP, Orig RWY 14R (CAT III), Amdt 4 Vidalia, GA, Vidalia Regional, Takeoff Docket No. 30583, Amdt No. 3247 to Part 97 Omaha, NE, Epply Field, RNAV (GPS) RWY Minimums and Obstacle DP, Amdt 1 of the Federal Aviation Regulations (Vol 72, 14L, Amdt 1 Corning, IA, Corning Muni, RNAV (GPS) FR No. 239, Page 70774; dated December 13, Omaha, NE, Epply Field, Takeoff Minimums RWY 18, Orig 2007) under section 97.29 effective 14 and Obstacle DP, Orig Corning, IA, Corning Muni, NDB RWY 18, February 2008, which is hereby rescinded as Las Vegas, NV, North Las Vegas, Takeoff Amdt 2 follows: Benton, KS, Lloyd Strearman Field, RNAV Minimums and Obstacle DP, Amdt 3 Wagoner, OK, Hefner-Easley, RNAV (GPS) Cahokia/St Louis, IL, St Louis Downtown, (GPS) RWY 17, Orig ILS OR LOC RWY 30L, Amdt 9 Benton, KS, Lloyd Strearman Field, GPS RWY 18, Amdt 1 RWY 17, Orig, (CANCELLED) Wagoner, OK, Hefner-Easley, RNAV (GPS) [FR Doc. E8–853 Filed 1–23–08; 8:45 am] RWY 36, Amdt 1 Danville, KY, Stuart Powell Field, RNAV BILLING CODE 4910–13–P (GPS) RWY 12, Orig Wagoner, OK, Hefner-Easley, Takeoff Danville, KY, Stuart Powell Field, RNAV Minimums and Obstacle DP, Orig (GPS) RWY 30, Orig Factoryville, PA, Seamans Field, RNAV DEPARTMENT OF TRANSPORTATION Danville, KY, Stuart Powell Field, NDB–A, (GPS) RWY 4, Orig Amdt 8 Factoryville, PA, Seamans Field, VOR OR Federal Aviation Administration Lafayette, LA, VOR RWY 4R, Amdt 2, GPS–A, Amdt 1, CANCELLED Factoryville, PA, Seamans Field, Takeoff (CANCELLED) 14 CFR Part 97 Austin, MN, Austin Muni, RNAV (GPS) RWY Minimums and Obstacle DP, Amdt 2 17, Orig Aiken, SC, Aiken Muni, Takeoff Minimums [Docket No. 30588; Amdt. No. 3252] Austin, MN, Austin Muni, VOR/DME–A, and Obstacle DP, Amdt 1 Amdt 2 Charleston, SC, Charleston AFB/Intl, Takeoff Standard Instrument Approach Austin, MN, Austin Muni, VOR RWY 17, Minimums and Obstacle DP, Amdt 6 Procedures, and Takeoff Minimums Amdt 2 Arlington, TX, Arlington Muni, ILS OR LOC/ and Obstacle Departure Procedures; DME RWY 34, Orig-A Austin, MN, Austin Muni, VOR RWY 35, Miscellaneous Amendments Amdt 2 Dallas, TX, Dallas Executive, ILS OR LOC Austin, MN, Austin Muni, Takeoff RWY 31. Amdt 8 AGENCY: Federal Aviation Minimums and Obstacle DP, Orig Ingleside, TX, T P MC Campbell, RNAV Administration (FAA), DOT. Jackson, MN, Jackson Muni, RNAV (GPS) (GPS) RWY 13, Amdt 1 ACTION: RWY 13, Orig Ingleside, TX, T P MC Campbell, RNAV Final rule. (GPS) RWY 31, Amdt 1 Jackson, MN, Jackson Muni, RNAV (GPS) SUMMARY: Kountze/Silsbee, TX, Hawthorne Field, This Rule establishes, RWY 31, Orig amends, suspends, or revokes Standard Jackson, MN, Jackson Muni, GPS RWY 31, RNAV (GPS) RWY 13, Orig Amdt 1, (CANCELLED) Kountze/Silsbee, TX, Hawthorne Field, NDB Instrument Approach Procedures Jackson, MN, Jackson Muni, Takeoff RWY 13, Amdt 3 (SIAPs) and associated Takeoff Minimum and Obstacle DP, Orig Kountze/Silsbee, TX, Hawthorne Field, Minimums and Obstacle Departure Harrisonville, MO, Lawrence Smith Takeoff Minimums and Obstacle DP, Orig Procedures for operations at certain Memorial, RNAV (GPS) RWY 17, Orig Luray, VA, Luray Caverns, NDB–A, Amdt 6 airports. These regulatory actions are Harrisonville, MO, Lawrence Smith Luray, VA, Luray Caverns, RNAV (GPS) RWY needed because of the adoption of new Memorial, RNAV (GPS) RWY 35, Orig 22, Orig or revised criteria, or because of changes Luray, VA, Luray Caverns, GPS RWY 22, Harrisonville, MO, Lawrence Smith occurring in the National Airspace Memorial, GPS RWY 35, Orig-A, Amdt 1, CANCELLED (CANCELLED) Pasco, WA, Tri-Cities, ILS OR LOC RWY 21R, System, such as the commissioning of Harrisonville, MO, Lawrence Smith Amdt 11A new navigational facilities, adding new Memorial, Takeoff Minimums and Obstacle Pasco, WA, Tri-Cities, RNAV (GPS) RWY 3L, obstacles, or changing air traffic DP, Orig Orig requirements. These changes are

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designed to provide safe and efficient description of each SIAP and its adopting these SIAPs, Takeoff use of the navigable airspace and to associated Takeoff Minimums or ODP Minimums and ODPs are impracticable promote safe flight operations under for an identified airport is listed on FAA and contrary to the public interest and, instrument flight rules at the affected form documents which are incorporated where applicable, that good cause exists airports. by reference in this amendment under 5 for making some SIAPs effective in less U.S.C. 552(a), 1 CFR part 51, and 14 DATES: This rule is effective January 24, than 30 days. CFR part 97.20. The applicable FAA 2008. The compliance date for each Forms are FAA Forms 8260–3, 8260–4, Conclusion SIAP, associated Takeoff Minimums, 8260–5, 8260–15A, and 8260–15B when The FAA has determined that this and ODP is specified in the amendatory required by an entry on 8260–15A. regulation only involves an established provisions. The large number of SIAPs, Takeoff body of technical regulations for which The incorporation by reference of Minimums and ODPs, in addition to frequent and routine amendments are certain publications listed in the their complex nature and the need for necessary to keep them operationally regulations is approved by the Director a special format make publication in the current. It, therefore—(1) Is not a of the Federal Register as of January 24, Federal Register expensive and ‘‘significant regulatory action’’ under 2008. impractical. Furthermore, airmen do not Executive Order 12866; (2) is not a ADDRESSES: Availability of matters use the regulatory text of the SIAPs, ‘‘significant rule’’ under DOT incorporated by reference in the Takeoff Minimums or ODPs, but instead Regulatory Policies and Procedures (44 amendment is as follows: refer to their depiction on charts printed FR 11034; February 26, 1979); and (3) For Examination— by publishers of aeronautical materials. does not warrant preparation of a 1. FAA Rules Docket, FAA Thus, the advantages of incorporation regulatory evaluation as the anticipated Headquarters Building, 800 by reference are realized and impact is so minimal. For the same Independence Avenue, SW., publication of the complete description reason, the FAA certifies that this Washington, DC 20591; of each SIAP, Takeoff Minimums, and amendment will not have a significant 2. The FAA Regional Office of the ODP listed on FAA forms is economic impact on a substantial region in which the affected airport is unnecessary. This amendment provides number of small entities under the located; the affected CFR sections and specifies criteria of the Regulatory Flexibility Act. 3. The National Flight Procedures the types of SIAPs and the effective Office, 6500 South MacArthur Blvd., dates of the SIAPs, the associated List of Subjects in 14 CFR Part 97 Oklahoma City, OK 73169; or Takeoff Minimums, and ODPs. This Air Traffic Control, Airports, 4. The National Archives and Records amendment also identifies the airport Incorporation by reference, and Administration (NARA). For and its location, the procedure, and the Navigation (Air). information on the availability of this amendment number. material at NARA, call 202–741–6030, Issued in Washington, DC, on January 11, The Rule 2008. or go to: http://www.archives.gov/ federal_register/ This amendment to 14 CFR part 97 is James J. Ballough, code_of_federal_regulations/ effective upon publication of each Director, Flight Standards Service. ibr_locations.html. separate SIAP, Takeoff Minimums and Adoption of the Amendment Availability—All SIAPs and Takeoff ODP as contained in the transmittal. Minimums and ODPs are available Some SIAP and Takeoff Minimums and I Accordingly, pursuant to the authority online free of charge. Visit nfdc.faa.gov textual ODP amendments may have delegated to me, under title 14, Code of to register. Additionally, individual been issued previously by the FAA in a Federal Regulations, part 97 (14 CFR SIAP and Takeoff Minimums and ODP Flight Data Center (FDC) Notice to part 97) is amended by establishing, copies may be obtained from: Airmen (NOTAM) as an emergency amending, suspending, or revoking 1. FAA Public Inquiry Center (APA– action of immediate flight safety relating Standard Instrument Approach 200), FAA Headquarters Building, 800 directly to published aeronautical Procedures and/or Takeoff Minimums Independence Avenue, SW., charts. The circumstances which and/or Obstacle Departure Procedures Washington, DC 20591; or created the need for some SIAP and effective at 0901 UTC on the dates 2. The FAA Regional Office of the Takeoff Minimums and ODP specified, as follows: region in which the affected airport is amendments may require making them PART 97—STANDARD INSTRUMENT located. effective in less than 30 days. For the remaining SIAPs and Takeoff APPROACH PROCEDURES FOR FURTHER INFORMATION CONTACT: Minimums and ODPs, an effective date I 1. The authority citation for part 97 Harry J. Hodges, Flight Procedure at least 30 days after publication is continues to read as follows: Standards Branch (AFS–420), Flight provided. Technologies and Programs Division, Further, the SIAPs and Takeoff Authority: 49 U.S.C. 106(g), 40103, 40106, Flight Standards Service, Federal Minimums and ODPs contained in this 40113, 40114, 40120, 44502, 44514, 44701, Aviation Administration, Mike amendment are based on the criteria 44719, 44721–44722. Monroney Aeronautical Center, 6500 contained in the U.S. Standard for I 2. Part 97 is amended to read as South MacArthur Blvd., Oklahoma City, Terminal Instrument Procedures follows: OK 73169 (Mail Address: P.O. Box (TERPS). In developing these SIAPs and Effective 14 FEB 2008 25082, Oklahoma City, OK 73125) Takeoff Minimums and ODPs, the telephone: (405) 954–4164. TERPS criteria were applied to the Monroeville, AL, Monroe County, RNAV (GPS) RWY 3, Orig-A SUPPLEMENTARY INFORMATION: This rule conditions existing or anticipated at the Jonesboro, AR, Jonesboro Muni, ILS OR LOC amends Title 14 of the Code of Federal affected airports. Because of the close RWY 23, Amdt 1 Regulations, Part 97 (14 CFR part 97), by and immediate relationship between Jonesboro, AR, Jonesboro Muni, RNAV (GPS) establishing, amending, suspending, or these SIAPs, Takeoff Minimums and RWY 23, Orig revoking SIAPs, Takeoff Minimums ODPs, and safety in air commerce, I find Jonesboro, AR, Jonesboro Muni, RNAV (GPS) and/or ODPs. The complete regulatory that notice and public procedure before RWY 31, Orig

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Jonesboro, AR, Jonesboro Muni, VOR RWY Cleburne, TX, Cleburne Muni, VOR/DME DEPARTMENT OF TRANSPORTATION 23, Amdt 10 RNAV RWY 33, Orig, CANCELLED Morrilton, AR, Morrilton Muni, RNAV (GPS) Cleburne, TX, Cleburne Muni, Takeoff Federal Aviation Administration RWY 27, Orig Minimums and Obstacle ODP, Orig Morrilton, AR, Morrilton Muni, NDB OR GPS New Braunfels, TX, New Braunfels Muni, 14 CFR Part 97 RWY 27, Orig, CANCELLED RNAV (GPS) RWY 13, Orig Morrilton, AR, Morrilton Muni, Takeoff [Docket No. 30589; Amdt. No. 3253] Minimums and Obstacle ODP, Orig New Braunfels, TX, New Braunfels Muni, North Little Rock, AR, North Little Rock RNAV (GPS) RWY 17, Orig Standard Instrument Approach Muni, RNAV (GPS) RWY 5, Amdt 1 New Braunfels, TX, New Braunfels Muni, Procedures; Miscellaneous Beckwourth, CA, Nervino, RNAV (GPS) Z RNAV (GPS) RWY 31, Orig Amendments RWY 25, Orig-A New Braunfels, TX, New Braunfels Muni, Placerville, CA, Placerville, RNAV (GPS) RNAV (GPS) RWY 35, Amdt 2 AGENCY: Federal Aviation RWY 5, Orig New Braunfels, TX, New Braunfels Muni, Administration (FAA), DOT. Placerville, CA, Placerville, GPS RWY 5, GPS RWY 13, Orig-B, CANCELLED Amdt 1A, CANCELLED ACTION: Final rule. Placerville, CA, Placerville, Takeoff New Braunfels, TX, New Braunfels Muni, SUMMARY: Minimums and Obstacle DP, Amdt 2 GPS RWY 17, Amdt 1, CANCELLED This rule amends Standard Windsor Locks, CT, Bradley Intl, Takeoff New Braunfels, TX, New Braunfels Muni, Instrument Approach Procedures Minimums and Obstacle DP, Amdt 2 GPS RWY 31, Amdt 1, CANCELLED (SIAPs) for operations at certain Blakely, GA, Early County, LOC/NDB RWY New Braunfels, TX, New Braunfels Muni, airports. These regulatory actions are 23, Amdt 1 VOR/DME RNAV RWY 31, Orig-A, needed because of changes in the Blakely, GA, Early County, Takeoff CANCELLED National Airspace System, such as the Minimums and Obstacle DP, Orig San Antonio, TX, Stinson Muni, RNAV (GPS) commissioning of new navigational Douglas, GA, Douglas Muni, ILS OR LOC RWY 32, Orig facilities, adding of new obstacles, or RWY 4, Amdt 1 Douglas, GA, Douglas Muni, RNAV (GPS) San Antonio, TX, Stinson Muni, VOR RWY changing air traffic requirements. These RWY 4, Orig 32, Amdt 14 changes are designed to provide safe Douglas, GA, Douglas Muni, RNAV (GPS) San Antonio, TX, Stinson Muni, Takeoff and efficient use of the navigable RWY 22, Orig Minimums and Obstacle DP, Amdt 2 airspace and to promote safe flight Douglas, GA, Douglas Muni, GPS RWY 4, Effective 13 MAR 2008 operations under instrument flight rules Orig-B, CANCELLED at the affected airports. Douglas, GA, Douglas Muni, GPS RWY 22, Rockland, ME, Knox County Regional, ILS Orig-B, CANCELLED OR LOC RWY 13, Amdt 1C DATES: This rule is effective January 24, Norton, KS, Norton Muni, Takeoff Minimums Harbor Springs, MI, Harbor Springs, RNAV 2008. The compliance date for each and Obstacle DP, Amdt 1 (GPS) RWY 10, Amdt 1 SIAP is specified in the amendatory Danville, KY, Stuart Powell Field, Takeoff Harbor Springs, MI, Harbor Springs, RNAV provisions. Minimums and Obstacle DP, Orig (GPS) RWY 28, Amdt 2 The incorporation by reference of New Orleans, LA, Louis Armstrong New Harbor Springs, MI, Harbor Springs, Takeoff certain publications listed in the Orleans Intl, ILS OR LOC RWY 28, Amdt Minimums and Obstacle DP, Amdt 2 regulations is approved by the Director 7 of the Federal Register as of January 24, New Orleans, LA, Louis Armstrong New Greenville, MS, Mid Delta Regional, ILS OR Orleans Intl, RNAV (GPS) RWY 28, Amdt LOC RWY 18L, Amdt 9C 2008. 1 Wadsworth, OH, Wadsworth Muni, RNAV ADDRESSES: Availability of matter Hagerstown, MD, Hagerstown Regional/ (GPS) RWY 2, Amdt 1 incorporated by reference in the Richard A. Henson Field, ILS OR LOC Wadsworth, OH, Wadsworth Muni, RNAV amendment is as follows: RWY 27, Amdt 9 (GPS) RWY 20, Amdt 1 For Examination— Albuquerque, NM, Double Eagle II, Takeoff Wadsworth, OH, Wadsworth Muni, VOR/ 1. FAA Rules Docket, FAA Minimums and Obstacle DP, Amdt 1 DME–A, Amdt 2 Headquarters Building, 800 Las Vegas, NV, North Las Vegas, Takeoff Clarion, PA, Clarion County, VOR–A, Amdt Independence Avenue, SW., Minimums and Obstacle DP, Amdt 3 Washington, DC 20591; Tulsa, OK, Richard Lloyd Jones JR, VOR/ 3 2. The FAA Regional Office of the DME–A, Amdt 7 Effective 10 APR 2008 Factoryville, PA, Seamans Field, RNAV region in which the affected airport is Marshall, AK, Marshall Don Hunter Sr, (GPS) RWY 4, Orig located; Factoryville, PA, Seamans Field, Takeoff RNAV (GPS)–A, Amdt 1 3. The National Flight Procedures Minimums and Obstacle, DP Amdt 2 Marshall, AK, Marshall Don Hunter Sr, Office, 6500 South MacArthur Blvd., Factoryville, PA, Seamans Field, VOR OR RNAV (GPS) RWY 7, Amdt 1 Oklahoma City, OK 73169 or, GPS–A, Amdt 1, CANCELLED Centre, AL, Centre-Piedmont Cherokee 4. The National Archives and Records Grove City, PA, Grove City, Takeoff County Rgnl, RNAV (GPS) RWY 7, Orig Administration (NARA). For Minimums and Obstacle DP, Amdt 3 Centre, AL, Centre-Piedmont Cherokee information on the availability of this Brady, TX, Curtis Field, RNAV (GPS) RWY County Rgnl, RNAV (GPS) RWY 25, Orig 17, Orig material at NARA, call 202–741–6030, Centre, AL, Centre-Piedmont Cherokee or go to: http://www.archives.gov/ Brady, TX, Curtis Field, RNAV (GPS) RWY County Rgnl, Takeoff Minimums and _ 35, Orig federal register/ Obstacle DP, Orig Brady, TX, Curtis Field, NDB RWY 17, Amdt code_of_federal_regulations/ 4 Leadville, CO, Lake County, Takeoff ibr_locations.html. Brady, TX, Curtis Field, GPS RWY 17, Orig, Minimums and Obstacle DP, Amdt 2 Availability—All SIAPs are available (CANCELLED) Olive Branch, MS, Olive Branch, ILS OR LOC online free of charge. Visit nfdc.faa.gov Brady, TX, Curtis Field, Takeoff Minimums RWY 18, Amdt 2 to register. Additionally, individual and Obstacle ODP, Orig Effective 05 JUN 2008 SIAP and Takeoff Minimums and ODP Cleburne, TX, Cleburne Muni, RNAV (GPS) RWY 15, Orig Fargo, ND, Hector International, RADAR–1, copies may be obtained from: Cleburne, TX, Cleburne Muni, RNAV (GPS) Amdt 11, CANCELLED 1. FAA Public Inquiry Center (APA– RWY 33, Orig 200), FAA Headquarters Building, 800 [FR Doc. E8–1015 Filed 1–23–08; 8:45 am] Cleburne, TX, Cleburne Muni, VOR/DME Independence Avenue, SW., RNAV RWY 15, Orig-A, CANCELLED BILLING CODE 4910–13–P Washington, DC 20591; or

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2. The FAA Regional Office of the The Rule regulatory evaluation as the anticipated region in which the affected airport is This amendment to 14 CFR part 97 is impact is so minimal. For the same located. effective upon publication of each reason, the FAA certifies that this separate SIAP as amended in the amendment will not have a significant FOR FURTHER INFORMATION CONTACT: transmittal. For safety and timeliness of economic impact on a substantial Harry J. Hodges, Flight Procedure change considerations, this amendment number of small entities under the Standards Branch (AFS–420), Flight incorporates only specific changes criteria of the Regulatory Flexibility Act. Technologies and Programs Division, contained for each SIAP as modified by List of Subjects in 14 CFR Part 97 Flight Standards Service, Federal FDC/P–NOTAMs. Aviation Administration, Mike The SIAPs, as modified by FDC P– Air Traffic Control, Airports, Monroney Aeronautical Center, 6500 NOTAM, and contained in this Incorporation by reference, and South MacArthur Blvd. Oklahoma City, amendment are based on the criteria Navigation (Air). OK 73169 (Mail Address: P.O. Box contained in the U.S. Standard for Issued in Washington, DC, on January 11, 25082 Oklahoma City, OK 73125) Terminal Instrument Procedures 2008. telephone: (405) 954–4164. (TERPS). In developing these changes to James J. Ballough, SIAPs, the TERPS criteria were applied SUPPLEMENTARY INFORMATION: This rule Director, Flight Standards Service. only to specific conditions existing at amends Title 14, Code of Federal the affected airports. All SIAP Adoption of the Amendment Regulations, Part 97 (14 CFR part 97) by amendments in this rule have been I Accordingly, pursuant to the authority amending the referenced SIAPs. The previously issued by the FAA in a FDC delegated to me, Title 14, Code of complete regulatory description of each NOTAM as an emergency action of Federal regulations, Part 97, 14 CFR part SIAP is listed on the appropriate FAA immediate flight safety relating directly 97, is amended by amending Standard Form 8260, as modified by the National to published aeronautical charts. The Instrument Approach Procedures, Flight Data Center (FDC)/Permanent circumstances which created the need effective at 0901 UTC on the dates Notice to Airmen (P–NOTAM), and is for all these SIAP amendments requires specified, as follows: incorporated by reference in the making them effective in less than 30 amendment under 5 U.S.C. 552(a), 1 days. PART 97—STANDARD INSTRUMENT CFR part 51, and § 97.20 of Title 14 of Because of the close and immediate APPROACH PROCEDURES the Code of Federal Regulations. relationship between these SIAPs and The large number of SIAPs, their safety in air commerce, I find that notice I 1. The authority citation for part 97 complex nature, and the need for a and public procedure before adopting continues to read as follows: special format make their verbatim these SIAPs are impracticable and Authority: 49 U.S.C. 106(g), 40103, 40106, publication in the Federal Register contrary to the public interest and, 40113, 40114, 40120, 44502, 44514, 44701, expensive and impractical. Further, where applicable, that good cause exists 44719, 44721–44722. for making these SIAPs effective in less airmen do not use the regulatory text of I 2. Part 97 is amended to read as than 30 days. the SIAPs, but refer to their graphic follows: depiction on charts printed by Conclusion §§ 97.23, 97.25, 97.27, 97.29, 97.33, and publishers of aeronautical materials. The FAA has determined that this 97.35 [Amended] Thus, the advantages of incorporation regulation only involves an established By Amending: § 97.23 VOR, VOR/ by reference are realized and body of technical regulations for which DME, VOR or TACAN, and VOR/DME publication of the complete description frequent and routine amendments are or TACAN; § 97.25 LOC, LOC/DME, of each SIAP contained in FAA form necessary to keep them operationally LDA, LDA/DME, SDF, SDF/DME; documents is unnecessary. This current. It, therefore—(1) is not a § 97.27 NDB, NDB/DME; § 97.29 ILS, amendment provides the affected CFR ‘‘significant regulatory action’’ under ILS/DME, ISMLS, MLS/DME, MLS/ sections and specifies the types of SIAP Executive Order 12866; (2) is not a RNAV; § 97.31 RADAR SIAPs; § 97.33 and the corresponding effective dates. ‘‘significant rule’’ under DOT RNAV SIAPs; and § 97.35 COPTER This amendment also identifies the Regulatory Policies and Procedures (44 SIAPs, Identified as follows: airport and its location, the procedure FR 11034; February 26, 1979); and (3) and the amendment number. does not warrant preparation of a Effective Upon Publication

FDC FDC date State City Airport number Subject

01/07/08 ...... AK ..... JUNEAU ...... JUNEAU INTL ...... 8/0472 LDA X RWY 8, AMDT 11A.

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[FR Doc. E8–1012 Filed 1–23–08; 8:45 am] 1061, Rockville, MD 20852, between 9 Drug labeler Firm name and address BILLING CODE 4910–13–P a.m. and 4 p.m., Monday through code Friday. ***** FDA has determined under 21 CFR 043806 Novopharm Ltd., 30 DEPARTMENT OF HEALTH AND 25.33(a)(1) that this action is of a type Novopharm Ct., Toronto, HUMAN SERVICES that does not individually or Ontario, Canada M1B cumulatively have a significant effect on 2K9 Food and Drug Administration the human environment. Therefore, ***** neither an environmental assessment 21 CFR Parts 510 and 520 nor an environmental impact statement PART 520—ORAL DOSAGE FORM is required. Oral Dosage Form New Animal Drugs; NEW ANIMAL DRUGS Clindamycin This rule does not meet the definition of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because I 3. The authority citation for 21 CFR AGENCY: Food and Drug Administration, it is a rule of ‘‘particular applicability.’’ part 520 continues to read as follows: HHS. Therefore, it is not subject to the Authority: 21 U.S.C. 360b. ACTION: Final rule. congressional review requirements in 5 I 4. In § 520.446, add paragraphs (a)(3) U.S.C. 801–808. SUMMARY: The Food and Drug and (b)(3) to read as follows: Administration (FDA) is amending the List of Subjects § 520.446 Clindamycin capsules and animal drug regulations to reflect 21 CFR Part 510 tablets. approval of an abbreviated new animal drug application (ANADA) filed by Administrative practice and (a) * * * Novopharm Ltd. The ANADA provides procedure, Animal drugs, Labeling, (3) Each capsule contains the for the veterinary prescription use of Reporting and recordkeeping equivalent of 25, 75, or 150 mg clindamycin hydrochloride oral requirements. clindamycin as the hydrochloride salt. capsules in dogs for the treatment of (b) * * * various infections due to susceptible 21 CFR Part 520 (3) No. 043806 for use of tablets bacterial pathogens. described in paragraph (a)(3) of this Animal drugs. section. DATES: This rule is effective January 24, I Therefore, under the Federal Food, 2008. * * * * * Drug, and Cosmetic Act and under Dated: January 14, 2008. FOR FURTHER INFORMATION CONTACT: John authority delegated to the Commissioner K. Harshman, Center for Veterinary of Food and Drugs and redelegated to Bernadette Dunham, Medicine (HFV–104), Food and Drug the Center for Veterinary Medicine, 21 Director, Center for Veterinary Medicine. Administration, 7500 Standish Pl., CFR parts 510 and 520 are amended as [FR Doc. E8–1199 Filed 1–23–08; 8:45 am] Rockville, MD 20855, 240–276–9808, e- follows: BILLING CODE 4160–01–S mail: [email protected]. SUPPLEMENTARY INFORMATION: PART 510—NEW ANIMAL DRUGS Novopharm Ltd., 30 Novopharm Ct., DEPARTMENT OF STATE Toronto, Ontario, Canada M1B 2K9, I 1. The authority citation for 21 CFR filed ANADA 200–383 that provides for part 510 continues to read as follows: 22 CFR Part 51 the veterinary prescription use of Authority: 21 U.S.C. 321, 331, 351, 352, RIN 1400–AC28 CLINDAROBE (clindamycin 353, 360b, 371, 379e. hydrochloride) Capsules in dogs for the I [Public Notice: 6071] treatment of various infections due to 2. Section 510.600 is amended in the susceptible bacterial pathogens. table in paragraph (c)(1) by Passports; Correction Novopharm Ltd.’s CLINDAROBE alphabetically adding a new entry for Capsules is approved as a generic copy ‘‘Novopharm Ltd.’’ and in the table in AGENCY: Department of State. of Pharmacia & Upjohn Co.’s paragraph (c)(2) by numerically adding ACTION: Final rule; correction. ANTIROBE Capsules, approved under a new entry for ‘‘043806’’ to read as NADA 120–161. The ANADA is follows: SUMMARY: This document contains a approved as of December 19, 2007, and correction to the revised Passport rule § 510.600 Names, addresses, and drug published in the Federal Register on 21 CFR 520.446 is amended to reflect labeler codes of sponsors of approved the approval. applications. November 19, 2007, 72 FR 64930. DATES: Effective on February 1, 2008. In addition, Novopharm Ltd. has not * * * * * been previously listed in the animal FOR FURTHER INFORMATION CONTACT: (c) * * * drug regulations as a sponsor of an Consuelo Pachon, Office of Legal Affairs approved application. At this time, 21 (1) * * * and Law Enforcement Liaison, Bureau CFR 510.600(c) is being amended to add of Consular Affairs, 2100 Pennsylvania Drug labeler entries for the firm. Firm name and address code Avenue, NW., Suite 3000, Washington, In accordance with the freedom of DC., telephone number 202–663–2431. information provisions of 21 CFR part ***** Background 20 and 21 CFR 514.11(e)(2)(ii), a Novopharm Ltd., 30 043806 summary of safety and effectiveness Novopharm Ct., Toronto, The rule reorganizes, restructures, and data and information submitted to Ontario, Canada M1B updates the passport regulations in support approval of this application 2K9 order to make them easier for users to may be seen in the Division of Dockets ***** access the information, to better reflect Management (HFA–305), Food and Drug current practice and changes in Administration, 5630 Fishers Lane, rm. (2) * * *

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statutory authority, and to remove (iii) The most recently issued regulation. Under 5 U.S.C. 553(b)(B), the outdated provisions. previous passport of the same type is Coast Guard finds that good cause exists submitted with the new application. for not publishing an NPRM. The Need for Correction (2) The applicant must also provide publishing of an NPRM would be The final passport rule published on photographs as prescribed by the impracticable and contrary to public November 19, 2007 erroneously labels Department and pay the applicable fees interest since immediate action is two sentences in the rule contained in prescribed in the Schedule of Fees for needed to protect the maritime public 22 CFR 51.21(b) and (c) as a ‘‘Note.’’ Consular Services (22 CFR 22.1). from the hazards associated with this This correction deletes the labels * * * * * maintenance project. The necessary ‘‘Note’’ and corrects the numbering of information to determine whether the Dated: January 18, 2008. the two provisions. construction poses a threat to persons Ann Barrett, Correction and vessels was not provided with Deputy Assistant Secretary, Bureau of sufficient time to publish an NPRM. For I The final passport rule published on Consular Affairs, Department of State. the safety concerns noted, it is in the November 19, 2007 (72 FR 64930) is [FR Doc. E8–1205 Filed 1–23–08; 8:45 am] public interest to have this regulation in corrected as follows: BILLING CODE 4710–06–P effect during the construction. I 1. On page 64933, 22 CFR part 51.21 Under 5 U.S.C. 553(d)(3), the Coast is corrected by making the following Guard finds that good cause exists for correcting amendments: DEPARTMENT OF HOMELAND making this rule effective less than 30 SECURITY days after publication in the Federal PART 51—PASSPORTS Register. Delaying the effective date Coast Guard Section 51.21(b) and (c) is revised to would be contrary to the public interest, read as follows: since immediate action is needed to 33 CFR Part 165 ensure the public’s safety. § 51.21 Execution of passport application. [USCG–2007–0169] Background and Purpose * * * * * (b) Application by mail—persons in RIN 1625–AA00 From 10 a.m. to 2 p.m. on each the United States. (1) A person in the Tuesday, Wednesday, and Thursday Safety Zone: Trent River Between New United States who previously has been from January 8, 2008 through January Bern and James City, NC issued a passport valid for 10 years in 24, 2008 Balfour Beatty Infrastructure his or her own name may apply for a AGENCY: Coast Guard, DHS. Inc. will relocate construction new passport by filling out, signing and ACTION: Temporary final rule. equipment in the vicinity of the U.S. mailing an application on the form Route 70 Highway Swing Bridge from prescribed by the Department if: SUMMARY: The Coast Guard will James City, NC to New Bern, NC. To (i) The most recently issued previous establish a safety zone on the waters of provide for the safety of the public, the passport was issued when the applicant the Trent River between New Bern and Coast Guard will temporarily restrict was 16 years of age or older; James City, North Carolina in the access to this section of the Trent River (ii) The application is made not more vicinity of the U.S. Route 70 Highway during equipment relocation. than 15 years following the issue date of Swing Bridge. This safety zone is Discussion of Rule the previous passport, except as necessary to provide for the safety of life provided in paragraph (e) of this on navigable waters during the The Coast Guard is establishing a section; and movement of bridge construction temporary safety zone that will extend (iii) The most recently issued equipment from the southern end of the from the Norfolk Southern Railroad previous passport of the same type is bridge construction project to the Bridge and Union Point, New Bern, NC submitted with the new application. northern end of the project. to the U.S. Route 17 Highway Bridge at (2) The applicant must also provide James City, NC, latitude 35°05.8′ N, DATES: This rule is effective from 10 ° ′ photographs as prescribed by the a.m. on January 8, 2008 through 2 p.m. longitude 77 02.2 W. This zone will Department and pay the applicable fees on January 24, 2008. require mariners to avoid entry into the prescribed in the Schedule of Fees for area. Entry into the zone will not be ADDRESSES: Documents indicated in this Consular Services (22 CFR 22.1). permitted except as specifically preamble as being available in the (c) Application by mail—persons authorized by the Captain of the Port or docket are part of docket USCG–2007– abroad. (1) A person in a foreign his designated representative. country where the Department has 0169 and are available for inspection or authorized a post to receive passport copying at Sector North Carolina 2301 Regulatory Evaluation applications by mail who previously has East Fort Macon Road Atlantic Beach, This rule is not a ‘‘significant been issued a passport valid for 10 years NC 28512 between 8 a.m. and 4 p.m., regulatory action’’ under section 3(f) of in his or her own name may apply for Monday through Friday, except Federal Executive Order 12866, Regulatory a new passport in that country by filling holidays. Planning and Review, and does not out, signing and mailing an application FOR FURTHER INFORMATION CONTACT: require an assessment of potential costs on the form prescribed by the Commander Jennifer Williams, and benefits under section 6(a)(3) of that Department if: Prevention Department Head, United Order. The Office of Management and (i) The most recently issued previous States Coast Guard Sector North Budget has not reviewed it under that passport was issued when the applicant Carolina at (252) 247–4570 or (252) 247– Order. The Coast Guard expects the was 16 years of age or older; 457046. economic impact of this rule to be so (ii) The application is made not more SUPPLEMENTARY INFORMATION: minimal that a full Regulatory than 15 years following the issue date of Evaluation is unnecessary. the previous passport, except as Regulatory Information Although this regulation will restrict provided in paragraph (e) of this We did not publish a notice of access to the regulated area, the effect of section; and proposed rulemaking (NPRM) for this this rule will not be significant because:

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(i) The safety zone will be in effect for Order and have determined that it does energy. The Administrator of the Office a limited duration of time and (ii) the not have implications for federalism. of Information and Regulatory Affairs Coast Guard will make notifications via has not designated it as a significant Unfunded Mandates Reform Act maritime advisories so mariners can energy action. Therefore, it does not adjust their plans accordingly. The Unfunded Mandates Reform Act require a Statement of Energy Effects of 1995 (2 U.S.C. 1531–1538) requires under Executive Order 13211. Small Entities Federal agencies to assess the effects of Technical Standards Under the Regulatory Flexibility Act their discretionary regulatory actions. In (5 U.S.C. 601–612), we have considered particular, the Act addresses actions The National Technology Transfer whether this temporary final rule would that may result in the expenditure by a and Advancement Act (NTTAA) (15 have a significant economic impact on State, local, or tribal government, in the U.S.C. 272 note) directs agencies to use a substantial number of small entities. aggregate, or by the private sector of voluntary consensus standards in their The term ‘‘small entities’’ comprises $100,000,000 or more in any one year. regulatory activities unless the agency small businesses, not-for-profit Though this rule would not result in provides Congress, through the Office of organizations that are independently such expenditure, we do discuss the Management and Budget, with an owned and operated and are not effects of this rule elsewhere in this explanation of why using these dominant in their fields, and preamble. standards would be inconsistent with applicable law or otherwise impractical. governmental jurisdictions with Taking of Private Property populations of less than 50,000. The Voluntary consensus standards are Coast Guard certifies under 5 U.S.C. This temporary final rule will not technical standards (e.g., specifications 605(b) that this temporary final rule will effect a taking of private property or of materials, performance, design, or not have a significant economic impact otherwise have taking implications operation; test methods; sampling on a substantial number of small under Executive Order 12630, procedures; and related management entities. Although the regulated area Governmental Actions and Interference systems practices) that are developed or will apply to waters of the Trent River, with Constitutionally Protected Property adopted by voluntary consensus the zone will not have a significant Rights. standards bodies. This rule does not use impact on small entities because the Civil Justice Reform technical standards. Therefore, we did zone will only be in place for a limited not consider the use of voluntary This rule meets applicable standards duration of time and maritime consensus standards. in sections 3(a) and 3(b)(2) of Executive advisories will be issued in advance to Order 12988, Civil Justice Reform, to Environment allow the public to adjust their plans minimize litigation, eliminate accordingly. We have analyzed this rule under ambiguity, and reduce burden. Commandant Instruction M16475.lD Assistance for Small Entities Protection of Children and Department of Homeland Security Small businesses may send comments Management Directive 5100.1, which We have analyzed this rule under guides the Coast Guard in complying on the actions of Federal employees Executive Order 13045, Protection of who enforce, or otherwise determine with the National Environmental Policy Children from Environmental Health Act of 1969 (NEPA) (42 U.S.C. 4321– compliance with, Federal regulations to Risks and Safety Risks. This rule is not the Small Business and Agriculture 4370f), and have concluded that there an economically significant rule and are no factors in this case that would Regulatory Enforcement Ombudsman would not create an environmental risk and the Regional Small Business limit the use of a categorical exclusion to health or risk to safety that might under section 2.B.2 of the Instruction. Regulatory Fairness Boards. The disproportionately affect children. Ombudsman evaluates these actions Therefore, this rule is categorically annually and rates each agency’s Indian Tribal Governments excluded, under figure 2–1, paragraph (34)(g), of the Instruction, from further responsiveness to small business. If you This rule does not have tribal environmental documentation. Under wish to comment on actions by implications under Executive Order figure 2–1, paragraph (34)(g), of the employees of the Coast Guard, call 1– 13175, Consultation and Coordination Instruction, an ‘‘Environmental Analysis 888–REG–FAIR (1–888–734–3247). The with Indian Tribal Governments, Check List’’ and a ‘‘Categorical Coast Guard will not retaliate against because it would not have a substantial Exclusion Determination’’ will be small entities that question or complain direct effect on one or more Indian available in the docket where indicated about this rule or any policy or action tribes, or on the relationship between under ADDRESSES. of the Coast Guard. the Federal Government and Indian Collection of Information tribes, or on the distribution of power List of Subjects in 33 CFR Part 165 and responsibilities between the Federal Harbors, Marine safety, Navigation This rule calls for no new collection Government and Indian tribes. of information under the Paperwork (water), Reporting and recordkeeping Reduction Act of 1995 (44 U.S.C. 3501– Energy Effects requirements, Security measures, Waterways. 3520). We have analyzed this rule under Executive Order 13211, Actions Federalism Regulation Concerning Regulations That I A rule has implications for federalism Significantly Affect Energy Supply, For the reasons set out in the under Executive Order 13132, Distribution, or Use. We have preamble, the Coast Guard amends 33 Federalism, if it has a substantial direct determined that it is not a ‘‘significant CFR part 165 as follows: effect on State or local governments and energy action’’ under that order because PART 165—REGULATED NAVIGATION would either preempt State law or it is not a ‘‘significant regulatory action’’ AREAS AND LIMITED ACCESS AREAS impose a substantial direct cost of under Executive Order 12866 and is not compliance on them. We have analyzed likely to have a significant adverse effect I 1. The authority citation for part 165 this temporary final rule under that on the supply, distribution, or use of continues to read as follows:

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Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. LIBRARY OF CONGRESS the term of the period. See infra at Chapter 701; 50 U.S.C. 191, 195; 33 CFR Section IV.C.3.d. 1.05–1, 6.04–1, 6.04–6 and 160.5; Pub. L. Copyright Royalty Board 107–295, 116 Stat. 2064; Department of II. The Proceeding Homeland Security Delegation No. 0170.1. 37 CFR Part 382 The following entities filed Petitions I 2. A temporary § 165.T05–901 is [Docket No. 2006–1 CRB DSTRA] in response to the January 9, 2006 added to read as follows: request for Petitions to Participate: § 165.T05–901 Safety Zone: Trent River Determination of Rates and Terms for SoundExchange, Music Choice, Muzak between New Bern and James City, North Preexisting Subscription Services and LLC, XM, Sirius, Royalty Logic, Inc. Carolina. Satellite Digital Audio Radio Services (‘‘RLI’’), and THP Capstar Acquisition (a) Regulated area: The following area AGENCY: Copyright Royalty Board, d/b/a DMX Music (‘‘DMX’’). The is a safety zone: waters of the Trent Library of Congress. Copyright Royalty Judges (‘‘Judges’’) River, from the Norfolk Southern ACTION: Final rule and order. dismissed Muzak as a party on January Railroad Bridge and Union Point New 10, 2007.2 On August 21, 2006, the Bern, NC to the U.S. Route 17 Highway SUMMARY: The Copyright Royalty Judges Judges referred a novel material Bridge at James City, NC, latitude are announcing their final question of substantive law regarding 35°05.8′ N, longitude 77°02.2′ W. All determination of the rates and terms for the universe of preexisting subscription coordinates reference Datum NAD 1983. the digital transmission of sound 3 (b) Definitions: Captain of the Port services under 17 U.S.C. 114(j)(11) to recordings and the reproduction of 4 Representative any Coast Guard the Register of Copyrights. On October ephemeral recordings by preexisting 20, 2006, the Register transmitted a commissioned, warrant, or petty officer satellite digital audio radio services for who has been authorized by the Captain Memorandum Opinion to the Board that the period beginning on January 1, 2007, addressed the novel question of law.5 of the Port to act on his behalf. and ending on December 31, 2012. (c) Regulations: (1) In accordance with The Register concluded that the general regulations in section 165.23 DATES: Effective Date: January 24, 2008. Applicability Date: The regulations for purposes of participating in a rate of this part, entry into this zone is setting proceeding, the term ‘‘preexisting prohibited unless authorized by the apply to the license period January 1, 2007, through December 31, 2012. subscription service’’ is best interpreted as Captain of the Port or a Captain of the meaning the business entity which operates ADDRESSES: The final determination also Port Representative. All vessel under the statutory license. A determination movement within the safety zone is is posted on the Copyright Royalty of whether DMX is the same service that was prohibited except as specifically Board Web site at http://www.loc.gov/ identified by the legislative history in 1998 authorized by the Captain of the Port or crb/proceedings/2006-1/sdars-final- and has operated continuously since that a Captain of the Port Representative. rates-terms.pdf. time requires a factual analysis that is beyond The general requirements of section FOR FURTHER INFORMATION CONTACT: the scope of the Register’s authority for 165.23 also apply to this regulation. Richard Strasser, Senior Attorney, or questions presented under 17 U.S.C. (2) Persons or vessels requiring entry Gina Giuffreda, Attorney Advisor. 802(f)(1)(B). into or passage through any portion of Telephone: (202) 707–7658. Telefax: the safety zone must first request (202) 252–3423. authorization from the Captain of the SUPPLEMENTARY INFORMATION: Port, or his Representative, unless the Captain of the Port previously I. Introduction announced via Marine Safety Radio This is a rate determination 2 Order Granting SoundExchange’s Motion to Broadcast on VHF Marine Band Radio proceeding convened under 17 U.S.C. channel 22 (157.1 MHz) that this Dismiss Muzak LLC, Docket No. 2006–1 CRB 803(b) and 37 CFR part 351. A Notice DSTRA. regulation will not be enforced in that announcing commencement of 3 Section 114(j)(11) of the Copyright Act defines portion of the safety zone. The Captain proceeding with request for Petitions to the term ‘‘preexisting subscription service’’ to mean of the Port can be contacted at telephone Participate in such proceeding to ‘‘a service that performs sound recordings by means number (252) 247–4570 or (252) 247– determine the rates and terms of royalty of noninteractive audio-only subscription digital 4546, or by radio on VHF Marine Band payments under Sections 114 and 112 of audio transmissions, which was in existence and Radio, channels 13 and 16. the Copyright Act for the activities of was making such transmissions to the public for a fee on or before July 31, 1998, and may include a (d) The Captain of the Port will notify preexisting subscription services the public of changes in the status of limited number of sample channels representative (‘‘PSS’’) and preexisting satellite digital of the subscription service that are made available this zone by Marine Safety Radio audio radio services (‘‘SDARS’’) was Broadcast on VHF Marine Band Radio, on a nonsubscription basis in order to promote the published in the Federal Register on subscription service.’’ 17 U.S.C. 114(j)(11). Channel 22 (157.1 MHz). January 9, 2006.1 4 Order Granting in Part SoundExchange’s Motion (e) Enforcement period: This rule will The rates and terms set in this proceeding apply to the Requesting Referral of a Novel Question of be enforced from 10 a.m. to 2 p.m. each Substantive Law and Denying Motion by THP Tuesday, Wednesday, and Thursday period of January 1, 2008, through December 31, 2012 for PSS, and January Capstar Acquisition Corp. D/B/A DMX Music from January 8, 2008 through January Requesting Proposed Briefing Schedule, Docket No. 1, 2007, through December 31, 2012 for 24, 2008. 2006–1 CRB DSTRA. In its motion SoundExchange SDARS. 17 U.S.C. 804(b)(3)(B). The PSS contended that Sirius and DMX are not eligible for Dated: December 14, 2007. royalty rates are provided in a separate a statutory license for a ‘‘preexisting subscription G.D. Case, order. For the SDARS, the instant order service’’ because they are not the entities that were Commander, U.S. Coast Guard, Acting provides for a beginning rate of 6% of in existence and making digital audio transmissions Captain of the Port North Carolina. gross revenues, with increases during on or before July 31, 1998, a requirement under [FR Doc. E8–1133 Filed 1–23–08; 8:45 am] Section 114 of the Copyright Act. See 71 FR at 64640. BILLING CODE 4910–15–P 1 71 FR 1455, Docket No. 2006–1 CRB DSTRA. 5 The Register’s Memorandum Opinion was published in the Federal Register on November 3, 2006. 71 FR 64639.

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71 FR 64640. General Manager of the Consumer SoundExchange presented the Subsequently, Sirius presented its Electronics Division, Sirius. rebuttal testimony of Mr. Ciongoli; Dr. case solely as an SDARS and not as a XM and Sirius jointly presented Ordover; Mr. Bruce Elbert, President, PSS in the instant proceeding. DMX testimony from the following witnesses: Application Technology Strategy, Inc.; withdrew from participation in the Dr. John R. Woodbury, Vice President, Mr. Butson; Dr. Pelcovits; Mr. Eisenberg; proceeding on October 30, 2006.6 CRA International and Mr. J. Armand Ms. Kessler; Dr. Wind; Dr. Steven Following an unsuccessful negotiation Musey, President and Partner, New Herscovici, Managing Principal, Analyst period, the then-remaining parties filed Earth, LLC. Group, Inc.; and Mr. George Mantis, written direct statements on October 30, SoundExchange presented testimony President, The Mantis Group, Inc. 2006 (SoundExchange, Music Choice, of the following witnesses: Dr. Yoram Sirius, and XM) and on November 21, (Jerry) Wind, Professor of Marketing and At the close of the evidence, the 2006 (RLI), respectively. RLI withdrew a Lauder Professor, The Wharton record was closed. In addition to the from the proceeding on March 16, School, University of Pennsylvania; Mr. written direct statements and written 2007.7 Music Choice and Mark Eisenberg, Executive Vice rebuttal statements, the Judges heard 26 SoundExchange settled on June 12, President, Business and Legal Affairs, days of testimony, which filled over 2007.8 The Judges published the Global Digital Business Group, Sony 7,700 pages of transcript, and over 230 settlement for public comment in the BMG Music Entertainment; Ms. Barrie exhibits were admitted. The docket Federal Register on October 31, 2007 Kessler, Chief Operating Officer, contains over 400 pleadings, motions, (72 FR 61585) and published a Final SoundExchange, Inc.; Mr. Sean Butson, and orders. Rule relating to PSS on December 19, Chartered Financial Analyst and On October 1, 2007, after the 2007 (72 FR 71795). consultant; Mr. Edgar Bronfman, Jr., evidentiary phase of the proceeding, the Discovery was followed by live Chairman and CEO, Warner Music participants filed Proposed Findings of testimony. Testimony was taken from Group; Mr. Simon Renshaw, President, Fact and Conclusions of Law. June 4, 2007, to July 9, 2007. XM Strategic Artist Management; Dr. Janusz Participants filed replies on October 11, presented testimony of the following Ordover, Professor of Economics, New 2007. Closing arguments occurred on York University; Mr. Dan Navarro, witnesses: Mr. Gary Parsons, Chairman October 17, 2007. of the Board, XM; Mr. Eric Logan, singer, songwriter, recording artist; Mr. Executive Vice President of Edward Chemelewski, President, Blind On December 3, 2007, the Copyright Programming, XM; Mr. Mark Vendetti, Pig Records; Mr. Michael Kushner, Royalty Judges issued the Initial Senior Vice President of Corporate Senior Vice President, Business and Determination of Rates and Terms. Finance, XM; Mr. Stephen Cook, Legal Affairs, Atlantic Records; Mr. Pursuant to 17 U.S.C. 803(c)(2) and 37 Executive Vice President for Lawrence Kenswil, President of CFR part 353, SoundExchange filed a Automotive, XM; and Mr. Anthony Universal eLabs, a division of Vivendi Motion for Rehearing. The Judges Masiello, Senior Vice President of Universal’s Universal Music Group; Mr. requested the SDARS to respond to the Operations, XM. Charles Ciongoli, Executive Vice motion, which they did in a timely Sirius presented testimony from the President and Chief Financial Officer, fashion. Having reviewed following witnesses: Mr. Mel Karmazin, Universal Music Group North America; SoundExchange’s motion and the President and CEO, Sirius; Mr. Terrence Dr. Michael Pelcovits, Principal, SDARS’ response, the Judges denied the Smith, Senior Vice President of Microeconomic Consulting & Research motion for rehearing. Order Denying Engineering, Sirius; Mr. Douglas Associates, Inc. Motion for Rehearing, In the Matter of Wilsterman, Senior Vice President and The remaining parties filed written Determination of Rates and Terms for General Manager of the Automotive rebuttal statements on July 24, 2007. Preexisting Subscription Services and OEM Division, Sirius; Mr. Jeremy The rebuttal phase of the trial occurred Satellite Digital Audio Radio Services, Coleman, Vice President and General from August 15, 2007 to August 30, Docket No. 2006–1 CRB DSTRA Manager of Talk Entertainment and 2007. XM presented the rebuttal (January 8, 2008). As reviewed in said Information Programming, Sirius; Mr. testimony of Mr. Vendetti. Sirius Order, none of the grounds in the Steven Cohen, Vice President of Sports presented the rebuttal testimony of Mr. motion presented the type of Karmazin and Mr. Frear. Sirius and XM Programming, Sirius; Mr. Steven Blatter, exceptional case where the Initial presented the joint rebuttal testimony of Senior Vice President of Music Determination is not supported by the Dr. Roger G. Noll, Professor Emeritus of Programming, Sirius; Ms. Christine evidence. 17 U.S.C. 803(c)(2)(A); 37 CFR Economics, Stanford University; Dr. Heye, former Vice President, Research, 353.1 and 353.2. The motion did not Sirius; Mr. Michael Moore, Vice Erich Joachimsthaler, CEO, Vivaldi Partners; Dr. George Benston, John H. meet the required standards set by President, Customer Care and Sales statute, by regulation and by case law. Operations, Sirius; Mr. David J. Frear, Harlan Professor of Finance, Accounting and Economics at the Goizueta Business Nevertheless, the Judges were Chief Financial Officer, Sirius; and Mr. persuaded to clarify one aspect of the Robert Law, Senior Vice President and School and Professor of Economics, Emory University; Mr. Daryl Martin, definition of Gross Revenues. Specifically, the Judges are adding the 6 Notice by DMX, Inc. of its Withdrawal from Vice President, Consor Intellectual Participation in the 2006 Copyright Royalty Board Assessment Management; Dr. John phrase ‘‘offered for a separate charge’’ to Proceeding Entitled ‘‘Adjustment of Rates and Hauser, Management Science Area Head the regulatory language of subsection Terms for Preexisting Subscription and Satellite and Kirin Professor of Marketing, (3)(vi)(A) of the definition of Gross Digital Audio Radio Services,’’ Docket No. 2006–1 Massachusetts Institute of Technology; Revenues at § 382.11 to make clear that CRB DSTRA. this portion of the definition dealing 7 Notice by Royalty Logic, Inc. of Its Withdrawal Mr. Bruce Silverman, marketing from Participation in the 2006 Copyright Royalty consultant; and Dr. Woodbury.9 with data services does not contemplate Board Proceeding Entitled ‘‘Adjustment of Rates an exclusion of revenues from such data and Terms for Preexisting Subscription and 9 The Services also sought to present the services, where such data services are Satellite Digital Audio Radio Services,’’ Docket No. testimony of Professor William W. Fisher, III, but not offered for a separate charge from 2006–1 CRB DSTRA. the Judges granted SoundExchange’s motion to 8 Notice of Settlement, Docket No. 2006–1 CRB strike Professor Fisher’s rebuttal testimony. 8/15/07 the basic subscription product’s DSTRA (June 12, 2007). Tr. at 11. revenues.

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III. The Statutory Standards for Professor Ernest Gellhorn, on behalf of Senate Conference yielded the revision Determining Royalty Rates certain copyright users, and Professor bill as enacted and set forth the Section Section 801(b)(1) of the Copyright Louis H. Pollack, on behalf of certain 801(b)(1) factors in their current form. Act, 17 U.S.C., provides that the copyright owners, concerning the Unfortunately, the Conference Report Copyright Royalty Judges shall ‘‘make constitutionality of the Copyright does not offer any discussion of the final determinations and adjustments of Royalty Tribunal. Professor Gellhorn language. reasonable terms and rates of royalty recommended that in order to bolster B. Prior Proceedings the constitutionality of the Tribunal, the payments’’ for the statutory licenses set There have been three statutory forth in Sections 112(e) and 114.10 The Congress should, inter alia, adopt statutory standards beyond the vague license proceedings involving the section then prescribes that the royalty reasonable rate standard and the Section rates applicable under Section criterion of ‘‘reasonableness.’’ Hearings on H.R. 2223 before the Subcomm. on 801(b)(1) factors: A Section 116 jukebox 114(f)(1)(B), which is the performance rate adjustment by the Copyright license for sound recordings at issue in Courts, Civil Liberties, and the Administration of Justice of the House Royalty Tribunal; a Section 115 this proceeding, shall be calculated to mechanical rate adjustment, also by the achieve the following objectives: 11 Comm. on the Judiciary, 94th Cong., 1922 (1975). The Register of Copyrights, Tribunal; and a proceeding under the (A) To maximize the availability of creative in her second supplementary report on Copyright Arbitration Royalty Panel works to the public. the general revision of the copyright (‘‘CARP’’) system administered by the (B) To afford the copyright owner a fair Librarian of Congress for preexisting return for his or her creative work and the laws later that year, disputed the constitutional concerns of Professor subscription services under the same copyright user a fair income under existing Section 114(f)(1)(B) statutory license economic conditions. Gellhorn but concluded that it would be (C) To reflect the relative roles of the ‘‘wise to establish, in the statute, certain involved in this proceeding. All three of copyright owner and the copyright user in criteria beyond ‘reasonableness’ that these decisions were the subject of the product made available to the public with each Panel is to apply to its decision- judicial review. respect to relative creative contribution, making.’’ Second Supplementary Report 1. The 1980 Jukebox License Proceeding technological contribution, capital of the Register of Copyrights on the investment, cost, risk, and contribution to the The Copyright Royalty Tribunal’s first General Revision of the U.S. Copyright opening of new markets for creative consideration of the reasonable rate Law, Chapter XV, p. 31 (1975). The expression and media for their standard and the Section 801(b)(1) House Judiciary Committee, in its communication. factors involved the 1980 Adjustment of subsequent report on the Senate (D) To minimize any disruptive impact on the Royalty Rate for Coin-Operated the structure of the industries involved and revision bill, took heed of the Register’s Phonorecord Players, better known as on generally prevailing industry practices. advice and stated in the report (but not jukeboxes. 46 FR 884 (January 5, 1981). the bill), that ‘‘it is anticipated that the 17 U.S.C. 801(b)(1). Because of the The Tribunal raised the $8 a year per Commission 13 will consider the importance of this language to our jukebox fee that was set by statute in the following objectives in determining a determination, the Copyright Royalty 1976 Copyright Act to $50 per year reasonable rate * * * ’’: Judges undertake the following phased in over a 2-year period. The rate comprehensive review of the provisions (1) The rate should maximize the remained in effect for a 10-year period and their interpretation. availability of diverse creative works to the from 1980 to 1990. public. A. Legislative Background While the Tribunal’s decision was (2) The rate should afford the copyright somewhat lengthy, its consideration and The Section 801(b)(1) factors owe owner a fair income, or if the owner is not a person, a fair profit, under existing application of the standard and the their origin to the legislative process Section 801(b)(1) factors was not. that produced the Copyright Act of economic conditions, in order to encourage creative activity. Coming in the last section of its decision 1976. The 1976 Act created three new (3) The rate should not jeopardize the and amounting to less than a page, the 12 statutory licenses —cable, jukebox and ability of the copyright user Tribunal applied the factors to the $50 noncommercial broadcasting—and (a) To earn a fair income, or if the user is rate it derived from its consideration of established the Copyright Royalty not a person, a fair profit, under existing ‘‘marketplace analogies’’ and Tribunal to adjust rates and terms and economic conditions, and determined that the selected rate was make royalty distributions to copyright (b) To charge the consumer a reasonable consistent with each. 46 FR 889. In owners where appropriate. An price for the product. (4) The rate should reflect the relative roles reviewing the Tribunal’s decision, the examination of the legislative history of U.S. Court of Appeals for the Seventh the 1976 Act reveals that the motivation of the copyright owner and the copyright user in the product made available to the Circuit gave no attention to the Section for adopting the Section 801(b)(1) public with respect to relative contribution, 801(b)(1) factors or the Tribunal’s factors arose from an exchange between technological contribution, capital application of them, focusing instead on investment, cost, risk, and contribution to the the appropriateness of the Tribunal’s 10 The ‘‘reasonable’’ rates and terms requirement opening of new markets for creative also applies to the statutory licenses set forth in 17 choice of ‘‘marketplace analogies.’’ expression and media for their Amusement & Music Operators Ass’n. v. U.S.C. 115, 116, 118, 119, and 1004. Though the communication. Section 119 license is referenced, there is currently Copyright Royalty Tribunal, 676 F.2d no rate adjustment provided in the Copyright Act (5) The rate should minimize any disruptive impact on the structure of the 1144 (7th Cir. 1982). The Tribunal for that license. decision was upheld. 11 We note that the Section 801(b)(1) objectives, industries involved and on generally or factors, do not apply to the Section 112(e) prevailing industry practices. 2. The 1981 Mechanical License license. For a discussion of this license’s H.R. Rep. No. 94–1476, at 173–174 Proceeding applicability to this proceeding, see infra at Section IV.D. (1976) (footnote added). The House and Less than one month after releasing 12 The lone statutory license under the 1909 the jukebox rate determination, the Copyright Act, the section 115 ‘‘mechanical’’ 13 The House revision bill created a Copyright license for the making and distribution of Royalty Commission, whereas the Senate revision Tribunal issued its decision in the phonorecords, was carried forward into the 1976 bill created a Copyright Royalty Tribunal. The Adjustment of the Royalty Payable Act. Senate nomenclature was used in the final bill. Under Compulsory License for Making

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and Distributing Phonorecords, better (D)—the maximization of the and withdrew from the proceeding,14 known as the mechanical license availability of creative works to the and the CARP rendered a determination proceeding. 46 FR 10466 (February 3, public and minimization of disruption only with respect to the PSS. The 1981). The mechanical license requires to the industries—‘‘require Librarian reviewed the CARP’s payment to copyright owners of musical determinations ‘of a judgmental or determination and rejected it with works (songwriters and music predictive nature,’ and the court must respect to the rate as well as to certain publishers) for the creation and be aware that ‘a forecast of the direction terms, and the U.S. Court of Appeals for distribution of phonorecords of their in which the future public interest lies the District of Columbia Circuit works. In a lengthy decision, the necessarily involves deductions based reviewed the Librarian’s decision. The Tribunal nearly doubled the existing on the expert knowledge of the Court upheld the Librarian’s rate rates and established a complex system agency.’’’ Id. at 8 (citations omitted). determination but remanded certain for future interim adjustments during Second, the Court noted that terms adopted by the Librarian for lack the 7-year license period to reflect subsections (B) and (C)—the fair return of supporting evidence. Recording increases in the average list price of and income to owners and users and Industry Ass’n of America, Inc. v. record albums. relative roles of owners and users in the Librarian of Congress, 176 F.3d 528, 532 Unlike the jukebox proceeding, the product—call for policy choices that (DC Cir. 1999). Tribunal offered its views as to the should be owed considerable deference. While the CARP offered nothing by ‘reasonable’ royalty standard and the Id. at 8–9. Finally, the Court observed: Section 801(b)(1) factors. As to the way of interpretation of the Section ‘reasonable’ royalty standard, the [T]he statutory factors pull in opposing 801(b)(1) factors, it took a decidedly Tribunal stated that ‘‘[i]t is our opinion directions, and reconciliation of these different approach from the Tribunal in objectives is committed to the Tribunal as applying them. Whereas the Tribunal that the term reasonable in the statute is part of its mandate to determine ‘‘reasonable’’ of dominating importance in reaching a first analyzed the economic benchmarks royalty rates. Both the House and Senate had submitted by the parties, selected a final determination in this proceeding.’’ originally passed bills whose only instruction 46 FR 10479. As to the meaning of the royalty fee and then applied the factors to the Tribunal was to assure that the royalty sequentially to the record evidence to term ‘‘reasonable,’’ the Tribunal recalled rate was reasonable, although the House determine if the selected fee satisfied Professor Gellhorn’s and the Register of report had stated objectives that it Copyrights’ admonitions to the Congress ‘‘anticipated that the Commission will them, the CARP instead began its to adopt standards in the 1976 consider.’’ As part of the compromise that analysis with the factors. The CARP did Copyright Act and observed that produced the final structure of the Tribunal, not analyze the factors in order, instead ‘‘Congress drafted the (Section most of those objectives were written into the beginning with subsection (C), followed 801(b)(1)) criteria in the broadest terms statute,* * *, but the Tribunal was not told by subsections (D), (A) and then (B). that it could, consistent with its intent which factors should receive higher Curiously, the CARP’s consideration of to prevent a challenge to the priorities. To the extent that the statutory the parties’ benchmarks occurred under constitutionality of the Tribunal.’’ Id. objectives determine a range of reasonable its consideration of subsection (B), the (parenthetical added). The Tribunal royalty rates that would serve all these factor requiring a balancing of fair objectives adequately but to differing degrees, return to the copyright owner and fair went on and ‘‘conclude[d], consistent the Tribunal is free to choose among those with its Congressional mandate, that income to the copyright user. Then, at rates, and courts are without authority to set the end of the determination, the CARP this Tribunal’s adjustment must set a aside the particular rate chosen by the ‘‘reasonable’’ mechanical royalty rate Tribunal if it lies within a ‘‘zone of provided a less than one-page designed to achieve four objectives, set reasonableness.’’ conclusion resolving all of the factors in forth in Section 801 of the Act* * *’’ favor of the PSS. In re: Determination of Id. The Tribunal then undertook an Id. at 9 (footnotes omitted). Statutory License Terms and Rates for application of the record evidence to Certain Digital Subscription each of the Section 801(b)(1) factors and 3. The Digital Performance Right in Transmissions of Sound Recordings, concluded that the 4 cent rate it had Sound Recordings Proceeding Report of the Copyright Arbitration derived from the evidence and Royalty Panel, Docket No. 96–5 CARP The Tribunal never had occasion economic testimony of the parties DSTRA, p. 62 (November 28, 1997). again to conduct a Section 801(b)(1) rate satisfied all of the factors. Id. at 10479– The CARP’s approach did not 81. adjustment, and it was abolished in 1993 and replaced by the CARP scheme particularly vex the Librarian, but its The U.S. Court of Appeals for the terse conclusion that subsection (A)— District of Columbia Circuit upheld the administered by the Librarian of Congress. Copyright Royalty Tribunal maximization of creative works to the Tribunal’s determination of the rates, public—favored the PSS certainly did. but set aside the Tribunal’s mechanism Reform Act of 1993, Pub. L. No. 103– for adjusting the rates within the 198, 107 Stat. 2304. Subsequent to the There is no record evidence to support a licensing period as being beyond the Tribunal’s abolition, Congress passed conclusion that the existence of the digital Tribunal’s statutory authority. the Digital Performance Right in Sound transmission services stimulates the creative Recording Industry Ass’n. of America v. Recordings Act of 1995, Pub. L. No. process. Instead, the Panel made observations concerning the development of another Copyright Royalty Tribunal, 662 F.2d 1 104–39, 109 Stat. 336, which created the method for disseminating creative works to (D.C. Cir. 1981). In reviewing the rates, Section 114 digital performance right license that is the subject of this the public—a valid and vital consideration the Court discussed the Section addressed in the statutory objective 801(b)(1) factors not in the context of proceeding. Unlike prior statutory licenses where the Congress fixed the concerning the relative contributions from the Tribunal’s interpretation or each party—but fails to discuss how the application of them, but rather in terms initial rates within the statute, the rates creation of a new mode of distribution will of the judicial standard of review to be for the new digital performance right itself stimulate the creation of additional applied. The Court concluded at least license were left to resolution by a works. three aspects of the factors increased the CARP. The Librarian convened a CARP deference owed to the Tribunal’s in 1997 for PSS and SDARS. The 14 The terms and conditions of the agreement conclusions. First, subsections (A) and SDARS settled with copyright owners were never publicly disclosed.

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Determination of Reasonable Rates and that the term ‘reasonable copyright afford the copyright owner a fair return Terms for the Digital Performance of royalty rates’ is defined by the four for his creative work and the copyright Sound Recordings (Final Rule and statutory objectives, there is no need to user a fair income under existing Order), 63 FR 25394, 25406 (May 8, look to Tribunal precedent interpreting economic conditions; (C) to reflect the 1998) (codified at 37 CFR part 260) the term ‘reasonable rates’ in other relative roles of the copyright owner and (‘‘1998 PSS Rate Determination’’). The contexts.’’). The Court did not discuss the copyright user in the product made Librarian also faulted the CARP for the Librarian’s application of the available to the public with respect to failing to reconcile its conclusion with Section 801(b)(1) factors to the record relative creative contribution, the Tribunal’s determination in the 1980 evidence, but ‘‘den[ied] RIAA’s petition technological contribution, capital jukebox rate adjustment proceeding that for review with respect to the investment, cost, risk, and contribution jukeboxes did not contribute to the establishment of a 6.5 percent rate. Id. to the opening of new markets for maximization of creative works to the at 535.15 creative expression and media for their public. Id. at 25406–7. As to the other communication; and (D) to minimize C. Approach of the Copyright Royalty Section 801(b)(1) factors, the Librarian any disruptive impact on the structure Judges affirmed the CARP’s determination, but of the industries involved and on he concluded that an upward Based upon the above discussion, the generally prevailing industry practices. adjustment of the rate was necessary path for the Copyright Royalty Judges is 17 U.S.C. 114(f)(1)(B) and 17 U.S.C. because he found that the CARP’s well laid out. We shall adopt reasonable 801(b)(1). reliance upon a single private license royalty rates that satisfy all of the With respect to the Section 112 agreement offered as a benchmark and objectives set forth in Section license, the Copyright Act requires that its subsequent manipulation of the 801(b)(1)(A)–(D). In so doing, we begin the Copyright Royalty Judges establish license fee amounted to arbitrary action. with a consideration and analysis of the rates for this license that most clearly Id. at 25409. The Librarian increased the benchmarks and testimony submitted by represent those ‘‘that would have been 5% of annual revenues fee proposed by the parties, and then measure the rate or negotiated in the marketplace between a the CARP to 6.5%, stating that the 6.5% rates yielded by that process against the willing buyer and a willing seller’’ and rate met all of the Section 801(b)(1) statutory objectives to reach our to take into account evidence presented factors. Id. at 25410. decision. Section 114(f)(1)(B) also on such factors as (1) whether the use Only the Recording Industry affords us the discretion to consider the of the services may substitute for or Association of America, Inc. (‘‘RIAA’’) relevance and probative value of any promote the sale of phonorecords and challenged the Librarian’s decision. In agreements for comparable types of (2) whether the copyright owner or the its petition for review, RIAA argued that digital audio transmission services that service provider makes relatively larger the Librarian misinterpreted Section submit voluntary agreements under 17 contributions to the service ultimately 801(b)(1) by equating ‘‘reasonable’’ U.S.C. 114(f)(1)(A). See, 17 U.S.C. provided to the consuming public with royalty rates with those that are 114(f)(1)(B) (‘‘[I]n addition to the respect to creativity, technology, capital calculated to achieve the objectives of objectives set forth in Section 801(b)(1), investment, cost and risk. 17 U.S.C. the Section 801(b)(1) factors. Rather, in the Copyright Royalty Judges may 112(e)(4). RIAA’s view, the statutory language consider the rates and terms for Having carefully considered the imposes two separate requirements: the comparable types of subscription digital relevant law and the evidence received royalty fee must be (1) a ‘‘reasonable audio transmission services and in this proceeding, the Copyright copyright royalty rate,’’ and (2) it must comparable circumstances under Royalty Judges determine that the be then ‘‘calculated to achieve’’ the voluntary license agreements described appropriate Section 114 performance Section 801(b)(1) objectives. RIAA in subparagraph (A).’’) (emphasis license rate is 6.0% of gross revenues for argued that a ‘‘reasonable copyright added). 2007 and 2008, 6.5% for 2009, 7.0% for royalty rate’’ was one that affords fair IV. Determination of Royalty Rates 2010, 7.5% for 2011 and 8.0% for 2012 market compensation, thus making and, further, that the appropriate market rates the starting point for A. Application of Section 114 and Section 112 reproduction license rate is application of the Section 801(b)(1) Section 112 deemed to be embodied in the Section factors. Recording Industry Ass’n of 114 license rate. America, Inc. v. Librarian of Congress, Based on the applicable law and relevant evidence received in this The applicable rate structure for the 176 F.3d 528, 532 (DC Cir. 1999). Section 114 license is the starting point The U.S. Court of Appeals for the proceeding, the Copyright Royalty for the Copyright Royalty Judges’ District of Columbia Circuit rejected Judges must determine rates for the determination. RIAA’s position, ruling that the Section 114 performance licenses and Librarian’s interpretation of the statute the associated Section 112 ephemeral B. The Rate Proposals of the Parties and was permissible under Chevron U.S.A., reproduction licenses utilized by the Appropriate Royalty Structure for Inc. v. Natural Resources Defense SDARS. Section 114 Performance License Council, Inc., 467 U.S. 837 (1984). 176 As previously discussed, the Applicable To Sdars F.3d at 533. The Court went further and Copyright Act requires that the observed: ‘‘Here, the Librarian Copyright Royalty Judges establish rates 1. Rate Proposals determined that ‘reasonable rates’ are for the Section 114 license that are The contending parties present those that are calculated with reference reasonable and calculated to achieve the several alternative rate structures. In its to the four statutory criteria. This following four specific policy objectives: second amended rate proposal, interpretation is not only permissible (A) To maximize the availability of SoundExchange argues in favor of a but, given that [Section] 114 rates are to creative works to the public; (B) to monthly fee equal to the greater of: A be ‘calculated to achieve’ the four percentage of gross revenues varying objectives of [Section] 801(b)(1), it is the 15 The RIAA was successful in convincing the from 8% to 23% or a per subscriber rate Court to vacate and remand the Librarian’s most natural reading of the statute.’’ Id.; determination with respect to terms on the grounds varying from $0.85 per subscriber to see also, 176 F.3d at 534 (‘‘Because it of lack of record evidence to support them. Id. at $3.00 per subscriber. These applicable was reasonable for the Librarian to find 536. fees vary based on the actual number of

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subscriptions reported by the service. period. XM Rate Proposal (January 17, allows the SDARS to respond to any For example, the lowest fee (i.e., the 2007) at § 26_.3; Sirius Rate Proposal substantial increases in fees by greater of 8% of gross revenues or $0.85 (January 17, 2007) at § 26_.3. This economizing on the use of music so as per subscriber) would be applicable for proposal was subsequently revised in an to reduce their payments and (2) it a number of subscriptions equal to less amended proposal 16 that called for the preserves the incentives of the SDARS than 9 million. At the opposite extreme, establishment in 2007 of a quarterly to acquire more attractive nonmusic the highest fee (i.e., the greater of 23% license fee of $1.20 per play 17 of a programming or to improve the quality of gross revenues or $3.00 per copyrighted sound recording during the of their radio devices. Woodbury WRT subscriber) would be applicable for a quarter, with subsequent years of the at 21. SoundExchange, on the other number of subscriptions equal to or license period beginning with 2008 hand, while recognizing that there are more than 19 million. While proposing adjusted each year by the percentage benefits to a per performance rate that the percent of revenues alternatives change in combined SDARS subscribers structure such as adopted by the Judges increase only in response to subscriber during the preceding year. XM in the recently concluded webcasting growth over the license period, Amended Rate Proposal (July 24, 2007) proceeding 18 (i.e., where a performance SoundExchange proposes that the per at § 3_.3; Sirius Amended Rate Proposal refers to one play of one sound subscriber alternatives associated with (July 24, 2007) at § 3_.3. A further recording to a single listener at a time), particular subscriber numbers would be revision of this proposal was submitted also recognizes that its ‘‘per broadcast’’ additionally adjusted at the beginning of as the Services’ Second Amended alternative is not the functional each year starting with January, 2008 by Proposal of Rates and Terms and equivalent of a per performance rate the change in the consumer price index provided for the establishment in 2007 structure. As a result, SoundExchange (CPI–U) over the preceding 12 months of a quarterly license fee of $1.60 per admits that its ‘‘per broadcast’’ ending on November 1. SoundExchange play of a copyrighted sound recording mechanism does not engender the Second Amended Rate Proposal (July during the quarter, again with benefits of the usage metric adopted in 24, 2007) at 1–4. subsequent years of the license period Webcaster II and, further, that it is Subsequently, SoundExchange beginning with 2008 adjusted each year inferior to a percentage of revenue defensively offered, in the alternative, a by the percentage change in combined structure. Pelcovits WRT at 19, 25–26. second ‘‘option’’ in which applicable SDARS subscribers during the At bottom, SoundExchange’s alternative rates would continue to vary with preceding year. Second Amended proposal is submitted defensively to subscriber numbers but also would vary Proposal of Rates and Terms of Sirius protect against the possibility that, at each subscriber interval based on a Satellite Radio Inc. and XM Satellite notwithstanding these weaknesses, this _ per broadcast/per subscriber metric. For Radio Inc. (October 1, 2007) at § 3 .3. Court might nevertheless settle upon a example, at the low end of this In other words, while the parties on per play or per broadcast approach alternative proposal, if the number of both sides initially proposed rates based without reducing what SoundExchange subscriptions were equal to less than 9 on a percentage of gross revenues (albeit identifies as ‘‘the most significant million for an SDARS, $0.0000028 per with somewhat different definitions of distortion in a static proposal of this subscriber would be applicable to each gross revenues), they both subsequently nature’’—the lack of proportionality broadcast of a sound recording for the submitted royalty payment proposals between total listening and the number first 150,000 sound recordings broadcast that could generally be described as of broadcasts. Pelcovits WRT at 23. For each month and $0.0000008 per ‘‘per play’’ or ‘‘per broadcast’’ rates. this reason, SoundExchange offers a subscriber would be applicable to each However, their purposes in proposing two-tier structure associated with seven broadcast of a sound recording ‘‘per play’’ or ‘‘per broadcast’’ rates specific subscriber intervals as part of thereafter. At the high end of this differ. While admitting the likelihood of its per broadcast/per subscriber alternative, if the number of increased administrative costs, the proposal to help mitigate the potential subscriptions were equal to more than SDARS maintain that their ‘‘per play’’ adverse revenue impact of a decline in 19 million for an SDARS, $0.00001 per mechanism is superior to a revenue- music broadcasts that is not fully subscriber would be applicable to each based rate structure because: (1) It matched by an equivalent decline in broadcast of a sound recording for the music listenership. Pelcovits WRT at first 150,000 sound recordings broadcast 16 While the XM and Sirius amended rate 23–25. each month and $0.000003 per proposal omits any specific mention of a revenue basis, their chief economic expert, Dr. Woodbury, subscriber would be applicable to each nevertheless supplies a revised estimate of his 2. Rate Structure broadcast of a sound recording recommended revenue-based rate in the course of Because we have no true per thereafter. With respect to this ‘‘option,’’ his rebuttal testimony and uses that revised performance fee proposal before us nor SoundExchange also proposes that the revenue-based rate as the basis for the SDARS’ sufficient information from evidence of royalty rates associated with particular amended and second amended ‘‘per play’’ proposals. At bottom then, the SDARS’ amended record to accurately transform any of the subscriber numbers would be rate proposal does not scrap its revenue basis, but parties’ proposals into a true per additionally adjusted at the beginning of rather simply translates the revenue-based performance fee proposal, the Copyright each year starting with January, 2008 by recommendation of 1.20% into a per play rate by dividing the revenues that would be garnered from Royalty Judges conclude that a revenue- the change in the CPI–U over the the application of the revised revenue-based rate by based fee structure for the SDARS is the preceding 12 months ending on the total number of estimated compensable plays most appropriate fee structure November 1. SoundExchange Third broadcast by the SDARS in 2006. This results in a Amended Rate Proposal (August 6, per play rate of $1.20 in their amended proposal applicable to these licensees. 2007) at 1–8. based on 2006 revenues and a per play rate of $1.60 First, the absence of a true per in their second amended proposal based instead on performance fee proposal that seeks to By contrast, XM and Sirius initially 2007 revenue projections. Woodbury WRT at 22; proposed only a percentage of revenues SDARS PFF at ¶¶ 845–846. tie payment directly to actual usage of fee structure equal to 0.88% of a 17 ‘‘Play’’ is defined as the transmission of a the sound recording by the licensees licensee’s quarterly gross revenues sound recording by the SDARS, regardless of the number of listeners who tune in or listen to the 18 Digital Performance Right in Sound Recordings resulting from residential services in the transmission. XM Amended Rate Proposal (July 24, and Ephemeral Recordings (Final Rule and Order), United States to be applicable for the 2007) at § 3_.2(d); Sirius Amended Rate Proposal 72 FR 24084 (May 1, 2007) (codified at 37 CFR part duration of the 2007–2012 license (July 24, 2007) at § 3_.2(d). 380) (‘‘Webcaster II’’).

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makes all the various alternative fee music listening time during the license same flexibility may be achieved by proposals of the parties into proxies for period,’’ suggests ‘‘accounting for such other means.20 At the same time, this a usage metric at best. Although revenue changes in an approximate way by business flexibility ‘‘advantage’’ raises merely serves as a proxy for measuring increasing the per-play rate by the serious questions of fairness precisely the value of the rights used, so also do actual annual percentage change in the because the SDARS ‘‘per play’’ metric is the per play and per broadcast number of SDARS subscribers.’’ a less than fully satisfactory proxy for alternatives offered by the parties. Woodbury WRT at 22 (emphasis added). listenership. Thus, fewer stations (ergo Neither of the parties’ alternatives to a Similarly, SoundExchange’s ‘‘per fewer plays) could be offered by the revenue-based metric really measures broadcast/per subscriber’’ rate proposal, SDARS without a proportionate actual usage. The SDARS ‘‘per play’’ ultimately ties increases in royalty rates reduction in the number of proposal makes no attempt to measure to the achievement of specific transmissions actually heard. Under the number of listeners to any particular subscriber levels that are only roughly such circumstances, the copyright sound recording, but rather transforms related to the actual number of listeners owner’s per performance revenue would the revenue-based metric into a ‘‘per to any given sound recording. decline because of the shortcomings of play’’ metric by applying that revenue SoundExchange Third Amended Rate the ‘‘per play’’ metric in question as a rate to the transmission of a sound Proposal (August 6, 2007) at 5–7. In proxy for measuring actual usage. SX recording without regard to the number short, both parties ultimately focus on a PFF at ¶¶ 1442–9. It is not fair to so of listeners who tune in or listen to the major driver of revenue growth (i.e., clearly fail to properly value the transmission. Woodbury WRT at 22 and subscriber growth) as a proxy for usage performance rights at issue in this XM Amended Rate Proposal (July 24, because, without this additional proceeding. Such a result is additionally 2007) at § 3_.2(d); Sirius Amended Rate adjustment, ‘‘per play’’ and ‘‘per at odds with the stated policy objective Proposal (July 24, 2007) at § 3_.2(d); broadcast’’ metrics are clearly poorer of the statute to afford the copyright Second Amended Proposal of Rates and substitutes for a usage-based metric owner a fair return for his creative work. Terms of Sirius Satellite Radio Inc. and compared to a percentage of revenue 17 U.S.C. 801(b)(1). Similarly, the XM Satellite Radio Inc. (October 1, approach. Consequently, SDARS’ contention that the adoption of 2007) at § 3_.2(d). notwithstanding the various a ‘‘per play’’ rate structure would Indeed, since the number of ‘‘plays’’ adjustments made by advocates of the preserve their incentives to improve the (i.e. transmission of a sound recording) ‘‘per play’’ or ‘‘per broadcast’’ proposals quality of their service (by leaving them for which the SDARS propose payment they remain inextricably focused on with more revenue to acquire more is not further related to the number of revenues. Moreover, because the attractive nonmusic programming or to listeners to such transmissions, Dr. adjustments suggested to improve the improve the quality of their radio Woodbury admits that the per play rate ‘‘per play’’ and ‘‘per broadcast’’ devices), is not an advantage equitably is not even as good a proxy for usage as proposals result in additional experienced by both parties. Rather, the revenue without further annual ambiguities rather than more precision, advantage runs to the SDARS who stand adjustments for growth in subscribers. these alternatives may be even less to gain revenue while the copyright Woodbury WRT at 22. Similarly, the satisfactory proxies for a usage-based owner experiences a decline in the SoundExchange ‘‘per broadcast’’ rate metric than the percentage of revenue value of the performance rights at issue proposal fails to relate royalty payments approach. in this proceeding. Again, this is directly to usage. Even though the Third, upon careful review, we find because number of plays can be reduced SoundExchange ‘‘per broadcast’’ that the SDARS’ two proffered with a less than proportionate reduction proposal is tied to the number of SDARS advantages of a ‘‘per play’’ metric as in listenership. Furthermore, there is no subscribers, it remains, at best, a proxy compared to a percentage of revenue guarantee that the SDARS will spend for actual usage because, as Dr. Pelcovits measure are less advantageous than any additional revenue so acquired to admits, ‘‘subscribers’’ are not the claimed. The SDARS argue that a ‘‘per improve the quality of their services; functional equivalent of ‘‘listeners’’ and play’’ rate provides the SDARS with thus ‘‘preserving an incentive’’ is not because the available data does not more business flexibility because it the equivalent of insuring action of the permit the precise determination of allows them to respond to any type suggested by Dr. Woodbury based whether the music listened to by substantial increases in fees by on that incentive. SDARS subscribers refers solely to the economizing on the plays of sound In short, given that the two compensable sound recordings at recordings so as to reduce their royalty ‘‘advantages’’ of the ‘‘per play’’ question in this proceeding. Pelcovits costs. Woodbury WRT at 20; Karmazin approach stated by Dr. Woodbury are WRT at Appendix at 1–3. In short, as Dr. WRT at 13. While the general neither clear-cut nor of estimable Pelcovits states, ‘‘the per broadcast/per proposition of enhancing business likelihood, we are persuaded that the subscriber metric simply does not flexibility is usually advantageous (at ‘‘countervailing consideration’’ of provide an accurate and dynamic least to the party obtaining such greater administrative costs raised by measure of listening/consumption.’’ flexibility), the probability of obtaining Dr. Woodbury clearly outweighs the Pelcovits WRT at 25. the specific advantage described by Dr. Second, the advocates of the ‘‘per Woodbury and Mr. Karmazin is reduced relative revenue generation and relative input play’’ and ‘‘per broadcast’’ rate by the myriad of economic pricing circumstances have been simultaneously structures effectively admit that, as circumstances which must coalesce as satisfied. 20 For example, in light of the definition of ‘‘gross proxies for usage, such measures are no necessary preconditions.19 Further, the better than revenue-based measures, as revenues’’ herein below in this determination, the SDARS could offer wholly nonmusic programming shown by their attempts to use changes 19 From an economic point of view, for example, as an additional, separately priced premium in general subscriber levels as a rough it would only make sense for the SDARS to reduce channel/service without having the revenues from proxy for measuring the impact of their use of music as an input in response to a such a premium channel/service become subject to changes in the number of listeners. For royalty fee increase if the revenue they earned from the royalty rate and, thereby, achieve the desired the last dollar spent on music programming came flexibility of offering more lucrative nonmusic example, Dr. Woodbury, after noting to be outstripped by the revenue they earned from programming without sharing the revenues from that the ‘‘per-play payment does not spending the same dollar on nonmusic that programming with the suppliers of sound account for any changes in aggregate programming. This assumes that a variety of recording inputs.

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tenuous benefits of the SDARS ‘‘per proposals, no party has submitted any proposals, the parties offered little play’’ fee structure. SoundExchange in evidence regarding the impossibility of evidence to support their respective its proposed ‘‘per broadcast/per applying or complying with a revenue- proposed definitions of revenue. subscriber’’ approach attempts to based metric. That is not surprising, SoundExchange proposed an expansive mitigate some of the untoward effects of inasmuch as the parties have until now reading of revenue to include ‘‘all the SDARS ‘‘per play’’ approach lived under a revenue-based regime. revenue paid or payable to an SDARS through the addition of a two-tier fee Therefore the parties are most familiar, that arise from the operation of an structure that partially and indirectly and perhaps most comfortable, with the SDARS service * * *’’ SoundExchange addresses the absence of a true per operation of a revenue-based metric. Third Amended Rate Proposal (August performance measure reflective of actual The value of such familiarity lies in its 6, 2007) at § 38_.2(g). However, listenership. However, we agree with contribution towards minimizing SoundExchange offers scant evidentiary Dr. Pelcovits that even as so modified, disputes and, concomitantly, keeping support for this particularly broad yet this approach still yields less than transactions costs in check. Because XM vague definition. The SDARS, by satisfactory results. Pelcovits WRT at 25 and Sirius are both commercial contrast, offer a definition of gross (‘‘the per broadcast/per-subscriber [sic] subscription services and music is an revenues that apparently seeks to largely metric simply does not provide an integral part of each subscription adapt the existing PSS definition of accurate and dynamic measure of service, focusing on gross revenues gross revenues, 37 CFR 260.2(e), to the listening/consumption’’). Moreover, the attributable to those subscriptions or nature of current SDARS services. XM tradeoff for this modest conceptual derived in connection with the use of Rate Proposal (January 17, 2007) at improvement in the ‘‘per play’’ fee music in SDARS programming (e.g., § 26_.2(d); Sirius Rate Proposal (January structure is reliance on less than precise advertising or sponsorship revenues 17, 2007) at § 26_.2(d). With one estimates of listenership and additional attributable to such programming) exception, we find that the SDARS complexity in administration. On provides a straightforward method of ‘‘gross revenue’’ definition in their balance, then, we conclude that neither relating music fees to the value of the initial fee proposal more unambiguously the SDARS’ ‘‘per play’’ metric nor rights being provided. relates the fee to the value of the sound SoundExchange’s ‘‘per broadcast/per For all of the above reasons, the recording performance rights at issue in subscriber’’ measure is superior to a Copyright Royalty Judges conclude that this proceeding. For example, the revenue-based fee structure as a proxy evidence in the record weighs in favor SDARS definition of ‘‘gross revenues’’ for a true per performance fee structure of a revenue-based fee structure for the excludes monies attributable to for the services in this proceeding. SDARS. We find a sufficient clarity of premium channels of nonmusic Furthermore, a revenue-based fee evidence based on the record in this programming that are offered for a structure at least offers clear proceeding to produce a revenue-based charge separate from the general administrative advantages to these metric that can serve as adequate proxy subscription charge for the service. The parties and, therefore, reduced for a usage-based metric. Furthermore, separate fee generated for such transactions costs compared to the ‘‘per there was no substantial evidence nonmusic premium channels is not play’’ and ‘‘per broadcast/per offered by any party to readily guide the closely related to the value of the sound subscriber’’ alternatives proposed by the calculation of a usage-based (i.e. per recording performance rights at issue in parties. performance) metric as a substitute for this proceeding. Therefore, this Fourth, while in Webcaster II we the revenue-based approach long proposed exclusion serves to more concluded that the evidence in the employed by the parties. Indeed, in clearly delineate the revenues related to record of that proceeding weighed in stark contrast to the record in Webcaster the value of the sound recording favor of a per performance usage fee II, neither the SDARS nor performance rights at issue in this structure for both commercial and SoundExchange provided substantial proceeding. The one exception to the SDARS noncommercial webcasters, we further evidence to indicate that a true per definition of revenues that fails to meet suggested that, in the absence of some performance rate was susceptible of the test of unambiguously relating the of the more egregious problems noted being calculated by the parties to this fee to the value of the sound recording therein, the use of a revenue-based proceeding. Therefore, we find that a performance rights is the use of the metric as a proxy for a usage-based revenue-based measure is currently the SDARS definition of a Music Channel in metric might be reasonable. Webcaster most effective proxy for capturing the two places in their gross revenue II, 72 FR 24090. In particular, one of the value of the performance rights at issue definition—once in connection with a more intractable problems associated here, particularly in the absence of any limitation on advertising revenues and with the revenue-based metrics substantial evidence of how some again in an exclusion of subscription proposed by the parties in Webcaster II, readily calculable true per performance revenues solely derived from nonmusic 72 FR 24090, was the parties’ strong metric could be applied to the SDARS. channels. The SDARS define Music disagreement concerning the definition 3. Revenue Defined Channels to mean channels where of revenue for nonsubscription services. sound recordings constitute 50% or This was further complicated by In order to properly implement a more of the programming at SDARS questions related to applying the same revenue-based metric, a definition of proposed regulation § 26_.2(f), but their revenue-based metric to noncommercial revenue that properly relates the fee to gross revenue definition at SDARS as well as commercial services. See the value of the rights being provided is 21 proposed regulation § 26_.2(d)(vi)(B) Webcaster II, 72 FR 24094 n.15. The required. Although the SDARS and also implies that nonmusic channels are same degree of difficulty is not SoundExchange offered somewhat channels that are characterized as those presented by the applicable facts in this different formulations of how revenue with only ‘‘incidental’’ performances of proceeding. The parties to this should be defined in their initial rate sound recordings.22 Because the latter proceeding, at least initially, all 21 Dr. Ordover simply describes the main proposed a revenue-based metric and, consideration as follows: ‘‘In sum, rates should 22 The latter definition is more consistent with while there were some differences in the reflect purchasers’ willingness to pay for music current SDARS programming. See Woodbury definition of revenues in their initial content.’’ Ordover WDT at 21 (emphasis added). Continued

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interpretation is more consistent with Dr. Pelcovits nor any other any proffered benchmarks. Although the the test of unambiguously relating the SoundExchange witness offers a solid applicable Section 114 statutory fee to the value of the sound recording explanation of why a ‘‘greater of’’ rate standard provides a broader scope for performance rights at issue in this structure makes sense in other analyzing relevant ‘‘benchmark’’ rates proceeding and because the SDARS marketplaces together with an than the ‘‘willing buyer, willing seller offer no substantial evidence to support explanation of how that rationale is also standard’’ applicable to the Webcaster II their 50% breakpoint, we decline to applicable to this marketplace, proceeding, nevertheless potential adopt the more cramped position stated notwithstanding any differences benchmarks are confined to a zone of in the SDARS’ proposed definition of a observed between the marketplaces in reasonableness that excludes clearly Music Channel. Rather, we adopt the question. Nor does SoundExchange noncomparable marketplace situations. SDARS ‘‘incidental’’ performance of present any persuasive evidence that the 2. Comparability of Marketplace Rates sound recordings formulation. Using the availability of this per subscription latter formulation, gross revenues would alternative is necessary because it is Notwithstanding their apparent exclude both subscription and easier to administer and thus will general agreement that beginning with a advertising revenues associated with reduce transactions costs. Finally, given relatively comparable marketplace channels that use only ‘‘incidental’’ the parameters of gross revenues as benchmark is the best way to undertake performances of sound recordings as defined hereinabove, there is no the requisite analysis here, the parties part of their programming.23, 24 evidence in the record to suggest that disagree about what constitutes an A further consequence of the gross revenues could be reduced below appropriate benchmark. The SDARS Copyright Royalty Judges adopting the the amount of revenues otherwise due argue that the most appropriate revenue-based metric as a proxy for a from applicable subscriptions. For all benchmarks, as analyzed by their expert usage-based metric with the definition these reasons, the Judges decline to economist, Dr. Woodbury, are (1) PSS of gross revenue described hereinabove establish such a duplicative structure. rates applicable to cable subscription is to eliminate the need for a rate offerings by Music Choice; and (2) structure formulated as a ‘‘greater of’’ C. The Section 114 Royalty Rates for the agreements between performing rights comparison between gross revenue- SDARS organizations (ASCAP and BMI) and the based metrics and alternative revenue- 1. The Applicable Standard SDARS covering the digital public performance of musical works. On the based metrics that focus on the dollar As previously noted hereinabove, value of subscriptions alone. other hand, SoundExchange maintains supra at Section IV.A., the Copyright that the most appropriate benchmark Although SoundExchange proposes Act requires that the Copyright Royalty an alternative per subscription dollar agreements, as analyzed by its expert Judges establish rates for the Section economists, Dr. Michael Pelcovits and amount, the Judges do not find the basis 114 license that are reasonable and for this alternative structure to be Dr. Janusz Ordover, are: (1) The SDARS calculated to achieve the following four nonmusic programming content supported by persuasive evidence. For specific policy objectives identified in example, SoundExchange’s expert expenditures; (2) market agreements Section 801(b): (A) To maximize the between record companies and a variety economist, Dr. Pelcovits, simply asserts availability of creative works to the that its rate proposal ‘‘sensibly follows of services that digitally distribute their public; (B) to afford the copyright owner sound recordings; and (3) agreements a ‘greater of’ rate structure common to a fair return for his creative work and certain marketplace agreements’’ between content providers and satellite the copyright user a fair income under television operators. We find, based on without more. Pelcovits WDT at 4. existing economic conditions; (C) to Indeed, Dr. Pelcovits’ recommended the available evidence before us, that no reflect the relative roles of the copyright single market benchmark offered in SDARS rate itself is not stated as a owner and the copyright user in the ‘‘greater of’’ alternative, but rather as evidence wholly satisfies the requisite product made available to the public analysis here, but rather that some equivalent dollar per subscriber or with respect to relative creative evidence offered by both the SDARS percent of revenue rates. Pelcovits WDT contribution, technological and SoundExchange can serve to at 32, Pelcovits WRT at 39. contribution, capital investment, cost, identify the parameters of a reasonable SoundExchange’s other economic risk, and contribution to the opening of range of rates within which a particular expert, Dr. Ordover, similarly reads new markets for creative expression and rate most reflective of the four 801(b) SoundExchange’s per subscriber and media for their communication; and (D) factors can be located. percent of revenue rates as equivalent to minimize any disruptive impact on alternatives. Ordover WDT at 4. Neither the structure of the industries involved a. The Woodbury Benchmarks and on generally prevailing industry The SDARS’ expert economic witness, Amended WDT at 6–7 and Ex. 3 and Ex. 4. It is also more consistent with the notion of a music channel practices. 17 U.S.C. 114(f)(1)(B) and 17 Dr. Woodbury, offers two alternative espoused by SDARS’ expert economist, Dr. U.S.C. 801(b)(1). benchmarks for consideration as the Woodbury, who identifies all channels using Both the copyright owners and the starting point for rate determination in commercially released sound recordings as ‘‘music SDARS agree that a good starting point the instant matter: (1) The 2004–7 rate channels’’ in his analyses. Woodbury Amended WDT at 7 and n.22. for the determination of what paid by Music Choice for sound 23 See infra at § 382.11 (definition of ‘‘Gross constitutes a reasonable rate recordings used in its cable subscription Revenues’’). encompassing the four policy factors is offering, or 7.25% of gross revenues, 24 The Judges do not address here the to focus on comparable marketplace subject to certain adjustments which compensability of ‘‘incidental’’ performances of royalty rates as ‘‘benchmarks,’’ would reduce the effective rate for the sound recordings; rather, the Judges find that reference to such ‘‘incidental’’ performances indicative of the prices that prevail for SDARS to 1.20% of gross revenues; and facilitates an unambiguous definition of nonmusic services purchasing similar music (2) the aggregate current musical works channels identifying substantial revenue generation inputs for use in digital programming rates paid to ASCAP and BMI, or 2.35% unrelated to the sound recording rights at issue in ultimately made available to consumers. of gross revenues. In addition, the this proceeding and which arises under circumstances clearly distinguishable from the joint SDARS PFF at ¶ 810 and SX PFF at SDARS argue that certain other music/nonmusic product typically offered by the ¶ 279. We agree that ‘‘comparability’’ is evidence in the record ‘‘corroborates Dr. SDARS. a key issue in gauging the relevance of Woodbury’s PSS-Derived Rate’’ (e.g., the

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‘‘custom radio’’ agreement between Woodbury’s ‘‘functionality adjustment’’ adjusted by Dr. Woodbury, the proposed Yahoo! and Sony BMG, again subject to merely lists key characteristics of the Music Choice benchmark clearly lies certain adjustments which would music made available to SDARS outside the ‘‘zone of reasonableness’’ for reduce the effective rate if applied to the consumers (e.g. mobility, quality of consideration in this proceeding. SDARS to 2.57% of revenue). reception, broader playlists than Therefore, we find this particular typically available on terrestrial radio, benchmark cannot serve as a starting i. An Adjusted Music Choice PSS Rate etc.) for which music consumers are point for the 801(b) analysis that must With respect to the first of these willing to pay enhanced revenues and be undertaken in this proceeding. proferred benchmarks, we find that Dr. then attributes all of the revenue ii. The Musical Works Rates Woodbury’s assertion that the Music associated with these characteristics to Choice cable television music offering is other inputs such as satellite technology The musical works rates benchmark comparable to the services offered by under the unsubstantiated theory that proposed by the SDARS also fails to the SDARS is unpersuasive. The Music such other inputs could produce the provide a reasonable benchmark in Choice audio service is included as a same level of revenue 25 absent any terms of comparability. This benchmark part of a bundle of primarily music to broadcast. Therefore, the analysis tracks some similar arguments audiovisually oriented services (i.e., Woodbury ‘‘functionality’’ adjustment is that failed to prevail in Webcaster II. television channels) offered over cable seriously flawed and makes little The Copyright Royalty Judges find television systems to cable television contribution to resolving the lack of that the musical works benchmark subscribers at fixed locations, while the comparability between the Music analysis offered by Dr. Woodbury is SDARS music channels are a substantial Choice cable TV music programming similarly flawed here for several part of purely audio services provided proposed benchmark market and the reasons. First, the musical works to subscribers over devices designed in SDARS target market. benchmark analysis is based on a large part to compete with terrestrial We conclude from the record before marketplace in which, while the buyers radio in terms of equivalent mobility. us that there is no basis to support the may be the same as in the SDARS Further, no evidence has been presented notion that music inputs in both these marketplace, the sellers are different to indicate that cable TV subscribers markets are equally productive in and they are selling different rights. utilize the Music Choice audio service generating revenues for the users. That Webcaster II, 72 FR 24094. The fact that except as incidental to their primary notion is artificially and inappropriately an SDAR requires both sets of rights activity of television channel usage, created by Dr. Woodbury’s reduction of does not make them equivalent. Many while substantial evidence has been the capabilities associated with the products and services require several provided by both the SDARS and music inputs used by the SDARS by essential inputs, but that fact alone does SoundExchange to indicate that music restricting their use to the more limited not lead to price parity across those listening is an integral part of consumer capabilities of the music inputs used by inputs. Ordover WRT at 19. activity with respect to SDARS Music Choice in its cable TV offering Second, contrary to Dr. Woodbury’s transmissions. SX PFF at ¶¶ 333–5; (e.g., no mobility, etc.). If anything, assertions that the prices paid for the Woodbury Amended WDT at 34. In rather than adding to the downward rights in each respective market should short, the consumer products from adjustment to the Music Choice rate be the same, substantial empirical which demand is derived for music already made by Dr. Woodbury to evidence shows that sound recording inputs are clearly not comparable in account for music/nonmusic rights are paid multiple times the these two markets. Furthermore, in differences, it would seem more amounts paid for musical works rights contrast to the core SDARS product, appropriate to adjust the proffered in most digital markets (e.g., ringtones, there is evidence that consumer demand SDARS rate upwards to account for digital downloads, music for the Music Choice offering on cable these particular mobility differences.26 videos).27 Webcaster II, 72 FR 24094; SX TV is relatively weak. SX PFF at In sum, the consumer products from ¶¶ 1298–1300. Since demand for the which demand is derived for music 27 The SDARS attempt to discount these music input is a demand derived from particular disparities by implying that since the inputs are clearly not comparable in sound recording rates are negotiated in an its use in the consumer service offered these two markets and the proferred unconstrained marketplace while the ASCAP and, in this case, the ultimate uses of adjustments do not remedy this musical works rates in these markets are subject to the Music Choice music programming shortcoming. Because of the large degree court supervision, the latter must necessarily be relatively lower because they are constrained by the and SDARS music programming exhibit of its incomparability, particularly as threat of court intervention. (See, for example, substantial differences so as to make SDARS RFF at ¶ 90.) But this argument is not them poor comparators, we find that the 25 Although Dr. Woodbury uses the ‘‘costs’’ persuasive, because it fails to show that the Music Choice ‘‘benchmark’’ provides associated with these other inputs in his negotiated sound recording rates are greater than adjustment, he makes clear that those costs merely ‘‘the price that a willing buyer and a willing seller little if any guidance as to a reasonable serve as a proxy for revenues attributable to the use would agree to in an arm’s length transaction’’ (i.e., price for the music input used in the of inputs. Woodbury Amended WDT at 23 (‘‘The the rate court standard for reasonableness as SDARS service. SRPR [sound recording performance right] fee paid articulated in U.S. vs. ASCAP (Salem Media), 981 We are also not persuaded that the so- by XM and Sirius would be higher only because of F. Supp 199, 210 (S.D.N.Y., 1997)). called ‘‘functionality’’ adjustment the added revenue (reflecting higher costs) The SDARS also appear to argue that the attributable to providing an end-to-end mobile Librarian’s statement in the 1998 PSS Rate applied by Dr. Woodbury in a purported service, not necessarily because of the inherently Determination, at 63 FR 25405, that copyright effort to make his proposed Music higher value of music.’’) Dr. Woodbury describes owners of musical compositions and record Choice benchmark market more the costs of these other inputs as ‘‘subscriber companies ‘‘do not share equal power to set rates comparable to the SDARS target market distribution and acquisition costs.’’ Woodbury in an unfettered marketplace,’’ recognized that Amended WDT at 22. sound recordings enjoy relatively higher rates achieves the desired result. The 26 This is not to say that the music input that is compared to musical works in other digital markets Woodbury ‘‘functionality’’ adjustment sold to consumers as ‘‘mobile music’’ is wholly because of the exercise of relatively greater market does not address adequately the salient responsible for the consumer revenues generated by power by the record companies as compared to the consumer product differences noted the product over and above the revenues that are more constrained musical works seller. Yet, the generated by an otherwise identical but ‘‘nonmobile SDARS reliance on the Librarian’s decision in the above. In that sense, to refer to this music product,’’ any more than the technical 1998 PSS Rate Determination is misplaced insofar adjustment as a ‘‘functionality’’ distribution vehicle is wholly responsible for those as the Librarian was not focusing on comparative adjustment is a misnomer. Dr. added revenues. Continued

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PFF at ¶¶ 1381–87, 1389–93. Thus, we make future investment decisions based arguably comparable benchmark, this conclude that the marketplace evidence on their best estimates of the revenue ‘‘corroborative’’ data all points in the from other digital markets submitted by sources available to them in the future direction that it is too low as adjusted. SoundExchange casts substantial doubt from all sources including revenue Furthermore, we find that the musical on the reasonableness of using the streams derived from the SDARS’ use of works benchmark and the adjusted proferred musical works rates as a sound recordings. Ordover WRT at 14 Pelcovits nonmusic programming benchmark for the sound recording rates (‘‘Record companies’ incentives to benchmark themselves suffer from to be determined in this proceeding, produce new music are based on serious flaws. See supra at Section except as an indicator that a reasonable revenues from all available sources’’). IV.C.2.a.ii. and infra at Section rate for sound recordings could not be As we recognized in Webcaster II at 72 IV.C.2.b.ii. In addition, the SDARS– as low as the musical works rate. FR 24094 n.28, this is a dynamic RIAA current agreement cannot be Third, the Copyright Royalty Judges economic process concerned with corroborative of a reduced rate going find that Dr. Woodbury’s equivalence obtaining greater resources for future forward since it is not accompanied by argument also is flawed because of his creative efforts. To suggest that the any evidentiary showing that economic effective reliance on the assumption of sound recording copyright owners circumstances in this market have ‘‘sunk costs’’ as a justification. This should ignore such costs in their deteriorated. Finally, the rate terms from assumption fails on both theoretical and approach to pricing in the SDARS a ‘‘custom radio’’ agreement between empirical grounds for the same reasons market makes little sense. At bottom, Yahoo! and Sony BMG (which were not that we rejected it in Webcaster II. Dr. then, we find Dr. Woodbury’s introduced to corroborate the PSS- Woodbury claims that, while the sellers equivalence rationale for his proposed adjusted rate but rather were introduced in his benchmark market are not the benchmark to be severely flawed. by Dr. Woodbury to ostensibly test the same as in the target market, they stand Moreover, as we pointed out above, sensitivity of Dr. Ordover’s analyses of in a similar position because for both there is ample empirical evidence in the other markets): (1) Were not shown to be musical works and sound recordings, record from other digital marketplaces representative of this category’s the costs of producing the underlying to controvert Dr. Woodbury’s premise agreements; and (2) suffer from the same intellectual property are effectively that the market for sound recordings flawed ‘‘functionality’’ adjustment as sunk, meaning that there is no and the market for musical works are Dr. Woodbury’s PSS-derived rate. In incremental cost imposed on the sellers necessarily equivalent. SX PFF at short, we find no persuasive evidence of either the musical work or sound ¶¶ 1381–87, 1389–93. proffered by the SDARS that would recording by virtue of making the For all these reasons, the Judges find cause us to alter our earlier finding that underlying intellectual property that Dr. Woodbury’s proffered musical the PSS-derived rate as adjusted by Dr. available for digital performance. works benchmark is not useful as a Woodbury (i.e., 1.2% of revenues) Woodbury Amended WDT at 37. As a starting point for our determination of a clearly lies outside the ‘‘zone of matter of theory, then, Dr. Woodbury’s reasonable sound recording rate in this reasonableness’’ for consideration in proposed benchmark analysis ignores market and, further, that marketplace this proceeding. evidence from other digital markets the long-established pattern of b. The Pelcovits Benchmarks and submitted by SoundExchange shows investment in the recording industry. As Analyses we noted in Webcaster II at 72 FR that a reasonable rate for sound 24094, not only are there some initial recordings could not be as low as the SoundExchange’s expert economic sunk investments, but there is a musical works rate. witness, Dr. Pelcovits, offers two requirement of repeated substantial benchmarks for consideration as the iii. SDARS’ Corroborative Evidence for starting point for determination of a outlays year after year or, in other PSS-Derived Rate words, the repeated ‘‘sinking’’ of funds; royalty rate applicable to the SDARS: (1) and, if sellers are faced with the The SDARS argue that certain other Royalties of 23% for sound recordings prospect of not recovering such sunk evidence in the record corroborates Dr. based on Sirius’ payments to Howard costs, then the incentive to produce Woodbury’s PSS-derived rate of 1.2% of Stern for nonmusic content (Pelcovits sound recordings is diminished. In this revenues: (1) The prior SDARS–RIAA Amended WDT at 8); and (2) royalties case there is also substantial evidence of agreement (in the range of 2.0% to 2.5% of 18.6% for sound recordings based on a substantially greater investment of this of revenues); (2) the SDARS Musical payments made in the aggregate by the type in sound recordings as compared to Works Agreements (suggested SDARS for nonmusic programming, musical works. SoundExchange PFF at benchmark rate of 2.35%); (3) a ‘‘custom including payments made to Howard ¶¶ 1399–1401, 1407. Furthermore, radio’’ agreement between Yahoo! and Stern (Pelcovits Amended WDT at 10). recording companies will necessarily Sony BMG, subject to certain In addition, Dr. Pelcovits offers an adjustments which would reduce the alternative analysis that yields royalties musical works and sound recording rate data from effective rate if applied to the SDARS to of 18% for sound recordings based on these other digital markets where record companies 2.57% of revenue; and (4) Dr. Pelcovits’ a ‘‘division of surplus’’ analysis between do not sell directly to consumers in the 1998 nonmusic programming benchmark, nonmusic content and music content decision, but rather was evaluating the merits of an also subject to certain adjustments (Pelcovits WRT at 39 n.64). RIAA contention that record companies should which would reduce the effective rate if receive more value from the performance right in i. The Stern Benchmark sound recordings because the record companies applied to the SDARS to 3.51% of garner more revenue from the use of the mechanical revenue. We find that rates which are Dr. Pelcovits offers his Stern analysis license than do the songwriters and composers. In virtually 2 or 3 times as great (e.g. on the assumption that nonmusic other words, the focus was on the relevance of the wholesale market for CDs and cassette tapes. 2.35% or 3.51%) as the rate they are content and music content are Indeed, the Librarian specifically criticized the being used to corroborate (i.e. 1.2%) substitutes. He then focuses on one RIAA offering for failing to ‘‘explain why the only serve to undermine any particular type of non-music content, relative value of the mechanical license to the reasonableness that might be ascribed to Howard Stern’s programming on Sirius. various owners and users has any application to the determination of the value of digital performance in the Woodbury PSS-derived rate of 1.2%. He next estimates that Sirius paid about sound recordings.’’ 1998 PSS Rate Determination at That is, even if the Woodbury PSS- 50% of revenue to Stern for each 63 FR 25405. derived rate was derived from an incremental subscriber that his

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programming attracted to Sirius. Using figure for music content requires a leap on a single imperfect snapshot of the results of a survey undertaken by Dr. of faith that appears unjustified.29 Dr. consumer preferences provided by Dr. Wind that purports to show that 56% of Pelcovits then multiplies the 50% Stern Wind 31 at one point in time, without all Sirius’ subscriber revenues would be figure by 56% of all customers any justification for the implied lost if it offered no music channels, Dr. purportedly attracted to music so as to assumption that such preferences have Pelcovits then concludes that just as determine the ‘‘share of the customer remained or will remain stable across Howard Stern is paid 50% of the base that can be attributed to sound Sirius’ subscribership over time or even revenues for the customers attributed to recordings in the same sense’’ that over any limited relevant time period. him, the music input should likewise be Stern’s incremental customers are Third, and most importantly, paid 50% of the revenues for the 56% attributed to Stern. Pelcovits WDT at 13. inasmuch as Dr. Pelcovits offers the of SDARS customers attributed to it. But this latter calculation has little to do Stern analysis as a ‘‘benchmark,’’ he Subtracting the music publishers’ with determining incremental assumes a degree of marketplace royalty and the SDARS’ internal subscriber revenue. For example, Dr. comparability that the evidence in this production costs for music channels, Dr. Wind’s survey findings do not proceeding does not support. The sellers Pelcovits is left with a bottom line satisfactorily meet the needs of the of the respective inputs are different.32 royalty of 23% for sound recordings. We theory espoused by Dr. Pelcovits There is a single purchaser of the find this analysis suffers from several because, as noted by Dr. Noll, ‘‘The ‘‘exclusive’’ Stern content from among serious shortcomings. survey methods for determining the the SDARS (i.e. Sirius), while both First, Dr. Pelcovits’ assertion that importance of music to SDARS SDARS are buyers of the same music ‘‘different kinds of content are penetration are not designed to answer content. The way the inputs are used in substitutable inputs’’ (see Pelcovits the pertinent question, which is the the ultimate consumer offering results WDT at 10) is questionable in light of incremental value of music, holding in different revenue generating the fact that both inputs are required to constant the features of the service, capabilities for the respective inputs. produce the SDARS primary offering— including the quantity of music that is For example, the Stern content can a joint music-nonmusic consumer now available.’’ Noll WRT at 69. (See generate revenue through increased service. As currently constituted in this also Noll WRT at 10–11). Thus, even subscriptions as well as through joint offering, these two types of assuming Dr. Wind’s survey were increased advertising, while the chief different content, by definition, may without faults, that survey says little characteristic of the music input on the well be classified as complementary about incremental subscribers, but SDARS is that it is commercial-free. (e.g., similar to the joint requirement for rather tries to assess the consumer Then too, there are other benefits a fishing rod and a fishing reel in order preferences of all Sirius subscribers or associated with specific nonmusic to engage in the activity of fishing). No the average Sirius subscriber. By content like the Stern content, such as substantial evidence regarding the comparing the incremental revenues the right to associate the service with relevant cross-price elasticities of attributable to Stern and the overall the content provider’s brand, that makes demand was presented by Dr. Pelcovits revenues arguably attributable to music those inputs differentiable from the to support his assertion that music programming in order to solve for the music input in terms of the breadth of programming and nonmusic unknown price of the music input, Dr. intellectual property rights provided or programming are substitutes as Pelcovits effectively ignores the the nature of the input provided. currently utilized by the SDARS.28 marginal or incremental nature of the SDARS RFF at ¶ 286. In other words, all Indeed, Dr. Pelcovits recognizes this concept he seeks to employ.30 Even Dr. ‘‘content’’ is not comparable, any more complementary aspect of the various Pelcovits’ estimate of the total revenues than all inputs in addition to that programming inputs when he declares, attributable to the music input is based content are comparable just because with respect to the current Sirius they share the ultimate purpose of service, that ‘‘a large catalog of music is 29 This 50% estimate was originally based on generating revenue for the SDARS. essential to a music-based service and analyst projections of 1.75 million incremental subscribers. A subsequent 50% estimate was based Fourth, to the extent that Dr. Pelcovits attracts customers to Sirius just as Stern on the 2 million incremental subscribers that Dr. treats advertising revenues as part of attracts customers.’’ Pelcovits WDT at Pelcovits said Sirius contemplated Stern would incremental revenues attributable to 13 (emphasis added). generate by the end of 2007. Pelcovits Amended Howard Stern (Pelcovits Amended WDT Second, Dr. Pelcovits makes several WDT at 6–8. In his amended estimates, using the original 1.75 million incremental subscribers at 6), his use of the result as a unjustifiable leaps in his analysis. He reduces the Stern cost as a percent of incremental benchmark for pricing commercial-free asserts that since Sirius paid 50% of revenue to 49%. Dr. Pelcovits further offered content inappropriately assumes an revenues for each incremental estimates for 1, 2, 3 or 4 million subscribers (79%, undemonstrated incremental revenue subscriber that Stern’s programming 50%, 39% and 34% respectively) as well as an average percentage of 49% taking into account each impact for the music input from attracted to Sirius, the same 50% figure of the four amounts of incremental subscribers. advertising. SoundExchange’s argument ‘‘ought to apply equally to music Pelcovits Amended WDT at 7–8. Incredulously, that ‘‘to the extent that music grows the content as to Stern’’ without performing even though he offers no apparent reason for subscriber base, and those subscribers any comparable incremental revenue looking at one of these estimates (the 3 million incremental subscriber case) or for suggesting that analysis for music programming. it might reflect actual experience in some way, Dr. 31 Because nonmusic content is broken down into Pelcovits WDT at 13. Given the Pelcovits includes it in his ‘‘average’’ and describes a number of non-additive sub-categories, while weaknesses of the 50% calculation for the resulting average as ‘‘reasonable.’’ Pelcovits music content is not, Dr. Wind asks consumers to Stern, his assertion without any Amended WDT at 8 n.20. To the contrary, Dr. compare music not relative to nonmusic content, Pelcovits’ various alternative estimates simply but rather to compare music to each of news, sports attempted analysis of the same 50% underscore the lack of a solid foundation, in fact or and talk and entertainment programming in theory, for his estimates and, therefore, separately. These survey results therefore cannot be 28 A positive cross-price elasticity of demand for undermine their reasonableness. properly interpreted as if music as a generic music programming associated with an increase in 30 Indeed, it is questionable as to whether the category were being compared to nonmusic as a the price of nonmusic programming would indicate marginal analysis Dr. Pelcovits seeks to apply to the generic category. that the two inputs were substitutes, while a Stern content makes good sense given that the 32 In addition, because Stern is a single seller in negative cross-price elasticity of demand under the acquisition of Stern was a ‘‘lumpy’’ purchase that the market for his content, he arguably functions as same circumstances would indicate that the two inhibits small incremental adjustments. Woodbury a monopolist in the market for his service whereas inputs were complements. WRT at 41. the sellers of the music inputs are more numerous.

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listen to non-music channels as well as benchmark is hardly enhanced by the predetermined costs as well. As Dr. Noll music channels, the larger base of fact that it reflects two widely disparate points out, this disparate treatment of potential listeners helps attract estimates for each of the two SDARS.33 SDARS inputs may well bias the advertisers’’ (see SX RFF at ¶ 464) In short, we find Dr. Pelcovits’ Shapley values in favor of the record mistakenly attempts to equate an actual, proposed rates based on nonmusic labels. Noll WRT at 89. measurable direct or primary effect content to poorly meet the needs of a Other assumptions underlying Dr. associated with the Stern content to a reliable benchmark. Even before Pelcovits’ analysis are also not solidly possible, though a largely unsupported subjecting it to any 801(b) analysis, supported. For example, Dr. Pelcovits and uncalculated indirect or secondary SoundExchange admits this benchmark relies on Mr. Butson’s revenue and cost effect which SoundExchange attributes is significantly lower if the same estimates for XM and Sirius in 2012, to music. There is no dispute that the analysis is applied to data projections despite the well-known fact that Stern content, as is the case with other for the years 2006 through 2012 instead financial projections of the kind nonmusic content used by the SDARS, of just actual data from 2006. SX RFF at undertaken by Mr. Butson increase in is specifically utilized in conjunction ¶ 461. Even if the benchmark did not uncertainty over the course of the with advertising, while the music suffer from all the shortcomings period projected, with the last year in a content used by the SDARS is identified hereinabove, such a large six-year period of projections (in this specifically touted to emphasize the degree of sensitivity does not inspire case, 2012) being the least reliable. commercial-free nature of the offering. confidence in using this proposed SDARS PFF at ¶ 960. Mr. Butson’s Finally, Dr. Pelcovits’ estimates of benchmark as a starting point for our projections in turn rest on a number of subscribers drawn to Sirius by the Stern analysis. growth assumptions that either merely deal do not inspire great confidence. track past experience at best or are iii. Division of Surplus Analysis Other conflicting evidence concerning arbitrary at worst, leading us to question estimates of the additional subscribers In addition to his two proferred the degree to which such data is reliable likely to flow from the Stern deal have nonmusic content benchmarks, Dr. for the purpose employed by Dr. been identified in the record. SDARS Pelcovits undertakes an additional Pelcovits. Different assumptions would RFF at ¶¶ 392–393. analysis that purports to divide the provide different bottom-line numbers For all these reasons, we find the SDARS ‘‘surplus’’ or residual revenues in Dr. Pelcovits’ analysis. proposed Stern content benchmark to be (revenues net of noncontent costs After estimating the available a poor starting point for the 801(b) including capital costs) between the ‘‘surplus’’ in 2012, Dr. Pelcovits analysis that must be undertaken in this SDARS, music content providers and proceeds to use a Shapley model of a proceeding. nonmusic content providers. We find cooperative game to divide the that this analysis relies on unsupported ‘‘surplus’’ among the various inputs. But ii. The Nonmusic Content Benchmark assumptions about market behavior. For a cooperative game solution to a Many of the shortcomings that apply example, Dr. Pelcovits argues that all bargaining problem assumes that an to the Stern benchmark, similarly apply content costs must be part of his surplus agreement between the parties is both to Dr. Pelcovits’ consideration of other pot because that is how negotiations possible and enforceable. Here there is nonmusic content deals as benchmarks. take place ‘‘in the real world.’’ Pelcovits no enforcement mechanism. 7/9/07 Tr. Here again, Dr. Pelcovits does not satisfy WDT at 16. No evidence from this 303 (Pelcovits); Noll WRT at 83. his theoretical claims that music market was provided to support this Therefore, the outcomes of the model programming and these other types of assumption. Despite this assumption, cannot be supported. At the same time, content are substitutes in the primary Dr. Pelcovits omits musical works no reason is provided by Dr. Pelcovits product offering of the SDARS. Most royalty costs from his surplus pot. as to why each participant in the game importantly, the key characteristic of a Pelcovits WDT at 16 n.15. Thus his should not make its decisions good benchmark—comparability—is not inclusion of nonmusic content costs independently to maximize their own present. The sellers are different, the into his surplus pot appears to be little profits. In other words, a non- buyers are only the same in the more than a transparent attempt to cooperative game approach may have aggregate and the nature of the inputs enlarge the surplus that is potentially been more appropriate under the offered vary substantially. available for distribution to owners of circumstances. Then too, Dr. Pelcovits abandons the sound recordings. Although Dr. In short, questionable assumptions economic rationale that he claimed Pelcovits later claims to amend his coupled with concerns over the served to undergird his Stern analysis: results by ‘‘excluding these royalties reliability of the data used in the ‘‘Absent data for other content deals, I and then pay this same amount off the Pelcovits analysis cause us to regard the was unable to reliably perform similar top out of the surplus assigned to findings of the Pelcovits analysis as analyses of other individual deals music,’’ this adjustment still treats the carrying little weight. For those reasons, relating the amount paid to the content music publishers’ costs as the Judges find that the Pelcovits provider to the expected number of predetermined, rather than adding the surplus analysis neither serves to incremental subscribers.’’ Pelcovits publishers as the players to the game provide a solid market rate estimate to Amended WDT at 9. Undeterred, Dr. who also share in the surplus. Dr. serve as a starting point for the Pelcovits claims that it is sufficient to Pelcovits offers no sound basis for application of the 801(b) considerations simply calculate the total expenditure of distinguishing between his treatment of nor to provide additional solid the SDARS on nonmusic content as a nonmusic content costs and musical corroboration of SoundExchange’s proportion of total SDARS revenues in works content costs or, for that matter, various benchmark analyses. order to determine the appropriate for treating other variable inputs as revenue-based rate to use as a c. The Ordover Benchmarks benchmark for the music input. We find 33 Looking at each of the SDARS individually, Dr. Although Dr. Ordover recognizes that Dr. Pelcovits’ analysis and the resulting Pelcovits calculates that XM’s nonmusic content no benchmark is perfect, he offers two providers were paid 16.9% of revenues in 2006 recommended ‘‘benchmark’’ of 18.6% while Sirius’ nonmusic content providers were paid categories of benchmarks for the Judges’ particularly unpersuasive. Certainly, 33.2% of revenues in 2006. Pelcovits Amended consideration: (1) satellite TV deals with confidence in the reliability of the WDT at 10. nonmusic content providers that yield

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two benchmarks, 40% of gross revenues consumers in a similar fashion and At the same time, we find that any based on overall content or 49.3% of consumers pay a monthly subscription rate derived from the higher digital gross revenues based on premium fee for access irrespective of the hours distribution channel benchmarks network programming, subject to certain of programming accessed. However, in offered in evidence lie outside the zone adjustments which would reduce the the interactive case, the choice of music of reasonableness because they either: effective rate for the SDARS to 18.5% or actually delivered is usually influenced (1) Fail to account for key differences 23.5% of gross revenues (Ordover WDT by the ultimate consumer, while in the that consumers value or (2) propose at 40–41); and (2) a variety of non-interactive case of the SDARS the other adjustments not well supported by agreements covering other distribution consumer usually plays a more passive the evidence. For example, Dr. Ordover channels for digital music (e.g., role limited to selecting a particular himself proposes an additional upward interactive subscription services, channel of music programming. Ordover ‘‘immediacy’’ adjustment to the cellular ringtones, etc.) that suggest a WDT at 47–48. But this difference is interactivity adjusted digital benchmark of 35% to 50% of revenues, reasonably accounted for in Dr. subscription rate calculated above that subject to only an adjustment for the Ordover’s interactivity adjusted per would raise it from $1.40 per subscriber lower proportion of music content on subscriber rates. In order to make the per month to $2.51 per subscriber per the SDARS that would result in a benchmark interactive market more month. Ordover WDT at 49–50. benchmark royalty rate of 19% to 28% comparable to a non-interactive service However, we find that the ‘‘immediacy’’ or, if adjusted to account for other like the SDARS, Dr. Ordover adjusts the adjustment is not well founded in that differences between the benchmark benchmark by the differential value it: (1) Unrealistically treats all market and the target SDARS market, associated with the interactivity computers as stationary devices always would yield a royalty rate of $2.51 to characteristic. Ordover WDT at 47–52. necessitating a two-step accessibility $3.09 per subscriber per month This adjustment by itself suggests a rate process involving downloading music to (Ordover WDT at 50–52). of $1.40 per subscriber per month (i.e. a computer and uploading therefrom to We find the first of these two $7.50 per subscriber per month a separate portable device in order to categories of proferred benchmarks to be multiplied by an interactivity move the music listening experience to of little value. Even assuming that the adjustment factor of .0015/.008). Using another physical location (i.e., widely SDARS have similar cost structures to Dr. Ordover’s assumption that the available technology allows portable satellite TV (also known as Direct average monthly per subscriber price for computers not only to be moved to other Broadcast Satellite or DBS) operators, satellite radio is $11.25, the interactivity physical locations but also to access the they offer very different consumer adjusted benchmark of $1.40 per internet wirelessly); and (2) appears to products, the inputs focused on in the subscriber per month is the equivalent overstate the significance of the delay analysis (nonmusic audiovisual content) of 13% on a percentage of subscriber involved in listening to music because differ substantially from the sound revenue basis.34 While we agree with of the process of downloading to a recording inputs at issue in this Dr. Ordover, that but for the lack of computer and uploading therefrom to a proceeding, and the buyers and sellers extensive data, these calculations might separate portable device (i.e., the are different in the benchmark market as well be improved through a hedonic consumer may have previously compared to the target market. The fact regression analysis, nevertheless we downloaded the music that he may that these different enterprises may find that, based on the available data in want to listen to at any point in time so exhibit some similarities with respect to the record, this interactivity adjusted that the download process does not their capital structure and that both are benchmark is a reasonable estimate of a have to be repeated every time the subscription services offering marketplace derived benchmark.35 consumer wants to listen to music). entertainment in a broad sense is not Moreover, Dr. Ordover admits that, in sufficient to overcome all the 34 Because of the commercial-free character of light of the trend of more recent aforementioned fundamental differences music programming on the SDARS, subscription agreements, it is possible that the basis between the proposed benchmark revenues attributable to music programming are the appropriate focus of this analysis. for his ‘‘immediacy’’ adjustment has all market and the target market. 35 SoundExchange’s argument that this but disappeared as indicated by a ratio However, we find Dr. Ordover’s interactivity adjustment needs to be adjusted approaching unity. 6/21/07 Tr. 186:20– second category of proferred further by differences in the intensity of use is not 187:8 (Ordover). benchmarks—certain channels for the adequately supported by the record. Dr. Ordover In sum, while some aspects of the distribution of digital music—more admitted that the information he would have to rely on to make such an adjustment was ‘‘imparted to Ordover analysis may not be persuasive, useful. In particular, the interactive me by counsel’’ and that he ‘‘did not have a direct the Judges find that these critiques are subscription market is a benchmark conversation with the people who delivered the not sufficient to undermine the basic with characteristics reasonably information’’ and that he ‘‘did not file a calculation thrust and conclusions of the Ordover comparable to the non-interactive that would reflect that adjustment’’ (i.e. he made no adjustment to his proposed rates based on this analysis that the interactive subscription SDARS, particularly after Dr. Ordover’s information regarding intensity of use). 8/27/07 Tr. market is a benchmark with reasonable adjustment for the difference 102:11–12; 108:7–109:18 (Ordover). Moreover, Mr. characteristics reasonably similar to the in interactivity. Both markets have Eisenberg’s testimony cited by SoundExchange to non-interactive SDARS, particularly similar sellers and a similar set of rights support higher intensity of usage ambiguously after Dr. Ordover’s reasonable refers to ‘‘historical’’ data from an unknown period to be licensed. While the buyers may be which may or may not coincide with the period adjustment for the difference in different entities, there is no persuasive analyzed by Dr. Ordover in making his initial interactivity. As noted hereinabove, we evidence that the buyers in the target interactivity adjustment. Eisenberg WDT at 19. At equate the resulting benchmark offered market have less relative market power the same time, the SDARS’ argument that Dr. by Dr. Ordover to be the equivalent of Ordover’s interactivity adjustment is fatally than the buyers in the benchmark compromised by the absence of this additional 13% stated as a percentage of revenue. market. Both markets are input markets intensity adjustment is equally without merit. The and demand for these inputs is driven absence of the unsupported additional ‘‘intensity’’ reflect a substantially higher value for interactivity, by or derived from the ultimate adjustment does not negate the reasonableness of as shown by a few recent audio agreements consumer markets in which these inputs Dr. Ordover’s interactivity adjustment based on the covering interactive as well as noninteractive record of evidence before us. The SDARS’ separate services, is not supported by a close reading of the are put to use. In these ultimate argument that Dr. Ordover’s video-service relevant provisions of those agreements. SX PFF at consumer markets, music is delivered to interactivity adjustment needs to be adjusted to ¶ 481–486.

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We find that some of the additional supported than one close to the lower it is necessary to adjust the result relevant evidence from the marketplace boundary. We now turn to the 801(b) indicated by marketplace evidence in for other types of digital music services policy considerations to determine the order to achieve this policy objective. corroborates Dr. Ordover’s analysis by extent to which those policy We agree with Dr. Ordover that showing that, for many types of music considerations weigh in the same ‘‘voluntary transactions between buyers services, a substantial portion of direction or a different direction as the and sellers as mediated by the market revenue is paid to sound recording benchmark market evidence are the most effective way to implement copyright owners above the current hereinbefore reviewed. efficient allocations of societal SDARS rate, just as it would be The relevant 801(b) factors meriting resources.’’ Ordover WDT at 11. An pursuant to the 13% rate that would further consideration consist of the effective market assures absence of both result from Dr. Ordover’s interactivity following four specific policy objectives: below-market prices and supra- adjusted interactive subscription market (A) To maximize the availability of competitive prices, so that suppliers analysis. In other words, we find these creative works to the public; (B) to will not reduce output and innovation additional voluntary agreements afford the copyright owner a fair return in response to the former and covering such digital services as clip for his creative work and the copyright consumers will not experience a licenses, permanent audio downloads, user a fair income under existing reduction in consumer welfare in etc. of some general corroborative value. economic conditions; (C) to reflect the response to the latter. In other words, an These data show that, in many cases, relative roles of the copyright owner and effective market determines the the price paid by buyers for the rights the copyright user in the product made maximum amount of product to utilize a sound recording in various available to the public with respect to availability consistent with the efficient ways is as much as or higher than the relative creative contribution, use of resources. 13% rate suggested hereinabove. This technological contribution, capital The parties to this proceeding choose shows that the prevailing rates in these investment, cost, risk, and contribution to emphasize only one or two aspects of other markets do not appear to to the opening of new markets for these supply and demand dynamics undermine his analysis—some creative expression and media for their because doing so appears to facially indication of general reasonableness. communication; and (D) to minimize support a ‘‘win’’ for them on the However, because no effort is made to any disruptive impact on the structure availability factor. The SDARS, for reconcile the many differences in of the industries involved and on example, choose to emphasize that they product characteristics that may exist generally prevailing industry practices. foster the availability of music: (1) by between these markets and the target 17 U.S.C. 114(f)(1)(B) and 17 U.S.C. assuring that different types of music SDARS market and adjust for such 801(b)(1). Not surprisingly, both the are more widely disseminated than they differences, these alternatives must be SDARS and SoundExchange have a are in the terrestrial radio alternative regarded as having only directional different view of how specific facts and (2) by the promotional effect of their value and to lie outside the zone of weigh in their favor on each of these airplay. Therefore, their view is that the reasonableness (i.e. a zone that excludes policy objectives. We reject the notion, availability of works to the public is clearly noncomparable market however, that Section 801(b)(1) is a maximized if the rates are as low as situations). In other words, based on the beauty pageant where each factor is a possible. See SDARS PFF at ¶¶ 126– record of this proceeding, the 13% rate stage of competition to be evaluated 147; Woodbury Amended WDT at 43– identified hereinabove marks the upper individually to determine the stage 44; Noll WRT at 41. On the other hand, boundary for a zone of reasonableness winner and the results aggregated to SoundExchange focuses on the input for potential marketplace benchmarks determine an overall winner. Neither suppliers’ incentive to increase creative from which to identify a rate that the Copyright Royalty Tribunal nor the output, arguing that the recording satisfies any 801(b) policy Librarian of Congress adopted such an industry requires higher revenues from considerations not adequately addressed approach. See 46 FR 884 (January 5, alternative distribution mechanisms to in the market. 1981) (jukebox proceeding); 46 FR compensate for a drop in the physical 10466 (February 3, 1981) (mechanical sales of CDs generally and higher 3. The Zone of Reasonableness and the license proceeding); 63 FR 25394 (May revenues from the SDARS specifically to 801(b) Policy Considerations 8, 1998) (PSS proceeding). Rather, the compensate for the substitution of The marketplace evidence offered by issue at hand is whether these policy SDARS listening for physical CD sales. the SDARS and SoundExchange objectives weigh in favor of divergence Therefore, its view is that the supports the determination of the from the results indicated by the availability of works to the public can parameters of a zone of reasonableness. benchmark marketplace evidence. only be maximized through higher rates. Based on the record of evidence in this Therefore, we next evaluate the other See SX PFF at ¶¶ 781–93, ¶¶ 811–12, proceeding we have determined that the evidence in the record offered with ¶¶ 669–710. 13% rate identified hereinabove marks respect to the four policy considerations We find that the record does not the upper boundary for a zone of to determine if that evidence shows that support any adjustment from the result reasonableness for potential the weight of marketplace evidence we indicated by the previously reviewed marketplace benchmarks. We have also have previously reviewed requires any marketplace evidence in order to determined that potential marketplace adjustment. achieve the policy objective of benchmarks cannot be less than or equal maximizing the availability of creative to the SDARS’ musical works rates (i.e., a. Maximizing the Availability of works. For example, the evidence 2.35% of gross revenues). However, the Creative Works to the Public presented by the SDARS and latter lower boundary for the zone of While the SDARS and SoundExchange is insufficient to reasonableness is not the equivalent of SoundExchange offer various arguments suggest a net substitution/promotion the upper boundary in offering a to suggest that they are each difference between the interactive specific benchmark defined by respectively the largest contributor subscription service benchmark and the comparability. Therefore, based strictly toward the achievement of this policy SDARS marketplace. Because only the on marketplace evidence, a rate close to objective, those arguments miss the relative difference between the the upper boundary is more strongly mark. The ultimate question is whether benchmark market and the hypothetical

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target market would necessitate an the substitution effect because, even previously reviewed. Nor has adjustment, the absence of solid construing the evidence in a light most SoundExchange shown that the empirical evidence of such a difference favorable to SoundExchange, it copyright owners will fail to receive a obviates the need for such further indicates the percentage of satellite fair return for their creative work adjustment. radio subscribers who purchased no because of the adoption of a rate Furthermore, even if the absolute music in the last year. That is, the informed by the marketplace evidence levels of promotion/substitution in the NARM study may suggest a substitution we have previously reviewed. SDARS market alone were somehow effect but does not attempt to quantify The SDARS argue that a fair income relevant, as the parties appear to it.36 to the copyright user is one which is suggest, we find that they presented no Thus, on the evidence before us we sufficient to generate a competitive risk- acceptable empirical basis for find the net impact of the claimed adjusted return on past and future quantifying promotion/substitution for substitution and promotion effect of the investments. See SDARS PFF at ¶ 179. purposes of adjusting rates. For SDARS on CD sales is indeterminate. But the SDARS conveniently ignore the example, the SDARS assert that their More importantly, we find that little if highly leveraged structure of their service is promotional and imply that any of this evidence sheds light on the enterprises and imply that such a return they should receive credit for this effect. question of whether the net should occur within the license term But they present no persuasive evidence substitution/promotion effect of the and, further, that such a return should that would be useful for quantifying the SDARS is different from the net be at least one that consists of net magnitude of this asserted effect or for substitution/promotion effect of the income in the form of profits. See deriving a method for translating such interactive subscription service SDARS PFF at ¶¶ 178, 186. Affording magnitudes into a rate adjustment. The benchmark. copyright users a fair income is not the mere assertion that airplay is Finding no conclusive quantifiable same thing as guaranteeing them a profit promotional without more is evidence of such a substitution/ in excess of the fair expectations 37 of a insufficient. Indeed, the quality of promotion difference between the highly leveraged enterprise. Nor is a fair evidence presented by the services on benchmark market and the target market income one which allows the SDARS to this issue consisted largely of such and, further, finding no quantifiable utilize its other resources inefficiently. assertions (e.g., Woodbury Amended difference suggested by the parties with In both these senses, a fair income is WDT at 44–46), a handful of consumer respect to the remaining evidence more consistent with reasonable market testimonial e-mails or anecdotes submitted on the first policy factor outcomes. Therefore, in the absence of recounting subjective opinions. See SX discussed hereinabove, we conclude any substantial evidence in the record to PFF at ¶¶ 714, 717. that, in the instant case, the policy goal the contrary, we find that it is not SoundExchange, in an effort to of maximizing the availability of necessary to adjust the benchmark rate support and quantify its claimed creative works to the public is reflected hereinbefore indicated by marketplace substitution effect, offers the results of in the market solution embodied in the evidence in order to achieve the policy several consumer surveys. Dr. Pelcovits benchmark market rates. An effective objective of affording copyright users a concludes that these surveys show that market would have taken into account fair income. For example, there is no SDARS subscribers will reduce their substitution concerns and promotion substantial evidence of the exercise of purchases of CDs by 2.6 CDs per effects in determining the maximum unfair market power in the setting of subscriber per year. See Pelcovits WRT amount of product availability prices in the benchmark marketplace. at 31–33. But the Wind survey on which consistent with the efficient use of This is not to say that SDARS’ Dr. Pelcovits partially relies in reaching resources. concerns with respect to meeting their his conclusion was excluded by the cash flow and income goals sooner Judges in their gatekeeping roles b. Fair Return to Copyright Owner and rather than later should not be (applying Federal Rule of Evidence Fair Income to Copyright User considered in this proceeding, but 702), because of data shortcomings and Here, too, the SDARS and rather we find that they are more questions about the reliability of the SoundExchange offer various arguments properly raised when the SDARS more methods employed by Dr. Wind in that to suggest that they should each be the directly address the timing issue and its survey. 8/29/07 Tr. 114:2–115:2. Dr. largest beneficiary of this policy impact in the context of the fourth Pelcovits’ partial reliance on the objective and, again, those arguments policy objective articulated in the marketing survey research offered by miss the mark. The ultimate question is statute (i.e., minimizing any disruptive Mr. Mantis is similarly misplaced whether it is necessary to adjust the impact on the structure of the industries because the weight of the survey’s result indicated by marketplace results are questionable in light of: (1) involved). evidence in order to achieve this policy With respect to the second policy The lack of a control group where the objective and, if so, is there sufficient objective, SoundExchange primarily purpose of the survey is to establish evidence available to do so. points to the voluntary agreements causality; (2) the potential bias We find that the evidence in the negotiated with other digital services in introduced by the leading character of record supports no such adjustment. important questions in the survey; (3) an the market for sound recordings as The SDARS have not shown that their representing a fair return for copyright inability to specifically attribute all of income under existing economic the claimed substitution effect to the owners. However, SoundExchange conditions is unfairly constrained by suggests that if the application of the SDARS music programming as opposed adoption of a rate informed by the to the SDARS nonmusic programming; marketplace evidence we have 37 The SDARS readily admit that any projections, and (4) the lack of time period particularly in this relatively new industry, are specificity in asking about consumer 36 SoundExchange also argues that the SDARS’ subject to substantial uncertainty especially behaviors. SDARS PFF at ¶¶ 247–257, own listening research suggests a substitution towards the latter part of the license period. Frear 258–261, 263. Dr. Pelcovits’ reliance on effect. Again, even construing the evidence in a WRT at ¶¶ 13–14. Therefore, the fair earnings light most favorable to SoundExchange, the SDARS’ expectations of a highly leveraged enterprise must the National Association of Recording internal research merely provides general evidence reasonably carry a somewhat wider ambit than Merchants (‘‘NARM’’) survey does not of a substitution effect rather than a specific various projections offered into evidence by the aid his calculation of the magnitude of quantifiable magnitude. contending parties.

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four policy objectives produces a below- evidence as a whole, the various sub- However, our inquiry does not end here. market rate, then a fair return would not factors identified in this policy objective We find that, notwithstanding this be achieved because that below-market may weigh in favor of a discount from imbalance in relative creative rate would result in the record industry the market rate because of the SDARS’ contributions, there is nothing that not earning sufficient royalties to demonstrated need to continue to make distinguishes this result from the compensate for the substitution effect substantial new investments to support benchmark marketplace that requires an the SDARS have on revenues from the the satellite technology necessary to adjustment in order to achieve the third sales of other forms of music. See SX continue to provide this specific service policy objective. PFF at ¶ 834. Because we have during the relevant license period. With respect to technological previously addressed SoundExchange’s However, inasmuch as we find this contributions, capital investment, cost, market-based evidence, supra at Section issue is intimately intertwined with risk and the opening of new markets, IV.C.2.b.–c., we need not address the evidence impacting our consideration of the SDARS’ claims are overstated specifics of that evidence again here. the fourth 801(b) policy objective (i.e., regarding their relative contributions to Similarly, we have previously addressed minimizing any disruptive impact on the relevant product made available to SoundExchange’s evidence with respect the structure of the industries involved), the public. For example, the SDARS’ to substitution of the SDARS for CD we will treat the effect of this particular claimed technological contributions sales, supra at Section IV.C.3.a., where matter as part of our consideration of take credit for not only their own efforts we found the net impact of the claimed the fourth policy objective. See infra at but also for the substantial technological substitution and promotion effect of the Section IV.C.3.d. contributions of others. Elbert WRT at SDARS on CD sales was indeterminate. We come to this conclusion in a 20–40. At the same time, capital We further note that additional straightforward manner from the investment expense, other costs, and SoundExchange claims regarding a evidence offered regarding the third risk incurred by copyright owners are broader view of substitution (i.e. an policy consideration. The SDARS’ dismissed by the SDARS because they SDARS substitutional effect on the sales attempt to obtain credit for creative are not ‘‘incremental’’ with respect to of music in forms other than CDs) are contributions largely centers on: (1) satellite radio (Woodbury Amended neither adequately supported nor Enhancements to the channels WDT at 50); but this ignores the fact that quantified in the record. In short, based described as music channels and (2) record companies undertake on the evidence before us, we find that their acquisition of nonmusic ‘‘significant and irreversible it is not necessary to adjust the programming as part of their product investments to develop talent and benchmark previously indicated by offering. The SDARS’ reliance on the produce new works and in order to marketplace evidence in order to Librarian’s decision in the 1998 PSS maximize their incentives to do so, it is achieve the policy objective of affording Rate Determination at 63 FR 25405 important to receive from each copyright owners a fair return. which stated that the ‘‘product made distribution channel revenues that available’’ is the ‘‘entire digital music reflect the value of their contributions.’’ c. Relative Roles of the Copyright Owner service’’ of which sound recordings are Ordover WRT at 14. Thus, contrary to and the Copyright User in the Product an element is misplaced where the the overstated claims of the SDARS, Made Available to the Public With SDARS seek to gain credit towards a with respect to most such investments, Respect to Relative Creative discounted royalty rate for music by costs and risks, there is little to Contribution, Technological pointing to their creative addition of distinguish their relative contribution in Contribution, Capital Investment, Cost, nonmusic programming to the digital this market from those of other digital Risk, and Contribution to the Opening music offering. The Librarian was music distributors in their markets.39 40 of New Markets for Creative Expression clearly considering a music-only service Moreover, over time, the relative and Media for Their Communication in the 1998 PSS Rate Determination and position of the SDARS may have The SDARS, in effect, argue that the nowhere in that decision suggests that improved compared to the relative third 801(b) policy objective requires a such nonmusic content considerations position of the record companies. discounted market rate in consideration are relevant. SX PCL at ¶¶ 84–85. While Herscovici WRT at 24–25, 29. of their: (1) Creative contributions to the SDARS’ creative contributions to However, the primary type of developing and airing nonmusic music channels may be relevant, it is expenditure incurred by the SDARS that programming, (2) creative contributions certainly subsidiary to and dependent does distinguish them from other digital to music channels, (3) contributions in on the creative contributions of the distributors of music is their the form of the design and development record companies and artists to the expenditure for satellite technology. of new technology, (4) substantial making of the sound recordings that are This type of investment spending has a capital investments and operating costs, the primary focus of those music useful life that typically extends beyond (5) contribution towards meeting channels.38 Herscovici WRT at 23–24. the limited period of a single licensing various risks associated with making their product available to the public, 38 Dr. Woodbury suggests that the creative digital markets and thereby eliminates their and (6) contribution to opening new contributions of the record companies and artists incentive to create and supply the very music upon markets for creative expression and are not relevant because they were not made which the future of this service depends as specifically for this product offering—that is, they currently structured. media for their communication. Not involved no ‘‘incremental effort to create new 39 Moreover, there is no substantial evidence to surprisingly, SoundExchange argues music.’’ Woodbury Amended WDT at 48. There is indicate that the relative capital investment, cost that record companies and artists make no factual basis to support the Woodbury assertion. and risk contributions made by the SDARS as equally important contributions to the Moreover, the owners of sound recordings clearly shown by the record of evidence in this proceeding receive recognition for their creative contribution in were made (or are continuing to be made) to secure achievement of this third policy the form of compensation from all of the other revenue streams limited to the license period at objective when these various sub-factors digital music services discussed in this proceeding issue in this proceeding. The same, of course, is are considered as a whole and, further, even though those sound recordings were not true for similar contributions made by the record that these various sub-factors are shown to be created exclusively for those services. companies. In other words, the Woodbury analysis is flawed 40 There is also little to distinguish the SDARS’ adequately considered and valued in because it would preclude intellectual property relative contribution to opening new markets from market transactions. We find that, owners from ever being compensated for their those of other digital music distributors in their considering the record of relevant creative efforts in this market or other similar markets at present. SX RFF at ¶¶ 104–105.

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period as currently defined by statute; zone of reasonableness for potential SDARS. Moreover, while therefore, all of the costs of spending on marketplace benchmarks that is lower SoundExchange maintains that the this technology cannot properly be than the upper boundary most strongly proper market-based rate is 23% and it ascribed to a single licensing period. indicated by marketplace data. We do so is merely proposing a phase-in of that Then, too, such technology may have a in order to satisfy 801(b) policy rate, it also recognizes that various year- recoverable asset value even if the considerations related to the end 2011 consensus subscriber SDARS that made the investment ceases minimization of disruption that are not projections in the neighborhood of 15– to operate. Herscovici WRT at 28. adequately addressed by the benchmark 16 million for each of the SDARS (See Nevertheless, nothing in the record of market data alone. The Judges further SX PFF at ¶¶ 1094, 1096) would only evidence before us indicates that the find that over the period of time marked take the SDARS to a rate of 17% by the SDARS can continue to make their by the license period, the potential for beginning of the last year of the license current product available to the public disruption will diminish, allowing for term (2012). See SoundExchange Third in the license period at issue in this some reasonable escalation of the initial Amended Rate Proposal (August 6, proceeding without making new rate we set herein. 2007) at 1–8 and closing argument of expenditures related to their satellite Although much evidence of the SoundExchange’s counsel, 10/17/07 Tr. technology. Clearly, new satellite respective financial conditions of the 142 (Handzo). In short, even investment, unlike other costs, cannot SDARS and the record companies was SoundExchange has made a market- be postponed without a serious threat of presented in this proceeding, we based proposal that, barring exceptional disruption to the service the SDARS conclude that many of the claimed events,41 is adjusted to minimize provide. Although this may weigh in examples of ‘‘disruption’’ are overstated. disruption for the SDARS by not only favor of a discount from the market rate, As Dr. Herscovici points out ‘‘simply delaying the application of that market- we find this issue is intimately causing an increase in costs to the based rate but effectively discounting it intertwined with evidence impacting Services or a decline in royalties to the throughout the relevant period of the our consideration of the fourth 801(b) record companies’’ is not substantial license. policy objective (i.e., minimizing any enough to qualify as a disruptive Second, as noted, supra at Section disruptive impact on the structure of the impact. Herscovici WRT at 31. However, IV.C.3.c., we are persuaded that still industries involved). Consequently, we we are persuaded by the evidence before another factor that requires attention is will treat the potential disruptive effect us that there are two circumstances any undue constraint on the SDARS’ of postponing investment in new faced by the SDARS that merit the ability to successfully undertake satellite technology as part of our adoption of a rate below the upper satellite investments planned for the consideration of the fourth policy boundary of the zone of reasonable license period. A failure to complete objective below. See infra at Section market rates we have identified these investments as scheduled clearly IV.C.3.d. hereinbefore (i.e., 13%). raises the potential for disruption of the First, given that the current rates paid current consumer service. d. Minimizing Any Disruptive Impact by the SDARS for these inputs are in the For all these reasons, the Judges find on the Structure of the Industries range of 2.0% to 2.5% of revenues, an it appropriate to adopt a rate from the Involved and on Generally Prevailing immediate increase to the upper zone of reasonableness for potential Industry Practices boundary of the zone of reasonableness marketplace benchmarks that is lower Despite predictions of impending (i.e., 13%) would be disruptive than the upper boundary most strongly doom for satellite radio if excessively inasmuch as the SDARS have not yet indicated by marketplace data. Based on high rates are set in this proceeding or attained a sufficient subscriber base nor the record before us, including, among similar dire predictions for the record generated sufficient revenues to reach other things, Mr. Butson’s sensitivity companies if exceedingly low rates are consistent Earnings Before Interest, analysis and testimony from the set in this proceeding, the rate set here Taxes, Depreciation and Amortization respective CFOs of the SDARS, Mr. is just one component that will impact (‘‘EBITDA’’) profitability or positive free Frear and Mr. Vendetti, a reasonable the future of both industries. It can be cash flow. For example, EBITDA starting point for this license is a royalty disruptive, however, if it directly profitability for Sirius is estimated by rate of 6% of gross revenues as we have produces an adverse impact that is Mr. Karmazin to be consistent with previously defined such revenue. See substantial, immediate and irreversible revenues generated from between 10 Butson WRT at Appendix A, B and E in the short-run because there is million and 11 million subscribers. (suggesting that inasmuch as a 4% insufficient time for either the SDARS 6/7/07 Tr. 35 (Karmazin). Increasing the average rate over the period will not or the copyright owners to adequately current royalty rates to 13% will cause the SDARS’ EBITDA profitability adapt to the changed circumstances increase costs and raise the necessary and positive free cash flow to be produced by the rate change and, as a critical mass of subscribers sufficient to substantially impacted relative to consequence, such adverse impacts generate revenues that can yield current consensus analyst expectations threaten the viability of the music EBITDA profitability or even positive and, by comparison, that a near 8% delivery service currently offered to free cash flow. In order not to average rate over the period consumers under this license. significantly delay the attainment and significantly delays the attainment and Economic experts for both sides agree amounts of EBITDA profitability and amounts of EBITDA profitability and that a royalty rate that would cause the positive free cash flow, some rate within SDARS to cease operating or the zone of reasonableness that is less 41 SoundExchange argues that the proposed dramatically change the nature of its than 13% is warranted. Even merger between Sirius and XM should be factored into the rate determination. But this would require product would clearly be disruptive. SoundExchange’s own proposal us to estimate the likelihood that the merger would Ordover WDT at 33–34; Herscovici WRT recognizes that immediate movement to successfully occur, forecast the precise date when at 31,40; 8/16/07 Tr. 70:10–72:13, a substantially higher market rate is the merged entity would become a single operation, 73:21–76:7 (Noll). In order to minimize potentially disruptive and seeks to and project the likelihood, magnitude and timing of any synergistic benefits of the merger in terms of the adverse impact of the rate applicable minimize the possibility by requesting cost savings. We find on the record before us that to the license here, we find it an initial rate of 8% that increases as we have been presented with insufficient evidence appropriate to adopt a rate from the subscribership increases for each of the on these issues.

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positive free cash flow for the SDARS, would have been negotiated in the they choose not to avail themselves of then an average rate somewhat less than marketplace between a willing buyer the Section 112 license. Rather, 8% and structured to begin as high as and a willing seller,’’ as well as SoundExchange’s 8.8% valuation is 6% will have an impact not likely to establish ‘‘ a minimum fee for each type nothing more than an effort to preserve threaten disruption); 6/6/07 Tr. 37:16– of service offered by transmitting a belief that the Section 112 license has 38:16 (Vendetti) (indicating that a 4% organizations.’’ 17 U.S.C. 112(e)(4). some value by perpetuating the number immediate rate necessitates no change adopted in the first webcasting 2. Proposals of the Parties in plans as contrasted to an 8% proceeding. Determination of immediate rate that ‘‘particularly SoundExchange proposes combining Reasonable Rates and Terms for the impacts the amount of cash the the Section 112 and 114 rates over the Digital Performance of Sound company has to run its operation’’ and license period by allocating 8.8% of the Recordings and Ephemeral Recordings therefore an 8% immediate rate combined fee owed by the SDARS (Final Rule), 67 FR 45240 (July 8, 2002) adversely impacts the company ‘‘very towards the Section 112 charge. (codified at 37 CFR part 261) much’’ in the short-term whereas a 6% SoundExchange Third Amended Rate (‘‘Webcaster I’’). rate has lesser impact than an 8% rate); Proposal (August 6, 2007) at 4. The Second, the paucity of the record 6/12/07 Tr. 172:1–10 (Frear) and 8/15/ SDARS also appear to believe that the prevents us from determining that 8.8% 07 Tr. 103:15–104:12 (Frear) (sound fee for the Section 112 license should be of the Section 114 royalties is either the recording royalties already budgeted in combined with that for Section 114, but value or the rate for the Section 112 2007 at a figure north of 4% or at 4.2%); their fee proposal recognizes no separate license. SoundExchange’s mere see also closing argument of XM’s value for the Section 112 license. They assertion that its 8.8% proposal reflects counsel, Mr. Bruce Rich, at 10/17/07 Tr. argue that ephemeral copies have no an agreement between record companies 234:19–237:14 (indicating that an economic value separate from the value and artists on the rate applicable to immediate rate higher than 6% is likely of the performances they effectuate, Section 112 does not overcome the to give rise to planning concerns and citing the Copyright Office’s 2001 absence of evidence in the record with that SDARS do not have ‘‘absolute DMCA Section 104 Report in support. respect to this license. SoundExchange vision that 41⁄2 percent wouldn’t work SDARS PFF at ¶¶ 898–899, 902; SDARS did not present any testimony or or 5% wouldn’t work’’). We further find RFF at ¶ 504. evidence from copyright owners or performers on this point. that over the passage of time the 3. The Record Evidence potential for disruption from the We are left with a record that imposition of the 6% rate gradually While the record in Webcaster II demonstrates that the license is merely diminishes as indicated by various regarding the Section 112 license was an add-on to the securing of the forecasts showing consistent subscriber exceedingly slim, it is virtually performance rights granted by the and revenue growth (See SX PFF at nonexistent in this proceeding. No party Section 114 license. SoundExchange’s ¶¶ 1094, 1096), thereby allowing a presented any evidence as to the proposal to include the Section 112 reasonable escalation of the initial rate independent value arising from the license within the rates set for the by the addition of 0.5% annually Section 112 license. SDARS PFF at Section 114 license reflects this reality beginning with the start of the 2009 ¶ 903. and we accept it as we did in Webcaster II. However, just as we did in Webcaster calendar year to the previous years’ 4. Conclusion royalty rate. II, we decline, for the reasons stated In short, the Judges find that the Of the thousands of pages of above, to ascribe any particular percentage of gross revenues rate testimony and exhibits submitted by the percentage of the Section 114 royalty as applicable to each year of the license for parties in this proceeding, virtually representative of the value of the the SDARS is as follows: 6.0% for 2007, none of them are devoted to any Section 112 license. See Webcaster II, 72 6.0% for 2008, 6.5% for 2009, 7.0% for discussion of the Section 112 license FR 24101–2. 2010, 7.5% for 2011, and 8.0% for 2012. and ephemeral copies. It is therefore V. Terms We find no basis for making further evident that the parties consider the adjustments to this revenue rate to Section 112 license to be of little value Having determined the rates to be reflect inflation.42 at this point in time. Nevertheless, paid by the SDARS for their activities SoundExchange asks the Copyright under Sections 114 and 112 of the D. The Section 112 Royalty Rates and Royalty Judges to bless the fiction that Copyright Act, the Judges now turn to Minimum Fees whatever the royalty fee for the Section the terms necessary to effectuate 1. Background 114 license may be, 8.8% of that fee payment and distribution. As we stated constitutes the value of the Section 112 in Webcaster II, we are obligated to Section 112(e) of the Copyright Act directs the Judges to establish rates and license. We decline to accept ‘‘adopt royalty payment and distribution terms for the making of ephemeral SoundExchange’s invitation for the terms that are practical and efficient.’’ copies of digital recordings. We are same two reasons we declined to do so 72 FR 24102. SoundExchange and the tasked with setting rates and terms that in Webcaster II. SDARS each submitted proposals of the First, the Section 112 license requires ‘‘most clearly represent the fees that terms they believe fulfill this obligation. us to determine the rate or rates that SoundExchange based its proposal would have been negotiated between a 42 We do not find that the benchmark supports an largely on terms the Judges adopted in additional Consumer Price Index adjustment to the willing buyer and a willing seller, not Webcaster II. SX PFF at ¶ 1466. The percent of revenue rate. No showing has been made the value that copyright owners and terms proposed by the SDARS differ in to indicate that gross revenues, as hereinbefore performers or the SDARS would have certain respects from the Webcaster II defined, will not maintain their real value over time—indeed, the services have increased their attached to ephemeral copies. terms. prices during the prior licensing periods. Moreover, SoundExchange’s valuation of 8.8% is In considering the parties’ proposals no evidence has been submitted by not a rate. The SDARS will not be and adopting royalty terms, we seek to SoundExchange, the proponent of such an paying 8.8% more in total royalty fees maintain consistency across the licenses adjustment, to support this additional adjustment by what is, at this point in time, an indeterminate because of this valuation, nor will they set forth in Sections 112 and 114. amount. be subtracting 8.8% from their charge if Consistency promotes efficiency thereby

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reducing the overall costs associated proceeding. See SX PFF at ¶¶ 1480–82; the half of one percent to one percent with the administration of the licenses. 8/29/07 Tr. 19:15–20:5 (Kessler). per month range.’’ 6/12/07 Tr. 24:4–8 This is not to say that the Judges will SoundExchange argues that (Frear). They state that Mr. Frear’s never vary terms across the licenses, but imposition of a ‘‘significant’’ late fee is testimony is supported by numerous the burden is upon the parties to necessary in order to compel licensees SDARS agreements as well as record demonstrate the need for and the to make timely royalty payments. SX company agreements and amendments benefits of variance. As discussed PFF at ¶ 1486; 6/19/07 Tr. 44:3–10 with digital music services in the record below, the parties, for the most part, (Kessler). SoundExchange represents which contain either no late fee have not met this burden. that many licensees are late with their provision or impose a late fee of 1%. payments, with such delinquency SDARS PFF at ¶ 1312, citing SIR Exs. A. Collective ranging from a few days to a few 43, 52–53; SDARS Ex. 85 at SE–REB SoundExchange requests to be named months. SX PFF at ¶ 1483. Ms. Kessler 0027789; SDARS Ex. 87 at SE–REB the sole collective for the collection and asserts that late fees are the only remedy 0028157; SX Ex. 104 DR at 23; SX Ex. distribution of royalties paid by the available to SoundExchange to thwart 256 RR.at SE 0000626; SX Ex. 257 RR SDARS under the Section 112 and 114 late payments, absent filing an at SE 000148; SE Ex. 258 RR at SE licenses for the license period 2007– infringement suit. Kessler WRT at 3; 0005331–32; SX Ex. 253 RR; SX Ex. 254 2012. SX PFF at ¶ 1505; Kessler WDT at 6/19/07 Tr. 44:3–10 (Kessler). Moreover, RR. The SDARS claim that 15–17. The SDARS do not oppose SoundExchange submits that a 1.5% SoundExchange’s proposal of a 1.5% SoundExchange’s request. SDARS RFF late fee is not burdensome to the SDARS late fee is ‘‘the rare and extreme upper at ¶ 506 n.51. provided they submit their royalty bound of marketplace fees, [whereas] We have determined previously that payments in a timely manner. SX PFF the norm is no late fee at all,’’ thus designation of a single Collective at ¶ 1483; SX RFF at ¶ 522. making the SDARS’ proposal of 0.5% ‘‘represents the most economically and In support of its proposed fee, ‘‘far more consistent with the record administratively efficient system for SoundExchange cites three marketplace evidence * * * particularly in light of collecting royalties under the blanket agreements between record companies [their] established record of timeliness.’’ license framework created by the and digital music services that impose SDARS RFF at ¶ 510. a late fee of 1.5%. SDARS Ex. 86 at SE– statutory licenses.’’ Webcaster II, 72 FR In determining an appropriate late fee, 24104. No party submitted evidence that REB0025070 (sec. 7.2); SDARS Ex. 88 at SE–REB 0025912 (sec. 6.04(d)); SX Ex. a balance must be struck between would compel us to alter that providing an effective incentive to the determination here. Indeed, no party 105 DR at Ex. A, sec. 5(b). While the SDARS do not oppose the licensee to make payments timely on requested the designation of multiple the one hand and not making the fee so collectives, and SoundExchange was the imposition of a fee for untimely royalty payments, they counter that a fee of high that it is punitive on the other only party requesting to be selected as hand. As we did in Webcaster II, the a collective.43 0.5% of the total royalty owed for the period is more reasonable and is Judges conclude that a fee of 1.5% for SoundExchange has a track record of supported by the record in this untimely payments strikes the proper serving as a Collective for the collection proceeding. SDARS PFF at ¶ 1311. The balance. Even though the SDARS and processing of royalty payments SDARS argue that SoundExchange’s typically submit their payments in a made under Sections 112 and 114, primary support for its 1.5% fee is that timely manner (SDARS PFF at ¶ 1309; having done so since the inception of the Judges adopted that fee in Webcaster 6/19/07 Tr. 94:14–95:5 (Kessler)), the the statutory licenses. That coupled II and relies on the agreements offered SDARS’ payment history is not with the absence of any opposition or in that proceeding here. See SDARS PFF dispositive. We are not persuaded that record evidence to suggest that at ¶ 1315; SDARS RFF at ¶¶ 507–09. a late fee of 0.5% per month provides SoundExchange should not serve in that The SDARS contend that a sufficient incentive. While the content capacity here leads us to determine that SoundExchange has presented no other agreements and record company SoundExchange will serve as the agreements in this proceeding to agreements cited by the SDARS do not Collective for the 2007–2012 license support its proposal. SDARS PFF at contain a late fee provision, these period. ¶ 1314. The SDARS further contend agreements do contain provisions We now turn to those terms which are that, unlike the record in Webcaster II, allowing for the termination of the in dispute. which established that SoundExchange agreement in the event of a breach of the B. Disputed Terms was faced ‘‘with virtually hundreds of agreement such as failure to make different webcasters, including some payments timely. SIR Ex. 43, sec. 1. Late Fees with an established poor or unknown 12.4(a); SDARS Ex. 85 at SE–REB a. Late Royalty Payments payment history,’’ the SDARS are 0027790 (sec. 8(b)); SDARS Ex. 86 at SE–REB 0025071 (sec. 12); SDARS Ex. SoundExchange requests that the defined entities with a history of making 87 at SE–REB 0028160 (sec. 10(b)); Judges establish a fee for late royalty payments in a timely manner the SDARS Ex. 88 at SE–REB 0025917 (sec. payments equal to 1.5% of the total majority of the time—a point conceded 10.01); SX Ex. 104 DR at 34 (sec. 12). royalty owed by the SDARS for that by SoundExchange. SDARS PFF at Copyright owners and performers have period. SX PFF at ¶¶ 1482, 1488, 1489; ¶ 1315; 6/19/07 Tr. 94:14–95:5 (Kessler) no such recourse under a statutory Kessler WRT at 2–4; 8/29/07 Tr. 19:15– (‘‘XM and Sirius are typically timely license. They cannot terminate, short of 20:5 (Kessler). The proposed fee of 1.5% with their payments.’’). The SDARS a finding of infringement by a federal is the fee that is currently paid by PSS assert, therefore, that they need no court, access to their works under the for the license period 2002–2007 and motivation to pay timely. SDARS PFF at license. See Webcaster II, 72 FR 24107. was the fee imposed by the Judges in the ¶ 1315. The SDARS also cite the testimony of We find that a late fee of 1.5%, as found recently concluded webcasting Mr. Frear who testified that most of in several of the agreements in the 43 Although Royalty Logic Inc. filed a petition to Sirius’ ‘‘commercial agreements have no record, provides a proper incentive to participate, it withdrew from the proceeding before late payment charges at all. If there are the SDARS to maintain such timeliness the oral presentation of witnesses. See, supra, at 3. late payment charges, they tend to be in and is not unduly harsh. SDARS Ex. 86

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at SE–REB 0025070 (sec. 7.2); SDARS context of a rulemaking proceeding. See decisions regarding licensees’ Ex. 88 at SE–REB 0025912 (sec. 6.04(d)); infra at Section VI. compliance with their statutory SX Ex. 105 DR at A–7 (sec. 5(b)); SX Ex. As we found in Webcaster II, obligations and in making audit and 107 DR at 9 (sec. 6(c)). The 1.5% late fee ‘‘inconsequential good-faith omissions enforcement decisions. Id. we adopt today is consistent with the or errors’’ in the statement of account SoundExchange contends that in its late fees applicable to webcasters and ‘‘should not warrant imposition of the experience more restrictive PSS. late fee.’’ 72 FR 24108. confidentiality provisions, such as those In applying a late fee to both royalty adopted in Webcaster I, lead to b. Statements of Account and Reports of payments and statements of account, we ‘‘significant operational and other Use reject SoundExchange’s request to have problems’’ which make ‘‘it difficult for SoundExchange proposes that a late the late fee accrue separately for these SoundExchange to complete its work’’ fee of 1.5% also be assessed for items regardless of whether they are and result in unfairness to copyright untimely statements of account and submitted simultaneously, as proposed owners and performers, the ultimate reports of use. SX PFF at ¶¶ 1488–89; by SoundExchange, or separately. Since beneficiaries of the royalties. SX PFF at Kessler WRT at 3; 6/19/07 Tr. 44:15–17 we are requiring the simultaneous ¶¶ 1492–8. (Kessler). SoundExchange justifies its submission of payments and statements In opposing SoundExchange’s request by asserting that untimely of account, we agree with the SDARS proposal, the SDARS characterize submission of these documents hamper that SoundExchange has not SoundExchange’s proposal as flawed its ability to promptly distribute demonstrated the need for such an because it ‘‘assumes that the services at royalties. SX PFF at ¶ 1488; Kessler onerous provision in that instance. issue are not complying with their WRT at 4. SoundExchange goes on that Therefore, when a royalty payment and obligations or making accurate such late fees would provide licensees statement of account are submitted payments.’’ SDARS PFF at ¶ 1327. The with a financial incentive to submit together in accordance with the SDARS point out that unlike the their statements and reports in a timely regulations but are late, the offending webcasters in Webcaster II, they ‘‘largely fashion. SX PFF at ¶ 1488; 6/19/07 Tr. SDAR will pay a late fee of 1.5% that have been compliant with all of their 44:15–45:6 (Kessler). covers both the payment and the obligations.’’ Id. They conclude that statement. Conversely, if the payment The SDARS oppose SoundExchange’s ‘‘[w]here there is no basis for the and the statement are submitted proposal. They assert that premise underlying SoundExchange’s separately and both are late, then the confidentiality proposal, there can be no SoundExchange has provided no record SDAR will pay a 1.5% late fee for the justification for adopting’’ it. Id. evidence to support assessment of late late payment and an additional 1.5% We find that the SDARS’ argument fees to these submissions. SDARS PFF late fee for the untimely statement. misses the mark and adopt the at ¶ 1319. Rather, the SDARS continue, Finally, we reject the SDARS’ confidentiality provisions proposed by the record establishes the opposite. proposal to require receipt of written SoundExchange. We previously have Specifically, the SDARS point to several notice of a late submission before the made clear that we will not impose agreements between record labels and accrual of the late fee begins. See confidentiality restrictions without a digital music distribution services Second Amended Proposal of Rates and showing by the licensee—the SDARS which assess no late fee for anything Terms of Sirius Satellite Inc. and XM here—of how disclosure of the other than a late payment. SDARS Ex. Satellite Radio Inc. (October 1, 2007) at information in the statements of account 85 at SE–REB 0027789; SDARS Ex. 86 § 3._.3(c). The responsibility of timely would be, or likely would be, harmful; at SE–REB 0025070; SDARS Ex. 87 at submitting royalty payments and in other words, a showing that such SE–REB 0028157; SDARS Ex. 88 at SE– statements of account rests with the information is confidential. See 72 FR REB 0025912; SX Ex. 104 DR at 23; SX statutory licensee. We do not find such 24108. The SDARS made no such Ex. 105 DR at A–6 of 7/1/04 agreement; responsibility to be unduly burdensome. showing here; indeed, they put forth no SX Ex. 107 DR at 9; SX Ex. 256 RR at Therefore, we see no justification for evidence in support of their proposal to SE 0000626; SX Ex. 257 RR at SE providing the SDARS with any grace deny copyright owners and performers 000148. In light of these agreements, period before the commencement of the access to the statements of account. The they conclude that SoundExchange’s accrual period. SDARS’ history of being ‘‘largely proposal is unreasonable. SDARS RFF at compliant’’ in its statutory obligations, 2. Confidentiality ¶ 511. while commendable, provides no In Webcaster II, the Judges The parties are at loggerheads over justification for adversely impacting determined ‘‘that timely submission of a whether copyright owners and copyright owners’ and performers’ statement of account is critical to the performers should have access to the substantive rights under the Section 112 quick and efficient distribution of information contained in the statements and 114 licenses. See, id. There is no royalties.’’ 72 FR 24107. Given its of account. SoundExchange seeks support in the statute for excluding importance to the distribution process, adoption of the same confidentiality copyright owners and performers from we imposed a late fee of 1.5% of the provisions adopted in Webcaster II. SX having access to the information total royalty owed for that month for its PFF at ¶ 1491; see also 37 CFR 380.5. necessary to pursue an infringement untimely submission. 72 FR 24108. That There, copyright owners and performers suit, especially when copyright owners reasoning applies with equal force here. and their agents (as well as attorneys, have full and complete access to the Consequently, we adopt the same 1.5% consultants, and authorized agents in statements of account filed under the per month late fee for untimely future proceedings) are allowed to cable, satellite and DART licenses. 72 statements of account that was adopted review confidential information in or FR 24108 & n.77. in Webcaster II and proposed by pertaining to statements of account, As in Webcaster II, the general public SoundExchange here. We defer any subject to appropriate confidentiality will not have access to the statements of decision, however, to apply a late fee to agreements. SX PFF at ¶ 1491. account. Therefore, access is limited to the reports of use in light of our SoundExchange submits that such copyright owners and performers, and determination that issues relating to access assists copyright owners and their agents and representatives reports of use are best addressed in the performers in making informed identified in the regulations, whose

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works were used by the SDARS under of those that would otherwise apply directly licensed by the Service or that the Section 112 and 114 licenses. See, under regulations.’’) (emphasis added). amount to an incidental performance as 72 FR 24109. As with our consideration of terms, the defined in the regulations. 37 CFR Judges will adopt new or amended 370.3(b)(8)(i)–(iii); SDARS PFF at 3. Audits and Verification of Payments notice and/or recordkeeping ¶ 1329. The SDARS strenuously object to requirements only where the parties When the interim notice and SoundExchange’s proposal that the sufficiently demonstrate the need for recordkeeping rules were promulgated, SDARS be required to ‘‘use and the benefits of variances with we made clear our intention to ‘‘monitor commercially reasonable efforts to existing regulations. The parties have the operation of these regulations * * * obtain or to provide access to any once again failed to satisfy their burden. and [to] request public comment in the relevant books and records maintained The parties each have submitted future as to the need for amendment or by third parties for the purpose of the recordkeeping proposals which go improvement prior to adopting final [royalty verification] audit.’’ SDARS beyond the current interim notice and regulations.’’ Notice and Recordkeeping PFF at ¶ 1335. The SDARS argue that recordkeeping regulations set forth in 37 for Use of Sound Recordings Under such a term is ‘‘unheard of in CFR part 370. See SoundExchange Statutory License (Interim Final Rule), marketplace contracts between record Third Amended Rate Proposal (August 71 FR 59010, 59011 (October 6, 2006) labels and digital distribution services.’’ 6, 2007) at 9; Second Amended Proposal (codified at 37 CFR Part 370). In SDARS PFF at ¶ 1336, citing SDARS of Rates and Terms of Sirius Satellite Webcaster II, we declined to address Exs. 85–89; SIR Exs. 43, 52–53; SX Exs. Radio Inc. and XM Satellite Radio Inc. notice and recordkeeping as part of that _ 104–05, 107 DR; SX Exs. 253–54, 256– (October 1, 2007) at § 3 .6. The rate setting proceeding, explaining that 258 RR. The SDARS add that such a proposals include provisions covering ‘‘because our recordkeeping regulations term would interfere with their private the frequency of service of the reports of are interim and not final, there is ample contractual relationships with third use, the additional information to be opportunity to again address’’ issues parties. SDARS PFF at ¶ 1336. reported regarding each sound such as the Services’ recordkeeping SoundExchange counters that its recording, the time period for retention costs and SoundExchange’s request for proposal only requires the SDARS to of the reports of use by the SDARS, census reporting in the more use ‘‘commercially reasonable efforts’’ signature requirements, format and appropriate context of a future to obtain these records, and the SDARS delivery requirements, confidentiality of rulemaking proceeding. 72 FR 24110. have offered no reason why they cannot the reports, and census reporting. While Moreover, we found ‘‘there was no make such an effort ‘‘to enable those the parties agree on certain of the persuasive testimony compelling an audits to be as thorough and accurate as proposed provisions, they disagree on adjustment of the current recordkeeping possible.’’ SX RFF at ¶ 535. others. regulations.’’ Id. SoundExchange has Audits serve a critical function in the The parties’ proposals, with one failed to present any persuasive context of a statutory license where a exception discussed below, all suffer the evidence in this proceeding to challenge copyright owner cannot easily terminate same deficiency: they are nothing more our conclusion in Webcaster II, and we access to its works. Therefore, it is than bare proposals unsupported by therefore do not see any reason to now important that there be a high level of record evidence. The need for the adopt its proposed census reporting confidence in the results of such audits. changes and the benefits to be obtained requirement, particularly where the It is equally important that the audit be from them are backed by nothing more parties cannot agree as to what as thorough and accurate as possible. than argument of counsel in their information constitutes census Achievement of this goal requires a closing briefs. Without more, the Judges reporting. balancing of the benefits to decline to exercise their discretion to SoundExchange of having at its disposal amend the notice and recordkeeping VII. Determination and Order all pertinent records (or access thereto) regulations. Having fully considered the record, against the burdens placed upon the The one proposal that is offered with the Copyright Royalty Judges make the SDARS in providing such records or some record testimony is above Findings of Fact based on the access. We find that the balance weighs SoundExchange’s request that the record. Relying upon these Findings of in favor of SoundExchange. Therefore, recordkeeping regulations be amended Fact, the Copyright Royalty Judges we are requiring the SDARS to use to require census reporting. Kessler unanimously adopt every portion of this commercially reasonable efforts to WDT at 17–18; 8/29/07 Tr. 23:19–25:11 Determination of the Rates and Terms of obtain or provide access to records (Kessler); SX PFF at ¶ 1469. the Statutory Licenses for the digital maintained by third parties that are SoundExchange relies on the testimony transmission of sound recordings, relevant to the verification process. it presented in Webcaster II for support pursuant to 17 U.S.C. 114, and for the Imposition of this requirement is of all of its proposed terms, including making of ephemeral phonorecords, consistent with the terms we adopted in those relating to reports of use. Kessler pursuant to 17 U.S.C. 112(e). Webcaster II. See, 37 CFR 380.6(d). WDT at 2; 6/19/07 Tr. 39:16–40:2, 47:8– 19 (Kessler). The SDARS do not object So ordered. VI. Notice and Recordkeeping to census reporting in general but James Scott Sledge, Section 803(c)(3) of the Copyright Act disagree with SoundExchange that they Chief Copyright Royalty Judge. grants the Copyright Royalty Judges the should be required to report all sound William J. Roberts, Jr., authority to adopt terms regarding recordings, noting that Copyright Royalty Judge. notice and recordkeeping which would SoundExchange’s proposal does not Stanley C. Wisniewski, supercede those set forth in 37 CFR part include the ‘‘pragmatic exceptions’’ Copyright Royalty Judge. 370. Our exercise of this authority, found in the current recordkeeping Dated: January 10, 2008. however, is discretionary. 17 U.S.C. regulations. SDARS PFF at ¶¶ 1329–30. 803(c)(3) (‘‘[T]he Copyright Royalty Such ‘‘exceptions’’ require no reporting List of Subjects in 37 CFR Part 382 Judges may specify notice and of sound recordings that are not under Copyright, Digital audio recordkeeping requirements of users of federal copyright protection or whose transmissions, Performance right, Sound the copyrights at issue that apply in lieu term has expired, that have been recordings.

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Final Regulations designated by the Copyright Royalty images, and such other telematics and/ Judges. For the 2007–2012 license or data services as may exist from time I For the reasons set forth in the period, the Collective is to time); preamble, the Copyright Royalty Judges SoundExchange, Inc. (B) Channels, programming, products are amending part 382 of Chapter III to Copyright Owners are sound title 37 of the Code of Federal and/or other services offered for a recording copyright owners who are separate charge where such channels Regulations by adding a new Subpart B entitled to royalty payments made to read as follows: use only incidental performances of under this subpart pursuant to the sound recordings; statutory licenses under 17 U.S.C. 112(e) PART 382—RATES AND TERMS FOR (C) Channels, programming, products DIGITAL TRANSMISSIONS OF SOUND and 114(f). Ephemeral Recording is a and/or other services provided outside RECORDINGS AND THE of the United States; and REPRODUCTION OF EPHEMERAL phonorecord created for the purpose of (D) Channels, programming, products RECORDINGS BY PREEXISTING facilitating a transmission of a public and/or other services for which the SUBSCRIPTION SERVICES AND performance of a sound recording under performance of sound recordings and/or PREEXISTING SATELLITE DIGITAL a statutory license in accordance with the making of ephemeral recordings is AUDIO RADIO SERVICES 17 U.S.C. 114(f) and subject to the limitations specified in 17 U.S.C. 112(e). exempt from any license requirement or Subpart B—Preexisting Satellite Digital GAAP shall mean generally accepted is separately licensed, including by a Audio Radio Services accounting principles in effect from statutory license and, for the avoidance time to time in the United States. of doubt, webcasting, audio services Sec. Gross Revenues. (1) Gross Revenues bundled with television programming, 382.10 General. shall mean revenue recognized by the interactive services, and transmissions 382.11 Definitions. Licensee in accordance with GAAP from to business establishments. 382.12 Royalty fees for public performance the operation of an SDARS, and shall be of sound recordings and the making of Licensee is a person that has obtained comprised of the following: a statutory license under 17 U.S.C. 114, ephemeral recordings. (i) Subscription revenue recognized 382.13 Terms for making payment of and the implementing regulations, to royalty fees and statements of account. by Licensee directly from residential make transmissions over a preexisting 382.14 Confidential information. U.S. subscribers for Licensee’s SDARS; satellite digital audio radio service, and 382.15 Verification of royalty payments. and has obtained a statutory license under 382.16 Verification of royalty distributions. (ii) Licensee’s advertising revenues, or 17 U.S.C. 112(e), and the implementing 382.17 Unclaimed funds. other monies received from sponsors, if regulations, to make Ephemeral Authority: 17 U.S.C. 112(e), 114(f), any, attributable to advertising on Recordings for use in facilitating such 804(b)(3). channels other than those that use only transmissions. incidental performances of sound § 382.10 General. recordings, less advertising agency and Performers means the independent (a) Scope. This subpart establishes sales commissions. administrators identified in 17 U.S.C. rates and terms of royalty payments for (2) Gross Revenues shall include such 114(g)(2)(B) and (C), and the parties the public performance of sound payments as set forth in paragraphs identified in 17 U.S.C. 114(g)(2)(D). recordings in certain digital (1)(i) and (ii) of the definition of ‘‘Gross Qualified Auditor is a Certified Public transmissions by Licensees in Revenues’’ to which Licensee is entitled Accountant. accordance with the provisions of 17 but which are paid to a parent, wholly- Residential means, with respect to a U.S.C. 114, and the making of owned subsidiary or division of service, a service that may be licensed Ephemeral Recordings by Licensees in Licensee. under the provisions of 17 U.S.C. accordance with the provisions of 17 (3) Gross Revenues shall exclude: 114(d)(2)(B); and, with respect to U.S.C. 112(e), during the period from (i) Monies or other consideration subscribers, subscribers to such a January 1, 2007, through December 31, attributable to the sale and/or license of service. 2012. equipment and/or other technology, SDARS means the preexisting satellite (b) Legal compliance. Licensees including but not limited to bandwidth, digital audio radio services as defined in relying upon the statutory licenses set sales of devices that receive the 17 U.S.C. 114(j)(10). forth in 17 U.S.C. 112 and 114 shall Licensee’s SDARS and any taxes, comply with the requirements of those shipping and handling fees therefor; Term means the period commencing sections, the rates and terms of this (ii) Royalties paid to Licensee for January 1, 2007, and continuing through subpart, and any other applicable intellectual property rights; December 31, 2012. (iii) Monies or other consideration regulations. § 382.12 Royalty fees for the public (c) Relationship to voluntary received by Licensee from the sale of performance of sound recordings and the agreements. Notwithstanding the phonorecords and digital phonorecord making of ephemeral recordings. royalty rates and terms established in deliveries; this subpart, the rates and terms of any (iv) Sales and use taxes, shipping and The monthly royalty fee to be paid by license agreements entered into by handling, credit card, invoice, and a Licensee for the public performance of Copyright Owners and Licensees shall fulfillment service fees; sound recordings pursuant to 17 U.S.C. apply in lieu of the rates and terms of (v) Bad debt expense, and 114(d)(2) and the making of any number this subpart to transmission within the (vi) Revenues recognized by Licensee of ephemeral phonorecords to facilitate scope of such agreements. for the provision of such performances pursuant to 17 (A) Current and future data services U.S.C. 112(e) shall be the percentage of § 382.11 Definitions. offered for a separate charge (e.g., monthly Gross Revenues resulting from For purposes of this subpart, the weather, traffic, destination information, Residential services in the United States following definitions shall apply: messaging, sports scores, stock ticker as follows: for 2007 and 2008, 6.0%; for Collective is the collection and information, extended program 2009, 6.5%; for 2010, 7.0%; for 2011, distribution organization that is associated data, video and photographic 7.5%; and for 2012, 8.0%.

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§ 382.13 Terms for making payment of accompanied by a corresponding including the amount of royalty royalty fees and statements of account. statement of account. A statement of payments, and any information (a) Payment to the Collective. A account shall contain the following pertaining to the statements of account Licensee shall make the royalty information: reasonably designated as confidential by payments due under § 382.12 to the (1) Such information as is necessary the Licensee submitting the statement. Collective. to calculate the accompanying royalty (b) Exclusion. Confidential (b) Designation of the Collective. (1) payments; Information shall not include Until such time as a new designation is (2) The name, address, business title, documents or information that at the made, SoundExchange, Inc., is telephone number, facsimile number (if time of delivery to the Collective are designated as the Collective to receive any), electronic mail address and other public knowledge. The party claiming statements of account and royalty contact information of the person to be the benefit of this provision shall have payments from Licensees due under contacted for information or questions the burden of proving that the disclosed § 382.12 and to distribute such royalty concerning the content of the statement information was public knowledge. payments to each Copyright Owner and of account; (c) Use of Confidential Information. In Performer, or their designated agents, (3) The handwritten signature of a no event shall the Collective use any entitled to receive royalties under 17 duly authorized officer or representative Confidential Information for any U.S.C. 112(e) or 114. of the Licensee; purpose other than royalty collection (2) If SoundExchange, Inc. should (4) The printed or typewritten name and distribution and activities related dissolve or cease to be governed by a of the person signing the statement of directly thereto. board consisting of equal numbers of account; (d) Disclosure of Confidential representatives of Copyright Owners (5) The date of signature; Information. Access to Confidential and Performers, then it shall be replaced (6) The title or official position held Information shall be limited to: by a successor Collective upon the in relation to the Licensee by the person (1) Those employees, agents, fulfillment of the requirements set forth signing the statement of account; attorneys, consultants and independent in paragraph (b)(2)(i) of this section. (7) A certification of the capacity of contractors of the Collective, subject to (i) By a majority vote of the nine the person signing; and an appropriate confidentiality Copyright Owner representatives and (8) A statement to the following effect: agreement, who are engaged in the the nine Performer representatives on I, the undersigned officer or representative collection and distribution of royalty the SoundExchange board as of the last of the Licensee, have examined this payments hereunder and activities day preceding the condition precedent statement of account and hereby state that it related thereto, for the purpose of in paragraph (b)(2) of this section, such is true, accurate, and complete to my performing such duties during the representatives shall file a petition with knowledge after reasonable due diligence. ordinary course of their work and who the Copyright Royalty Judges (f) Distribution of royalties. (1) The require access to the Confidential designating a successor to collect and Collective shall promptly distribute Information; distribute royalty payments to Copyright royalties received from Licensees to (2) An independent and Qualified Owners and Performers entitled to Copyright Owners and Performers, or Auditor, subject to an appropriate receive royalties under 17 U.S.C. 112(e) their designated agents, that are entitled confidentiality agreement, who is or 114 that have themselves authorized to such royalties. The Collective shall authorized to act on behalf of the the Collective. only be responsible for making Collective with respect to verification of (ii) The Copyright Royalty Judges distributions to those Copyright a Licensee’s statement of account shall publish in the Federal Register Owners, Performers, or their designated pursuant to § 382.15 or on behalf of a within 30 days of receipt of a petition agents who provide the Collective with Copyright Owner or Performer with filed under paragraph (b)(2)(i) of this such information as is necessary to respect to the verification of royalty section an order designating the identify the correct recipient. The distributions pursuant to § 382.16; Collective named in such petition. Collective shall distribute royalties on a (3) Copyright Owners and Performers, (c) Monthly payments. A Licensee basis that values all performances by a including their designated agents, shall make any payments due under Licensee equally based upon the whose works have been used under the § 382.12 on a monthly basis on or before information provided under the reports statutory licenses set forth in 17 U.S.C. the 45th day after the end of each month of use requirements for Licensees 112(e) and 114(f) by the Licensee whose for that month, except that payments contained in § 370.3 of this chapter. Confidential Information is being due under § 382.12 for the period (2) If the Collective is unable to locate supplied, subject to an appropriate beginning January 1, 2007, through the a Copyright Owner or Performer entitled confidentiality agreement, and last day of the month in which the to a distribution of royalties under including those employees, agents, Copyright Royalty Judges issue their paragraph (f)(1) of this section within 3 attorneys, consultants and independent final determination adopting these rates years from the date of payment by a contractors of such Copyright Owners and terms shall be due 45 days after the Licensee, such royalties shall be and Performers and their designated end of such period. All payments shall handled in accordance with § 382.17. agents, subject to an appropriate be rounded to the nearest cent. (g) Retention of records. Books and confidentiality agreement, for the (d) Late payments and statements of records of a Licensee and of the purpose of performing their duties account. A Licensee shall pay a late fee Collective relating to payments of and during the ordinary course of their work of 1.5% per month, or the highest lawful distributions of royalties shall be kept and who require access to the rate, whichever is lower, for any for a period of not less than the prior 3 Confidential Information; and payment and/or statement of account calendar years. (4) In connection with future received by the Collective after the due proceedings under 17 U.S.C. 112(e) and date. Late fees shall accrue from the due § 382.14 Confidential information. 114(f) before the Copyright Royalty date until payment is received by the (a) Definition. For purposes of this Judges, and under an appropriate Collective. subpart, ‘‘Confidential Information’’ protective order, attorneys, consultants (e) Statements of account. Any shall include the statements of account and other authorized agents of the payment due under § 382.12 shall be and any information contained therein, parties to the proceedings or the courts.

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(e) Safeguarding of Confidential in order to remedy any factual errors Auditor, shall serve as an acceptable Information. The Collective and any and clarify any issues relating to the verification procedure for all parties person identified in paragraph (d) of audit; Provided that an appropriate with respect to the information that is this section shall implement procedures agent or employee of the Licensee within the scope of the audit. to safeguard against unauthorized access reasonably cooperates with the auditor (f) Consultation. Before rendering a to or dissemination of any Confidential to remedy promptly any factual errors or written report to a Copyright Owner or Information using a reasonable standard clarify any issues raised by the audit. of care, but no less than the same degree (g) Costs of the verification procedure. Performer, except where the auditor has of security used to protect Confidential The Collective shall pay the cost of the a reasonable basis to suspect fraud and Information or similarly sensitive verification procedure, unless it is disclosure would, in the reasonable information belonging to the Collective finally determined that there was an opinion of the auditor, prejudice the or person. underpayment of 10% or more, in investigation of such suspected fraud, which case the Licensee shall, in the auditor shall review the tentative § 382.15 Verification of royalty payments. addition to paying the amount of any written findings of the audit with the (a) General. This section prescribes underpayment, bear the reasonable costs appropriate agent or employee of the procedures by which the Collective may of the verification procedure. Collective in order to remedy any verify the royalty payments made by a factual errors and clarify any issues Licensee. § 382.16 Verification of royalty relating to the audit; Provided that the distributions. (b) Frequency of verification. The appropriate agent or employee of the Collective may conduct a single audit of (a) General. This section prescribes Collective reasonably cooperates with a Licensee, upon reasonable notice and procedures by which any Copyright the auditor to remedy promptly any during reasonable business hours, Owner or Performer may verify the during any given calendar year, for any royalty distributions made by the factual errors or clarify any issues raised or all of the prior 3 calendar years, but Collective; Provided, however, that by the audit. no calendar year shall be subject to nothing contained in this section shall (g) Costs of the verification procedure. audit more than once. apply to situations where a Copyright The Copyright Owner or Performer (c) Notice of intent to audit. The Owner or Performer and the Collective requesting the verification procedure Collective must file with the Copyright have agreed as to proper verification shall pay the cost of the procedure, Royalty Judges a notice of intent to audit methods. unless it is finally determined that there a particular Licensee, which shall, (b) Frequency of verification. A was an underpayment of 10% or more, within 30 days of the filing of the Copyright Owner or Performer may in which case the Collective shall, in notice, publish in the Federal Register conduct a single audit of the Collective addition to paying the amount of any a notice announcing such filing. The upon reasonable notice and during underpayment, bear the reasonable costs notification of intent to audit shall be reasonable business hours, during any of the verification procedure. served at the same time on the Licensee given calendar year, for any or all of the to be audited. Any such audit shall be prior 3 calendar years, but no calendar § 382.17 Unclaimed funds. conducted by an independent and year shall be subject to audit more than Qualified Auditor identified in the once. If the Collective is unable to identify notice, and shall be binding on all (c) Notice of intent to audit. A or locate a Copyright Owner or parties. Copyright Owner and Performer must Performer who is entitled to receive a (d) Acquisition and retention of file with the Copyright Royalty Judges a royalty distribution under this subpart, report. The Licensee shall use notice of intent to audit the Collective, the Collective shall retain the required commercially reasonable efforts to which shall, within 30 days of the filing payment in a segregated trust account obtain or to provide access to any of the notice, publish in the Federal for a period of 3 years from the date of relevant books and records maintained Register a notice announcing such distribution. No claim to such by third parties for the purpose of the filing. The notification of intent to audit distribution shall be valid after the audit. The Collective shall retain the shall be served at the same time on the expiration of the 3-year period. After report of the verification for a period of Collective. Any audit shall be expiration of this period, the Collective not less than 3 years. conducted by an independent and may apply the unclaimed funds to offset (e) Acceptable verification procedure. Qualified Auditor identified in the any costs deductible under 17 U.S.C. An audit, including underlying notice, and shall be binding on all 114(g)(3). The foregoing shall apply paperwork, which was performed in the Copyright Owners and Performers. notwithstanding the common law or ordinary course of business according to (d) Acquisition and retention of statutes of any State. generally accepted auditing standards report. The Collective shall use by an independent and Qualified commercially reasonable efforts to Dated: January 10, 2008. Auditor, shall serve as an acceptable obtain or to provide access to any James Scott Sledge, verification procedure for all parties relevant books and records maintained Chief Copyright Royalty Judge. with respect to the information that is by third parties for the purpose of the [FR Doc. E8–669 Filed 1–23–08; 8:45 am] within the scope of the audit. audit. The Copyright Owner or BILLING CODE 1410–72–P (f) Consultation. Before rendering a Performer requesting the verification written report to the Collective, except procedure shall retain the report of the where the auditor has a reasonable basis verification for a period of not less than to suspect fraud and disclosure would, 3 years. in the reasonable opinion of the auditor, (e) Acceptable verification procedure. prejudice the investigation of such An audit, including underlying suspected fraud, the auditor shall paperwork, which was performed in the review the tentative written findings of ordinary course of business according to the audit with the appropriate agent or generally accepted auditing standards employee of the Licensee being audited by an independent and Qualified

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ENVIRONMENTAL PROTECTION whose disclosure is restricted by statute. Connecticut Post-2002 NOX Budget AGENCY Certain other material, such as Program’’ (herein called the copyrighted material, is not placed on ‘‘Connecticut NOX SIP Call trading 40 CFR Part 52 the Internet and will be publicly program’’), as of May 1, 2010. This SIP available only in hard copy form. revision was first submitted on April 26, [EPA–R01–OAR–2007–0399; FRL–8517–4] Publicly available docket materials are 2007, but includes amendments Approval and Promulgation of Air available either electronically through submitted on September 12, 2007. Quality Implementation Plans; www.regulations.gov or in hard copy at The CT DEP had requested that EPA Connecticut; State Implementation the Office of Ecosystem Protection, U.S. ‘‘parallel process’’ Connecticut’s Plan Revision to Implement the Clean Environmental Protection Agency, EPA proposed CAIR SIP revision. Under this Air Interstate Rule New England Regional Office, One procedure, EPA prepared its proposed Congress Street, Suite 1100, Boston, approval of Connecticut’s SIP revision AGENCY: Environmental Protection MA. EPA requests that, if at all possible, before the state’s final adoption and Agency (EPA). you contact the contact listed in the FOR repeal of the regulations referenced ACTION: Final rule. FURTHER INFORMATION CONTACT section to above. schedule your inspection. The Regional EPA has reviewed Connecticut’s final SUMMARY: EPA is approving a State Office’s official hours of business are adopted regulations and determined Implementation Plan (SIP) revision Monday through Friday, 8:30 to 4:30, that changes were made to clarify submitted by the State of Connecticut excluding legal holidays. meaning, improve consistency, or to on April 26, 2007, with amendments Copies of the documents relevant to address redundancy, and that they do submitted on September 12, 2007. This this action are also available for public not differ significantly from the ‘‘post- SIP revision addresses the requirements inspection during normal business hearing final draft’’ version that was the of EPA’s Clean Air Interstate Rule hours, by appointment at the Bureau of subject of the notice of proposed (CAIR), promulgated on May 12, 2005 Air Management, Department of rulemaking (NPR) for this SIP Revision and subsequently revised on April 28, Environmental Protection, State Office (72 FR 50305). For example, definitions 2006 and December 13, 2006. EPA has Building, 79 Elm Street, Hartford, CT of ‘‘commence commercial operation’’ determined that the SIP revision fully 06106–1630. and ‘‘commence operation’’ were implements the CAIR requirements for FOR FURTHER INFORMATION CONTACT: If clarified; the word ‘‘through’’ was Connecticut. Therefore, as a you have questions concerning today’s substituted for a hyphen between dates consequence of the SIP approval, the action, please contact Alison C. Simcox, listed to clearly identify the control Administrator of EPA will also, in a Air Quality Planning Unit, U.S. periods included in the regulation; and separate document, issue a final rule to Environmental Protection Agency, EPA language was added to clarify that the withdraw the Federal Implementation New England Regional Office, One term ‘‘permitting authority’’ has the Plan (FIP) concerning NOX ozone- Congress Street, Suite 1100 (CAQ), same meaning as in 40 CFR part 96, season emissions for Connecticut. Boston, MA 02114–2023, telephone subpart AAAA, which refers to the In the SIP revision that EPA is number (617) 918–1684, fax number CAIR NOX Ozone Season Trading approving, Connecticut will meet CAIR (617) 918–0684, e-mail Program. None of the changes made are requirements by participating in the [email protected]. deemed significant for SIP approval EPA-administered cap-and-trade SUPPLEMENTARY INFORMATION: purposes, and it is, therefore, program addressing NOX ozone-season appropriate to prepare this final rule. emissions. Connecticut’s SIP revision is Table of Contents In its SIP revision, Connecticut will based on EPA’s model CAIR NOX ozone I. What Action Is EPA Taking? meet CAIR requirements by requiring season rule and is, in most respects, II. What are the Regulatory History and certain electric generating units (EGUs) General Requirements of CAIR and the substantively identical to that model to participate in the EPA-administered rule. The Connecticut CAIR program has CAIR FIPs? III. EPA Analysis of Connecticut’s CAIR SIP State CAIR cap-and-trade program two major substantive differences from addressing NO ozone-season that model rule (expanded applicability, Submittal X A. State Budgets for Allowance Allocations emissions. EPA has determined that the and a different methodology for B. CAIR Cap-and-Trade Programs Connecticut SIP, as revised, meets the allocating NOX allowances), both of C. Applicability Provisions for non-EGUs applicable requirements of CAIR. As a which are consistent with the flexibility NOX SIP Call Sources consequence of the SIP approval, the allowed under CAIR for state D. NOX Allowance Allocations Administrator of EPA will also, in a participation in the EPA-administered E. Individual Opt-in Units IV. Final Action separate document, issue a final rule to cap-and-trade program. The SIP revision withdraw the FIP concerning NO complies with the statutory and V. When Is This Action Effective? X VI. Statutory and Executive Order Reviews ozone-season emissions for Connecticut. regulatory requirements for approval of That action will delete and reserve 40 a CAIR NOX ozone-season program. I. What Action Is EPA Taking? CFR 52.386. The withdrawal of the This action is being taken in accordance EPA is approving a revision to CAIR FIP for Connecticut is a with the Clean Air Act. Connecticut’s SIP that includes a new conforming amendment that must be DATES: Effective Date: This rule is regulation, Regulations of Connecticut made once the SIP is approved because effective on January 24, 2008. State Agencies (RCSA) section 22a–174– EPA’s authority to issue the FIP was ADDRESSES: EPA has established a 22c, ‘‘The Clean Air Interstate Rule premised on a deficiency in the SIP for docket for this action under Docket (CAIR) Nitrogen Oxides (NOX) Ozone Connecticut. Once the SIP is fully Identification No. EPA–R01–OAR– Season Trading Program’’ (herein called approved, EPA no longer has authority 2007–0399. All documents in the docket ‘‘Connecticut’s CAIR program’’), repeal for the FIP. Thus, EPA will not have the are listed on the www.regulations.gov of RCSA section 22a–174–22a (‘‘The option of maintaining the FIP following Web site. Although listed in the index, Connecticut NOX Budget Program’’), as the full SIP approval. Accordingly, EPA some information is not publicly of September 4, 2007, and repeal of does not intend to offer an opportunity available, i.e., CBI or other information RCSA section 22a–174–22b, ‘‘The for a public hearing or an additional

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opportunity for written public comment A. State Budgets for Allowance emissions reductions by allowing on the withdrawal of the FIP. Allocations banked, pre-2009 NOX SIP Call allowances to be used for compliance in II. What Is the Regulatory History and The CAIR NOX annual and ozone season budgets were developed from the CAIR NOX ozone-season trading General Requirements of CAIR and the program. In addition, States have the CAIR FIPs? historical heat input data for EGUs. Using these data, EPA calculated annual option of continuing to meet their NOX The Clean Air Interstate Rule (CAIR) and ozone season regional heat input SIP Call requirements by participating in the CAIR NO ozone season trading was published by EPA on May 12, 2005 values, which were multiplied by 0.15 X program and including all their NO SIP (70 FR 25162). In this rule, EPA pounds per million British thermal X Call trading sources in that program. determined that 28 States and the units (lb/mmBtu), for phase 1 of the In the SIP revision, Connecticut will District of Columbia contribute CAIR program (2009–2014) and by implement its CAIR budgets by significantly to nonattainment and 0.125 lb/mmBtu, for phase 2 of the CAIR requiring EGUs (as well as ‘‘non-EGUs’’ interfere with maintenance of the program (2015 and thereafter) to obtain regional NOX budgets for 2009–2014 from its NOX SIP Call trading program, national ambient air quality standards as discussed below) to participate in (NAAQS) for fine particles (PM ) and/ and for 2015 and thereafter, 2.5 EPA-administered cap-and-trade or 8-hour ozone in downwind States in respectively. EPA derived the State NOX annual and ozone season budgets from programs for NOX ozone-season the eastern part of the country. As a the regional budgets using State heat emissions. Connecticut has adopted a result, EPA required those upwind input data adjusted by fuel factors. full SIP revision that adopts, with States to revise their SIPs to include Connecticut, however, is only required certain allowed changes discussed control measures that reduce emissions to participate in the CAIR NOX ozone- below, the CAIR model cap-and-trade of SO2, which is a precursor to PM2.5 season program, not the CAIR NOX rules for NOX ozone-season emissions. formation, and/or NOX, which is a annual or SO2 trading programs. C. Applicability Provisions for Non-EGU precursor to both ozone and PM2.5 Therefore, only CAIR NOX ozone-season NOX SIP Call Sources formation. For jurisdictions that budgets apply to the Connecticut CAIR contribute significantly to downwind program. In general, the CAIR model trading PM2.5 nonattainment, CAIR sets annual In today’s action, EPA is approving rules apply to any stationary, fossil-fuel- State-wide emission reduction Connecticut’s SIP revision, which fired boiler or stationary, fossil-fuel- requirements (i.e., budgets) for SO2 and includes a new regulation, 22a–174– fired combustion turbine serving at any annual State-wide emission reduction 22c, which comprises Connecticut’s time, since the later of November 15, requirements for NOX. Similarly, for CAIR program. This SIP revision adopts 1990 or the start-up of the unit’s jurisdictions that contribute the budget established for the State in combustion chamber, a generator with nameplate capacity of more than 25 significantly to 8-hour ozone CAIR, i.e., 2,559 tons of NOX ozone- nonattainment, CAIR sets State-wide season emissions for CAIR phases 1 and MWe producing electricity for sale. emission reduction requirements for 2, plus an additional 132 tons of NOX States have the option of bringing in, NO for the ozone season (May 1st to ozone-season emissions for both phases for the CAIR NOX ozone-season program X only, those units in the State’s NO SIP September 30th). Under CAIR, States 1 and 2 to account for NOX emissions X Call trading program that are not EGUs may implement these reduction from ‘‘non-EGUs’’ from the Connecticut as defined under CAIR (herein called requirements by participating in the NOX SIP Call trading program. The total NOX ozone-season budget is therefore ‘‘non-EGUs’’). Under this option, the EPA-administered cap-and-trade CAIR NO ozone-season program must programs or by adopting other control 2,691 tons of NOX ozone-season X emissions for CAIR phases 1 and 2. cover all large industrial boilers and measures. The first phase of NO X Connecticut’s SIP revision sets this combustion turbines, as well as any reductions starts in 2009 and continues budget as the total number of small EGUs (i.e., units serving a through 2014, while the first phase of allowances (with each allowance generator with a nameplate capacity of SO2 reductions starts in 2010 and authorizing one ton of NOX ozone- 25 MWe or less) that the State currently continues through 2014. The second season emissions) available for requires to be in the NOX SIP Call phase of reductions for both NOX and allocation for each year under the EPA- trading program. SO2 starts in 2015 and continues administered CAIR cap-and-trade Connecticut has chosen to expand the thereafter. program. applicability provisions of the CAIR NOX ozone season trading program to More information on the regulatory B. CAIR Cap-and-Trade Programs history and requirements of CAIR and include all units in the State’s NOX SIP the CAIR FIPs is available in the NPR The CAIR NOX annual and ozone- Call trading program. Units in the and will not be restated here. season model trading rules both largely Connecticut NOX SIP Call trading mirror the structure of the NOX SIP Call program include EGUs of 15 MW or III. EPA Analysis of Connecticut’s CAIR model trading rule in 40 CFR part 96, more and non-EGUs (such as industrial SIP Submittal subparts A through I. While the boilers and combustion turbines) with a provisions of the NOX annual and maximum design heat input of 250 A brief summary of EPA’s review of ozone-season model rules are similar, MMBtu/hr or more. These units will be Connecticut’s CAIR program is given there are some differences. For example, included in the Connecticut CAIR below. Additional details regarding the NOX ozone season model rule program beginning with the control requirements of Connecticut’s 22a–174– reflects the fact that the CAIR NOX period in 2009. EPA has determined 22c regulation and EPA’s evaluation of ozone-season trading program replaces that Connecticut’s regulation 22a–174– this regulation are available in the NPR the NOX SIP Call trading program after 22c includes the allowable CAIR for this SIP revision. In addition, the 2008 ozone-season and is applicability provisions relating to Connecticut’s CAIR SIP submittal is coordinated with the NOX SIP Call adding all NOX SIP Call trading-program available in the docket supporting this program. The NOX ozone-season model units to the Connecticut CAIR NOX action. rule provides incentives for early ozone season program.

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D. NOX Allowance Allocations 3. The basis for allocating allowances, interprets the provisions involved as Deadlines: CAIR provides in 40 CFR which may be distributed, for example, follows. 51.123(aa)(2)(iii)(C) that for a full SIP based on historical heat input or electric First, the proposed regulation uses the revision, ‘‘[t]he State’s methodology and thermal output; and term ‘‘NO[X] allowance,’’ which is not 4. The use of allowance set-asides must require that, for EGUs defined, in three places. See RCSA and, if used, their size. commencing operation before January 1, Connecticut has chosen to replace the sections 22a–174–22c(c)(2), 22a–174– 2001, the State will determine, and 22c(c)(3)(B), 22a–174–22c(g)(4). EPA provisions of the CAIR NOX ozone- notify the Administrator of, each unit’s season model trading rule concerning interprets the term ‘‘NO[X] allowance’’ allocation of CAIR NOX allowances by allowance allocations with its own when used in RCSA section 22a–174– October 31, 2006 for the ozone seasons methodology. Connecticut’s CAIR 22c as being identical to the term ‘‘CAIR 2009, 2010, and 2011.’’ Connecticut’s program is codified at RCSA section NO[X] Ozone Season allowance’’ as SIP revision requires that it submit and 22a–174–22c. Whereas the model defined at 40 CFR 96.302. it in fact did submit these allocations by trading rule uses an allocation Second, under RCSA sections 22a– April 30, 2007 (the deadline for methodology that is fuel-adjusted and 174–22c(e)(7)(A) and (B) and 22a–174– submittal applicable to abbreviated SIP based on heat input, Connecticut’s 22c(e)(8)(A), there is no limit to the revisions under 40 CFR allocation methodology is not fuel- number of allowances that can be 51.123(ee)(2)(ii)(C)). The purpose of the adjusted and is largely based on heat October 31, 2006 deadline was to allow allocated to CAIR NOX Ozone Season output. Connecticut also provides a units which are cogeneration units, EPA’s Clean Air Markets Division percentage of allowances for a new unit sufficient time to process the industrial units, waste-tire-fired units, set-aside and for an energy efficiency/ or Phase I units in any control period. allocations. At this point, as renewable energy set-aside (EERESA) Connecticut has in fact submitted its For purposes of construing and Qualifying Other Project (QOPs). Connecticut’s proposed SIP revision, allocations well before the date of this For the 2009 through 2011 control EPA interprets RCSA sections 22a–174– document, and as the Clean Air Markets periods, Connecticut will first allocate 22c(e)(2) and 22a–174–22c(e)(3) to Division is fully able to process the NO allowances to CAIR NO Ozone X X prohibit the Connecticut DEP from allocations, it makes no difference Season units which are cogeneration, whether EPA received the 2009–2011 industrial or waste-tire-fired units on an allocating allowances in excess of the allocations in April of 2007 or October input basis, then will allocate total state budget, and to control in any of 2006. EPA will still be able to record allowances to older EGUs using an conflict with RCSA sections 22a–174– the allocations and provide the output basis. Remaining allocations will 22c(e)(7)(A) and (B) and 22a–174– allowances to owners and operators be allocated to newer EGUs on a pro- 22c(e)(8)(A). Thus, if the operation of sufficiently in advance of the 2009–2011 rated output basis. For the 2012 control RCSA sections 22a–174–22c(e)(7)(A)– control periods. EPA considers the late period and beyond, Connecticut will (B) and/or 22a–174–22c(e)(8)(A) were to submittal harmless error and allocate allowances to both older and yield allowances for CAIR NOX Ozone consequently approves this SIP revision. newer EGUs on a pro-rated output basis. Season units which are cogeneration NOX allowance-allocation Connecticut has set a new unit set- units, industrial units, waste-tire-fired methodology: Under the NOX aside at 7 percent of the State’s CAIR units, or Phase I units in excess of the allowance-allocation methodology in budget during CAIR phase 1 (2009– state budget, either by themselves or in the CAIR model trading rules and in the 2014), and at 5 percent of the State’s combination with allocations to other CAIR FIP, NOX annual and ozone- CAIR budget during CAIR phase 2 (2015 categories, then RCSA sections 22a– season allowances are allocated to units and thereafter). Therefore, the new unit 174–22c(e)(2) and 22a–174–22c(e)(3) that have operated for five years (i.e., set-aside includes 200 CAIR NOX ozone- would require the Connecticut DEP to ‘‘existing units’’), based on heat input season allowances during CAIR phase 1, recalculate or reallocate allowances so data from a three-year period that are and 134 allowances during CAIR phase as not to exceed the state budget. adjusted for fuel type by using fuel 2. Connecticut has set the EERESA at 10 EPA has relied on these factors of 1.0 for coal, 0.6 for oil, and 0.4 percent of the State’s CAIR budget for interpretations of Connecticut’s for other fuels. The CAIR model trading both phases of the CAIR program. proposed SIP revision for the purposes rules and the CAIR FIP also provide a Therefore, the EERESA includes 268 of approving it as meeting the new unit set-aside from which units CAIR NOX allowances for the 2009 and requirements of the Act and the CAIR without five years of operation are subsequent ozone-season control program, and these interpretations allocated allowances based on the units’ periods. represent EPA’s formal interpretations prior year emissions. More details on Connecticut’s of the SIP provisions at issue for States may establish in their SIP methodology for allocating CAIR purposes of federal law. submissions a different NOX allowance- allowances, as well as information on allocation methodology that will be Connecticut CAIR permits and E. Individual Opt-in Units used to allocate allowances to sources in requirements for facilities to report the State if certain requirements are met emissions data, can be found in the NPR The Connecticut CAIR SIP does not concerning the timing of submission of and in Connecticut’s CAIR SIP submittal include opt-in provisions because the units’ allocations to the Administrator available in the docket supporting this State has chosen to allocate CAIR for recordation and the total amount of action. allowances using an energy-output allowances allocated for each control In the NPR, EPA identified two methodology that cannot be used for period. In adopting alternative NOX potential ambiguities in the allocation opt-in sources under the model CAIR allowance-allocation methodologies, provisions of Connecticut’s proposed NOX ozone-season trading rule. In States have flexibility with regard to: CAIR program, and proposed its addition, Connecticut does not expect 1. The cost to recipients of the interpretations of those provisions. See there to be a demand for opt-in allowances, which may be distributed 72 FR 50309. EPA received no provisions as no source opted into for free or auctioned; comments regarding these proposed Connecticut’s NOX SIP Call trading 2. The frequency of allocations; interpretations. Consequently, EPA program.

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IV. Final Action obligations provides good cause to make Executive Order 13132 (64 FR 43255, EPA is approving a revision to this rule effective on the date of August 10, 1999), because it merely Connecticut’s SIP that includes a new publication of this action in the Federal approves a state rule implementing a regulation, RCSA section 22a–174–22c Register, pursuant to 5 U.S.C. 553(d)(3). federal standard, and does not alter the (Connecticut’s CAIR program), and The purpose of the 30-day waiting relationship or the distribution of power repeal of RCSA section 22a–174–22a period prescribed in 5 U.S.C. 553(d) is and responsibilities established in the to give affected parties a reasonable time Clean Air Act. This rule also is not (‘‘The Connecticut NOX Budget Program’’), as of September 4, 2007, and to adjust their behavior and prepare subject to Executive Order 13045 of RCSA section 22a–174–22b (‘‘The before the final rule takes effect. Where, ‘‘Protection of Children from as here, the final rule grants an Environmental Health Risks and Safety Connecticut Post-2002 NO Budget X exemption rather than imposing Risks’’ (62 FR 19885, April 23, 1997), Program’’), as of May 1, 2010. Under obligations, and where the effect of the because it approves a state rule this SIP revision, Connecticut will final rule is simply to approve for implementing a Federal standard. participate in the EPA-administered federal purposes obligations that are In reviewing SIP submissions, EPA’s cap-and-trade program for NO ozone- X already effective under state law, role is to approve state choices, season emissions. The SIP revision affected parties, such as the State of provided that they meet the criteria of meets the applicable requirements in 40 Connecticut and CAIR sources within the Clean Air Act. In this context, in the CFR 51.123(o) and (aa), with regard to the State, do not need time to adjust and absence of a prior existing requirement NO ozone season emissions. EPA has X prepare before the rule takes effect. for the State to use voluntary consensus determined that the SIP as revised meets standards (VCS), EPA has no authority the requirements of CAIR. As a VI. Statutory and Executive Order to disapprove a SIP submission for consequence of the SIP approval, the Reviews failure to use VCS. It would thus be Administrator of EPA will also issue, Under Executive Order 12866 (58 FR inconsistent with applicable law for without providing an opportunity for a 51735, October 4, 1993), this action is EPA, when it reviews a SIP submission, public hearing or an additional not a ‘‘significant regulatory action’’ and to use VCS in place of a SIP submission opportunity for written public therefore is not subject to review by the that otherwise satisfies the provisions of comment, a final rule to withdraw the Office of Management and Budget. For the Clean Air Act. Thus, the CAIR FIP concerning NOX ozone-season this reason, this action is also not requirements of section 12(d) of the emissions for Connecticut. That action subject to Executive Order 13211, National Technology Transfer and will delete and reserve 40 CFR 52.386 ‘‘Actions Concerning Regulations That Advancement Act of 1995 (15 U.S.C. in part 52. Significantly Affect Energy Supply, 272 note) do not apply. This rule does Other specific requirements of the Distribution, or Use’’ (66 FR 28355, May not impose an information collection CAIR SIP revision and the rationale for 22, 2001). This action merely approves burden under the provisions of the EPA’s approval are explained in the state law as meeting Federal Paperwork Reduction Act of 1995 (44 NPR and will not be restated here. No requirements and imposes no additional U.S.C. 3501 et seq.) public comments were received on the requirements beyond those imposed by The Congressional Review Act, 5 NPR. state law. Accordingly, the U.S.C. 801 et seq., as added by the Small V. When Is This Action Effective? Administrator certifies that this rule Business Regulatory Enforcement will not have a significant economic Fairness Act of 1996, generally provides EPA finds that there is good cause for impact on a substantial number of small that before a rule may take effect, the this approval to become effective on the entities under the Regulatory Flexibility agency promulgating the rule must date of publication of this action in the Act (5 U.S.C. 601 et seq.). Because this submit a rule report, which includes a Federal Register, because a delayed rule approves pre-existing requirements copy of the rule, to each House of the effective date is unnecessary due to the under state law and does not impose Congress and to the Comptroller General nature of the approval, which allows the any additional enforceable duty beyond of the United States. EPA will submit a State to make allocations under its CAIR that required by state law, it does not report containing this rule and other rules. The expedited effective date for contain any unfunded mandate or required information to the U.S. Senate, this action is authorized under both 5 significantly or uniquely affect small the U.S. House of Representatives, and U.S.C. 553(d)(1), which provides that governments, as described in the the Comptroller General of the United rule actions may become effective less Unfunded Mandates Reform Act of 1995 States prior to publication of the rule in than 30 days after publication if the rule (Pub. L. 104–4). the Federal Register. A major rule ‘‘grants or recognizes an exemption or This rule also does not have tribal cannot take effect until 60 days after it relieves a restriction’’ and 5 U.S.C. implications because it will not have a is published in the Federal Register. 553(d)(3), which allows an effective date substantial direct effect on one or more This action is not a ‘‘major rule’’ as less than 30 days after publication ‘‘as Indian tribes, on the relationship defined by 5 U.S.C. 804(2). otherwise provided by the agency for between the Federal Government and Under section 307(b)(1) of the Clean good cause found and published with Indian tribes, or on the distribution of Air Act, petitions for judicial review of the rule.’’ CAIR SIP approvals exempt power and responsibilities between the this action must be filed in the United states and CAIR sources within states Federal Government and Indian tribes, States Court of Appeals for the from being subject to allowance as specified by Executive Order 13175 appropriate circuit by March 24, 2008. allocation provisions in the CAIR FIPs (65 FR 67249, November 9, 2000). This Filing a petition for reconsideration that otherwise would apply, allowing action also does not have Federalism by the Administrator of this final rule States to make their own allowance implications because it does not have does not affect the finality of this rule allocations based on their SIP-approved substantial direct effects on the States, for the purposes of judicial review nor State rule. The exemption from these on the relationship between the national does it extend the time within which a obligations is sufficient reason to allow government and the States, or on the petition for judicial review may be filed, an expedited effective date of this rule distribution of power and and shall not postpone the effectiveness under 5 U.S.C. 553(d)(1). In addition, responsibilities among the various of such rule or action. This action may Connecticut’s exemption from these levels of government, as specified in not be challenged later in proceedings to

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enforce its requirements. (See section § 52.370 Identification of plan. 2010 shall be subject to enforcement, 307(b)(2).) * * * * * including on or after May 1, 2010, in (c) * * * accordance with applicable law. List of Subjects in 40 CFR Part 52 (80) * * * . * * * * * Environmental protection, Air (i) * * * pollution control, Incorporation by (B) Regulation section 22a–174–22a, (97) Revisions to the State reference, Intergovernmental relations, ‘‘The Nitrogen Oxides (NOX) Budget Implementation Plan submitted by the Nitrogen oxides, Ozone, Particulate Program’’ adopted on December 15, Connecticut Department of matter, Reporting and recordkeeping 1998, and effective on March 3, 1999. Environmental Protection on April 26, requirements, Sulfur dioxide. As of January 24, 2008, Section 22a– 2007 and September 12, 2007. Dated: January 15, 2008. 174–22a is superseded and shall have (i) Incorporation by reference. no prospective effect. Violations of Robert W. Varney, Section 22a–174–22a that occur prior to (A) Regulations of Connecticut State Regional Administrator, EPA New England. January 24, 2008 shall continue to be Agencies (RCSA) section 22a–174–22c I Part 52 of chapter I, title 40 of the subject to enforcement, including on or entitled ‘‘The Clean Air Interstate Rule Code of Federal Regulations is amended after January 24, 2008, in accordance (CAIR) Nitrogen Oxides (NOX) Ozone as follows: with applicable law. Season Trading Program,’’ effective in the State of Connecticut on September * * * * * PART 52—[AMENDED] 4, 2007. (86) * * * I 1. The authority citation for part 52 (iii) Section 22a–174–22b, State of I 3. In § 52.385, Table 52.385 is continues to read as follows: Connecticut Regulation of Department amended by adding new entries to of Environmental Protection Concerning Authority: 42 U.S.C. 7401 et seq. existing state citations for 22a–174–22a The Post-2002 Nitrogen Oxides (NOX) and 22a–174–22b; and by adding a new Subpart H—Connecticut Budget Program, is fully enforceable up state citation for 22a–174–22c to read as to and including April 30, 2010. As of follows: I 2. Section 52.370 is amended by May 1, 2010, Section 22a–174–22b is revising paragraph (c)(80)(i)(B) and superseded and shall have no § 52.385 EPA-approved Connecticut adding paragraphs (c)(86)(iii) and (c)(97) prospective effect. Violations of Section regulations. to read as follows: 22a–174–22b that occur prior to May 1, * * * * *

TABLE 52.385.—EPA-APPROVED REGULATIONS

Dates Connecticut state Title/subject Date Date Federal Register citation Section Comments/description citation adopted approved 52.370 by State by EPA

******* 22a–174–22a ..... The Connecticut NOX 9/04/07 1/24/08 [Insert Federal Register (c)(97) Repealed as of January 24, Budget Program. page number where the 2008. Superseded by document begins]. CAIR.

******* 22a–174–22b ..... The Connecticut Post-2002 9/04/07 1/24/08 [Insert Federal Register (c)(97) Repealed as of May 1, NOX Budget Program, as page number where the 2010. Superseded by of May 1, 2010. document begins]. CAIR. 22a–174–22c ..... The Clean Air Interstate 9/04/07 1/24/08 [Insert Federal Register (c)(97) Rule (CAIR) Nitrogen Ox- page number where the ides (NOX) Ozone Sea- document begins]. son Trading Program.

*******

[FR Doc. E8–1183 Filed 1–23–08; 8:45 am] ENVIRONMENTAL PROTECTION SUMMARY: EPA is taking final action to BILLING CODE 6560–50–P AGENCY approve a revision to the New York State Implementation Plan (SIP) that 40 CFR Part 52 addresses the requirements of EPA’s Clean Air Interstate Rule (CAIR), [EPA–R02–OAR–2007–0913; FRL–8514–9] promulgated on May 12, 2005 and subsequently revised on April 28, 2006, Approval and Promulgation of and December 13, 2006. EPA has Implementation Plans; New York: determined that the SIP revision fully Clean Air Interstate Rule implements the CAIR requirements for New York. As a result of this AGENCY: Environmental Protection rulemaking, EPA will also withdraw, Agency (EPA). through a separate rulemaking, the CAIR Federal Implementation Plans (CAIR ACTION: Final rule. FIPs) concerning sulfur dioxide (SO2),

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nitrogen oxides (NOX) annual, and NOX Interstate Rule (CAIR) and obligations ‘‘interference with maintenance’’ ozone season emissions for New York. under 110(a)(2)(D)(i) for the 8-hour obligations in section 110(a)(2)(D)(i). The CAIR FIPs for all states in the CAIR ozone and fine particle (PM2.5) National Section 110(a)(2)(D)(i) also contains region were promulgated on April 28, Ambient Air Quality Standards requirements related to emissions that 2006 and subsequently revised on (NAAQS). New York’s adoption was interfere with the prevention of December 13, 2006. In addition, EPA is published in the New York Register on significant deterioration of air quality determining that the New York SIP October 10, 2007 (Volume XXIX, Issue (PSD) and visibility protection, and revision satisfies New York’s obligation 41). CAIR did not address states’ obligations under section 110(a)(2)(D)(i) of the EPA has determined that the SIP, as with respect to these two requirements. Clean Air Act (CAA) to prohibit air revised, will meet the applicable In today’s action, EPA is taking final emissions that would interfere with requirements of CAIR. Parts 243, 244 action to determine that the New York provisions to prevent significant and 245 of title 6 of the New York Code SIP satisfies the CAA 110(a)(2)(D)(i) deterioration of air quality. of Rules and Regulations (6NYCRR) requirement that each state is to submit DATES: This rule is effective on January constitute New York State’s CAIR a SIP that prohibits any source or any 24, 2008. program. Part 243 establishes the CAIR other type of emission activity within a NO Ozone Season Trading Program; state from emitting pollutants in ADDRESSES: EPA has established a X Part 244 establishes the CAIR NO amounts that will interfere with docket for this action under Docket ID X Annual Trading Program; and Part 245 provisions to prevent significant No. EPA–R02–OAR–2007–0913. All establishes the CAIR SO Trading deterioration of air quality. EPA is documents in the docket are available 2 Program. taking no action to determine whether online at www.regulations.gov. As a result of this action, the the New York SIP satisfies the visibility Although listed in the index, some Administrator of EPA will also issue a protection requirements in information is not publicly available, final rule to withdraw the FIPs 110(a)(2)(D)(i) of the CAA because it is i.e., Confidential Business Information concerning SO2, NOX annual, and NOX not possible at this time for New York (CBI) or other information whose ozone season emissions for New York. to accurately determine whether there is disclosure is restricted by statute. The Administrator’s action will delete interference with measures in another Certain other material, such as and reserve 40 CFR 52.1684 and 40 CFR state’s SIP to protect visibility. New copyrighted material, is not placed on 52.1685, relating to the CAIR FIP York will need to address the visibility the Internet and will be publicly obligations for New York. The protection requirements once the available only in hard copy form. withdrawal of the CAIR FIPs for New regional haze SIP is completed and Publicly available docket materials are York is a conforming amendment that submitted to EPA. available either electronically in must be made once the SIP is approved www.regulations.gov or in hard copy at because EPA’s authority to issue the B. When did EPA propose to approve the Air Programs Branch, FIPs was premised on a deficiency in New York’s SIP revision? Environmental Protection Agency, the SIP for New York. Once the SIP is EPA proposed to approve New York’s Region 2 Office, 290 Broadway, 25th fully approved, EPA no longer has request to amend the SIP on October 1, Floor, New York, New York 10007– authority for the FIPs. Thus, EPA will 2007 (72 FR 55723). The comment 1866. not have the option of maintaining the period closed on October 31, 2007. One FOR FURTHER INFORMATION CONTACT: Mr. FIPs following the full SIP approval. comment was received and is addressed Kenneth Fradkin, Environmental Accordingly, EPA does not intend to in Section I.C. below. offer an opportunity for a public hearing Protection Agency, Region 2 Office, 290 C. What are the public comments on or an additional opportunity for written Broadway, 25th Floor, New York, New EPA’s proposal? York 10007–1866, phone number (212) public comment on the withdrawal of 637–3702 or by e-mail at: the FIPs. The following is a summary of the [email protected]. In addition, as EPA determined in the comments received on the proposed final CAIR, EPA’s conclusion that the rule published on October 1, 2007 (72 SUPPLEMENTARY INFORMATION: revised SIP meets the applicable FR 55723), and EPA’s response. Table of Contents requirements of CAIR is also sufficient Comment: On October 30, 2007, the to demonstrate that the New York SIP Connecticut Department of I. EPA’s Action satisfies the requirements in section Environmental Protection (CTDEP) A. What action is EPA approving? submitted adverse comments on EPA’s B. When did EPA propose to approve New 110(a)(2)(D)(i) of the Clean Air Act York’s SIP revision? (CAA) with regard to ‘‘significant proposed rule to approve New York’s C. What are the public comments on EPA’s contribution’’ and ‘‘interference with CAIR SIP. CTDEP indicates that the proposal? maintenance’’. Section 110(a)(2)(D)(i) State is encouraged by the efforts of D. Where is additional information requires, among other things, that each New York and other states to adopt available on EPA’s action? state submit a SIP that prohibits any programs to meet the emission II. Conclusion source or any other type of emission reduction requirements of CAIR, and III. When Is This Action Effective? activity within a state from emitting urges EPA approval. However, it argues IV. Statutory and Executive Order Reviews pollutants in amounts that will: (1) that before approving state plans with I. EPA’s Action contribute significantly to downwind respect to CAA 110(a)(2)(D), EPA should nonattainment of the NAAQS and (2) evaluate individually and in the A. What action is EPA approving? interfere with maintenance of the aggregate each state’s clean air EPA is taking final action to approve NAAQS. Because EPA previously programs. They argue such evaluation is a revision to New York’s SIP which was determined in the CAIR that states will necessary to ensure that each state’s approved for adoption by New York’s meet these two obligations by emissions do not significantly State Environmental Board on August complying with the applicable CAIR contribute to ozone nonattainment in 28, 2007 and submitted as a SIP revision requirements, EPA is not taking any Connecticut or any other state. CTDEP on September 17, 2007. New York’s final action in this notice with regard to expresses concern that EPA is revision addresses the Clean Air the ‘‘significant contribution’’ and determining through this and other

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similar rulemakings that CAIR programs D. Where is additional information Cap-and-Trade Programs in New York. are sufficient to meet states’ section available on EPA’s action? The expedited effective date for this 110(a)(2)(D)(i) obligations. CTDEP A detailed analysis of New York’s SIP action is authorized under both 5 U.S.C. asserts, based on EPA and State submittal pertaining to New York’s 553(d)(1), which provides that rule modeling for CAIR, that the levels of CAIR program and the requirements of actions may become effective less than transported pollution remaining after section 110(a)(2)(D)(i) of the CAA is 30 days after publication if the rule ’’grants or recognizes an exemption or CAIR implementation are large enough available in the October 1, 2007 relieves a restriction’’ and section 5 that, even with local controls, it may be Proposed Rulemaking (72 FR 55723). A U.S.C. 553(d)(3), which allows an difficult for Connecticut to attain the 8- copy of the rulemaking is available in effective date less than 30 days after hour ozone NAAQS by 2010. Finally, the EPA docket. CTDEP questions EPA’s determination publication ‘‘as otherwise provided by that highly cost effective controls are II. Conclusion the agency for good cause found and adequate to address states’ section EPA is taking final action to approve published with the rule.’’ CAIR SIP 110(a)(2)(D)(i) obligations as compared New York’s full CAIR SIP revision approvals relieve states and CAIR to ‘‘reasonable cost’’ controls that could submitted on September 17, 2007. sources within states from being subject be achieved to effect more stringent Under this SIP revision, New York is to allowance allocation provisions in the CAIR FIPs that otherwise would NO reductions. choosing to participate in the EPA X apply to them, allowing States to make administered cap-and-trade program for Response: EPA does not agree that it their own allowance allocations based SO , NO annual, and NO ozone is appropriate or necessary for EPA to 2 X X on their SIP-approved State rule. The season emissions. The SIP revision conduct additional analysis before relief from these obligations is sufficient meets the applicable requirements in 40 approving the New York CAIR SIP reason to allow an expedited effective CFR 51.123(o) and (aa), with regard to revision. Under this SIP revision, New date of this rule under 5 U.S.C. NO annual and NO ozone season York has chosen to participate in the X X 553(d)(1). In addition, New York’s relief emissions, and 40 CFR 51.124(o), with EPA administered cap-and-trade from these obligations provides good regard to SO emissions. The revision program for SO , NO annual, and NO 2 cause to make this rule effective on 2 X X includes three emission cap-and-trade ozone season emissions. EPA has January 24, 2008, pursuant to 5 U.S.C. rules, 6 NYCRR Parts 243, 244, and 245, evaluated this SIP revision and has 553(d)(3). The purpose of the 30-day effective on October 19, 2007, which determined that it complies with the waiting period prescribed in 5 U.S.C. implement the State’s CAIR Cap-and- applicable requirements in 40 CFR 553(d) is to give affected parties a Trade Programs in New York. EPA has 51.123(o) and (aa), with regard to NO reasonable time to adjust their behavior X determined that the SIP, as revised, will annual and NOX ozone season and prepare before the final rule takes meet the requirements of CAIR. The effect. Where, as here, the final rule emissions, and 40 CFR 51.124(o), with Administrator of EPA has also issued a regard to SO2 emissions. CTDEP does relieves obligations rather than imposes direct final rule to automatically obligations, affected parties, such as the not challenge this determination. Thus, withdraw the CAIR FIPs concerning CTDEP’s comments do not specifically State of New York and CAIR sources SO2, NOX annual, and NOX ozone within the State, do not need time to pertain to any aspect of EPA’s proposed season emissions for New York State action to approve New York’s CAIR SIP adjust and prepare before the rule takes upon the effective date of EPA’s effect. revision. Rather, the comments appear approval of a full state SIP revision that to be directed broadly at EPA’s meets the requirements of CAIR. This IV. Statutory and Executive Order decisions with regard to states’ section action will delete and reserve 40 CFR Reviews 110(a)(2)(D)(i) obligations. These 52.1684 and 40 CFR 52.1685. Under Executive Order 12866 (58 FR decisions were made by EPA in the In addition, EPA is also taking final 51735, October 4, 1993), this action is context of the CAIR rulemaking, which action to determine that the New York not a ‘‘significant regulatory action’’ and was promulgated on May 12, 2005 (70 SIP satisfies the requirement in section therefore is not subject to review by the FR 25162), not in the proposed action to 110(a)(2)(D)(i) of the Clean Air Act Office of Management and Budget. For approve New York’s CAIR SIP revision. (CAA) that requires each state to submit this reason, this action is also not Therefore, CTDEP’s comments are not a SIP that prohibits any source or any subject to Executive Order 13211, relevant to the proposed action. CTDEP other type of emission activity within a ‘‘Actions Concerning Regulations That had ample opportunity to submit state from emitting pollutants in Significantly Affect Energy Supply, comments both during the comment amounts that will interfere with Distribution, or Use’’ (66 FR 28355, May period for the proposed CAIR provisions to prevent significant 22, 2001). This action merely approves rulemaking of January 30, 2004 (69 FR deterioration of air quality. EPA is not state law as meeting Federal 4566) and during the comment period taking action to determine whether the requirements and would impose no for the proposed CAIR FIP of August 24, New York SIP satisfies the additional requirements beyond those 2005 (70 FR 49708). EPA’s proposal to 110(a)(2)(D)(i) requirement regarding imposed by state law. Accordingly, the approve New York’s CAIR SIP did not visibility protection. This requirement Administrator certifies that this rule reopen either the CAIR or CAIR FIP will be re-evaluated after regional haze would not have a significant economic rulemakings. Consequently, CTDEP’s SIPs are completed and approved by impact on a substantial number of small comments are not relevant to this EPA. entities under the Regulatory Flexibility rulemaking, or timely with respect to Act (5 U.S.C. 601 et seq.). Because this the CAIR and CAIR FIP rulemakings. III. When Is This Action Effective? action approves pre-existing Thus, EPA does not believe it is EPA finds that there is good cause for requirements under state law and would necessary to conduct additional analysis this approval to become effective on not impose any additional enforceable on whether New York or any other state January 24, 2008, because a delayed duty beyond that required by state law, satisfies the requirements of 110(a)(2)(D) effective date is unnecessary due to the it does not contain any unfunded before approving the New York CAIR nature of the approval, which allows the mandate or significantly or uniquely SIP submission. State to implement the State’s CAIR affect small governments, as described

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in the Unfunded Mandates Reform Act not impose an information collection PART 52—[AMENDED] of 1995 (Pub. L. 104–4). burden under the provisions of the I This rule also does not have tribal Paperwork Reduction Act of 1995 (44 1. The authority citation for part 52 implications because it would not have U.S.C. 3501 et seq.). continues to read as follows: a substantial direct effect on one or The Congressional Review Act, 5 Authority: 42 U.S.C. 7401, et seq. more Indian tribes, on the relationship U.S.C. 801, et seq., as added by the between the Federal Government and Small Business Regulatory Enforcement Subpart HH—New York Indian tribes, or on the distribution of Fairness Act of 1996, generally provides I 2. Section 52.1670 is amended by power and responsibilities between the that before a rule may take effect, the adding new paragraph (c)(113) to read Federal Government and Indian tribes, agency promulgating the rule must as follows: as specified by Executive Order 13175 submit a rule report, which includes a (65 FR 67249, November 9, 2000). This copy of the rule, to each House of the § 52.1670 Identification of plans. action also does not have Federalism Congress and to the Comptroller General * * * * * implications because it would not have of the United States. EPA will submit a (c) * * * substantial direct effects on the states, report containing this rule and other (113) A revision to the State on the relationship between the national required information to the U.S. Senate, Implementation Plan that was submitted government and the states, or on the the U.S. House of Representatives, and on September 17, 2007 by the New York distribution of power and the Comptroller General of the United State Department of Environmental responsibilities among the various States prior to publication of the rule in Conservation (NYSDEC). This revision levels of government, as specified in the Federal Register. A major rule consists of regulations to meet the Executive Order 13132 (64 FR 43255, cannot take effect until 60 days after it requirements of the Clean Air Interstate August 10, 1999). This action merely is published in the Federal Register. Rule (CAIR). This revision also approves a state rule implementing a This action is not a ‘‘major rule’’ as addresses New York’s 110(a)(2)(D)(i) Federal standard and will result, as a defined by 5 U.S.C. 804(2). obligations to submit a SIP revision that consequence of that approval, in the Under section 307(b)(1) of the CAA, contains adequate provisions to prohibit Administrator’s withdrawal of the CAIR petitions for judicial review of this air emissions from adversely affecting FIP. It does not alter the relationship or action must be filed in the United States another state’s air quality through the distribution of power and Court of Appeals for the appropriate interstate transport. responsibilities established in the Clean circuit by March 24, 2008. Filing a (i) Incorporation by reference: Air Act. This rule also is not subject to petition for reconsideration by the (A) Part 243, CAIR NOX Ozone Season Executive Order 13045 ‘‘Protection of Administrator of this final rule does not Trading Program, Part 244, CAIR NOX Children from Environmental Health affect the finality of this rule for the Annual Trading Program, and Part 245, Risks and Safety Risks’’ (62 FR 19885, purposes of judicial review nor does it CAIR SO2 Trading Program, effective on April 23, 1997), because it would extend the time within which a petition October 19, 2007, of Title 6 of the New approve a state rule implementing a for judicial review may be filed, and York Code of Rules and Regulations Federal Standard. shall not postpone the effectiveness of (NYCRR). In reviewing SIP submissions, EPA’s such rule or action. This action may not (B) Notice of Adoption, New York role is to approve state choices, be challenged later in proceedings to State Clean Air Interstate Rule, addition provided that they meet the criteria of enforce its requirements. (See section of Parts 243, 244 and 245 to Title 6 the Clean Air Act. In this context, in the 307(b)(2)). NYCRR, New York State Register, dated absence of a prior existing requirement List of Subjects in 40 CFR Part 52 October 10, 2007, pages 16–22. for the state to use voluntary consensus (ii) Additional information: standards (VCS), EPA has no authority Environmental protection, Air (A) Letter dated September 14, 2007 to disapprove a SIP submission for pollution control, Electric utilities, from Assistant Commissioner J. Jared failure to use VCS. It would thus be Incorporation by reference, Snyder, NYSDEC, to Alan J. Steinberg, inconsistent with applicable law for Intergovernmental relations, Nitrogen RA, EPA Region II, submitting the SIP EPA, when it reviews a SIP submission, oxides, Ozone, Particulate matter, revision. to use VCS in place of a SIP submission Reporting and recordkeeping I 3. In § 52.1679, the table is amended that otherwise satisfies the provisions of requirements, Sulfur dioxide. by adding under Title 6 entries for Parts the Clean Air Act. Thus, the Dated: December 31, 2007. 243, 244, and 245 in numerical order to requirements of section 12(d) of the Alan J. Steinberg, read as follows: National Technology Transfer and Regional Administrator, Region 2. Advancement Act of 1995 (15 U.S.C. § 52.1679 EPA—approved New York State 272 note) do not apply. This rule would I 40 CFR part 52 is amended as follows: regulations.

State effective State regulation date EPA approved date Comments

Title 6

******* Part 243, CAIR NOX Ozone Season Trading Program ...... 10/19/07 1/24/08, [Insert FR page citation]. Part 244, CAIR NOX Annual Trading Program ...... 10/19/07 1/24/08, [insert FR page citation]. Part 245, CAIR SO2 Trading Program ...... 10/19/07 1/24/08, [insert FR page citation].

*******

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[FR Doc. E8–802 Filed 1–23–08; 8:45 am] announcing the effective date of the rule PART 225—FOREIGN ACQUISITION BILLING CODE 6560–50–P changes requiring OMB approval. 225.103 [Amended] Federal Communications Commission. I Marlene H. Dortch, 3. Section 225.103 is amended in FEDERAL COMMUNICATIONS Secretary. paragraph (a)(ii)(B) introductory text, by removing ‘‘225.872–4(b)’’ and adding in COMMISSION [FR Doc. E8–1163 Filed 1–23–08; 8:45 am] its place ‘‘PGI 225.872–4’’. 47 CFR Part 73 BILLING CODE 6712–01–P [FR Doc. E8–1102 Filed 1–23–08; 8:45 am] [MM Docket No. 98–203; FCC 01–306] BILLING CODE 5001–08–P DEPARTMENT OF DEFENSE Ancillary or Supplementary Use of Digital Television Capacity by Defense Acquisition Regulations DEPARTMENT OF DEFENSE Noncommercial Licensees System Defense Acquisition Regulations AGENCY: Federal Communications System Commission. 48 CFR Parts 204 and 225 ACTION: Final rule; announcement of Defense Federal Acquisition 48 CFR Parts 204 and 244 effective date. Regulation Supplement; Technical RIN 0750–AF61 SUMMARY: The Federal Communications Amendments Defense Federal Acquisition Commission adopted rules concerning AGENCY: Defense Acquisition Regulation Supplement; Closeout of the provision of ancillary and Regulations System, Department of Contract Files (DFARS Case 2006– supplementary services by Defense (DoD). D045) noncommercial educational television ACTION: Final rule. licensees. The changes to the rules AGENCY: Defense Acquisition require Office of Management and SUMMARY: DoD is making technical Regulations System, Department of Budget (OMB) approval to become amendments to the Defense Federal Defense (DoD). effective. This document announces that Acquisition Regulation Supplement ACTION: Final rule. the Commission has received OMB (DFARS) to update an office symbol and approval for these rules. a cross-reference. SUMMARY: DoD has issued a final rule DATES: The changes to the rules DATES: Effective Date: January 24, 2008. amending the Defense Federal published on November 26, 2001, 66 FR FOR FURTHER INFORMATION CONTACT: Ms. Acquisition Regulation Supplement 58982, amending 47 CFR 73.624(g)(2)(i) Michele Peterson, Defense Acquisition (DFARS) to remove text addressing DoD are effective January 24, 2008. Regulations System, procedures for closeout of contract files. FOR FURTHER INFORMATION CONTACT: For OUSD(AT&L)DPAP(DARS), IMD 3D139, Text on this subject has been relocated information on this proceeding, contact 3062 Defense Pentagon, Washington, DC to the DFARS companion resource, Kim Matthews, [email protected], 20301–3062. Telephone 703–602–0311; Procedures, Guidance, and Information. (202) 418–2154, of the Federal facsimile 703–602–7887. DATES: Effective Date: January 24, 2008. Communications Commission, Media SUPPLEMENTARY INFORMATION: This final FOR FURTHER INFORMATION CONTACT: Ms. Bureau. Questions concerning the OMB rule amends DFARS text as follows: Deborah Tronic, Defense Acquisition Æ control number should be directed to Section 204.7005. Updates the Regulations System, Cathy Williams, Federal office symbol for the Defense Logistics OUSD(AT&L)DPAP(DARS), IMD 3D139, Communications Commission, (202) Agency order code monitor. Æ 3062 Defense Pentagon, Washington, DC 418–2918, [email protected]. Section 225.103. Updates a cross- 20301–3062. Telephone 703–602–0289; SUPPLEMENTARY INFORMATION: The reference. facsimile 703–602–7887. Please cite Federal Communications Commission List of Subjects in 48 CFR Parts 204 and DFARS Case 2006–D045. has received OMB approval for the rule 225 SUPPLEMENTARY INFORMATION: changes published at 66 FR 58982, Government procurement. November 26, 2001. Through this A. Background document, the Commission announces Michele P. Peterson, This final rule revises DFARS 204.804 that it received this approval on July 7, Editor, Defense Acquisition Regulations to remove text addressing DoD 2003. System. procedures for closeout of contract files. In a Report and Order, released on I Therefore, 48 CFR Parts 204 and 225 Text on this subject has been relocated October 17, 2001, and published in the are amended as follows: to the DFARS companion resource, Federal Register on November 26, 2001, I 1. The authority citation for 48 CFR Procedures, Guidance, and Information 66 FR 58982, the Federal parts 204 and 225 continues to read as (PGI), at http://www.acq.osd.mil/dpap/ Communications Commission adopted follows: dars/dfarspgi/current/index.html. In rules that contained information Authority: 41 U.S.C. 421 and 48 CFR addition, the rule amends DFARS collection requirements subject to the Chapter 1. 244.304 to clarify an existing reference Paperwork Reduction Act. On July 7, to corresponding PGI text. 2003, the Office of Management and PART 204—ADMINISTRATIVE DoD published a proposed rule at 72 Budget approved the information MATTERS FR 14256 on March 27, 2007. DoD collection requirements contained in 47 received no comments on the proposed CFR 73.624(g)(2)(i). This information 204.7005 [Amended] rule. Therefore, DoD has adopted the collection is assigned OMB Control I 2. Section 204.7005 is amended in proposed rule as a final rule without Number 3060–0906. This publication paragraph (c), in the entry ‘‘Defense change. satisfies the requirement that the Logistics Agency’’, by removing ‘‘(J– This rule was not subject to Office of Commission publish a document 3311)’’ and adding in its place ‘‘(J71)’’. Management and Budget review under

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Executive Order 12866, dated DEPARTMENT OF DEFENSE 41 U.S.C. 418b is not required. September 30, 1993. However, DoD will consider comments Defense Acquisition Regulations from small entities concerning the B. Regulatory Flexibility Act System affected DFARS subparts in accordance DoD certifies that this final rule will with 5 U.S.C. 610. Such comments not have a significant economic impact 48 CFR Parts 207 and 212 should cite DFARS Case 2007–D005. on a substantial number of small entities RIN 0750–AF78 C. Paperwork Reduction Act within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., Defense Federal Acquisition The Paperwork Reduction Act does because the rule pertains to Regulation Supplement; Commercial not apply, because the rule does not administrative procedures for contract Item Determinations (DFARS Case impose any information collection closeout functions performed by the 2007–D005) requirements that require the approval Government. of the Office of Management and Budget AGENCY: Defense Acquisition under 44 U.S.C. 3501, et seq. C. Paperwork Reduction Act Regulations System, Department of The Paperwork Reduction Act does Defense (DoD). List of Subjects in 48 CFR Parts 207 and not apply, because the rule does not ACTION: Final rule. 212 impose any information collection Government procurement. requirements that require the approval SUMMARY: DoD has issued a final rule of the Office of Management and Budget amending the Defense Federal Michele P. Peterson, under 44 U.S.C. 3501, et seq. Acquisition Regulation Supplement Editor, Defense Acquisition Regulations (DFARS) to address requirements for System. List of Subjects in 48 CFR Parts 204 and DoD contracting officers to ensure that 244 an item meets the definition of I Therefore, 48 CFR parts 207 and 212 Government procurement. ‘‘commercial item’’ specified in the are amended as follows: Federal Acquisition Regulation (FAR), Michele P. Peterson, when using commercial item I 1. The authority citation for 48 CFR Editor, Defense Acquisition Regulations procedures for acquisitions exceeding parts 207 and 212 continues to read as System. $1 million in value. follows: I Therefore, 48 CFR parts 204 and 244 DATES: Effective Date: January 24, 2008. Authority: 41 U.S.C. 421 and 48 CFR are amended as follows: FOR FURTHER INFORMATION CONTACT: Mr. Chapter 1. I 1. The authority citation for 48 CFR Michael Benavides, Defense Acquisition PART 207—ACQUISITION PLANNING parts 204 and 244 continues to read as Regulations System, follows: OUSD(AT&L)DPAP(DARS), IMD 3D139, 3062 Defense Pentagon, Washington, DC I 2. Section 207.102 is added to read as Authority: 41 U.S.C. 421 and 48 CFR follows: Chapter 1. 20301–3062. Telephone 703–602–1302; facsimile 703–602–7887. Please cite 207.102 Policy. PART 204—ADMINISTRATIVE DFARS Case 2007–D005. MATTERS SUPPLEMENTARY INFORMATION: (a)(1) See 212.102 regarding requirements for a written I 2. Section 204.804 is revised to read A. Background determination that the commercial item as follows: FAR Part 12, Acquisition of definition has been met when using Commercial Items, applies to the FAR Part 12 procedures. 204.804 Closeout of contract files. acquisition of supplies or services that Contracting officers shall close out meet the definition of ‘‘commercial PART 212—ACQUISITION OF contracts in accordance with the item’’ in FAR 2.101. To emphasize the COMMERCIAL ITEMS procedures at PGI 204.804. The closeout applicability of FAR Part 12, this date for file purposes shall be DFARS rule specifies that, when using I 3. Subpart 212.1 is added to read as determined and documented by the FAR Part 12 procedures for acquisitions follows: procuring contracting officer. exceeding $1 million in value, the Subpart 212.1—Acquisition of contracting officer must determine in 204.804–1 and 204.804–2 [Removed] Commercial Items—General writing that the acquisition meets the I 3. Sections 204.804–1 and 204.804–2 commercial item definition in FAR 212.102 Applicability. are removed. 2.101, and the contracting officer must include the written determination in the (a)(i) When using FAR Part 12 PART 244—SUBCONTRACTING contract file. procedures for acquisitions exceeding POLICIES AND PROCEDURES This rule was not subject to Office of $1 million in value, the contracting Management and Budget review under officer shall— I 4. Section 244.304 is amended in Executive Order 12866, dated paragraph (b) by revising the second (A) Determine in writing that the September 30, 1993. sentence to read as follows: acquisition meets the commercial item definition in FAR 2.101; and B. Regulatory Flexibility Act 244.304 Surveillance. (B) Include the written determination This rule will not have a significant (b) * * * See PGI 244.304(b) for in the contract file. cost or administrative impact on guidance on how weaknesses may arise contractors or offerors, or a significant (ii) Follow the procedures at PGI and may be discovered. effect beyond the internal operating 212.102(a) regarding file documentation. [FR Doc. E8–1093 Filed 1–23–08; 8:45 am] procedures of DoD. Therefore, [FR Doc. E8–1121 Filed 1–23–08; 8:45 am] BILLING CODE 5001–08–P publication for public comment under BILLING CODE 5001–08–P

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DEPARTMENT OF DEFENSE on a substantial number of small entities PART 252—SOLICITATION within the meaning of the Regulatory PROVISIONS AND CONTRACT Defense Acquisition Regulations Flexibility Act, 5 U.S.C. 601, et seq., CLAUSES System because the rule removes DFARS text that has become obsolete as a result of 252.222–7006 [Removed] 48 CFR Parts 212, 222, and 252 changes that have been made to the I 6. Section 252.222–7006 is removed. RIN 0750–AF11 FAR. [FR Doc. E8–1120 Filed 1–23–08; 8:45 am] C. Paperwork Reduction Act BILLING CODE 5001–08–P Defense Federal Acquisition Regulation Supplement; Combating This final rule eliminates the Trafficking in Persons (DFARS Case information collection requirements DEPARTMENT OF DEFENSE 2004–D017) previously approved by the Office of Management and Budget under Control Defense Acquisition Regulations AGENCY: Defense Acquisition System Regulations System, Department of Number 0704–0440. Defense (DoD). List of Subjects in 48 CFR Parts 212, 48 CFR Part 225 ACTION: Final rule. 222, and 252 RIN 0750–AF89 SUMMARY: DoD has issued a final rule Government procurement. amending the Defense Federal Defense Federal Acquisition Acquisition Regulation Supplement Michele P. Peterson, Regulation Supplement; Trade (DFARS) to remove text addressing Editor, Defense Acquisition Regulations Agreements—New Thresholds (DFARS prohibitions on contractor activities System. Case 2007–D023) involving trafficking in persons. The I Therefore, 48 CFR parts 212, 222, and AGENCY: Defense Acquisition DFARS text is no longer necessary, 252 are amended as follows: since policy on this subject has been Regulations System, Department of I added to the Federal Acquisition 1. The authority citation for 48 CFR Defense (DoD). Regulation (FAR). parts 212, 222, and 252 continues to ACTION: Interim rule with request for read as follows: DATES: Effective Date: January 24, 2008. comments. FOR FURTHER INFORMATION CONTACT: Ms. Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. SUMMARY: DoD has issued an interim Felisha Hitt, Defense Acquisition rule amending the Defense Federal Regulations System, PART 212—ACQUISITION OF Acquisition Regulation Supplement OUSD(AT&L)DPAP(DARS), IMD 3D139, COMMERCIAL ITEMS (DFARS) to incorporate increased dollar 3062 Defense Pentagon, Washington, DC thresholds for application of the World 20301–3062. Telephone 703–602–0310; 212.301 [Amended] Trade Organization Government facsimile 703–602–7887. Please cite Procurement Agreement and the Free I 2. Section 212.301 is amended as DFARS Case 2004–D017. Trade Agreements, as determined by the follows: SUPPLEMENTARY INFORMATION: United States Trade Representative. I a. By removing paragraph (f)(x); and A. Background DATES: Effective date: January 24, 2008. I b. By redesignating paragraphs (f)(xi) Comment date: Comments on the DoD published an interim rule at 71 through (f)(xiii) as paragraphs (f)(x) interim rule should be submitted in FR 62560 on October 26, 2006, adding through (f)(xii) respectively. writing to the address shown below on DFARS Subpart 222.17 and a or before March 24, 2008, to be corresponding contract clause at DFARS PART 222—APPLICATION OF LABOR considered in the formation of the final 252.222–7006, to implement DoD policy LAWS TO GOVERNMENT rule. prohibiting DoD contractors from ACQUISITIONS engaging in activities that support or ADDRESSES: You may submit comments, promote trafficking in persons. The 222.1700 through 222.1702 [Removed] identified by DFARS Case 2007–D023, DFARS text is no longer necessary, as a using any of the following methods: I Æ result of the FAR rule published at 72 3. Sections 222.1700 through Federal eRulemaking Portal: FR 46335 on August 17, 2007. The FAR 222.1702 are removed. http://www.regulations.gov. Follow the rule addresses Governmentwide zero I instructions for submitting comments. 4. Sections 222.1703 and 222.1704 are Æ tolerance policy with regard to revised to read as follows: E-mail: [email protected]. Include trafficking in persons, and includes a DFARS Case 2007-D023 in the subject contract clause for use in all 222.1703 Policy. line of the message. Æ Fax: 703–602–7887. solicitations and contracts. Therefore, See PGI 222.1703 for additional Æ Mail: Defense Acquisition this final rule removes the DFARS text information regarding DoD policy for Regulations System, Attn: Ms. Amy published on October 26, 2006, except combating trafficking in persons outside Williams, OUSD(AT&L)DPAP(DARS), for references to internal DoD the United States. procedures regarding the combating of IMD 3D139, 3062 Defense Pentagon, trafficking in persons. 222.1704 Violations and remedies. Washington, DC 20301–3062. This rule was not subject to Office of Æ Hand Delivery/Courier: Defense Follow the procedures at PGI Management and Budget review under Acquisition Regulations System, Crystal 222.1704 for notifying the Combatant Executive Order 12866, dated Square 4, Suite 200A, 241 18th Street, Commander if a violation occurs. September 30, 1993. Arlington, VA 22202–3402. 222.1704–70 and 222.1705 [Removed] Comments received generally will be B. Regulatory Flexibility Act posted without change to http:// DoD certifies that this final rule will I 5. Sections 222.1704–70 and 222.1705 www.regulations.gov, including any not have a significant economic impact are removed. personal information provided.

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FOR FURTHER INFORMATION CONTACT: Ms. 225.7503 to reflect increased dollar States Trade Representative has Amy Williams, 703–602–0328. thresholds for application of the trade specified the following new thresholds, SUPPLEMENTARY INFORMATION: agreements. Every two years, the trade as published at 72 FR 71166 on agreements thresholds are escalated December 14, 2007, and corrected at 72 A. Background according to a pre-determined formula FR 73904 on December 28, 2007: This interim rule amends the clause set forth in the agreements. The United prescriptions at DFARS 225.1101 and

Supply Construction contract contract Trade agreement (equal to or (equal to or exceeding) exceeding)

World Trade Organization Government Procurement Agreement ...... $194,000 $7,443,000 Free Trade Agreements: Australia Free Trade Agreement ...... 67,826 7,443,000 Bahrain Free Trade Agreement ...... 194,000 8,817,449 Dominican Republic-Central America-United States Free Trade Agreement (El Salvador, Dominican Re- public, Guatemala, Honduras, and Nicaragua) ...... 67,826 7,443,000 Chile Free Trade Agreement ...... 67,826 7,443,000 Morocco Free Trade Agreement ...... 194,000 7,443,000 North American Free Trade Agreement: Canada ...... $25,000 8,817,449 Mexico ...... 67,826 8,817,449 Singapore Free Trade Agreement ...... 67,826 7,443,000

This rule was not subject to Office of rule incorporates increased dollar 225.7503 Contract clauses. Management and Budget review under thresholds for application of the World * * * * * Executive Order 12866, dated Trade Organization Government (b) Use the clause at 252.225–7045, September 30, 1993. Procurement Agreement and the Free Balance of Payments Program— Trade Agreements, as determined by the Construction Material Under Trade B. Regulatory Flexibility Act United States Trade Representative. The Agreements, in solicitations and DoD does not expect this rule to have increased thresholds became effective contracts for construction to be a significant economic impact on a on January 1, 2008. Comments received performed outside the United States substantial number of small entities in response to this interim rule will be with a value of $7,443,000 or more. For within the meaning of the Regulatory considered in the formation of the final acquisitions with a value of $7,443,000 Flexibility Act, 5 U.S.C. 601, et seq., rule. or more, but less than $8,817,449, use because the trade agreement threshold the clause with its Alternate I. List of Subjects in 48 CFR Part 225 changes are designed to keep pace with [FR Doc. E8–1103 Filed 1–23–08; 8:45 am] inflation and thus maintain the status Government procurement. BILLING CODE 5001–08–P quo. Therefore, DoD has not performed an initial regulatory flexibility analysis. Michele P. Peterson, DoD invites comments from small Editor, Defense Acquisition Regulations DEPARTMENT OF DEFENSE businesses and other interested parties. System. DoD also will consider comments from I Therefore, 48 CFR part 225 is Defense Acquisition Regulations small entities concerning the affected amended as follows: System DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be PART 225—FOREIGN ACQUISITION 48 CFR Parts 232 and 252 submitted separately and should cite I RIN 0750–AF76 DFARS Case 2007–D023. 1. The authority citation for 48 CFR part 225 continues to read as follows: C. Paperwork Reduction Act Defense Federal Acquisition Authority: 41 U.S.C. 421 and 48 CFR Regulation Supplement; Payment This rule affects the certification and Chapter 1. Withholding—Deletion of Duplicative information collection requirements in Text (DFARS Case 2007–D010) the provisions at DFARS 252.225–7020 225.1101 [Amended] and 252.225–7035, currently approved I 2. Section 225.1101 is amended as AGENCY: Defense Acquisition under Office of Management and Budget follows: Regulations System, Department of Control Number 0704–0229. The I a. In paragraph (10)(i) introductory Defense (DoD). impact, however, is negligible. The text by removing ‘‘$193,000’’ and ACTION: Final rule. dollar threshold changes are in line with adding in its place ‘‘$194,000’’; and inflation and maintain the status quo. I b. In paragraphs (10)(i)(A) and (B) by SUMMARY: DoD has issued a final rule removing ‘‘$64,786’’ and adding in its amending the Defense Federal D. Determination To Issue an Interim place ‘‘$67,826’’. Acquisition Regulation Supplement Rule I 3. Section 225.7503 is amended as (DFARS) to remove text addressing A determination has been made under follows: withholding of payments under time- the authority of the Secretary of I a. In paragraph (a) by removing and-materials and labor-hour contracts. Defense, that urgent and compelling ‘‘$7,407,000’’ and adding in its place The DFARS text is no longer necessary, reasons exist to publish an interim rule ‘‘$7,443,000’’; and since similar policy has been added to prior to affording the public an I b. By revising paragraph (b) to read as the Federal Acquisition Regulation opportunity to comment. This interim follows: (FAR).

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DATES: Effective Date: January 24, 2008. PART 232—CONTRACT FINANCING Æ Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal FOR FURTHER INFORMATION CONTACT: Ms. 232.111 [Removed] Robin Schulze, Defense Acquisition Square 4, Suite 200A, 241 18th Street, Regulations System, I 2. Section 232.111 is removed. Arlington, VA 22202–3402. OUSD(AT&L)DPAP(DARS), IMD 3D139, Comments received generally will be PART 252—SOLICITATION 3062 Defense Pentagon, Washington, DC posted without change to http:// PROVISIONS AND CONTRACT www.regulations.gov, including any 20301–3062. Telephone 703–602–0326; CLAUSES personal information provided. facsimile 703–602–7887. Please cite FOR FURTHER INFORMATION CONTACT: Mr. DFARS Case 2007–D010. 252.232–7006 [Removed and Reserved] Mark Gomersall, 703–602–0302. SUPPLEMENTARY INFORMATION: I 3. Section 252.232–7006 is removed SUPPLEMENTARY INFORMATION: and reserved. A. Background A. Background [FR Doc. E8–1091 Filed 1–23–08; 8:45 am] DFARS 232.111 and 252.232–7006 This interim rule implements Section BILLING CODE 5001–08–P provide that, under time-and-materials 818 of the National Defense and labor-contracts, there normally Authorization Act for Fiscal Year 2007 should be no need to withhold payment (Pub. L. 109–364). Section 818 requires DEPARTMENT OF DEFENSE for a contractor with a record of timely DoD to modify regulations regarding the submittal of a release discharging the Defense Acquisition Regulations determination of contract type for Government from all liabilities, System development programs. Such obligations, and claims under the regulations must require the Milestone contract. Similar policy was added to 48 CFR Parts 234 and 235 Decision Authority for a major defense FAR 32.111 and 52.232–7 in the final acquisition program to select the rule published at 70 FR 43580 on July RIN 0750–AF79 contract type for a development 27, 2005. Therefore, the DFARS text is program that is consistent with the level no longer necessary, and sections Defense Federal Acquisition of program risk. The Milestone Decision 232.111 and 252.232–7006 are removed. Regulation Supplement; Research and Authority may select a fixed-price type This rule was not subject to Office of Development Contract Type contract, including a fixed-price Management and Budget review under Determination (DFARS Case 2006– incentive contract; or a cost-type Executive Order 12866, dated D053) contract, provided certain written September 30, 1993. AGENCY: Defense Acquisition determination requirements are satisfied. B. Regulatory Flexibility Act Regulations System, Department of Defense (DoD). The rule adds policy at DFARS This rule will not have a significant 234.004 to implement the requirements ACTION: Interim rule with request for cost or administrative impact on of Section 818 of Public Law 109–364, comments. contractors or offerors, or a significant applicable to major defense acquisition effect beyond the internal operating SUMMARY: DoD has issued an interim programs, and updates the policy at procedures of DoD. Therefore, rule amending the Defense Federal 235.006 to address requirements for publication for public comment under Acquisition Regulation Supplement other than major defense acquisition 41 U.S.C. 418b is not required. (DFARS) to implement Section 818 of programs. However, DoD will consider comments the National Defense Authorization Act This rule was not subject to Office of from small entities concerning the for Fiscal Year 2007. Section 818 Management and Budget review under affected DFARS subparts in accordance requires DoD to modify regulations Executive Order 12866, dated with 5 U.S.C. 610. Such comments regarding the determination of contract September 30, 1993. should cite DFARS Case 2007–D010. type for major development programs to B. Regulatory Flexibility Act address assessment of program risk. C. Paperwork Reduction Act DoD does not expect this rule to have DATES: Effective date: January 24, 2008. a significant economic impact on a The Paperwork Reduction Act does Comment date: Comments on the not apply, because the rule does not substantial number of small entities interim rule should be submitted in within the meaning of the Regulatory impose any information collection writing to the address shown below on requirements that require the approval Flexibility Act, 5 U.S.C. 601, et seq., or before March 24, 2008, to be because the rule relates to internal DoD of the Office of Management and Budget considered in the formation of the final under 44 U.S.C. 3501, et seq. considerations and documentation rule. requirements relating to the selection of List of Subjects in 48 CFR Parts 232 and ADDRESSES: You may submit comments, contract type for development programs. 252 identified by DFARS Case 2006–D053, Therefore, DoD has not performed an using any of the following methods: Government procurement. initial regulatory flexibility analysis. Æ Federal eRulemaking Portal: DoD invites comments from small Michele P. Peterson, http://www.regulations.gov. Follow the businesses and other interested parties. Editor, Defense Acquisition Regulations instructions for submitting comments. DoD also will consider comments from System. Æ E-mail: [email protected]. Include small entities concerning the affected DFARS Case 2006–D053 in the subject I Therefore, 48 CFR parts 232 and 252 DFARS subparts in accordance with 5 line of the message. are amended as follows: U.S.C. 610. Such comments should be Æ Fax: 703–602–7887. submitted separately and should cite I 1. The authority citation for 48 CFR Æ Mail: Defense Acquisition DFARS Case 2006–D053. parts 232 and 252 continues to read as Regulations System, Attn: Mr. Mark follows: Gomersall, OUSD(AT&L)DPAP(DARS), C. Paperwork Reduction Act Authority: 41 U.S.C. 421 and 48 CFR IMD 3D139, 3062 Defense Pentagon, The Paperwork Reduction Act does Chapter 1. Washington, DC 20301–3062. not apply, because the rule does not

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impose any information collection (B) If program risk is determined to be obtain USD(AT&L) approval of the requirements that require the approval high, shall outline the steps taken to negotiated agreement with the of the Office of Management and Budget reduce program risk and the reasons for contractor before the agreement is under 44 U.S.C. 3501, et seq. proceeding with Milestone B approval executed, for any action that is— despite the high level of program risk; (1) An increase of more than $250 D. Determination To Issue an Interim and million in the price or ceiling price of Rule (iii) If a cost-type contract is selected, a fixed-price type development contract, A determination has been made under the contract file shall include the or a fixed-price type contract for the the authority of the Secretary of Defense Milestone Decision Authority’s written lead ship of a class; that urgent and compelling reasons exist determination that— (2) A reduction in the amount of work to publish an interim rule prior to (A) The program is so complex and under a fixed-price type development affording the public an opportunity to technically challenging that it would contract or a fixed-price type contract comment. This interim rule implements not be practicable to reduce program for the lead ship of a class, when the Section 818 of the National Defense risk to a level that would permit the use value of the work deleted is $100 Authorization Act for Fiscal Year 2007 of a fixed-price type contract; and million or more; or (Pub. L. 109–364). Section 818 requires (B) The complexity and technical (3) A repricing of fixed-price type DoD to modify regulations regarding the challenge of the program is not the production options to a development determination of contract type for major result of a failure to meet the contract, or a contract for the lead ship development programs to address requirements of 10 U.S.C. 2366a. of a class, that increases the price or requirements for selection of the ceiling price by more than $250 million contract type that is consistent with the PART 235—RESEARCH AND for equivalent quantities. level of program risk. Comments DEVELOPMENT CONTRACTING [FR Doc. E8–1092 Filed 1–23–08; 8:45 am] received in response to this interim rule BILLING CODE 5001–08–P will be considered in the formation of I 3. Section 235.006 is revised to read the final rule. as follows: List of Subjects in 48 CFR Parts 234 and 235.006 Contracting methods and contract DEPARTMENT OF COMMERCE 235 type. (b)(i) For major defense acquisition National Oceanic and Atmospheric Government procurement. programs as defined in 10 U.S.C. 2430— Administration Michele P. Peterson, (A) Follow the procedures at 234.004; 50 CFR Part 229 Editor, Defense Acquisition Regulations and System. (B) Notify the Under Secretary of [Docket No. 080117051–8053–01] Defense (Acquisition, Technology, and I Therefore, 48 CFR parts 234 and 235 RIN 0648–XF17 are amended as follows: Logistics) (USD(AT&L)) of an intent not to exercise a fixed-price production I 1. The authority citation for 48 CFR Taking of Marine Mammals Incidental option on a development contract for a parts 234 and 235 continues to read as to Commercial Fishing Operations; major weapon system reasonably in follows: Atlantic Large Whale Take Reduction advance of the expiration of the option Plan Authority: 41 U.S.C. 421 and 48 CFR exercise period. Chapter 1. (ii) For other than major defense AGENCY: National Marine Fisheries acquisition programs— Service (NMFS), National Oceanic and PART 234—MAJOR SYSTEM (A) Do not award a fixed-price type Atmospheric Administration (NOAA), ACQUISITION contract for a development program Commerce. I 2. Section 234.004 is revised to read effort unless— ACTION: Temporary rule. as follows: (1) The level of program risk permits realistic pricing; SUMMARY: The Assistant Administrator 234.004 Acquisition strategy. (2) The use of a fixed-price type for Fisheries (AA), NOAA, announces (1) See 209.570 for policy applicable contract permits an equitable and temporary restrictions consistent with to acquisition strategies that consider sensible allocation of program risk the requirements of the Atlantic Large the use of lead system integrators. between the Government and the Whale Take Reduction Plan’s (2) In accordance with Section 818 of contractor; and (ALWTRP) implementing regulations. the National Defense Authorization Act (3) A written determination that the These regulations apply to lobster trap/ for Fiscal Year 2007 (Pub. L. 109–364), criteria of paragraphs (b)(ii)(A)(1) and pot and anchored gillnet fishermen in for major defense acquisition programs (2) of this section have been met is an area totaling approximately 2,251 2 2 as defined in 10 U.S.C. 2430— executed— nm (7,720 km ), southeast of (i) The Milestone Decision Authority (i) By the USD(AT&L) if the contract Portsmouth, New Hampshire, for 15 shall select, with the advice of the is over $25 million and is for: research days. The purpose of this action is to contracting officer, the contract type for and development for a non-major provide protection to an aggregation of a development program at the time of system; the development of a major northern right whales (right whales). Milestone B approval or, in the case of system (as defined in FAR 2.101); or the DATES: Effective beginning at 0001 hours a space program, Key Decision Point B development of a subsystem of a major January 26, 2008, through 2400 hours approval; system; or February 9, 2008. (ii) The basis for the contract type (ii) By the contracting officer for any ADDRESSES: Copies of the proposed and selection shall be documented in the development not covered by paragraph final Dynamic Area Management (DAM) acquisition strategy. The (b)(ii)(A)(3)(i) of this section. rules, Environmental Assessments documentation— (B) Obtain USD(AT&L) approval of (EAs), Atlantic Large Whale Take (A) Shall include an explanation of the Government’s prenegotiation Reduction Team (ALWTRT) meeting the level of program risk; and position before negotiations begin, and summaries, and progress reports on

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implementation of the ALWTRP may any additional gear in the DAM zone 42° 56′ N., 69° 39′ W. also be obtained by writing Diane during the 15–day period. 42° 56′ N., 69° 33′ W. Borggaard, NMFS/Northeast Region, A DAM zone is triggered when NMFS 42° 16′ N., 69° 33′ W. One Blackburn Drive, Gloucester, MA receives a reliable report from a 42° 16′ N., 70° 33′ W. 01930. qualified individual of three or more 42° 56′ N., 70° 33′ W. right whales sighted within an area (75 42° 56′ N., 70° 29′ W. FOR FURTHER INFORMATION CONTACT: nm2 (139 km2)) such that right whale 43° 09′ N., 70° 29′ W. (NW Corner) Diane Borggaard, NMFS/Northeast density is equal to or greater than 0.04 In addition to those gear Region, 978–281–9300 x6503; or Kristy right whales per nm2 (1.85 km2). A modifications currently implemented Long, NMFS, Office of Protected qualified individual is an individual under the ALWTRP at 50 CFR 229.32, Resources, 301–713–2322. ascertained by NMFS to be reasonably the following gear modifications are SUPPLEMENTARY INFORMATION: able, through training or experience, to required in the DAM zone. If the Electronic Access identify a right whale. Such individuals requirements and exceptions for gear include, but are not limited to, NMFS modification in the DAM zone, as Several of the background documents staff, U.S. Coast Guard and Navy described below, differ from other for the ALWTRP and the take reduction personnel trained in whale ALWTRP requirements for any planning process can be downloaded identification, scientific research survey overlapping areas and times, then the from the ALWTRP web site at http:// personnel, whale watch operators and more restrictive requirements will apply www.nero.noaa.gov/whaletrp/. naturalists, and mariners trained in in the DAM zone. whale species identification through Background Lobster Trap/pot Gear disentanglement training or some other The ALWTRP was developed training program deemed adequate by Fishermen utilizing lobster trap/pot pursuant to section 118 of the Marine NMFS. A reliable report would be a gear within the portions of Northern Mammal Protection Act (MMPA) to credible right whale sighting. Nearshore Lobster Waters, Northern reduce the incidental mortality and On January 13, 2008, an aerial survey Inshore State Lobster Waters, and the serious injury of three endangered reported two aggregations of right Stellwagen Bank/Jeffrey’s Ledge species of whales (right, fin, and whales, totaling seven individuals: four Restricted Area that overlap with the humpback) due to incidental interaction whales in the proximity of 42° 37′ N. DAM zone are required to utilize all of with commercial fishing activities. In latitude and 70° 01′ W. longitude, and the following gear modifications while addition, the measures identified in the three whales in the proximity of 42° 51′ the DAM zone is in effect: ALWTRP would provide conservation N. latitude and 70° 04′ W. longitude. 1. Groundlines must be made of either benefits to a fourth species (minke), These positions lie northeast of Boston, sinking or neutrally buoyant line. which are neither listed as endangered Massachusetts, and southeast of Floating groundlines are prohibited; nor threatened under the Endangered Portsmouth, New Hampshire, 2. All buoy lines must be made of Species Act (ESA). The ALWTRP, respectively. After conducting an either sinking or neutrally buoyant line, implemented through regulations investigation, NMFS ascertained that except the bottom portion of the line, codified at 50 CFR 229.32, relies on a the report came from a qualified which may be a section of floating line combination of fishing gear individual and determined that the not to exceed one-third the overall modifications and time/area closures to report was reliable. Thus, NMFS has length of the buoy line; reduce the risk of whales becoming received a reliable report from a 3. Fishermen are allowed to use two entangled in commercial fishing gear qualified individual of the requisite buoy lines per trawl; and (and potentially suffering serious injury right whale density to trigger the DAM 4. A weak link with a maximum or mortality as a result). provisions of the ALWTRP. breaking strength of 600 lb (272.4 kg) On January 9, 2002, NMFS published Once a DAM zone is triggered, NMFS must be placed at all buoys. the final rule to implement the determines whether to impose Fishermen utilizing lobster trap/pot ALWTRP’s DAM program (67 FR 1133). restrictions on fishing and/or fishing gear within the portion of the Offshore On August 26, 2003, NMFS amended gear in the zone. This determination is Lobster Waters Area that overlap with the regulations by publishing a final based on the following factors, the DAM zone are required to utilize all rule, which specifically identified gear including but not limited to: the of the following gear modifications modifications that may be allowed in a location of the DAM zone with respect while the DAM zone is in effect: DAM zone (68 FR 51195). The DAM to other fishery closure areas, weather 1. Groundlines must be made of either program provides specific authority for conditions as they relate to the safety of sinking or neutrally buoyant line. NMFS to restrict temporarily on an human life at sea, the type and amount Floating groundlines are prohibited; expedited basis the use of lobster trap/ of gear already present in the area, and 2. All buoy lines must be made of pot and anchored gillnet fishing gear in a review of recent right whale either sinking or neutrally buoyant line, ° areas north of 40 N. lat. to protect right entanglement and mortality data. except the bottom portion of the line, whales. Under the DAM program, NMFS has reviewed the factors and which may be a section of floating line NMFS may: (1) require the removal of management options noted above not to exceed one-third the overall all lobster trap/pot and anchored gillnet relative to the DAM under length of the buoy line; fishing gear for a 15–day period; (2) consideration. As a result of this review, 3. Fishermen are allowed to use two allow lobster trap/pot and anchored NMFS prohibits lobster trap/pot and buoy lines per trawl; and gillnet fishing within a DAM zone with anchored gillnet gear in this area during 4. A weak link with a maximum gear modifications determined by NMFS the 15–day restricted period unless it is breaking strength of 1,500 lb (680.4 kg) to sufficiently reduce the risk of modified in the manner described in must be placed at all buoys. entanglement; and/or (3) issue an alert this temporary rule. Anchored Gillnet Gear to fishermen requesting the voluntary The DAM Zone is bound by the removal of all lobster trap/pot and following coordinates: Fishermen utilizing anchored gillnet anchored gillnet gear for a 15–day 43° 09′ N., 70° 29′ W. (NW Corner) gear within the portions of Other period and asking fishermen not to set 43° 09′ N., 69° 39′ W. Northeast Gillnet Waters and the

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Stellwagen Bank/Jeffrey’s Ledge December 28, 2001, and August 6, 2003. restrictions) their gear from a DAM zone Restricted Area that overlap with the This action falls within the scope of the once one is approved. Thus, NMFS DAM zone are required to utilize all the analyses of these EAs, which are makes this action effective 2 days after following gear modifications while the available from the agency upon request. the date of publication of this document DAM zone is in effect: NMFS provided prior notice and an in the Federal Register. NMFS will also 1. Groundlines must be made of either opportunity for public comment on the endeavor to provide notice of this action sinking or neutrally buoyant line. regulations establishing the criteria and to fishermen through other means upon Floating groundlines are prohibited; procedures for implementing a DAM issuance of the rule by the AA, thereby 2. All buoy lines must be made of zone. Providing prior notice and providing approximately 3 additional either sinking or neutrally buoyant line, opportunity for comment on this action, days of notice while the Office of the except the bottom portion of the line, pursuant to those regulations, would be Federal Register processes the which may be a section of floating line impracticable because it would prevent document for publication. not to exceed one-third the overall NMFS from executing its functions to NMFS determined that the regulations length of the buoy line; protect and reduce serious injury and establishing the DAM program and 3. Fishermen are allowed to use two mortality of endangered right whales. actions such as this one taken pursuant buoy lines per string; The regulations establishing the DAM to those regulations are consistent to the 4. The breaking strength of each net program are designed to enable the maximum extent practicable with the panel weak link must not exceed 1,100 agency to help protect unexpected enforceable policies of the approved lb (498.8 kg). The weak link concentrations of right whales. In order coastal management program of the U.S. requirements apply to all variations in to meet the goals of the DAM program, Atlantic coastal states. This net panel size. One weak link must be the agency needs to be able to create a determination was submitted for review placed in the center of the floatline and DAM zone and implement restrictions by the responsible state agencies under one weak link must be placed in the on fishing gear as soon as possible once section 307 of the Coastal Zone center of each of the up and down lines the criteria are triggered and NMFS Management Act. Following state at both ends of the net panel. determines that a DAM restricted zone review of the regulations creating the Additionally, one weak link must be is appropriate. If NMFS were to provide DAM program, no state disagreed with placed as close as possible to each end prior notice and an opportunity for NMFS’ conclusion that the DAM of the net panels on the floatline; or, one public comment upon the creation of a program is consistent to the maximum weak link must be placed between DAM restricted zone, the aggregated extent practicable with the enforceable floatline tie-loops between net panels right whales would be vulnerable to policies of the approved coastal and one weak link must be placed entanglement which could result in management program for that state. where the floatline tie-loops attach to serious injury and mortality. The DAM program under which the bridle, buoy line, or groundline at Additionally, the right whales would each end of a net string; NMFS is taking this action contains most likely move on to another location policies with federalism implications 5. A weak link with a maximum before NMFS could implement the breaking strength of 1,100 lb (498.8 kg) warranting preparation of a federalism restrictions designed to protect them, assessment under Executive Order must be placed at all buoys; and thereby rendering the action obsolete. 6. All anchored gillnets, regardless of 13132. Accordingly, in October 2001 Therefore, pursuant to 5 U.S.C. the number of net panels, must be and March 2003, the Assistant Secretary 553(b)(B), the AA finds that good cause securely anchored with the holding for Intergovernmental and Legislative exists to waive prior notice and an power of at least a 22 lb (10.0 kg) Affairs, Department of Commerce, opportunity to comment on this action Danforth-style anchor at each end of the provided notice of the DAM program to implement a DAM restricted zone to net string. and its amendments to the appropriate The restrictions will be in effect reduce the risk of entanglement of elected officials in states to be affected beginning at 0001 hours January 26, endangered right whales in commercial by actions taken pursuant to the DAM 2008, through 2400 hours February 9, lobster trap/pot and anchored gillnet program. Federalism issues raised by 2008, unless terminated sooner or gear as such procedures would be state officials were addressed in the extended by NMFS through another impracticable. final rules implementing the DAM notification in the Federal Register. For the same reasons, the AA finds program. A copy of the federalism The restrictions will be announced to that, under 5 U.S.C. 553(d)(3), good Summary Impact Statement for the final state officials, fishermen, ALWTRT cause exists to waive the 30–day delay rules is available upon request members, and other interested parties in effective date. If NMFS were to delay (ADDRESSES). through e-mail, phone contact, NOAA for 30 days the effective date of this The rule implementing the DAM website, and other appropriate media action, the aggregated right whales program has been determined to be not immediately upon issuance of the rule would be vulnerable to entanglement, significant under Executive Order by the AA. which could cause serious injury and 12866. mortality. Additionally, right whales Classification would likely move to another location Authority: 16 U.S.C. 1361 et seq. and 50 CFR 229.32(g)(3) In accordance with section 118(f)(9) of between the time NMFS approved the the MMPA, the Assistant Administrator action creating the DAM restricted zone Dated: January 17, 2008. (AA) for Fisheries has determined that and the time it went into effect, thereby John Oliver, this action is necessary to implement a rendering the action obsolete and Deputy Assistant Administrator for take reduction plan to protect North ineffective. Nevertheless, NMFS Operations, National Marine Fisheries Atlantic right whales. recognizes the need for fishermen to Service. Environmental Assessments for the have time to either modify or remove (if [FR Doc. 08–262 Filed 1–18–08; 2:32 pm] DAM program were prepared on not in compliance with the required BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 73, No. 16

Thursday, January 24, 2008

This section of the FEDERAL REGISTER • Fax: (202) 493–2251. Discussion contains notices to the public of the proposed • Mail: U.S. Department of issuance of rules and regulations. The The European Aviation Safety Agency purpose of these notices is to give interested Transportation, Docket Operations, M– (EASA), which is the Technical Agent persons an opportunity to participate in the 30, West Building Ground Floor, Room for the Member States of the European rule making prior to the adoption of the final W12–140, 1200 New Jersey Avenue, SE., Community, has issued EASA AD No.: rules. Washington, DC 20590. 2007–0285, dated November 13, 2007 • Hand Delivery: U.S. Department of (referred to after this as ‘‘the MCAI’’), to Transportation, Docket Operations, M– correct an unsafe condition for the DEPARTMENT OF TRANSPORTATION 30, West Building Ground Floor, Room specified products. The MCAI states: Federal Aviation Administration W12–140, 1200 New Jersey Avenue, SE., A CAP 10B experienced an emergency Washington, DC 20590, between 9 a.m. landing after its front fuel tank collapsed and rendered inoperative the left rudder pedals 14 CFR Part 39 and 5 p.m., Monday through Friday, except Federal holidays. which were blocked in neutral position. [Docket No. FAA–2008–0056; Directorate Investigation and the metallurgical Identifier 2007–CE–096–AD] Examining the AD Docket examination revealed that the fuel tank straps had fractured as a result of fatigue. The tank RIN 2120–AA64 You may examine the AD docket on support straps had logged around 7000 hours the Internet at http:// time-in-service (TIS). Airworthiness Directives; APEX www.regulations.gov; or in person at the DGAC France Airworthiness Directive (AD) Aircraft Model CAP 10 B Airplanes Docket Management Facility between 9 F–2004–071 was issued to introduce a 4000 hour life-limit for the tank support straps and AGENCY: Federal Aviation a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD to require replacement of straps which had Administration (FAA), Department of exceeded this life-limit. Transportation (DOT). docket contains this proposed AD, the regulatory evaluation, any comments Since then, a front tank support has been ACTION: Notice of proposed rulemaking found damaged during an inspection before received, and other information. The (NPRM). reaching 4000 hours TIS. street address for the Docket Office The present AD supersedes DGAC France SUMMARY: We propose to adopt a new (telephone (800) 647–5527) is in the AD F–2004–071, reduces to 2000 hours the airworthiness directive (AD) for the ADDRESSES section. Comments will be life-limit for the tank support straps and products listed above. This proposed available in the AD docket shortly after requires replacement of straps which have AD results from mandatory continuing receipt. exceeded the new life-limit. airworthiness information (MCAI) These actions are intended to address the FOR FURTHER INFORMATION CONTACT: identified unsafe condition so as to prevent originated by an aviation authority of Sarjapur Nagarajan, Aerospace Engineer, fatigue cracks from occurring in the tank another country to identify and correct FAA, Small Airplane Directorate, 901 support straps before the established safe life an unsafe condition on an aviation Locust, Room 301, Kansas City, is reached. product. The MCAI describes the unsafe Missouri 64106; telephone: (816) 329– condition as: The MCAI requires the life-limit of the 4145; fax: (816) 329–4090. front fuel tank strap be reduced from A CAP 10B experienced an emergency SUPPLEMENTARY INFORMATION: 4,000 hours TIS to 2,000 hours TIS and landing after its front fuel tank collapsed and the replacement of front fuel tank straps rendered inoperative the left rudder pedals Comments Invited that have exceeded the new life-limit. which were blocked in neutral position. You may obtain further information Investigation and the metallurgical We invite you to send any written examination revealed that the fuel tank straps relevant data, views, or arguments about by examining the MCAI in the AD had fractured as a result of fatigue. The tank this proposed AD. Send your comments docket. support straps had logged around 7000 hours to an address listed under the Relevant Service Information time-in-service (TIS). ADDRESSES section. Include ‘‘Docket No. DGAC France Airworthiness Directive (AD) APEX Aircraft has issued Service F–2004–071 was issued to introduce a 4000 FAA–2008–0056; Directorate Identifier Bulletin No. 040102 R1, Revision 1, hour life-limit for the tank support straps and 2007–CE–096–AD’’ at the beginning of dated September 18, 2007. The actions to require replacement of straps which had your comments. We specifically invite described in this service information are exceeded this life-limit. comments on the overall regulatory, intended to correct the unsafe condition Since then, a front tank support has been economic, environmental, and energy identified in the MCAI. found damaged during an inspection before aspects of this proposed AD. We will reaching 4000 hours TIS. consider all comments received by the FAA’s Determination and Requirements The proposed AD would require actions closing date and may amend this of the Proposed AD that are intended to address the unsafe proposed AD because of those This product has been approved by condition described in the MCAI. comments. the aviation authority of another DATES: We must receive comments on We will post all comments we country, and is approved for operation this proposed AD by February 25, 2008. receive, without change, to http:// in the United States. Pursuant to our ADDRESSES: You may send comments by www.regulations.gov, including any bilateral agreement with this State of any of the following methods: personal information you provide. We Design Authority, they have notified us • Federal eRulemaking Portal: Go to will also post a report summarizing each of the unsafe condition described in the http://www.regulations.gov. Follow the substantive verbal contact we receive MCAI and service information instructions for submitting comments. about this proposed AD. referenced above. We are proposing this

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AD because we evaluated all under Executive Order 13132. This examination revealed that the fuel tank straps information and determined the unsafe proposed AD would not have a had fractured as a result of fatigue. The tank condition exists and is likely to exist or substantial direct effect on the States, on support straps had logged around 7000 hours develop on other products of the same the relationship between the national time-in-service (TIS). DGAC France Airworthiness Directive (AD) F–2004–071 type design. Government and the States, or on the was issued to introduce a 4000 hour life-limit distribution of power and Differences Between This Proposed AD for the tank support straps and to require responsibilities among the various and the MCAI or Service Information replacement of straps which had exceeded levels of government. this life-limit. Since then, a front tank We have reviewed the MCAI and For the reasons discussed above, I support has been found damaged during an related service information and, in certify this proposed regulation: inspection before reaching 4000 hours TIS. general, agree with their substance. But 1. Is not a ‘‘significant regulatory The present AD supersedes DGAC France AD we might have found it necessary to use action’’ under Executive Order 12866; F–2004–071, reduces to 2000 hours the life- different words from those in the MCAI 2. Is not a ‘‘significant rule’’ under the limit for the tank support straps and requires replacement of straps which have exceeded to ensure the AD is clear for U.S. DOT Regulatory Policies and Procedures the new life-limit. These actions are intended operators and is enforceable. In making (44 FR 11034, February 26, 1979); and to address the identified unsafe condition so these changes, we do not intend to differ 3. Will not have a significant as to prevent fatigue cracks from occurring in substantively from the information economic impact, positive or negative, the tank support straps before the established provided in the MCAI and related on a substantial number of small entities safe life is reached. service information. under the criteria of the Regulatory The MCAI requires the life-limit of the front We might also have proposed Flexibility Act. fuel tank strap be reduced from 4,000 hours different actions in this AD from those We prepared a regulatory evaluation TIS to 2,000 hours TIS and the replacement in the MCAI in order to follow FAA of the estimated costs to comply with of front fuel tank straps that have exceeded policies. Any such differences are this proposed AD and placed it in the the new life-limit. highlighted in a NOTE within the AD docket. Actions and Compliance proposed AD. List of Subjects in 14 CFR Part 39 (f) Unless already done, do the following Costs of Compliance actions: Air transportation, Aircraft, Aviation (1) When you accumulate a total of 2,000 Based on the service information, we safety, Safety. hours TIS on the strap or within the next 30 estimate that this proposed AD would days after the effective date of this AD, affect about 31 products of U.S. registry. The Proposed Amendment whichever occurs later, replace the front fuel We also estimate that it would take Accordingly, under the authority tank support strap, part number (P/N) CAP about 19 work-hours per product to delegated to me by the Administrator, 10–70–08–01, using the instructions in the comply with the basic requirements of the FAA proposes to amend 14 CFR part maintenance manual. (2) Repetitively thereafter within intervals this proposed AD. The average labor 39 as follows: not to exceed 2,000 hours TIS on the strap rate is $80 per work-hour. Required replace the front fuel tank support strap, P/ parts would cost about $65 per product. PART 39—AIRWORTHINESS N CAP 10–70–08–01, using the instructions Based on these figures, we estimate DIRECTIVES in the maintenance manual. the cost of the proposed AD on U.S. 1. The authority citation for part 39 (3) If you are unable to establish the accumulated hours TIS on the front fuel tank operators to be $49,135, or $1,585 per continues to read as follows: product. support strap, P/N CAP 10–70–08–01, you Authority: 49 U.S.C. 106(g), 40113, 44701. must use the total hours TIS accumulated on Authority for This Rulemaking the airplane for the accumulated hours TIS § 39.13 [Amended] Title 49 of the United States Code on the strap. (4) Within the next 30 days after the specifies the FAA’s authority to issue 2. The FAA amends § 39.13 by adding the following new AD: effective date of this AD update the rules on aviation safety. Subtitle I, airworthiness limitations section of your section 106, describes the authority of Apex Aircraft: Docket No. FAA–2008–0056; maintenance program to reflect the life limit the FAA Administrator. ‘‘Subtitle VII: Directorate Identifier 2007–CE–096–AD. change of P/N CAP 10–70–08–01 from 4,000 Aviation Programs,’’ describes in more Comments Due Date hours TIS to 2,000 hours TIS using APEX detail the scope of the Agency’s Aircraft Service Bulletin No. 040102 R1, (a) We must receive comments by February Revision 1, dated September 18, 2007. authority. 25, 2008. We are issuing this rulemaking under FAA AD Differences the authority described in ‘‘Subtitle VII, Affected ADs Note: This AD differs from the MCAI and/ Part A, Subpart III, Section 44701: (b) None. or service information as follows: The FAA General requirements.’’ Under that Applicability has established a more universal compliance section, Congress charges the FAA with time for all airplanes. This gives all owners/ promoting safe flight of civil aircraft in (c) This AD applies to CAP 10 B airplanes, all serial numbers, certificated in any operators at least 30 days to comply with the air commerce by prescribing regulations category. AD. for practices, methods, and procedures the Administrator finds necessary for Subject Other FAA AD Provisions safety in air commerce. This regulation (d) Air Transport Association of America (g) The following provisions also apply to is within the scope of that authority (ATA) Code 28: Fuel. this AD: (1) Alternative Methods of Compliance because it addresses an unsafe condition Reason that is likely to exist or develop on (AMOCs): The Manager, Standards Office, (e) The mandatory continuing FAA, has the authority to approve AMOCs products identified in this rulemaking airworthiness information (MCAI) states: for this AD, if requested using the procedures action. A CAP 10B experienced an emergency found in 14 CFR 39.19. Send information to Regulatory Findings landing after its front fuel tank collapsed and ATTN: Sarjapur Nagarajan, Aerospace rendered inoperative the left rudder pedals Engineer, FAA, Small Airplane Directorate, We determined that this proposed AD which were blocked in neutral position. 901 Locust, Room 301, Kansas City, Missouri would not have federalism implications Investigation and the metallurgical 64106–; telephone: (816) 329–4145; fax: (816)

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329–4090. Before using any approved AMOC reinstallation, was reported to the Type closing date and may amend this on any airplane to which the AMOC applies, Certificate Holder (TCH) and led to the proposed AD because of those notify your appropriate principal inspector issuance of the ‘‘recommended’’ Service comments. (PI) in the FAA Flight Standards District Bulletin (SB) No. 031004 in February 2004. We will post all comments we Office (FSDO), or lacking a PI, your local Since that date, other similar occurrences receive, without change, to http:// FSDO. have been reported. This SB in its revision (2) Airworthy Product: For any requirement 1, has therefore been reclassified www.regulations.gov, including any in this AD to obtain corrective actions from ‘‘mandatory’’ by the TCH. personal information you provide. We a manufacturer or other source, use these will also post a report summarizing each actions if they are FAA-approved. Corrective The proposed AD would require actions substantive verbal contact we receive actions are considered FAA-approved if they that are intended to address the unsafe about this proposed AD. are approved by the State of Design Authority condition described in the MCAI. (or their delegated agent). You are required DATES: We must receive comments on Discussion to assure the product is airworthy before it this proposed AD by February 25, 2008. The European Aviation Safety Agency is returned to service. ADDRESSES: (EASA), which is the Technical Agent (3) Reporting Requirements: For any You may send comments by any of the following methods: for the Member States of the European reporting requirement in this AD, under the • provisions of the Paperwork Reduction Act Federal eRulemaking Portal: Go to Community, has issued EASA AD No.: (44 U.S.C. 3501 et. seq.), the Office of http://www.regulations.gov. Follow the 2007–0296, dated December 7, 2007 Management and Budget (OMB) has instructions for submitting comments. (referred to after this as ‘‘the MCAI’’), to approved the information collection • Fax: (202) 493–2251. correct an unsafe condition for the requirements and has assigned OMB Control • Mail: U.S. Department of specified products. The MCAI states: Number 2120–0056. Transportation, Docket Operations, M– A case of loose bond (ungluing) of one Related Information 30, West Building Ground Floor, Room mounting wooden block of the control stick (h) Refer to MCAI European Aviation W12–140, 1200 New Jersey Avenue, SE., base cover, found during the cover Safety Agency AD No.: 2007–0285, dated Washington, DC 20590. reinstallation, was reported to the Type November 13, 2007; and APEX Aircraft • Hand Delivery: U.S. Department of Certificate Holder (TCH) and led to the Service Bulletin No. 040102 R1, Revision 1, Transportation, Docket Operations, M– issuance of the ‘‘recommended’’ Service Bulletin (SB) No. 031004 in February 2004. dated September 18, 2007, for related 30, West Building Ground Floor, Room information. Since that date, other similar occurrences W12–140, 1200 New Jersey Avenue, SE., have been reported. This SB in its revision Issued in Kansas City, Missouri, on January Washington, DC 20590, between 9 a.m. 1, has therefore been reclassified 16, 2008. and 5 p.m., Monday through Friday, ‘‘mandatory’’ by the TCH. James E. Jackson, except Federal holidays. This Airworthiness Directive (AD) mandates inspection of the mounting blocks Acting Manager, Small Airplane Directorate, Examining the AD Docket Aircraft Certification Service. of the control stick base cover for loose bonds and repair, as necessary. [FR Doc. E8–1161 Filed 1–23–08; 8:45 am] You may examine the AD docket on These actions are intended to address the BILLING CODE 4910–13–P the Internet at http:// www.regulations.gov; or in person at the identified unsafe condition so as to prevent separation of the mounting blocks from the Docket Management Facility between 9 wing spar which could result in restricted DEPARTMENT OF TRANSPORTATION a.m. and 5 p.m., Monday through movement of the ailerons and elevators with Friday, except Federal holidays. The AD possible partial or complete loss of controls. Federal Aviation Administration docket contains this proposed AD, the regulatory evaluation, any comments The MCAI requires an inspection of the 14 CFR Part 39 received, and other information. The four mounting wooden blocks of the street address for the Docket Office control stick base cover. You are to take [Docket No. FAA–2008–0057; Directorate (telephone (800) 647–5527) is in the corrective action by repairing any loose Identifier 2007–CE–102–AD] blocks where inspection indicates ADDRESSES section. Comments will be RIN 2120–AA64 available in the AD docket shortly after necessary. receipt. You may obtain further information Airworthiness Directives; APEX by examining the MCAI in the AD FOR FURTHER INFORMATION CONTACT: Aircraft Model CAP 10 B Airplanes docket. Sarjapur Nagarajan, Aerospace Engineer, AGENCY: Federal Aviation FAA, Small Airplane Directorate, 901 Relevant Service Information Administration (FAA), Department of Locust, Room 301, Kansas City, APEX Aircraft has issued service Transportation (DOT). Missouri 64106; telephone: (816) 329– bulletin No. 031004 R1, Revision 1, ACTION: Notice of proposed rulemaking 4145; fax: (816) 329–4090. dated November 12, 2007. The actions (NPRM). SUPPLEMENTARY INFORMATION: described in this service information are intended to correct the unsafe condition Comments Invited SUMMARY: We propose to adopt a new identified in the MCAI. airworthiness directive (AD) for the We invite you to send any written products listed above. This proposed relevant data, views, or arguments about FAA’s Determination and Requirements AD results from mandatory continuing this proposed AD. Send your comments of the Proposed AD airworthiness information (MCAI) to an address listed under the This product has been approved by originated by an aviation authority of ADDRESSES section. Include ‘‘Docket No. the aviation authority of another another country to identify and correct FAA–2008–0057; Directorate Identifier country, and is approved for operation an unsafe condition on an aviation 2007–CE–102–AD’’ at the beginning of in the United States. Pursuant to our product. The MCAI describes the unsafe your comments. We specifically invite bilateral agreement with this State of condition as: comments on the overall regulatory, Design Authority, they have notified us A case of loose bond (ungluing) of one economic, environmental, and energy of the unsafe condition described in the mounting wooden block of the control stick aspects of this proposed AD. We will MCAI and service information base cover, found during the cover consider all comments received by the referenced above. We are proposing this

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AD because we evaluated all Regulatory Findings Reason information and determined the unsafe We determined that this proposed AD (e) The mandatory continuing condition exists and is likely to exist or would not have federalism implications airworthiness information (MCAI) states: A case of loose bond (ungluing) of one develop on other products of the same under Executive Order 13132. This type design. mounting wooden block of the control stick proposed AD would not have a base cover, found during the cover Differences Between This Proposed AD substantial direct effect on the States, on reinstallation, was reported to the Type and the MCAI or Service Information the relationship between the national Certificate Holder (TCH) and led to the Government and the States, or on the issuance of the ‘‘recommended’’ Service We have reviewed the MCAI and distribution of power and Bulletin (SB) No. 031004 in February 2004. related service information and, in responsibilities among the various Since that date, other similar occurrences general, agree with their substance. But levels of government. have been reported. This SB in its revision For the reasons discussed above, I 1, has therefore been reclassified we might have found it necessary to use ‘‘mandatory’’ by the TCH. different words from those in the MCAI certify this proposed regulation: This Airworthiness Directive (AD) to ensure the AD is clear for U.S. 1. Is not a ‘‘significant regulatory mandates inspection of the mounting blocks operators and is enforceable. In making action’’ under Executive Order 12866; of the control stick base cover for loose bonds these changes, we do not intend to differ 2. Is not a ‘‘significant rule’’ under the and repair, as necessary. substantively from the information DOT Regulatory Policies and Procedures These actions are intended to address the provided in the MCAI and related (44 FR 11034, February 26, 1979); and identified unsafe condition so as to prevent 3. Will not have a significant separation of the mounting blocks from the service information. economic impact, positive or negative, wing spar which could result in restricted We might also have proposed on a substantial number of small entities movement of the ailerons and elevators with different actions in this AD from those under the criteria of the Regulatory possible partial or complete loss of controls. in the MCAI in order to follow FAA Flexibility Act. The MCAI requires an inspection of the four policies. Any such differences are We prepared a regulatory evaluation mounting wooden blocks of the control stick highlighted in a NOTE within the of the estimated costs to comply with base cover. You are to take corrective action by repairing any loose blocks where proposed AD. this proposed AD and placed it in the inspection indicates necessary. AD docket. Costs of Compliance Actions and Compliance List of Subjects in 14 CFR Part 39 Based on the service information, we (f) Unless already done, do the following estimate that this proposed AD would Air transportation, Aircraft, Aviation actions within the next 6 months after the safety, Safety. effective date of this AD, following APEX affect about 52 products of U.S. registry. Aircraft Service Bulletin No. 031004 R1, We also estimate that it would take The Proposed Amendment Revision 1, dated November 12, 2007: about .5 work-hour per product to Accordingly, under the authority (1) Inspect the four mounting wooden comply with the basic requirements of delegated to me by the Administrator, blocks of the control stick base cover for this proposed AD. The average labor loose bonding (gluing); and the FAA proposes to amend 14 CFR part (2) If any wooden block is found to be rate is $80 per work-hour. Required 39 as follows: parts would cost about $135 per loose, take corrective action. product. PART 39—AIRWORTHINESS FAA AD Differences Based on these figures, we estimate DIRECTIVES Note: This AD differs from the MCAI and/ the cost of the proposed AD on U.S. 1. The authority citation for part 39 or service information as follows: No operators to be $9,100, or $175 per continues to read as follows: differences. product. Authority: 49 U.S.C. 106(g), 40113, 44701. Other FAA AD Provisions Authority for This Rulemaking (g) The following provisions also apply to § 39.13 [Amended] this AD: Title 49 of the United States Code 2. The FAA amends § 39.13 by adding (1) Alternative Methods of Compliance specifies the FAA’s authority to issue the following new AD: (AMOCs): The Manager, Standards Office, rules on aviation safety. Subtitle I, APEX Aircraft: Docket No. FAA–2008–0057; FAA, has the authority to approve AMOCs section 106, describes the authority of Directorate Identifier 2007–CE–102–AD. for this AD, if requested using the procedures the FAA Administrator. ‘‘Subtitle VII: found in 14 CFR 39.19. Send information to Comments Due Date ATTN: Sarjapur Nagarajan, Aerospace Aviation Programs,’’ describes in more Engineer, FAA, Small Airplane Directorate, detail the scope of the Agency’s (a) We must receive comments by February 25, 2008. 901 Locust, Room 301, Kansas City, Missouri authority. 64106; telephone: (816) 329–4145; fax: (816) We are issuing this rulemaking under Affected ADs 329–4090. Before using any approved AMOC the authority described in ‘‘Subtitle VII, (b) None. on any airplane to which the AMOC applies, Part A, Subpart III, Section 44701: notify your appropriate principal inspector Applicability (PI) in the FAA Flight Standards District General requirements.’’ Under that (c) This AD applies to the following CAP Office (FSDO), or lacking a PI, your local section, Congress charges the FAA with 10 B airplanes that are certificated in any FSDO. promoting safe flight of civil aircraft in category: (2) Airworthy Product: For any requirement air commerce by prescribing regulations (i) serial numbers 300 through 310; and in this AD to obtain corrective actions from for practices, methods, and procedures (ii) serial numbers 1 through 40 that have a manufacturer or other source, use these the Administrator finds necessary for been retrofitted with carbon/wood wing actions if they are FAA-approved. Corrective safety in air commerce. This regulation reference 5702–0104048* actions are considered FAA-approved if they is within the scope of that authority (*with or without a variable letter or are approved by the State of Design Authority number at the reference end). (or their delegated agent). You are required because it addresses an unsafe condition to assure the product is airworthy before it that is likely to exist or develop on Subject is returned to service. products identified in this rulemaking (d) Air Transport Association of America (3) Reporting Requirements: For any action. (ATA) Code 57: Wings. reporting requirement in this AD, under the

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provisions of the Paperwork Reduction Act which could result in loss of pitch feel We will post all comments we (44 U.S.C. 3501 et. seq.), the Office of forces and consequent reduced control receive, without change, to http:// Management and Budget (OMB) has of the airplane. www.regulations.gov, including any approved the information collection personal information you provide. We requirements and has assigned OMB Control DATES: We must receive comments on Number 2120–0056. this proposed AD by February 25, 2008. will also post a report summarizing each ADDRESSES: You may send comments by substantive verbal contact we receive Related Information any of the following methods: about this proposed AD. (h) Refer to MCAI European Aviation • Federal eRulemaking Portal: Go to Discussion Safety Agency AD No.: 2007–0296, dated http://www.regulations.gov. Follow the December 7, 2007; and APEX Aircraft Service instructions for submitting comments. On March 21, 2006, we issued AD Bulletin (SB) No. 031004 R1, Revision 1, • Fax: 202–493–2251. 2006–05–11 R1, amendment 39–14528 dated November 12, 2007, for related • (71 FR 15323, March 28, 2006), for information. Mail: U.S. Department of Transportation, Docket Operations, M– certain Bombardier Model CL–600– Issued in Kansas City, Missouri, on January 30, West Building Ground Floor, Room 2B19 (Regional Jet Series 100 & 400) 16, 2008. W12–140, 1200 New Jersey Avenue, SE., airplanes. That AD requires revising the James E. Jackson, Washington, DC 20590. airworthiness limitations section of the Acting Manager, Small Airplane Directorate, • Hand Delivery: U.S. Department of Instructions for Continued Aircraft Certification Service. Transportation, Docket Operations, M– Airworthiness of the maintenance [FR Doc. E8–1164 Filed 1–23–08; 8:45 am] 30, West Building Ground Floor, Room requirements manual (MRM) by BILLING CODE 4910–13–P W12–140, 1200 New Jersey Avenue, SE., incorporating procedures for repetitive Washington, DC 20590, between 9 a.m. functional tests of the pilot input lever and 5 p.m., Monday through Friday, of the pitch feel simulator (PFS) units. DEPARTMENT OF TRANSPORTATION except Federal holidays. That AD also requires new repetitive For service information identified in functional tests of the pilot input lever Federal Aviation Administration this AD, contact Bombardier, Inc., of the PFS unit, and corrective actions Canadair, Aerospace Group, P.O. Box if necessary; and after initiating the new 14 CFR Part 39 6087, Station Centre-ville, Montreal, tests, requires removal of the existing [Docket No. FAA–2008–0047; Directorate Quebec H3C 3G9, Canada. procedures for the repetitive functional Identifier 2007–NM–295–AD] Examining the AD Docket tests from the MRM. That AD resulted RIN 2120–AA64 from a report that the shear pin located You may examine the AD docket on in the input lever of two PFS units Airworthiness Directives; Bombardier the Internet at http:// failed due to fatigue. We issued that AD www.regulations.gov; or in person at the Model CL–600–2B19 (Regional Jet to prevent undetected failure of the Docket Management Facility between 9 Series 100 & 440) Airplanes shear pin of both PFS units a.m. and 5 p.m., Monday through simultaneously, which could result in AGENCY: Federal Aviation Friday, except Federal holidays. The AD loss of pitch feel forces and consequent Administration (FAA), Department of docket contains this proposed AD, the reduced control of the airplane. Transportation (DOT). regulatory evaluation, any comments ACTION: Notice of proposed rulemaking received, and other information. The Relevant Service Information (NPRM). street address for the Docket Office AD 2006–05–11 R1 cited Bombardier (telephone 800–647–5527) is in the Alert Service Bulletin A601R–27–144, SUMMARY: The FAA proposes to ADDRESSES section. Comments will be Revision A, dated February 14, 2006, as supersede an existing airworthiness available in the AD docket shortly after the appropriate source of service directive (AD) that applies to certain receipt. information for the functional tests and Bombardier Model CL–600–2B19 FOR FURTHER INFORMATION CONTACT: Dan associated corrective actions and (Regional Jet Series 100 & 400) Parrillo, Aerospace Engineer, Systems reporting requirements. Since we issued airplanes. The existing AD currently and Flight Test Branch, ANE–172, New that AD, Bombardier has revised the requires revising the airworthiness York Aircraft Certification Office, FAA, service bulletin. Revision B, dated limitations section of the Instructions 1600 Stewart Avenue, Suite 410, December 20, 2006, revises the column for Continued Airworthiness of the Westbury, New York 11590; telephone check procedures by specifying ambient maintenance requirements manual 516–228–7305; fax 516–794–5531. temperature conditions for performing (MRM) by incorporating procedures for SUPPLEMENTARY INFORMATION: the check. Remaining actions are repetitive functional tests of the pilot unchanged. input lever of the pitch feel simulator Comments Invited Revision B of the service bulletin (PFS) units. That AD also requires new We invite you to send any written contains an additional requirement. So repetitive functional tests of the pilot relevant data, views, or arguments about we must supersede AD 2006–05–11 R1 input lever of the PFS unit, and this proposed AD. Send your comments to require the revised procedures corrective actions if necessary; and after to an address listed under the specified in Revision B of the service initiating the new tests, requires ADDRESSES section. Include ‘‘Docket No. bulletin. removal of the existing procedures for FAA–2008–0047; Directorate Identifier the repetitive functional tests from the 2007–NM–295–AD’’ at the beginning of FAA’s Determination and Requirements MRM. This new action would require your comments. We specifically invite of the Proposed AD revised procedures for the functional comments on the overall regulatory, These airplanes are manufactured in tests. This proposed AD results from a economic, environmental, and energy Canada and are type certificated for report that the shear pin located in the aspects of this proposed AD. We will operation in the United States under the input lever of two PFS units failed due consider all comments received by the provisions of section 21.29 of the to fatigue. We are proposing this AD to closing date and may amend this Federal Aviation Regulations (14 CFR prevent undetected failure of the shear proposed AD because of those 21.29) and the applicable bilateral pins of both PFS units simultaneously, comments. airworthiness agreement. Pursuant to

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this bilateral airworthiness agreement, requirements, but in accordance with units, and eventually to develop final TCCA has kept the FAA informed of the revised procedures for the functional action to address the unsafe condition. situation described above. We have tests. Once final action has been identified, examined TCCA’s findings, evaluated Interim Action we might consider further rulemaking. all pertinent information, and determined that AD action is necessary This is considered to be interim Costs of Compliance for airplanes of this type design that are action. The inspection reports that are The following table provides the certificated for operation in the United required by this AD will enable the estimated costs for U.S. operators to States. manufacturer to obtain better insight This proposed AD would supersede into the nature, cause, and extent of the comply with this proposed AD. AD 2006–05–11 R1 and retain its failures of the shear pins of the PFS

ESTIMATED COSTS

Average Number of Action Work hours labor rate Cost per U.S.-registered Fleet cost per hour airplane airplanes

Revise MRM...... 1 $80 $80 ...... 684 $54,720. Functional tests ...... 1 $80 $80, per test cycle ...... 684 $54,720, per test cycle.

Authority for This Rulemaking under the criteria of the Regulatory numbers 7003 through 7990 inclusive, and Flexibility Act. 8000 and subsequent. Title 49 of the United States Code We prepared a regulatory evaluation specifies the FAA’s authority to issue Unsafe Condition of the estimated costs to comply with rules on aviation safety. Subtitle I, (d) This AD results from a report that the this proposed AD and placed it in the Section 106, describes the authority of shear pin located in the input lever of two AD docket. See the ADDRESSES section the FAA Administrator. Subtitle VII, pitch feel simulator (PFS) units failed due to for a location to examine the regulatory fatigue. We are issuing this AD to prevent Aviation Programs, describes in more evaluation. undetected failure of the shear pins of both detail the scope of the Agency’s PFS units simultaneously, which could result authority. List of Subjects in 14 CFR Part 39 in loss of pitch feel forces and consequent reduced control of the airplane. We are issuing this rulemaking under Air transportation, Aircraft, Aviation the authority described in Subtitle VII, safety, Safety. Compliance Part A, Subpart III, Section 44701, (e) You are responsible for having the ‘‘General requirements.’’ Under that The Proposed Amendment actions required by this AD performed within section, Congress charges the FAA with Accordingly, under the authority the compliance times specified, unless the promoting safe flight of civil aircraft in delegated to me by the Administrator, actions have already been done. air commerce by prescribing regulations the FAA proposes to amend 14 CFR part Restatement of Requirements of AD 2006– for practices, methods, and procedures 39 as follows: 05–11 R1 the Administrator finds necessary for safety in air commerce. This regulation PART 39—AIRWORTHINESS Revise Airworthiness Limitations (AWL) is within the scope of that authority Section of Maintenance Requirements DIRECTIVES Manual because it addresses an unsafe condition that is likely to exist or develop on 1. The authority citation for part 39 (f) For airplanes having serial numbers products identified in this rulemaking continues to read as follows: 7003 through 7990 inclusive: Within 14 days after February 13, 2004 (the effective date of action. Authority: 49 U.S.C. 106(g), 40113, 44701. AD 2004–02–07, which was superseded by AD 2006–05–11 R1), revise the AWL section Regulatory Findings § 39.13 [Amended] of the Instructions for Continued We have determined that this 2. The Federal Aviation Airworthiness of the maintenance proposed AD would not have federalism Administration (FAA) amends § 39.13 requirements manual by incorporating the implications under Executive Order by removing amendment 39–14528 (71 functional check of the PFS pilot input lever, 13132. This proposed AD would not FR 15323, March 28, 2006) and adding Task R27–31–A024–01, as specified in have a substantial direct effect on the the following new airworthiness Bombardier Temporary Revision (TR) 2B– 1784, dated October 24, 2003, to the CL–600– States, on the relationship between the directive (AD): 2B19 Canadair Regional Jet Maintenance national Government and the States, or Bombardier, Inc. (Formerly Canadair): Requirements Manual, Part 2, Appendix B, on the distribution of power and Docket No. FAA–2008–0047; Directorate ‘‘Airworthiness Limitations,’’ into the AWL responsibilities among the various Identifier 2007–NM–295–AD. section. levels of government. Comments Due Date New Repetitive Functional Tests and For the reasons discussed above, I Corrective Actions certify that the proposed regulation: (a) The FAA must receive comments on this AD action by February 25, 2008. (g) Before the accumulation of 4,000 total 1. Is not a ‘‘significant regulatory flight hours, or within 100 flight hours after action’’ under Executive Order 12866; Affected ADs March 27, 2006 (the effective date of AD 2. Is not a ‘‘significant rule’’ under the (b) This AD supersedes AD 2006–05–11 2006–05–11 R1), whichever occurs later: Do DOT Regulatory Policies and Procedures R1. a functional test of the pilot input lever of the (44 FR 11034, February 26, 1979); and PFS units to determine if the lever is Applicability disconnected, in accordance with the 3. Will not have a significant (c) This AD applies to Bombardier Model Accomplishment Instructions of Bombardier economic impact, positive or negative, CL–600–2B19 (Regional Jet Series 100 & 400) Alert Service Bulletin A601R–27–144, on a substantial number of small entities airplanes, certificated in any category, serial Revision A, dated February 14, 2006,

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including Appendix A, dated September 15, Related Information Washington, DC 20590, between 9 a.m. 2005, except as required by paragraph (j) of (l) Canadian airworthiness directive CF– and 5 p.m., Monday through Friday, this AD. Repeat the test at intervals not to 2005–41, dated December 22, 2005, also except Federal holidays. exceed 100 flight hours. Accomplishing the addresses the subject of this AD. initial functional test terminates the Examining the AD Docket requirements of paragraph (f) of this AD and Issued in Renton, Washington, on January 14, 2008. You may examine the AD docket on the repetitive functional checks of the PFS the Internet at http:// pilot input lever, Task R27–31–A024–01, as Stephen P. Boyd, Assistant Manager, Transport Airplane www.regulations.gov; or in person at the specified in the AWL section of the Docket Management Facility between 9 Instructions for Continued Airworthiness of Directorate, Aircraft Certification Service. CL–600–2B19 Canadair Regional Jet [FR Doc. E8–1167 Filed 1–23–08; 8:45 am] a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD Maintenance Requirements Manual. BILLING CODE 4910–13–P (h) If any lever is found to be disconnected docket contains this proposed AD, the during any functional test required by regulatory evaluation, any comments paragraph (g) of this AD, do the actions DEPARTMENT OF TRANSPORTATION received, and other information. The specified in paragraphs (h)(1) and (h)(2) of street address for the Docket Office this AD in accordance with the Federal Aviation Administration (telephone (800) 647–5527) is in the Accomplishment Instructions of Bombardier ADDRESSES section. Comments will be Alert Service Bulletin A601R–27–144, 14 CFR Part 39 available in the AD docket shortly after Revision A, dated February 14, 2006, receipt. including Appendix A, dated September 15, [Docket No. FAA–2008–0055; Directorate Identifier 2007–CE–099–AD] FOR FURTHER INFORMATION CONTACT: Karl 2005, except as required by paragraph (j) of Schletzbaum, Aerospace Engineer, FAA, this AD. RIN 2120–AA64 Small Airplane Directorate, 901 Locust, (1) Before further flight, replace the Room 301, Kansas City, Missouri 64106; defective PFS with a serviceable PFS in Airworthiness Directives; Pacific telephone: (816) 329–4146; fax: (816) accordance with the Accomplishment Aerospace Limited Models FU24–954 329–4090. Instructions of the alert service bulletin; and and FU24A–954 Airplanes (2) Within 30 days after removing the SUPPLEMENTARY INFORMATION: defective PFS, submit a test report to the AGENCY: Federal Aviation manufacturer in accordance with the Administration (FAA), Department of Comments Invited Accomplishment Instructions of the alert Transportation (DOT). We invite you to send any written service bulletin. Under the provisions of the ACTION: Notice of proposed rulemaking relevant data, views, or arguments about Paperwork Reduction Act (44 U.S.C. 3501 et (NPRM). this proposed AD. Send your comments seq.), the Office of Management and Budget to an address listed under the (OMB) has approved the information SUMMARY: We propose to adopt a new ADDRESSES section. Include ‘‘Docket No. collection requirements contained in this AD airworthiness directive (AD) for the FAA–2008–0055; Directorate Identifier and has assigned OMB Control Number products listed above. This proposed 2007–CE–099–AD’’ at the beginning of 2120–0056. AD results from mandatory continuing your comments. We specifically invite Previously Accomplished Actions airworthiness information (MCAI) comments on the overall regulatory, (i) Actions done before March 27, 2006, in originated by an aviation authority of economic, environmental, and energy accordance with Bombardier Alert Service another country to identify and correct aspects of this proposed AD. We will Bulletin A601R–27–144, including Appendix an unsafe condition on an aviation consider all comments received by the A, dated September 15, 2005, are acceptable product. The MCAI describes the unsafe closing date and may amend this for compliance with the requirements of condition as: proposed AD because of those paragraph (g) of this AD. This AD is prompted by reports of comments. New Requirements of This AD loosening rivets securing the threaded inserts We will post all comments we in the ends of the aileron control pushrods receive, without change, to http:// New Service Bulletin for Functional Tests P/N 08–24015–1. Aileron push-pull rods P/ www.regulations.gov, including any (j) As of the effective date of this AD, N 08–24015–1 have been installed on aircraft personal information you provide. We Bombardier Alert Service Bulletin A601R– embodying PAC/FU/0340. will also post a report summarizing each 27–144, Revision B, dated December 20, The proposed AD would require actions substantive verbal contact we receive 2006, including Appendix A, Revision A, that are intended to address the unsafe about this proposed AD. dated December 20, 2006, must be used for condition described in the MCAI. the actions required by paragraphs (g) and (h) Discussion of this AD. DATES: We must receive comments on this proposed AD by February 25, 2008. The Civil Aviation Authority of New Alternative Methods of Compliance ADDRESSES: You may send comments by Zealand (CAA), which is the aviation (AMOCs) any of the following methods: authority for New Zealand, has issued (k)(1) The Manager, New York Aircraft • Federal eRulemaking Portal: Go to DCA/FU24/177, dated November 28, Certification Office (ACO), FAA, has the http://www.regulations.gov. Follow the 2007, to correct an unsafe condition for authority to approve AMOCs for this AD, if instructions for submitting comments. the specified products. The MCAI states: requested in accordance with the procedures • Fax: (202) 493–2251. This AD is prompted by reports of found in 14 CFR 39.19. • Mail: U.S. Department of loosening rivets securing the threaded inserts (2) To request a different method of Transportation, Docket Operations, M– in the ends of the aileron control pushrods compliance or a different compliance time P/N 08–24015–1. Aileron push-pull rods P/ for this AD, follow the procedures in 14 CFR 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., N 08–24015–1 have been installed on aircraft 39.19. Before using any approved AMOC on embodying PAC/FU/0340. any airplane to which the AMOC applies, Washington, DC 20590. • notify your appropriate principal inspector Hand Delivery: U.S. Department of The MCAI requires an initial and (PI) in the FAA Flight Standards District Transportation, Docket Operations, M– repetitive inspection of the aileron and Office (FSDO), or lacking a PI, your local 30, West Building Ground Floor, Room elevator control push-rods and requires FSDO. W12–140, 1200 New Jersey Avenue, SE., corrective action as necessary.

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You may obtain further information Authority for This Rulemaking § 39.13 [Amended] by examining the MCAI in the AD Title 49 of the United States Code 2. The FAA amends § 39.13 by adding docket. specifies the FAA’s authority to issue the following new AD: Relevant Service Information rules on aviation safety. Subtitle I, Pacific Aerospace Limited: Docket No. FAA– section 106, describes the authority of 2008–0055; Directorate Identifier 2007– Pacific Aerospace Limited has issued the FAA Administrator. ‘‘Subtitle VII: CE–099–AD. PACSB/FU/091, Issue 2, dated Aviation Programs,’’ describes in more Comments Due Date November 12, 2007. The actions detail the scope of the Agency’s described in this service information are (a) We must receive comments by February authority. 25, 2008. intended to correct the unsafe condition We are issuing this rulemaking under identified in the MCAI. the authority described in ‘‘Subtitle VII, Affected ADs FAA’s Determination and Requirements Part A, Subpart III, Section 44701: (b) None. of the Proposed AD General requirements.’’ Under that Applicability section, Congress charges the FAA with (c) This AD applies to models FU24–954 This product has been approved by promoting safe flight of civil aircraft in the aviation authority of another and FU24A–954 airplanes, all serial air commerce by prescribing regulations numbers, certificated in any category. country, and is approved for operation for practices, methods, and procedures in the United States. Pursuant to our the Administrator finds necessary for Subject bilateral agreement with this State of safety in air commerce. This regulation (d) Air Transport Association of America Design Authority, they have notified us is within the scope of that authority (ATA) Code 27: Flight Controls. of the unsafe condition described in the because it addresses an unsafe condition Reason MCAI and service information that is likely to exist or develop on referenced above. We are proposing this (e) The mandatory continuing products identified in this rulemaking airworthiness information (MCAI) states: AD because we evaluated all action. information and determined the unsafe This AD is prompted by reports of condition exists and is likely to exist or Regulatory Findings loosening rivets securing the threaded inserts in the ends of the aileron control pushrods develop on other products of the same We determined that this proposed AD P/N 08–24015–1. Aileron push-pull rods type design. would not have federalism implications P/N 08–24015–1 have been installed on Differences Between This Proposed AD under Executive Order 13132. This aircraft embodying PAC/FU/0340. and the MCAI or Service Information proposed AD would not have a The MCAI requires an initial and repetitive substantial direct effect on the States, on inspection of the aileron and elevator control We have reviewed the MCAI and the relationship between the national push-rods and requires corrective action as related service information and, in Government and the States, or on the necessary. general, agree with their substance. But distribution of power and Actions and Compliance we might have found it necessary to use responsibilities among the various (f) Unless already done, do the following different words from those in the MCAI levels of government. to ensure the AD is clear for U.S. actions: For the reasons discussed above, I (1) Within the next 50 hours time-in- operators and is enforceable. In making certify this proposed regulation: service (TIS) after the effective date of this these changes, we do not intend to differ 1. Is not a ‘‘significant regulatory AD, inspect the pushrod ends on the aileron substantively from the information action’’ under Executive Order 12866; and elevator control pushrods part number provided in the MCAI and related 2. Is not a ‘‘significant rule’’ under the (P/N) 08–24015–1 following Pacific service information. DOT Regulatory Policies and Procedures Aerospace Limited Service Bulletin No. We might also have proposed (44 FR 11034, February 26, 1979); and PACSB/FU/091, Issue 2, dated November 12, different actions in this AD from those 3. Will not have a significant 2007. Repetitively inspect thereafter at in the MCAI in order to follow FAA economic impact, positive or negative, intervals not to exceed 150 hours TIS. on a substantial number of small entities (2) Before further flight after any inspection policies. Any such differences are where any rivets are found on aileron and highlighted in a NOTE within the under the criteria of the Regulatory elevator control pushrods P/N 08–24015–1 proposed AD. Flexibility Act. that have detectable play between the We prepared a regulatory evaluation Costs of Compliance pushrod and the insert or evidence of of the estimated costs to comply with working rivets, replace the rivets following Based on the service information, we this proposed AD and placed it in the Pacific Aerospace Limited Service Bulletin estimate that this proposed AD would AD docket. No. PACSB/FU/091, Issue 2, dated November 12, 2007. affect about 2 products of U.S. registry. List of Subjects in 14 CFR Part 39 We also estimate that it would take FAA AD Differences about 1 work-hour per product to Air transportation, Aircraft, Aviation safety, Safety. Note: This AD differs from the MCAI and/ comply with the basic requirements of or service information as follows: No this proposed AD. The average labor The Proposed Amendment differences. rate is $80 per work-hour. Accordingly, under the authority Other FAA AD Provisions Based on these figures, we estimate delegated to me by the Administrator, the cost of the proposed AD on U.S. the FAA proposes to amend 14 CFR part (g) The following provisions also apply to this AD: operators to be $160, or $80 per product. 39 as follows: In addition, we estimate that any (1) Alternative Methods of Compliance necessary follow-on actions would take (AMOCs): The Manager, Standards Office, PART 39—AIRWORTHINESS FAA, has the authority to approve AMOCs about 5 work-hours and require parts DIRECTIVES for this AD, if requested using the procedures costing $100, for a cost of $500 per 1. The authority citation for part 39 found in 14 CFR 39.19. Send information to product. We have no way of ATTN: Karl Schletzbaum, Aerospace determining the number of products continues to read as follows: Engineer, FAA, Small Airplane Directorate, that may need these actions. Authority: 49 U.S.C. 106(g), 40113, 44701. 901 Locust, Room 301, Kansas City, Missouri

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64106; telephone: (816) 329–4146; fax: (816) polycarbonate guard that covers the Washington 98057–3356; telephone 329–4090. Before using any approved AMOC ADIRUs for certain airplanes, and (425) 227–2141; fax (425) 227–1149. on any airplane to which the AMOC applies, modifying the ladder located in the SUPPLEMENTARY INFORMATION: notify your appropriate principal inspector avionics compartment for certain (PI) in the FAA Flight Standards District Comments Invited Office (FSDO), or lacking a PI, your local airplanes. This proposed AD would FSDO. require those modifications on We invite you to send any written (2) Airworthy Product: For any requirement additional airplanes. This proposed AD relevant data, views, or arguments about in this AD to obtain corrective actions from would also require replacing all three this proposed AD. Send your comments a manufacturer or other source, use these ADIRUs with improved ADIRUs. This to an address listed under the actions if they are FAA-approved. Corrective proposed AD also adds Model A318 ADDRESSES section. Include ‘‘Docket No. actions are considered FAA-approved if they series airplanes to the applicability. FAA–2008–0046; Directorate Identifier are approved by the State of Design Authority This proposed AD results from reports 2007–NM–270–AD’’ at the beginning of (or their delegated agent). You are required your comments. We specifically invite to assure the product is airworthy before it that ‘‘NAV IR FAULT’’ messages have is returned to service. occurred during takeoff due to failure of comments on the overall regulatory, (3) Reporting Requirements: For any an ADIRU and subsequent analysis economic, environmental, and energy reporting requirement in this AD, under the showing that the shelf modification has aspects of this proposed AD. We will provisions of the Paperwork Reduction Act not sufficiently addressed failure of an consider all comments received by the (44 U.S.C. 3501 et. seq.), the Office of ADIRU. We are proposing this AD to closing date and may amend this Management and Budget (OMB) has prevent failure of an ADIRU during proposed AD because of those approved the information collection flight, which could result in loss of one comments. requirements and has assigned OMB Control We will post all comments we Number 2120–0056. source of critical attitude and airspeed data and reduce the ability of the receive, without change, to http:// Related Information flightcrew to control the airplane. www.regulations.gov, including any personal information you provide. We (h) Refer to MCAI Civil Aviation Authority DATES: We must receive comments on will also post a report summarizing each of New Zealand (CAA), which is the aviation this proposed AD by February 25, 2008. authority for New Zealand, DCA/FU24/177, substantive verbal contact we receive dated November 28, 2007; and Pacific ADDRESSES: You may send comments by about this proposed AD. Aerospace Limited Service Bulletin No. any of the following methods: PACSB/FU/091, Issue 2, dated November 12, • Federal eRulemaking Portal: Go to Discussion 2007, for related information. http://www.regulations.gov. Follow the On December 12, 2003, we issued AD instructions for submitting comments. 2003–26–03, amendment 39–13399 (68 Issued in Kansas City, Missouri, on January • 16, 2008. Fax: 202–493–2251. FR 74172, December 23, 2003), for • James E. Jackson, Mail: U.S. Department of certain Airbus Model A319, A320, and Transportation, Docket Operations, M– Acting Manager, Small Airplane Directorate, A321 series airplanes equipped with Aircraft Certification Service. 30, West Building Ground Floor, Room certain Litton air data inertial reference W12–140, 1200 New Jersey Avenue, SE., [FR Doc. E8–1137 Filed 1–23–08; 8:45 am] units (ADIRUs). That AD requires Washington, DC 20590. BILLING CODE 4910–13–P modifying the shelf (floor panel) above • Hand Delivery: U.S. Department of ADIRU 3, and, for certain airplanes, Transportation, Docket Operations, M– modifying the polycarbonate guard that DEPARTMENT OF TRANSPORTATION 30, West Building Ground Floor, Room covers the ADIRUs, and the ladder W12–140, 1200 New Jersey Avenue, SE., located in the avionics compartment, as Federal Aviation Administration Washington, DC 20590, between 9 a.m. applicable. That AD resulted from and 5 p.m., Monday through Friday, reports that ‘‘NAV IR FAULT’’ messages 14 CFR Part 39 except Federal holidays. have occurred during takeoff due to For service information identified in failure of ADIRU 3 on several Model [Docket No. FAA–2008–0046; Directorate this AD, contact Airbus, 1 Rond Point Identifier 2007–NM–270–AD] A319, A320, and A321 series airplanes. Maurice Bellonte, 31707 Blagnac Cedex, We issued that AD to prevent failure of RIN 2120–AA64 France. ADIRU 3 during flight, which could result in loss of one source of critical Airworthiness Directives; Airbus Model Examining the AD Docket attitude and airspeed data and reduce A318, A319, A320, and A321 Series You may examine the AD docket on the ability of the flightcrew to control Airplanes Equipped With Certain the Internet at http:// the airplane. Northrop Grumman (Formerly Litton) www.regulations.gov; or in person at the Air Data Inertial Reference Units Docket Management Facility between 9 Actions Since Existing AD Was Issued AGENCY: Federal Aviation a.m. and 5 p.m., Monday through Since we issued AD 2003–26–03, the Administration (FAA), Department of Friday, except Federal holidays. The AD European Aviation Safety Agency Transportation (DOT). docket contains this proposed AD, the (EASA), which is the Technical Agent regulatory evaluation, any comments ACTION: Notice of proposed rulemaking for the Member States of the European received, and other information. The (NPRM). Union, notified us that further analysis street address for the Docket Office has shown that modifying the ADIRU SUMMARY: The FAA proposes to (telephone 800–647–5527) is in the shelf has not sufficiently addressed the supersede an existing airworthiness ADDRESSES section. Comments will be unsafe condition. The clearance directive (AD) that applies to certain available in the AD docket shortly after between the shelf and ADIRUs is still Airbus Model A319, A320, and A321 receipt. too small. Consequently, vibration series airplanes equipped with certain FOR FURTHER INFORMATION CONTACT: Tim during takeoff could cause the shelf to Litton air data inertial reference units Dulin, Aerospace Engineer, hit the top of an ADIRU, leading to loss (ADIRUs). The existing AD currently International Branch, ANM–116, of parameters (attitude, vertical speed, requires modifying the shelf (floor Transport Airplane Directorate, FAA, ground speed, etc.). The EASA has panel) above ADIRU 3, modifying the 1601 Lind Avenue, SW., Renton, determined that, in addition to

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modifying the ADIRU shelf, all three Change to Existing AD responsibilities among the various ADIRUs must be replaced with This proposed AD would retain all levels of government. For the reasons discussed above, I improved ADIRUs that introduce a more requirements of AD 2003–26–03. Since certify that the proposed regulation: robust shock resistance to adequately AD 2003–26–03 was issued, the AD 1. Is not a ‘‘significant regulatory address the unsafe condition. The EASA format has been revised, and certain has also determined that the unsafe action’’ under Executive Order 12866; paragraphs have been rearranged. As a 2. Is not a ‘‘significant rule’’ under the condition exists on certain Model A318 result, the requirement in paragraph (a) series airplanes. DOT Regulatory Policies and Procedures of AD 2003–26–03 corresponds to (44 FR 11034, February 26, 1979); and Relevant Service Information paragraph (f) of this proposed AD. 3. Will not have a significant Airbus has issued Service Bulletin Costs of Compliance economic impact, positive or negative, on a substantial number of small entities A320–34–1350, dated March 20, 2006. This proposed AD would affect about under the criteria of the Regulatory The service bulletin describes 658 airplanes of U.S. registry. Flexibility Act. procedures for replacing all three The actions that are required by AD ADIRUs with improved ADIRUs having We prepared a regulatory evaluation 2003–26–03 and retained in this of the estimated costs to comply with part number 465020–0303–0316, which proposed AD take about 4 work hours introduce a more robust shock this proposed AD and placed it in the per airplane, at an average labor rate of AD docket. See the ADDRESSES section resistance and new magnetic variation $80 per work hour. Required parts cost tables. for a location to examine the regulatory about $300 per airplane. Based on these evaluation. Airbus has also issued Service figures, the estimated cost of the Bulletin A320–25–1248, Revision 01, currently required actions for U.S. List of Subjects in 14 CFR Part 39 dated April 16, 2003. The procedures in operators is $407,960, or $620 per Air transportation, Aircraft, Aviation Revision 01 of the service bulletin are airplane. safety, Safety. essentially the same as those in the The new proposed actions would take original issue of the service bulletin, about 3 work hours per airplane, at an The Proposed Amendment dated February 16, 2001. Revision 1 of average labor rate of $80 per work hour. Accordingly, under the authority the service bulletin adds airplanes to the The manufacturer states that it will delegated to me by the Administrator, effectivity of the service bulletin. supply the required parts to operators at the FAA proposes to amend 14 CFR part Accomplishing the actions specified no cost. Based on these figures, the 39 as follows: in the service information is intended to estimated cost of the new actions PART 39—AIRWORTHINESS adequately address the unsafe specified in this proposed AD for U.S. DIRECTIVES condition. The EASA mandated the operators is $157,920, or $240 per airplane. service information and issued 1. The authority citation for part 39 airworthiness directive 2007–0217, Authority for This Rulemaking continues to read as follows: dated August 9, 2007, to ensure the Title 49 of the United States Code Authority: 49 U.S.C. 106(g), 40113, 44701. continued airworthiness of these specifies the FAA’s authority to issue airplanes in the European Union. § 39.13 [Amended] rules on aviation safety. Subtitle I, FAA’s Determination and Requirements Section 106, describes the authority of 2. The Federal Aviation of the Proposed AD the FAA Administrator. Subtitle VII, Administration (FAA) amends § 39.13 Aviation Programs, describes in more by removing amendment 39–13399 (68 These airplanes are manufactured in detail the scope of the Agency’s FR 74172, December 23, 2003) and France and are type certificated for authority. adding the following new airworthiness operation in the United States under the We are issuing this rulemaking under directive (AD): provisions of section 21.29 of the the authority described in Subtitle VII, Airbus: Docket No. FAA–2008–0046; Federal Aviation Regulations (14 CFR Part A, Subpart III, Section 44701, Directorate Identifier 2007–NM–270–AD. 21.29) and the applicable bilateral ‘‘General requirements.’’ Under that Comments Due Date airworthiness agreement. As described section, Congress charges the FAA with in FAA Order 8100.14A, ‘‘Interim (a) The FAA must receive comments on promoting safe flight of civil aircraft in this AD action by February 25, 2008. Procedures for Working with the air commerce by prescribing regulations European Community on Airworthiness for practices, methods, and procedures Affected ADs Certification and Continued the Administrator finds necessary for (b) This AD supersedes AD 2003–26–03. Airworthiness,’’ dated August 12, 2005, safety in air commerce. This regulation Applicability the EASA has kept the FAA informed of is within the scope of that authority (c) This AD applies to Airbus Model A318, the situation described above. We have because it addresses an unsafe condition examined the EASA’s findings, A319, A320, and A321 series airplanes, that is likely to exist or develop on certificated in any category; equipped with at evaluated all pertinent information, and products identified in this rulemaking determined that AD action is necessary least one Northrop Grumman (formerly action. Litton) air data inertial reference unit for airplanes of this type design that are (ADIRU), part number (P/N) 465020–0303– certificated for operation in the United Regulatory Findings 0307, –0308, –0309, –0312, –0314, –0315, or States. We have determined that this –0316; except airplanes equipped with three This proposed AD would supersede proposed AD would not have federalism ADIRUs having P/N 465020–0303–0316 and AD 2003–26–03 and retain the implications under Executive Order on which Airbus Modification 30650 or requirements of the existing AD. This 13132. This proposed AD would not 30872 has been incorporated in production. proposed AD would also require have a substantial direct effect on the Unsafe Condition accomplishing the actions specified in States, on the relationship between the (d) This AD results from reports that ‘‘NAV the service information described national Government and the States, or IR FAULT’’ messages have occurred during previously. on the distribution of power and takeoff due to failure of an ADIRU and

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subsequent analysis showing that the shelf Alternative Methods of Compliance Notice of Technical Conference modification has not sufficiently addressed (AMOCs) failure of an ADIRU. We are issuing this AD The staff of the Federal Energy (i)(1) The Manager, International Branch, Regulatory Commission (Commission) to prevent failure of an ADIRU during flight, ANM–116, Transport Airplane Directorate, which could result in loss of one source of FAA, has the authority to approve AMOCs will hold a technical conference in the critical attitude and airspeed data and reduce for this AD, if requested in accordance with above-referenced proceeding on the ability of the flightcrew to control the the procedures found in 14 CFR 39.19. February 28, 2008, at the Federal Energy airplane. (2) To request a different method of Regulatory Commission, 888 First Compliance compliance or a different compliance time Street, NE., Washington, DC 20426 in (e) You are responsible for having the for this AD, follow the procedures in 14 CFR the Commission Meeting Room (2–C) actions required by this AD performed within 39.19. Before using any approved AMOC on from 9:30 a.m. until 3 p.m. (EST). The the compliance times specified, unless the any airplane to which the AMOC applies, staff is holding this conference to actions have already been done. notify your appropriate principal inspector address implementation issues (PI) in the FAA Flight Standards District Restatement of Requirements of AD 2003– Office (FSDO), or lacking a PI, your local associated with the posting proposal, 26–03 FSDO. such as obtaining and posting actual and scheduled flow information and Modification Related Information obtaining and posting information from (f) For Model A319, A320, and A321 series (j) European Aviation Safety Agency storage facilities. This is as set forth in airplanes, equipped with any Litton ADIRU airworthiness directive 2007–0217, dated the Notice of Proposed Rulemaking installed in accordance with Airbus August 9, 2007, also addresses the subject of (NOPR), Pipeline Posting Requirements Modification 24852, 25108, 25336, 26002, or this AD. 28218: Within 2 years after January 27, 2004 under Section 23 of the Natural Gas Act, (the effective date of AD 2003–26–03), do the Issued in Renton, Washington, on January 73 FR 1116 (January 7, 2008), FERC Stat. modifications specified in paragraphs (f)(1), 14, 2008. & Regs. ¶ 32,626 (2007). (f)(2), and (f)(3) of this AD, as applicable, in Stephen P. Boyd, People interested in speaking at the accordance with paragraphs A. through D. of Assistant Manager, Transport Airplane conference may send brief descriptions the Accomplishment Instructions of Airbus Directorate, Aircraft Certification Service. of the issues they would like to address Service Bulletin A320–25–1248, dated [FR Doc. E8–1135 Filed 1–23–08; 8:45 am] to Saida Shaalan at February 16, 2001; or Airbus Service Bulletin BILLING CODE 4910–13–P [email protected]. A320–25–1248, Revision 01, dated April 16, 2003; as applicable. This conference will not be Web-cast (1) For all airplanes: Modify the shelf (floor or transcribed. All interested persons panel) above ADIRU 3 by installing shims are invited, and there is no registration between the shelf and the webs of the shelf DEPARTMENT OF ENERGY fee to attend. Comments should be filed support structure. in Docket RM08–2–000, in accordance Federal Energy Regulatory (2) For airplanes with Airbus Modification with the dates set in the rulemaking Commission 25900P3941 or Airbus Service Bulletin docket. A320–25–1200 accomplished as of January Commission conferences are 27, 2004: Modify the polycarbonate guard 18 CFR Part 284 (umbrella) protecting the ADIRUs by accessible under section 508 of the Rehabilitation Act of 1973. For installing shims between the guard and the [Docket No. RM08–2–000] shelf support structure. accessibility accommodations please (3) For airplanes with Airbus Modification Transparency Provision Under Section send an e-mail to [email protected] 23027P2852 or Airbus Service Bulletin 23 of the Natural Gas Act or call toll free 1–866–208–3372 (voice) A320–52–1038 accomplished as of January or 202–208–1659 (TTY), or send a FAX 27, 2004: Modify the ladder located in the January 10, 2008. to 202–208–2106 with the required avionics compartment by machining the slot AGENCY accommodations. at the foot of the ladder to increase the depth : Federal Energy Regulatory by 0.236 inch. Commission, DOE. Questions about the conference ACTION: Notice of Technical Conference. should be directed to Saida Shaalan by New Requirements of This AD e-mail at [email protected] or Modification for Certain Airplanes SUMMARY: The Federal Energy by phone at 202–502–8278. Regulatory Commission is holding a (g) For all airplanes equipped with any Kimberly D. Bose, technical conference to address ADIRU installed in accordance with Airbus Secretary. Modification 31070, 31742, or 35517, except implementation issues associated with airplanes on which Airbus Modification the Commission’s posting proposal, [FR Doc. E8–1152 Filed 1–23–08; 8:45 am] 30650 or 30872 has been accomplished in such as obtaining and posting actual BILLING CODE 6717–01–P production: Within 46 months after the and scheduled flow information and effective date of this AD, modify the ADIRU obtaining and posting flow information shelf supports by accomplishing all of the from storage facilities, as set for in the applicable actions specified in the DEPARTMENT OF THE TREASURY Accomplishment Instructions of Airbus Notice of Proposed Rulemaking issued Service Bulletin A320–25–1248, Revision 01, December 21, 2007, in Commission Internal Revenue Service dated April 16, 2003. Docket No. RM08–2–000. 26 CFR Part 1 Replacement of ADIRUs DATES: The conference is to be held on February 28, 2008. (h) For all airplanes except those on which [REG–107592–00; REG–105964–98] Airbus Modification 35517 has been FOR FURTHER INFORMATION CONTACT: incorporated in production: Within 46 Saida E. Shaalan, Energy Information RIN 1545–BA11; RIN 1545–AW30 months after the effective date of this AD, Analyst, Federal Energy Regulatory replace all three ADIRUs with improved Commission, 888 First Street, NE., Consolidated Returns; Intercompany ADIRUs having P/N 465020–0303–0316 in Washington, DC 20426, 202–502–8278, Obligations; Hearing accordance with the Accomplishment [email protected]. Instructions of Airbus Service Bulletin A320– AGENCY: Internal Revenue Service (IRS), 34–1350, dated March 20, 2006. SUPPLEMENTARY INFORMATION: Treasury.

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ACTION: Notice of public hearing on of Information Reading Room (FOIA RR) and Transportation Barriers Compliance proposed rulemaking. (Room 1621) which is located at the Board, 1331 F Street, NW., suite 1000, 11th and Pennsylvania Avenue, NW. Washington, DC 20004–1111. SUMMARY: This document provides entrance, 1111 Constitution Avenue, Telephone number: 202–272–0016 notice of public hearing on proposed NW., Washington, DC. (Voice); 202–272–0082 (TTY). regulations regarding the treatment of Because of access restrictions, the IRS transactions involving obligations Electronic mail address: will not admit visitors beyond the [email protected]. between members of a consolidated immediate entrance area more than 30 group and the treatment of transactions minutes before the hearing starts. For SUPPLEMENTARY INFORMATION: The involving the provision of insurance information about having your name Architectural and Transportation between members of a consolidated placed on the building access list to Barriers Compliance Board (Access group. attend the hearing, see the FOR FURTHER Board) established the DATES: The public hearing is being held INFORMATION CONTACT section of this Telecommunications and Electronic and on Friday, February 29, 2008, at 10 a.m. document. Information Technology Advisory The IRS must receive outlines of the Cynthia Grigsby, Committee (Committee) to assist it in topics to be discussed at the public revising and updating accessibility hearing by Friday, February 15, 2008. Senior Federal Register Liaison, Publications and Regulations Branch, Legal Processing guidelines for telecommunications ADDRESSES: The public hearing is being Division, Associate Chief Counsel, (Procedure products and accessibility standards for held in the IRS Auditorium, Internal and Administration). electronic and information technology. Revenue Service Building, 1111 [FR Doc. E8–1145 Filed 1–23–08; 8:45 am] The next committee meetings, which are Constitution Avenue, NW., Washington, BILLING CODE 4830–01–P all conference calls, will focus on DC 20224. outstanding issues which have not yet Send Submissions to CC:PA:LPD:PR been resolved. The conference calls are (REG–107592–00; REG–105964–98), ARCHITECTURAL AND scheduled for every Tuesday, starting on room 5205, Internal Revenue Service, TRANSPORTATION BARRIERS January 29, 2008, through April 1, 2008. P.O. Box 7604, Ben Franklin Station, COMPLIANCE BOARD Calls will begin at 1 p.m. and end at 4 Washington, DC 20044. Submissions p.m. Eastern time. The conference call may be hand-delivered Monday through 36 CFR Parts 1193 and 1194 Friday to CC:PA:LPD:PR (REG–107592– on March 11 is scheduled from 1 p.m. 00; REG–105964–98), Couriers Desk, RIN 3014–AA22 until 6 p.m. Eastern time. The agendas, Internal Revenue Service, 1111 instructions (including information on Constitution Avenue, NW., Washington, Telecommunications Act Accessibility captioning), and dial in telephone DC or sent electronically via the Federal Guidelines; Electronic and Information numbers are available at http:// erulemaking Portal at Technology Accessibility Standards www.access-board.gov/sec508/update- www.regulations.gov (IRS–REG– AGENCY: Architectural and index.htm. Notices of future meetings 107592–00; REG–105964–98). Transportation Barriers Compliance will be published in the Federal FOR FURTHER INFORMATION CONTACT: Board. Register. Concerning the regulations, Frances L. ACTION: Notice of meetings. The committee may cancel or shorten Kelly (202) 622–7770; concerning any conference call before it is submissions of comments, the hearing SUMMARY: The Architectural and scheduled to take place depending on and/or to be placed on the building Transportation Barriers Compliance the needs of the committee and its Board (Access Board) has established a access list to attend the hearing Funmi progress in discussing and resolving Telecommunications and Electronic and Taylor at (202) 622–7180 (not toll-free outstanding issues. If a conference call numbers). Information Technology Advisory Committee (Committee) to assist it in is canceled, a notice will be posted at SUPPLEMENTARY INFORMATION: The revising and updating accessibility http://www.access-board.gov/sec508/ subject of the public hearing is the guidelines for telecommunications update-index.htm. All conference calls notice of proposed rulemaking (REG– products and accessibility standards for are open to the public and interested 107592–00; REG–105964–98) that was electronic and information technology. persons can dial in and communicate published in the Federal Register on This notice announces the dates and their views during public comment Friday, September 28, 2007 (72 FR times of upcoming committee periods scheduled during the calls. 55139). conference calls. Participants may call in from any The rules of 26 CFR 601.601(a)(3) location of their choosing. apply to the hearing. Persons who wish DATES: The conference calls are to present oral comments at the hearing scheduled for every Tuesday from Lawrence W. Roffee, January 29, 2008, through April 1, 2008. that submitted written comments by Executive Director. Calls will begin at 1 p.m. and end at 4 December 27, 2007, must submit an [FR Doc. E8–1229 Filed 1–23–08; 8:45 am] outline of the topics to be addressed and p.m. Eastern time. The conference call BILLING CODE 8150–01–P the amount of time to be denoted to on March 11 is scheduled from 1 p.m. each topic (signed original and eight until 6 p.m. Eastern time. copies). ADDRESSES: Individuals can participate A period of 10 minutes is allotted to in the conference calls by dialing the each person for presenting oral teleconference numbers which will be comments. After the deadline for posted on the Access Board’s Web site receiving outlines has passed, the IRS at http://www.access-board.gov/sec508/ will prepare an agenda containing the update-index.htm. schedule of speakers. Copies of the FOR FURTHER INFORMATION CONTACT: agenda will be made available, free of Timothy Creagan, Office of Technical charge, at the hearing or in the Freedom and Information Services, Architectural

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ENVIRONMENTAL PROTECTION 5. Hand Delivery or Courier: Ms. available either electronically in http:// AGENCY Gracy R. Danois, Air Permits Section, www.regulations.gov or in hard copy at Air Planning Branch, Air, Pesticides and the Regulatory Development Section, 40 CFR Part 52 Toxics Management Division, U.S. Air Planning Branch, Air, Pesticides and [EPA–R04–OAR–2007–0532–200724; FRL– Environmental Protection Agency, Toxics Management Division, U.S. 8520–8] Region 4, 61 Forsyth Street, SW., Environmental Protection Agency, Atlanta, Georgia 30303–8960. Such Region 4, 61 Forsyth Street, SW., Approval and Promulgation of deliveries are only accepted during the Atlanta, Georgia 30303–8960. EPA Implementation Plans; Alabama Regional Office’s normal hours of requests that if at all possible, you Prevention of Significant Deterioration operation. The Regional Office’s official contact the person listed in the FOR and Nonattainment New Source hours of business are Monday through FURTHER INFORMATION CONTACT section to Review Friday, 8:30 to 4:30, excluding federal schedule your inspection. The Regional holidays. Office’s official hours of business are AGENCY: Environmental Protection Instructions: Direct your comments to Monday through Friday, 8:30 to 4:30, Agency (EPA). Docket ID No. EPA–R04–OAR–2007– excluding federal holidays. ACTION: Proposed rule. 0532. EPA’s policy is that all comments FOR FURTHER INFORMATION CONTACT: For received will be included in the public information regarding the Alabama State SUMMARY: EPA is proposing to approve docket without change and may be Implementation Plan, contact Ms. Stacy State Implementation Plan (SIP) made available online at http:// revisions submitted by the State of Harder, Regulatory Development www.regulations.gov, including any Section, Air Planning Branch, Air, Alabama on June 16, 2006. The personal information provided, unless proposed revisions modify Alabama’s Pesticides and Toxics Management the comment includes information Division, U.S. Environmental Protection Prevention of Significant Deterioration claimed to be Confidential Business Agency, Region 4, 61 Forsyth Street, (PSD) and Nonattainment New Source Information (CBI) or other information SW., Atlanta, Georgia 30303–8960. The Review (NNSR) regulations in the SIP to whose disclosure is restricted by statute. telephone number is (404) 562–9042. address changes to the federal New Do not submit through http:// Ms. Harder can also be reached via Source Review (NSR) permitting www.regulations.gov or e-mail, electronic mail at [email protected]. regulations, which were promulgated by information that you consider to be CBI For information regarding New Source EPA on December 31, 2002, and or otherwise protected. The http:// Review, contact Ms. Gracy R. Danois, reconsidered with minor changes on www.regulations.gov Web site is an Air Permits Section, at the same address November 7, 2003 (collectively, these ‘‘anonymous access’’ system, which above. The telephone number is (404) two final actions are called the ‘‘2002 means EPA will not know your identity NSR Reform Rules’’). The proposed or contact information unless you 562–9119. Ms. Danois can also be revisions include provisions for baseline provide it in the body of your comment. reached via electronic mail at emissions calculations, an actual-to- If you send an e-mail comment directly [email protected]. projected-actual methodology for to EPA without going through http:// SUPPLEMENTARY INFORMATION: calculating emissions changes, options www.regulations.gov, your e-mail Throughout this document, references for plantwide applicability limits (PAL), address will be automatically captured to ‘‘EPA,’’ ‘‘we,’’ ‘‘us,’’ or ‘‘our,’’ are and recordkeeping and reporting and included as part of the comment intended to mean the Environmental requirements. The June 16, 2006, that is placed in the public docket and Protection Agency. The supplementary submittal also contained provisions to made available on the Internet. If you information is arranged as follows: address the Clean Air Interstate Rule, on submit an electronic comment, EPA I. What action is EPA proposing? which EPA has already taken action. As recommends that you include your II. Why is EPA proposing this action? requested by Alabama on December 3, name and other contact information in III. What is EPA’s analysis of Alabama’s NSR 2007, at this time, EPA is not taking the body of your comment and with any rule revisions? action on a proposed revision found in disk or CD–ROM you submit. If EPA IV. What action is EPA taking? Rule 335–3–14–.04(2)(w)1, which cannot read your comment due to V. Statutory and Executive Order Reviews establishes a significance threshold for technical difficulties and cannot contact I. What Action is EPA Proposing? all NSR regulated pollutants for which you for clarification, EPA may not be there is not a listed significance able to consider your comment. On June 16, 2006, the State of threshold. Electronic files should avoid the use of Alabama, through the Alabama special characters, any form of Department of Environmental DATES: Comments must be received on encryption, and be free of any defects or Management (ADEM), submitted or before February 25, 2008. viruses. For additional information revisions to the SIP. Specifically, the ADDRESSES: Submit your comments, about EPA’s public docket visit the EPA proposed SIP revisions include changes identified by Docket ID No. EPA–R04– Docket Center homepage at http:// to ADEM Administrative Code (AAC) OAR–2007–0532, by one of the www.epa.gov/epahome/dockets.htm. Division 3 Code (Air Division), Chapter following methods: Docket: All documents in the 14, entitled ‘‘Air Permits.’’ ADEM 1. http://www.regulations.gov: Follow electronic docket are listed in the submitted these revisions in response to the online instructions for submitting http://www.regulations.gov index. EPA’s December 31, 2002, revisions to comments. Although listed in the index, some the federal NSR program. EPA is now 2. E-mail: [email protected]. information is not publicly available, proposing to approve these SIP 3. Fax: (404) 562–9019. i.e., CBI or other information whose revisions with the exception of the 4. Mail: ‘‘EPA–R04–OAR–2007– disclosure is restricted by statute. requirements found in Rule 335–3–14– 0532,’’ Air Planning Branch, Air, Certain other material, such as .04(2)(w)1, the portion of the definition Pesticides and Toxics Management copyrighted material, is not placed on of ‘‘significant’’ that establishes a Division, U.S. Environmental Protection the Internet and will be publicly significance threshold of 100 tons for all Agency, Region 4, 61 Forsyth Street, available only in hard copy form. NSR regulated pollutants for which SW., Atlanta, Georgia 30303–8960. Publicly available docket materials are there is not a listed significant amount.

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On December 3, 2007, Alabama EPA sets those standards, states must 51.166(r)(6), and either upheld or did requested that this portion of the develop, adopt, and submit to EPA for not comment on the other provisions definition not be approved into the SIP. approval, a SIP that contains emissions included as part of the 2002 NSR Additionally, the June 16, 2006, limitations and other control measures Reform Rules. submittal also addressed the Clean Air to attain and maintain the NAAQS. Each On March 8, 2007, EPA responded to Interstate Rule which EPA has already SIP is required to contain a the Court’s remand regarding the taken action on separately. preconstruction review program for the recordkeeping provisions by proposing construction and modification of any two alternative options to clarify what II. Why is EPA Proposing This Action? stationary source of air pollution to constitutes ‘‘reasonable possibility’’ and On December 31, 2002 (67 FR 80186), assure that the NAAQS are achieved when the ‘‘reasonable possibility’’ EPA published final rule changes to 40 and maintained; to protect areas of clean recordkeeping requirements apply (72 Code of Federal Regulations (CFR) parts air; to protect air quality related values FR 10445). The ‘‘reasonable possibility’’ 51 and 52, regarding the Clean Air Act’s (such as visibility) in national parks and standard identifies for sources and (CAA or Act) PSD and NNSR programs. other areas; to assure that appropriate reviewing authorities the circumstances On November 7, 2003 (68 FR 63021), emissions controls are applied; to under which a major stationary source EPA published a notice of final action maximize opportunities for economic undergoing a modification that does not on the reconsideration of the December development consistent with the trigger major NSR must keep records. 31, 2002 (67 FR 80186), final rule preservation of clean air resources; and On December 14, 2007, EPA issued a changes. In that November 7, 2003, final to ensure that any decision to increase final rulemaking establishing that action, EPA added the definition of air pollution is made only after full ‘‘reasonable possibility’’ applies where ‘‘replacement unit,’’ and clarified an public consideration of the source emissions equal or exceed 50% issue regarding PAL. The December 31, consequences of the decision. of the CAA NSR significance levels for 2002, and the November 7, 2003, final The 2002 NSR Reform Rules made any pollutant. This rule will be effective actions are collectively referred to as the changes to five areas of the NSR 30 days after its publication in the ‘‘2002 NSR Reform Rules.’’ The purpose programs. In summary, the 2002 Rules: Federal Register. For further of this action is to propose to approve (1) Provided a new method for information, see, http://www.epa.gov/ the SIP submittal from the State of determining baseline actual emissions; nsr/documents/ReasPos_final.pdf. Alabama, which addresses EPA’s 2002 (2) adopted an actual-to-projected-actual On June 13, 2007, EPA took final NSR Reform Rules.1 methodology for determining whether a action to revise the 2002 NSR reform The 2002 NSR Reform Rules are part major modification has occurred; (3) rules to exclude the portions that were of EPA’s implementation of Parts C and allowed major stationary sources to vacated by the D.C. Circuit Court (72 FR D of title I of the CAA, 42 U.S.C. 7470– comply with PAL to avoid having a 32526). This proposed action is 7515. Part C of title I of the CAA, 42 significant emissions increase that consistent with the decision of the D.C. U.S.C. 7470–7492, is the PSD program, triggers the requirements of the major Circuit Court because Alabama’s June which applies in areas that meet the NSR program; (4) provided a new 2006 SIP submittal, now being proposed National Ambient Air Quality Standards applicability provision for emissions for approval, does not include any (NAAQS)—‘‘attainment’’ areas—as well units that are designated clean units; portions of the 2002 NSR Reform Rules as in areas for which there is and (5) excluded pollution control that were vacated as part of the June insufficient information to determine projects (PCPs) from the definition of 2005 decision.2 whether the area meets the NAAQS— ‘‘physical change or change in the The 2002 NSR Reform Rules require ‘‘unclassifiable’’ areas. Part D of title I of method of operation.’’ On November 7, that state agencies adopt and submit the CAA, 42 U.S.C. 7501–7515, is the 2003, EPA published a notice of final revisions to their SIP permitting NNSR program, which applies in areas action on its reconsideration of the 2002 programs implementing the minimum that are not in attainment of the NSR Reform Rules (68 FR 63021), which program elements of the 2002 NSR NAAQS—‘‘nonattainment’’ areas. added a definition for ‘‘replacement Reform Rules no later than January 2, Collectively, the PSD and NNSR unit’’ and clarified an issue regarding 2006. (Consistent with changes to 40 programs are referred to as the ‘‘New PALs. For additional information on the CFR 51.166(a)(6)(i), state agencies are Source Review’’ or NSR programs. EPA 2002 NSR Reform Rules, see, 67 FR now required to adopt and submit SIP regulations implementing these 80186 (December 31, 2002), and http:// revisions within three years after new programs are contained in 40 CFR www.epa.gov/nsr. amendments are published in the 51.165, 51.166, 52.24, and part 51, After the 2002 NSR Reform Rules Federal Register.) State agencies may appendix S. were finalized and effective (March 3, meet the requirements of 40 CFR part The CAA’s NSR programs are 2003), industry, state, and 51, and the 2002 NSR Reform Rules, preconstruction review and permitting environmental petitioners challenged with different but equivalent programs applicable to new and numerous aspects of the 2002 NSR regulations. modified stationary sources of air Reform Rules, along with portions of On June 16, 2006, the State of pollution regulated under the CAA. The EPA’s 1980 NSR Rules (45 FR 52676, Alabama submitted a SIP revision for NSR programs of the CAA include a August 7, 1980). On June 24, 2005, the the purpose of revising the State’s NSR combination of air quality planning and U.S. Court of Appeals for the District of air pollution control technology Columbia Circuit (DC Circuit Court) 2 Since April 13, 1999, the AAC has included a issued a decision on the challenges to provision entitled, ‘‘environmental beneficial program requirements. Briefly, section projects,’’ which was approved into the SIP on 109 of the CAA, 42 U.S.C. 7409, requires the 2002 NSR Reform Rules. New York v. United States, 413 F.3d 3 (DC Cir. November 3, 1999, long before the 2002 NSR reform EPA to promulgate primary NAAQS to rules. This provision operates in much the same protect public health and secondary 2005). In summary, the D.C. Circuit manner as the vacated PCP provision. Consistent NAAQS to protect public welfare. Once Court vacated portions of the rules with EPA’s June 13, 2007, direct final action pertaining to clean units and pollution regarding the vacatur of the PCP provision, Alabama should remove this provision from the SIP 1 This action is not addressing any issues related control projects, remanded a portion of at the earliest opportunity because a federal appeals to the Alabama NSR program that were not part of the rules regarding recordkeeping, e.g., court has found that a similar federal provision is the June 16, 2006, submittal. 40 CFR 52.21(r)(6) and 40 CFR contrary to the CAA.

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permitting provisions. These changes actual emissions. To allow facilities to project for which there is a reasonable were made primarily to adopt EPA’s continue to use the actual-to-potential test, possibility that the project could exceed the 2002 NSR Reform Rules. As discussed some of the State definitions are slightly significance thresholds. As discussed earlier, in further detail below, EPA believes the different from the federal rule. ADEM’s on March 8, 2007 (72 FR 10445), EPA definition of ‘‘Net Emissions Increase’’ in proposed changes to the reasonable revisions contained in the Alabama Rule 335–3–14–.04(2)(c) does not include the possibility provisions in the 2002 NSR submittal are approvable for inclusion condition that ‘‘actual emissions’’ not be reform rules, and on December 14, 2007, EPA into the Alabama SIP. used in determining creditable emissions issued a final action responding to the D.C. Circuit’s remand. ADEM’s changes identified III. What is EPA’s Analysis of increases and decreases. Consistent with this approach, the definition of ‘‘actual above are more stringent than the federal rule Alabama’s NSR Rule Revisions? emissions’’ in ADEM’s Rule 335–3–14– and are therefore approvable. Alabama currently has a SIP-approved .04(2)(u) does not include an exclusion for 7. PAL Provisions—ADEM made the NSR program for new and modified determining significant increases or following changes to the Actuals PAL stationary sources. EPA is now decreases. Because the ‘‘actual to potential provisions in Rule 335–3–14–.04(23): test’’ approach is optional for existing units a. (23)(a)2—ADEM omitted the provision proposing to approve revisions to which allows facilities utilizing PAL to Alabama’s existing PSD program in the and at least as stringent as the federal rules, this difference is approvable. remove previously set synthetic minor PSD SIP. These revisions became State- 2. Definition of ‘‘Allowable Emissions’’ and limitations. According to Alabama’s effective on July 11, 2006, and were ‘‘Enforceable’’—ADEM’s definitions in Rule submittal, it is ADEM’s intent that previously submitted to EPA on June 16, 2006, for 335–3–14–.04–(2)(p) and (q) contain set PSD synthetic minor limits remain intact, incorporation into the Alabama SIP. provisions indicating that appropriate similar to how NSPS, SIP and BACT limits Copies of the revised rules, as well as limitations from 40 CFR part 63 also can be remain applicable when requesting and the State’s Technical Support considered in determining enforceable obtaining a PAL in a permit. Document, can be obtained from the limitations. These changes do not have a b. (23)(f)—ADEM changed the method of substantive effect on the terms, but rather, setting the PAL. The federal rules state that Docket, as discussed in the ‘‘Docket’’ any unit constructed after the 24-month section above. A discussion of the serve to clarify these terms. As a result, the change is at least as stringent as the federal period chosen for setting the PAL shall have specific changes to the Alabama rules, rules, and is approvable. its allowable emissions added to the PAL. proposed for inclusion in the SIP, 3. Definition of ‘‘Significant’’—In the ADEM has changed the provision to only follows. definition of ‘‘significant’’ found in Rule allow the inclusion of actual emissions ADEM Rule 335–3–14–.04 contains 335–3–14–.04(2)(w), ADEM excluded HF during any 24-month period of operation for the preconstruction review program that from being considered a fluoride. This sources which have been in operation for provides for the prevention of change was prompted by the language greater than 24 months. According to significant deterioration of ambient air included in the preamble for the NSR Reform Alabama’s SIP submittal, it is ADEM’s intent that the PAL be based upon true actual quality as required under Part C of title regulations (67 FR 80240) which states that HF should not be considered as part of the emissions. Allowing for the inclusion of I of the CAA. The program applies to allowable emissions for all sources built after major stationary sources or fluorides. Therefore, this change is approvable. the chosen 24-month period would not be modifications constructing in areas that 4. Definition of Baseline Actual consistent with this approach. are designated as attainment or Emissions—ADEM’s definition in Rule 335– c. (23)(i)5—ADEM has added a provision which states that synthetic minor limits unclassifiable with respect to the 3–14–.04(2)(uu)3, uses different trigger dates which existed prior to a PAL shall be NAAQS. Alabama’s PSD program was for new and existing units when establishing retained by the source after the expiration of originally approved into the SIP by EPA the period for establishing the baseline actual the PAL. According to Alabama’s SIP emissions for the unit. While this is different on November 10, 1981, and has been submittal, it is ADEM’s intention that than the federal rule, ADEM’s approach revised several times since then. The previously set PSD synthetic minor limits offers the requisite specificity and is at least current revisions to Rule 335–3–14–.04, remain intact, in the same fashion that NSPS, as stringent as the federal rule. which EPA is now proposing to approve SIP and BACT limits remain effective. 5. Definition of Regulated NSR Pollutant— d. (23)(n)1—ADEM has removed the into the SIP, were provided to update ADEM has included language in Rule 335– the existing provisions to be consistent requirement to submit a semi-annual report 3–14–.04(2)(ww)4 to exclude compounds within 30 days of the end of the reporting with the current federal PSD rules, listed under section 112(r)(3) of the CAA including the 2002 NSR Reform Rules. period. Since the facility’s title V permit from the definition of regulated NSR would require these reports to be submitted, State agencies may meet the pollutant unless otherwise listed as an NSR its inclusion in the PSD regulations is not requirements of 40 CFR part 51, and the pollutant in the federal NSR rules. Such necessary. 2002 NSR Reform Rules, with different compounds are excluded from the federal Although the changes to the PAL but equivalent regulations. In NSR rules pursuant to 40 C.F.R. provisions identified above are different than developing regulations consistent with 51.166(b)(49)(iv). ADEM’s rule is therefore the federal rule, ADEM’s approach is as consistent with federal rules. the 2002 NSR reform rules, ADEM has stringent as the federal rules and is 6. Reasonable Possibility Provisions— approvable. Additional information regarding made the following changes in its rules ADEM made the following changes to the that are different but equivalent to the these changes, including ADEM’s reasonable possibility provisions in Rule explanation, is available in the Docket for federal regulations: 335–3–14–.04(17): this proposed action. a. ADEM included language in Rule 335– 1. Applicability provisions—Actual-to- As part of EPA’s review of the June Potential Test for Projects that Only Involve 3–14-.04(17)(d) to require additional Existing Emissions Units (335–3–14– recordkeeping requirements for those 2006 Alabama SIP submittal, EPA .04(1)(h))—As part of the 2002 NSR reform modifications ‘‘where there is not a performed a line-by-line review of the rules, EPA changed NSR applicability reasonable possibility that a project is part of proposed revisions, including the determinations to rely on a new definition of a major modification and that is not excluded provisions summarized above which ‘‘baseline actual emissions’’ that supports the from the definition of physical change or differ from the federal rule. EPA has ‘‘actual-to-projected actual’’ methodology. In change in the method of operation.’’ determined that the rules included in b. ADEM added language in Rule 335–3– addition to adopting this new methodology the June 2006 submittal are consistent for determining NSR applicability, ADEM 14–.04(17)(e) to require that all sources meet has retained an optional ‘‘actual to potential’’ the recordkeeping requirements of the with the program requirements for the test for projects that only involve existing electric utilities. In Rule 335–3–14– preparation, adoption and submittal of units. This approach utilizes the definition .04(17)(e)(2), ADEM proposed additional implementation plans for NSR set forth for ‘‘actual emissions’’ to determine past reporting requirements for sources with a at 40 CFR 51.165 and 51.166.

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Alabama’s June 2006 SIP submittal levels of government, as specified in SUMMARY: With this advance notice of did not include any revisions to its Executive Order 13132 (64 FR 43255, proposed rulemaking, the U.S. NNSR rules. The State of Alabama August 10, 1999). This action merely Environmental Protection Agency is currently has two nonattainment areas proposes to approve state rules soliciting comment on several issues for PM2.5 and no nonattainment areas for implementing a Federal standard, and concerning options the U.S. ozone. At the time of the submittal by does not alter the relationship or the Environmental Protection Agency can Alabama, EPA had not promulgated distribution of power and pursue through Federal rulemaking NSR implementations rules for PM2.5. responsibilities established in the CAA. under the Clean Air Act to regulate EPA proposed the NSR implementation This proposed rule also is not subject to emissions of pollutants from existing rules for PM2.5 on November 1, 2005. Executive Order 13045 ‘‘Protection of stationary diesel engines, generally, and Once final, Alabama will be required to Children from Environmental Health specifically from larger, older stationary revise its SIP to update its NNSR rules. Risks and Safety Risks’’ (62 FR 19885, diesel engines. The U.S. Environmental IV. What Action is EPA Taking? April 23, 1997), because it is not Protection Agency has taken several economically significant. actions over the past several years to For the reasons discussed above, EPA In reviewing SIP submissions, EPA’s reduce exhaust pollutants from is proposing to approve the changes role is to approve state choices, stationary diesel engines. The Agency made to Alabama’s Rule 335–3–14–.04, provided that they meet the criteria of continues to be interested in exploring as submitted by ADEM on June 16, the CAA. In this context, in the absence opportunities to further reduce exhaust 2006, as revisions to the Alabama SIP. of a prior existing requirement for the pollutants from stationary diesel V. Statutory and Executive Order State to use voluntary consensus engines, particularly existing stationary Reviews standards (VCS), EPA has no authority diesel engines that have not been to disapprove a SIP submission for Under Executive Order 12866 (58 FR subject to federal standards. This failure to use VCS. It would thus be 51735, October 4, 1993), this proposed advance notice of proposed rulemaking inconsistent with applicable law for action is not a ‘‘significant regulatory is intended to explore possible options EPA, when it reviews a SIP submission, action’’ and therefore is not subject to to achieve further emissions reductions, to use VCS in place of a SIP submission review by the Office of Management and particularly from existing stationary that otherwise satisfies the provisions of Budget. For this reason, this action is diesel engines. the CAA. Thus, the requirements of also not subject to Executive Order DATES: Comments must be received on section 12(d) of the National 13211, ‘‘Actions Concerning Regulations or before February 25, 2008. Technology Transfer and Advancement That Significantly Affect Energy Supply, ADDRESSES: Submit your comments, Distribution, or Use’’ (66 FR 28355, May Act of 1995 (15 U.S.C. 272 note) do not identified by Docket ID No. EPA–HQ– 22, 2001). This proposed action merely apply. This proposed rule does not OAR–2007–0995, by one of the proposes to approve state law as impose an information collection following methods: meeting Federal requirements and burden under the provisions of the • www.regulations.gov: Follow the imposes no additional requirements Paperwork Reduction Act of 1995 (44 on-line instructions for submitting beyond those imposed by state law. U.S.C. 3501 et seq.). comments. Accordingly, the Administrator certifies List of Subjects in 40 CFR Part 52 • E-mail: [email protected]. • Fax: (202) 566–9744. that this proposed rule will not have a Environmental protection, Air • Mail: U.S. Postal Service, send significant economic impact on a pollution control, Carbon monoxide, comments to: Emissions Standards for substantial number of small entities Intergovernmental relations, Lead, Stationary Diesel Engines Docket, under the Regulatory Flexibility Act (5 Nitrogen dioxide, Ozone, Particulate Environmental Protection Agency, Air U.S.C. 601 et seq.). Because this rule matter, Reporting and recordkeeping and Radiation Docket and Information proposes to approve pre-existing requirements, Sulphur oxides, Volatile Center, Mailcode: 2822T, 1200 requirements under state law and does organic compounds. not impose any additional enforceable Pennsylvania Avenue, NW., duty beyond that required by state law, Authority: 42 U.S.C. 7401 et seq. Washington, DC 20460. Please include a it does not contain any unfunded Dated: January 10, 2008. total of two copies. We request that a mandate or significantly or uniquely Russell L. Wright, Jr., separate copy also be sent to the contact affect small governments, as described Acting Regional Administrator, Region 4. person identified below (see FOR in the Unfunded Mandates Reform Act [FR Doc. E8–1181 Filed 1–23–08; 8:45 am] FURTHER INFORMATION CONTACT). of 1995 (Pub. L. 104–4). Hand Delivery: In person or by BILLING CODE 6560–50–P This proposed rule also does not have courier, deliver comments to: EPA tribal implications because it will not Docket and Information Center, Public have a substantial direct effect on one or ENVIRONMENTAL PROTECTION Reading Room, EPA West Building, more Indian tribes, on the relationship AGENCY Room 3334, 1301 Constitution Avenue, between the Federal Government and NW., Washington, DC 20004. Such Indian tribes, or on the distribution of 40 CFR Part 63 deliveries are only accepted during the power and responsibilities between the Docket’s normal hours of operation, and Federal Government and Indian tribes, [EPA–HQ–OAR–2007–0995; FRL–8518–6] special arrangements should be made as specified by Executive Order 13175 RIN 2060–A073 for deliveries of boxed information. (65 FR 67249, November 9, 2000). This Instructions: Direct your comments to action also does not have Federalism Emission Standards for Stationary Docket ID No. EPA–HQ–OAR–2007– implications because it does not have Diesel Engines 0995. The U.S. Environmental substantial direct effects on the states, AGENCY: Environmental Protection Protection Agency’s (EPA’s) policy is on the relationship between the national Agency. that all comments received will be government and the states, or on the included in the public docket without ACTION: Advance notice of proposed distribution of power and change and may be made available rulemaking. responsibilities among the various online at www.regulations.gov,

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including any personal information (919) 541–0823, fax number: (919) 541– that you claim to be CBI. For CBI provided, unless the comment includes 0072; e-mail address: information in a disk or CD–ROM that information claimed to be Confidential [email protected]. you mail to EPA, mark the outside of the Business Information (CBI) or other SUPPLEMENTARY INFORMATION: disk or CD–ROM as CBI and then information whose disclosure is identify electronically within the disk or restricted by statute. Do not submit I. General Information CD–ROM the specific information that information that you consider to be CBI A. Does this action apply to me? is claimed as CBI. In addition to one or otherwise protected through B. What should I consider as I prepare my complete version of the comment that comments for EPA? www.regulations.gov or e-mail. The 1. Submitting CBI. includes information claimed as CBI, a www.regulations.gov Web site is an 2. Tips for Preparing Your Comments. copy of the comment that does not ‘‘anonymous access’’ system, which C. Where can I get a copy of this document contain the information claimed as CBI means EPA will not know your identity and other related information? must be submitted for inclusion in the or contact information unless you II. Background Information public docket. Information so marked provide it in the body of your comment. A. What is the purpose of this action? will not be disclosed except in If you send an e-mail comment directly B. Why are emissions from diesel engines accordance with procedures set forth in to EPA without going through a health concern? 40 CFR part 2. C. What is the Agency already doing to www.regulations.gov, your e-mail address diesel emissions from new and 2. Tips for Preparing Your Comments. address will be automatically captured existing stationary and mobile diesel When submitting comments, remember and included as part of the comment engines? to: that is placed in the public docket and D. What do we know about existing • Identify the rulemaking by docket made available on the Internet. If you stationary diesel engines? number and other identifying submit an electronic comment, EPA III. Specific Issues on Which EPA is Seeking information (subject heading, Federal recommends that you include your Comment Register date and page number). name and other contact information in A. What particular subgroups of existing • Follow directions—The Agency stationary diesel engines should EPA the body of your comment and with any focus on and how can EPA best find may ask you to respond to specific disk or CD–ROM you submit. If EPA information on those engines? questions or organize comments by cannot read your comment due to B. Where can EPA find better information referencing a Code of Federal technical difficulties and cannot contact about the location and numbers of Regulations (CFR) part or section you for clarification, EPA may not be existing stationary engines, who owns number. able to consider your comment. and operates them and what impact they • Explain why you agree or disagree, Electronic files should avoid the use of are having (including hours of suggest alternatives, and substitute special characters, any form of operation)? language for your requested changes. C. What are appropriate and available • Describe any assumptions and encryption, and be free of any defects or technically-feasible, cost-effective viruses. For additional information methods of controlling emissions from provide any technical information and/ about EPA’s public docket visit the EPA existing stationary diesel engines? or data that you used. Docket Center homepage at D. To what degree do state and local • If you estimate potential costs or www.epa.gov/epahome/dockets.htm. governments regulate emissions from burdens, explain how you arrived at Docket: All documents in the docket stationary diesel engines? your estimate in sufficient detail to are listed in the www.regulations.gov E. What are appropriate methods of allow for it to be reproduced. index. Although listed in the index, ensuring compliance with such • Provide specific examples to requirements, including record-keeping illustrate your concerns, and suggest some information is not publicly and testing issues? available, e.g., CBI or other information alternatives. IV. How EPA Intends to Proceed Following • whose disclosure is restricted by statute. Publication of This Notice Explain your views as clearly as Certain other material, such as V. Statutory and Executive Order Reviews possible, avoiding the use of profanity copyrighted material, will be publicly or personal threats. available only in hard copy. Publicly I. General Information • Make sure to submit your available docket materials are available A. Does this action apply to me? comments by the comment period deadline identified. either electronically in This notice is likely to be of interest www.regulations.gov or in hard copy at to a variety of parties, including owners C. Where can I get a copy of this the Emissions Standards for Stationary and operators of stationary diesel document and other related Diesel Engines Docket, Environmental engines, manufacturers of stationary information? Protection Agency, EPA West Building, diesel engines, state and local air quality In addition to being available in the Room 3334, 1301 Constitution Ave., agencies responsible for developing NW., Washington, DC. The Public docket, an electronic copy of this notice diesel pollution reduction strategies, will be available on the Worldwide Web Reading Room is open from 8:30 a.m. to and individuals and organizations with 4:30 p.m., Monday through Friday, through the Technology Transfer an interest in emissions from diesel Network (TTN). The TTN provides excluding legal holidays. The telephone engines. All of these parties and others number for the Public Reading Room is information and technology exchange in interested in stationary diesel engine various areas of air pollution control. (202) 566–1744, and the telephone issues are encouraged to read this notice number for the Air and Radiation Following signature, an electronic and to submit comments for EPA’s version of this document will be posted Docket is (202) 566–1742. consideration. FOR FURTHER INFORMATION CONTACT: Mr. at www.epa.gov/ttn/oarpg under Christopher S. Stoneman, Outreach and B. What should I consider as I prepare ‘‘Recent Additions.’’ Information Division, Office of Air my comments for EPA? II. Background Information Quality Planning and Standards, Mail 1. Submitting CBI. Do not submit this Code C304–01, Environmental information to EPA through A. What is the purpose of this action? Protection Agency, Research Triangle www.regulations.gov or e-mail. Clearly The EPA has taken several actions Park, NC 27711, telephone number: mark the part or all of the information over the past few years to reduce

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exhaust pollutants (e.g., particulate these efforts will improve air quality by • Which stationary diesel engines to matter (PM), nitrogen oxides (NOX), substantially reducing emissions of control; hazardous air pollutants (HAPs)) from pollutants from these engines. However, • Appropriate controls for those mobile and stationary diesel engines as the Agency continues to be interested in engines; these pollutants have been associated exploring further opportunities to • Existing stationary engine control with several health-related concerns, reduce exhaust pollutants from diesel measures in place, including State and including cancer, respiratory problems, engines generally, and specifically from local requirements; • and premature death. Diesel exhaust is larger, older stationary diesel engines, Costs and cost effectiveness of, and a complex mixture of hundreds of the subject of this notice. emission reductions associated with, constituents in either a gas or particle Some stakeholders are encouraging different control technologies and form resulting from the complete and control strategies; and the Agency to review whether there are • incomplete combustion of fuel and further ways to reduce emissions of Monitoring, recordkeeping and small amounts of engine oil. While EPA pollutants from existing stationary reporting requirements for owners and uses the term ‘‘diesel exhaust’’ as a diesel engines. In its comments on operators of existing stationary engines static concept throughout this EPA’s 2006 proposed rule for new subject to emissions standards. document, EPA recognizes that the stationary diesel engines,4 In this ANPR, EPA provides mixture of chemicals in diesel engine Environmental Defense suggested background information on: • Existing and other proposed efforts exhaust can vary in important ways, several possible avenues for the particularly when comparing exhaust to control stationary engine emissions; regulation of existing stationary diesel • Some of the information we have on from uncontrolled engines to exhaust engines, including use of diesel 1 existing stationary diesel engines; and from controlled engines. Diesel exhaust oxidation catalysts or catalyzed diesel • varies significantly in chemical Health concerns related to particulate filters, as well as the use of emissions from diesel engines. composition and particle sizes between ultra-low sulfur diesel (ULSD) fuel. different engine types (heavy-duty, Environmental Defense suggested that B. Why are emissions from diesel light-duty), engine operating conditions such controls can provide significant engines a health concern? (e.g., idle, acceleration, deceleration) pollution reductions at reasonable cost. EPA published a Diesel Health and fuel formulations (high/low sulfur). As a result of discussions with Assessment Document (Diesel HAD) in Over 600 compounds or elements have Environmental Defense and other 6 2 September 2002. Some of the HAD’s been identified in diesel exhaust. The interested stakeholders, EPA is important results are summarized here. emissions include particles composed of undertaking this Advance Notice of The Diesel HAD classified exposure to carbon and/or inorganic constituents Proposed Rulemaking (ANPR). The diesel exhaust as ‘‘likely to be with organics, trace elements and ions purpose of this action is to solicit carcinogenic to humans by inhalation’’ absorbed onto the particles, and organic comment and collect information to aid at environmental levels of exposure. and inorganic gases. The PM present in decision-making related to the reduction Other agencies at the international, diesel exhaust consists primarily of fine of HAP emissions from existing federal and state level have come to particles (generally referring to particles stationary diesel engines and similar conclusions.7 The EPA Diesel less than or equal to 2.5 micrometers specifically from larger, older engines HAD provided insight into the possible (µm) in diameter), including a subgroup under Clean Air Act (CAA) section 112 ranges of lung cancer risk that might be with a large number of ultrafine authorities.5 The Agency is seeking present in the population resulting from particles (generally referring to particles µ comment on the larger, older engines environmental exposure to diesel less than 0.1 m in diameter). because available data indicate that they Collectively, these particles have a large emissions. Lifetime cancer risk may emit the majority of PM and toxic ¥5 surface area which makes them effective exceed 10 and could be as high as emissions from non-emergency 10¥3. Because of uncertainties, the for absorbing organic and inorganic stationary engines as a whole. HAPs. Their small size also makes them analysis acknowledged that the risks The EPA requests comment on could be lower than 10¥4 or 10¥5, and highly respirable and able to reach specific, well supported information deeply into the lungs.3 a zero risk from diesel exhaust exposure that will assist the Agency with moving As discussed below, EPA has already was not ruled out. This range of values forward with the regulation of existing taken several actions to reduce pollution includes numerous uncertainties and, as from diesel engines. In combination, stationary diesel engines (Section III). discussed in the Diesel HAD, does not The areas for which EPA is seeking constitute an Agency cancer unit risk 1 comment include: range suitable for estimating the number While the EPA Diesel Health Assessment • Document refers to ‘‘diesel exhaust’’ in general, it Locations of stationary diesel of cancer cases resulting from exposure also notes that the ‘‘health hazard conclusions are engines; to diesel exhaust. EPA’s 1999 National- based on exhaust emissions from diesel engines • Usage and duty cycles; Scale Air Toxics Assessment (NATA) built prior to the mid-1990s. * * * As new and • cleaner diesel engines, together with different diesel Technical parameters that help does not include a quantitative estimate fuels, replace a substantial number of existing define ‘‘older’’ engines for purposes of of cancer risk for diesel exhaust, but it engines, the general applicability of the health defining potential subcategories of concludes that diesel exhaust ranks hazard conclusions will need to be reevaluated.,’’ engines; ‘‘Health Assessment Document for Diesel Engine with the other emissions that the Exhaust,’’ U.S. Environmental Protection Agency, 600/8–90/057F, http://www.epa.gov/ttn/atw/ 4 ‘‘Standards of Performance for Stationary Spark 6 Health Assessment Document for Diesel Engine dieselfinal.pdf, May 2002, p. 1–3. Ignition Internal Combustion Engines and National Exhaust,’’ U.S. Environmental Protection Agency, 2 ‘‘Expanding and Updating the Master List of Emission Standards for Hazardous Air Pollution for 600/8–90/057F, http://www.epa.gov/ttn/atw/ Compounds Emitted by Mobile Sources—Phase III Reciprocating Internal Combustion Engines,’’ 71 FR dieselfinal.pdf, May 2002. Final Report,’’ U.S. Environmental Protection 33803–33855, www.epa.gov/ttn/atw/rice/ 7 A [0] number of other agencies (National Agency, EPA420–R–06–005, http://www.epa.gov/ ricepg.html, June 12, 2006. Institute for Occupational Safety and Health, the otaq/regs/toxics/420r06005.pdf, February 2006. 5 If reductions in HAP emissions occur in the International Agency for Research on Cancer, the 3 ‘‘Air Quality Criteria for Particulate Matter,’’ future through the issuance of EPA regulation, World Health Organization, California EPA, and the U.S. Environmental Protection Agency, Volume II because some HAPs are in the particulate form, a U.S. Department of Health and Human Services) Document No. EPA600/P–99/002bF, October 2004, reduction in HAP emissions may also result in have made similar classifications regarding the Chapter 6. reductions of emissions of particulate matter. diesel exhaust lung cancer hazard.

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national-scale assessment suggests pose that the NATA modeling framework has Diesel exhaust also includes NOX and the greatest relative risk.8 The purpose a number of limitations which prevent volatile organic compounds, which of this national-scale assessment is to its use as the sole basis for setting react in the presence of sunlight to form provide a perspective on the magnitude regulatory standards. These limitations ozone. Ozone contributes to serious of risks posed by outdoor sources of air and uncertainties are discussed on the public health problems, including toxics and to identify the pollutants and 1999 NATA Web site. Even so, this aggravation of respiratory disease (as sources that are important contributors modeling framework is very useful in indicated by increased hospital to these health risks. identifying air toxic pollutants and admissions and emergency room visits, The Diesel HAD established an sources of greatest concern, setting school absences, lost work days, and inhalation Reference Concentration regulatory priorities, and informing the restricted activity days), changes in lung (RfC) of 5 µg/m3 for diesel exhaust as decision making process.15 function and increased respiratory measured by diesel PM.9 The Diesel Diesel emissions contain fine and symptoms, altered respiratory defense HAD concludes ‘‘that acute exposure to ultra-fine PM and contribute mechanisms, and chronic bronchitis. In DE [diesel exhaust] has been associated significantly to ambient PM2.5 addition, there is suggestive evidence of with irritation of the eye, nose, and concentrations in many areas of the a contribution of ozone to throat, respiratory symptoms (cough and country.16 The nature of the effects that cardiovascular-related morbidity and phlegm), and neurophysiological have been reported to be associated with highly suggestive evidence that short- symptoms such as headache, fine particle exposures include term ozone exposure directly or lightheadedness, nausea, vomiting, and premature mortality, aggravation of indirectly contributes to non-accidental numbness or tingling of the respiratory and cardiovascular disease and cardiopulmonary-related mortality, extremities.’’ 10 There is also evidence of (as indicated by increased hospital but additional research is needed to immunologic effects such as the admissions and emergency department more fully establish underlying exacerbation of allergenic responses to visits), changes in lung function and mechanisms by which such effects known allergens and asthma-like increased respiratory symptoms, as well occur.20 symptoms. as new evidence for more subtle Diesel exhaust is a mixture that indicators of cardiovascular health (71 Tables 3 and 4 in the Section II.D. includes HAPs that are known or FR 61152, October 17, 2006).17 The PM below indicate that older, larger non- suspected human carcinogens or have Air Quality Criteria Document also emergency stationary source diesel noncancer effects, including benzene, notes that the PM components of engines generate a substantial share of 1,3-butadiene, formaldehyde, gasoline and diesel engine exhaust the emissions from all stationary diesel acetaldehyde, polycyclic organic matter represent one class of hypothesized engines. In this context, it is important (POM), and naphthalene. Benzene11 and likely important contributors to the to consider the health effects associated 1,3-butadiene12 are known human observed ambient PM-related increases with diesel exhaust. carcinogens. Noncancer health effects in lung cancer incidence and C. What is the Agency already doing to 18 may include neurological, mortality. The PM2.5 National address diesel emissions from new and cardiovascular, liver, kidney, and Ambient Air Quality Standard is existing stationary and mobile diesel respiratory effects, as well as effects on designed to provide protection from the engines? the immune and reproductive systems. noncancer and premature mortality Several of the HAPs emitted by diesel effects of PM2.5 as a whole, of which EPA has undertaken several specific engines (e.g., acrolein, benzene, 1,3- diesel PM is a constituent.19 regulatory efforts to control emissions butadiene, formaldehyde, naphthalene, from new or reconstructed stationary and POM) were identified in EPA’s 1999 69534, http://www.epa.gov/fedrgstr/EPA-AIR/2007/ diesel engines. In June 2004, EPA NATA as national or regional cancer December/Day-07/a23556.htm, December 2007. published national emission standards and/or noncancer risk drivers.13 15 For more information on NATA, see http:// for hazardous air pollutants (NESHAP) www.epa.gov/ttn/atw/nata1999/risksum.html. for stationary reciprocating internal However, EPA does not have high 16 ‘‘Health Assessment Document for Diesel 21 confidence in the NATA data for all Engine Exhaust,’’ U.S. Environmental Protection combustion engines (RICE) with a site these compounds.14 It should be noted Agency, 600/8–90/057F, http://www.epa.gov/ttn/ rating of greater than 500 brake horse atw/dieselfinal.pdf, May 2002, p. 2–97, Table 2–23. power (BHP) located at major sources.22 17 8 For more information on NATA, see http:// Detailed information on the health effects of www.epa.gov/ttn/atw/nata1999/risksum.html. PM is provided in: ‘‘Air Quality Criteria for Particulate Matter,’’ U.S. Environmental Protection http://www.epa.gov/oms/locomotv.htm, April 3, 9 An RfC is defined by EPA as ‘‘an estimate of a Agency, Volume I, EPA600/P–99/002aF and 2007. continuous inhalation exposure to the human Volume II, EPA600/P–99/002bF, October 2004; 20 Detailed information regarding the health population, including sensitive subgroups, with ‘‘Review of the National Ambient Air Quality effects of ozone[0] is provided in: ‘‘Air Quality uncertainty spanning perhaps an order of Standard for Particulate Matter: Policy Assessment Criteria for Ozone and Related Photochemical magnitude, which is likely to be without of Scientific and Technical Information, OAQPS Oxidants (Final),’’ U.S. Environmental Protection appreciable risks of deleterious noncancer effects Staff Paper,’’ U.S. Environmental Protection Agency, EPA/600/R–05/004aF–cF, 2006, pp. 7–97 during a lifetime.’’ Agency, EPA–452/R–05–005, 2005; ‘‘National and 8–78; ‘‘Review of the National Ambient Air 10 ‘‘Health Assessment Document for Diesel Ambient Air Quality Standards for Particulate Quality Standards for Ozone: Policy Assessment of Engine Exhaust,’’ U.S. Environmental Protection Matter; Proposed Rule,’’ 71 FR 2620–2708, 2626– Scientific and Technical Information, OAQPS Staff Agency, 600/8–90/057F, http://www.epa.gov/ttn/ 2637, http://www.epa.gov/air/particlepollution/ Paper,’’ U.S. Environmental Protection Agency, atw/dieselfinal.pdf, May 2002, p. 9–9. actions.html, January 17, 2006 and ‘‘National EPA–452/R–07–003, January 2007; and ‘‘National 11 Integrated Risk Information System File for Ambient Air Quality Standards for Particulate Ambient Air Quality Standards for Ozone: Proposed Benzene, U.S. Environmental Protection Agency, Matter; Final Rule,’’ 71 FR 61144–61233, http:// Rule,’’ 72 FR 37818–37919, 37844 and 37836, http://www.epa.gov/ncea/iris/subst/0276.htm, 2000. www.epa.gov/air/particlepollution/actions.html, http://www.epa.gov/air/ozonepollution/ 12 Integrated Risk Information System File for 1,3- October 17, 2006. actions.html, July 11, 2007. Butadiene, U.S. Environmental Protection Agency, 18 ‘‘Air Quality Criteria for Particulate Matter,’’ 21 A reciprocating engine is an internal http://www.epa.gov/ncea/iris/subst/0139.htm, 2002. U.S. Environmental Protection Agency, Volume I, combustion engine that uses reciprocating motion 13 More information on NATA risk drivers is EPA600/P–99/002aF and Volume II, EPA600/P–99/ to convert heat energy into mechanical work. available at: http://www.epa.gov/ttn/atw/nata1999/ 002bF, October 2004, p. 8–318. 22 ‘‘National Emission Standards for Hazardous risksum.html. 19 ‘‘Control of Emissions of Air Pollution From Air Pollutants for Stationary Reciprocating Internal 14 See ‘‘Control of Emissions From New Marine Locomotive Engines and Marine Compression- Combustion Engines,’’ 69 FR 33474–33522, Compression-Ignition Engines at or Above 30 Liters Ignition Engines Less Than 30 Liters per Cylinder; www.epa.gov/ttn/atw/rice/ricepg.html, June 15, per Cylinder; Proposed Rule,’’ 72 FR 69521–69552, Proposed Rule,’’ 72 FR 15937–15986, 15958, 2004.

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The rule contains emission limitations CI ICE NSPS affects stationary CI ICE uncontrolled emission levels. This for new and reconstructed compression that commenced construction, program, when fully phased in, will ignition (i.e. diesel) stationary RICE, modification or reconstruction after July provide annual emission reductions among other sources. In that action, EPA 11, 2005. EPA generally requires that equivalent to removing the pollution identified stationary RICE as major engines affected by the rulemaking use from more than 90 percent of today’s sources of HAP emissions, such as ULSD 25 for all engines (emergency and trucks and buses, or about 13 million formaldehyde, acrolein, methanol, and non-emergency). EPA expects that non- trucks and buses. We project that in acetaldehyde. The NESHAP required all emergency engines will need to use 2030, when the current heavy-duty RICE above 500 BHP located at major diesel particulate filters and NOX vehicle fleet is completely replaced with sources to meet HAP emission standards aftertreatment to meet the NSPS. The newer heavy-duty vehicles that comply reflecting the application of the final standards will reduce NOX by an with these emission standards, this maximum achievable control estimated 38,000 tpy, PM by an program will reduce annual emissions technology (MACT). EPA estimated at estimated 3,000 tpy, sulfur dioxide by of non-methane hydrocarbons by the time that 40% of stationary RICE an estimated 9,000 tpy, nonmethane 115,000 tons, PM by 109,000 tons, and would be located at major sources and hydrocarbons by an estimated 600 tpy, NOX by 2.6 million tons. Similarly, the thus, subject to the final rule. New or and CO by an estimated 18,000 tpy in nonroad program will reduce NOX and reconstructed stationary RICE that the year 2015. PM emissions from nonroad diesel operate exclusively as emergency or In June 2006, EPA published a engines by more than 90 percent. Both limited use units were subject only to proposed NESHAP for stationary RICE rules will provide a wide range of initial notification requirements. The that either are located at area sources of public health benefits. Additionally, RICE rule is projected to reduce total HAP emissions or that have a site rating EPA has recently proposed regulations national HAP emissions by an estimated of less than or equal to 500 BHP and are for locomotive and marine engines. 5,600 tons per year (tpy) in the 5th year located at major sources of HAP These regulatory programs will 26 after the rule is promulgated. EPA emissions. In that same action, EPA ultimately yield reductions of PM and expects that engine manufacturers will also proposed NSPS for stationary spark NOX from mobile sources as high as achieve the expected reductions by ignition internal combustion engines. In 90%, depending upon engine category. installing diesel oxidation catalysts. The December 2007, EPA finalized the NSPS EPA has also developed the National emissions reduction performance for spark ignition engines and the Clean Diesel Campaign, which aims to provided by the installation of diesel NESHAP for new stationary RICE reduce emissions from existing mobile oxidation catalysts through this rule sources. EPA will be issuing a proposed source diesel engines through were projected to reduce PM emissions NESHAP for existing engines in 2009. innovative retrofit programs. Through from the affected engines by 20–30%, For new mobile source diesel engines, the campaign, as of 2005 more than 300 EPA has issued the Heavy-Duty clean diesel projects nationwide are compared with uncontrolled engines. 27 In July 2006, EPA published new Highway Diesel Engine and Fuel Rule resulting in significant emission and the Clean Air Nonroad Diesel reductions (in lifetime tons) including: source performance standards (NSPS) 28 for new stationary compression ignition Engine and Fuel Rule regulatory 110,000 NOX, 20,000 PM, 35,000 (CI) internal combustion engines programs. Overall, the substantial hydrocarbons and 25,000 carbon 29 (ICE).23 24 The standards implement majority of diesel exhaust is emitted monoxide (CO). To date, emissions section 111(b) of the CAA and are based from mobile sources rather than from more than 200,000 diesel vehicles on the Administrator’s determination stationary sources. Engines meeting the have been reduced through these that stationary CI ICE cause, or emission standards required by the projects. contribute significantly to, air pollution Heavy-Duty Highway Diesel Engine and In addition to these rulemakings, EPA that may reasonably be anticipated to Fuel Rule achieve a greater than 98 is reviewing its ability to take certain endanger public health or welfare. The percent reduction in PM and NOX over steps to further encourage emission standards require all new, modified, and reductions from existing diesel engines, 25 EPA also requires ULSD for nonroad and on- reconstructed stationary CI ICE to use including: highway engines that should help ensure 1. Publishing a control techniques the best demonstrated system of widespread availability of the fuel for stationary guideline/alternative control technology continuous emission reduction of PM, engines. See ‘‘Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle document for existing stationary diesel NOX, hydrocarbons and CO considering Standards and Highway Diesel Fuel Sulfur Control engines; costs, non-air quality health, and Requirements,’’ 66 FR 5001–5193, www.epa.gov/ 2. Developing guidance pertaining to environmental and energy impacts. The otaq/highway-diesel/regs/2007-heavy-duty- EPA review of federal actions under the highway.htm, January 2001 and ‘‘Control of National Environmental Policy Act and 23 ‘‘Standards of Performance for Stationary Emissions of Air Pollution From Nonroad Diesel Compression Ignition Internal Combustion Engines; Engines and Fuel,’’ 69 FR 38957–39273, CAA section 309 addressing the Final Rule,’’ 71 FR 39153–39185, www.epa.gov/ www.epa.gov/nonroad-diesel/2004fr.htm, June 29, characterization and mitigation of fedrgstr/EPA-AIR/2006/July/Day-11/a5968.htm, 2004. emissions from new and existing diesel 26 July 11, 2006. ‘‘Standards of Performance for Stationary Spark engines; 24 Ignition Internal Combustion Engines and National Similar to the diesel engines covered by the 3. Encouraging emission controls for RICE rule, these compression ignition, internal Emission Standards for Hazardous Air Pollution for combustion engines are also reciprocating, diesel Reciprocating Internal Combustion Engines,’’ 71 FR existing stationary diesel engines engines. However, the 2006 NSPS rulemaking 33803–33855, www.epa.gov/ttn/atw/rice/ through voluntary programs; covered fewer types of engines and different ricepg.html, June 12, 2006. 4. Exploring methods of promoting pollutants than the June 2004 RICE rule. The 2006 27 See ‘‘Control of Air Pollution from New Motor the use of clean diesel engines by rulemaking addressed criteria pollutants from Vehicles: Heavy-Duty Engine and Vehicle compression ignition engines, while the 2004 RICE Standards and Highway Diesel Fuel Sulfur Control entities in the federal government; and rule addressed HAP emissions from both Requirements,’’ 66 FR 5001–5193, www.epa.gov/ compression-ignition and spark-ignition engines, otaq/highway-diesel/regs/2007-heavy-duty- 29 For more information, see ‘‘National Clean both of which are reciprocating engines. For that highway.htm, January 2001. Diesel Campaign: Innovative Strategies for Cleaner reason, the 2004 engine rule refers to the engines 28 See ‘‘Control of Emissions of Air Pollution Air, 2005 Progress Report,’’ U.S. Environmental it covers as ‘‘RICE’’ rather than the narrower term From Nonroad Diesel Engines and Fuel,’’ 69 FR Protection Agency, EPA420-R–06–009, http:// used to describe the engines covered by the 2006 38957–39273, www.epa.gov/nonroad-diesel/ www.epa.gov/cleandiesel/documents/ engine rule: CI ICE. 2004fr.htm, June 29, 2004. 420r06009.pdf, June 2006.

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5. Publishing a white paper together Emergency engines operate on an other Tables in this notice) are largely with an analytical tool for local areas emergency or as-needed basis, including uncontrolled at the Federal level as and states to estimate health benefits of periodically for short periods of time for EPA’s emissions standards for stationary diesel emissions reduction strategies. testing purposes to ensure engine diesel engines did not take effect until In addition, EPA, among others, is performance in the event of an August 2004. Non-emergency engines helping to fund the study of differences emergency. Applications for emergency are estimated to emit 90% of total in the health effects associated with PM engines include electric power for combined PM and NOX emissions from from cleaner burning diesel engines. emergency commercial and institutional all stationary diesel engines, while needs. For example, hospitals and any emergency engines are estimated to emit D. What do we know about existing other facilities that require power in the 10% of total PM and NOX emissions. stationary diesel engines? event of a power outage may use Based on this information, we believe EPA’s knowledge about the types of emergency engines. Emergency engines that a relatively small percentage of the and use of stationary diesel engines typically operate an average of 50 hours total number of stationary diesel engines consists primarily of certain general per year. operating in the United States are information. Based on the number of Based on (1) sales information from emitting a significant amount of the hours of operation, existing stationary diesel engine manufacturers, (2) data HAPs from stationary diesel engines diesel engines are considered either from the Power Systems Research overall. non-emergency or emergency. Database and (3) estimates of the Of the non-emergency engines, about Generally, non-emergency engines stationary source fraction of the total 36,000 non-emergency engines rated operate about 1,000 hours per year, engine sales, EPA estimates that there 300 BHP or higher were built prior to though they can run more or less than are about 900,000 existing stationary 1996, which is about 21% of all non- that. Non-emergency engines are compression ignition (CI) or diesel emergency engines (see Table 2). These engines that are used for several engines in the U.S. (see Table 1). About 36,000 engines emit about: purposes or applications such as: oil 20% of the engines (about 180,000) are • 57% of the total PM emissions from and gas industry, including oil and gas considered non-emergency and about all stationary non-emergency diesel extraction and transmission; agriculture 80% are considered emergency (about engines (see Table 3); and (e.g., irrigation pumps); and generation 720,000). • 59% of the total HAP emissions of electricity in remote areas or for Generally, diesel emissions from the from all stationary non-emergency purposes of meeting peak demand. engines reflected in Table 1 (and the diesel engines (see Table 4).

TABLE 1.—ENGINE MANUFACTURERS ASSOCIATION ESTIMATES OF STATIONARY DIESEL ENGINES IN USE IN THE U.S.

Engine ratings < 1980 1980–1994 1995–2001 2002–2005 Totals Percent

≥50 and <100 BHP ...... 26,200 62,759 49,919 22,521 161,399 17.9 ≥100 and <175 BHP ...... 57,426 92,857 61,572 23,634 235,489 26.1 ≥175 and <300 BHP ...... 27,198 63,991 57,739 40,877 189,805 21.1 ≥300 and <600 BHP ...... 70,303 53,188 38,778 31,403 193,672 21.5 ≥600 and <750 BHP ...... 8,562 12,664 10,743 8,648 40,617 4.5 ≥750 ...... 6,899 28,357 33,835 10,520 79,611 8.8

Totals ...... 196,588 313,816 252,586 137,603 900,593 99.9 Percent ...... 21 .8 34 .8 28 .0 15 .3 ...... Notes: • The Engine Manufacturers Association engine sales data that was used to help develop these numbers represent 70% of total U.S. engine sales. • Assumes all 1999–2005 engines are currently in operation. • Total percent does not equal 100 due to rounding. Source: Engine Manufacturers Association.

TABLE 2.—ENGINE MANUFACTURERS ASSOCIATION ESTIMATES OF NON-EMERGENCY STATIONARY DIESEL ENGINES IN USE IN THE U.S.

Engine ratings < 1980 1980–1995 1996–2001 2002–2005 Totals Percent

≥50 and <100 BHP ...... 4,978 14,145 7,264 4,279 30,666 17.9 ≥100 and <175 BHP ...... 10,911 21,163 8,179 4,490 44,743 26.1 ≥175 and <300 BHP ...... 5,168 14,700 8,429 7,767 36,064 21.1 ≥300 and <600 BHP ...... 13,358 11,217 6,256 5,967 36,798 21.5 ≥600 and <750 BHP ...... 1,627 2,644 1,804 1,643 7,718 4.5 ≥750 ...... 1,311 6,212 5,605 1,999 15,127 8.8

Totals ...... 37,353 70,081 37,537 26,145 171,116 100.0

Engines > 300 BHP and < 1996: 36,369 (21.3 of all non-emergency engines) Notes: • EPA is providing the 36,369 engine number because we are considering focusing for regulation on non-emergency diesel engines that were built before 1996 and that are rated greater than 300 BHP, although EPA is open to alternatives that commenters may propose. See Section III for a more detailed discussion of this issue. Source: Engine Manufacturers Association.

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TABLE 3.—ENGINE MANUFACTURERS ASSOCIATION ESTIMATES OF PERCENT PM EMISSIONS FROM NON-EMERGENCY ENGINES

Engine ratings <1980 1980–1995 1996–2001 2002–2005 Totals

≥50 and <100 BHP ...... 1.3 2.4 0.7 0.3 4.7 ≥100 and <175 BHP ...... 5 .0 6 .5 1 .3 0 .4 13 .2 ≥175 and <300 BHP ...... 4 .1 7 .8 1 .8 0 .6 14 .3 ≥300 and <600 BHP ...... 20 .1 11 .3 2 .5 0 .9 34 .8 ≥600 and <750 BHP ...... 3 .7 4 .0 1 .1 0 .4 9 .2 ≥750 ...... 4 .4 13 .9 5.0 0.7 24

Totals ...... 38 .6 45 .9 12.4 3.3 100.2

Percent PM Emissions from non-emergency engines >300 BHP built prior to 1996: 57.4. Notes: • The percent estimates are based on an Engine Manufacturers Association assumption that non-emergency engines operate about 2,000 hours/year. EPA in its rulemaking analyses assumes about 1,000 hours/year of operation for non-emergency engines. The 2,000 hours/year as- sumption is used here because we are using the most readily available information that the Engine Manufacturers Association has provided to EPA. However, EPA would not expect the percent estimates in this table to differ significantly under the 1,000 hours/year EPA assumption. • Emissions estimates based on EPA AP–42 emission factors and recent mobile source emission factors: www.epa.gov/ttn/chief/ap42/ch03/ index.html. • Total percent does not equal 100 due to rounding. Source: Engine Manufacturers Association.

TABLE 4.—U.S. ENVIRONMENTAL PROTECTION AGENCY ESTIMATES OF PERCENT HAP EMISSIONS FROM NON- EMERGENCY ENGINES

Engine ratings <1980 1980–1995 1996–2001 2002–2005 Totals

≥50 and <100 BHP ...... 0.5 1.4 0.5 0.2 2.6 ≥100 and <175 BHP ...... 2 .5 4 .9 1 .1 0 .5 9.1 ≥175 and <300 BHP ...... 2 .3 6 .6 1 .7 1 .0 11.7 ≥300 and <600 BHP ...... 17 .4 14 .6 2 .4 2 .3 36.7 ≥600 and <750 BHP ...... 4 .4 7 .1 1 .1 1 .0 13.5 ≥750 ...... 2 .7 12 .7 9.3 1.7 26.4

Totals ...... 29 .9 47 .4 16.1 6.6 100.0

Percent HAP Emissions from non-emergency engines >300 BHP built prior to 1996: 58.9. Notes: • Percent estimates based on assumption that non-emergency engines run about 1,000 hours/year. EPA in its rulemaking analyses assumes about 1,000 hours/year for non-emergency engines. • HAP emissions estimates include: Formaldehyde, acetaldehyde, polycyclic aromatic hydrocarbons, naphthalene, and acrolein. • Emissions estimates based on EPA AP–42 emission factors and recent mobile source emission factors: www.epa.gov/ttn/chief/ap42/ch03/ index.html. Source: U.S. Environmental Protection Agency.

III. Specific Issues on Which EPA Is A. What particular subgroups of existing engines represent stationary engines Seeking Comment stationary diesel engines should EPA that EPA believes are largely focus on and how can EPA best find uncontrolled. In addition, diesel retrofit Although we have some limited information on those engines? controls are typically more cost effective information about larger, older and technically feasible the larger the stationary diesel engines, we have a Currently, EPA is considering engine. 30 When these three criteria need for more detailed and current data focusing on non-emergency diesel are combined, it comprises a set of related to existing engines. We are engines that were built before 1996 and larger, older non-emergency engines issuing this ANPR to request that are rated greater than 300 BHP, that represent the majority of PM and information that will help inform our although EPA is open to alternatives toxics emissions from non-emergency efforts on how best to control emissions that commenters may propose that are engines as a whole (see Tables 3 and 4). from these engines. There are several well supported with appropriate data. While we believe this is an issues that we need to understand more We are focusing on non-emergency appropriate set of engines to focus on, fully in order to implement a program engines, because, while they represent we are requesting comment on whether for existing stationary diesel engines. In only 20% of the total number of there are other appropriate categories of stationary engines, they are responsible this section, we break down the specific engines that should also be considered. for a significant amount of HAP For example, should EPA consider areas of interest for which we are emissions from stationary engines. EPA requiring emission reductions for non- requesting comment. is considering focusing on pre-1996 engines because, generally speaking, 30 For more information, see ‘‘The Cost- emissions controls were not Effectiveness of Heavy-Duty Diesel Retrofits and Other Mobile Source Emission Reduction Projects implemented in a significant way on and Programs,’’ U.S. Environmental Protection nonroad diesel engines until the 1996 Agency, EPA420–B–07–006, www.epa.gov/ engine model year. Thus, the pre-1996 cleandiesel/publications.htm, May 2007.

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emergency stationary diesel engines the owners and operators of these data, cost data and other information to built in the late 1990s (notwithstanding sources. inform our approach to these issues. For our estimates that total emissions from We are aware of the following example, EPA would like clarification these engines are lower). The list below information sources from which we on the following: further explores diesel control need information that we currently lack: • The extent to which low sulfur and technologies and associated emission • State-managed permit databases; ULSD fuel may be problematic in reduction issues. • State-gathered information through certain older engines due to fuel system Particular areas for categorization of surveys and other means; seal leakage and how this problem has • engines on which we could focus Engine manufacturer and owner/ been addressed through fuel additives include: operator and fuel industry information and/or modifications to mobile source • The model year of the engine, such as fuel distribution/delivery engines; including engines built since 1996 and records, and fuel storage tank sales, • Potential for the malfunction of remaining useful engine life for older repairs, and permits; • diesel retrofit devices on older engines engines; Industry sectors that are major (e.g., diesel particulate filters), the • The type and size of engine, owners and operators of diesel engines, engine conditions that lead to this including engines rated less than 300 including their trade associations such problem, and appropriate precautions to BHP in size; as the Interstate Natural Gas Association avoid malfunction; of America and the American Petroleum • The number of hours of operation • Technical feasibility of controls for Institute; and and/or time profile annually or over a short use periods (e.g., need for controls • Diesel control technology shorter term; to warm up in order to be effective, the • The applicable technologies, and manufacturers. We would like to know if states have need for these engines to start corresponding emissions reductions immediately without mechanical available, for given ages and sizes of an accurate count of the number of engines operating in the state, including complications); engines; • their purpose and hours of operation. If Cost-effectiveness of controls on • The duty cycle; so, EPA is also interested in the source existing engines (i.e., emissions • The sector or use; of the information (e.g., a state permit reductions relative to cost and hours • The ability of engine owners and database). We are also interested in any operated); operators to access the lower sulfur fuel small business impacts and other • Cost, availability and emissions necessary to ensure the proper relevant information about the owners related to fuel substitution systems performance of pollution control and operators and number of hours that using natural gas; devices; • • these engines operate. The equipment and operating costs Ease of installation and cost (and any challenges, including safety effectiveness of emissions reductions C. What are appropriate and available issues) associated with known control associated with controls on existing technically-feasible, cost-effective technologies; stationary diesel engines, including methods of controlling emissions from • Engine size limitations beyond newer, later model year engines; and existing stationary diesel engines? • which a control technology may become Any other distinguishing EPA seeks information on control infeasible and for what reason; and characteristics commenters may think technologies and other methods for • Any other technical and economic important. reducing diesel HAP emissions from feasibility issues that would affect the B. Where can EPA find better existing stationary diesel engines, control of emissions reductions from information about the location and particularly for non-emergency, pre- older, larger and smaller diesel engines. numbers of existing stationary engines, 1996 engines that are rated greater than D. To what degree do state and local who owns and operates them and what 300 BHP. These methods include, but governments regulate emissions from impact they are having (including hours are not limited to, one or more of the stationary diesel engines? of operation)? following: • Retrofitting with diesel particulate EPA requests comment on the extent Above, EPA lays out the general filters, including both actively and information it has available on the to which state and local governments passively regenerated filters; have issued regulations to reduce numbers of stationary diesel engines • Retrofitting with partial flow filters; believed operating today. EPA • emissions from stationary diesel engines Retrofitting with oxidation of all sizes, particularly the larger, older specifically estimates that there are catalysts; approximately 36,000 non-emergency, • engines. EPA is aware, for example, that Retrofitting with closed crankcase 31 pre-1996 stationary diesel engines larger the States of California and ventilation systems; Wisconsin 32 have issued rules that than 300 BHP. EPA seeks comment on • Engine recalibration or fuel system the accuracy of these numbers, as well mandate reductions of particulate upgrade; emissions from existing stationary as of the other estimates in Tables 3 and • Replacement with new, state-of-the- diesel engines. EPA is interested in 4. EPA is requesting any information art engines; information about other state and local that informs its understanding of the • Use of low sulfur diesel (500 parts governments that have issued number and distribution of these per million (ppm)) or ULSD (15 ppm) stationary diesel engines and the fuel; 31 group(s) that would be most affected by • Use of fuel substitution systems For more information on the California rule, see: ‘‘Airborne toxic control measure for stationary any requirements to reduce emissions. using natural gas; compression ignition engines,’’ section 93115, title We also lack detailed information on • Use of biodiesel; and 17, California Code of Regulations, www.arb.ca.gov/ the location of these sources, including • Management practices. diesel/ag/documents/finalatcm.pdf. their owners and operators. If EPA EPA understands that there may be 32 For more information on the Wisconsin rule, see: ‘‘Fuel, control and compliance requirements for proposes standards based on engine size limitations, both economic and compression ignition internal combustion engines and age criteria, then we would need technical, to certain control methods combusting fuel oil,’’ section NR 445.09, detailed information on the location or and solicits engine emissions testing www.legis.state.wi.us/rsb/code/nr/nr445.pdf.

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regulations controlling emissions from DEPARTMENT OF HOMELAND determinations of BFEs and modified existing stationary diesel engines. SECURITY BFEs for each community listed below, in accordance with section 110 of the E. What are appropriate methods of Federal Emergency Management Flood Disaster Protection Act of 1973, ensuring compliance with such Agency 42 U.S.C. 4104, and 44 CFR 67.4(a). requirements, including recordkeeping These proposed BFEs and modified and testing issues? 44 CFR Part 67 BFEs, together with the floodplain Given the large population of [Docket No. FEMA–B–7759] management criteria required by 44 CFR stationary diesel engines and our lack of 60.3, are the minimum that are required. information on the location and owners Proposed Flood Elevation They should not be construed to mean and operators of these engines, EPA Determinations that the community must change any requests comment on effective methods existing ordinances that are more AGENCY: Federal Emergency stringent in their floodplain to ensure compliance with any emission Management Agency, DHS. reduction requirements. EPA also management requirements. The ACTION: Proposed rule. requests comment on the extent to community may at any time enact which the owners and operators of these SUMMARY: Comments are requested on stricter requirements of its own, or engines are small businesses and on the proposed Base (1 percent annual- pursuant to policies established by other what the appropriate regulatory chance) Flood Elevations (BFEs) and Federal, State, or regional entities. compliance requirements should be for proposed BFE modifications for the These proposed elevations are used to those entities. EPA is especially communities listed in the table below. meet the floodplain management interested in ways to minimize the The purpose of this notice is to seek requirements of the NFIP and are also monitoring burden to individual owners general information and comment used to calculate the appropriate flood and operators, while maintaining an regarding the proposed regulatory flood insurance premium rates for new appropriate level of environmental elevations for the reach described by the buildings built after these elevations are protection. downstream and upstream locations in made final, and for the contents in these the table below. The BFEs and modified buildings. IV. How EPA Intends To Proceed BFEs are a part of the floodplain Comments on any aspect of the Flood Following Publication of This Notice management measures that the Insurance Study and FIRM, other than the proposed BFEs, will be considered. Following the closing of the comment community is required either to adopt A letter acknowledging receipt of any period for this notice, EPA will or show evidence of having an effect in comments will not be sent. summarize and analyze the comments order to qualify or remain qualified for Administrative Procedure Act received. The summary and analysis participation in the National Flood Statement. This matter is not a will be used to help develop and inform Insurance Program (NFIP). In addition, rulemaking governed by the the notice of proposed rulemaking that these elevations, once finalized, will be Administrative Procedure Act (APA), 5 will follow this notice. used by insurance agents, and others to calculate appropriate flood insurance U.S.C. 553. FEMA publishes flood V. Statutory and Executive Order premium rates for new buildings and elevation determinations for notice and Reviews the contents in those buildings. comment; however, they are governed by the Flood Disaster Protection Act of Under Executive Order (EO) 12866 DATES: Comments are to be submitted on or before April 23, 2008. 1973, 42 U.S.C. 4105, and the National (58 FR 51735, October 4, 1993), this Flood Insurance Act of 1968, 42 U.S.C. ADDRESSES: action is a ‘‘significant regulatory The corresponding 4001 et seq., and do not fall under the action.’’ Accordingly, EPA submitted preliminary Flood Insurance Rate Map APA. (FIRM) for the proposed BFEs for each this action to the Office of Management National Environmental Policy Act. community are available for inspection and Budget (OMB) for review under EO This proposed rule is categorically at the community’s map repository. The 12866 and any changes made in excluded from the requirements of 44 respective addresses are listed in the response to OMB recommendations CFR part 10, Environmental have been documented in the docket for table below. You may submit comments, identified Consideration. An environmental this action. Generally, because this impact assessment has not been action is ‘‘advanced’’ in nature and does by Docket No. FEMA–B–7759, to William R. Blanton, Jr., Chief, prepared. not, therefore, propose any requirements Regulatory Flexibility Act. As flood on any entities, the various Engineering Management Branch, Mitigation Directorate, Federal elevation determinations are not within administrative requirements EPA must the scope of the Regulatory Flexibility address in the rulemaking process are Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, Act, 5 U.S.C. 601–612, a regulatory not applicable. When EPA issues a flexibility analysis is not required. notice of proposed rulemaking that (202) 646–3151, or (e-mail) [email protected]. Executive Order 12866, Regulatory contains proposed emissions standards Planning and Review. This proposed for stationary diesel engines, EPA will FOR FURTHER INFORMATION CONTACT: rule is not a significant regulatory action address those requirements. William R. Blanton, Jr., Chief, under the criteria of section 3(f) of Engineering Management Branch, Lists of Subjects in 40 CFR Part 63 Executive Order 12866, as amended. Mitigation Directorate, Federal Executive Order 13132, Federalism. Environmental protection, Air toxics. Emergency Management Agency, 500 C This proposed rule involves no policies Street, SW., Washington, DC 20472, Dated: January 16, 2008. that have federalism implications under (202) 646–3151 or (e-mail) Executive Order 13132. Stephen L. Johnson, [email protected]. Executive Order 12988, Civil Justice Administrator. SUPPLEMENTARY INFORMATION: The Reform. This proposed rule meets the [FR Doc. E8–1118 Filed 1–23–08; 8:45 am] Federal Emergency Management Agency applicable standards of Executive Order BILLING CODE 6560–50–P (FEMA) proposes to make 12988.

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List of Subjects in 44 CFR Part 67 PART 67—[AMENDED] 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. Administrative practice and 1. The authority citation for part 67 procedure, Flood insurance, Reporting § 67.4 [Amended] continues to read as follows: and recordkeeping requirements. 2. The tables published under the Accordingly, 44 CFR part 67 is Authority: 42 U.S.C. 4001 et seq.; authority of § 67.4 are proposed to be proposed to be amended as follows: Reorganization Plan No. 3 of 1978, 3 CFR, amended as follows:

* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above State City/town/county Source of flooding Location** ground Existing Modified

City of Jackson, Missouri

Missouri ...... City of Jackson ...... Goose Creek ...... Confluence with Hubble Creek ...... +399 +401 Approximately 2.44 miles upstream of None +476 East Main Street. City of Jackson ...... Hubble Creek ...... Confluence with Goose Creek ...... +399 +400 Missouri State Route Y ...... None +474 City of Jackson ...... Neal Creek ...... Confluence with Goose Creek ...... +427 +428 Approximately 0.60 mile upstream of None +472 Woodland Drive. City of Jackson...... Ramsey Branch ...... Approximately 1.51 miles upstream of None +474 Hoppers Road. Approximately 1.62 miles upstream of None +477 Hoppers Road. City of Jackson ...... Rocky Branch ...... 0.21 miles upstream of confluence with +405 +406 Hubble Creek at South Farmington Road. Approximately 130 feet upstream of North None +470 Farmington Road. City of Jackson ...... Rocky Branch West Fork Confluence with Rocky Branch ...... None +410 Approximately 260 feet upstream of Old None +446 Toll Road. City of Jackson ...... West Fork of Williams Confluence with Williams Creek ...... None +419 Creek. Approximately 230 feet upstream of Old None +437 Cape Road. City of Jackson ...... Williams Creek ...... Approximately 0.39 miles downstream of +416 +414 Highway 61. Approximately 0.19 miles upstream of +438 +441 Bainbridge Road. * National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472. ADDRESSES City of Jackson Maps are available for inspection at 101 Court Street, Jackson, MO 63755.

* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Autauga County, Alabama, and Incorporated Areas

Autauga Creek ...... 365 feet southwest of the intersection of First Street +184 +180 City of Prattville. and Chestnut St. (Landward of Levee along Autauga Creek). 300 feet northwest of the intersection of Lower King- +184 +196 ston Road and Sixth St. (Landward of Levee along Autauga Creek).

* National Geodetic Vertical Datum. + North American Vertical Datum.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

# Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Prattville Maps are available for inspection at 101 W. Main Street, Prattville, AL 36067.

Lafayette Parish, Louisiana, and Incorporated Areas

Acadiana Coulee ...... At the confluence with Vermillion River ...... +15 +16 Unincorporated Areas of Lafayette Parish, City of Lafayette. Approximately 1800 feet Upstream of Guidry Road .... +27 +26 At the confluence with Vermillion River ...... +15 +16 City of Lafayette, Unincor- porated Areas of Lafay- ette Parish. Approximately 1189 feet upstream from intersection +27 +25 with Guidry Road. Bayou Carencro ...... Confluence with Vermillion River ...... +23 +22 Unincorporated Areas of Lafayette Parish. Intersection with Billeaux Road ...... None +42 Bayou Parc Perdue...... Approximately 5445 feet downstream of Chemin None +17 Town of Youngsville, Unin- Agreable (Parish Boundary). corporated Areas of La- fayette Parish. Confluence with Isaac Verot Coulee Lateral 3 ...... None +25 Bayou Que De Tortue ...... Approximately 11500 feet downstream of SH 35 ...... None +17 Town of Duson, Unincor- porated Areas of Lafay- ette Parish. Intersection of Whitmore Road ...... None +37 Beau Basin Coulee ...... Confluence with Vermillion River ...... None +20 Unincorporated Areas of Lafayette Parish, Town of Carencro. Intersection with Highway 49 ...... +40 +49 Broadmoor Coulee ...... Confluence with Vermillion River ...... None +16 City of Lafayette. At the intersection with Ambassader Caffery Parkway None +26 Coulee Ile Des Cannes Lat- At the confluence with Coulee Ile Des Cannes ...... None +19 Unincorporated Areas of eral 1. Lafayette Parish. Approximately 3,700 feet upstream of S. Fieldspan None +28 Road. Lateral 3...... Approximately 4,950 feet upstream from the con- +29 +28 City of Scott, City of Lafay- fluence with Coulee Ile Des Cannes. ette, Unincorporated Areas of Lafayette Par- ish. Approximately 500 feet upstream of Mills Road ...... +36 +35 Coulee Fortune North ...... At the confluence with Vermilion River (Storage area) +18 +15 Town of Broussard, Unin- corporated Areas of La- fayette Parish. Approximately 4,000 feet Upstream of S. Morgan +30 +27 Street. Coulee Fortune South ...... Approximately 700 feet downstream of U.S. HWY 90 None +20 Town of Broussard, Unin- East (Parish Boundary). corporated Areas of La- fayette Parish. Approximately 3,000 feet upstream of Heart D. Farm None +27 Road. Coulee Ile Des Cannes ...... At the confluence with Vermilion River ...... None +16 City of Scott, City of Lafay- ette, Unincorporated Areas of Lafayette Par- ish. Approximately 2,800 feet upstream of Cocodrill Road None +39 Lateral 2 ...... At the confluence with Coulee Ile Des Cannes ...... +25 +24 Unincorporated Areas of Lafayette Parish, City of Lafayette, City of Scott. Approximately 6,700 feet upstream of Ridge Road ..... +30 +29 Coulee LaSalle ...... At the parish boundary line ...... None +24 Unincorporated Areas of Lafayette Parish. 4,800 feet upstream of Cane Brake Road ...... None +25

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Coulee Lantier ...... At the confluence with Vermillion River ...... None +22 Unincorporated Areas of Lafayette Parish. 1600 feet upstream of Magellan Road ...... None +22 Confluence with Vermillion River ...... None +20 Approximately 1600 feet upstream of Magellan Road None +21 Coulee Mine ...... At the confluence with Vermillion River ...... +16 +17 City of Scott, City of Lafay- ette. At the intersection with Malapart Road ...... None +46 Lateral 1 (West Channel) At the confluence with Coulee Mine ...... +29 +25 City of Lafayette, Unincor- porated Areas of Lafay- ette Parish. At Renaud Drive ...... +37 +38 Dan Dabaillion Coulee ...... At the confluence with Vermillion River ...... +17 +19 City of Lafayette, Town of Carencro. At Guidry Lane ...... None +49 Darby Coulee ...... At the confluence with Vermillion River ...... None +14 Unincorporated Areas of Lafayette Parish. At the intersection of LA 339 ...... None +19 Edith Coulee ...... At the confluence with Vermillion River ...... None +15 Unincorporated Areas of Lafayette Parish. At the intersection with LA 733 ...... None +21 Grand Avenue Coulee ...... At the confluence with Vermillion River ...... +15 +16 City of Lafayette. At the Crawford Street crossing ...... +30 +29 IDC—Lateral 4 ...... At the confluence with Coulee Ile Des Cannes ...... None +27 Unincorporated Areas of Lafayette Parish. 3,500 feet upstream of Darceneaux Road ...... None +34 Isaac Verot Coulee—Lateral At the confluence with Isaac Verot Coulee ...... None +26 Unincorporated Areas of 3. Lafayette Parish, Town of Broussard, Town of Youngsville. Approximately 2,100 feet upstream of Serenity Road None +29 Lateral 2 ...... At the confluence with the Vermillion River ...... +15 +16 City of Lafayette, Unincor- porated Areas of Lafay- ette Parish. At the intersection with Highway 89 ...... None +36 Lateral 2A ...... At the confluence with IVC/Lateral 2 ...... None +28 City of Lafayette, Unincor- porated Areas of Lafay- ette Parish. 800 feet upstream of the intersection with Becky Lane None +30 Lateral 3 ...... At the confluence with Isaac Verot Coulee ...... None +26 Unincorporated Areas of Lafayette Parish. Approximately 250 feet from the intersection with None +29 Bonin Road. Jupiter Street Coulee ...... At the confluence with Webb Coulee ...... +30 +27 City of Lafayette, Unincor- porated Areas of Lafay- ette Parish. At the intersection with the Southern Pacific Railroad +40 +39 Manor Park Coulee...... Confluence with Vermillion River (BFE REMAINS +18 +19 Unincorporated Areas of CONSTANT). Lafayette Parish, City of Lafayette. Approximately 3,600 feet upstream of Parklane Rd +18 +19 (BFE REMAINS CONSTANT). Pont Brule Coulee ...... Approximately 4,330 feet downstream of State High- +22 +21 Unincorporated Areas of way 726 (Parish Boundary) (BFE REMAINS CON- Lafayette Parish. STANT). Approximately 3,000 feet upstream of State Highway +22 +21 726 (BFE REMAINS CONSTANT). Vermillion River ...... At the southern parish boundary line ...... +14 +15 Unincorporated Areas of Lafayette Parish. At the northern parish boundary line ...... +22 +21 Webb Coulee (Lower Reach) At the confluence with Vermillion River ...... +15 +16 Unincorporated Areas of Lafayette Parish. At the confluence with Jupiter Street Coulee ...... +30 +27 West Coulee Mine ...... At the confluence with Coulee Mine ...... +36 +35 City of Lafayette, City of Scott, Unincorporated Areas of Lafayette Par- ish. Approximately 6,800 feet upstream of Interstate 10 .... +36 +37

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Lafayette Maps are available for inspection at 705 W. University Ave., Lafayette, LA 70506. City of Scott Maps are available for inspection at 445 Lions Club Rd., Scott, LA 70583. Town of Broussard Maps are available for inspection at 416 East Main St., Broussard, LA 70518. Town of Carencro Maps are available for inspection at 210 East Saint Peter St., Carencro, LA 70520. Town of Duson Maps are available for inspection at 806 First St., Duson, LA 70529. Town of Youngsville Maps are available for inspection at 305 Iberia St., Youngsville, LA 70592. Unincorporated Areas of Lafayette Parish Maps are available for inspection at 101 East Cypress, Lafayette, LA 70501.

Benton County, Missouri, and Incorporated Areas

Lake of the Ozarks (Osage At confluence with Big Buffalo Creek ...... None +666 City of Warsaw, Unincor- River and tributaries). porated Areas of Benton County. At confluence with Cole Camp Creek ...... None +667 At U.S. Highway 65 ...... +667 +669

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Warsaw Maps are available for inspection at City Office, 181 W. Harrison, Warsaw, MO 65355. Unincorporated Areas of Benton County Maps are available for inspection at County Office, 316 Van Buren, Warsaw, MO 65355.

Miller County, Missouri, and Incorporated Areas

Grand Glaize Creek ...... Approximately 1 mile downstream of County Road None +672 Unincorporated Areas of 42–18. Miller County. Approximately 3,000 feet upstream of County Road None +680 42–18. Lake of the Ozarks (Osage At Bagnell Dam ...... None +664 City of Lake Ozark, Town River and tributaries). of Lakeside, Unincor- porated Areas of Miller County. Approximately 1 mile upstream of Bagnell Dam ...... None +664

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Lake Ozark Maps are available for inspection at City Office, 2624 Bagnell Dam Boulevard, Lake Ozark, MO 65049. Town of Lakeside Maps are available for inspection at Ameran UE, 617 River Road, Lake Ozark, MO 65049. Unincorporated Areas of Miller County Maps are available for inspection at County Office, 2001 Highway 52, Tuscumbia, MO 65082.

Morgan County, Missouri, and Incorporated Areas

Gravois Creek ...... At confluence with Osage River ...... None +664 Town of Gravois Mills, Un- incorporated Areas of Morgan County. Approximately 1400 feet upstream of Route TT ...... None +667 Lake of the Ozarks (Osage At confluence with Gravois Creek ...... None +664 Town of Gravois Mills, Un- River and tributaries). incorporated Areas of Morgan County. At confluence with Little Buffalo Creek ...... None +665

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Gravois Mills Maps are available for inspection at City Office, 154 Highway 5, Gravois Mills, MO 65037. Unincorporated Areas of Morgan County Maps are available for inspection at County Office, 100 East Newton, Versailles, MO 65084.

Douglas County, Nebraska, and Incorporated Areas

Hell Creek ...... Approximately 50 feet upstream of Harrison Street ..... +1055 +1052 Village of Boys Town, City of Omaha. At I Street ...... +1101 +1098 Just upstream of Pacific Street ...... None +1166 North Branch West Papillion Approximately 250 feet upstream of Blondo Street ..... +1118 +1117 Unincorporated Areas of Creek. Douglas County, City of Omaha. At Ida Street ...... +1164 +1165 At North 186th Street ...... None +1191 West Papillion Creek ...... Approximately 1200 feet upstream of Interstate 80 ..... +1044 +1045 City of Omaha. At U.S. Highway 6 (West Dodge Road) ...... +1105 +1106 At NE Highway 64 (West Maple Road) ...... +1184 +1182

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Omaha Maps are available for inspection at City Hall, 1819 Farnam Street, Omaha, NE 68183. Unincorporated Areas of Douglas County Maps are available for inspection at Douglas County Courthouse, 3015 Menke Circle, Omaha, NE 68134. Village of Boys Town

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Maps are available for inspection at Village of Boys Town, 14100 Crawford Street, Boys Town, NE 68010.

Sarpy County, Nebraska, and Incorporated Areas

Hell Creek...... 100 feet downstream of the Burlington Northern +1034 +1038 City of La Vista. Santa Fe Railroad. 150 feet upstream of the Burlington Northern Santa +1053 +1039 Fe Railroad. Approximately 50 feet downstream of Harrison Street +1055 +1049 Midland Creek...... Approximately 700 feet downstream of Cedardale +1012 +1011 City of Papillion, Unincor- Drive. porated Areas of Sarpy County. 450 feet downstream of State Highway 370 ...... +1025 +1018 South Papillion Creek ...... Approximately 300 feet upstream of Giles Street ...... None +1036 Unincorporated Areas of Sarpy County, City of La Vista. At South 168th Street ...... None +1100 Approximately 300 feet upstream of South 204th None +1177 Street. Unnamed Tributary of South Approximately 1000 feet upstream of confluence with None +1042 Unincorporated Areas of Papillion Creek. South Papillion Creek. Sarpy County, City of La Vista, City of Papillion. At Cornhuskers Road ...... None +1056 At State Highway 370 ...... None +1104 Unnamed Tributary of West Approximately 1600 feet downstream of South 114th None +1034 City of Papillion, City of La Papillion Creek. Street. Vista. Approximately 600 feet downstream of State Highway None +1100 370. Approximately 1 mile upstream of State Highway 370 None +1158 Walnut Creek ...... At West Lincoln Street ...... +1026 +1023 City of Papillion. 150 feet upstream of State Highway 370 ...... +1044 +1043 West Papillion Creek (with Just downstream of South 48th Street ...... +996 +999 City of Bellevue, City of La levees). Vista, City of Papillion. Just upstream of South 66th Street ...... +1004 +1007 At Interstate 80 ...... +1042 +1043 West Papillion Creek (without Just downstream of South 48th Street ...... +993 +999 City of Bellevue, City of La left levee). Vista, City of Papillion. Just upstream of South 66th Street ...... +1001 +1008 Just upstream of Washington Street ...... +1008 +1015 West Papillion Creek (without Just downstream of South 48th Street ...... +997 +999 City of Bellevue, City of La right levee). Vista, City of Papillion. Just upstream of South 66th Street ...... +1003 +1008 Just upstream of Washington Street ...... +1012 +1014

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Bellevue Maps are available for inspection at 210 West Mission Avenue, Bellevue, NE 68005. City of La Vista Maps are available for inspection at 8116 Park View Boulevard, La Vista, NE 68128. City of Papillion Maps are available for inspection at 122 East 3rd Street, Papillion, NE 68046. Unincorporated Areas of Sarpy County Maps are available for inspection at Sarpy County Courthouse, 1210 Golden Gate Drive, Papillion, NE 68046.

Northampton County, North Carolina, and Incorporated Areas

Ahoskie Creek...... Approximately 500 feet downstream of the North- None +58 Unincorporated Areas of ampton/Hertford County boundary. Northampton County. Approximately 50 feet downstream of Tyler Road None +66 (State Road 1100).

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

At the confluence with Ahoskie Creek ...... None +60 Tributary 8 ...... Unincorporated Areas of Northampton County.. Approximately 0.5 mile upstream of the confluence None +62 with Ahoskie Creek. Bear Swamp ...... At the confluence with Urahaw Swamp ...... None +51 Unincorporated Areas of Northampton County. Approximately 0.9 mile upstream of NC 305 Highway None +78 Beaverpond Creek ...... At the confluence with Beaverpond Creek Tributary 1 None +98 Unincorporated Areas of Northampton County. Approximately 0.8 mile upstream of the North Caro- None +216 lina/Virginia State boundary. Tributary 1 ...... At the confluence with Beaverpond Creek ...... None +98 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of the confluence None +111 with Beaverpond Creek. Tributary 2 ...... At the confluence with Beaverpond Creek ...... None +127 Unincorporated Areas of Northampton County. Approximately 0.6 mile upstream of Old Emporia None +150 Road (State Road 1209). Corduroy Swamp ...... At the confluence with Kirby Creek ...... None +55 Unincorporated Areas of Northampton County. Approximately 2.1 miles upstream of Mount Carmel None +128 Road (State Road 1333). Tributary 1 ...... At the confluence with Corduroy Swamp ...... None +66 Unincorporated Areas of Northampton County. Approximately 0.6 mile upstream of the confluence None +70 with Corduroy Swamp. Tributary 2 ...... At the confluence with Corduroy Swamp ...... None +71 Unincorporated Areas of Northampton County. Approximately 0.6 mile upstream of the confluence None +78 with Corduroy Swamp. Tributary 3 ...... At the confluence with Corduroy Swamp ...... None +78 Unincorporated Areas of Northampton County. Approximately 0.9 mile upstream of the confluence None +84 with Corduroy Swamp. Tributary 4 ...... At the confluence with Corduroy Swamp ...... None +87 Unincorporated Areas of Northampton County. Approximately 0.8 mile upstream of the confluence None +93 with Corduroy Swamp. Tributary 5 ...... At the confluence with Corduroy Swamp ...... None +89 Unincorporated Areas of Northampton County. Approximately 1.2 miles upstream of the confluence None +98 with Corduroy Swamp. Tributary 6 ...... At the confluence with Corduroy Swamp ...... None +104 Unincorporated Areas of Northampton County. Approximately 0.4 mile upstream of the confluence None +106 with Corduroy Swamp. Corwells Millpond ...... At the confluence with Jacks Swamp ...... None +72 Unincorporated Areas of Northampton County. Approximately 1,570 feet upstream of Big Johns None +89 Store Road (State Road 1300). Cutawhiskie Creek ...... At the downstream side of Fennell Road (State Road None +52 Unincorporated Areas of 1155). Northampton County. Approximately 1.1 miles upstream of Eagletown Road None +65 (State Road 1522). Tributary 3...... Approximately 50 feet downstream of the North- None +51 Unincorporated Areas of ampton/Hertford County boundary. Northampton County. Approximately 0.4 mile upstream of the Northampton/ None +53 Hertford County boundary. Tributary 4 ...... At the confluence with Cutawhiskie Creek ...... None +57 Unincorporated Areas of Northampton County. Approximately 0.7 mile upstream of the confluence None +62 with Cutawhiskie Creek. Cypress Creek ...... At the confluence with Meherrin River ...... None +45 Unincorporated Areas of Northampton County. Approximately 1.7 miles upstream of Julian Morgan None +99 Road. Tributary 1 ...... At the confluence with Cypress Creek ...... None +52 Unincorporated Areas of Northampton County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Approximately 1.6 miles upstream of the confluence None +63 with Cypress Creek. Tributary 2 ...... At the confluence with Cypress Creek ...... None +68 Unincorporated Areas of Northampton County. Approximately 600 feet upstream of NC 186 Highway None +87 Tributary 3 ...... At the confluence with Cypress Creek ...... None +70 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of the confluence None +79 with Cypress Creek. Tributary 4 ...... At the confluence with Cypress Creek ...... None +86 Unincorporated Areas of Northampton County. Approximately 1,480 feet upstream of Julian Morgan None +97 Road. Fountains Creek ...... At the confluence with Meherrin River ...... None +46 Unincorporated Areas of Northampton County. Approximately 4.3 miles upstream of the confluence None +51 with Meherrin River. Grant Branch ...... At the confluence with Urahaw Swamp ...... None +49 Unincorporated Areas of Northampton County, Town of Lasker. Approximately 1.4 miles upstream of Collier Road None +74 (State Road 1515). Hunting Branch ...... At the confluence with Corduroy Swamp ...... None +58 Unincorporated Areas of Northampton County. Approximately 20 feet downstream of Frank Harris None +70 Road (State Road 1343). Ivy Creek ...... At the confluence with Cypress Creek ...... None +84 Unincorporated Areas of Northampton County. Approximately 1.2 miles upstream of the confluence None +89 with Cypress Creek. Jacks Swamp ...... At the North Carolina/Virginia State boundary ...... None +68 Unincorporated Areas of Northampton County. Approximately 710 feet upstream of Interstate 95 None +135 (Southbound). Tributary 1 ...... At the confluence with Jacks Swamp ...... None +69 Unincorporated Areas of Northampton County. Approximately 0.7 mile upstream of the confluence None +84 with Jacks Swamp. Tributary 2 ...... At the confluence with Jacks Swamp ...... None +94 Unincorporated Areas of Northampton County. Approximately 2.0 miles upstream of the confluence None +121 with Jacks Swamp. Tributary 3 ...... At the confluence with Jacks Swamp ...... None +100 Unincorporated Areas of Northampton County. Approximately 0.9 mile upstream of the confluence None +122 with Jacks Swamp. Tributary 4 ...... At the confluence with Jacks Swamp ...... None +123 Unincorporated Areas of Northampton County. Approximately 870 feet upstream of Interstate 95 None +136 (Southbound). Kirby Creek ...... At the confluence with Meherrin River ...... None +17 Unincorporated Areas of Northampton County. At the confluence of Corduroy Swamp and Rogers None +55 Swamp. Tributary 1 ...... At the confluence with Kirby Creek ...... None +19 Unincorporated Areas of Northampton County, Town of Severn. Approximately 0.9 mile upstream of NC Highway 35 .. None +60 Tributary 1A ...... At the confluence with Kirby Creek Tributary 1 ...... None +43 Unincorporated Areas of Northampton County. Approximately 0.6 mile upstream of the confluence None +51 with Kirby Creek Tributary 1. Tributary 2 ...... At the confluence with Kirby Creek ...... None +44 Unincorporated Areas of Northampton County, Town of Conway. Approximately 1,280 feet upstream of Phillips Hill None +72 Road (State Road 1365). Tributary 3 ...... At the confluence with Kirby Creek ...... None +50 Unincorporated Areas of Northampton County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Approximately 80 feet downstream of Barnes Loop None +57 Road (State Road 1342). Tributary 4 ...... At the confluence with Kirby Creek ...... None +51 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of Barnes Loop None +70 Road (State Road 1342). Meherrin River ...... At the confluence of Kirby Creek ...... None +17 Unincorporated Areas of Northampton County. At the confluence of Fountains Creek ...... None +46 Occoneechee Creek Tribu- At the confluence with Occoneechee Creek ...... None +49 Unincorporated Areas of tary 1. Northampton County. Approximately 0.9 mile upstream of the confluence None +51 with Occoneechee Creek. Paddys Delight Creek ...... At the confluence with Potecasi Creek ...... None +50 Unincorporated Areas of Northampton County. Approximately 1.1 miles upstream of the confluence None +77 of Paddys Delight Creek Tributary 1. Tributary 1 ...... At the confluence with Paddys Delight Creek ...... None +66 Unincorporated Areas of Northampton County, Town of Conway. Approximately 140 feet downstream of Vann Street ... None +93 Panther Swamp ...... At the Northampton/Hertford County boundary ...... None +49 Unincorporated Areas of Northampton County. Approximately 1.1 miles upstream of Gilmer Ricks None +88 Road (State Road 1543). Potecasi Creek ...... At the Northampton/Hertford County boundary ...... None +36 Unincorporated Areas of Northampton County. At the confluences of Ramsey Creek and Wiccacanee None +65 Swamp. Tributary 13 ...... At the confluence with Potecasi Creek ...... None +55 Unincorporated Areas of Northampton County. Approximately 0.7 mile upstream of the confluence None +61 with Potecasi Creek. Tributary 14 ...... At the confluence with Potecasi Creek ...... None +57 Unincorporated Areas of Northampton County. Approximately 1,360 feet upstream of Lasker Road None +71 (State Road 1503). Tributary 15 ...... At the confluence with Potecasi Creek ...... None +61 Unincorporated Areas of Northampton County. Approximately 100 feet downstream of Fire Tower None +69 Road (State Road 1500). Tributary 15A ...... At the confluence with Potecasi Creek Tributary 15 .... None +63 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of the confluence None +73 with Potecasi Creek Tributary 15. Tributary 16 ...... At the confluence with Potecasi Creek ...... None +62 Unincorporated Areas of Northampton County. Approximately 0.7 mile upstream of the confluence None +71 with Potecasi Creek. Tributary 17 ...... At the confluence with Potecasi Creek ...... None +64 Unincorporated Areas of Northampton County. Approximately 0.8 mile upstream of the confluence None +74 with Potecasi Creek. Tributary 9 ...... At the confluence with Potecasi Creek ...... None +44 Unincorporated Areas of Northampton County. Approximately 1.9 miles upstream of Ashley Grove None +68 Road (State Road 1536). Quarter Swamp ...... At the confluence with Urahaw Swamp ...... None +60 Unincorporated Areas of Northampton County. Approximately 1.7 miles upstream of W.J. Duke Serv- None +81 ice Road (State Road 1121). Ramsey Creek ...... At the confluence with Potecasi Creek ...... None +65 Unincorporated Areas of Northampton County, Town of Jackson. Approximately 580 feet downstream of Buck Howell None +124 Road (State Road 1316). Tributary 1 ...... At the confluence with Ramsey Creek ...... None +69 Unincorporated Areas of Northampton County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Approximately 40 feet downstream of NC Highway None +79 305. Reedy Creek ...... At the confluence with Kirby Creek ...... None +34 Unincorporated Areas of Northampton County. Approximately 1,210 feet upstream of U.S. 158 High- None +55 way. Rogers Swamp ...... At the confluence with Corduroy Swamp and Kirby None +55 Unincorporated Areas of Creek. Northampton County. Approximately 840 feet upstream of Tower Road None +88 (State Road 1341). Tributary 1 ...... At the confluence with Rogers Swamp ...... None +55 Unincorporated Areas of Northampton County. Approximately 0.9 mile upstream of Britton Road None +67 (State Road 1337). Tributary 2 ...... At the confluence with Rogers Swamp ...... None +61 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of the confluence None +66 with Rogers Swamp. Tributary 3 ...... At the confluence with Rogers Swamp ...... None +67 Unincorporated Areas of Northampton County. Approximately 0.7 mile upstream of the confluence None +80 with Rogers Swamp. Tributary 4 ...... At the confluence with Rogers Swamp ...... None +69 Unincorporated Areas of Northampton County. Approximately 0.6 mile upstream of the confluence None +74 with Rogers Swamp. Tributary 5 ...... At the confluence with Rogers Swamp ...... None +77 Unincorporated Areas of Northampton County. Approximately 0.7 mile upstream of the confluence None +89 with Rogers Swamp. Sandy Run Tributary 3 ...... At the confluence with Sandy Run ...... None +37 Unincorporated Areas of Northampton County. Approximately 0.5 mile upstream of the confluence None +46 with Sandy Run. Turkey Creek ...... At the confluence with Kirby Creek ...... None +17 Unincorporated Areas of Northampton County. Approximately 1,060 feet upstream of U.S. 158 High- None +51 way. Urahaw Swamp ...... At the confluence with Potecasi Creek ...... None +43 Unincorporated Areas of Northampton County, Town of Woodland. Approximately 1.3 miles upstream of Bryantown Road None +66 (State Road 1108). Tributary 4 ...... At the confluence with Urahaw Swamp ...... None +57 Unincorporated Areas of Northampton County. Approximately 1,300 feet upstream of Dick Harmony None +63 Road (State Road 1115). Tributary 5 ...... At the confluence with Urahaw Swamp ...... None +64 Unincorporated Areas of Northampton County. Approximately 1.0 mile upstream of W.J. Duke Serv- None +71 ice Road (State Road 1121). Wiccacanee Swamp ...... At the confluence with Potecasi Creek ...... None +65 Unincorporated Areas of Northampton County. Approximately 1.2 miles upstream of U.S. Highway None +107 158. Wiccacanee Swamp Tribu- At the confluence with Wiccacanee Swamp ...... None +69 Unincorporated Areas of tary. Northampton County. Approximately 0.6 mile upstream of the confluence None +75 with Wiccacanee Swamp. Wildcat Swamp ...... At the confluence with Potecasi Creek ...... None +54 Unincorporated Areas of Northampton County. Approximately 160 feet downstream of U.S. Highway None +118 158.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Town of Conway Maps are available for inspection at Conway Town Hall, 221 West Main Street, Conway, NC. Town of Jackson Maps are available for inspection at Jackson Town Hall, 100 East Jefferson Street, Jackson, NC. Town of Lasker Maps are available for inspection at Lasker Town Hall, 203A West Church Street, Lasker, NC. Town of Severn Maps are available for inspection at Severn Town Hall, 314 Main Street, Severn, NC. Town of Woodland Maps are available for inspection at Woodland Town Hall, 300 Spruce Street, Woodland, NC. Unincorporated Areas of Northampton County Maps are available for inspection at Northampton County Office, 108 West Jefferson Street, Jackson, NC.

Cumberland County, Pennsylvania, and Incorporated Areas

Conodoguinet Creek ...... Approximately 7250 feet upstream of dam ...... None +481 Township of Lower Mifflin, Township of North New- ton. Approximately 7000 feet upstream of dam ...... None +481 Dogwood Run ...... Approximately 500 feet upstream from intersection of None +427 Township of Monroe. Creek and Williams Grove Road. Approximately 1400 feet upstream from intersection None +433 of Creek and Williams Grove Road. Hogestown Run ...... Approximately 200 feet downstream of Old Stone None +443 Township of Middlesex. House Road. Approximately at Old Stone House Road ...... None +447 Middle Spring Creek ...... Approximately at the confluence with Conodoguinet None +544 Township of Hopewell. Creek. Approximately 9590 feet downstream from Hale Road +546 +547 Yellow Breeches Creek ...... Approximately 700 feet downstream of Spangler’s Mill None +333 Township of Lower Allen. Road. Approximately 7100 feet upstream of Spangler’s Mill None +342 Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES Township of Hopewell Maps are available for inspection at 14 Hoover Drive, Newburg, PA 17240. Township of Lower Allen Maps are available for inspection at 1993 Hummell Avenue, Camp Hill, PA 17011. Township of Lower Mifflin Maps are available for inspection at 529 Shed Road, Newville, PA 17241. Township of Middlesex Maps are available for inspection at 350 Middlesex Road, Carlisle, PA 17013. Township of Monroe Maps are available for inspection at 1220 Boiling Springs, Mechanicsburg, PA 17055. Township of North Newton Maps are available for inspection at 255 Ott Road, Shippensburg, PA 17257.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above Flooding source(s) Location of referenced elevation ** ground Communities affected Effective Modified

Salt Lake County, Utah, and Incorporated Areas

Midas Creek ...... Approximately 400 feet upstream of the Confluence +4328 +4325 City of Riverton, City of with the Jordan River. South Jordan, Unincor- porated Areas of Salt Lake County. Just upstream of 11800 South Street ...... +4569 +4566 Willow Creek (West) ...... Just upstream of 11400 South Street ...... +4365 +4362 City of Draper. Just downstream of 300 East Street ...... +4441 +4442

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Draper Maps are available for inspection at 1020 East Pioneer Road, Draper, UT 84020. City of Riverton Maps are available for inspection at 12830 S. Redwood Road, Riverton, UT 84065. City of South Jordan Maps are available for inspection at 1600 West Towne Center Drive, South Jordan, UT 84095. Unincorporated Areas of Salt Lake County Maps are available for inspection at 2001 South State Street #N2100, Salt Lake City, UT 84190.

(Catalog of Federal Domestic Assistance No. 2007 for the Unincorporated Areas of in Richland County. On October 17, 97.022, ‘‘Flood Insurance.’’) Richland County, South Carolina (72 FR 2007, FEMA issued a letter to the Dated: January 15, 2008. 58598). Chairman of the Richland County David I. Maurstad, DATES: The proposed flood elevation Council explaining that the appeal Federal Insurance Administrator of the determination published on October 16, period for the proposed flood elevation National Flood Insurance Program, 2007 at 72 FR 58598, the September 12, determinations would begin on Department of Homeland Security, Federal 2007 Physical Map Revision, and the November 1, 2007 and end on January Emergency Management Agency. November 1, 2007 to January 31, 2008 31, 2008. [FR Doc. E8–1215 Filed 1–23–08; 8:45 am] appeal period associated with the The purpose of this Federal Register BILLING CODE 9110–12–P withdrawn proposed flood elevation publication is to withdraw the proposed determinations are withdrawn as of flood elevation determination published January 24, 2008. October 16, 2007 at 72 FR 58598 for the Unincorporated Areas of Richland DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: County, South Carolina. This document SECURITY William R. Blanton, Jr., Chief, also provides notice that FEMA has Engineering Management Branch, Federal Emergency Management withdrawn the September 12, 2007 Mitigation Directorate, Federal Agency Physical Map Revision and canceled the Emergency Management Agency, 500 C November 1, 2007 to January 31, 2008 Street, SW., Washington, DC 20472, 44 CFR Part 67 appeal period associated with the (202) 646–3151 or e-mail withdrawn proposed flood elevation [Docket No. FEMA–B–7739] [email protected]. determinations. The reason for this SUPPLEMENTARY INFORMATION: Withdrawal of Proposed Flood On withdrawal and cancelation is to Elevation Determination for the September 12, 2007, FEMA issued address a federal district court’s Unincorporated Areas of Richland Preliminary Flood Insurance Rate Maps November 14, 2007 finding that the County, SC (FIRMs) through a Physical Map October 16, 2007 notice proposing new Revision to identify flood hazards along flood elevation determinations for the AGENCY: Federal Emergency the Congaree River in the Congaree River in the unincorporated Management Agency, DHS. Unincorporated Areas of Richland areas of Richland County did not ACTION: Proposed rule; withdrawal. County, South Carolina, hereafter comply with the Court’s November 18, referred to as ‘‘Richland County’’. On 2005 Order of Vacatur. FEMA intends to SUMMARY: The Federal Emergency October 16, 2007, FEMA published a initiate a new revision and propose new Management Agency (FEMA) withdraws proposed rule at 72 FR 58598, October flood hazard information; however, the proposed flood elevation 16, 2007 proposing flood elevation affected areas should utilize the determination published October 16, determinations along the Congaree River effective flood hazard information, in

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accordance with the November 18, 2005 requires manufacturer owned tire 202–366–6206) (Fax: 202–366–7002). Order of Vacatur, until such time as distributors and dealers to register the Mr. Woods’ mailing address is National updated flood hazard information is names and addresses of the people to Highway Traffic Safety Administration, proposed by FEMA. whom they sell or lease new tires, and NVS–122, 1200 New Jersey Avenue, SE., Regulatory Classification. Since this specifies the use of standardized paper Washington, DC 20590. notice withdraws a notice of proposed forms for this purpose. It also requires For legal issues, Ms. Dorothy Nakama, rulemaking, it is neither a proposed nor independent distributors and dealers to Office of the Chief Counsel (Telephone: a final rulemaking and therefore is not provide purchasers with standardized 202–366–2992) (Fax: 202–366–3820). within the scope of Executive Order registration forms they can complete Ms. Nakama’s mailing address is 12866 of September 30, 1993, and mail to the manufacturer or its National Highway Traffic Safety Regulatory Planning and Review, 58 FR designee. Administration, NCC–112, 1200 New 51735 or the Regulatory Flexibility Act, We propose to amend the regulation Jersey Avenue, SE., Washington, DC 5 U.S.C. 601–612. by codifying existing interpretations 20590. regarding opportunities under the List of Subjects in 44 CFR Part 67 SUPPLEMENTARY INFORMATION: regulation for electronic registration of Administrative practice and tire sales and leases and by creating new Table of Contents procedure, Flood insurance, Reporting opportunities. The names and addresses I. Background and recordkeeping requirements. of purchasers and lessees are used by a A. Tire Registration Requirements Accordingly, 44 CFR part 67 is tire manufacturer to contact those B. Rate of Tire Registration proposed to be amended as follows: people in the event that the C. Increasing the Effectiveness and manufacturer must conduct a campaign Reducing the Cost of Tire Registration PART 67—[AMENDED] to recall and remedy tires that either fail Through Electronic Registration to comply with an applicable Federal 1. 1984 Interpretation to Representative 1. The authority citation for part 67 motor vehicle safety standard or have a Wirth continues to read as follows: 2. 2003 Interpretation to RMA safety-related defect. 3. 2005–2007 Issues Regarding Clearance of Authority: 42 U.S.C. 4001 et seq.; DATES: Comments must be received on the Tire Registration Requirements Reorganization Plan No. 3 of 1978, 3 CFR, or before March 24, 2008. Under the Paperwork Reduction Act 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, II. Need for Rulemaking 3 CFR, 1979 Comp., p. 376. ADDRESSES: You may submit comments to the docket number identified in the III. Today’s Notice of Proposed Rulemaking § 67.4 [Amended] heading of this document by any of the A. Tires Sold by Independent Tire Dealers—Alternative Means of Tire 2. The tables published under the following methods: • Registration authority of § 67.4 are amended to Federal eRulemaking Portal: go to B. Tires Sold by Dealers Controlled by Tire withdraw the following: http://www.regulations.gov. Follow the Manufacturers—Electronic Tire The proposed flood elevation online instructions for submitting Registration determination published in 72 FR comments. IV. Rulemaking Analyses and Notices 58598, October 16, 2007 for the • Mail: DOT Docket Management A. Executive Order 12866 and DOT Unincorporated Areas of Richland Facility, M–30, U.S. Department of Regulatory Policies and Procedures County, South Carolina. Transportation, West Building, Ground B. Regulatory Flexibility Act C. National Environmental Policy Act Dated: January 15, 2008. Floor, Rm. W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. D. Executive Order 13132 (Federalism) David I. Maurstad, • E. Civil Justice Reform Hand Delivery or Courier: West F. Paperwork Reduction Act Federal Insurance Administrator of the Building Ground Floor, Room W12–140, National Flood Insurance Program, Federal G. National Technology Transfer and Emergency Management Agency, Department 1200 New Jersey Avenue, SE., between Advancement Act of Homeland Security. 9 a.m. and 5 p.m. Eastern time, Monday H. Unfunded Mandates Reform Act I. Plain Language [FR Doc. E8–1209 Filed 1–23–08; 8:45 am] through Friday, except Federal holidays. • Fax: (202) 493–2551. J. Regulation Identifier Number (RIN) BILLING CODE 9110–12–P Regardless of how you submit your K. Privacy Act comments, you should mention the V. Public Participation docket number of this document. I. Background DEPARTMENT OF TRANSPORTATION You may call the Docket Management Facility at 202–366–9826. A. Tire Registration Requirements National Highway Traffic Safety Privacy Act: Please see the Privacy Administration As originally enacted, the National Act heading under Rulemaking Traffic and Motor Vehicle Safety Act of Analyses and Notices. 49 CFR Part 574 1966 (now codified at Title 49 U.S.C. Instructions: For detailed instructions Chapter 301 Motor Vehicle Safety) did [Docket No. NHTSA–2008–0014] on submitting comments and additional not include a requirement for tire information on the rulemaking process, registration. However, in May 1970, RIN 2127–AK11 see the Public Participation heading of Congress amended the law to mandate the Supplementary Information section Tire Registration and Recordkeeping that every tire manufacturer shall of this document. Note that all maintain records of the names and AGENCY: National Highway Traffic comments received will be posted addresses of the first purchaser of tires Safety Administration (NHTSA), without change to: http:// produced by that manufacturer.1 Department of Transportation (DOT). www.regulations.gov, including any NHTSA was given the authority to personal information provided. ACTION: Notice of proposed rulemaking establish procedures to be followed by (NPRM). FOR FURTHER INFORMATION CONTACT: For manufacturers in establishing and non-legal issues, Mr. Jeff Woods, maintaining such records, including SUMMARY: Our regulation for tire Vehicle Dynamics Division, Office of identification and recordkeeping Vehicle Safety Standards (Telephone: 1 Pub. L. 91–265.

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procedures to be followed by The consumer may then fill in his or her registration forms to tire purchasers. distributors and dealers to assist name and address, add a stamp and NHTSA stated that we did not think it manufacturers in securing the names mail the form to the manufacturer or its would be the best use of our and addresses of first purchasers. designee. In a follow-up final rule enforcement resources to bring Pursuant to this authority, in a final published on February 8, 1984 (49 FR compliance actions against independent rule published in the Federal Register 4755), the agency made slight revisions tire dealers. Instead, NHTSA proposed (35 FR 17257) on November 10, 1970, to the tire registration form to improve in 1986 6 four potential steps to improve NHTSA established the initial tire its clarity and also reduced the size of tire registration by independent dealers: identification and recordkeeping the form so that it could be mailed using 1. Require prepaid postage on the requirements of 49 CFR part 574. The post card postage. registration form; and/or rule required all tire dealers to record As part of the agency’s 2. Undertake a public education the name and address of the purchaser implementation of the Transportation campaign and a brief explanation of the to whom they sold the tire, along with Recall Enhancement, Accountability, tire registration process in tire the dealer’s name and address, and and Documentation (TREAD) Act (Pub. information pamphlets; and/or forward that information to the tire L. 106–414) that was enacted on 3. A central clearinghouse for all manufacturer. November 1, 2000, the agency increased registration forms distributed to However, under the Motor Vehicle the tire registration record retention consumers by independent dealers; or Safety and Cost Savings Authorization requirements for tire manufacturers 4. Rescind the tire registration Act of 1982 (Pub. L. 97–331), Congress from three years to five years. The requirements and allow tire amended the Safety Act to mandate that record retention period was extended in manufacturers to devise their own the obligations of independent a final rule published in theFederal contractual ways of ensuring they meet distributors and dealers be limited to Register (67 FR 45822) on July 10, 2002. the statutory obligation for tire manufacturers to ‘‘establish and giving ‘‘a registration form (containing B. Rate of Tire Registration the tire identification number) to the maintain records of the names and In the Motor Vehicle Safety and Cost first purchaser.’’ The tire purchaser addresses of first purchasers.’’ Savings Authorization Act of 1982, could then mail the form to the tire After reviewing the pubic comments, Congress directed NHTSA to conduct an manufacturer. Congress also mandated NHTSA published a termination of evaluation after two years of voluntary 7 that NHTSA should prescribe a rulemaking notice in November 1988 registration to determine the extent to standardized registration form and that announcing that none of the four which the voluntary registration tire manufacturers had to ensure that suggestions had been demonstrated to procedures for independent dealers they gave sufficient copies of these likely significantly increase the level of were successful in increasing the forms to their dealers. tire registration by independent dealers registration of tires.4 NHTSA was also under voluntary registration. NHTSA Congress adopted these amendments charged with determining the extent to after the House Committee on Energy also noted that the agency would which independent dealers have continue to rely on media and public and Commerce found in its report on encouraged purchasers to register their the 1982 amendments that tire dealers announcements to alert the public of tires and the extent to which tire recalls, so public safety would not whose business was owned or independent dealers have complied controlled by a tire manufacturer (these be jeopardized by the low registration with the new procedures. Finally, rate for tires sold by independent dealers accounted for just under 1/3 of NHTSA was charged with deciding tire sales) registered between 80 and 90 dealers. whether to impose any additional Although the agency has not percent of the tires they sold.2 However, requirements to ‘‘significantly increase’’ conducted a subsequent evaluation, it independent tire dealers, which registration of tires sold by independent believes that the registration rate for accounted for more than 2/3 of tire dealers. tires sold or leased by independent sales, registered only 20 percent of the Per that Congressional directive, distributors and dealers remains largely tires they sold. NHTSA reported on its evaluation of unchanged. In a submission sent to the The changes mandated by the 1982 voluntary tire registration by agency earlier this year, the Rubber amendments were established in an independent dealers in 1985 and 1987.5 Manufacturers Association (RMA) interim final rule published on May 19, We found that: indicated that the return rate for the 1983 (48 CFR 22572). The regulation 1. Registration rates for independent mail-in registration cards is no more required tire manufacturers to provide dealers declined by half, from 18.1 than 10 percent.8 both independent and non-independent percent under previous law to 9.3 distributors and dealers with percent under voluntary registration. C. Increasing the Effectiveness and standardized tire registration forms. The 2. Registration rates for company Reducing the Cost of Tire Registration regulation specified the exact content of stores had remained steady at 86 Through Electronic Registration the forms given to independent percent during this same period. 1. 1984 Interpretation to Representative distributors and dealers. No other 3. Tire manufacturers had provided Wirth information may appear on the forms.3 plenty of registration forms. When an independent distributor or 4. There were no records of any tire In 1984, Representatives Wirth and dealer sells or leases a tire to a registrations for more than 70 percent of Rinaldo wrote a letter to the agency consumer, the distributor or dealer must the independent dealers. expressing several concerns. First, they fill in the tire identification number and From this, NHTSA reached the noted that the agency had stated in a its name and address on a registration conclusion that many independent recent rulemaking that the Vehicle form and give the form to the consumer. dealers did not routinely give Safety Act did not permit independent

2 H.R. Rep. No. 576, 97th Cong. 2d Sess. 8–9 4 See Motor Vehicle Safety and Cost 6 Advance note of proposed rulemaking; 51 FR (1982). Authorization Act of 1982, Pub. L. 97–331. 45916; December 23, 1986. 3 July 18, 2003 letter from Jacqueline Glassman to 5 For a discussion of NHTSA’s Evaluation Reports 7 Termination of rulemaking; 53 FR 44621, Ann Wilson of RMA. Letter is available at: http:// on Voluntary Tire Registration, see 53 FR 44632– November 4, 1988. isearch.nhtsa.gov/files/onlinetireregistration.html. 33, November 4, 1988. 8 Docket NHTSA–2006–26554–3.

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dealers to return the mail-in registration the manufacturers and that the Before a Federal agency can collect cards directly to the manufacturer information was often incomplete or the certain information from the public without first providing the form to the writing illegible. RMA expressed the (which includes the Federal purchaser with the required information belief that offering tire registration via government’s directing that the filled in by the dealer. Second, they the internet, by telephone or other information be collected from new tire expressed support for computerized tire electronic means would improve the purchasers by tire dealers to give to tire registration and argued that the 1982 registration rate and aid manufacturers manufacturers, also called third-party amendments to the Vehicle Safety Act in fulfilling their notification information), it must receive approval should be interpreted as permitting obligations. from OMB. If OMB approves a independent dealers to give the In its response, the agency said it collection of information, it assigns an purchaser a mail-in registration form on agreed that the rationales in its letters OMB control number and an expiration which they had not filled in any of the relating to child restraint registration date. OMB will not ‘‘approve any required information if they attached to were also applicable to tire registration. collection of information for a period the form a copy of the computerized The agency concluded that Part 574 longer than three years.’’ (See 5 CFR invoice bearing that information. permits the provision of information section 1320.12(e)(1).) The OMB control In its response, the agency stated about electronic registration as a number assigned to the Part 574 while a literal interpretation of the 1982 supplement to the required mail-in form collection of information is 2127–0050. amendments would not permit for independent distributors and The current status of OMB’s approval is independent dealers to do that, under dealers. available online at http:// an equitable interpretation, they would Likewise, as to non-independent www.reginfo.gov/public/do/PRASearch. be.9 Under the principles of equitable distributors and dealers, the agency said Because the Part 574 collection of interpretation, a statutory requirement that electronic registration could be information requirements are need not be literally applied in offered to them. The agency cautioned, longstanding, we have, for many years, instances in which the underlying however: asked for and been granted, OMB Congressional intent is otherwise approval to collect the information. As This interpretation does not relieve non- part of the periodic process to request satisfied. The agency stated: independent distributors and dealers from Based on the principles of equitable OMB to renew approval of an existing the requirements of section 574.8(b) that they collection of information, on December interpretation, we believe that an themselves record the purchaser’s name and independent tire dealer or distributor address, the tire identification number(s) of 28, 2005, we published in the Federal who the tire(s) sold, and a suitable identification Register (70 FR 76909) an (1) Registers tires by computer; of themselves as the selling dealer on a tire announcement that NHTSA planned to (2) Attaches a computer-printed registration form and return the completed ask OMB for a renewal of approval to invoice containing all of the information forms to the tire manufacturers or their collect the Part 574 information, and necessary for registration to a blank designees. While we would interpret Part 574 sought public comment on the proposed to permit non-independent distributors and standardized registration form; and renewal. dealers to accomplish these tasks by We received two comments in (3) Furnishes the two documents to electronic means, they may not transfer this response. The first was from the the customer when the tires are responsibility to consumers. National Automobile Dealers purchased; 3. 2005–2007 Issues Regarding Association (NADA). NADA represents fully satisfies the tire registration Clearance of the Tire Registration 20,000 franchised automobile and truck amendments. Requirements Under the Paperwork dealers that act as independent tire 2. 2003 Interpretation to RMA Reduction Act dealers when they sell tires to consumers under differing situations. 10 On July 18, 2003, the agency The information collected by tire The second comment was from Tire responded to a letter from RMA asking dealers from tire purchasers and Recall Registry, Inc. (TRR). It raised whether Part 574 permits tire retained by tire manufacturers is several issues, most of which were manufacturers to offer electronic considered to be a ‘‘collection of related to its advocating electronic registration in addition to the required information’’ 12 as defined by the Office registration of tires. TRR cited the July mail-in form. RMA stated that it wanted of Management and Budget (OMB). The 18, 2003 NHTSA interpretation letter to to provide independent tire distributors significance of this definition is that RMA in which NHTSA stated that and dealers with a supplemental form approval of the ‘‘collection of information about and opportunities for that notifies consumers that they may information’’ is subject to OMB review. electronic registration could be used to also register their tires by electronic OMB has promulgated 5 CFR Part 1320 supplement the paper form specified by means, e.g., by directing the consumer ‘‘Controlling Paperwork Burdens on the Part 574. TRR stated its belief that to a Web site or a toll-free telephone Public.’’ OMB states that the purpose of requiring paper forms resulted in an registration line. In support of its Part 1320 is to implement the provisions unnecessary burden under the OMB request, RMA noted that the agency had of the Paperwork Reduction Act of 1995 regulations at 1320.3(b)(1), given that recently concluded that child restraint (44 U.S.C. chapter 35) (PRA) concerning electronic means could be used instead, manufacturers could provide consumers collections of information. The thus reducing the collection of with a supplemental form encouraging procedures established in Part 1320 are information burden. electronic registration.11 RMA said that designed to ‘‘reduce, minimize and On August 31, 2006, OMB renewed no more than 10 percent of tire control burdens and maximize the the collection of information for Part registration cards were being returned to practical utility and public benefit of the 574 for a period of six months, instead information created, collected, of three years due to its concerns about 9 February 1983 letter from Diane K. Steed to the disclosed, maintained, used, shared and the burdens associated with tire Honorable Timothy E. Wirth. Letter is available at: disseminated by or for the Federal http://isearch.nhtsa.gov/gm/83/1983–1.12.html. registration. OMB posed several 10 July 18, 2003 letter to Ann Wilson of RMA. government.’’ questions for the agency to answer 11 Letter to John K. Stipancich, January 3, 2003; regarding DOT’s compliance with PRA letter to Mark A. Rosenbaum, Esq., April 12, 2001. 12 See 5 CFR 1320.3(a)(3). requirements, the effectiveness rates of

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the tire registration requirements, should not create any new or additional 1997—37,000,000 possible means to reduce the paperwork obligations for tire dealers or 2000—41,000,000 (Prior to Ford/Firestone burden and encourage tire dealers and distributors by requiring them to register recall) purchasers to register tires by permitting the tires. 2003—54,000,000 (Corresponds with NHTSA estimates, Docket No. 06–26554) electronic registration, and a discussion 3. The tire manufacturer’s obligations 2006—59,000,000 of alternatives that might be permitted should remain the same. They should for electronic registration, including the only be required to continue to provide CIMS stated that there will be added use of electronic registration in lieu of the paper forms to tire dealers and costs associated with electronic tire the paper mail-in form. The questions distributors and, upon receipt of the registration including developmental were to be answered as part of NHTSA’s forms, retain the purchaser information costs, software upgrades and employee next request to renew the Part 574 for five years. training. CIMS did not provide any collection of information. On December 4. Through a NHTSA interpretation specific cost estimates. 8, 2006, NHTSA published a Federal letter, a supplemental form regarding NTRR stated its belief that changes are Register document (71 FR 71238) 13 electronic tire registration is permitted. needed and that electronic registration seeking comments on the OMB However, the agency should amend its would enhance public safety, and questions and proposing to renew the regulations to permit information about would be consistent with Paperwork Part 574 collection of information. such registration to be placed directly Reduction Act priorities. NTRR stated In response to the December 2006 on the existing paper registration form. that allowing electronic registration as document, five organizations submitted NADA generally supported the RMA an alternative, not merely as a comments. In addition to comments comments regarding permitting Web site supplement, would improve registration from RMA and NADA, comments were registration of tires, and referred to the rates over the current methods. NTRR submitted by Computerized Information agency’s provisions for electronic stated that the July 18, 2003 and Management Services, Inc. (CIMS), registration of child safety seats in 49 interpretation letter from NHTSA to National Tire Registry Recall.com CFR 571.213 as being instructive in this RMA leaves unanswered the extent to (NTRR), and the Tire Industry regard. In addition to allowing which electronic registration and other Association (TIA). Except for CIMS, all registration by Web site or fax, NADA alternatives to paper forms can be used commenters supported efforts to expand stated that tire dealers should also be in compliance with 49 CFR part 574. the methods of registering new tire permitted to register the tires for the NTRR also stated that the tire purchaser information to include Web purchaser, upon obtaining permission registration form specified in Part 574 site registration by the purchaser and or a release from the purchaser to do so. does not display the required OMB electronic registration performed by NADA noted that it has stated in the control number, and suggested that independent tire dealers. past that franchised automobile and NHTSA does not adequately address RMA stated that the continued truck dealers act as independent tire privacy and confidentiality concerns registration of new tire purchasers is a dealers as well. Commenting on past under the PRA. critically important safety issue so that TIA stated that it has worked closely NHTSA announcements of intent to purchasers can be notified in the event with the RMA in reviewing the need to renew the Part 574 collection of of a product recall or other safety revise the current tire registration information, NADA questioned in those problem. It urged NHTSA to either regulations in 49 CFR part 574, and that prior renewals, and also in the current interpret or revise Part 574 to allow an it agrees with the four principles one, NHTSA estimates of 12,000 new electronic alternative to the current identified by RMA for revisions to the tire dealers and distributors, when paper card system. RMA said that it has regulations. TIA stated that any NADA stated that there are 20,000 data showing that less than 10 percent revisions to the regulations should not franchised automobile and truck of tire registration cards [from create any new or additional obligations dealers. independent tire dealers] are currently for tire dealers and thus should not CIMS stated that it provides tire being returned to the tire manufacturer require the tire dealers to register the registration services to over 80 percent and many of these cards are inaccurate, tires. TIA stated that many TIA member of tire manufacturers/brand owners in incomplete, or illegible. RMA asked tire dealers endorse electronic the replacement tire market and to over NHTSA to interpret or amend the registration and are making electronic 12,000 tire dealers and distributors. current regulations in the following registration of new tires possible. TIA CIMS is opposed to making changes to areas: recommended that NHTSA adopt the the existing tire registration regulations. 1. Modify Part 574 to permit tire changes recommended by RMA as CIMS stated that the current tire distributor or dealer either (a) to provide quickly as possible. consumer with the paper registration registration regulations are working, and In an additional Federal Register form bearing instructions about the that independent tire dealers using the document on March 21, 2007 (72 FR opportunity to register the tires at the CIMS All Brand Form can comply with 1334) 14 in which we asked that if the tire manufacturer’s Web site or (b), on the tire registration regulation for one public had additional comments, to a voluntary basis, to register the tires penny or less per tire. It stated that provide the comments directly to OMB electronically at point of sale (without allowing electronic registration of tires by April 20, 2007, we provided a having to provide any type of will only cause more confusion, will summary of the comments in response registration form to the consumer). remove the tire purchasers’ rights and to the December 2006 document. In this 2. The current regulation only ability to ensure that their tires are March 2007 document, NHTSA requires [independent] distributors to registered, and will increase the liability specifically stated that we are: provide the form to first purchasers with of independent tire dealers if the tire * * * considering revisions to update 49 the tire identification number and the registration information is not completely transmitted to the tire CFR part 574 to provide, to the extent dealer’s name and address. Any consistent with the agency’s authority, revisions to the regulations to permit manufacturer or if they jeopardize the allowances for electronic and other possible electronic or point-of-sale registration privacy of tire purchaser information. means of registering new tires at the point of CIMS indicated that tire registrations by 13 Docket No. NHTSA–06–26554. year are as follows: 14 Docket No. NHTSA–06–26554.

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sale. First, the agency will consider the We have not performed additional manufacturer at which the consumer inclusion of Web site registration information surveys on tire registration rates since could register the tires instead of to be placed on the tire registration form in 1987. However, February 6, 2007 mailing in the form. 574.7. Second, the agency plans to update the comments from RMA stated that ‘‘no • We are proposing to remove the registration form to include the OMB control more than 10 percent of tire registration figures showing the standardized paper number. Third, the agency will fully evaluate what appropriate regulations are permissible cards are currently returned to registration form from the CFR. Some to allow independent tire dealers to manufacturers and a significant number requirements that were expressed by electronically register the tires on a voluntary of these cards are inaccurate, referring to the forms in the regulatory basis for the consumer, within the incomplete or illegible.’’ Thus, text would be added to the regulatory requirements specified in Title 49, U.S.C. regarding the response rate to paper text, but the regulation would no longer Chapter 301, Section 30117—providing forms for new tires sold through specify as many details concerning the information to, and maintaining records on, independent dealers, the agency format of the forms. purchaser. believes that tire registration rates have • We are also proposing regulatory Therefore, the agency will undertake not changed substantially for the past 20 text that would make it clear that rulemaking in 2007 to address these issues years. and provide the public with the opportunity dealers owned or controlled by tire to comment on the proposed changes. (See 72 For these reasons, the agency does not manufacturers may register tires by FR at page 13345) agree with those that believe the current electronic means, consistent with a past paper-form based tire registration interpretation. The figure showing the As stated in the March 2007 notice, the program is effective. Even if electronic form used for these tires would also be agency is now proceeding with registration does not result in removed. rulemaking to consider allowing significantly more purchaser responses Our proposal would not impose new registration via the internet or other (for new tire sales through independent obligations on tire dealers or tire electronic means for new tire dealers), NHTSA believes the overall manufacturers. Instead, it would purchasers. effectiveness rate of tire registration accommodate and facilitate internet and would improve, because voluntary II. Need for Rulemaking other electronic registration of tires, electronic registration would eliminate including voluntary registration of tires NHTSA is proposing to amend the illegibility or other ambiguity caused by by independent dealers. We note that Part 574 tire registration procedures to hand-written information. For are proposing a provision that would facilitate internet and other electronic purchasers who do not like to fill in clarify that tire manufacturers must registration of tires, including voluntary information by hand, electronic meet requirements concerning retention registration of tires by independent tire registration could also reduce the of information for registration dealers. We believe this rulemaking is overall burden of registration. information submitted to them by needed to ensure that the regulation III. Today’s Notice of Proposed electronic or other means they permits, to the extent consistent with Rulemaking authorize, in addition to that submitted the agency’s authority, the use of new to them on the standardized paper After carefully reviewing the public technologies in registering tires. In forms. comments to NHTSA’s December 2006 addition to potentially reducing costs, The details of our proposal are publication of the announcement of its the procedures could also result in discussed below. request to OMB to extend approval of improved tire registration rates. A the Part 574 tire registration collection A. Tires Sold by Independent Tire higher new tire registration rate would of information, we have concluded that Dealers—Alternative Means of Tire help in the identification of first Part 574 should be amended to facilitate Registration purchasers of defective or internet and other electronic registration nonconforming tires, so that the As noted in our March 2007 of tires, including voluntary registration purchasers may take appropriate action document, we are considering revisions of tires by independent tire dealers. Our in the interest of motor vehicle safety. to update 49 CFR part 574 to allow, to proposal follows an approach similar to As described below, NHTSA’s most the extent consistent with the agency’s the ones suggested by RMA and NADA. recent data on tire registration rates authority, for use of electronic and other Specifically, under our proposal: possible means of registering new tires were included in a termination of • Independent tire dealers could, in rulemaking notice published in the at the point of sale. lieu of providing a paper registration The statutory requirements relevant to Federal Register on November 4, 1988 form to the consumer, voluntarily (53 FR 44632). independent tire dealers are found at 49 register a tire by internet or other U.S.C. 30117(b)(2)(B), which reads as As discussed earlier, NHTSA found in electronic means, so long as such means follows: a 1985 study that under the mandatory were authorized by the tire tire registration program for manufacturer. These dealers would also The Secretary shall require each distributor independent tire dealers, the have the option of providing to the and dealer whose business is not owned or registration rate was 18.1 percent. In controlled by a manufacturer of tires to give consumer the mailable standardized a registration form (containing the tire 1987, NHTSA found that, under the paper registration form that includes the identification number) to the first purchaser voluntary independent tire dealer tire identification number (TIN) and the of a tire. The Secretary shall prescribe the registration program, the tire registration dealer’s name and address (this is the form, which shall be standardized for all tires rate among independent tire dealers had current requirement set forth in Part and designed to allow the purchaser to decreased to 9.5 percent. If the number 574), or using the same standardized complete and return it directly to the of tires registered using computers is paper registration form, but voluntarily manufacturer of the tire. The manufacturer subtracted from 9.5 percent, the return completing the form and registering the shall give sufficient copies of forms to rate for paper tire registration forms was tire by sending the form to the tire distributors and dealers. only 8 percent. In 1987, the tire manufacturer or its designee. Not surprisingly, given the pre-internet registration rate for tires sold by • The standardized paper registration date of enactment of the statute, the company-controlled dealers was found form would be permitted to identify a statutory provision appears to to be greater than 86 percent. Web site authorized by the tire contemplate a mail-in paper form (‘‘the

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manufacturer shall give sufficient copies language and legislative history Voluntary registration by independent of forms to distributors and dealers’’). mentioned above that suggests the forms dealers. Also, the legislative history (House are to be paper ones. As indicated above, after reviewing report) 15 refers to forms that are suitable As to the term ‘‘give,’’ it could readily our 1984 interpretation to Congressman for mailing and addressed to the be interpreted in the context of the Wirth, we now believe that it went to manufacturer or its designee. statute to mean physically provide some extent beyond what was necessary One relevant issue is the effect of either ‘‘take away’’ means of registration to satisfy Congressional intent. In voluntary tire registration by (i.e., mailable form) or means of ‘‘on- particular, the agency believes that independent tire dealers on their the-spot’’ registration (i.e., an in-store electronic registration of the tires by obligations under section computer terminal accessible to independent dealers would satisfy the 30117(b)(2)(B). While the statute purchaser). It is not apparent how the statutory requirements, without the provides for a program in which term could be further interpreted to need to provide an additional blank purchasers of tires from independent mean simply inform the purchaser form to the purchaser. The purpose of tire dealers may register their tires by about the opportunity to use means not the statutory requirement is to enable returning a form to the tire physically present in the dealer’s store the purchaser to register the tire manufacturer, NHTSA’s letter to (e.g., use of a computer terminal located purchase with the manufacturer. As 16 Congressman Timothy Wirth at the purchaser’s home or elsewhere.) such, if the dealer registers the tires addressed the situation in which It is even less apparent how such further electronically for the purchaser and independent tire dealers may wish to interpretation could be given the term provides a blank form to the purchaser, register tires voluntarily for consumers. ‘‘give’’ given the additional requirement confusion could result, since the Invoking the principles of equitable that the form given the purchaser purchaser might think there was a need interpretation, the agency concluded ‘‘* * * contain the tire identification to submit the paper form to the that voluntary registration would number * * *’’ manufacturer. Regarding the statement in the partially relieve independent dealers of A possible scenario that could be interpretation that the purchaser be their statutory obligations. Under those viewed as meeting all of the statutory principles, a statutory requirement need given a computer-printed invoice with requirements would be one in which the not be literally applied in instances in the information on the tire registration purchaser was provided access to a which the underlying Congressional paper form, the agency now believes computer at the dealership where the intent is otherwise satisfied. More that statement also exceeds what is screen showed the form with the tire specifically, the agency stated: necessary. The tire registration identification numbers already filled in, Based on the principles of equitable information is kept by the tire and the purchaser could register the manufacturer (or its designee). There is interpretation, we believe that an tires with the manufacturer by entering independent tire dealer or distributor who (1) no need for the dealer or purchaser to registers tires by computer; (2) attaches a his or her name and address and retain that information, and NHTSA has computer-printed invoice containing all of clicking on a button to register the tires. no record retention requirement for the information necessary for registration to We do not know whether manufacturers either tire dealers or tire purchasers. a blank standardized registration form; and and dealerships would be interested in Instead of duplicating the required (3) furnishes the two documents to the an option along these lines, but note information on the invoice given to the customer when the tires are purchased; fully that we are requesting comments below purchaser, the agency believes that a satisfies the tire registration amendments. on this type of approach. We also note *** written statement on the invoice that a number of approaches for regarding the registration of the tires by While, as discussed below, we now electronic registration by purchasers the dealer would be sufficient to inform believe that this interpretation goes to would appear not to meet these the consumer that the tires have been some extent beyond what is necessary to statutory requirements, but could be registered. satisfy Congressional intent, we believe viewed as supplemental means of We are therefore proposing that the basic principle is correct. In transmitting tire registration to independent tire dealers have the option particular, if an independent tire dealer manufacturers. of voluntarily electronically registering voluntarily registers tires for the In light of the above discussion and in tires with the tire manufacturer. We consumer, it serves no purpose to considering alternative means for note, however, that whether this option require the full procedures necessary to registration of tires sold by independent can be used depends on the tire enable consumers to also register those dealers, we believe: (1) The regulation manufacturer’s providing a means to tires. must include a basic procedure receive this information electronically, Several other issues are whether the consistent with the statutory or designating an agent to do so for it. statute can be interpreted to permit the requirement that enables purchasers of The agency is not aware of what specific use of electronic forms in lieu of paper tires from independent tire dealers to means might be used to provide forms and, assuming that the answer to register their tires by returning a form electronic registration, such as specific that issue is ‘‘yes,’’ the meaning of the with the TIN already filled in to the tire software that identifies tire sales and statutory command to ‘‘* * * give a manufacturer; (2) the regulation may then automatically uses the internet to registration form (containing the tire provide options under which an transmit the information to the tire identification number) to the first independent tire dealer may voluntarily manufacurer or its designee. However, purchaser * * *’’ in the context of register tires for consumers, in which the agency believes that many company- electronic forms. As to the term ‘‘form,’’ case the dealer need not meet the full controlled tire dealers have autonomous it could be interpreted broadly enough procedures necessary to enable systems in place to register the tires as to include electronic as well as paper consumers to register those tires; and (3) part of the sale transaction. Such forms, notwithstanding the statutory the regulation may accommodate means systems do not require additional or that tire manufacturers may provide for separate actions by sales personnel to 15 H.R. Rep. No. 97–576, p. 8. 16 February 1983 letter from Diane K. Steed to the tire registration (e.g., internet register the tires. The agency welcomes Honorable Timothy E. Wirth. Letter is available at: registration) that consumers may use additional details on the methods that http://isearch.nhtsa.gov/gm/83/1983–1.12.html. instead of mailing in the form. are currently in place and also other

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methods that might be used, including designate a third party to collect or store slightly from the FMVSS No. 213 text how independent tire dealers may be the tire registration information. Such that includes references to registering able to register tires electronically. third party designation is currently online on both sides of the form, Our proposal also includes an option allowed for the paper registration forms although the text on the mailing label in which independent tire dealers could under 574.7, and NHTSA is not aware side of that form is on a part of the form use the standardized paper registration of any reason not to extend third party that is removed prior to mailing. form, but voluntarily complete the form designation to electronic tire However, the tire registration form is and register the tires by sending the registrations methods. Since we do not not of that design, and much of the form form to the tire manufacturer or its have any detailed information on how space is needed for recording the tire designee. designees would collect and retain tire identification numbers. We welcome One issue that arises with registration information, the agency comments on the proposed text and independent dealers being permitted to welcomes additional details that would location of the optional Web site register tires voluntarily for consumers assist the agency in establishing registration information. is whether they could charge a separate requirements. We request comments on whether registration fee. We have tentatively Alternative means of registration by information about other possible means concluded that this should not be tire purchasers. of supplemental registration should be permitted, as it could discourage Consistent with our interpretation permitted to be placed on the tire registration and cause confusion. We letter to RMA, we are including in the registration paper form. We note, as request comments on this issue. proposed regulatory text a provision indicated above, that the available space Another issue that arises with stating that tire manufacturers may on the form is limited. electronic registration of tires is the voluntarily provide means for tire Other possible options for tire security of the information being registration via the internet, by registration. transmitted. The proposed regulatory telephone or other electronic means. We request comments on whether the text would require that electronic RMA and NADA commented that the regulation should specify additional registration be by secure means, e.g., use tire registration paper form should be options for registering tires sold by of https on the web. We request allowed to include instructions for independent tire dealers that would be comments on the need for such a purchasers about registering tires consistent with our statutory authority. provision, and whether it should be directly on the tire manufacturer’s Web We intend for the scope of this proposal more specific. We note that in site. NADA stated that the electronic to be broad and, depending on the September 2005 we decided not to registration provisions for child safety comments, may adopt additional include an ‘‘encryption’’ requirement seats in FMVSS No. 213 are instructive options in the final rule. for electronic registration of child safety about the value of permitting this. TIA We note that, as indicated above, it is seats.17 We may or may not adopt a stated that it agreed with the four our goal to accommodate and facilitate requirement concerning secure means principles for new tire registration internet and other electronic registration for electronic registration of tires, but requirements described by RMA (one of of tires, including voluntary registration would like to have the benefit of public which is to allow Web site registration). of tires by independent dealers. We also comments before reaching a decision. NTRR’s comments did not specifically note that since additional options would Regarding CIMS’ comment that address putting Web site information on also be voluntary, there is no reason to additional burden would shift to the tire the paper form. specify ones that would be unlikely to dealer if it decided to use electronic The agency tentatively agrees that be used by independent tire dealers, tire registration, NHTSA notes that including, at the tire manufacturer’s manufacturers, and/or consumers. registration by independent tire dealers option, a Web site address for We seek comment on whether there would be voluntary. Nothing in this purchasers to register tires could should be some type of option in which rulemaking would require independent facilitate registration for tire purchasers, independent tire dealers might be able tire dealers to register tires for the and also improve the quality of to use electronic forms in lieu of paper purchaser. information received by the tire forms to enable consumers to register NADA’s comments regarding an manufacturer. As RMA stated, many of their tires. Such an approach might, for optional electronic registration program the paper registration forms that are example, involve independent tire stated that the tire dealer should obtain received by tire manufacturers are dealers setting up computer terminals at permission or a release from the inaccurately filled out, incomplete, or their dealerships in which tire purchaser before being permitted to illegible. By allowing purchasers to type purchasers would see a form on the register the tires on behalf of the in the information directly on the tire computer screen with the TIN and purchaser. The agency believes that this manufacturer’s Web site, the issue of possibly other information already filled would create an additional collection of illegibility should be eliminated. in, which tire purchasers could use to information or other burden that would NHTSA checked several tire register their tires. We note that if such not be necessary if, instead, a manufacturers’ Web sites, for both an approach involved the consumer’s registration statement is provided to the widely-known tire brands and lesser- being given the electronic form with the purchaser indicating that the tire dealer known tire brands, and found in all but TIN filled in, the approach could, is performing tire registration for the one case that the tire manufacturers consistent with the requirements of 49 purchaser. We also observe that such already have Web site-based tire U.S.C. 30117(b)(2)(B), be an option that releases are not required for tire dealers registration capability. Inclusion of Web independent tire dealers could use in controlled by tire manufacturers, which site registration information would be lieu of paper forms. We also note that are required to register tires for performed at the option of the tire if such an option were permitted in lieu consumers. manufacturer. We are proposing simple of paper forms instead of as a For the new electronic registration text to keep information on the form to supplement, the electronic form would requirements, NHTSA also proposes to a minimum: ‘‘Instead of mailing this need to be standardized. permit the tire manufacturer to form, you can register online at [insert We specifically request that any tire manufacturer’s Web site address]’’. commenters recommending additional 17 70 FR 53569, 53572–73, September 9, 2005. This proposed language deviates options for tire registration, beyond

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those in the proposed regulatory text, recall list. However, the regulation adopt related to electronic registration provide specific recommended would no longer specify that the of tires be similar/different from the regulatory text for those additional statement indicate that a person ‘‘must’’ ones we adopted for child safety seats, options. send in the card to be on the recall list, and why? since manufacturers may provide Registration forms. B. Tires Sold by Dealers Controlled by alternative means of registering tires. As discussed above, for tires sold by Under our proposal, if a tire Tire Manufacturers—Electronic Tire independent tire dealers, NHTSA is manufacturer provides a Web site where Registration required by statute to prescribe a its tires can be registered, it may (but is The tire registration form in Figure 4 standardized tire registration form for not required to) include the following of Part 574 is the form that is to be filled all tires. Specifically, 49 U.S.C. sentences: ‘‘Instead of mailing this form, out by company-controlled tire dealers 30117(b)(2)(B) provides ‘‘(t)he Secretary you can register online at [insert tire and returned to the manufacturer upon shall prescribe the form, which shall be manufacturer’s registration web site the sale of new tires. We note that we standardized for all tires * * *’’ address]’’. have no data on the continued use of The statute provides that tire The form would also include the this form, or what percentage of manufacturers must give sufficient admonition: ‘‘Do it today.’’ company-controlled dealers continue to copies of the registration forms to The form would also continue to use this form versus submit the distributors and dealers. Also, Part include space for recording the tire registration information to the tire 574.8 permits distributors and dealers to identification numbers for six tires. manufacturer using electronic means. use registration forms obtained from There would also continue to be As noted above, the agency has other sources. shading to distinguish between areas of previously provided an interpretation Pursuant to the requirement to the form to be filled in by sellers and letter to the RMA (July 18, 2003 agency prescribe a standardized tire registration customers. letter) stating that while company- form, NHTSA has adopted requirements As indicated above, under our controlled dealers are permitted to through rulemaking and placed them in proposal, the regulation would no register tires electronically: Part 574. The details of some of the longer specify as many details This interpretation does not relieve requirements, including size and data concerning the format of the form. elements, are set in the regulatory text. non-independent distributors and We request comments on the removal dealers from the requirements of section The details of certain other of these figures and on what requirements are not set out in the 574.8(b) that they themselves record the requirements expressed by reference to purchaser’s name and address, the tire regulatory text. Instead, the regulatory the figures should be added to the text requires that forms conform in identification number(s) of the tire(s) regulatory text. sold, and a suitable identification of content and format to the forms Registration rates. depicted in the figures included in Part We request comments on the current themselves as the selling dealer on a tire 574. See 574.7(a)(2). registration rates of tires sold by registration form and return the To promote flexibility, we are independent tire dealers. Commenters completed forms to the tire proposing to remove the figures are asked to provide information manufacturers or their designees. While showing the forms in Part 574. To concerning the total number of such we would interpret Part 574 to permit ensure that the forms remain tires that are sold and the number of non-independent distributors and standardized, we are proposing to add those tires that are currently being dealers to accomplish these tasks by some requirements to the regulatory text registered by each alternative means, electronic means, they may not transfer that are currently expressed by referring e.g., the number of tires registered by this responsibility to consumers. to the figures, but with fewer details returning the paper form, the number In this NPRM, NHTSA is proposing to concerning format. We are also registered using the tire manufacturer’s include a provision expressly reflecting proposing to update the size standards Web site, etc. The agency requests that this existing option in the Part 574 to reflect the current U.S. Postal commenters provide the specific basis requirements. Specifically, NHTSA Service’s ‘‘Domestic Mail Manual’’ for any numbers or rates that are proposes that electronic means be (Updated 12–6–07) at Section 6.3 provided. We also request comments on permitted as an alternative to the paper ‘‘Cards Claimed at Card Rates’’ that how and why these registration rates registration forms specified in S574.7(b). specifies physical standards that may change if the agency adopts this As earlier stated, we have little postcards must meet in order to be proposed rule. information on how these systems are eligible for mailing at card rates. Other issues. configured, so we are proposing simple Under our proposal, on the address We request comments on other issues language and we welcome comments on side of the form, the following would related to our proposal. As indicated alternative language. continue to be required to be provided: above, we intend the scope of this As to Part 574’s requirements for The name and address of the proposal to be broad. these forms, requirements concerning manufacturer or its designee, and, in the We specifically invite comments data elements are set forth in the upper right hand corner, the statement: related to NHTSA’s provisions for regulatory text, and the regulatory text ‘‘Affix a postcard stamp.’’ electronic registration of child safety also specifies that the forms must be The other side of the form would seats in S5.8.2 of FMVSS No. 213. See similar in format and size to that in continue to include the tire final rule published in the Federal Figure 4. We note that the statutory manufacturer’s name (unless it already Register (70 FR 53569) on September 9, requirement that NHTSA prescribe a appears on the address side), and the 2005.18 The agency considered a standardized tire registration form does statement: ‘‘IMPORTANT, In case of a number of issues related to electronic not apply to ones for tires sold by recall, we can reach you only if we have registration and electronic registration dealers controlled by tire manufacturers. your name and address.’’ There would forms in that rulemaking. To what To promote flexibility, we are also continue to be a statement extent should the requirements we proposing to remove Figure 4 showing indicating that sending in the card will the registration forms to be used. We are add a person to the manufacturer’s 18 Docket NHTSA–2005–22324. proposing to add several requirements

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currently expressed by reference to the by internet and other computerized registration on their Web sites would figure, and otherwise leave all other means. Nothing in the proposed rule, if incur some cost to include a registration details to the tire manufacturer. Under made final, would require any tire site. The agency has found that most tire our proposal, the form would continue dealer to use these new procedures. All manufacturers already have tire to be required to include: collection of the names and addresses of registration sites included on their Web • A statement indicating where the first purchasers of new tires may sites. This method of registration would form should be returned, including the continue to be collected as at present. save consumers the cost of a postcard name and mailing address of the However, we believe that permitting postage stamp, and it would save costs manufacturer or its designee. electronic means of tire registration will for tire manufacturers because they (or • The tire manufacturers’ logo or increase the rate of registrations, which their designee) would not have to other identification, if the manufacturer will in turn increase the effectiveness of transcribe the information on the paper is not identified as part of the statement future tire recalls and thus improve forms into a tire registration data base. indicating where the form should be motor vehicle safety. In the table which follows, we are returned. There would be some cost impacts, in providing estimates of the monetized • The statement: ‘‘IMPORTANT; terms of time and/or money, associated costs associated with various rates of FEDERAL LAW REQUIRES TIRE with increased registrations of tires by increased tire registration using the IDENTIFICATION NUMBERS MUST BE electronic means. Since the options we internet. Under this scenario, paper REGISTERED.’’ are proposing are voluntary, we do not forms would continue to be provided to We request comments on the removal know to what extent they will be purchasers, but the additional of this figure and on what requirements utilized by independent tire dealers and registrations would occur via the expressed by reference to the figure tire manufacturers. However, we are internet rather than by the forms being should be added to the regulatory text. providing analysis to show the potential mailed in. Therefore, although tire VI. Rulemaking Analyses and Notices cost impacts. registrations would increase, mailing Increased registrations by consumers and other paperwork costs would A. Executive Order 12866 and DOT using the internet. remain the same. We are assuming, for Regulatory Policies and Procedures Under the proposed rule, tire purposes of these estimates, that the NHTSA has considered the impact of manufacturers can provide, on a costs associated with the current level of this rulemaking action under Executive voluntary basis, internet registration tire registration would not change. The Order 12866 and the Department of information on the tire registration form additional costs associated with this Transportation’s regulatory policies and that is given to purchasers by scenario would be the time consumers procedures. The Office of Management independent tire dealers. Consumers spent registering tires via the internet and Budget reviewed this rulemaking could then register their tires online that they otherwise would not register. document under E.O. 12866, instead of filling out the paper form and We also assume that because the tire ‘‘Regulatory Planning and Review.’’ mailing it to the tire manufacturer or its registration information is collected This rulemaking action has been designee. The cost of printing this using purely electronic means, there determined to be significant under the information on the form is negligible, would be no additional labor burden for DOT Policies and Procedures because of and therefore there would be no cost the tire manufacturer for recordkeeping public interest. increase to tire manufacturers that are associated with these additional In this document, NHTSA is responsible for printing the forms and registrations. To monetize the costs of proposing to amend Part 574 by providing them to independent tire consumers filling out paper forms or permitting collection of the names and dealers. However, the tire manufacturers using the internet, a labor rate of $14.61 addresses of first purchasers of new tires offering the option of internet-based tire per hour is used.19

CONSUMER COST PROJECTIONS ASSOCIATED WITH INCREASED TIRE REGISTRATIONS WITH CONSUMERS REGISTERING TIRES USING THE INTERNET

Future tire registrations using internet-based registration by consumers Current tire registrations 10 percent in- 15 percent in- 20 percent in- crease crease crease

Consumer Hour Burden Estimates: Number of Consumers ...... 10,000,000 11,000,000 11,500,000 12,000,000 Total Tire Registrations ...... 54,000,000 59,400,000 62,100,000 64,800,000 Tire Registration Hours ...... 225,000 247,500 258,750 270,000 Monetized Costs (Consumer time valued @ $14.61/Hour ...... $3,287,250 $3,615,975 $3,780,338 $3,944,700

Voluntary registration by independent additional costs to upgrade their part of the sales process. For these tire dealers. computer systems, with both initial manufacturers, we believe it may be Under the proposed rule, independent startup costs and then costs for periodic possible to upgrade the sales system to tire dealers could voluntarily register maintenance of the systems. We assume include automatic electronic registration tires for consumers, if this was that many independent tire dealers, on behalf of the purchaser. We do not authorized by the tire manufacturer. especially the larger ones, already know the details of how this process Dealers that did this would incur collect tire purchaser information as may work, which would be up to the

19 The median hourly rate among all occupations, Statistics; see http://www.bls.gov/oes/current/ May 2006, according to the Bureau of Labor oes_nat.htm#b00–0000.

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tire manufacturer and the independent U.S., including 13,000 that are whether each tire manufacturer would tire dealers. The process might also company-controlled dealers. The work directly with each independent include companies designated by the remaining 46,000 tire dealers include tire dealer, or whether third party tire manufacturers to provide services in 20,000 car and truck dealers and 26,000 designees would provide an interface this area. We also do not know what independent tire dealers. service for all tire manufacturers and actual startup and annual costs might be There are two unknowns for independent tire dealers. We note that to independent tire dealers. However, estimating the cost impacts on third party designees could provide once these systems are installed, tire independent tire dealers—how many efficiencies of having a single contact registration rates would be 100 percent independent dealers would voluntarily company that could be the interface for for tires sold through these dealers. This upgrade computer systems to register an independent tire dealer and multiple compares with overall current tire manufacturers. registration rates of 10 percent for tires tires, and what the cost of these sold through independent dealers. computer systems would be in terms of We are providing cost estimates The costs associated with voluntary initial cost and annual maintenance. assuming that 30 percent of tire registration by independent tire Each year, a number of independent independent tire dealers would dealers would be offset, or partially dealers will install or upgrade computer participate in such a voluntary program, offset, by the fact that these dealers systems, and they continue to maintain with 10 percent beginning the first year would no longer need to provide paper their systems in subsequent years. We (4,600 dealers), an additional 10 percent forms to consumers, or fill out these will assume that an initial installation beginning the second year, and the third forms with tire identification numbers. cost of providing an upgraded system is 10 percent beginning the third year. The agency has estimated that there $750 and that annual maintenance These costs can be summarized as are a total of 59,000 tire dealers in the thereafter is $200. We do not know follows:

Startup costs Annual Year for computer maintenance Total cost systems costs

2009 ...... $3.45 M ...... 0 ...... $3.45 M 2010 ...... 3.45 M ...... $0.92 M ...... 4.37 M 2011 ...... 3.45 M ...... 1.84 M ...... 5.29 M 2012 and Beyond ...... 0 ...... 2.76 M ...... 2.76 M

Since the proposed rule, if made final, have a significant economic impact on car dealers’’ are classified under NAICS would establish collection of a substantial number of small entities. Code 441110 with a size standard of information procedures that would be The SBREFA amended the Regulatory average yearly sales of $24.5 million. used entirely at the discretion of the tire Flexibility Act to require Federal ‘‘Used car dealers’’ are classified under dealer, and the estimated paperwork agencies to provide a statement of the NAICS Code 441120 with a size burdens of tire dealers electing to use factual basis for certifying that a rule standard of average yearly sales of $19.5 these procedures are not expected to will not have a significant economic million. exceed $100 million annually, the impact on a substantial number of small In its February 27, 2006 comments to agency does not consider this entities. NHTSA, NADA stated that of its rulemaking to be ‘‘economically NHTSA has considered the effects of ‘‘20,000 franchised automobile and significant,’’ as defined by E.O. 12866. this rulemaking action under the truck dealers who sell new and used Thus, it has not prepared a full Regulatory Flexibility Act. As explained motor vehicles,’’ a ‘‘significant number regulatory evaluation. above, NHTSA is proposing to amend are small businesses as defined by the B. Regulatory Flexibility Act Part 574 by permitting collection of the SBA.’’ NADA did not specify the names and addresses of first purchasers number that would be considered Pursuant to the Regulatory Flexibility of new tires by internet and other ‘‘small businesses.’’ In the Federal Act (5 U.S.C. 601, et seq., as amended computerized means. Electronic Register of March 21, 2007 (54 FR by the Small Business Regulatory collection would be permitted in place 133440), we estimated the number of Enforcement Fairness Act (SBREFA) of of paper forms. This regulatory independent tire dealers to be 26,000. 1996), whenever an agency is required flexibility analysis does not apply to Assuming all NADA members are small to publish a notice of rulemaking for manufacturer-owned tire dealers, businesses, the total number of any proposed or final rule, it must because they are not considered small independent tire dealers that are small prepare and make available for public businesses under SBA’s affiliation rule businesses would be 46,000. comment a regulatory flexibility at 5 CFR section 121.103(a)(1) which I hereby certify that if made final, this analysis that describes the effect of the states in part: ‘‘Concerns and entities are proposed rule would not have a rule on small entities (i.e., small affiliates of each other when one significant economic impact on a businesses, small organizations, and controls or has the power to control the substantial number of small entities. small governmental jurisdictions). The other * * *’’ The tire manufacturer The factual basis for the certification is Small Business Administration’s either ‘‘controls or has the power to that if made final, this proposed rule regulations at 13 CFR part 121 define a control’’ dealerships that it owns. would not substantively change existing small business, in part, as a business Under SBA’s size standard regulations 49 CFR Part 574 requirements for small entity ‘‘which operates primarily within (at 5 CFR Part 121), ‘‘tire dealers’’ are businesses that are independent tire the United States.’’ (13 CFR classified under North American dealers. The electronic collection of § 121.105(a)). No regulatory flexibility Industry Classification System (NAICS) information procedures would be analysis is required if the head of an Code 441320 with a size standard of voluntary for independent tire dealers. agency certifies that the rule will not average yearly sales of $6 million. ‘‘New The statement on the paper form giving

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Web site information about online other administrative proceeding before and distributors owned or controlled by registration of new tires (and the paper they may file suit in court. a tire manufacturer to record the names form itself) would be provided by the and addresses of retail purchasers of F. Paperwork Reduction Act tire manufacturer. If it chooses not to new tires and the identification adopt electronic tire registration Under the Paperwork Reduction Act number(s) of the tires sold. A specific procedures, the responsibilities of the of 1995, a person is not required to form is provided to tire dealers and independent dealer would remain the respond to a collection of information distributors by tire manufacturers for same, to pass out the paper forms to first by a Federal agency unless the recording this information. The purchasers of new tires. collection displays a valid Office of completed forms are returned to the tire Management and Budget (OMB) control manufacturers where they are retained C. National Environmental Policy Act number. The proposed changes to the for not less than five years. Part 574 NHTSA has analyzed this rulemaking tire registration and recordkeeping rule, requires independent tire dealers and action for the purposes of the National if made final, would be ‘‘collections of distributors to provide a registration Environmental Policy Act. The agency information,’’ as that term is defined by form to consumers with the tire has determined that implementation of OMB at 5 CFR 1320. Before an agency identification number already recorded this action would not have any submits a proposed collection of and information identifying the dealer/ significant impact on the quality of the information to OMB for approval, it distributor. The consumer can then human environment. must publish a document in the Federal record his/her name and address and Register providing a 60-day comment return the form to the tire manufacturer. D. Executive Order 13132 (Federalism) period and otherwise consult with These forms are also provided to tire NHTSA has examined today’s members of the public and affected dealers and distributors by tire proposal pursuant to Executive Order agencies concerning each proposed manufacturers. Additionally, motor 13132 (64 FR 43255, August 10, 1999) collection of information. The OMB has vehicle manufacturers are required to and concluded that no additional promulgated regulations describing record the names and addresses of the consultation with States, local what must be included in such a first purchasers (for purposes other than governments or their representatives is document. Under OMB’s regulations (at resale), together with the identification mandated beyond the rulemaking 5 CFR 1320.8(d)), an agency must ask numbers of the tires on the new process. The agency has concluded that for public comment on the following: vehicles, and retain this information for the proposal does not have federalism (i) Whether the proposed collection of not less than five years. implications because, if made final, the information is necessary for the proper Description of the Need for the rule would not have ‘‘substantial direct performance of the functions of the Information and the Proposed Use of effects on the States, on the relationship agency, including whether the the Information: The information is between the national government and information will have practical utility; used by a tire manufacturer after it or the States, or on the distribution of (ii) The accuracy of the agency’s the agency determines that some of its power and responsibilities among the estimate of the burden of the proposed tires either fail to comply with an various levels of government.’’ collection of information, including the applicable safety standard or contain a validity of the methodology and safety related defect. With the If the proposed rule is made final, a assumptions used; information, the tire manufacturer can State requirement would be preempted (iii) How to enhance the quality, notify the first purchaser of the tires and if it conflicted with the rule. utility, and clarity of the information to provide them with any necessary E. Civil Justice Reform be collected; and information or instructions or remedy. (iv) How to minimize the burden of Without this information, efforts to With respect to the review of the the collection of information on those identify the first purchaser of tires that promulgation of a new regulation, who are to respond, including the use have been determined to be defective or section 3(b) of Executive Order 12988, of appropriate automated, electronic, nonconforming pursuant to Sections ‘‘Civil Justice Reform’’ (61 FR 4729, mechanical, or other technological 30118 and 30119 of Title 49 U.S.C. February 7, 1996) requires that collection techniques or other forms of would be impeded. Further, the ability Executive agencies make every information technology, e.g., permitting of the purchasers to take appropriate reasonable effort to ensure that the electronic submission of responses. action in the interest of motor vehicle regulation: (1) Clearly specifies the In compliance with the requirements of safety may be compromised. preemptive effect; (2) clearly specifies 5 CFR part 1320, NHTSA requests Description of the Likely Respondents the effect on existing Federal law or comment on the collection of (Including Estimated Number and regulation; (3) provides a clear legal information that would be revised if this Proposed Frequency of Response to the standard for affected conduct, while NPRM were made final. Collection of Information): promoting simplification and burden Title: 49 CFR part 574, Tire March 21, 2007 Federal Register reduction; (4) clearly specifies the Identification and Recordkeeping. Notice—In the 30-day notice retroactive effect, if any; (5) adequately OMB Control Number: 2127–0050. announcing NHTSA’s request for an defines key terms; and (7) addresses Requested Expiration Date of extension to collect the tire registration other important issues affecting clarity Approval: Three years from date of last and recordkeeping information had and general draftsmanship under any approval. been forwarded to OMB, we estimated guidelines issued by the Attorney Type of Request: Extension of a that the collection of information affects General. This document is consistent currently approved collection, with 10 million respondents annually. This with that requirement. changes. group consists of approximately 20 tire Pursuant to this Order, NHTSA notes Summary of the Collection of manufacturers, 59,000 new tire dealers as follows. The preemptive effect of this Information: 49 U.S.C. 30117(b) requires and distributors, and 10 million proposed rule is discussed above. each tire manufacturer to collect and consumers who choose to register their NHTSA notes further that there is no maintain records of the first purchasers tire purchases with tire manufacturers. requirement that individuals submit a of new tires. To carry out this mandate, A response is required by motor vehicle petition for reconsideration or pursue 49 CFR part 574 requires tire dealers manufacturers upon each sale of a new

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vehicle and by non-independent tire collection of information as follows: The Estimate of the Total Annual dealers with each sale of a new tire. A publication ‘‘Modern Tire Dealer’’ Reporting and Recordkeeping Burden consumer may elect to respond when reports that the tire industry’s annual Resulting from the Collection of purchasing a new tire from an unit sales of new tires in the United Information: independent dealer. States for the past three years were as March 21, 2007 Federal Register Today’s Estimate Resulting From the follows: 2004—319 million; 2005—326 Notice—In the March 21, 2007 notice, Proposed Collection of Information million; 2006—313 million. Thus, over we provided the following estimated Including Electronic Reporting—If made the past three years, the average sales of final, today’s NPRM would affect the tires per year in the U.S. were roughly burden: tire registration and recordkeeping 320 million.

New tire dealers and distributors ...... 59,000. Consumers ...... 10,000,000. Total tire registrations (manually) ...... 54,000,000. Total tire registration hours (manually) ...... 225,000 hours. Recordkeeping hours (manually) ...... 25,000 hours. Total annual tire registration and recordkeeping hours ...... 250,000 hours.

We note that with today’s proposed would be no change in format (i.e., that there are no voluntary consensus rule, tire registration by purchasers going from electronic reporting to standards relevant to this rulemaking, as would be facilitated by accommodating electronic storage), NHTSA believes the information to be collected and sent electronic means. We believe that if there would be virtually no burden to tire manufacturers is needed only in electronic registration were hours imposed in transferring the event of a tire recall. Accordingly, accommodated, the response rate for information provided on a tire this proposed rule is in compliance with purchasers may increase. Moreover, manufacturer’s Web site to a Section 12(d) of NTTAA. some independent tire dealers may recordkeeping site. For these reasons, H. Unfunded Mandates Reform Act voluntarily register tires for consumers, NHTSA believes the recordkeeping thereby resulting in a higher registration burden hours would remain at 25,000 Section 202 of the Unfunded rate. hours. Mandates Reform Act of 1995 (UMRA) Given that the various options we are NHTSA solicits comments on the requires Federal agencies to prepare a proposing would be voluntary, we do proposed changes in the collection of written assessment of the costs, benefits, not know to what extent they would be information associated with part 574 and other effects of proposed or final utilized by independent tire dealers, tire and on NHTSA’s analysis of how the rules that include a Federal mandate manufacturers and consumers. changes will affect the number of likely to result in the expenditure by Therefore, based on the information that burden hours affecting the public. State, local or tribal governments, in the is available, these are our estimates of Comments must refer to the docket and aggregate, or by the private sector, of burden. notice numbers cited at the beginning of more than $100 million in any one year The same information (name and this NPRM and be submitted to: Docket (adjusted for inflation with base year of address of the purchaser) would be Operations, M–30, U.S. Department of 1995). Before promulgating a rule for collected regardless of the format, paper Transportation, West Building, Ground which a written statement is needed, form, or typing in information on a Floor, Rm. W12–140, 1200 New Jersey section 205 of the UMRA generally company Web site. Because some Avenue, SE., Washington, DC 20590. requires NHTSA to identify and people type faster and some people consider a reasonable number of G. National Technology Transfer and write faster, NHTSA believes that the regulatory alternatives and adopt the Advancement Act amount of time it will take to provide least costly, most cost-effective, or least information about the name and address Section 12(d) of the National burdensome alternative that achieves of the purchaser would be very roughly Technology Transfer and Advancement the objectives of the rule. The the same, regardless of the format. To Act of 1995 (NTTAA), Public Law 104– provisions of section 205 do not apply the extent more consumers registered 113, section 12(d) (15 U.S.C. 272) when they are inconsistent with their tires, actual burdens realized could directs NHTSA to use voluntary applicable law. Moreover, section 205 thus increase concomitantly with the consensus standards in its regulatory allows NHTSA to adopt an alternative higher registration rates. On the other activities unless doing so would be other than the least costly, most cost- hand, it may be possible for tire inconsistent with applicable law or effective or least burdensome alternative manufacturers and independent tire otherwise impractical. Voluntary if the agency publishes with the final dealers to develop electronic systems, consensus standards are technical rule an explanation why that alternative tied in with the systems used for standards (e.g., materials specifications, was not adopted. monitoring inventory and recording test methods, sampling procedures, and This proposed rule would not result sales information, that could business practices) that are developed or in the expenditure by State, local, or automatically register the tires with the adopted by voluntary consensus tribal governments, in the aggregate, or tire manufacturer at little additional standards bodies, such as the Society of by the private sector of more than $100 cost. Automotive Engineers (SAE). The million annually. Accordingly, the NHTSA believes that virtually all NTTAA directs the agency to provide agency has not prepared an Unfunded recordkeeping by tire manufacturers is Congress, through the OMB, Mandates assessment. already done electronically. NHTSA explanations when we decide not to use I. Plain Language estimates that it takes roughly 25,000 available and applicable voluntary hours to transfer handwritten data to an consensus standards. Executive Order 12866 requires each electronic format for storage. Because, After carefully reviewing the available agency to write all rules in plain with Web site-based information, there information, NHTSA has determined language. Application of the principles

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of plain language includes consideration • Federal eRulemaking Portal: Go to confidential business information of the following questions: http://www.regulations.gov. Follow the regulation.22 —Have we organized the material to suit online instructions for submitting In addition, you should submit a the public’s needs? comments. copy, from which you have deleted the —Are the requirements in the rule • Mail: Docket Management Facility, claimed confidential business clearly stated? M–30, U.S. Department of information, to the Docket by one of the —Does the rule contain technical Transportation, West Building, Ground methods set forth above. language or jargon that is not clear? Floor, Rm. W12–140, 1200 New Jersey —Would a different format (grouping Will the Agency Consider Late Avenue, SE., Washington, DC 20590. Comments? and order of sections, use of headings, • Hand Delivery or Courier: West paragraphing) make the rule easier to Building Ground Floor, Room W12–140, We will consider all comments understand? 1200 New Jersey Avenue, SE., between received before the close of business on —Would more (but shorter) sections be 9 a.m. and 5 p.m. Eastern Time, Monday the comment closing date indicated better? above under DATES. To the extent —Could we improve clarity by adding through Friday, except Federal holidays. • Fax: (202) 493–2251. possible, we will also consider tables, lists, or diagrams? comments received after that date. —What else could we do to make this If you are submitting comments Therefore, if interested persons believe rulemaking easier to understand? electronically as a PDF (Adobe) file, we that any new information the agency ask that the documents submitted be If you have any responses to these places in the docket affects their scanned using Optical Character questions, please include them in your comments, they may submit comments Recognition (OCR) process, thus comments on this NPRM. after the closing date concerning how allowing the agency to search and copy the agency should consider that J. Regulation Identifier Number (RIN) certain portions of your submissions.21 The Department of Transportation information for the final rule. Please note that pursuant to the Data If a comment is received too late for assigns a regulation identifier number Quality Act, in order for substantive (RIN) to each regulatory action listed in us to consider in developing a final rule data to be relied upon and used by the (assuming that one is issued), we will the Unified Agenda of Federal agency, it must meet the information Regulations. The Regulatory Information consider that comment as an informal quality standards set forth in the OMB suggestion for future rulemaking action. Service Center publishes the Unified and DOT Data Quality Act guidelines. Agenda in April and October of each Accordingly, we encourage you to How Can I Read the Comments year. You may use the RIN contained in consult the guidelines in preparing your Submitted By Other People? the heading at the beginning of this comments. OMB’s guidelines may be You may read the materials placed in document to find this action in the accessed at http://www.whitehouse.gov/ Unified Agenda. the docket for this document (e.g., the omb/fedreg/reproducible.html. DOT’s comments submitted in response to this K. Privacy Act guidelines may be accessed at http:// document by other interested persons) dmses.dot.gov/submit/ Anyone is able to search the at any time by going to http:// DataQualityGuidelines.pdf. electronic form of all comments www.regulations.gov. Follow the online received into any of our dockets by the How Can I Be Sure That My Comments instructions for accessing the dockets. name of the individual submitting the Were Received? You may also read the materials at the comment (or signing the comment, if Docket Management Facility by going to submitted on behalf of an association, If you submit your comments by mail the street address given above under business, labor union, etc.). You may and wish Docket Management to notify ADDRESSES. The Docket Management review DOT’s complete Privacy Act you upon its receipt of your comments, Facility is open between 9 a.m. and 5 Statement in the Federal Register enclose a self-addressed, stamped p.m. Eastern Time, Monday through published on April 11, 2000 (65 FR postcard in the envelope containing Friday, except Federal holidays. 19477 at 19478) or you may visit your comments. Upon receiving your List of Subjects in 49 CFR Part 574 http://docketsinfo.dot.gov/. comments, Docket Management will return the postcard by mail. Labeling, Motor vehicle safety, V. Public Participation How Do I Submit Confidential Business Reporting and recordkeeping How Do I Prepare and Submit Information? requirements, and Tires. Comments? In consideration of the foregoing, If you wish to submit any information Your comments must be written and NHTSA proposes to amend 49 CFR part under a claim of confidentiality, you 574 as follows: in English. To ensure that your should submit three copies of your comments are correctly filed in the complete submission, including the PART 574—TIRE IDENTIFICATION AND Docket, please include the docket information you claim to be confidential RECORDKEEPING number of this document in your business information, to the Chief comments. Your comments must not be Counsel, NHTSA, at the address given 1. The authority for part 574 20 more than 15 pages long. We above under FOR FURTHER INFORMATION continues to read as follows: established this limit to encourage you CONTACT. When you send a comment Authority: 49 U.S.C. 322, 30111, 30115, to write your primary comments in a containing information claimed to be 30117 and 30166; delegation of authority at concise fashion. However, you may confidential business information, you 49 CFR 1.50. attach necessary additional documents should include a cover letter setting 2. Section 574.7 is amended by to your comments. There is no limit on forth the information specified in our the length of the attachments. revising paragraphs (a)(2) and (a)(3) and Please submit your comments by any adding new paragraphs (e) and (f) to 21 Optical character recognition (OCR) is the read as follows: of the following methods: process of converting an image of text, such as a scanned paper document or electronic fax file, into 20 See 49 CFR § 553.21. computer-editable text. 22 See 49 CFR 512.

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§ 574.7 Information requirements—tire dealers pursuant to paragraph (a)(1) of (A) The purchaser’s name and manufacturers, new tire brand name this section must contain space for address, owners. recording the information specified in (B) The entire tire identification (a)(1) * * * paragraphs (a)(4)(i) through (a)(4)(iii) of number of the tire(s) sold or leased to (2) Each tire registration form this section. Each form must include: the tire purchaser, and provided to independent distributors (A) A statement indicating where the (C) The distributor’s or dealer’s name and dealers pursuant to paragraph (a)(1) form should be returned, including the and street address. In lieu of the street of this section shall contain space for name and mailing address of the address, and if one is available, the recording the information specified in manufacturer or its designee. distributor or dealer’s e-mail address or paragraphs (a)(4)(i) through (a)(4)(iii) of (B) The tire manufacturers’ logo or Web site may be recorded. Other means this section. Each form shall: other identification, if the manufacturer of identifying the distributor or dealer (i) Have the following physical is not identified as part of the statement known to the manufacturer may also be characteristics: indicating where the form should be used. (A) Be rectangular; returned. (iii) If authorized by the tire 1 (B) Be not less than 3 ⁄2 inches high, (C) The statement: ‘‘IMPORTANT: manufacturer, electronically transmit 5 inches long, and 0.007 inches thick; FEDERAL LAW REQUIRES TIRE the following information on the tire 1 (C) Be not more than 4 ⁄4 inches high, IDENTIFICATION NUMBERS MUST BE registration form to the tire or more than 6 inches long, or greater REGISTERED’’. manufacturer, or its designee, using than 0.016 inch thick. (D) In the top right corner, the phrase secure means (e.g., https on the web), at (ii) On the address side of the form, ‘‘OMB Control No. 2127–0050’’. no charge to the tire purchaser and be addressed with the name and address * * * * * within 30 days of the date of sale or of the manufacturer or its designee, and (e) Tire manufacturers may lease: include, in the upper right hand corner, voluntarily provide means for tire (A) The purchaser’s name and the statement ‘‘Affix a postcard stamp.’’ registration via the internet, by address, (iii) On the other side of the form: telephone or other electronic means. (B) The entire tire identification (A) Include the tire manufacturer’s (f) Each tire manufacturer shall meet number of the tire(s) sold or leased to name, unless it appears on the address the requirements of paragraphs (b), (c) the tire purchaser, and side of the form; and (d) of this section with respect to (B) Include a statement explaining the (C) The distributor’s or dealer’s name tire registration information submitted and street address. In lieu of the street purpose of the form and how a to it or its designee by any means consumer may register tires. The address, and if one is available, the authorized by the manufacturer in distributor or dealer’s e-mail address or statement shall: addition to the use of registration forms. (1) Include the heading Web site may be recorded. Other means 3. Section 574.8 is revised to read as of identifying the distributor or dealer ‘‘IMPORTANT’’. follows: (2) Include the sentence: ‘‘In case of known to the manufacturer may also be a recall, we can reach you only if we § 574.8 Information requirements—tire used. have your name and address.’’ distributors and dealers. (2) Each independent distributor or (3) Indicate that sending in the card (a) Independent distributors and dealer that complies with paragraph will add a person to the manufacturer’s dealers. (a)(1)(i) or (ii) of this section shall use recall list. (1) Each independent distributor and either the tire registration forms (4) If a tire manufacturer provides a each independent dealer selling or provided by the tire manufacturers Web site where its tires can be leasing new tires to tire purchasers or pursuant to § 574.7(a) or registration registered, it may (but is not required to) lessors (hereinafter referred to in this forms obtained from another source. include the following sentence: ‘‘Instead section as ‘‘tire purchasers’’) shall Paper forms obtained from other sources of mailing this form, you can register comply with paragraph (a)(1)(i), (a)(1)(ii) must comply with the requirements online at [insert tire manufacturer’s or (a)(1)(iii) of this section: specified in § 574.7(a) for forms registration Web site address].’’ (i) At the time of sale or lease of the provided by tire manufacturers to (5) Include the sentence: ‘‘Do it tire, provide each tire purchaser with a independent distributors and dealers. today.’’ paper tire registration form on which (3) Multiple tire sales or leases by the (C) Include space for recording tire the distributor or dealer has recorded same tire purchaser may be recorded on identification numbers for six tires. the following information: a single paper registration form or in a (D) Use shading to distinguish (A) The entire tire identification single Web site transaction. between areas of the form to be filled in number of the tire(s) sold or leased to (4) Each independent distributor or by sellers and customers. the tire purchaser, and dealer that is complying with paragraph (1) Include the statement: ‘‘Shaded (B) The distributor’s or dealer’s name (a)(1)(iii) with respect to a sale or lease areas must be filled in by seller.’’ and street address. In lieu of the street shall include a statement to that effect (2) The areas of the form for recording address, and if one is available, the on the invoice for that sale or lease and tire identification numbers and distributor or dealer’s e-mail address or provide the invoice to the tire information about the seller of the tires Web site may be recorded. Other means purchaser. must be shaded. of identifying the distributor or dealer (b) Other distributors and dealers. (3) The area of the form for recording known to the manufacturer may also be (1) Each distributor and each dealer, the customer name and address must used. other than an independent distributor or not be shaded. (ii) Record the following information dealer, selling new tires to tire (D) Include, in the top right corner, on a paper tire registration form and purchasers: the phrase ‘‘OMB Control No. 2127– return it to the tire manufacturer, or its (i) shall submit, using paper 0050’’. designee, on behalf of the tire purchaser, registration forms or, if authorized by (3) Each tire registration form at no charge to the tire purchaser and the tire manufacturer, secure electronic provided to distributors and dealers that within 30 days of the date of sale or means, the information specified in are not independent distributors or lease: § 574.7(a)(4) to the manufacturer of the

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tires sold, or to the manufacturer’s respective tire manufacturers or their group of tires when so directed by a designee. designees. notification issued pursuant to 49 U.S.C. (ii) shall submit the information (c) Each distributor and each dealer Section 30118, specified in § 574.7(a)(4) to the tire selling new tires to other tire Notification of defects and manufacturer or the manufacturer’s distributors or dealers shall supply to noncompliance. designee, not less often than every 30 the distributor or dealer a means to 4. In Part 574, Figures 3a, 3b and 4 are days. A distributor or dealer selling record the information specified in removed. fewer than 40 tires of all makes, types § 574.7(a)(4), unless such means has and sizes during a 30 day period may been provided to that distributor or Issued on: January 16, 2008. wait until a total of 40 new tires is sold. dealer by another person or by a Stephen R. Kratzke, In no event may more than six months manufacturer. Associate Administrator for Rulemaking. elapse before the § 574.7(a)(4) (d) Each distributor and each dealer [FR Doc. E8–1099 Filed 1–23–08; 8:45 am] information is forwarded to the shall immediately stop selling any BILLING CODE 4910–59–P

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Notices Federal Register Vol. 73, No. 16

Thursday, January 24, 2008

This section of the FEDERAL REGISTER Act), as amended. The EMP regulations Product needs assessments and contains documents other than rules or appear at 7 CFR part 1486. market analysis; proposed rules that are applicable to the 1. Purpose: The EMP assists U.S. —Projects that help foreign governments public. Notices of hearings and investigations, entities in developing, maintaining, or collect and use market information committee meetings, agency decisions and and develop free trade policies that rulings, delegations of authority, filing of expanding exports of U.S. agricultural petitions and applications and agency commodities and products by funding benefit U.S. exporters as well as the statements of organization and functions are technical assistance activities that target country or countries. Examples: examples of documents appearing in this promote U.S. products in emerging Agricultural statistical analysis; section. foreign markets. The Program is development of market information intended primarily to support export systems; and market development efforts of the —Short-term training in broad aspects DEPARTMENT OF AGRICULTURE private sector, but program resources of agriculture and agribusiness trade may also be used to assist public that will benefit U.S. exporters. Commodity Credit Corporation organizations. Examples: Retail training; All U.S. agricultural commodities and transportation and distribution Notice of Funds Availability: Inviting products, except tobacco, are eligible for seminars. Applications for the Emerging Markets consideration. Agricultural product(s) Program EMP funds may not be used to should be comprised of at least 50 support normal operating costs of Announcement Type: New. percent U.S. origin content by weight, individual organizations, nor as a source exclusive of added water, to be eligible to recover pre-award costs or prior (Catalog of Federal Domestic Assistance for funding. Proposals which seek (CFDA) Number: 10.603.) expenses from previous or ongoing support for multiple commodities are projects. Proposals that counter national SUMMARY: The Commodity Credit also eligible. EMP funding may only be strategies or duplicate activities planned Corporation (CCC) announces the used to support exports of U.S. or already underway by U.S. non-profit availability of funding for the Emerging agricultural commodities and products agricultural commodity or trade Markets Program (EMP) for fiscal year through generic activities. associations (‘‘cooperator’’) (FY) 2008. The intended effect of this 2. Appropriate Activities: Following organizations will not be considered. notice is to solicit applications from the are the types of project activities that Ineligible expenditures include branded private sector and from government may be considered for funding under product promotions (in-store, restaurant agencies for FY 2008 and award funds the EMP: advertising, labeling, etc.); advertising; in early 2008. The EMP is administered —Projects designed specifically to administrative and operational expenses by personnel of the Foreign Agricultural improve market access in emerging for trade shows; Web site development; Service (FAS). foreign markets. Example: Activities equipment purchases; and the DATES: All proposals must be received intended to mitigate the impact of preparation and printing of brochures, by 5 p.m. Eastern Standard Time political or economic events in order flyers, posters (except in connection February 25, 2008. Applications to maintain U.S. market share; with specific technical assistance received after this time will not be —Marketing and distribution of value- activities such as training seminars). For considered. added products. Examples: Market a more complete description of research on the potential for ineligible activities, please refer to the Note: Another notice regarding the consumer-ready foods; new uses of a EMP Regulations. availability of FY 2009 EMP funds will be product; published later this year. 3. Eligible Markets: The Act defines —Studies of food distribution channels an emerging market as any country that FOR FURTHER INFORMATION CONTACT: in emerging markets, including the Secretary of Agriculture determines: Entities wishing to apply for funding infrastructural impediments to U.S. (a) Is taking steps toward developing should contact the Grants Management exports. Examples: Grain storage a market-oriented economy through the Branch, Foreign Agricultural Service, handling and inventory systems; food, agriculture, or rural business Portals Office Building, Suite 400, 1250 distribution infrastructure sectors of the economy of the country; Maryland Avenue, SW., Washington, development; and DC 20024, phone: (202) 720–5306, fax: —Projects that specifically address (b) Has the potential to provide a (202) 690–0193, e-mail: various constraints to U.S. exports, viable and significant market for United [email protected]. Information is also including sanitary and phytosanitary States agricultural commodities or available on the Foreign Agricultural issues and other non-tariff barriers. products of United States agricultural Service Web site at http:// Examples: Seminars on U.S. food commodities. www.fas.usda.gov/mos/em-markets/em- safety standards and regulations; Because EMP funds are limited and markets.asp. assessing and addressing pest and the range of potential emerging market disease problems that inhibit U.S. countries is worldwide, consideration SUPPLEMENTARY INFORMATION: exports; will be given to proposals that target I. Funding Opportunity Description —Assessments and follow up activities countries or regional groups with per designed to improve country-wide capita income of less than $11,115 (the Authority: The EMP is authorized by food and business systems, and to current ceiling on upper middle income section 1542(d)(1) of the Food, Agriculture, determine potential use of general economies as determined by the World Conservation and Trade Act of 1990 (The export credit guarantees. Example: Bank [World Development Indicators;

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July 2007, http:// awarded to federal government agencies even when they may be party to a joint siteresources.worldbank.org/ must be expended or otherwise proposal with a U.S. government DATASTATISTICS/Resources/ obligated by COB September 30, 2008. agency. Contributions from USDA or CLASS.XLS]) and populations of greater other U.S. government agencies or III. Eligibility and Qualification than 1 million. programs may not be counted toward Information Income limits and their calculation the stated cost share requirement. can change from year to year with the 1. Eligible Applicants. Any United Similarly, contributions from foreign result that a given country may qualify States private or government entity with (non-U.S.) organizations may not be under the legislative and administrative a demonstrated role or interest in counted toward the cost share criteria one year but not the next. exports of U.S. agricultural commodities requirement, but may be counted in the Therefore, CCC has not established a or products may apply to the program. total cost of the project. fixed list of ‘‘emerging market’’ Government entities consist of Federal, 3. Other. Proposals should include a countries. State, and local agencies. Private entities justification for funding assistance from A few countries technically qualify as include non-profit trade associations, the program—an explanation as to what emerging markets but may require a universities, agricultural cooperatives, specifically could not be accomplished separate determination before funding state regional trade groups, and profit- without federal funding assistance and can be considered because of political making entities and consulting why the participating organization(s) sensitivities. businesses. Proposals from research and would be unlikely to carry out the consulting organizations will be II. Award Information project without such assistance. considered if they provide evidence of Applicants may submit more than one In general, all qualified proposals substantial participation and financial proposal. received before the application deadline support from the U.S. industry. For- will compete for EMP funding. Priority profit entities are also eligible but may IV. Application and Submission consideration will be given to proposals not use program funds to conduct Information that identify and seek to address private business, promote private self- 1. Address To Request Package. EMP specific problems or constraints to interests, supplement the costs of applicants may use the Unified Export agricultural exports in emerging markets normal sales activities, or promote their Strategy (UES) application process, an through technical assistance activities own products or services beyond online system which allows interested that are intended to expand or maintain specific uses approved by CCC in a applicants to submit a consolidated and U.S. agricultural exports. The given project. strategically coordinated single proposal applicants’ willingness to contribute U.S. market development cooperators that incorporates funding requests for resources, including cash, goods and and state regional trade groups (SRTGs) any or all of the market development services will be a critical factor in may seek funding to address priority, programs administered by FAS. determining which proposals are market specific issues and to undertake Applicants are not required to use the funded under the EMP. Proposals will activities not suitable for funding under UES, but are strongly encouraged to do also be judged on the potential benefits other marketing programs, e.g., the so because it reduces paperwork and to the industry represented by the Foreign Market Development expedites the FAS processing and applicant and the degree to which the (Cooperator) Program and the Market review cycle. Applicants planning to proposal demonstrates industry support. Access Program (MAP). Foreign use the online UES system must contact The limited funds and the range of organizations, whether government or the Program Policy Staff at (202) 720– eligible emerging markets worldwide private, may participate as third parties 4327 to obtain site access information generally preclude CCC from approving in activities carried out by U.S. including a user id and password. The large budgets for individual projects. organizations, but are not eligible for Internet-based application, including While there is no minimum or funding assistance from the program. step-by-step instructions for its use, is maximum amount set for EMP-funded 2. Cost Sharing. No private sector located at the following URL address: projects, most projects are funded at a proposal will be considered without the http://www.fas.usda.gov/ level of less than $500,000 and for a element of cost-share from the applicant cooperators.html. A Help file is duration of approximately one year. and/or U.S. partners. The EMP is available to assist applicants with the Private entities may submit multi-year intended to complement, not supplant, process. Applicants using the online proposals requesting higher levels of the efforts of the U.S. private sector. system should also provide, promptly funding that may be considered in the There is no minimum or maximum after the deadline for submitting the context of a detailed strategic amount of cost share, though the range online application, a printed or e-mailed implementation plan. Funding in such in recent successful proposals has been version of each proposal (using Word or cases is normally provided one year at between 35 and 75 percent. The degree compatible format) to one of the a time with commitments beyond the of commitment to a proposed project, following addresses: first year subject to interim evaluations represented by the amount and type of Hand Delivery (including FedEx, DHL, and funding availability. Government private funding, is used in determining UPS, etc.): U.S. Department of entities are not eligible for multi-year which proposals will be approved for Agriculture, Foreign Agricultural funding. funding. Cost-share may be actual cash Service, Grants Management Branch, Funding for successful proposals will invested or professional time of staff Portals Office Building, Suite 400, 1250 be provided through specific assigned to the project. Proposals for Maryland Avenue, SW., Washington, agreements. The CCC, through FAS, will which private industry is willing to DC 20024. be kept informed of the implementation commit cash, rather than in-kind U.S. Postal Delivery: U.S. Department of approved projects through the contributions such as staff resources, of Agriculture, Foreign Agricultural requirement to provide regular progress will be given priority consideration. Service, Grants Management Branch, reports and final performance reports. Cost-sharing is not required for STOP 1042, 1400 Independence Ave., Changes in the original project timelines proposals from U.S. federal, state or SW., Washington, DC 20250–1042. and adjustments within project budgets local government agencies, but is Applicants electing not to use the must be approved by FAS. EMP funds mandatory for all other eligible entities, online system must submit both (1) a

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printed copy of their application to the federal funding assistance and why the sales, and/or improve awareness of addresses above and (2) an electronic participating organization(s) would be U.S. agricultural commodities and version to the e-mail address above. unlikely to carry out the project without products; 2. Content and Form of Application such assistance; —Quality of the project’s performance Submission. It is highly recommenced (p) Specific description of activity/ measures and the degree to which that any organization considering activities to be undertaken; they relate to the objectives, applying to the program first obtain a (q) Timeline(s) for implementation of deliverables, and proposed approach copy of the EMP Regulations. The activity, including start and end dates; and activities; regulations contain information on (r) Information on whether similar —Justification for federal funding; requirements that a proposal meet to be activities are or have previously been —Overall cost of the project and the considered for funding under the funded with USDA sources in target amount of funding provided by the program, along with other important country/countries (e.g., under MAP and/ applicant and any partners; and information. EMP regulations and or FMD programs); and —Evidence that the organization has the additional information are available at (s) Detailed line item activity budget. knowledge, expertise, ability, and the following URL address: http:// Cost items should be allocated resources to successfully implement www.fas.usda.gov/mos/em-markets/em- separately to each participating the project. markets.asp. organization. Expense items constituting Additional evaluation criteria are In addition, in accordance with the a proposed activity’s overall budget discussed in the EMP regulations. Office of Management and Budget’s (e.g., salaries, travel expenses, 2. Review and Selection Process. All policy directive regarding the use of a consultant fees, administrative costs, applications undergo a multi-phase universal identifier for all Federal grants etc.), with a line item cost for each, review within FAS, including or cooperative agreements, all should be listed, clearly indicating: appropriate FAS overseas offices, and applicants must submit a Dun and (1) Which items are to be covered by by the private sector Advisory Bradstreet Data Universal Numbering EMP funding; Committee on Emerging Markets to System (DUNS) number prior to (2) Which by the participating U.S. determine the qualifications, quality submitting applications. An applicant organization(s); and and appropriateness of projects, and may request a DUNS number at no cost (3) Which by foreign third parties (if reasonableness of project budgets. by calling the dedicated toll-free DUNS applicable). 3. Anticipated Announcement Date. number request line on 1–866–705– Cost items for individual consultant EMP funding decisions will be 5711. fees should show calculation of daily announced in the spring of 2008. Applications should be no longer than rate and number of days. Cost items for ten (10) pages and include the following travel expenses should show number of VI. Award Administration Information information: trips, destinations, cost, and objective 1. Award Notices. FAS will notify (a) Date of proposal; for each trip. Qualifications of each applicant in writing of the final (b) Name of organization submitting applicant(s) should be included as an disposition of its application. FAS will proposal; attachment. send an approval letter and project (c) Organization address, telephone 3. Submission Dates and Times. All agreement to each approved applicant. and fax numbers; proposals must be received by 5 p.m. The approval letter and agreement will (d) Tax ID number; Eastern Standard Time on [insert date specify the terms and conditions (e) DUNS number; 30 days after day of publication], in the applicable to the project, including the (f) Primary contact person; (g) Full title of proposal; Grants Management Branch, either level of EMP funding and cost-share (h) Target market(s); electronically, hand delivered, or by contribution requirements. (i) Current conditions in the target mail. Proposals received after this date 2. Administrative and National Policy market(s) affecting the intended and time will not be reviewed or Requirements. Interested parties should commodity or product; considered for program funding. review the EMP regulations which are (j) Description of problem(s), i.e., 4. Funding Restrictions. Certain types available at the following URL address: constraint(s), to be addressed by the of expenses are not eligible for http://www.fas.usda/mos/em-markets/ project, such as inadequate knowledge reimbursement by the program, and em-markets.asp. of the market, insufficient trade there are limits on other categories of 3. Reporting. Quarterly progress contacts, lack of awareness by foreign expenses such as indirect overhead reports for all programs one year or officials of U.S. products and business charges, travel expenses and consulting longer in duration are required. Projects practices, impediments (infrastructure, fees. CCC will not reimburse of less than one year generally require financing, regulatory or other non-tariff unreasonable expenditures or a mid-term progress report. Final barriers), etc.; expenditures made prior to approval of performance reports are due 90 days (k) Project objectives; a proposal. Full details of the funding after completion of each project. (l) Performance measures: restrictions are available in the EMP Content requirements for both types of benchmarks for quantifying progress in regulations. reports are contained in the Project meeting the objectives; Agreement. Final financial reports are (m) Rationale: Explanation of the V. Application Review Information also due 90 days after completion of underlying reasons for the project 1. Criteria. Key criteria used in each project as attachments to the final proposal and its approach, the judging proposals include: performance report. anticipated benefits, and any additional —Appropriateness of the activities for VII. Agency Contact(s) pertinent analysis; the targeted market(s) and the extent (n) Clear demonstration that to which the project identifies market For additional information and successful implementation will benefit a barriers, e.g., a fundamental assistance, contact the Grants particular industry as a whole, not just deficiency in the market, and/or a Management Branch, Foreign the applicant(s); recent change in market conditions; Agricultural Service, U.S. Department of (o) Explanation as to what specifically —Potential of the project to expand U.S. Agricultural, Portals Office Building, could not be accomplished without market share, increase U.S. exports or Suite 400, Stop 1042, 1250 Maryland

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Avenue, SW., Washington, DC 20024, reconstruction of 0.6 miles of existing Background phone: (202) 720–5306, fax: (202) 690– service roads. The Record of Decision 0193, e-mail: [email protected]. was appealed by two parties. On May On September 12, 2007, the 25, 2007, upon review, Forest Department of Commerce (‘‘the Signed at Washington, DC, on January 17, Department’’) published Certain Helical 2008. Supervisor Krueger withdrew her March 5, 2007 decision. Her decision to Spring Lock Washers From the People’s W. Kirk Miller, Republic of China: Preliminary Results Acting Administrator, Foreign Agricultural withdraw was based on an error identified in the FEIS by an appellant of Antidumping Duty Administrative Service and Vice President, Commodity Credit Review, 72 FR 52073 (‘‘Preliminary Corporation. and her finding that further environmental analysis was needed in Results’’). The respondent in this case is [FR Doc. 08–238 Filed 1–23–08; 8:45 am] Hangzhou Spring Washer Co., Ltd. (also BILLING CODE 3410–10–M regard to some species of the wildlife. The SEIS will be limited in its scope known as Zhejiang Wanxin Group, Ltd.) and focus on correction of the soils (‘‘HSW’’). Shakeproof Assembly DEPARTMENT OF AGRICULTURE disclosure in FEIS, and additional Components Division of Illinois Tool effects disclosure for some species of Works, Inc. (‘‘Shakeproof’’), the U.S. Forest Service wildlife. Clarification of goshawk interested party, filed surrogate value territories will also be addressed. information and data on April 19, 2007, Wasatch-Cache National Forest, UT; August 3, 2007, and October 12, 2007. West Bear Landscape Management Responsible Official HSW filed surrogate value information Project Brian Ferebee, Acting Forest and data on April 19, 2007, May 29, Supervisor, Uinta-Wasatch-Cache 2007, and July 24, 2007. We gave AGENCY: Forest Service, USDA. National Forest 8236 Bennett Federal interested parties an opportunity to ACTION: Notice of intent to prepare a Building, 125 South State Street, Salt comment on the Preliminary Results. supplemental environmental impact Lake City, UT 84138. Shakeproof requested a one-month statement to the West Bear Vegetation extension of the deadline for filing case Management Project. Dated: January 16, 2008. David R. Myers, and rebuttal briefs on September 28, 2007. On October 2, 2007, we granted a SUMMARY: The USDA Forest Service Deputy Forest Supervisor. announces its intent to prepare a one-day extension of the deadline for [FR Doc. 08–257 Filed 1–23–08; 8:45 am] filing case and rebuttal briefs. On Supplemental Environmental Impact BILLING CODE 3410–11–M Statement (SEIS) to the West Bear October 16, 2007, HSW filed its case Vegetation Management Project Final brief. Shakeproof submitted the final proprietary version of its brief on Environment Impact Statement (FEIS). DEPARTMENT OF COMMERCE The West Bear Vegetation Management October 17, 2007. HSW submitted the Project FEIS evaluated three alternatives International Trade Administration final proprietary version of its rebuttal using timber harvest and prescribed fire brief on October 23, 2007. Shakeproof as management tools to treat vegetation. [A–570–822] did not submit a rebuttal brief. The treatment is intended to move the Helical Spring Lock Washers From the We have conducted this West Bear landscape towards properly People’s Republic of China: Final administrative review in accordance functioning condition (PFC). Results of Antidumping Duty with section 751 of the Tariff Act of DATES: Scoping will not be conducted in Administrative Review 1930, as amended (‘‘the Act’’), and 19 accordance with 40 CFR 1502.9(c)(4). CFR 351.213. AGENCY: Import Administration, The draft supplemental environmental Scope of the Order impact statement is expected in International Trade Administration, February 2008 and the final Department of Commerce. The products covered by the order are supplemental environmental impact SUMMARY: The Department of Commerce HSLWs of carbon steel, of carbon alloy statement and a new Record of Decision (‘‘the Department’’) is conducting an steel, or of stainless steel, heat-treated or are expected in April 2008. administrative review of the non-heat-treated, plated or non-plated, ADDRESSES: Send written comments to antidumping duty order on helical with ends that are off-line. HSLWs are Steve Ryberg, Evanston District Ranger, spring lock washers (‘‘HSLWs’’) from designed to: (1) Function as a spring to Wasatch-Cache National Forest, P.O. the People’s Republic of China (‘‘PRC’’) compensate for developed looseness Box 1880, Evanston, Wyoming 82931. covering the period October 1, 2005, between the component parts of a FOR FURTHER INFORMATION CONTACT: through September 30, 2006. We invited fastened assembly; (2) distribute the Steve Ryberg, Evanston District Ranger, interested parties to comment on our load over a larger area for screws or Evanston Ranger District, Evanston, preliminary results. Based on our bolts; and (3) provide a hardened Wyoming, (307) 789–3194. analysis of the comments received, we bearing surface. The scope does not have made changes to our margin SUPPLEMENTARY INFORMATION: include internal or external tooth calculations. Therefore, the final results washers, nor does it include spring lock Proposed Action differ from the preliminary results. washers made of other metals, such as On March 5, 2007, Forest Supervisor EFFECTIVE DATE: January 24, 2008. copper. Faye Krueger made a decision to FOR FURTHER INFORMATION CONTACT: HSLWs subject to the order are implement the West Bear Vegetation Marin Weaver or Charles Riggle, currently classifiable under subheading Treatment Project to treat approximately AD/CVD Operations, Office 8, Import 7318.21.0030 of the Harmonized Tariff 1,686 acres. The project consists of Administration, International Trade Schedule of the United States harvesting 1,489 acres, prescribed Administration, U.S. Department of (‘‘HTSUS’’). Although the HTSUS burning 523 acres of aspen and mixed Commerce, 14th Street and Constitution subheading is provided for convenience aspen/conifer, construction of 7.8 miles Avenue, NW., Washington, DC 20230; and customs purposes, the written of temporary roads, 0.9 miles of telephone: (202) 482–2336 or (202) 482– description of the scope of this intermittent service roads and minor 0650, respectively. proceeding is dispositive.

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Analysis of Comments Received financial ratios. Second, we have of the relevant entries during this All issues raised in the post- excluded traded goods from the review period. Failure to comply with preliminary comments by parties in this overhead ratio, but included traded this requirement could result in the review are addressed in the goods in the SG&A and profit ratios. See Secretary’s presumption that memorandum from Stephen J. Claeys, Comment 6. reimbursement of the antidumping Deputy Assistant Secretary for Import Final Results of Review duties occurred and the subsequent Administration, to David M. Spooner, assessment of double antidumping We determined that the following duties. This notice also serves as a Assistant Secretary for Import dumping margin exists for the period Administration, Issues and Decision reminder to parties subject to October 1, 2005, through September 30, administrative protective orders Memorandum for the Final Results of 2006: Certain Helical Spring Lock Washers (‘‘APOs’’) of their responsibility from the People’s Republic of China concerning the return or destruction of Weighted- proprietary information disclosed under (January 15, 2008) (‘‘Issues and Decision Exporter/manufacturer average Memorandum’’), which is hereby margin APO in accordance with 19 CFR adopted by this notice. A list of the percentage 351.305, which continues to govern business proprietary information in this issues that parties raised and to which Hangzhou Spring Washer Co., we responded in the Issues and segment of the proceeding. Timely Ltd. (also known as Zhejiang written notification of the return/ Decision Memorandum is attached to Wanxin Group, Ltd.) ...... 0.00 this notice as an appendix. The Issues destruction of APO materials or conversion to judicial protective order is and Decision Memorandum is a public Assessment Rates document and is on file in the Central hereby requested. Failure to comply The Department intends to issue Records Unit (‘‘CRU’’) in room B–099 in with the regulations and terms of an assessment instructions to U.S. Customs the main Commerce Department APO is a violation that is subject to and Border Protection (‘‘CBP’’) 15 days building, and is also accessible on the sanction. after the date of publication of these We are issuing and publishing this Web at http://ia.ita.doc.gov/frn. The final results of review. In accordance determination and notice in accordance paper copy and electronic version of the with 19 CFR 351.212(b)(1), we have with sections 751(a) and 777(i) of the memorandum are identical in content. calculated importer-specific assessment Act. Changes Since the Preliminary Results rates for merchandise subject to this Dated: January 15, 2008. review. Based on our analysis of comments David M. Spooner, received, we have made changes in the Cash Deposit Requirements Assistant Secretary for Import margin calculations for HSW. See Issues The following deposit requirements Administration. and Decision Memorandum at will be effective upon publication of Appendix—List of Comments and Comments 1–3 and Comment 6. this notice of final results of Issues in the Issues and Decision We revised the calculation of the administrative review for all shipments Memorandum adverse facts available rate we have of the subject merchandise entered, or applied to packing usage rates for sales withdrawn from warehouse, for Comment 1: Appropriate Adverse Facts we did not verify. Specifically, we Available consumption on or after the date of Comment 2: Surrogate Value for Steel Wire calculated a simple average exclusive of publication, as provided by section sales for which HSW over-stated that Rod: Source 751(a)(2)(C) of the Act: (1) For subject Comment 3: Surrogate Value for Steel Wire actual packing material usage, and used merchandise exported by HSW, the cash Rod: Adjustments to Calculation this rate to inflate the packing usage deposit rate will be zero; (2) for Comment 4: Surrogate Value for rates of all the sales that were not previously reviewed or investigated PRC Hydrochloric Acid verified. See Comment 1. and non-PRC exporters not listed above Comment 5: Surrogate Financial Statements: We changed our surrogate value for that have separate rates, the cash- Source steel wire rod (‘‘SWR’’) and are using deposit rate will continue to be the Comment 6: Surrogate Financial Statements: Adjustments to Calculation Indian imports from Harmonized Tariff exporter-specific rate published for the Schedule (‘‘HTS’’) numbers 7213.91 and Comment 7: Whether To Adjust Overhead most recent period; (3) for all PRC Ratio for Environmental Compliance 7213.99 to value SWR for the final exporters of subject merchandise which results. We will weight-average HTS have not been found to be entitled to a [FR Doc. E8–1228 Filed 1–23–08; 8:45 am] numbers 7213.91 and 7213.99 based on separate rate, the cash-deposit rate will BILLING CODE 3510–DS–P the March 2006 inventory-out quantities continue to be the PRC-wide rate of obtained at verification. See Comment 2. 128.63 percent; and (4) for all non-PRC We have included Indian imports exporters of subject merchandise that DEPARTMENT OF COMMERCE from Germany in our SWR surrogate have not received their own rate, the National Oceanic and Atmospheric value calculation. We have excluded cash-deposit rate will be the rate Administration Indian imports from South Africa and applicable to the PRC exporter that Brazil in our SWR surrogate value supplied that non-PRC exporter. These RIN 0648–XE29 calculation. See Comment 3. deposit requirements shall remain in We have excluded imports from North effect until further notice. Endangered and Threatened Species; Korea and Belgium stainless SWR Recovery Plans; Final Recovery Plan surrogate value calculation. See Notification of Interested Parties for Southern Resident Killer Whales Comment 3. This notice also serves as a final AGENCY: National Marine Fisheries We have revised our calculations of reminder to importers of their Service (NMFS), National Oceanic and Suchi’s financial ratios in two ways. responsibility under 19 CFR Atmospheric Administration (NOAA), First, we have not included octroi, 351.402(f)(2) to file a certificate Commerce. insurance, and freight forwarding regarding the reimbursement of ACTION: Notice of availability. expenses in the calculations of Suchi’s antidumping duties prior to liquidation

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SUMMARY: We, the National Marine In developing a proposed recovery plan related to prey availability and Fisheries Service (NMFS), announce the for the whales, we addressed the contaminants, the Plan references many adoption of our final Endangered comments we had received on the of the significant efforts already Species Act (ESA) Recovery Plan for the proposed conservation plan and underway to restore salmon runs and Southern Resident killer whale DPS incorporated ESA elements into the clean up Puget Sound, such as the (Orcinus orca). The Final Recovery Plan plan, including discussions of the ESA Shared Strategy Puget Sound Salmon for Southern Resident Killer Whales section 4(a)(1) listing factors, critical Recovery Plan and the Puget Sound (Final Recovery Plan) and the NMFS habitat, section 7, and ESA recovery Partnership. summary of and responses to public criteria. We published a Notice of comments are now available. Availability of the Proposed Recovery We expect the Final Recovery Plan to ADDRESSES: The Recovery Plan, public Plan for Southern Resident Killer help us and other Federal agencies take comment summary and responses, and Whales in the Federal Register on a consistent approach to section 7 other supporting documents are November 29, 2006 (71 FR 69101) consultations under the ESA and to available on-line on the NMFS web site opening another public comment other ESA decisions. For example, the www.nwr.noaa.gov. Copies of the Plan period. We received 50 comment letters plan will provide information on the may be reviewed and/or copied at by mail, fax or e-mail and prepared a biological context for the effects that a NMFS, Protected Resources Division, summary of the comments and provided proposed action may have on the listed 7600 Sand Point Way NE, Seattle, WA, information on our responses, including DPS. The best available information in 98115. descriptions of edits made to the Final the plan on the natural history, threats, FOR FURTHER INFORMATION CONTACT: Recovery Plan to incorporate the and potential limiting factors, and Lynne Barre, NOAA/NMFS, Northwest comments. We also included new priorities for recovery can be used to Region, (206) 526–4745. information, research results, and help assess risks. Consistent with the references that have become available SUPPLEMENTARY INFORMATION: The adoption of this Final Recovery Plan for since the proposed recovery plan was Endangered Species Act (ESA) of 1973, Southern Resident killer whales, we released. as amended (15 U.S.C. 1531 et seq.) will implement actions in the plan for requires that NMFS develop and The Final Recovery Plan which we have authority, work implement recovery plans for the The ESA requires that recovery plans cooperatively on implementation of conservation and survival of threatened incorporate (1) objective, measurable other actions, and encourage other and endangered species under its criteria which, when met, would result Federal and state agencies to implement jurisdiction, unless it is determined that in a determination that the species is no recovery actions for which they have such plans would not result in the longer threatened or endangered; (2) responsibility and authority. Recovery conservation of the species. NMFSWe site-specific management actions of Southern Resident killer whales is a announced the endangered listing of the necessary to achieve the plan’s goals; long-term effort and will require Southern Resident killer whale distinct and (3) estimates of time required and cooperation and coordination of population segment (DPS) on November costs to implement recovery actions. Federal, state, tribal and local 18, 2005 (70 FR 69903). Prior to the ESA NMFS’s goal is to restore the government agencies, and the listing, NMFS designated the Southern endangered Southern Resident DPS community. Resident killer whale population as a killer whales to the point where they are depleted stock under the Marine again secure, self-sustaining members of We conclude that the Final Recovery Mammal Protection Act (MMPA; 16 their ecosystems and no longer need the Plan meets the requirements of the ESA U.S.C. 1361 et seq.) on May 29, 2003 (68 protections of the ESA. section 4(f) and are thus adopting it as FR 31980). At the time of the The Final Recovery Plan provides the Final Recovery Plan for Southern designation, we announced our background on the natural history of Resident killer whales. intention to develop a conservation killer whales, population trends and the Authority: 16 U.S.C. 1531 et seq. plan. potential threats to their viability. The We held a series of public meetings Plan lays out a recovery strategy to Dated: January 17, 2008. and technical workshops to gather input address the potential threats based on Angela Somma, from Federal government agency the best available science and includes Chief, Endangered Species Division, Office representatives, state and tribal co- recovery goals and criteria. The Plan is of Protected Resources, National Marine managers, Canadian officials, orca not regulatory, but presents guidance for Fisheries Service. advocacy groups, non-governmental use by agencies and interested parties to [FR Doc. E8–1206 Filed 1–23–08; 8:45 am] organizations, researchers, whale watch assist in the recovery of Southern BILLING CODE 3510–22–S industry and concerned citizens. We Resident killer whales. The Plan circulated a preliminary draft identifies substantive actions needed to conservation plan for public review on achieve recovery by addressing the March 14, 2005. We received comments threats to the species. The strategy for on the preliminary draft, and made recovery includes linking management revisions in response to the comments. actions to an active research program to We subsequently published a Notice of fill data gaps, and monitor activities to Availability of a Proposed Conservation assess effectiveness. The Plan Plan for Southern Resident Killer incorporates an adaptive management Whales in the Federal Register on framework by which management October 3, 2005 (70 FR 57565) opening actions and other elements will evolve a public comment period. We received and adapt as we gain information comments on the proposed conservation through research and monitoring and it plan. Before the conservation plan was describes the agency guidance on time finalized, we listed the Southern lines for reviews of the status of species Resident DPS as an endangered species. and recovery plans. To address threats

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DEPARTMENT OF COMMERCE operations of the California State Water The applicants have identified four Project, as operated by DWR, and the potential water conveyance options that National Oceanic and Atmospheric Central Valley Project, as operated by are being considered for the habitat Administration Reclamation. conservation planning process: (1) the ADDRESSES: Comments and requests for existing conveyance and system without DEPARTMENT OF THE INTERIOR information related to the preparation of physical change to conveyance the EIR/EIS should be sent to National facilities, (2) changes to conveyance in Fish and Wildlife Service Marine Fisheries Service, Attn: Rosalie San Joaquin Old and Middle River RIN 0648–XE30 del Rosario, 650 Capitol Mall, Suite 8– channels plus separation of San Joaquin 300, Sacramento, California 95819; or corridor from through-delta conveyance, Notice of Intent to Conduct Public Fish and Wildlife Service, Attn: Lori (3) a dual conveyance in which existing Scoping and Prepare an Environmental Rinek, Chief, Conservation Planning and conveyance would still be operational Impact Report/Environmental Impact Recovery Division, Sacramento Fish and plus an isolated facility (not yet Statement (EIR/EIS) Regarding the Bay Wildlife Office, 2800 Cottage Way, W– constructed) from the Sacramento River Delta Conservation Plan (BDCP) for the 2605, Sacramento, California 95825. to the south Delta, and (4) an isolated Sacramento-San Joaquin Delta, Comments may also be submitted conveyance facility (not yet constructed) California electronically to BDCP- from the Sacramento River to the south Delta. These four options are AGENCIES: National Marine Fisheries [email protected]. Comments and undergoing evaluations through the Service (NMFS), National Oceanic and materials received will be available for BDCP Steering Committee to assess the Atmospheric Administration (NOAA), public inspection, by appointment, relative ability of each to contribute to Commerce; Fish and Wildlife Service during normal business hours at the the goals and objectives of the planning (FWS), Interior. above address. effort. Although the applicant has not ACTION: Notice of intent. FOR FURTHER INFORMATION CONTACT: Rosalie del Rosario of NMFS at 916– yet decided which option(s) will be SUMMARY: Pursuant to the National 930–3600 or Lori Rinek of FWS at 916– submitted for consideration under Environmental Policy Act (NEPA), and 414–6600. section 10 of the Endangered Species Act, the intent is to narrow the project the California Environmental Policy Act SUPPLEMENTARY INFORMATION: (CEQA) we, NMFS and FWS (Services), focus to one or two of the four options advise the public of our intent to Proposed Action or a mixture thereof by fall 2007. collaborate with the State of California The California Department of Water Additional to the conveyance in gathering information necessary to Resources (DWR) intends to apply for elements of the State Water Project prepare a joint Environmental Impact Incidental Take Permits (ITP) from the (SWP) and Central Valley Project (CVP) Report/Environmental Impact Statement Services based upon the BDCP in 2009 options given above, covered activities (EIR/EIS) on the anticipated Bay Delta according to the planning schedule. may include, but are not necessarily Conservation Plan (BDCP). The BDCP is Other applicants, co-applicants, or limited to, existing or new activities being prepared through a unique beneficiaries of an ITP, referred to as related to: collaboration of state, Federal and local Potentially Regulated Entities, will be 1. Operational activities, including agencies, of the Federal Endangered identified during this planning process. emergency preparedness, of the SWP Species Act of 1973, as amended (Act). At the same time, the Services would and CVP 2. Operational activities related to The California Department of Water issue Biological Opinions and water transfers involving Water Resources (DWR) intends to apply for Incidental Take Statements (ITS) to Contractors or to serve environmental Incidental Take Permits (ITP) from the Reclamation for its participation and Services based upon the BDCP in 2009 programs implementation of the BDCP. These 3. Maintenance of the SWP, CVP and according to the planning schedule. At Incidental Take Statements would allow other Potentially Regulated Entities’ the same time, the Services would for the incidental take of threatened and facilities provide Biological Opinions and endangered species resulting from 4. Facility improvements of the SWP Incidental Take Statements (ITS) to the certain covered activities that will be and CVP Bureau of Reclamation (Reclamation) for identified through the planning process 5. Ongoing operation of and recurrent their participation and implementation and are associated with water and future projects related to other Delta of the BDCP. A goal of the BDCP is to operations of the California State Water Water Users meet the requirements of the California Project, as operated by DWR, and the 6. Projects designed to improve Natural Community Conservation Central Valley Project, as operated by salinity conditions Planning Act (NCCPA), California Fish Reclamation. 7. Conservation measures included in and Game (CDFG), and provide the basis The Services provide this notice to (1) the BDCP, including, but not limited to for DWR to apply for an ITP pursuant briefly describe the anticipated adaptive habitat management, to CDFG Code. However, in the event proposed action and the BDCP planning restoration, enhancement and that the BDCP does not meet the activities now underway to help monitoring activities. requirements of the NCCPA, DWR may develop that proposed action; (2) advise Please refer to the Planning alternatively seek an ITP under Section other Federal and State agencies, Agreement, para. 7.5, available at http:// 2081 of the California Endangered affected Tribes, and the public of our resources.ca.gov/bdcp/. The BDCP Species Act, California Fish and Game intention to continue to gather Planning Agreement was reached in Code 2050 et seq. These incidental take information to support the preparation October 2006 and was amended April authorizations would allow the of an EIR/EIS; (3) announce the 2007, to guide the BDCP process. incidental take of threatened and initiation of early public scoping; and Planning Process endangered species resulting from (4) obtain suggestions and information DWR and Reclamation, along with the certain covered activities that will be on the scope of issues to be included in Metropolitan Water District of Southern identified through the planning process, the EIR/EIS. Written comments should California, Kern County Water Agency, including those associated with water be received on or before March 24, 2008. Santa Clara Valley Water District, Zone

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7 Water Agency, San Luis & Delta- water conveyance facility around the the BDCP include Swainson’s hawk Mendota Water Authority, Westlands Delta. Modifications to existing south (Buteo swainsoni), bank swallow Water District, Contra Costa Water Delta facilities to reduce entrainment (Riparia riparia), giant garter snake District, and Mirant Delta (known and otherwise improve the State Water (Thamnophis gigas), and valley collectively as the ‘‘Potentially Project’s (SWP) and Central Valley elderberry longhorn beetle (Desmocerus Regulated Entities’’ or PREs) are Project’s (CVP) ability to convey water californicus dimorphus). See Planning preparing the BDCP for their covered through the Delta while contributing to Agreement, para. 6.1.1. This list activities within the Geographic Scope near- and long-term conservation and identifies the species that will be described below. It is the goal of the water supply goals will also be evaluated for inclusion in the BDCP as PREs that the BDCP will (1) satisfy the evaluated. proposed covered species, but the list requirements of Section 10(a)(1)(B) of Members of the public interested in may vary or change as the planning the Act for non-Federal PREs and result participating in the BDCP process process progresses. The participants in the issuance of ITPs from the Services directly or interested in having access to anticipate that species may be added or to certain of the PREs, (2) be used in a information associated with the effort removed from the list once more is concurrent consultation with other are encouraged to visit the Bay Delta learned about the nature of the covered Federal agencies pursuant to Section 7 Conservation Plan component of the activities and the impact of covered of the Act, resulting in the issuance of California Resources Agency’s website: activities on native species within the Biological Opinions, including ITSs, http://resources.ca.gov/bdcp/. This planning area. from the Services to certain of the PREs, website provides open access to (3) satisfy the requirements for an ITP comprehensive documentation of the Planning Goals under the California fish and wildlife planning process, and a detailed The BDCP will include goals and protection laws, either pursuant to the schedule of past and future planning objectives for the management of Natural Community Conservation Plan activities. The following describes Covered Activities and conservation of Act (NCCPA), Section 2835 of the Fish preliminary information identified by Covered Species. As proposed in the and Game Code or Section 2081 of the the Steering Committee for Planning Agreement (para.3), the Fish and Game Code. consideration in the BDCP planning goals include: The planning efforts for the BDCP are development. 1. Provide for the conservation and in its preliminary stages. Formal Geographic Scope management of covered species within preparation of a draft EIR/EIS will the planning area; The planning area for the BDCP will commence when the planning efforts 2. Preserve, restore and enhance consist of the aquatic ecosystems and described below progress further in the aquatic, riparian and associated natural communities, and potentially coming months. The BDCP is being terrestrial natural adjacent riparian and floodplain natural prepared with the cooperation of the communities and ecosystems that Services, the California Resources communities, within the Statutory Delta (California Water Code Section 12220), support covered species within the Agency, CDFG, the California Bay Delta planning area through Authority, the PRE’s as listed above, and which includes parts of Yolo, Solano, conservation partnerships; key Non-Government Organizations Contra Costa, San Joaquin, and 3. Allow for projects that restore and including The Nature Conservancy, Sacramento Counties. However, it may protect water supply, water quality, Environmental Defense, Defenders of be necessary for the BDCP to include ecosystem, and ecosystem health to Wildlife, Natural Heritage Institute, The conservation actions outside the proceed within a stable regulatory Bay Institute, American Rivers, and the Statutory Delta that advance the goals California Farm Bureau Federation. All and objectives of the BDCP, including as framework; of these agencies and organizations are appropriate, conservation actions in the 4. Provide a means to implement members of a Steering Committee that Suisun Marsh, Suisun Bay, and areas covered activities in a manner that will guide the preparation of the BDCP. upstream of the Delta. Any conservation complies with applicable State and The Services are participating in the actions taken outside the Statutory Delta federal fish and wildlife protection Steering Committee’s efforts on an ex would be implemented pursuant to laws, including the Natural officio basis, providing technical input cooperative agreements or similar Communities Conservation Planning and guidance in support of the Steering mechanisms with local agencies, Act or the California Endangered Committee’s efforts. The participants are interested non-governmental Species Act, the Federal Endangered undertaking these planning efforts organizations, landowners, and others. Species Act, and other environmental pursuant to the Planning Agreement. See Planning Agreement, para. 5. laws, including CEQA and NEPA; A document from the BDCP Steering 5. Provide a basis for permits Covered Species Committee titled ‘‘The Bay Delta necessary to lawfully take covered Conservation Plan: Points of Agreement Species that are intended to be the species; for Continuing into the Planning initial focus of the BDCP include 6. Provide a comprehensive means to Process,’’ dated November 16, 2007, aquatic species such as: Central Valley coordinate and standardize mitigation provides a summary of the planning steelhead (Oncorhynchus mykiss), and compensation requirements for process to date along with future Central Valley Chinook salmon covered activities within the planning direction and procedures. Through this (Oncorhynchus tshawytscha) (spring area; document, the Steering Committee run and fall/late-fall runs), Sacramento 7. Provide a less costly, more efficient points to agreement on an approach to River Chinook salmon (winter run), project review process which results in be evaluated for achieving the Delta smelt (Hypomesus transpacificus), greater conservation values than project- conservation and water supply goals. green sturgeon (Acipenser medirostris), by-project, species-by-species review; The primary new structural features of white sturgeon (Acipenser and the water conveyance system to be transmontanus), splittail (Pogonichthys 8. Provide clear expectations and evaluated are a new diversion point (or macrolepidotus), longfin smelt regulatory assurances regarding covered points) for water from the Sacramento (Spirinchus thaleichthys). Other species activities occurring within the planning River in the north Delta and an isolated that will be considered for inclusion in area.

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Statutory Authority practicable. In addition, an applicant public on the scope of issues and Section 9 of the Act (16 U.S.C. 1538) must prepare a Habitat Conservation alternatives that will be addressed in the and implementing regulations (50 CFR Plan (HCP) describing the impact that EIR/EIS. The primary purpose of the 17.21, and 17.31(a)) prohibit the ‘‘taking will likely result from such taking, a scoping process is to identify important or animal species listed as endangered plan for minimizing and mitigating the issues raised by the public related to the or threatened. The term ‘‘take’’ is impacts of such incidental take, the issuance of ITPs for the BDCP. Written defined under the Act to mean harass, funding available to implement the comments from interested parties are harm, pursue, hunt, shoot, wound kill, plan, alternatives to such taking, and the invited to ensure that the full range of trap, capture or collect, or attempt to reasons such alternatives are not being issues related to the development of the engage in any such conduct (16 U.S.C. implemented. BDCP and issuance of the ITPs are NEPA (42 U.S.C. 4321 et seq.) requires 1532 (10)). ‘‘Harm’’ is defined by FWS that Federal agencies conduct an identified. Comments during this stage regulation to include significant habitat environmental analysis of their of the scoping process will only be modification or degradation where it proposed actions to determine if the accepted in written form. All comments actually kills or injures wildlife by actions may significantly affect the received, including names and significantly impairing essential human environment. Under NEPA and addresses, will become part of the behavioral patterns, including breeding, its implementing regulations (40 CFR official administrative record and may feeding and sheltering (50 CFR 17.3). 1500 et seq.; NOAA Administrative be made available to the public. NMFS’ definition of harm includes Order 216–6; 40 CFR parts 1500–1508), Our practice is to make comments, significant habitat modification of a reasonable range of alternatives to the degradation where it actually kills or including names, home addresses, home proposed action are developed and phone numbers, and email addresses of injures fish or wildlife by significantly considered in the Services’ EIR/EIS. impairing essential behavioral patterns, respondents, available for public Alternatives considered for analysis in review. Individual respondents may including breeding, feeding, spawning, an EIR/EIS may include: variations in request that we withhold their names migrating, rearing and sheltering (64 FR the scope or types of covered activities; and /or homes addresses, etc., but if you 60727, November 8, 1999). variations in the location, amount and Section 7 of the Act outlines the types of conservation measures, timing wish us to consider withholding this procedures for federal interagency of project activities; variations in permit information you must state this cooperation to conserve federally listed duration; or a combination of these or prominently at the beginning of your species and designated critical habitats other elements. In addition, an EIR/EIS comments. In addition, you must (U.S.C. 1531 et seq.) Section 7(a)(1) of will identify potentially significant present a rationale for withholding this the Act directs the Secretaries of Interior direct, indirect, and cumulative effects, information. This rationale must and Commerce (Secretaries) to review and possible mitigation for those demonstrate that disclosure would other programs administered by them significant effects, on biological constitute a clearly unwarranted and utilize such programs to further the resources, land use, air quality, water invasion of privacy. Unsupported purposes of the Act. It also directs all quality, water resources, assertions will not meet this burden. In other Federal agencies to utilize their socioeconomics, environmental justice, the absence of exceptional, authorities in furtherance of the cultural resources, and other documentable circumstances, this purposes of the Act by carrying out environmental issues that could occur information will be released. We will programs for the conservation of species with the implementation of the always make submissions from listed pursuant to the Act. Section proposed action and alternatives. organizations or businesses, and from 7(a)(2) states that each Federal agency shall, in consultation with the Schedule individuals identifying themselves as representatives of or officials of Secretaries, insure that any action they The schedule for this EIR/EIS organizations or businesses, available authorize, fund, or carry out is not likely depends upon the development of the to jeopardize the continued existence of draft BDCP, which is expected to occur for public inspection in their entirety. a listed species or result in the by early 2009. We will publish Reasonable Accommodation destruction or adverse modification of additional notices about the proposed designated critical habitat. Sections action and public participation once the Information regarding this proposed 7(b)(4) and 7(o)(2) of the Act allow for elements of the comprehensive plan are action is available in alternative formats taking of listed species that is incidental developed. upon request. and not an intended part of a Federal Dated: January 15, 2008. action if such taking is in compliance Request for Comments with the terms and conditions of an Environmental review of the EIR/EIS Angela Somma, incidental take statement provided by will be conducted in accordance with Chief, Endangered Species Division, Office the Services. the requirements of NEPA (42 U.S.C. of Protected Resources, National Marine Section 10 of the Act and 4321 et seq.), its implementing Fisheries Service. implementing regulations provide for regulations (40 CFR parts 1500–1508), Dated: January 15, 2008. the issuance of incidental take permits other applicable regulations, and the Dale Morris, (ITPs) to non-federal applicants to Services’ procedures for compliance authorize incidental take of endangered with those regulations; and according to Acting Deputy Regional Director, U.S. Fish and threatened species (16 U.S.C. the requirements of CEQA (California and Wildlife Service, Region 8, Sacramento, 1539(a); 50 CFR 17.22, and 17.32(b)). Public Resources Code Section 21000 et. CA. Any proposed take must be incidental to seq) and the State CEQA Guidelines (14 [FR Doc. E8–1219 Filed 1–23–08; 8:45 am] an otherwise lawful activity, must not California Code of Regulations 15000 et BILLING CODE 3510–S; 4310–55–S appreciably reduce the likelihood of the seq.). This notice is being furnished in survival and recovery of the species in accordance with 40 CFR 1501.7, and the wild, and must be minimized and 1508.22 to obtain suggestions and mitigated to the maximum extent information from other agencies and the

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DEPARTMENT OF COMMERCE received in response to the NOI and known as the National Medal of other stakeholder views and to facilitate Technology) annually to our Nation’s National Telecommunications and further public discussion on the leading innovators. If you know of a Information Administration progress ICANN has made in fulfilling candidate who has made an its responsibilities contained in the JPA. outstanding, lasting contribution to the The Continued Transition of the The agenda for the public meeting will economy through the promotion of Technical Coordination and be posted on NTIA’s website at least one technology or technological manpower, Management of the Internet Domain week prior to the meeting. This meeting you may obtain a nomination form from: Name and Addressing System: will be webcast. The agenda and http://www.uspto.gov/nmti. Midterm Review of the Joint Project webcast information will be available on Eligibilty and Criteria: Information on Agreement NTIA’s website at http:// eligibility and nomination criteria is AGENCY: National Telecommunications www.ntia.doc.gov/ntiahome/ provided on the Nominations and Information Administration, U.S. domainname/jpamidtermreview.html. Guidelines Form at http:// Department of Commerce The meeting will be open to members www.uspto.gov/nmti. of the public on a first-come, first-served ACTION: Notice of Public Meeting DATES: The deadline for submission of basis. The meeting will be physically an application is May 30, 2008. SUMMARY: The National accessible to people with disabilities. ADDRESSES: The NMTI Nomination form Telecommunications and Information Individuals requiring special services, for year 2008 may be obtained by Administration (NTIA), U.S.Department such as sign language interpretation or visiting the Web site at http:// of Commerce (Department), will hold a other ancillary aids, should www.uspto.gov/nmti. Nomination public meeting on February 28, 2008, to communicate their needs to Ashley applications should be submitted to discuss the mid-term review of the Joint Heineman at least two (2) days prior to Jennifer Lo, Program Manager, National Project Agreement (JPA) between the the meeting. Medal of Technology and Innovation Department and the Internet Due to security requirements and to Program, by electronic mail to: Corporation for Assigned Names and facilitate entry to the Department of [email protected] or by mail to: Jennifer Numbers (ICANN). Commerce building, anyone wishing to Lo, United States Patent and Trademark DATES: The meeting will be held on attend must contact Ashley Heineman at Office, P.O. Box 1450, Alexandria, VA February 28, 2008, from 9:00 a.m. to (202) 482–0298 or 22323–1450. 12:00 p.m., Eastern Standard Time. [email protected] at least five (5) FOR FURTHER INFORMATION CONTACT: Registration will start at 8:30 a.m. days prior to the meeting in order to Jennifer Lo, Program Manager, National ADDRESSES: The meeting will be held in provide the necessary clearance Medal of Technology and Innovation the Auditorium at the U.S. Department information. Attendees should arrive at Program, United States Patent and of Commerce, 1401 Constitution least one-half hour prior to the start of Trademark Office, P.O. Box 1450, Avenue, N.W., Washington, D.C. (Please the meeting and must present a valid Alexandria, VA 22313–1450, telephone enter at the main entrance on 14th passport or other photo identification (571) 272–7640, or electronic mail: Street). The handicapped accessible up their arrival. Members of the public [email protected]. entrance is located at the 14th Street will have an opportunity to ask questions at the meeting. SUPPLEMENTARY INFORMATION: Enacted Aquarium Entrance. by Congress in 1980, the Medal of FOR FURTHER INFORMATION CONTACT: For Dated: January 18, 2008. Technology was first awarded in 1985. further information regarding the Kathy D. Smith, On August 9, 2007, the President signed meeting, contact Ashley Heineman, Chief Counsel, National Telecommunications the America COMPETES (Creating Telecommunications Policy Specialist, and Information Administration. Opportunities to Meaningfully Promote at (202) 482–0298 or [FR Doc. E8–1180 Filed 1–23–08; 8:45 am] Excellence in Technology, Education, [email protected]. BILLING CODE 3510–60–S and Science) Act of 2007. The Act SUPPLEMENTARY INFORMATION: NTIA and amended Section 16 of the Stevenson- ICANN entered into the JPA on Wydler Technology Innovation Act of September 29, 2006. (The text of the DEPARTMENT OF COMMERCE 1980, changing the name of the Medal agreement is available on NTIA’s to the ‘‘National Medal of Technology United States Patent and Trademark website at http://www.ntia.doc.gov/ and Innovation.’’ The Medal is the Office ntiahome/domainname/agreements/jpa/ highest honor awarded by the President ICANNJPAl09292006.doc.) The JPA [Docket No. PTO–C–2008–0001] of the United States to America’s provides for the Department to conduct leading innovators in the field of a midterm review of progress achieved National Medal of Technology and technology, and is given annually to on each ICANN activity and Innovation Call for 2008 Nominations individuals, teams, or companies who responsibility contained in the JPA and AGENCY: United States Patent and have made outstanding contributions to envisions consultation with interested Trademark Office. the promotion of technology or stakeholders. To that end, on November ACTION: Notice and request for technological manpower for the 2, 2007, NTIA published a Notice of nominations. improvement of the economic, Inquiry (NOI) seeking comments on environmental or social well-being of ICANN’s progress towards achieving the SUMMARY: The Department of Commerce the United States. responsibilities identified in the JPA. 72 (United States Patent and Trademark The primary purpose of the National Fed. Reg. 62220 (Nov. 2, 2007). (The text Office) is accepting nominations for its Medal of Technology and Innovation is of the NOI is available on NTIA’s National Medal of Technology and to recognize American innovators website at http://www.ntia.doc.gov/ Innovation (NMTI) program. whose vision, creativity, and brilliance ntiahome/domainname/ Since establishment by Congress in in moving ideas to market has had a jpamidtermreview.html.) 1980, the President of the United States profound and lasting impact on our On February 28, 2008, NTIA will hold has awarded the National Medal of economy and way of life. The Medal a public meeting to discuss comments Technology and Innovation (formerly highlights the national importance of

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fostering technological innovation based • Committee members are appointed confidential nature of an independent upon solid science, resulting in by and serve at the discretion of the peer review and competitive selection commercially successful products and Secretary of Commerce. The Committee process. services. provides advice to the Secretary on the • The United States Patent and Dated: January 16, 2008. implementation of Public Law 96–480 Trademark Office is committed to equal Jon W. Dudas, (15 U.S.C. 3711), as amended August 9, opportunity in the workplace and seeks 2007. a broad-based and diverse Committee Under Secretary of Commerce for Intellectual • Property and Director of the United States The Committee functions solely as membership. Patent and Trademark Office. an advisory body under the FACA. Dated: January 16, 2008. [FR Doc. 08–251 Filed 1–23–08; 8:45am] Members are appointed to the 12- Jon W. Dudas, member Committee for a term of three BILLING CODE 3510–16–P Under Secretary of Commerce for Intellectual years. Each will be reevaluated at the Property and Director of the United States conclusion of the three-year term with Patent and Trademark Office. DEPARTMENT OF COMMERCE the prospect of renewal, pending [FR Doc. E8–1139 Filed 1–23–08; 8:45 am] Advisory Committee needs and the BILLING CODE 3510–16–P Patent and Trademark Office Secretary’s concurrence. Selection of membership is made in accordance with [Docket No. PTO–C–2007–0053] applicable Department of Commerce CORPORATION FOR NATIONAL AND guidelines. National Medal of Technology and • Members are responsible for COMMUNITY SERVICE Innovation Nomination Evaluation reviewing nominations and making Committee Renewal of a Currently Approved recommendations for the Nation’s Information Collection AGENCY: United States Patent and highest honor for technological Trademark Office. innovation, awarded annually by the AGENCY: Corporation for National and President of the United States. Members Community Service. ACTION: Notice and request for of the Committee must have an nominations. ACTION: Notice. understanding of, and experience in, SUMMARY: The Department of Commerce developing and utilizing technological SUMMARY: The Corporation for National (United States Patent and Trademark innovation and/or be familiar with the and Community Service (hereinafter the Office) is requesting nominations of education, training, employment and ‘‘Corporation’’), as part of its continuing individuals to serve on the National management of technological effort to reduce paperwork and Medal of Technology and Innovation manpower. respondent burden, conducts a pre- • Nomination Evaluation Committee. The Under the FACA, membership on a clearance consultation program to United States Patent and Trademark committee must be balanced. To achieve provide the general public and federal Office will consider nominations balance, the Department is seeking agencies with an opportunity to received in response to this notice as additional nominations of candidates comment on proposed and/or well as from other sources. The from small, medium-sized, and large continuing collections of information in SUPPLEMENTARY INFORMATION section of businesses or with special expertise in accordance with the Paperwork this notice provides Committee and the following sub-sectors of the Reduction Act of 1995 (PRA95) (44 membership criteria. technology enterprise: U.S.C. 3506(c)(2)(A)). This program helps to ensure that requested data can DATES: Please submit nominations Medical Innovations/Bioengineering and Biomedical Technology be provided in the desired format, within 60 days of the publication of this reporting burden (time and financial notice. Technology Management/Computing/ IT/Manufacturing Innovation resources) is minimized, collection ADDRESSES: Nominations should be Technological Manpower/Workforce instruments are clearly understood, and submitted to Jennifer Lo, Program Training/Education the impact of collection requirement on Manager, National Medal of Technology respondents can be properly assessed. Committee members generally are Chief and Innovation Program, United States Currently, the Corporation is Executive Officers or former Chief Patent and Trademark Office, P.O. Box soliciting comments concerning its Executive Officers, former winners of 1450, Alexandria, VA 22313–1450. proposed conference surveys of persons the National Medal of Technology; Nominations also may be submitted via attending the annual National presidents or distinguished faculty of fax: (571) 270–9100 or by electronic Conference on Volunteering. The universities; or senior executives of non- mail to: [email protected]. surveys will be used to assess profit organizations. As such, they not FOR FURTHER INFORMATION CONTACT: workshops, presenters, and the only offer the stature of their positions Jennifer Lo, Program Manager, National conference overall. but also possess intimate knowledge of Medal of Technology and Innovation Copies of the information collection the forces determining future directions Program, United States Patent and requests can be obtained by contacting for their organizations and industries. Trademark Office, P.O. Box 1450, the office listed in the addresses section The Committee as a whole is balanced Alexandria, VA 22313–1450, telephone of this notice. in representing geographical, (571) 272–7640, or electronic mail: professional, and diverse interests. DATES: Written comments must be [email protected]. submitted to the individual and office SUPPLEMENTARY INFORMATION: The Nomination Information listed in the ADDRESSES section by Committee was established in • Nominees must be United States March 24, 2008. accordance with the Federal Advisory citizens, must be able to fully ADDRESSES: You may submit comments, Committee Act (FACA) (Title 5, United participate in meetings pertaining to the identified by the title of the information States Code, Appendix 2). The following review and selection of finalists for the collection activity, by any of the provides information about the National Medal of Technology and following methods: (1) By mail sent to: Committee and membership: Innovation, and must uphold the Corporation for National and

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Community Service, Department of technology, e.g., permitting electronic Total Annual Cost (operating/ Research and Policy Development; submissions of responses. maintaining systems or purchasing Attention Brooke Nicholas, Policy services): None. Background Analyst, 10th Floor; 1201 New York Dated: January 16, 2008. In partnership with the Points of Light Avenue, NW., Washington, DC, 20525. Bob Grimm, (2) By hand delivery or by courier to the Foundation, the Corporation for National and Community Service hosts Director, Department of Research and Policy Corporation’s mailroom at Room 8100 at Development. the mail address given in paragraph (1) an annual conference on volunteering. [FR Doc. E8–1230 Filed 1–23–08; 8:45 am] above, between 9 a.m. and 4 p.m. The conference encourages the Monday through Friday, except Federal volunteering community to share BILLING CODE 6050–$$–P holidays. (3) By fax to: (202) 606–6627, information and practices, learn new Attention Brooke Nicholas, Policy skills and establish relationships. Analyst. (4) Electronically through the Attendees include leaders from: DEPARTMENT OF DEFENSE Corporation’s e-mail address system: Nonprofits and civic infrastructures, [email protected]. academic institutions, businesses and Office of the Secretary government agencies. FOR FURTHER INFORMATION CONTACT: As a part of learning the extent in [Transmittal Nos. 08–18] Brooke Nicholas, (202) 606–6627, or by which we reached these objectives, we e-mail at [email protected]. need to collect outcome data through 36(b)(1) Arms Sales Notification SUPPLEMENTARY INFORMATION: The four surveys that reveals: How well the AGENCY: Department of Defense, Defense Corporation is particularly interested in conference compares with past Security Cooperation Agency. conferences; what improvements have comments that: ACTION: Notice. • been made; and what are some Evaluate whether the proposed suggestions for the future. collection of information is necessary SUMMARY: The Department of Defense is for the proper performance of the Current Action publishing the unclassified text of a functions of the Corporation, including Type of Review: New. section 36(b)(1) arms sales notification. whether the information will have Agency: Corporation for National and This is published to fulfill the practical utility; Community Service. requirements of section 155 of Public • Evaluate the accuracy of the Title: National Conference Survey. Law 104–164 dated 21 July 1996. agency’s estimate of the burden of the OMB Number: None. FOR FURTHER INFORMATION CONTACT: Ms. proposed collection of information, Frequency: Annual. B. English, DSCA/DBO/CFM, (703) 601– including the validity of the Affected Public: Individuals, 3740. methodology and assumptions used; community and faith-based The following is a copy of a letter to organizations, non-profits, federal, • Propose ways to enhance the the Speaker of the House of international, state and local quality, utility, and clarity of the Representatives, Transmittals 08–18 government, education institutions and information to be collected; and with attached transmittal, policy businesses. justification, and Sensitivity of • Propose ways to minimize the Number of Respondents: 4,000. Technology. burden of the collection of information Estimated Time per Respondent: on those who are to respond, including Fifteen minutes per survey (with four or Dated: January 17, 2008. through the use of appropriate more surveys). L.M. Bynum, automated, electronic, mechanical, or Total Burden Hours: 4,000 hours. OSD Federal Register Liaison Officer, other technological collection Total Burden Cost (capital/startup): Department of Defense. techniques or other forms of information None. BILLING CODE 5001–06–M

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[FR Doc. 08–260 Filed 1–23–08; 8:45 am] SUMMARY: Under the provisions of the valid assumptions and methodology; BILLING CODE 5001–06–C Paperwork Reduction Act of 1995 (44 ways to enhance the quality, utility, and U.S.C. Chapter 35), the Federal clarity of the information to be Acquisition Regulation (FAR) collected; and ways in which we can DEPARTMENT OF DEFENSE Secretariat has submitted to the Office minimize the burden of the collection of of Management and Budget (OMB) a information on those who are to GENERAL SERVICES request to review and approve an ADMINISTRATION respond, through the use of appropriate extension of a currently approved technological collection techniques or information collection requirement NATIONAL AERONAUTICS AND other forms of information technology. concerning presolicitation notice. A SPACE ADMINISTRATION request for public comments was DATES: Submit comments on or before February 25, 2008. [OMB Control No. 9000–0037] published in the Federal Register at 72 FR 62444, on November 5, 2007. No ADDRESSES: Submit comments regarding Federal Acquisition comments were received. The clearance this burden estimate or any other aspect Regulation;Information Collection; currently expires on April 30, 2008. of this collection of information, Presolicitation Notice Public comments are particularly including suggestions for reducing this AGENCIES: Department of Defense (DOD), invited on: Whether this collection of burden to: FAR Desk Officer, OMB, General Services Administration (GSA), information is necessary for the proper Room 10102, NEOB, Washington, DC and National Aeronautics and Space performance of functions of the FAR, 20503, and a copy to the General Administration (NASA). and whether it will have practical Services Administration, FAR utility; whether our estimate of the ACTION: Notice of request for an Secretariat (VPR), 1800 F Street, NW, public burden of this collection of extension to an existing OMB clearance. Room 4035, Washington, DC 20405. information is accurate, and based on

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FOR FURTHER INFORMATION CONTACT: SUMMARY: Under the provisions of the Responses Per Respondent: 1. Cecelia Davis, Contract Policy Division, Paperwork Reduction Act of 1995 (44 Total Responses: 100. GSA (202) 219–0202. U.S.C. Chapter 35), the Federal Hours Per Response: 1. SUPPLEMENTARY INFORMATION: Acquisition Regulation (FAR) Total Burden Hours: 100. Secretariat will be submitting to the A. Purpose OBTAINING COPIES OF Office of Management and Budget PROPOSALS: Requesters may obtain a Presolicitation notices are used by the (OMB) a request to review and approve copy of the information collection Government for several reasons, one of an extension of a currently approved documents from the General Services which is to aid prospective contractors information collection requirement Administration, FAR Secretariat (VPR), in submitting proposals without undue concerning OMB Circular A–119. The Room 4035, 1800 F Street, NW, expenditure of effort, time, and money. clearance currently expires on May 31, Washington, DC 20405, telephone (202) The Government also uses the 2008. 501–4755. Please cite OMB Control No. presolicitation notices to control Public comments are particularly 9000–0153, OMB Circular A–119, in all printing and mailing costs. The invited on: Whether this collection of correspondence. presolicitation notice response is used information is necessary for the proper to determine the number of solicitation performance of functions of the FAR, Dated: January 15, 2008. documents needed and to assure that and whether it will have practical Al Matera, interested offerors receive the utility; whether our estimate of the Director, Office of Acquisition Policy. solicitation documents. The responses public burden of this collection of [FR Doc. E8–1170 Filed 1–23–07; 8:45 am] are placed in the contract file and information is accurate, and based on BILLING CODE 6820–EP–S referred to when solicitation documents valid assumptions and methodology; are ready for mailing. After mailing, the ways to enhance the quality, utility, and responses remain in the contract file clarity of the information to be DEPARTMENT OF DEFENSE and become a matter of record. collected; and ways in which we can minimize the burden of the collection of Defense Acquisition Regulations B. Annual Reporting Burden information on those who are to System Respondents: 5,310. respond, through the use of appropriate Information Collection Requirement; Responses Per Respondent: 8. technological collection techniques or Defense Federal Acquisition Annual Responses: 42,480. other forms of information technology. Hours Per Response: .08. Regulation Supplement; Acquisition of DATES: Total Burden Hours: 3,398. Submit comments on or before Information Technology (OMB Control OBTAINING COPIES OF March 24, 2008. Number 0704–0341) PROPOSALS: Requesters may obtain a ADDRESSES: Submit comments regarding copy of the information collection this burden estimate or any other aspect AGENCY: Defense Acquisition documents from the General Services of this collection of information, Regulations System, Department of Administration, FAR Secretariat (VPR), including suggestions for reducing this Defense (DoD). Room 4035, 1800 F Street, NW, burden to the General Services ACTION: Notice and request for Washington, DC 20405, telephone (202) Administration, FAR Secretariat (VPR), comments regarding a proposed 501–4755. Please cite OMB Control No. 1800 F Street, NW, Room 4035, extension of an approved information 9000–0037, Presolicitation Notice, in all Washington, DC 20405. Please cite OMB collection requirement. correspondence. Control No. 9000–0153, OMB Circular A–119, in all correspondence. SUMMARY: In compliance with Section Dated: January 15, 2008 FOR FURTHER INFORMATION CONTACT Ms. 3506(c)(2)(A) of the Paperwork Al Matera, Cecelia Davis, Contract Policy Division, Reduction Act of 1995 (44 U.S.C. Director,Office of Acquisition Policy. GSA (202) 219–0202. Chapter 35), DoD announces the [FR Doc. E8–1196 Filed 1–23–08; 8:45 am] SUPPLEMENTARY INFORMATION: proposed extension of a public BILLING CODE 6820–EP–S information collection requirement and A. Purpose seeks public comment on the provisions On February 19, 1998, a revised OMB thereof. DoD invites comments on: (a) DEPARTMENT OF DEFENSE Circular A–119, ‘‘Federal Participation Whether the proposed collection of information is necessary for the proper GENERAL SERVICES in the Development and Use of performance of the functions of DoD, ADMINISTRATION Voluntary Consensus Standards and in Conformity Assessment Activities,’’ was including whether the information will have practical utility; (b) the accuracy of NATIONAL AERONAUTICS AND published in the Federal Register at 63 the estimate of the burden of the SPACE ADMINISTRATION FR 8545, February 19, 1998. FAR Subparts 11.1 and 11.2 were revised and proposed information collection; (c) [OMB Control No. 9000–0153] a solicitation provision was added at ways to enhance the quality, utility, and 52.211–7, Alternatives to Government- clarity of the information to be Federal Acquisition Regulation; Unique Standards, to implement the collected; and (d) ways to minimize the Information Collection; OMB Circular requirements of the revised OMB burden of the information collection on A–119 circular. If an alternative standard is respondents, including the use of AGENCIES: Department of Defense (DOD), proposed, the offeror must furnish data automated collection techniques or General Services Administration (GSA), and/or information regarding the other forms of information technology. and National Aeronautics and Space alternative in sufficient detail for the The Office of Management and Budget Administration (NASA). Government to determine if it meets the (OMB) has approved this information collection requirement for use through ACTION: Notice of request for public Government’s requirements. April 30, 2008. DoD proposes that OMB comments regarding an extension to an B. Annual Reporting Burden extend its approval for use for three existing OMB clearance (9000–0153). Respondents: 100. additional years.

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DATES: DoD will consider all comments Average Burden Per Response: implementing the procedural provisions received by March 24, 2008. Approximately 1 hour. of the National Environmental Policy ADDRESSES: You may submit comments, Frequency: On occasion. Act (NEPA), 42 U.S.C. 4321 et seq., for the Navy’s Southern California (SOCAL) identified by OMB Control Number Summary of Information Collection 0704–0341, using any of the following Operating Area Composite Training methods: The clause at DFARS 252.239–7000, Unit Exercises (COMPTUEXs) and Joint • Federal eRulemaking Portal: http:// Protection Against Compromising Task Force Exercises (JTFEXs) www.regulations.gov. Follow the Emanations, requires that the contractor scheduled to occur between today and instructions for submitting comments. provide, upon request of the contracting January 2009. • E-mail: [email protected]. Include officer, documentation that information SUPPLEMENTARY INFORMATION: The text of OMB Control Number 0704–0341 in the technology used or provided under the the entire Decision Memorandum is subject line of the message. contract meets appropriate information provided as follows: • Fax: 703–602–7887. assurance requirements. On January 10, 2008, the Department • Mail: Defense Acquisition The clause at DFARS 252.239–7006, of the Navy (Navy) sought Council on Regulations System, Attn: Ms. Felisha Tariff Information, requires that the Environmental Quality (CEQ) approval Hitt, OUSD(AT&L)DPAP(DARS), IMD contractor provide to the contracting of alternative arrangements pursuant to 3D139, 3062 Defense Pentagon, officer: (1) Upon request, a copy of the 40 CFR 1506.11 for implementing the Washington, DC 20301–3062. contractor’s existing tariffs; (2) before procedural provisions of the National • Hand Delivery/Courier: Defense filing any application to a Federal, State, Environmental Policy Act, 42 U.S.C. Acquisition Regulations System, Crystal or other regulatory agency for new rates, 4321 et seq. (NEPA), for MFA sonar Square 4, Suite 200A, 241 18th Street, charges, services, or regulations relating training during the remaining five Arlington, VA 22202–3402. to any tariff or any of the facilities or COMPTUEXs and four JTFEXs Comments received generally will be services to be furnished solely or scheduled to occur between today and posted without change to http:// primarily to the Government, and, upon January 23, 2009, in the Southern www.regulations.gov, including any request, a copy of all information, California (SOCAL) Operating Area. On personal information provided. material, and data developed or January 11, 2008, the Navy reaffirmed prepared in support of or in connection FOR FURTHER INFORMATION CONTACT: Ms. its request. On January 15 CEQ Felisha Hitt, 703–602–0310. The with such an application; and (3) a concluded consultation and approved information collection requirements notification to the contracting officer of alternative arrangements pursuant to 40 addressed in this notice are available on any application filed by anyone other CFR 1506.11 for implementing the the World Wide Web at: http:// than the contractor that may affect the procedural provisions of (NEPA). This www.acq.osd.mil/dpap/dars/dfarspgi/ rate or conditions of services under the memorandum documents the Navy’s current/index.html. Paper copies are agreement or contract. decision to accept the alternative DFARS 239.7408–1 requires the available from Ms. Felisha Hitt, arrangements. contracting officer to obtain a detailed OUSD(AT&L)DPAP(DARS), IMD 3D139, special construction proposal from a Background 3062 Defense Pentagon, Washington, DC common carrier that submits a proposal 20301–3062. Framework or quotation with special construction SUPPLEMENTARY INFORMATION: requirements related to the performance NEPA: NEPA requires Navy to Title and OMB Number: Defense of basic telecommunications services. undertake an assessment of the Federal Acquisition Regulation environmental effects of its proposed Supplement (DFARS) Part 239, Michele P. Peterson, actions prior to making decisions. The Acquisition of Information Technology, Editor, Defense Acquisition Regulations CEQ Regulations for Implementing the and the associated clauses at DFARS System. Procedural Provisions of the National 252.239–7000 and 252.239–7006; OMB [FR Doc. E8–1090 Filed 1–23–08; 8:45 am] Environmental Policy Act provide for Control Number 0704–0341. BILLING CODE 5001–08–P situations when emergency Needs and Uses: This requirement circumstances make it necessary to provides for the collection of make decisions and take action with information from contractors regarding DEPARTMENT OF DEFENSE significant environmental impact security of information technology; without observing the provisions of the tariffs pertaining to telecommunications Department of the Navy CEQ Regulations (40 CFR § 1506.11). services; and proposals from common Specifically, the agency should consult Decision Memorandum Accepting carriers to perform special construction with CEQ about alternative Alternative Arrangements for the U.S. under contracts for telecommunications arrangements for actions necessary to Navy’s Southern California Operating services. Contracting officers and other control the immediate impacts of the Area Composite Training Unit DoD personnel use the information to emergency. Exercises (COMPTUEXs) and Joint ensure that information systems are Title 10: The Fleet Response Training Task Force Exercises (JTFEXs) protected; to participate in the Plan (FRTP) is one of the processes used Scheduled To Occur Between Today establishment of tariffs for to ensure the Chief of Naval Operation’s and January 2009 telecommunications services; and to (CNO) obligation under Section 5062 of establish reasonable prices for special AGENCY: Department of the Navy, DoD. Title 10 of the U.S. Code, which construction by common carriers. ACTION: Notice of Decision requires organization, training and Affected Public: Businesses or other Memorandum. equipping of all naval forces for combat. for-profit and not-for-profit institutions. The FRTP is an arduous training cycle Annual Burden Hours: 1,622. SUMMARY: The Department of the Navy that ensures Navy forces achieve the Number of Respondents: 521. announces its decision to accept highest possible readiness levels prior to Responses Per Respondent: alternative arrangements approved by deployment. As part of the FRTP, the Approximately 4. the Council on Environmental Quality Navy conducts COMPTUEXs and Annual Responses: 1,959. (CEQ) pursuant to 40 CFR 1506.11 for JTFEXs to achieve required Navy

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capabilities and missions in support of of national security interests around the training exercises through its combatant commander and Navy globe. The five COMPTUEXs and four development of the SOCAL Range requirements. Both JTFEX and JTFEXs scheduled to occur between Complex environmental impact COMPTUEX exercises are included in today and January 23, 2009, in the statement (SOCAL EIS). The Navy began the integrated phase of training for U.S. Southern California (SOCAL) Operating the SOCAL EIS process in late 2006 and and some allied forces, which requires Area are the only opportunities for these published its notice of intent on a synthesis of unit and staff actions into Strike Groups to achieve their required December 21, 2006. That EIS will meet a coordinated Strike Group necessary combat training. the procedural requirements of NEPA for surge and readiness certification. The SOCAL Operating Area is for all training, including MFA sonar The Vital Importance of Training with uniquely suited to conducting the Navy training in SOCAL. To comply with Mid-Frequency Active (MFA) Sonar COMPTUEX and JTFEX because it NEPA procedural requirements, while during These Major Exercises: Anti- contains all of the land, air, and at-sea developing the EIS, the Navy prepared submarine warfare (ASW) is the Pacific bases necessary for conducting the an environmental assessment of the Fleet’s #1 war-fighting priority and exercises, and the shallow coastal areas SOCAL training proposed for the time critical to our national defense. Today’s in SOCAL realistically simulate areas period prior to completion of the EIS. In modern, quiet diesel-electric where the Navy is likely to encounter addition, the Navy issued a consistency submarines employ state-of-the-art hostile submarines. The SOCAL determination per the procedural sound silencing technologies and sound Operating Area includes Warning Area requirements of the Coastal Zone isolation technologies. Additionally, 291 (W–291), and the Southern Management Act (CZMA), 16 U.S.C. they operate advanced propulsion California Antisubmarine Warfare Range 1451 et seq. systems that include high endurance (SOAR) that is an instrumented In January 2007, the Deputy Secretary battery systems and air-independent underwater range which allows the of Defense issued a National Defense propulsion systems. These advances, Navy to monitor and evaluate the Exemption (NDE) under the Marine combined with special hull treatments success of the Strike Group training. Mammal Protection Act (MMPA) (16 that significantly dampen submarine The use of MFA sonar will be within U.S.C. 1371(f)). The NDE provides for noise and reduce vulnerability to active W–291 and SOAR. protection of marine mammals, in the sonar prosecution, make them highly Environmental Effects: The habitat absence of an MMPA Letter of potent adversaries. Diesel-electric and species in the SOCAL operating Authorization, by including 29 specific submarines so equipped can covertly area have been monitored and studied operate in coastal and open ocean areas, over the last 40 years, and the Navy has conditions to minimize potential blocking Navy access to combat zones extensively used MFA sonar in the area impacts on marine mammals. These 29 and increasing United States vessels’ over the same period. Over that period, mitigation measures were developed in vulnerability to torpedo and anti-ship the intensity (i.e., the dB level of the coordination with the National Marine missile attacks. Detecting, identifying, sonar source) of the Navy’s MFA sonar Fisheries Service (NMFS), the agency locating, tracking, and if necessary, systems has remained the same. Since with substantive responsibility for neutralizing a diesel-electric submarine 1992, the Navy’s use of MFA sonar in marine mammals. The NDE provides the is vitally important to the Navy’s ability terms of the number of training hours Navy the ability to execute the plan to conduct operations, accomplish its has declined. It is emphasized that there coordinated with the Department of missions and ultimately prevail in have been no documented incidents of Commerce to obtain a Letter of conflict. harm, injury, or death to marine Authorization under the usual Submarines are operated by numerous mammals resulting from exposure to procedural requirements of the MMPA. navies, including potential adversaries MFA sonar in the SOCAL Operating The plan requires the Navy to come into in the Asia-Pacific and Middle East Area. There have also been no stranding compliance with the MMPA as part of areas. Navy Strike Groups are incidents or population-level effects the SOCAL EIS process which will be continuously deployed to these high- attributable to MFA sonar in the SOCAL completed when the NDE expires on threat areas. These missions require Operating Area. No systematic declines January 23, 2009. The potential effects being able to access and operate in in the stocks of marine mammals have of MFA sonar training on threatened waters near shore, control strategic occurred and the stocks of many and endangered marine mammals were maritime transit routes and species, such as humpback whales, blue further analyzed in consultation with international straits, and protect sea whales, harbor seals, and common NMFS under section 7 of the lines of communications supporting dolphins, are stable or improving. The Endangered Species Act (ESA), 16 international commerce. In preparing Eastern North Pacific gray whale stock U.S.C. 1531 et seq. In February of 2007, for these missions, the thousands of increased and the species was delisted, the Navy concluded consultation with individuals in a Pacific Fleet Strike but is currently experiencing habitat NMFS, which issued a Biological Group must train in the use of MFA changes due to sea ice melting patterns, Opinion on February 9, 2007. NMFS sonar in a coordinated manner in a and undersized gray whales have been issued a Biological Opinion that realistic environment prior to reported in the media lately. Strandings includes an incidental take statement deployment. MFA sonar is defined as an of small cetaceans and California sea that exempts the Navy from the active sonar system that operates within lions are common, usually attributed to prohibitions in section 9 of the ESA the 1 kHz to 10 kHz frequency range. fishery interaction, disease, or harmful through January 2009. The Biological MFA sonar capability allows the Strike algal blooms. There have also been Opinion found that the Navy’s actions Group to defend itself against quiet several individual beaked whale were not likely to result in jeopardy to diesel-electric submarines that may strandings, usually attributed to disease any listed species nor adversely modify come within range or attack any of the or fishery interaction. In several of these any designated critical habitat, and ships in the Strike Group. Training in individual strandings, the cause is includes an incidental take statement the use of MFA sonar in the COMTUEX unknown, but there has been no that exempts the Navy from the and JTFEX exercises is a vital apparent link to sonar. prohibitions in section 9 of the component of certification and The Navy is evaluating the Endangered Species Act through employment of these assets in support environmental impact of MFA sonar January 2009.

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For the planned exercises, the Navy the August 7 injunction until the mission capable. The COMPTUEXs and conducted acoustic propagation District Court issued a new, tailored JTFEXs scheduled to occur in the modeling and effects analysis and injunction ‘‘under which the Navy may SOCAL operating area this month determined that there would be no conduct its training exercises.’’ The through January 2009 enable critical permanent physical effects on marine panel set a deadline of January 4, 2008, training. Effective MFA sonar training is mammals from MFA sonar exposure. for the District Court to issue the necessary to certify Strike Groups for The NMFS further reviewed the tailored injunction. deployment in support of world-wide environmental effects and found any On January 3, 2008, the District Court operational and combat activities. potential behavioral or physiological issued a new preliminary injunction While the Navy continues to prepare effects would be temporary effects to that bars any training with MFA sonar the SOCAL EIS that will analyze individual marine mammals. within 12 nautical miles of the potential effects to marine mammals In January 2008, NMFS further California coastline or anywhere in the from exposure to MFA sonar, including reviewed the environmental effects of Santa Catalina basin, except that Navy use during COMPTUEXs and JTFEXs, it Navy training exercises in SOCAL on can use MFA sonar in the San Clemente cannot delay this critical training and marine mammals in and adjacent to Island Range Complex if the location is subsequent certification. The inability to SOCAL, determining that while there is at least 5 nautical miles from the conduct effective MFA sonar training some potential for injury, the mitigation western shore of San Clemente Island. and certify Strike Groups constitutes an measures employed as a result of the The new injunction also imposed a emergency with significant NDE and the reporting and monitoring 2,200 yard (2,000 meter) sonar consequences to the national security of measures outlined in the Biological shutdown zone for ships, sonobuoys, the United States. Therefore, based Opinion will minimize that risk to and helicopters; 6 decibel (dB) power upon the court’s preliminary marine mammals in and adjacent to the down when surface ducting conditions determination as to the need for the exercise area. The review concluded are detected regardless of the presence Navy to prepare an EIS that analyzes that NMFS does not expect the of marine mammals; 60 minutes of MFA sonar exposure effects during COMPTUEX and JTFEX exercises monitoring each day before use of MFA these exercises, per the provisions of 40 through January 23, 2009 to result in sonar; two dedicated (no other duties) CFR 1506.11, the Navy initiated adverse population level effects for any NOAA- and NMFS-trained lookouts consultation with CEQ and requested of the marine mammal populations. during MFA sonar use; use of passive alternative arrangements. Nature and Scope of the Emergency: acoustic monitoring to the maximum The Navy’s request that CEQ provide The use of MFA sonar is complex and extent practicable; and aerial monitoring for alternative arrangements for NEPA requires constant training to achieve 60 minutes before and during MFA compliance was limited to the Navy’s and maintain combat proficiency and sonar exercises. The aerial monitoring proposed use of MFA sonar during effectiveness. MFA sonar is the Navy’s included at least one dedicated aircraft. Commander THIRD Fleet’s nine (9) best means of detecting potentially Helicopters must monitor for marine training exercises, 4 COMPTUEXs and 5 hostile diesel-electric submarines. The mammals for 10 minutes before use of JTFEXs, in the SOCAL Operating Area. primary Strike Group targets of hostile dipping sonar. Finally, Navy must The Navy affirmed that any alternative submarines are the Navy’s aircraft continue to comply with all 29 arrangements would remain in effect carriers, which typically carries over mitigation measures required by the during the preparation and completion 5,300 personnel and the Amphibious NDE under the MMPA issued on of the SOCAL EIS or until January 23, Assault Ship carry the Marine January 23, 2007, unless superseded by 2009, whichever is earlier. Applying Expeditionary Unit. Thus, the inability one or more of the restrictions imposed these alternative arrangements to any to train effectively with MFA sonar by the court. other area or exercise would not be literally puts the lives of thousands of On January 10, 2008, the District appropriate absent an analysis tailored Americans at risk. If a Strike Group does Court modified the new injunction to to such other area and exercise. not gain proficiency in MFA sonar, and ‘‘correct clerical errors and omissions.’’ cannot be certified as combat ready, the The court ordered that (1) the 2,200 yard Alternative Arrangements national security implications would be shutdown zone does not apply to The Navy accepts the alternative enormous. This harm compounds dolphins or porpoises that are ‘‘bow arrangements prescribed by CEQ for the quickly if additional Strike Groups riding’’; (2) dedicated monitoring remaining MFA sonar training exercises cannot be certified. aircraft are no longer required during in the SOCAL Operating Area between On August 7, 2007, the U.S. District the entire exercise (Navy aircraft today and January 23, 2009. Court for the Central District of engaged in the exercise are now Mitigation Measures: The Navy will California in Natural Resources Defense sufficient); and (3) the requirement to adhere to 29 mitigation measures Council v. Winter (CV 07–335) issued an reduce power by 6 dB when surface developed in cooperation with NMFS. order enjoining all MFA sonar use ducting conditions are present only These mitigation measures were during the Navy’s remaining SOCAL apply when ‘‘significant’’ surface developed and included as an integral Operating Area COMPTUEXs and ducting conditions are present. These part of the NDE under the MMPA JTFEXs scheduled to occur through changes left the 2,200 yard shutdown invoked by the Deputy Secretary of January 2009. This order was stayed by requirement in place. Defense under Title 16, Section 1371(f) an emergency panel of the Ninth Circuit Accounting for the court’s recent of the U.S. Code on January 23, 2007. Court of Appeals on August 31, 2007, changes to the new injunction made on That exemption applies to all pending full hearing of the Navy’s January 10, 2008, the order’s training Department of Defense (DoD) military appeal of the injunction. On November restrictions, in particular the unaltered readiness activities employing MFA 13, 2007, a different panel of the Ninth 2,200 yard shut down requirement and sonar during major exercises or within Circuit ruled on the appeal, finding that 6 dB power down when significant established DoD maritime ranges or the District Court had abused its surface ducting conditions are present, established operating areas through discretion, leaving the stay in place long create a significant and unreasonable January 23, 2009. enough for the Navy to complete an risk that Strike Groups will not be able The Navy’s proposed use of MFA ongoing exercise, and then reinstating to train effectively and certify as fully sonar during the Commander THIRD

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Fleet’s proposed nine training exercises islands located within W–291 or SOAR. (including these major exercises). These (four COMPTUEXs and five JTFEXs), in The Channel Islands National Marine fact sheets will track with facts made the SOCAL Operating Area is based on Sanctuary is located entirely outside of available during the public scoping the current knowledge of the SOCAL W–291 and SOAR. process. The DEIS will be distributed to Operating Area and the 29 NDE The Navy will use meters rather than federal, state, and local elected and mitigation measures, some of which are yards to describe the safety zone set tribal officials and government and more fully described below: forth in NDE mitigation measure 20, and tribal agencies, non-governmental The Navy will continue to ensure that the safety zone used in the SOCAL organizations (NGOs), and citizens, watchstanders and lookouts will Operating Area will be 1000 meters. The many of whom participated in the include at a minimum: (1) Three non- Navy will power down 6dB if a marine scoping process. NGOs on the dedicated watchstanders on all surface mammal is detected within the safety distribution list include those known to ships required to look out for marine zone. The Navy will power down an have an interest in the ocean, ocean mammals during all exercises; and (2) additional 4 dB at 500 meters and will resources, or use of sonar and its effects two lookouts on all surface ships shut off sonar transmissions at 200 on marine animals, including required to look out for marine meters. The remaining features of the recreationists, sport and commercial mammals during all exercises. safety zone described in NDE measure fishing groups, environmental interest Furthermore, all sightings of marine 20 will remain the same. organizations, chambers of commerce, mammals by all watchstanders and all Public Participation: The Navy will business entities, museums, and lookouts will be reported directly to the ensure active public participation universities. In addition, prior to the Combat Information Center (CIC) or via during the development of the SOCAL public hearings, Navy will offer elected the appropriate watch stations for EIS and all other range EISs underway officials and agencies the opportunity to submission to the CIC, and the CIC will and scheduled for completion in 2008 participate in briefings on the content disseminate the sighting information to that analyze MFA sonar effects. For the and conclusions of the DEIS. all platforms in the area with a SOCAL EIS, the Navy will release the The Navy will provide notice of these recommendation for appropriate action draft EIS (DEIS) for public review in alternative arrangements and publish (e.g., power down sonar; surface or early April 2008 with a public comment this Decision Memorandum in the subsurface vessels to avoid area or period of 45 days that will span the Federal Register. In addition, Navy will increase distance from mammals; aerial month of April and extend to mid-May. publish notice of these alternative platforms to increase vigilance). In addition to publication of the Notice arrangements in the following Similarly, all aerial platforms will of Availability by the Environmental newspapers: (1) Los Angeles Times; (2) monitor the area for marine mammals Protection Agency (EPA) in the Federal Sacramento Bee; (3) San Diego Union- during their assigned missions and Register, the Navy will publish a Notice Tribune; (4) North County Times (San report marine mammal presence and of Availability in three local California Diego County); and (5) Daily Breeze confirmed sightings to Aircraft Control newspapers: San Diego Union Tribune, (San Pedro, California). Unit for submission to the CIC, and the North County Times (San Diego Concurrent with the Federal Register CIC will disseminate the sighting County), and The Press-Telegram (Long notice, the Navy will include notices to information to all platforms in the area Beach). the parties identified in its request to to ensure they are aware of the presence The Navy will mail a postcard to all CEQ of January 10, 2008, as well as of marine mammals and can take steps those who attended scoping meetings World Wildlife Fund, Nature to increase vigilance or execute and those who submitted comments or Conservancy, National Wildlife mitigation measures applicable to these requested copies of the DEIS. The Federation, Whale and Dolphin exercises (e.g., power down sonar; postcard will announce availability of Conservation Society, Ocean Mammal surface or subsurface vessels to avoid the DEIS and provide information on Institute, Center for Whale Research, area or increase distance from how and where to obtain copies. Three Consortium for Oceanographic Research mammals; aerial platforms to increase public hearings will be held in or near and Education, National Fisheries vigilance). the following California communities: Institute, American Sportfishing The Navy will continue to submit Coronado, Oceanside, and Long Beach. Association, Coastal Conservation after action reports (AARs) to NMFS 120 The locations of the meetings will be Association, International Fund for days after the conclusion of any publicly announced in the Federal Animal Welfare, American Tunaboat COMPTUEX or JTFEX that contain: (1) Register, the California newspapers San Association, Pacific Fisheries An assessment of the mitigation and Diego Union Tribune, North County Management Council, Western Fish monitoring measures and how to Times (San Diego County), and The Boat Owners Association, Southern improve them; and (2) the results of Press-Telegram (Long Beach) and posted California Lobster and Trap Fisherman’s marine mammal monitoring, including on the Web site http:// Association, Southern California all instances where marine mammals www.socalrangecomplexeis.com at least Trawler’s Association, Morro Bay were observed and the levels of MFA 15 days beforehand. Commercial Fisherman Organization, sonar to which they were exposed, Copies of the DEIS will also be Southern California Commercial Fishing based on the NDE sonar mitigation available at four libraries in Southern Association, California Wetfish measures and the requirements of the California—the San Diego Central Producers Association, United Anglers Biological Opinion dated February 9, Library, the Coronado Public Library, of Southern California, Tuna Club of 2007. the San Clemente Library, and the San Santa Catalina Island, International Use of MFA sonar in the SOCAL Pedro Regional Branch Library—and at Game Fish Association, Long Beach Operating Area for COMPTUEX and http://www.socalrangecomplexeis.com. Sportfishing, Recreational Fishing JTFEX training will occur in W–291 and The DEIS will be accompanied by fact Alliance, United Anglers of Southern SOAR. The training exercises in SOAR sheets (presently under development) California, United Pier & Shore Anglers will occur at least 5 nautical miles away that will address the proposed action of California, Scripps Research Institute, from the western shoreline of San (including the use of MFA sonar during University of California at Santa Cruz, Clemente Island. Aside from San these exercises), marine mammals in the and the Applied Physics Laboratory— Clemente Island, there are no other Range Complex, and major events University of Washington.

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The notices will specifically seek The Navy will continue to meet the by April 4, 2008. The implementation input on the process for reviewing post- requirements set out in the NDE for plan should provide for completion of exercise assessments and include an AARs. To accelerate and improve the prototype classifiers for Cuvier’s and offer to meet jointly with Navy information on marine mammal Blainesville’s beaked whales and visual representatives from the office of the exposure effects or lack of effects, the verification of other small odontocetes Assistant Secretary of the Navy Navy will modify its reporting and detected by passive hydrophones by (Installations & Environment) and the recordation processes to enable a more April 15, 2009. office of the Chief of Naval Operations, comprehensive analysis of impacts to As part of the SOCAL EIS, the Navy and CEQ to discuss the alternative marine mammals (including beaked is evaluating a proposal to extend the arrangements. whales that are not listed under the range areas monitored by passive CEQ will be provided copies of any ESA) and ASW training during these hydrophones. If Navy decides to extend notices made in accordance with the major exercises and integrate these the area covered by passive alternative arrangements and the notices modifications into the reports prepared hydrophones as part of its ROD for the will be posted on the Web site at on the exercises conducted between SOCAL EIS, the Navy will determine a http://www.socalrangecomplexeis.com. March 1, 2008, and January 23, 2009. timetable for acquisition and The Navy will also provide CEQ The reporting and monitoring program installation of additional hydrophones notice of the post-exercise assessments improvements identified using adaptive by March 30, 2009. which the Navy prepares for each management principles will also inform The Navy is evaluating current exercise within 120 days of completion the EIS process for the SOCAL Range research regarding infrared (IR) of each exercise (or 120 days after Complex. technology for use in collecting data completion of an exercise which is Research Measures: Efforts to obtain regarding marine mammals, assessing reported as part of a group of exercises) more information about the quantity, the feasibility of acquiring and to which these alternative arrangements distribution, migration, and reactions of deploying additional IR capabilities apply. Further dissemination of the marine mammals to MFA sonar is during major exercises or for conducting post-exercise assessments will be ongoing and will continue. surveys, and developing a plan for determined after considering input Consequently, information being acquiring and deploying IR in data received in response to the Navy notice obtained will inform compliance with collection efforts. The plan will be of alternative arrangements, and the the substantive provisions of the MMPA published no later than June 15, 2008. further dissemination of the post- and ESA, and the procedural exercise assessments will be requirements of CZMA and NEPA. For Dated: January 15, 2008. incorporated into the alternative NEPA, this information will inform the Donald C. Winter, arrangements. ongoing SOCAL EIS process as well as Secretary of the Navy. After the conclusion of the alternative future exercise planning in the SOCAL [FR Doc. E8–1175 Filed 1–23–08; 8:45 am] arrangements, and no later than March Operating Area and serve to provide the BILLING CODE 3810–FF–P 23, 2009, the Navy will provide a report basis for integrated compliance with all to CEQ on the use of the alternative environmental statutes. arrangements that reviews the value and The Navy will continue to implement DEPARTMENT OF DEFENSE effectiveness of those arrangements. the following research measures to Notice of the report will be provided in provide for continual improvement in Department of the Navy the Federal Register, the five the quality of information available: [USN–2008–0002] newspapers (Los Angeles Times; The Navy will continue to improve Sacramento Bee; San Diego Union- information regarding marine mammal Privacy Act of 1974; System of Tribune; North County Times (San presence and density in the SOCAL Records Diego County); and Daily Breeze (San Operating Area by coordinating with Pedro, California)) and on the Web site NMFS to determine the need to identify AGENCY: Department of the Navy, DoD. at http:// areas within the SOCAL Operating Area ACTION: Notice To Amend a System of www.socalrangecomplexeis.com. for additional marine mammal surveys. Records. Adaptive Management: Under the If a need is identified, an NDE, the Navy will continue to submit implementation plan identifying the SUMMARY: The Department of the Navy to NMFS’s Office of Protected Resources areas and providing a schedule for the is amending a system of records notice (OPR) a report, within 120 days of the surveys will be developed no later than in its existing inventory of record completion of major exercises, July 2008. The surveys will be designed systems subject to the Privacy Act of containing a discussion of the nature of to help determine where and when 1974, (5 U.S.C. 552a), as amended. effects on marine mammals from there are concentrations of marine DATES: This proposed action will be exposure to MFA sonar, if observed, mammals in the SOCAL Operating Area. effective without further notice on based upon both modeled results of The survey will occur over a two-year February 25, 2008 unless comments are real-time events and sightings of marine period through July 2010. received which result in a contrary mammals. The Navy will continue to work on a determination. The Navy also consulted under the program that will enhance its ability to ESA with NMFS regarding the effects of use passive hydrophones on the SOAR ADDRESSES: Send comments to the its sonar activities for these exercises on Instrumented Range to detect and track Department of the Navy, PA/FOIA listed species. NMFS issued a Biological marine mammals on those portions of Policy Branch, Chief of Naval Opinion finding that the Navy’s actions the range where the passive Operations (DNS–36), 2000 Navy were not likely to result in jeopardy to hydrophones are in place. To ensure Pentagon, Washington, DC 20350–2000. any listed species nor adversely modify that these efforts remain focused, the FOR FURTHER INFORMATION CONTACT: Mrs. any designated critical habitat. The Navy will develop an implementation Doris Lama at (202) 685–6545. Navy will continue to adhere to plan and schedule to expand the SUPPLEMENTARY INFORMATION: The monitoring and reporting requirements technical capability of existing Department of the Navy systems of specified in the Biological Opinion. hydrophones to detect marine mammals records notices subject to the Privacy

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Act of 1974, (5 U.S.C. 552a), as CATEGORIES OF INDIVIDUALS COVERED BY THE assignments; determine clearance for amended, have been published in the SYSTEM: access control; identify record handlers Federal Register and are available from Military, civilian, and contractor of hazardous materials; record rental of the address above. personnel attached to the activity; welfare and recreational equipment; The specific changes to the record former members; applicants for civilian track beneficial suggestions and awards; system being amended are set forth employment, visitors, volunteers, control the budget; travel claims; track below followed by the notice, as guests, and invitees; and dependent manpower, grades, and personnel amended, published in its entirety. The family members. actions; maintain statistics for proposed amendments are not within minorities; track employment; track CATEGORIES OF RECORDS IN THE SYSTEM: the purview of subsection (r) of the labor costing; prepare watch bills; Privacy Act of 1974, (5 U.S.C. 552a), as Records, correspondence, and project retirement losses; verify amended, which requires the databases needed to manage personnel, employment to requesting banking submission of a new or altered system projects, and access to programs. activities; rental and credit report. Information consists of name; Social organizations; name change location; Security Number; date of birth; photo Dated: January 17, 2008. checklist prior to leaving activity; safety identification; grade and series or rank/ reporting/monitoring; and, similar L.M. Bynum, rate; biographical data; security administrative uses requiring personnel Alternate OSD Federal Register Liaison clearance; education; experience data. Officer, Department of Defense. characteristics and training histories; To arbitrators and hearing examiners NM05000–2 qualifications; Common Access Card for use in civilian personnel matters (CAC) issuance and expiration; food relating to civilian grievances and SYSTEM NAME: service meal entitlement code; trade; appeals. Organization Management and hire/termination dates; type of To authenticate authorization for Locator System. appointment; leave; location; assigned access to services and spaces such as organization code and/or work center Morale, Welfare, and Recreation (MWR) CHANGES: code; Military Occupational Series facilities and food services. (MOS); labor code; payments for SYSTEM NAME: Routine uses of records maintained in training, travel advances and claims; the system, including categories of users Delete ‘‘Organization’’ and replace hours assigned and worked; routine and and the purposes of such uses: with ‘‘Program’’. emergency assignments; functional In addition to those disclosures responsibilities; access to secure spaces SYSTEM LOCATION: generally permitted under 5 U.S.C. and issuance of keys; travel; retention 552a(b) of the Privacy Act, these records At end of para 1, add ‘‘Some records group; vehicle parking; disaster control; or information contained therein may may be located at contractor-operated community relations (blood donor, etc); specifically be disclosed outside the facilities.’’ employee recreation programs; DoD as a routine use pursuant to 5 retirement category; awards; property SAFEGUARDS: U.S.C. 552a(b)(3) as follows: custody; personnel actions/dates; The DoD ‘Blanket Routine Uses’ that At end of paragraph add ‘‘For violations of rules; physical handicaps appear at the beginning of the Navy’s contractor-operated facilities, client data and health/safety data; veterans compilation of systems of records is kept in a certified data facility. At no preference; postal address; location of notices apply to this system. time is client data removed from the dependents and next of kin and their Policies and practices for storing, secure hosting environment and access addresses; computer use responsibility retrieving, accessing, retaining, and to client data is only to those employees agreements; and other data needed for disposing of records in the system: with a direct functional need. Password personnel, financial, line, safety and complexity, expiration, minimum security management, as appropriate. STORAGE: length, and history will assist in Electronic databases and paper assuring only appropriate personnel AUTHORITY FOR MAINTENANCE OF THE SYSTEM: records. have access to client data.’’ 10 U.S.C. 5013, Secretary of the Navy; 10 U.S.C. 5041, Headquarters, Marine RETRIEVABILITY: NM05000–2 Corps; and E.O. 9397 (SSN). Name, Social Security Number, SYSTEM NAME: employee badge number, case number, PURPOSE(S): organization, work center and/or job Program Management and Locator To manage, supervise, and administer order, and supervisor’s shop and code. System. programs for all Department of the Navy civilian, military, and contractor SAFEGUARDS: SYSTEM LOCATION: personnel. Information is used to Password controlled system, file, and Organizational elements of the prepare organizational locator, recall element access based on predefined Department of the Navy. Official rosters, and social rosters; notify need-to-know. Physical access to mailing addresses are published in the personnel of arrival of visitors; locate terminals, terminal rooms, buildings Standard Navy Distribution List that is individuals on routine and/or and activities’ grounds are controlled by available at http://doni.daps.dla.mil/ emergency matters; locate individuals locked terminals and rooms, guards, sndl.aspx. Some records may be located during medical emergencies, facility personnel screening and visitor at contractor-operated facilities. evacuations and similar threat registers. For contractor operated Commander, U.S. Joint Forces situations; provide mail distribution and facilities, client data is kept in a Command, 1562 Mitscher Avenue, Suite forwarding addresses; compile a social certified data facility. At no time is 200, Norfolk, VA 23551–2488. roster for official and non-official client data removed from the secure Commander, U.S. Pacific Command, functions; send personal greetings and hosting environment and access to P.O. Box 64028, Camp H.M. Smith, HI invitations; track attendance at training; client data is only to those employees 96861–4028. identify routine and special work with a direct functional need. Password

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complexity, expiration, minimum DEPARTMENT OF EDUCATION Dated: January 17, 2008. length, and history will assist in Angela C. Arrington, assuring only appropriate personnel Submission for OMB Review; IC Clearance Official, Regulatory Information have access to client data. Comment Request Management Services, Office of Management. Office of Postsecondary Education RETENTION AND DISPOSAL: AGENCY: Department of Education. Destroy when no longer needed or Type of Review: Reinstatement. after two years, whichever is later. SUMMARY: The IC Clearance Official, Regulatory Information Management Title: Application for Grants under SYSTEM MANAGER(S) AND ADDRESS: Services, Office of Management invites the Training Program for Federal TRIO Programs. Commanding officer of the activity in comments on the submission for OMB question. Official mailing addresses are review as required by the Paperwork Frequency: Biennially. published in the Standard Navy Reduction Act of 1995. Affected Public: Not-for-profit institutions; State, Local, or Tribal Distribution List that is available at DATES: Interested persons are invited to Gov’t; SEAs or LEAs. http://doni.daps.dla.mil/sndl.aspx. submit comments on or before February Reporting and Recordkeeping Hour 25, 2008. NOTIFICATION PROCEDURE: Burden: Individuals seeking to determine ADDRESSES: Written comments should Responses: 60. whether this system of records contains be addressed to the Office of Burden Hours: 1,020. information about themselves should Information and Regulatory Affairs, address written inquiries to the Attention: Education Desk Officer, Abstract: The Training Program for commanding officer of the activity in Office of Management and Budget, 725 Federal TRIO Programs is mandated, by question. Official mailing addresses are 17th Street, NW., Room 10222, statute, to provide training for staff and published in the Standard Navy Washington, DC 20503. Commenters are leadership personnel employed or Distribution List that is available at encouraged to submit responses preparing for employment in TRIO http://doni.daps.dla.mil/sndl.aspx. electronically by e-mail to Program projects designed to identify The request should include full name, [email protected] or via fax individuals from disadvantaged Social Security Number, and address of to (202) 395–6974. Commenters should backgrounds, prepare them for a the individual concerned and should be include the following subject line in program of postsecondary education, signed. their response ‘‘Comment: [insert OMB and provide special services for such number], [insert abbreviated collection students pursuing programs of RECORD ACCESS PROCEDURES: name, e.g., ‘‘Upward Bound postsecondary education. Individuals seeking access to records Evaluation’’].’’ Persons submitting This information collection is being about themselves contained in this comments electronically should not submitted under the Streamlined system of records should address submit paper copies. Clearance Process for Discretionary written inquiries to the commanding Grant Information Collections (1890– officer of the activity in question. SUPPLEMENTARY INFORMATION: Section 0001). Therefore, the 30-day public Official mailing addresses are published 3506 of the Paperwork Reduction Act of comment period notice will be the only in the Standard Navy Distribution List 1995 (44 U.S.C. Chapter 35) requires public comment notice published for that is available at http:// that the Office of Management and this information collection. doni.daps.dla.mil/sndl.aspx. Budget (OMB) provide interested Requests for copies of the information The request should include full name, Federal agencies and the public an early collection submission for OMB review Social Security Number, and address of opportunity to comment on information may be accessed from http:// the individual concerned and should be collection requests. OMB may amend or edicsweb.ed.gov, by selecting the signed. waive the requirement for public ‘‘Browse Pending Collections’’ link and consultation to the extent that public CONTESTING RECORD PROCEDURES: by clicking on link number 3564. When participation in the approval process you access the information collection, The Navy’s rules for accessing would defeat the purpose of the click on ‘‘Download Attachments’’ to records, and for contesting contents and information collection, violate State or view. Written requests for information appealing initial agency determinations Federal law, or substantially interfere should be addressed to U.S. Department are published in Secretary of the Navy with any agency’s ability to perform its of Education, 400 Maryland Avenue, Instruction 5211.5; 32 CFR part 701; or statutory obligations. The IC Clearance SW., Potomac Center, 9th Floor, may be obtained from the system Official, Regulatory Information Washington, DC 20202–4700. Requests manager. Management Services, Office of may also be electronically mailed to Management, publishes that notice RECORD SOURCE CATEGORIES: [email protected] or faxed to 202– containing proposed information 245–6623. Please specify the complete Individual; Defense Manpower Data collection requests prior to submission Center; employment papers; records of title of the information collection when of these requests to OMB. Each making your request. the organization; official personnel proposed information collection, Comments regarding burden and/or jackets; supervisors; official travel grouped by office, contains the the collection activity requirements orders; educational institutions; following: (1) Type of review requested, should be electronically mailed to applications; duty officer; e.g. new, revision, extension, existing or [email protected]. Individuals who investigations; OPM officials; and/or reinstatement; (2) Title; (3) Summary of use a telecommunications device for the members of the American Red Cross. the collection; (4) Description of the deaf (TDD) may call the Federal need for, and proposed use of, the EXEMPTIONS CLAIMED FOR THE SYSTEM: Information Relay Service (FIRS) at 1– information; (5) Respondents and None. 800–877–8339. frequency of collection; and (6) [FR Doc. E8–1190 Filed 1–23–08; 8:45 am] Reporting and/or Recordkeeping [FR Doc. E8–1124 Filed 1–23–08; 8:45 am] BILLING CODE 5001–06–P burden. OMB invites public comment. BILLING CODE 4000–01–P

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DEPARTMENT OF EDUCATION Dated: January 16, 2008. Deadline for Transmittal of Angela C. Arrington, Applications: March 14, 2008. Notice of Proposed Information IC Clearance Official, Regulatory Information Deadline for Intergovernmental Collection Requests Management Services, Office of Management. Review: May 13, 2008. Department of Education Full Text of Announcement AGENCY: Department of Education. Type of Review: Extension. I. Funding Opportunity Description SUMMARY: The IC Clearance Official, Title: Generic Plan for Customer Purpose of Program: The Safe Regulatory Information Management Satisfaction Surveys and Focus Groups. Services, Office of Management, invites Frequency: Annually Other: one time Schools/Healthy Students program (SS/ comments on the proposed information or annually. HS) supports the implementation and collection requests as required by the Affected Public: State, Local, or Tribal enhancement of integrated, Paperwork Reduction Act of 1995. Gov’t, SEAs or LEAs; Not-for-profit comprehensive community-wide plans institutions. that create safe and drug-free schools DATES: Interested persons are invited to Reporting and Recordkeeping Hour and promote healthy childhood submit comments on or before March Burden: development. 24, 2008. Responses: 70,000. Priorities: These priorities are from the notice of final priorities, SUPPLEMENTARY INFORMATION: Section Burden Hours: 25,000. requirements, selection criteria, and Abstract: Customer satisfaction 3506 of the Paperwork Reduction Act of definitions for this program, published surveys and focus group discussions 1995 (44 U.S.C. Chapter 35) requires in the Federal Register on May 10, 2007 will be conducted by the Principal that the Office of Management and (72 FR 26692). Budget (OMB) provide interested Offices of the Department of Education Federal agencies and the public an early to measure customer satisfaction and Note: Definitions for important terms associated with this competition (e.g., opportunity to comment on information establish and improve customer service standards as required by Executive authorized representative, local juvenile collection requests. OMB may amend or justice agency) can be found in the notice of waive the requirement for public Order 12862. final priorities, requirements, selection consultation to the extent that public Requests for copies of the proposed criteria, and definitions published in the information collection request may be participation in the approval process Federal Register on May 10, 2007 (72 FR accessed from http://edicsweb.ed.gov, would defeat the purpose of the 26692). by selecting the ‘‘Browse Pending information collection, violate State or Collections’’ link and by clicking on Absolute Priority: For FY 2008 and Federal law, or substantially interfere link number 3569. When you access the any subsequent year in which we make with any agency’s ability to perform its information collection, click on awards from the list of unfunded statutory obligations. The IC Clearance ‘‘Download Attachments’’ to view. applicants from this competition, this Official, Regulatory Information Written requests for information should priority is an absolute priority. Under 34 Management Services, Office of be addressed to U.S. Department of CFR 75.105(c)(3) we consider only Management, publishes that notice Education, 400 Maryland Avenue, SW., applications that meet this priority. This priority is: containing proposed information Potomac Center, 9th Floor, Washington, Comprehensive Plan. collection requests prior to submission DC 20202–4700. Requests may also be This priority supports projects of local of these requests to OMB. Each electronically mailed to educational agencies (LEAs) proposing proposed information collection, [email protected] or faxed to 202– to implement an integrated, grouped by office, contains the 245–6623. Please specify the complete comprehensive community-wide plan following: (1) Type of review requested, title of the information collection when designed to create safe, respectful, and making your request. e.g. new, revision, extension, existing or drug-free school environments and reinstatement; (2) Title; (3) Summary of Comments regarding burden and/or the collection activity requirements promote prosocial skills and healthy the collection; (4) Description of the childhood development. Plans must need for, and proposed use of, the should be electronically mailed to [email protected]. Individuals who focus activities, curricula, programs, information; (5) Respondents and and services in a manner that responds frequency of collection; and (6) use a telecommunications device for the deaf (TDD) may call the Federal to the community’s existing needs, gaps, Reporting and/or Recordkeeping or weaknesses in areas related to the burden. OMB invites public comment. Information Relay Service (FIRS) at 1–800–877–8339. five comprehensive plan elements: The Department of Education is Element One—Safe School especially interested in public comment [FR Doc. E8–1128 Filed 1–23–08; 8:45 am] Environments and Violence Prevention addressing the following issues: (1) Is BILLING CODE 4000–01–P Activities. this collection necessary to the proper Element Two—Alcohol, Tobacco, and Other Drug Prevention Activities. functions of the Department; (2) will DEPARTMENT OF EDUCATION this information be processed and used Element Three—Student Behavioral, Social, and Emotional Supports. in a timely manner; (3) is the estimate Office of Safe and Drug-Free Schools; Element Four—Mental Health of burden accurate; (4) how might the Overview Information; Safe Schools/ Services. Department enhance the quality, utility, Healthy Students Program; Notice Element Five—Early Childhood and clarity of the information to be Inviting Applications for New Awards Social and Emotional Learning for Fiscal Year (FY) 2008 collected; and (5) how might the Programs. Department minimize the burden of this Catalog of Federal Domestic Competitive Preference Priority: For collection on the respondents, including Assistance (CFDA) Number: 84.184L. FY 2008 and any subsequent year in through the use of information DATES: which we make awards from the list of technology. Applications Available: January 24, unfunded applicants from this 2008. competition, this priority is a

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competitive preference priority. Under $750,000 for any of the project’s four 12- each of the corresponding required SS/ 34 CFR 75.105(c)(2)(i) we award an month budget periods must provide HS partners for each member LEA. The additional 5 points to an application documentation of enrollment data. final MOA must also include the that meets this priority. (3) Preliminary Memorandum of following: This priority is: Agreement (MOA). Each applicant must (a) Information that supports the LEAs That Have Not Previously include in its application a preliminary selection of each identified SS/HS Received a Grant or Services Under the MOA that is signed by the authorized required partner that has signed the Safe Schools/Healthy Students representatives of the LEA, the local final MOA; Initiative. juvenile justice agency, the local law (b) Any needed revisions to the Under this priority, we give priority to enforcement agency, and the local statement of support and commitment applications from LEAs that have not public mental health authority—the for each of the required SS/HS partners yet received a grant under this program required SS/HS partners. For to implement and sustain the project; as an applicant or as a member of a consortium applicants, the preliminary (c) A final roster of the core consortium. In order for a consortium MOA must be signed by the authorized management team of senior application to be eligible under this representatives of each member LEA representatives from the required SS/HS priority, no member of the LEA and by the authorized representatives of partners that clearly defines how each consortium may have received a grant or each corresponding required SS/HS member of the team will support the services under this program as an partner for each member LEA. project director in the day-to-day applicant or as a member of a Additionally, the preliminary MOA management of the project; consortium applicant. must: (d) Any needed revisions to the Application and Eligibility (a) Include information that supports process for involving multiple and Requirements. The applicant must meet the selection of each identified SS/HS diverse sectors of the community in the the following requirements: required partner that has signed the implementation and continuous (1) Program-Specific Assurances for preliminary MOA; improvement of the project; Former SS/HS Grant Recipients. For (b) Demonstrate the support and (e) A final logic model that identifies those LEAs that have previously commitment of the required SS/HS needs or gaps and connects those needs received funds or services (or for those partners to implement and sustain the or gaps with corresponding project LEA consortia that include a member project if funded; goals, objectives, activities, partners’ LEA that has received funds or services) (c) Name a core management team of roles, outcomes, and outcome measures under the SS/HS program, a program- senior representatives from the required for each of the SS/HS elements; specific assurance must be submitted as partners, and clearly define how each (f) A description of each partner’s part of the SS/HS application. All member of the team will support the financial responsibility for the services participating LEAs in a proposed project director in the day-to-day that it will provide, along with the consortium project must sign this management of the project; conditions and terms of responsibility program-specific assurance. The (d) Describe how multiple and diverse for those services, including the quality, assurance must state that, if awarded, sectors of the community, including accountability, and coordination of the project will not serve those schools parents and students, have been and services as they relate to achieving the or sub-regions served by the first SS/HS will continue to be involved in the goals, objectives, and outcomes of the project. Applications from prior SS/HS design, implementation, and continuous project; grant recipients (or from a consortium improvement of the project; and (g) A description of the procedures to that includes an LEA that has (e) Include, as an attachment, a logic be used for referral, treatment, and previously received SS/HS funds or model (a graphic representation of the follow-up for children and adolescents services) that do not include the project in chart format) that identifies in need of mental health services and an program-specific assurance will be needs or gaps and connects those needs assurance that the local public mental rejected and not considered for funding. or gaps with corresponding project health authority will provide (2) Funding Limits for Applicants. An goals, objectives, activities, partners’ administrative control and/or oversight applicant’s request for funding must not roles, outcomes, and outcome measures of the delivery of mental health services; exceed the following maximum for each of the SS/HS elements. and amounts, based on student enrollment Applications that do not include the (h) Any other necessary revisions to data, for any of the project’s four 12- preliminary MOA signed by the information furnished in the month budget periods: $2,250,000 for an authorized representatives of each of the preliminary MOA. LEA with at least 35,000 students; required SS/HS partners (the LEA, the Program Authority: Safe and Drug- $1,500,000 for an LEA with at least local juvenile justice agency, the local Free Schools and Communities Act (20 5,000 students but fewer than 35,000 law enforcement agency, and the local U.S.C. 7131); Public Health Service Act students; and $750,000 for an LEA with public mental health authority) and the (42 U.S.C. 290aa); and Juvenile Justice fewer than 5,000 students. In applying logic model will be rejected and not and Delinquency Prevention Act (42 these maximums, applicants must use considered for funding. U.S.C. 5614(b)(4)(e) and 5781 et seq.). the most recent student enrollment data (4) Final MOA. If funded, grant Applicable Regulations: (a) The from the National Center for Education recipients must complete a final MOA. Education Department General Statistics’ (NCES) Common Core of Data The final MOA must be signed by the Administrative Regulations (EDGAR) in (CCD) as posted on the NCES Web site. authorized representatives of the LEA, 34 CFR parts 75, 77, 79, 80, 81, 82, 84, In the case of consortium applicants, the the local juvenile justice agency, the 85, 97, 98, 99, and 299. (b) The notice maximum funding request is based on local law enforcement agency, and the of final priorities, requirements, the combined student enrollment data local public mental health authority— selection criteria, and definitions for the participating LEAs. Department the required SS/HS partners. For published in the Federal Register on of the Interior, Bureau of Indian consortium applicants, the final MOA May 10, 2007 (72 FR 26692). (c) The Education-funded schools that are not must be signed by the authorized notice of final eligibility requirement included in the NCES database and representative for each member LEA published in the Federal Register on request grant funds that exceed and the authorized representative for December 4, 2006 (71 FR 70369).

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Note: The regulations in 34 part 79 apply children, their teachers, and other in an alternative format (e.g., Braille, to all applicants except federally recognized educational personnel in private schools large print, audiotape, or computer Indian tribes. located in areas served by the grant diskette) by contacting the program recipient. In order to ensure that grant contact person listed in this section. II. Award Information program activities, curricula, programs, 2. Content and Form of Application Type of Award: Discretionary grants. and services address the needs of Submission: Requirements concerning Estimated Available Funds: private school children, LEAs must the content of an application, together $72,000,000. engage in timely and meaningful with the forms you must submit, are in Contingent upon the availability of consultation with private school the application package for this funds and the quality of applications, officials during the design and competition. we may make additional awards later in development of the program. This Page Limit: The application narrative FY 2008 and in FY 2009 from the list consultation must take place before any is where you, the applicant, address the of unfunded applicants from this decision is made that affects the selection criteria that reviewers use to competition. opportunities of eligible private school evaluate your application. You must Estimated Range of Awards: Up to children, teachers, and other limit the application narrative to the $750,000 for an LEA with fewer than educational personnel to participate. equivalent of no more than 40 pages, 5,000 students; up to $1,500,000 for an Administrative direction and control using the following standards: LEA with at least 5,000 students but over grant funds must remain with the • A page is 8.5″ x 11″, on one side fewer than 35,000 students; and up to grantee. only, with 1″ margins at the top, bottom, $2,250,000 for an LEA with at least (b) Maintenance of Effort. Section and both sides. 35,000 students. 9521 of the ESEA provides that LEAs • Double space (no more than three Estimated Average Size of Awards: may receive a grant only if the State lines per vertical inch) all text in the $750,000 for an LEA with fewer than educational agency finds that either the application narrative. Titles, headings, 5,000 students; $1,500,000 for an LEA combined fiscal effort per student or the footnotes, quotations, references, and with at least 5,000 students but fewer aggregate expenditures of the LEA and captions, as well as text in charts, tables, than 35,000 students; and $2,250,000 for the State with respect to the provision figures, and graphs, can be single an LEA with at least 35,000 students. of free public education by the LEA for spaced. Estimated Average Size of Awards: the preceding fiscal year was not less • Use a font that is either 12 point or $750,000 for an LEA with fewer than than 90 percent of the combined fiscal larger or no smaller than 10 pitch 5,000 students; $1,500,000 for an LEA effort or aggregate expenditures for the (characters per inch). with at least 5,000 students but fewer second preceding fiscal year. • Use one of the following fonts: than 35,000 students; and $2,250,000 for Times New Roman, Courier, Courier an LEA with at least 35,000 students. IV. Application and Submission New, or Arial. Estimated Number of Awards: 55. Information • Number all pages consecutively Note: The Department is not bound by any 1. Address To Request Application using the style 1 of 40, 2 of 40, and so estimates in this notice. Package: You can obtain an application forth. • Include a Table of Contents with Project Period: Up to 48 months. package via the Internet, from the Education Publications Center (ED page references. The 40-page limit does III. Eligibility Information Pubs), or from the program office. To not apply to the Table of Contents. 1. Eligible Applicants: LEAs, obtain a copy via the Internet, use the Our reviewers will not read any pages including charter schools that are following address: http://www.ed.gov/ of the narrative portion of your considered LEAs under State law, and fund/grant/apply/grantapps/index.html. application that exceed the page limit if consortia of LEAs. To obtain a copy from ED Pubs, write, you apply these standards; or exceed the fax, or call the following: Education equivalent of the page limit if you apply Note: The Secretary limits eligibility under Publications Center, P.O. Box 1398, other standards. the SS/HS grant program competition (CFDA Jessup, MD 20794–1398. Telephone, toll 3. Submission Dates and Times: Number 84.184L) to applicants that do not Applications Available: January 24, currently have an active grant under this free: 1–877–433–7827. FAX: (301) 470– grant program. For the purpose of this 1244. If you use a telecommunications 2008. eligibility requirement, a grant is considered device for the deaf (TDD), call, toll free: Deadline for Transmittal of active until the end of the grant’s project or 1–877–576–7734. Applications: March 14, 2008. funding period, including any extensions of You can contact ED Pubs at its Web Applications for grants under this those periods that extend the grantee’s site, also: http://www.ed.gov/pubs/ competition may be submitted authority to obligate funds. This eligibility edpubs.html or at its e-mail address: electronically using the Grants.gov requirement is from the notice of final [email protected]. Apply site (Grants.gov), or in paper eligibility requirement published in the If you request an application from ED format by mail or hand delivery. For Federal Register on December 4, 2006 (71 FR Pubs, be sure to identify this information (including dates and times) 70369). competition as follows: CFDA number about how to submit your application 2. Cost Sharing or Matching: This 84.184L. electronically, or in paper format by competition does not require cost To obtain a copy from the program mail or hand delivery, please refer to sharing or matching. office, contact: Karen Dorsey, U.S. section IV. 6. Other Submission 3. Other: (a) Participation by Private Department of Education, 400 Maryland Requirements in this notice. School Children and Teachers. Section Avenue, SW., room 3E336, Washington, We do not consider an application 9501 of the Elementary and Secondary DC 20202–6450. Telephone: (202) 708– that does not comply with the deadline Education Act of 1965, as amended 4674 or by e-mail: [email protected]. requirements. (ESEA), requires that LEAs or other If you use TDD, call the Federal Relay Individuals with disabilities who entities receiving funds under the Safe Service (FRS), toll free, at 1–800–877– need an accommodation or auxiliary aid and Drug-Free Schools and 8339. in connection with the application Communities Act provide for the Individuals with disabilities can process should contact the person listed equitable participation of private school obtain a copy of the application package under FOR FURTHER INFORMATION

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CONTACT in section VII in this notice. If • Your participation in Grants.gov is that the registration process may take the Department provides an voluntary. five or more business days to complete, accommodation or auxiliary aid to an • When you enter the Grants.gov site, and you must have completed all individual with a disability in you will find information about registration steps to allow you to submit connection with the application submitting an application electronically successfully an application via process, the individual’s application through the site, as well as the hours of Grants.gov. In addition you will need to remains subject to all other operation. update your CCR registration on an requirements and limitations in this • Applications received by annual basis. This may take three or notice. Grants.gov are date and time stamped. more business days to complete. Deadline for Intergovernmental Your application must be fully • You will not receive additional Review: May 13, 2008. uploaded and submitted and must be point value because you submit your 4. Intergovernmental Review: This date and time stamped by the application in electronic format, nor competition is subject to Executive Grants.gov system no later than 4:30 will we penalize you if you submit your Order 12372 and the regulations in 34 p.m., Washington, DC time, on the application in paper format. CFR part 79. Information about application deadline date. Except as • If you submit your application Intergovernmental Review of Federal otherwise noted in this section, we will electronically, you must submit all Programs under Executive Order 12372 not consider your application if it is documents electronically, including all is in the application package for this date and time stamped by the information you typically provide on competition. Grants.gov system later than 4:30 p.m., the following forms: Application for 5. Funding Restrictions: Washington, DC time, on the Federal Assistance (SF 424), the (1) No less than seven percent of a application deadline date. When we Department of Education Supplemental grantee’s budget for each year must be retrieve your application from Information for SF 424, Budget used to support costs associated with Grants.gov, we will notify you if we are Information—Non-Construction local evaluation activities. rejecting your application because it Programs (ED 524), and all necessary (2) No more than 10 percent of the was date and time stamped by the assurances and certifications. Please total budget for each project year may be Grants.gov system after 4:30 p.m., note that two of these forms—the SF 424 used to support costs associated with Washington, DC time, on the and the Department of Education security equipment, security personnel, application deadline date. Supplemental Information for SF 424— and minor remodeling of school • The amount of time it can take to have replaced the ED 424 (Application facilities to improve school safety. upload an application will vary for Federal Education Assistance). (3) We reference additional depending on a variety of factors, • If you submit your application regulations outlining funding including the size of the application and electronically, you must attach any restrictions in the Applicable the speed of your Internet connection. narrative sections of your application as Regulations section in this notice. Therefore, we strongly recommend that files in a .DOC (document), .RTF (rich 6. Other Submission Requirements: you do not wait until the application text), or .PDF (Portable Document) Applications for grants under this deadline date to begin the submission format. If you upload a file type other competition may be submitted process through Grants.gov. than the three file types specified in this electronically or in paper format by mail • You should review and follow the paragraph or submit a password- or hand delivery. Education Submission Procedures for protected file, we will not review that a. Electronic Submission of submitting an application through material. Applications. Grants.gov that are included in the • Your electronic application must To comply with the President’s application package for this competition comply with any page-limit Management Agenda, we are to ensure that you submit your requirements described in this notice. participating as a partner in the application in a timely manner to the • After you electronically submit Governmentwide Grants.gov Apply site. Grants.gov system. You can also find the your application, you will receive from The Safe Schools/Healthy Students Education Submission Procedures Grants.gov an automatic notification of Program, CFDA Number 84.184L, is pertaining to Grants.gov at http://e- receipt that contains a Grants.gov included in this project. We request Grants.ed.gov/help/ tracking number. (This notification your participation in Grants.gov. GrantsgovSubmissionProcedures.pdf. indicates receipt by Grants.gov only, not If you choose to submit your • To submit your application via receipt by the Department.) The application electronically, you must use Grants.gov, you must complete all steps Department then will retrieve your the Governmentwide Grants.gov Apply in the Grants.gov registration process application from Grants.gov and send a site at http://www.Grants.gov. Through (see http://www.grants.gov/applicants/ second notification to you by e-mail. this site, you will be able to download get_registered.jsp). This second notification indicates that a copy of the application package, These steps include (1) registering the Department has received your complete it offline, and then upload and your organization, a multi-part process application and has assigned your submit your application. You may not that includes registration with the application a PR/Award number (an ED- e-mail an electronic copy of a grant Central Contractor Registry (CCR); (2) specified identifying number unique to application to us. registering yourself as an Authorized your application). You may access the electronic grant Organization Representative (AOR); and • We may request that you provide us application for the Safe Schools/Healthy (3) getting authorized as an AOR by original signatures on forms at a later Students Program at http:// your organization. Details on these steps date. www.Grants.gov. You must search for are outlined in the Grants.gov 3-Step Application Deadline Date Extension the downloadable application package Registration Guide (see http:// in Case of Technical Issues With the for this competition by the CFDA www.grants.gov/section910/ Grants.gov System: If you are number. Do not include the CFDA Grants.govRegistrationBrochure.pdf). experiencing problems submitting your number’s alpha suffix in your search You also must provide on your application through Grants.gov, please (e.g., search for 84.184, not 84.184L). application the same D–U–N–S Number contact the Grants.gov Support Desk, Please note the following: used with this registration. Please note toll free, at 1–800–518–4726. You must

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obtain a Grants.gov Support Desk Case (1) A legibly dated U.S. Postal Service May 10, 2007 (72 FR 26692) and are Number and must keep a record of it. postmark. listed in the application package. If you are prevented from (2) A legible mail receipt with the 2. Review and Selection Process: electronically submitting your date of mailing stamped by the U.S. Additional factors we consider in application on the application deadline Postal Service. selecting an application for an award are date because of technical problems with (3) A dated shipping label, invoice, or as follows: (1) Geographic distribution; the Grants.gov system, we will grant you receipt from a commercial carrier. and (2) diversity of activities addressed an extension until 4:30 p.m., (4) Any other proof of mailing by the projects. Washington, DC time, the following acceptable to the Secretary of the U.S. business day to enable you to transmit Department of Education. VI. Award Administration Information your application electronically or by If you mail your application through 1. Award Notices: If your application hand delivery. You also may mail your the U.S. Postal Service, we do not is successful, we notify your U.S. application by following the mailing accept either of the following as proof Representative and U.S. Senators and instructions described elsewhere in this of mailing: send you a Grant Award Notification notice. (1) A private metered postmark. (GAN). We may notify you informally, If you submit an application after 4:30 (2) A mail receipt that is not dated by also. p.m., Washington, DC time, on the the U.S. Postal Service. If your application is not evaluated or application deadline date, please If your application is postmarked after not selected for funding, we notify you. contact the person listed under FOR the application deadline date, we will 2. Administrative and National Policy FURTHER INFORMATION CONTACT in not consider your application. section VII in this notice and provide an Requirements: We identify explanation of the technical problem Note: The U.S. Postal Service does not administrative and national policy uniformly provide a dated postmark. Before you experienced with Grants.gov, along requirements in the application package relying on this method, you should check and reference these and other with the Grants.gov Support Desk Case with your local post office. Number. We will accept your requirements in the Applicable application if we can confirm that a c. Submission of Paper Applications Regulations section in this notice. technical problem occurred with the by Hand Delivery. If you submit your We reference the regulations outlining Grants.gov system and that that problem application in paper format by hand the terms and conditions of an award in affected your ability to submit your delivery, you (or a courier service) must the Applicable Regulations section in application by 4:30 p.m., Washington, deliver the original and two copies of this notice and include these and other DC time, on the application deadline your application by hand, on or before specific conditions in the GAN. The date. The Department will contact you the application deadline date, to the GAN also incorporates your approved after a determination is made on Department at the following address: application as part of your binding whether your application will be U.S. Department of Education, commitments under the grant. accepted. Application Control Center, Attention: 3. Reporting: Semi-annual and annual (CFDA Number 84.184L), 550 12th Note: The extensions to which we refer in performance reports are required for this section apply only to the unavailability Street, SW., Room 7041, Potomac Center each of the project’s four 12-month of, or technical problems with, the Grants.gov Plaza, Washington, DC 20202–4260. performance periods in accordance with system. We will not grant you an extension The Application Control Center 34 CFR 75.720(c). At the end of your if you failed to fully register to submit your accepts hand deliveries daily between 8 project period, you must submit a final application to Grants.gov before the a.m. and 4:30 p.m., Washington, DC performance report, including financial application deadline date and time or if the time, except Saturdays, Sundays, and information, as directed by the technical problem you experienced is Federal holidays. unrelated to the Grants.gov system. Secretary. For specific requirements on Note for Mail or Hand Delivery of reporting, please go to http:// b. Submission of Paper Applications Paper Applications: If you mail or hand www.ed.gov/fund/grant/apply/ by Mail. If you submit your application deliver your application to the appforms/appforms.html. in paper format by mail (through the Department— 4. Performance Measures: The U.S. Postal Service or a commercial (1) You must indicate on the envelope Department has established the carrier), you must mail the original and and—if not provided by the following Government Performance and two copies of your application, on or Department—in Item 11 of the SF 424 Results Act of 1993 (GPRA) performance before the application deadline date, to the CFDA number, including suffix measures for the SS/HS program: the Department at the applicable letter, if any, of the competition under (1) Student Victimization/Perception following address: which you are submitting your of School Safety. By mail through the U.S. Postal Service: application; and U.S. Department of Education, (2) The Application Control Center (a) Percentage of grantees that Application Control Center, will mail to you a notification of receipt experience a decrease in students who Attention: (CFDA Number 84.184L), of your grant application. If you do not did not go to school on 1 or more days 400 Maryland Avenue, SW., receive this notification within 15 during the past 30 days because they felt Washington, DC 20202–4260; business days from the application unsafe at school or on their way to and or deadline date, you should call the U.S. from school. By mail through a commercial carrier: Department of Education Application (b) Percentage of grantees that U.S. Department of Education, Control Center at (202) 245–6288. experience a decrease in students who Application Control Center, Stop have been in a physical fight on school 4260, Attention: (CFDA Number V. Application Review Information property in the 12 months prior to the 84.184L), 7100 Old Landover Road, 1. Selection Criteria: The selection survey. Landover, MD 20785–1506. criteria for this competition are from the (2) Student Substance Use/Abuse. Regardless of which address you use, notice of final priorities, requirements, (a) Percentage of grantees that report you must show proof of mailing selection criteria, and definitions a decrease in students who report consisting of one of the following: published in the Federal Register on current (30-day) marijuana use.

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(b) Percentage of grantees that report Register. Free Internet access to the official Docket Numbers: RP05–422–024. a decrease in students who report edition of the Federal Register and the Code Applicants: El Paso Natural Gas current (30-day) alcohol use. of Federal Regulations is available on GPO Company. (3) Mental Health Services Provided Access at: http://www.gpoaccess.gov/nara/ Description: El Paso Natural Gas index.html. (a) Percentage of grantees that report Company submits Fourth Revised Sheet an increase in the number of students Dated: January 18, 2008. 150 et al. to FERC Gas Tariff, Second receiving school-based mental health Deborah A. Price, Revised Volume 1A under RP05–422. Filed Date: 01/14/2008. services. Assistant Deputy Secretary for Safe and Drug- (b) Percentage of grantees that report Free Schools. Accession Number: 20080116–0172. Comment Date: 5 p.m. Eastern Time an increase in the percentage of mental [FR Doc. E8–1208 Filed 1–23–08; 8:45 am] health referrals for students that result on Monday, January 28, 2008. BILLING CODE 4000–01–P in mental health services being Docket Numbers: RP08–162–000. provided in the community. Applicants: Gas Transmission These measures constitute the Northwest Corporation. DEPARTMENT OF ENERGY Department’s indicators of success for Description: Gas Transmission this program. Consequently, we advise Federal Energy Regulatory Northwest Corporation submits an applicant for a grant under this Commission acceptance of a refund report reflecting program to give careful consideration to interruptible transportation revenue these measures in conceptualizing the Combined Notice of Filings #1 credits on GTN Coyote Spring Lateral approach and evaluation for its for the period from 11/1/06 through proposed project. Each grantee will be January 17, 2008. 10/31/07 the Refund Year. required to provide, in its annual Take notice that the Commission has Filed Date: 01/15/2008. performance and final reports, data received the following Natural Gas Accession Number: 20080116–0169. about its progress in meeting these Pipeline Rate and Refund Report filings: Comment Date: 5 p.m. Eastern Time measures. Docket Numbers: RP98–18–032. on Monday, January 28, 2008. Applicants: Iroquois Gas VII. Agency Contacts Docket Numbers: RP08–163–000. Transmission System, L.P. Applicants: Liberty Gas Storage, LLC. FOR FURTHER INFORMATION CONTACT: Description: Iroquois Gas Description: Liberty Gas Storage LLC Karen Dorsey, U.S. Department of Transmission System submits First submits First Revised Sheet 132 to FERC Education, 400 Maryland Avenue, SW., Revised Sheet 6L to FERC Gas Tariff Gas Tariff Original Volume 1. room 3E336, Washington, DC 20202– Revised Volume 1. Filed Date: 01/15/2008. 6450. Telephone: (202) 708–4674 or by Filed Date: 01/15/2008. Accession Number: 20080116–0168. e-mail: [email protected]. Accession Number: 20080116–0167. Comment Date: 5 p.m. Eastern Time If you use a TDD, call the FRS, toll Comment Date: 5 p.m. Eastern Time on Monday, January 28, 2008. free, at 1–800–877–8339. on Monday, January 28, 2008. Any person desiring to intervene or to Docket Numbers: RP99–301–197. VIII. Other Information protest in any of the above proceedings Applicants: ANR Pipeline Company. must file in accordance with Rules 211 Alternative Format: Individuals with Description: ANR Pipeline Company and 214 of the Commission’s Rules of disabilities can obtain this document submits an amendment to one NNS Practice and Procedure (18 CFR 385.211 and a copy of the application package in negotiated rate agreement between ANR and 385.214) on or before 5 p.m. Eastern an alternative format (e.g., Braille, large and Wisconsin Gas LLC Contract time on the specified comment date. It print, audiotape, or computer diskette) 107995. is not necessary to separately intervene on request to the program contact Filed Date: 01/15/2008. again in a subdocket related to a person listed under FOR FURTHER Accession Number: 20080116–0171. compliance filing if you have previously INFORMATION CONTACT in section VII in Comment Date: 5 p.m. Eastern Time intervened in the same docket. Protests this notice. on Monday, January 28, 2008. will be considered by the Commission Electronic Access to This Document: Docket Numbers: RP99–301–198. in determining the appropriate action to You can view this document, as well as Applicants: ANR Pipeline Company. be taken, but will not serve to make all other documents of this Department Description: ANR Pipeline Company protestants parties to the proceeding. published in the Federal Register, in submits an amendment to one NNS Anyone filing a motion to intervene or text or Adobe Portable Document negotiated rate agreement between ANR protest must serve a copy of that Format (PDF) on the Internet at the and Wisconsin Electric Power document on the Applicant. In reference following site: http://www.ed.gov/news/ Company. to filings initiating a new proceeding, fedregister. Filed Date: 01/15/2008. interventions or protests submitted on To use PDF you must have Adobe Accession Number: 20080116–0170. or before the comment deadline need Acrobat Reader, which is available free Comment Date: 5 p.m. Eastern Time not be served on persons other than the at this site. If you have questions about on Monday, January 28, 2008. Applicant. using PDF, call the U.S. Government Docket Numbers: RP03–36–029. The Commission encourages Printing Office (GPO), toll free, at 1– Applicants: Dauphin Island Gathering electronic submission of protests and 888–293–6498; or in the Washington, Partners. interventions in lieu of paper, using the DC, area at (202) 512–1530. Description: Dauphin Island FERC Online links at http:// You may also view this document in Gathering Partners submits Thirty Fifth www.ferc.gov. To facilitate electronic text or PDF at the following sites: Revised Sheet No. 9 et al. to FERC Gas service, persons with Internet access http://www.ed.gov/programs/ Tariff First Revised Volume 1. who will eFile a document and/or be dvpsafeschools/applicant.html, http:// Filed Date: 01/15/2008. listed as a contact for an intervenor www.sshs.samhsa.gov. Accession Number: 20080116–0166. must create and validate an Note: The official version of this document Comment Date: 5 p.m. Eastern Time eRegistration account using the is the document published in the Federal on Monday, January 28, 2008. eRegistration link. Select the eFiling

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link to log on and submit the Generator Status of Kelson Energy III Docket Numbers: ER06–615–017; intervention or protests. LLC. ER02–1656–035; ER07–1257–001; Persons unable to file electronically Filed Date: 01/14/2008. EL05–146–006; EL08–20–000. should submit an original and 14 copies Accession Number: 20080114–5083. Applicants: California Independent of the intervention or protest to the Comment Date: 5 p.m. Eastern Time System Operator Corporation. Federal Energy Regulatory Commission, on Monday, February 04, 2008. Description: California Independent 888 First St., NE., Washington, DC Take notice that the Commission System Operator Corp submits their 20426. received the following electric rate instant filing, in compliance with The filings in the above proceedings filings: FERC’s 12/20/07 Order. are accessible in the Commission’s Docket Numbers: ER96–1361–012; Filed Date: 12/28/2007. eLibrary system by clicking on the ER98–4138–008; ER99–2781–010; Accession Number: 20080110–0206. appropriate link in the above list. They ER98–3096–014; ER01–202–007; ER00– Comment Date: 5 p.m. Eastern Time are also available for review in the 1770–016; ER02–453–009; ER04–472– on Friday, January 18, 2008. Commission’s Public Reference Room in 006; ER07–903–001; ER05–1054–002. Docket Numbers: ER07–546–010. Washington, DC. There is an Applicants: Atlantic City Electric Applicants: ISO New England, Inc. eSubscription link on the Web site that Company; Potomac Electric Power Description: EnerNOC’s Request for enables subscribers to receive e-mail Company; Delmarva Power & Light Expedited Consideration and Limited notification when a document is added Company; Pepco Energy Services, Inc; Waiver of Qualification Process to a subscribed docket(s). For assistance Potomac Power Resources, LLC; Reimbursement Deposit Due Date under with any FERC Online service, please e- Conectiv Energy Supply, Inc.; Conectiv Market Rule 1. mail [email protected]. or Atlantic Generation, LLC; Conectiv Filed Date: 01/11/2008. call (866) 208–3676 (toll free). For TTY, Delmarva Generation LLC; Conectiv Accession Number: 20080111–5073. call (202) 502–8659. Bethlehem, LLC; Fauquier Landfill Gas, Comment Date: 5 p.m. Eastern Time LLC; Bethlehem Renewable Energy, on Tuesday, January 22, 2008. Nathaniel J. Davis, Sr., LLC; Eastern Landfill Gas, LLC Docket Numbers: ER07–1392–001. Deputy Secretary. Description: Atlantic City Electric Co et Applicants: PacifiCorp. [FR Doc. E8–1153 Filed 1–23–08; 8:45 am] al submit a Change of Status under Description: PacifiCorp submits First BILLING CODE 6717–01–P FERC Order No. 652 & 18 CFR Section Revised Service Agreement 357 et al for 35.27. Long-Term Firm Point-to-Point Filed Date: 01/10/2008. Transmission Service with PPM Energy DEPARTMENT OF ENERGY Accession Number: 20080110–5086. Inc. Comment Date: 5 p.m. Eastern Time Filed Date: 01/09/2008. Federal Energy Regulatory on Thursday, January 31, 2008. Commission Accession Number: 20080110–0109. Docket Numbers: ER98–4159–010; Comment Date: 5 p.m. Eastern Time Combined Notice of Filings #1 ER04–268–007; ER06–398–004; ER06– on Wednesday, January 30, 2008. 399–004. Docket Numbers: ER08–40–002 January 15, 2008. Applicants: Duquesne Light Applicants: PJM Interconnection, Take notice that the Commission Company; Duquesne Power, L.P.; L.L.C. received the following electric corporate Duquesne Keystone, LLC; Duquesne Description: PJM Interconnection, filings: Conemaugh, LLC. LLC responds to FERC’s 12/10/07 Docket Numbers: EC08–21–001. Description: Notice of Affiliate deficiency letter re an executed Applicants: Northern Indiana Public Treatment for Purposes of Affiliate interconnection service agreement with Service Company. Restrictions in 18 CFR 35.39 of Conectiv Delmarva Generation et al. Description: Supplement To The Duquesne Light Company, et al. Filed Date: 01/09/2008. Application of Northern Indiana Public Filed Date: 01/09/2008. Accession Number: 20080110–0111. Service Company. Accession Number: 20080109–5111. Comment Date: 5 p.m. Eastern Time Filed Date: 01/09/2008. Comment Date: 5 p.m. Eastern Time on Wednesday, January 30, 2008. Accession Number: 20080109–5154. on Wednesday, January 30, 2008. Docket Numbers: ER08–92–001. Comment Date: 5 p.m. Eastern Time Docket Numbers: ER99–1005–008. on Tuesday, January 22, 2008. Applicants: Kansas City Power & Applicants: Virginia Electric and Docket Numbers: EC08–35–000. Light Company. Power Company. Applicants: Aircraft Services Description: Application to amend Description: Virginia Electric and Corporation; Smoky Hills Wind Farm, market-based rate tariff of Kansas City Power Company dba Dominion Virginia LLC. Power & Light Company. Power submits its Responses to FERC Description: Smoky Hills Wind Farm, Filed Date: 01/10/2008. Staff’s 12/19/07 Deficiency Letter and LLC submits an application seeking Accession Number: 20080114–0035. on 1/11/08 submit an errata to this authorization for the acquisition by Comment Date: 5 p.m. Eastern Time filing. TexKan Wind of Smoky, LLC. on Thursday, January 31, 2008. Filed Date: 01/10/2008; 01/11/08. Filed Date: 01/08/2008. Docket Numbers: ER05–1052–003. Accession Number: 20080114–0034. Accession Number: 20080110–0026. Applicants: Southwest Power Pool, Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time Inc. on Thursday, January 31, 2008. on Tuesday, January 29, 2008. Description: Southwest Power Pool Docket Numbers: ER08–129–001. Take notice that the Commission Inc submits its refund report Applicants: Southern Operating received the following exempt demonstrating its compliance with the Companies. wholesale generator filings: refund directives of the October 4 Order. Description: Southern Company Docket Numbers: EG08–30–000. Filed Date: 12/31/2007. Services Inc agent for Alabama Power Applicants: Kelson Energy III LLC. Accession Number: 20080102–0248. Co et al submits a form of notice of Description: Notice of Self- Comment Date: 5 p.m. Eastern Time amendment in accordance with the Certification of Exempt Wholesale on Tuesday, January 22, 2008. questions posed by FERC.

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Filed Date: 01/10/2008. Description: Public Service Company Docket Numbers: ER08–436–000. Accession Number: 20080114–0033. of New Mexico submits an executed Applicants: Mirant Power Purchase, Comment Date: 5 p.m. Eastern Time long-term firm point-to-point LLC. on Thursday, January 31, 2008. transmission service agreement with Description: Mirant Power Purchase, Docket Numbers: ER08–212–001. Aragone Wind LLC. LLC submits a notice of cancellation of Applicants: NSTAR Electric Filed Date: 01/09/2008. FERC Electric Tariff, Original Volume 1, Company. Accession Number: 20080110–0009. effective 3/9/06. Description: NSTAR Electric Comment Date: 5 p.m. Eastern Time Filed Date: 01/11/2008. Company submits an executed on Wednesday, January 30, 2008. Accession Number: 20080114–0408. Amendment 1 to the Interconnection Docket Numbers: ER08–431–000. Comment Date: 5 p.m. Eastern Time Agreement, designated as Rate Schedule Applicants: American Electric Power on Friday, February 01, 2008. FERC 230, to become effective 1/13/08. Service Corporation. Docket Numbers: ER08–437–000. Filed Date: 01/09/2008. Description: AEP Operating Applicants: Mountainview Power Accession Number: 20080110–0008. Companies submits fifth revision to the Company LLC. Comment Date: 5 p.m. Eastern Time Interconnection and Local Delivery Description: Mountainview Power on Wednesday, January 30, 2008. Agreement with the Blue Ridge Power Company, LLC submits support for an Docket Numbers: ER08–314–001. Authority. updated cost of capital for use in Applicants: Bicent (California) Filed Date: 01/09/2008. billings under the Power Purchase Malburg LLC. Accession Number: 20080110–0010. Agreement with Southern California Comment Date: 5 p.m. Eastern Time Description: Bicent (California) Edison Co, effective 1/1/08. on Wednesday, January 30, 2008. Malburg LLC submits its 12/7/07 Filed Date: 01/11/2008. application for market-based rate Docket Numbers: ER08–432–000. Accession Number: 20080114–0418. authority etc. Applicants: Kentucky Power Comment Date: 5 p.m. Eastern Time Filed Date: 01/09/2008. Company. on Friday, February 01, 2008. Accession Number: 20080110–0108. Description: Kentucky Power Company submits its Revised Sheet 10 Take notice that the Commission Comment Date: 5 p.m. Eastern Time received the following electric securities on Tuesday, January 22, 2008. et al to its FERC Electric Tariff 52. Filed Date: 01/10/2008. filings: Docket Numbers: ER08–351–000. Accession Number: 20080114–0037. Docket Numbers: ES08–24–000. Applicants: Edison Sault Electric Comment Date: 5 p.m. Eastern Time Applicants: Startrans IO, L.L.C. Company. on Thursday, January 31, 2008. Description: Startrans IO, LLC’s Description: Edison Sault Electric Co Application Under Section 204 of the submits Supplemental Agreement 10 to Docket Numbers: ER08–433–000. Applicants: Midwest Independent Federal Power Act For Authority To the contract with Clover land Electric Transmission System. Issue Securities and Request for Cooperative, Inc. Description: Midwest Independent Expedited Consideration. Filed Date: 12/19/2007. Transmission System Operator Inc Filed Date: 01/11/2008. Accession Number: 20071221–0158. submits its Transmission to Accession Number: 20080111–5052. Comment Date: 5 p.m. Eastern Time Transmission Interconnection Comment Date: 5 p.m. Eastern Time on Wednesday, January 09, 2008. Agreement among Hossier Energy Rural on Friday, February 01, 2008. Docket Numbers: ER08–428–000. Electric Cooperative Inc et al. Any person desiring to intervene or to Applicants: Southern California Filed Date: 01/10/2008. protest in any of the above proceedings Edison Company. Accession Number: 20080114–0036. must file in accordance with Rules 211 Description: Southern California Comment Date: 5 p.m. Eastern Time and 214 of the Commission’s Rules of Edison Company submits the Amended on Thursday, January 31, 2008. Practice and Procedure (18 CFR 385.211 and Restated Cactus Avenue Wholesale Docket Numbers: ER08–434–000. and 385.214) on or before 5 p.m. Eastern Distribution Load Interconnection Applicants: Southern California time on the specified comment date. It Facilities Agreement 100 with the City Edison Company. is not necessary to separately intervene of Moreno Valley. Description: Southern California again in a subdocket related to a Filed Date: 01/08/2008. Edison Company submits a revised rate compliance filing if you have previously Accession Number: 20080110–0007. sheet to the Amended and Restated intervened in the same docket. Protests Comment Date: 5 p.m. Eastern Time Huntington Beach Generating Station will be considered by the Commission on Tuesday, January 29, 2008. Radial Lines Agreement with AES in determining the appropriate action to Docket Numbers: ER08–429–000. Huntington Beach LLC. be taken, but will not serve to make Applicants: Midwest Independent Filed Date: 01/11/2008. protestants parties to the proceeding. Transmission System Operator Inc. Accession Number: 20080114–0032. Anyone filing a motion to intervene or Description: Midwest Independent Comment Date: 5 p.m. Eastern Time protest must serve a copy of that Transmission System Op Inc. submits on Friday, February 01, 2008. document on the Applicant. In reference amended & restated large generator Docket Numbers: ER08–435–000. to filings initiating a new proceeding, interconnection agreement, First Applicants: Midwest Independent interventions or protests submitted on Revised Service Agreement 1849 under Transmission System Operator, Inc. or before the comment deadline need its FERC Electric Tariff, Third Revised Description: Midwest Independent not be served on persons other than the Volume 1. Transmission System Operator Inc Applicant. Filed Date: 01/09/2008. submits proposed revisions to its Open The Commission encourages Accession Number: 20080110–0011. Access Transmission and Energy electronic submission of protests and Comment Date: 5 p.m. Eastern Time Markets Tariff. interventions in lieu of paper, using the on Wednesday, January 30, 2008. Filed Date: 01/11/2008. FERC Online links at http:// Docket Numbers: ER08–430–000. Accession Number: 20080114–0031. www.ferc.gov. To facilitate electronic Applicants: Public Service Company Comment Date: 5 p.m. Eastern Time service, persons with Internet access of New Mexico. on Friday, February 01, 2008. who will eFile a document and/or be

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listed as a contact for an intervenor time for the filing of protests. DEPARTMENT OF ENERGY must create and validate an Accordingly, any person desiring to be eRegistration account using the heard concerning the blanket approvals Federal Energy Regulatory eRegistration link. Select the eFiling of issuances of securities or assumptions Commission link to log on and submit the of liability by Alpha Domestic, should [Docket No. EL08–34–000] intervention or protests. file a protest with the Federal Energy Persons unable to file electronically Regulatory Commission, 888 First Maryland Public Service Commission, should submit an original and 14 copies Street, NE., Washington, DC 20426, in Complainant, v. PJM interconnection, of the intervention or protest to the accordance with Rules 211 and 214 of L.L.C., Respondent; Notice of Federal Energy Regulatory Commission, the Commission’s Rules of Practice and Complaint 888 First St., NE., Washington, DC Procedure. 18 CFR 385.211, 385.214 20426. January 16, 2008. (2007). The filings in the above proceedings Take notice that on January 15, 2008, are accessible in the Commission’s Notice is hereby given that the the Maryland Public Service eLibrary system by clicking on the deadline for filing protests is February Commission filed a formal complaint appropriate link in the above list. They 15, 2008. against PJM Interconnection, L. L. C. (PJM) pursuant to sections 206, 306 and are also available for review in the Absent a request to be heard in Commission’s Public Reference Room in 309 of the Federal Power Act, 16 U.S.C. opposition to such blanket approvals by 824e, 825e, 825h (2000 & Supp. V 2005), Washington, DC. There is an the deadline above, Alpha Domestic is eSubscription link on the Web site that and Rule 206 of the Federal Energy authorized to issue securities and Regulatory Commission’s Rules of enables subscribers to receive e-mail assume obligations or liabilities as a notification when a document is added Practice and Procedure, 18 CFR 385.206 guarantor, indorser, surety, or otherwise (2007), to modify PJM’s market rules to a subscribed dockets(s). For in respect of any security of another assistance with any FERC Online that exempt certain generating resources person; provided that such issuance or service, please e-mail from mitigation when the market is assumption is for some lawful object [email protected]. or call structurally noncompetitive. The Maryland Public Service (866) 208–3676 (toll free). For TTY, call within the corporate purposes of Alpha Commission certifies that copies of the (202) 502–8659. Domestic, compatible with the public interest, and is reasonably necessary or complaint were served on the contacts Nathaniel J. Davis, Sr., appropriate for such purposes. for PJM as listed on the Commission’s Deputy Secretary. list of Corporate Officials. The Commission reserves the right to Any person desiring to intervene or to [FR Doc. E8–1154 Filed 1–23–08; 8:45 am] require a further showing that neither BILLING CODE 6717–01–P protest this filing must file in public nor private interests will be accordance with Rules 211 and 214 of adversely affected by continued the Commission’s Rules of Practice and DEPARTMENT OF ENERGY approvals of Alpha Domestic’s issuance Procedure (18 CFR 385.211, 385.214). of securities or assumptions of liability. Protests will be considered by the Federal Energy Regulatory Copies of the full text of the Director’s Commission in determining the Commission Order are available from the appropriate action to be taken, but will not serve to make protestants parties to [Docket Nos. ER08–14–000; ER08–14–001; Commission’s Public Reference Room, ER08–14–002] 888 First Street, NE., Washington, DC the proceeding. Any person wishing to 20426. The Order may also be viewed become a party must file a notice of Alpha Domestic Power Trading, LLC; on the Commission’s Web site at http:// intervention or motion to intervene, as Notice of Issuance of Order www.ferc.gov, using the eLibrary link. appropriate. The Respondent’s answer and all interventions, or protests must January 16, 2008. Enter the docket number excluding the last three digits in the docket number be filed on or before the comment date. Alpha Domestic Power Trading, LLC The Respondent’s answer, motions to filed to access the document. (Alpha Domestic) filed an application intervene, and protests must be served Comments, protests, and interventions for market-based rate authority, with on the Complainants. accompanying tariff. The proposed may be filed electronically via the The Commission encourages market-based rate tariff provides for the Internet in lieu of paper. See, 18 CFR electronic submission of protests and sale of energy and capacity at market- 385.2001(a) (1) (iii) and the instructions interventions in lieu of paper using the based rates. Alpha Domestic also on the Commission’s Web site under the ‘‘eFiling’’ link at http://www.ferc.gov. requested waivers of various ‘‘e-Filing’’ link. The Commission Persons unable to file electronically Commission regulations. In particular, strongly encourages electronic filings. should submit an original and 14 copies Alpha Domestic requested that the Kimberly D. Bose, of the protest or intervention to the Commission grant blanket approval Federal Energy Regulatory Commission, under 18 CFR Part 34 of all future Secretary. 888 First Street, NE., Washington, DC issuances of securities and assumptions [FR Doc. E8–1150 Filed 1–23–08; 8:45 am] 20426. of liability by Alpha Domestic. BILLING CODE 6717–01–P This filing is accessible on-line at On January 16, 2008, pursuant to http://www.ferc.gov, using the delegated authority, the Director, ‘‘eLibrary’’ link and is available for Division of Tariffs and Market review in the Commission’s Public Development—West, granted the Reference Room in Washington, DC. requests for blanket approval under Part There is an ‘‘eSubscription’’ link on the 34 (Director’s Order). The Director’s Web site that enables subscribers to Order also stated that the Commission receive e-mail notification when a would publish a separate notice in the document is added to a subscribed Federal Register establishing a period of docket(s). For assistance with any FERC

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Online service, please e-mail guarantor, indorser, surety, or otherwise Commission’s Procedural Rules (18 CFR [email protected], or call in respect of any security of another 385.214) a motion to intervene or notice (866) 208–3676 (toll free). For TTY, call person; provided that such issuance or of intervention and, pursuant to section (202) 502–8659. assumption is for some lawful object 157.205 of the Commission’s Comment Date: 5 p.m. Eastern Time within the corporate purposes of Santa Regulations under the Natural Gas Act on February 4, 2008. Maria, compatible with the public (18 CFR 157.205), a protest to the interest, and is reasonably necessary or request. If no protest is filed within the Kimberly D. Bose, appropriate for such purposes. time allowed therefore, the proposed Secretary. The Commission reserves the right to activity shall be deemed to be [FR Doc. E8–1149 Filed 1–23–08; 8:45 am] require a further showing that neither authorized effective the day after the BILLING CODE 6717–01–P public nor private interests will be time allowed for protest. If a protest is adversely affected by continued filed and not withdrawn within 30 days approvals of Santa Maria’s issuance of after the time allowed for filing a DEPARTMENT OF ENERGY securities or assumptions of liability. protest, the instant request shall be Federal Energy Regulatory Copies of the full text of the Director’s treated as an application for Commission Order are available from the authorization pursuant to section 7 of Commission’s Public Reference Room, the NGA.’’ [Docket Nos. ER08–275–000, ER08–275– 888 First Street, NE., Washington, DC 001] 20426. The Order may also be viewed Kimberly D. Bose, on the Commission’s Web site at Secretary. Santa Maria Cogen, Inc.; Notice of http://www.ferc.gov, using the eLibrary [FR Doc. E8–1151 Filed 1–23–08; 8:45 am] Issuance of Order link. Enter the docket number excluding BILLING CODE 6717–01–P January 16, 2008. the last three digits in the docket Santa Maria Cogen, Inc. (Santa Maria), number filed to access the document. filed an application for market-based Comments, protests, and interventions ENVIRONMENTAL PROTECTION rate authority, with accompanying tariff. may be filed electronically via the AGENCY The proposed market-based rate tariff Internet in lieu of paper. See, 18 CFR [EPA–HQ–RCRA–2007–0418, FRL 8520–7] provides for the sale of energy, capacity 385.2001(a) (1) (iii) and the instructions and ancillary services at market-based on the Commission’s Web site under the Agency Information Collection rates. Santa Maria also requested ‘‘e-Filing’’ link. The Commission Activities; Submission to OMB for waivers of various Commission strongly encourages electronic filings. Review and Approval; Comment regulations. In particular, Santa Maria Kimberly D. Bose, Request; Identification, Listing and Rulemaking Petitions (Renewal); EPA requested that the Commission grant Secretary. ICR Number 1189.20, OMB Control blanket approval under 18 CFR Part 34 [FR Doc. E8–1148 Filed 1–23–08; 8:45 am] of all future issuances of securities and Number 2050–0053 BILLING CODE 6717–01–P assumptions of liability by Santa Maria. AGENCY: Environmental Protection On January 16, 2008, pursuant to Agency. delegated authority, the Director, DEPARTMENT OF ENERGY Division of Tariffs and Market ACTION: Notice. Development—West, granted the Federal Energy Regulatory SUMMARY: In compliance with the requests for blanket approval under Part Commission Paperwork Reduction Act (PRA)(44 34 (Director’s Order). The Director’s [Docket No. CP08–50–000] U.S.C. 3501 et seq.), this document Order also stated that the Commission announces that an Information would publish a separate notice in the Trunkline Gas Company, LLC; Errata Collection Request (ICR) has been Federal Register establishing a period of Notice forwarded to the Office of Management time for the filing of protests. and Budget (OMB) for review and Accordingly, any person desiring to be January 16, 2008. approval. This is a request to renew an heard concerning the blanket approvals On January 14, 2008, the Commission existing approved collection. The ICR, of issuances of securities or assumptions issued a ‘‘Notice of Request Under which is abstracted below, describes the of liability by Santa Maria, should file Blanket Authorization (Notice) in the nature of the information collection and a protest with the Federal Energy above docketed proceeding. That Notice its estimated burden and cost. Regulatory Commission, 888 First is corrected as follows: DATES: Street, NE., Washington, DC 20426, in In paragraph three of the Notice, Additional comments may be accordance with Rules 211 and 214 of ‘‘Stephen T. Veach’’ should be replaced submitted on or before February 25, the Commission’s Rules of Practice and with ‘‘Stephen T. Veatch,’’ ‘‘Trunkline 2008. Procedure. 18 CFR 385.211, 385.214 Gas Company’’ should be replaced with ADDRESSES: Submit your comments, (2007). The Commission encourages the ‘‘Trunkline Gas Company, LLC’’ and Mr. referencing docket ID number EPA–HQ– electronic submissions of protests using Veatch’s e-mail address should be RCRA–2007–0418, to (1) EPA online the FERC Online link at http:// changed to ‘‘[email protected].’’ using www.regulations.gov (our www.ferc.gov. On Page 2, the notice inadvertently preferred method), by e-mail to rcra- Notice is hereby given that the has a ‘‘comment date of February 4, [email protected], or by mail to: EPA deadline for filing protests is February 2008.’’ Please disregard the February 4, Docket Center, Environmental 15, 2008. 2008 comment date. The notice Protection Agency, RCRA Docket Absent a request to be heard in correctly states and provides that: ‘‘Any (2822T), 1200 Pennsylvania Avenue, opposition to such blanket approvals by person or the Commission’s Staff may, NW., Washington, DC 20460, and (2) the deadline above, Santa Maria is within 60 days after the issuance of the OMB by mail to: Office of Information authorized to issue securities and instant notice by the Commission, file and Regulatory Affairs, Office of assume obligations or liabilities as a pursuant to Rule 214 of the Management and Budget (OMB),

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Attention: Desk Officer for EPA, 725 conduct or sponsor the collection of The ICR provides a detailed 17th Street, NW., Washington, DC information while this submission is explanation of the Agency’s estimate, 20503. pending at OMB. An agency may not which is only briefly summarized here: FOR FURTHER INFORMATION CONTACT: conduct or sponsor, and a person is not Respondents/Affected Entities: Chichang Chen, Office of Solid Waste required to respond to, a collection of Business/industries subject to the (5304P), Environmental Protection information, unless it displays a regulations under 40 CFR Parts 260 and Agency, 1200 Pennsylvania Ave., NW., currently valid OMB control number. 261. Washington, DC 20460; telephone The OMB control numbers for EPA’s Estimated Number of Respondents: number: (703) 308–0441; fax number: regulations in title 40 of the CFR, after 2,535. (703) 308–0514; e-mail address: appearing in the Federal Register when Frequency of Response: On occasion. [email protected]. approved, are listed in 40 CFR part 9, Estimated Total Annual Hour Burden: are displayed either by publication in 73,752 hours. SUPPLEMENTARY INFORMATION: EPA has the Federal Register or by other Estimated Total Annualized Cost submitted the following ICR to OMB for appropriate means, such as on the Burden: $11,917,572 (includes review and approval according to the related collection instrument or form, if $9,239,315 annualized O&M costs and procedures prescribed in 5 CFR 1320.12. applicable. The display of OMB control $2,678,259 annualized labor costs). On September 7, 2007 (72 FR 51439), numbers in certain EPA regulations is Changes in the Estimates: There is a EPA sought comments on this ICR consolidated in 40 CFR part 9. decrease of 2,177 hours in the total pursuant to 5 CFR 1320.8(d). EPA estimated burden currently identified in received no comments on this ICR. Any Abstract: Under the authority of the the OMB Inventory of Approved ICR additional comments on this ICR should Resource Conservation and Recovery Burdens. The burden decrease is an be submitted to EPA and OMB within Act of 1976 (RCRA), as amended, adjustment to the existing estimates 30 days of this notice. Congress directed the U.S. based on data gathered through EPA has established a public docket Environmental Protection Agency (EPA) consultations with EPA Regional and for this ICR under Docket ID No. EPA– to implement a comprehensive program State offices and the regulated HQ–RCRA–2007–0418, which is for the safe management of hazardous community, not due to program available for online viewing at waste. In addition, Congress wrote that changes. www.regulations.gov, or in person ‘‘[a]ny person may petition the viewing at the RCRA Docket in the EPA Administrator for the promulgation, Dated: January 17, 2008. Docket Center (EPA/DC), EPA West, amendment or repeal of any regulation’’ Sara Hisel-McCoy, Room 3334, 1301 Constitution Ave., under RCRA (section 7004(a)). Director, Collection Strategies Division. NW., Washington, DC. The EPA/DC 40 CFR Parts 260 and 261 contain [FR Doc. E8–1182 Filed 1–23–08; 8:45 am] Public Reading Room is open from 8:30 provisions that allow regulated entities BILLING CODE 6560–50–P a.m. to 4:30 p.m., Monday through to apply for petitions, variances, Friday, excluding legal holidays. The exclusions, and exemptions from telephone number for the Reading Room various RCRA requirements. In this ICR, ENVIRONMENTAL PROTECTION is 202–566–1744, and the telephone EPA presents a comprehensive AGENCY number for the RCRA Docket is 202– description of these paperwork 566–0270. requirements and estimates the total [EPA–HQ–RCRA–2007–0417; FRL–8520–6] Use EPA’s electronic docket and annual burden and cost to respondents comment system at and the government. Agency Information Collection www.regulations.gov, to submit or view Burden Statement: The annual public Activities; Submission to OMB for public comments, access the index reporting burden for this ICR is Review and Approval; Comment listing of the contents of the docket, and estimated to average 27 hours per Request; Hazardous Waste Generator to access those documents in the docket response, and the annual recordkeeping Standards (Renewal), EPA ICR Number that are available electronically. Once in burden for this ICR is estimated to 0820.10, OMB Control Number 2050– the system, select ‘‘docket search,’’ then average 2 hours per response. 0035 key in the docket ID number identified above. Please note that EPA’s policy is Burden means the total time, effort, or AGENCY: Environmental Protection that public comments, whether financial resources expended by persons Agency. submitted electronically or in paper, to generate, maintain, retain, or disclose ACTION: Notice. will be made available for public or provide information to or for a viewing at www.regulations.gov as EPA Federal agency. This includes the time SUMMARY: In compliance with the receives them and without change, needed to review instructions; develop, Paperwork Reduction Act (44 U.S.C. unless the comment contains acquire, install, and utilize technology 3501 et seq.), this document announces copyrighted material, Confidential and systems for the purposes of that an Information Collection Request Business Information (CBI), or other collecting, validating, and verifying (ICR) has been forwarded to the Office information whose public disclosure is information, processing and of Management and Budget (OMB) for restricted by statute. For further maintaining information, and disclosing review and approval. This is a request information about the electronic docket, and providing information; adjust the to renew an existing approved go to www.regulations.gov. existing ways to comply with any collection. This ICR is scheduled to Title: Identification, Listing and previously applicable instructions and expire on January 31, 2008. Rulemaking Petitions (Renewal). requirements which have subsequently Under OMB regulations, the Agency ICR Number: EPA ICR Number changed; train personnel to be able to may continue to conduct or sponsor the 1189.20, OMB Control Number 2050– respond to a collection of information; collection of information while this 0053. search data sources; complete and submission is pending at OMB. This ICR ICR Status: This ICR is scheduled to review the collection of information; describes the nature of the information expire on January 31, 2008. Under OMB and transmit or otherwise disclose the collection and its expected burden and regulations, the Agency may continue to information. cost.

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DATES: Additional comments may be copyrighted material, Confidential needed to help EPA determine whether submitted on or before February 25, Business Information (CBI), or other tank systems are operated in a manner 2008. information whose public disclosure is that is fully protective of human health ADDRESSES: Submit your comments, restricted by statute. For further and the environment and to ensure that referencing docket number EPA–HQ– information about the electronic docket, releases to the environment are RCRA–2007–0417, to (1) EPA online go to www.regulations.gov. managed quickly and efficiently. using http://www.regulations.gov (our Title: Hazardous Waste Generator Additionally, this information preferred method), by e-mail to rcra- Standards (Renewal). contributes to EPA’s goal of preventing ICR numbers: EPA ICR No. 820.10, [email protected], or by mail to: EPA contamination of the environment from OMB Control No. 2050–0035. Docket Center, Environmental hazardous waste accumulation ICR Status: This ICR is scheduled to practices, including contamination from Protection Agency, Resource expire on January 31, 2008. Under OMB Conservation and Recovery Act (RCRA) equipment leaks and process vents. regulations, the Agency may continue to Export information is needed to ensure Docket, Mail Code 2822T, 1200 conduct or sponsor the collection of Pennsylvania Ave., NW., Washington, that:(1) Foreign governments consent to information while this submission is U.S. exported wastes; (2) exported waste DC 20460, and (2) OMB at: Office of pending at OMB. An Agency may not Information and Regulatory Affairs, is actually managed at facilities listed in conduct or sponsor, and a person is not the original notifications; and (3) Office of Management and Budget required to respond to, a collection of (OMB), Attention: Desk Officer for EPA, documents are available for compliance information, unless it displays a audits and enforcement actions. In 725 17th Street, NW., Washington, DC currently valid OMB control number. 20503. general, these requirements contribute The OMB control numbers for EPA’s to EPA’s goal of preventing FOR FURTHER INFORMATION CONTACT: Jim regulations in title 40 of the CFR, after contamination of the environment. O’Leary, Office of Solid Waste, Mail appearing in the Federal Register when Burden Statement: The average public Code 5304P, U.S. Environmental approved, are listed in 40 CFR part 9, reporting under this collection of Protection Agency, 1200 Pennsylvania are displayed either by publication in information is estimated to be 2.78 Ave., NW., Washington, DC 20460; the Federal Register or by other hours per respondent. The average telephone number: (703) 308–8827; fax appropriate means, such as on the public recordkeeping burden under this number: (703) 308–0514; e-mail address: related collection instrument or form, if collection of information is estimated to [email protected]. applicable. The display of OMB control be 0.05 hours. Burden means the total SUPPLEMENTARY INFORMATION: EPA has numbers in certain EPA regulations is time, effort, or financial resources submitted the following ICR to OMB for consolidated in 40 CFR part 9. expended by persons to generate, review and approval according to the Abstract: Under the Resource maintain, retain, or disclose or provide procedures prescribed in 5 CFR 1320.12. Conservation and Recovery Act (RCRA), information to or for a Federal agency. On September 7, 2007 (72 FR 51437), as amended, Congress directed the U.S. This includes the time needed to review EPA sought comments on this ICR Environmental Protection Agency to instructions; develop, acquire, install, pursuant to 5 CFR 1320.8(d). EPA implement a comprehensive program and utilize technology and systems for received no comments on this ICR. for the safe management of hazardous the purposes of collecting, validating, EPA has established a public docket waste. The core of the national waste and verifying information, processing for this ICR under Docket ID No. EPA– management program is the regulation and maintaining information, and HQ–RCRA–2007–0417, which is of hazardous waste from generation to disclosing and providing information; available for online viewing at transport to treatment and eventual adjust the existing ways to comply with www.regulations.gov, or in person disposal, or from ‘‘cradle to grave.’’ any previously applicable instructions viewing at the RCRA Docket in the EPA This ICR addresses the following and requirements which have Docket Center (EPA/DC), EPA West, categories of informational requirements subsequently changed; train personnel Room 3334, 1301 Constitution Ave., in part 262: pre-transport requirements to be able to respond to a collection of NW., Washington, DC. The EPA/DC for both large (LQG) and small (SQG) information; search data sources; Public Reading Room is open from 8:30 quantity generators; storage complete and review the collection of a.m. to 4:30 p.m., Monday through requirements in tanks, containment information; and transmit or otherwise Friday, excluding legal holidays. The buildings and drip pads; air emission disclose the information. telephone number for the Reading Room standards requirements for LQGs Respondents/Affected Entities: Private is 202–566–1744, and the telephone (referenced in 40 CFR Part 265, Subparts Sector. number for the RCRA Docket is 202– AA and BB); recordkeeping and Estimated Number of Respondents: 566–0270. reporting requirements for LQGs and 101,500. Use EPA’s electronic docket and SQGs; and export requirements for Frequency of Response: Occasionally comment system at LQGs and SQGs (i.e., notification of and biennially. www.regulations.gov, to submit or view intent to export and annual reporting). Estimated Total Annual Hour Burden: public comments, access the index This collection of information is 286,866. listing of the contents of the docket, and necessary to help generators and EPA: Estimated Total Annual Cost: to access those documents in the docket (1) Identify and understand the waste $11,321,660. This includes $22,770 in that are available electronically. Once in streams being generated and the hazards annualized capital costs, $15,473 in the system, select ‘‘docket search,’’ then associated with them; (2) determine O&M costs, and $11,283,417 in key in the docket ID number identified whether employees have acquired the Respondent Labor costs. above. Please note that EPA’s policy is necessary expertise to perform their Changes in the Estimates: There is a that public comments, whether jobs; and (3) determine whether LQGs decrease of 166,217 annual hours in the submitted electronically or in paper, have developed adequate procedures to total estimated burden currently will be made available for public respond to unplanned sudden or non- identified in the OMB Inventory of viewing at www.regulations.gov as EPA sudden releases of hazardous waste or Approved ICR Burden of 453,083 hours. receives them and without change, hazardous constituents to air, soil, or This change primarily results from a unless the comment contains surface water. This information is also decrease of 22,882 facilities, as well as

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a change in assumptions associated with 20460; telephone number: 202–343– information, unless it displays a such categories as containment 9623; fax number: 202–343–2801; e-mail currently valid OMB control number. buildings, and contingency planning address: pastorkovich.anne- The OMB control numbers for EPA’s resulting in the reduction of additional [email protected]. regulations in title 40 of the CFR, after burden hours. SUPPLEMENTARY INFORMATION: EPA has appearing in the Federal Register when Dated: January 17, 2008. submitted the following ICR to OMB for approved, are listed in 40 CFR part 9, are displayed either by publication in Sara Hisel-McCoy, review and approval according to the the Federal Register or by other Director, Collection Strategies Division. procedures prescribed in 5 CFR 1320.12. On November 20, 2007 (72 FR 65327), appropriate means, such as on the [FR Doc. E8–1184 Filed 1–23–08; 8:45 am] related collection instrument or form, if EPA sought comments on this ICR BILLING CODE 6560–50–P applicable. The display of OMB control pursuant to 5 CFR 1320.8(d). EPA numbers in certain EPA regulations is received no comments. Any additional consolidated in 40 CFR part 9. ENVIRONMENTAL PROTECTION comments on this ICR should be Abstract: This ICR covers AGENCY submitted to EPA and OMB within 30 recordkeeping and reporting days of this notice. [EPA–HQ–OAR–2007–1121; FRL 8519–7] requirements for motor vehicle diesel EPA has established a public docket fuel and non-road, locomotive, and Agency Information Collection for this ICR under Docket ID No. EPA– marine diesel fuel. It also includes Activities; Submission to OMB for HQ–OAR–2007–1121, which is recordkeeping and reporting associated Review and Approval; Fuel Quality available for online viewing at with the placement of codes on dyed Regulations for Diesel Fuel Sold in www.regulations.gov, or in person diesel fuel (the dye is required under 2001 & Later Years; for Tax-Exempt viewing at the Air and Radiation Docket IRS regulations). The main purpose for (Dyed) Highway Diesel Fuel; & in the EPA Docket Center (EPA/DC), recordkeeping and reporting is to ensure Nonroad Locomotive & Marine Diesel EPA West, Room 3334, 1301 compliance with the regulations at 40 Fuel (Renewal); EPA ICR No. 1718.08, Constitution Ave., NW., Washington, CFR Part 80, Subpart I—Motor Vehicle, OMB Control No. 2060–0308 DC. The EPA/DC Public Reading Room Non-Road, Locomotive and Marine is open from 8:30 a.m. to 4:30 p.m., Diesel Fuel. Because the diesel fuel AGENCY: Environmental Protection Monday through Friday, excluding legal regulations are written to permit several Agency. holidays. The telephone number for the types of flexibility, periodic reporting ACTION: Notice. Reading Room is 202–566–1744, and the (annual and quarterly) is necessary in telephone number for the Air Docket is order for EPA to monitor compliance. SUMMARY: In compliance with the 202–566–1742. Most reporting is mandatory. Parties Paperwork Reduction Act (PRA) (44 Use EPA’s electronic docket and may assert a claim of business U.S.C. 3501 et seq.), this document comment system at confidentiality and submissions covered announces that an Information www.regulations.gov, to submit or view by such a claim will be treated in Collection Request (ICR) has been public comments, access the index accordance with procedures at 40 CFR forwarded to the Office of Management listing of the contents of the docket, and Part 2 and established Agency and Budget (OMB) for review and to access those documents in the docket procedures. approval. This is a request to renew an that are available electronically. Once in With this ICR the Office of Air and existing approved collection. The ICR, the system, select ‘‘docket search,’’ then Radiation (OAR) is also seeking which is abstracted below, describes the key in the docket ID number identified permission to collect applications from nature of the information collection and above. Please note that EPA’s policy is refiners, importers, and independent its estimated burden and cost. that public comments, whether laboratories in order to permit them to DATES: Additional comments may be submitted electronically or in paper, use performance-based test methods for submitted on or before February 25, will be made available for public measuring sulfur in diesel fuel and 2008. viewing at www.regulations.gov as EPA detecting the presence of a marker in receives them and without change, diesel sold as heating oil. This was ADDRESSES: Submit your comments, unless the comment contains referencing Docket ID No. EPA–HQ– previously covered by EPA ICR Number copyrighted material, confidential OAR–2007–1121, to (1) EPA online 2180.02 (2060–0566), but since the business information (CBI), or other using www.regulations.gov (our entire burden in that ICR is related to information whose public disclosure is motor vehicle and non-road diesel fuel, preferred method), by email to restricted by statute. For further we are including it in this ICR and will [email protected] or by information about the electronic docket, terminate 2180.02 upon approval. mail to: EPA Docket Center, go to www.regulations.gov. Burden Statement: The annual public Environmental Protection Agency, Air Title: Fuel Quality Regulations for reporting and recordkeeping burden for and Radiation Docket, 1200 Diesel Fuel Sold in 2001 & Later Years; this collection of information is Pennsylvania Ave., NW., Mail Code: for Tax-Exempt (Dyed) Highway Diesel estimated to average 0.62 hours per 2822T, Washington, DC 20460, and (2) Fuel; & Nonroad Locomotive & Marine response. Burden means the total time, OMB by mail to: Office of Information Diesel Fuel (Renewal). effort, or financial resources expended and Regulatory Affairs, Office of ICR numbers: EPA ICR No. 1718.08, by persons to generate, maintain, retain, Management and Budget (OMB), OMB Control No. 2060–0308. or disclose or provide information to or Attention: Desk Officer for EPA, 725 ICR Status: This ICR is scheduled to for a Federal agency. This includes the 17th Street, NW., Washington, DC expire on January 31, 2008. Under OMB time needed to review instructions; 20503. regulations, the Agency may continue to develop, acquire, install, and utilize FOR FURTHER INFORMATION CONTACT: conduct or sponsor the collection of technology and systems for the purposes Anne-Marie C. Pastorkovich, Attorney/ information while this submission is of collecting, validating, and verifying Advisor, Environmental Protection pending at OMB. An Agency may not information, processing and Agency, 1200 Pennsylvania Ave., NW., conduct or sponsor, and a person is not maintaining information, and disclosing Mail Code: 6406J, Washington, DC required to respond to, a collection of and providing information; adjust the

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existing ways to comply with any forwarded to the Office of Management www.regulations.gov, to submit or view previously applicable instructions and and Budget (OMB) for review and public comments, access the index requirements which have subsequently approval. This is a request to renew an listing of the contents of the docket, and changed; train personnel to be able to existing approved collection. The ICR, to access those documents in the docket respond to a collection of information; which is abstracted below, describes the that are available electronically. Once in search data sources; complete and nature of the information collection and the system, select ‘‘docket search,’’ then review the collection of information; its estimated burden and cost. key in the docket ID number identified and transmit or otherwise disclose the DATES: Additional comments may be above. Please note that EPA’s policy is information. submitted on or before February 25, that public comments, whether Respondents/Affected Entities: 2008. submitted electronically or in paper, will be made available for public Businesses and other for-profits in the ADDRESSES: Submit your comments, viewing at www.regulations.gov as EPA private sector. referencing Docket ID No. EPA–HQ– receives them and without change, Estimated Number of Respondents: OA–2007–0706, to: (1) EPA online using unless the comment contains 4,875. www.regulations.gov (our preferred copyrighted material, Confidential Frequency of Response: Annual, method), by e-mail to Business Information (CBI), or other quarterly, and/or on occasion. [email protected], or by mail to: EPA information whose public disclosure is Estimated Total Annual Hour Burden: Docket Center, Office of Environmental restricted by statute. For further 264,150. Information Docket (2822T), information about the electronic docket, Estimated Total Annual Cost: Environmental Protection Agency, 1200 go to www.regulations.gov. $2,626,000 (all purchased services). Pennsylvania Ave., NW., Washington, Title: State Small Business Stationary Changes in the Estimates: There is a DC 20460, and (2) OMB by mail to: Source Technical and Environmental net decrease of 48,083 hours and Office of Information and Regulatory Compliance Assistance Programs $5,874,000 in the total estimated burden Affairs, Office of Management and (SBTCP) Annual Reporting Form currently identified in the OMB Budget (OMB), Attention: Desk Officer Inventory of Approved ICR Burdens. (Renewal). for EPA, 725 17th Street, NW., ICR numbers: EPA ICR No. 1748.05, The change in burden hours reflects a Washington, DC 20503. decrease of 51,683 hours due to agency OMB Control No. 2060–0337. FOR FURTHER INFORMATION CONTACT: ICR Status: This ICR is scheduled to adjustment and an increase of 3,600 Angela Suber, Office of Small and hours due to agency discretion. The expire on November 30, 2007. Under Disadvantaged Business Utilization, OMB regulations, the Agency may additional 3,600 hours cover 1230T, Environmental Protection performance-based test methods continue to conduct or sponsor the Agency, 1200 Pennsylvania Ave., NW., collection of information while this previously counted under ICR 2180.02. Washington, DC 20460; telephone submission is pending at OMB. The The reduction in hours is due mostly to number: 202–566–2827; fax number: OMB control numbers for EPA’s reporting requirements that applied at 202–566–1505; e-mail address: regulations in title 40 of the CFR, after the start of the program that are no [email protected], Environmental appearing in the Federal Register when longer applicable to most parties (e.g., Protection Agency, 1200 Pennsylvania approved, are listed in 40 CFR part 9, initial registration, application for Ave., NW., Washington, DC 20460. are displayed either by publication in flexibilities like small refiner status). SUPPLEMENTARY INFORMATION: EPA has the Federal Register or by other Dated: January 17, 2008. submitted the following ICR to OMB for appropriate means, such as on the Sara Hisel-McCoy, review and approval according to the related collection instrument or form, if Director, Collection Strategies Division. procedures prescribed in 5 CFR 1320.12. applicable. The display of OMB control [FR Doc. E8–1185 Filed 1–23–08; 8:45 am] On September 25, 2007, (72 FR 54444), numbers in certain EPA regulations is BILLING CODE 6560–50–P EPA sought comments on this ICR consolidated in 40 CFR part 9. pursuant to 5 CFR 1320.8(d). EPA Abstract: As part of the Clean Air Act received no comments during the Amendments of 1990, the U.S. Congress ENVIRONMENTAL PROTECTION comment period. Any additional included, as part of Section 507, the AGENCY comments on this ICR should be requirement that each state establish a submitted to EPA and OMB within 30 Small Business Stationary Source [EPA–HQ–OA–2007–0706; FRL–8520–1] days of this notice. Technical and Environmental Agency Information Collection EPA has established a public docket Compliance Assistance Program to Activities; Submission to OMB for for this ICR under Docket ID No. EPA– assist small businesses in complying with the Act. These programs are Review and Approval; Comment HQ–OA–2007–0706, which is available generally known as state Small Business Request; State Small Business for online viewing at Environmental Assistance Programs Stationary Source Technical and www.regulations.gov, or in person (SBEAP). EPA must provide the Environmental Compliance Assistance viewing at the Office of Environmental Congress with periodic reports from the Programs (SBTCP) Annual Reporting Information (OEI) Docket in the EPA EPA Small Business Ombudsman (SBO) Form (Renewal); EPA ICR No. 1748.05, Docket Center (EPA/DC), EPA West, on these programs, including their OMB Control No. 2060–0337 Room 3334, 1301 Constitution Ave., NW., Washington, DC. The EPA/DC effectiveness, difficulties encountered, AGENCY: Environmental Protection Public Reading Room is open from 8:30 and other relevant information. Each Agency. a.m. to 4:30 p.m., Monday through state assistance program will submit ACTION: Notice. Friday, excluding legal holidays. The requested information to EPA for telephone number for the Reading Room compilation and summarization. This SUMMARY: In compliance with the is 202–566–1744, and the telephone collection of information is mandatory Paperwork Reduction Act (PRA) (44 number for the OEI Docket is 202–566– under Section 507(a), (d), and (e) of the U.S.C. 3501 et seq.), this document 1752. Clean Air Act as amended in 1990, announces that an Information Use EPA’s electronic docket and Public Law 101–549, November 15, Collection Request (ICR) has been comment system at 1990. This Act directs EPA to monitor

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the state SBEAPs and to periodically complete the information requested in number: (202) 564–2625; E-mail report to Congress on the effectiveness the previous form and an additional 26 address: [email protected]. of these programs. This responsibility hours to complete the new program SUPPLEMENTARY INFORMATION: EPA has has been delegated to the EPA SBO. outcome measures recommended by the submitted the following ICR to OMB for Information in the annual Report to state 507 programs. review and approval according to the Congress is aggregated and is not of a Dated: January 17, 2008. procedures prescribed in 5 CFR 1320.12. confidential nature. None of the Sara Hisel-McCoy, On August 6, 2007 (72 FR 43636), EPA information collected by this action sought comments on this ICR pursuant results in/or requests sensitive Director, Collection Strategies Division. [FR Doc. E8–1186 Filed 1–23–08; 8:45 am] to 5 CFR 1320.8(d). EPA received two information of any nature from the comments during the comment period, BILLING CODE 6560–50–P states. which are addressed in the ICR. Any Burden Statement: The annual public additional comments on this ICR should reporting and recordkeeping burden for be submitted to EPA and OMB within this collection of information is ENVIRONMENTAL PROTECTION AGENCY 30 days of this notice. estimated to average 80 hours per EPA has established a public docket response. Burden means the total time, [EPA–HQ–SFUND–2004–0006; FRL–8519–9] for this ICR under Docket ID No. EPA– effort, or financial resources expended HQ–SFUND–2004–0006, which is Agency Information Collection by persons to generate, maintain, retain, available for online viewing at Activities; Submission to OMB for or disclose or provide information to or www.regulations.gov, or in person for a Federal agency. This includes the Review and Approval; Comment viewing at the Superfund Docket in the time needed to review instructions; Request; Community Right-to-Know EPA Docket Center (EPA/DC), EPA develop, acquire, install, and utilize Reporting Requirements of the West, Room 3334, 1301 Constitution technology and systems for the purposes Emergency Planning and Community Ave., NW., Washington, DC. The EPA/ of collecting, validating, and verifying Right-to-Know Act (Renewal); EPA ICR DC Public Reading Room is open from information, processing and No. 1352.11, OMB Control No. 2050– 8:30 a.m. to 4:30 p.m., Monday through maintaining information, and disclosing 0072 Friday, excluding legal holidays. The and providing information; adjust the telephone number for the Reading Room existing ways to comply with any AGENCY: Environmental Protection is 202–566–1744, and the telephone previously applicable instructions and Agency. number for the Superfund Docket is requirements which have subsequently ACTION: Notice. 202–566–0276. changed; train personnel to be able to SUMMARY: Use EPA’s electronic docket and respond to a collection of information; In compliance with the comment system at search data sources; complete and Paperwork Reduction Act (PRA) (44 www.regulations.gov, to submit or view review the collection of information; U.S.C. 3501 et seq.), this document public comments, access the index and transmit or otherwise disclose the announces that an Information listing of the contents of the docket, and information. Collection Request (ICR) has been Respondents/Affected Entities: State forwarded to the Office of Management to access those documents in the docket Small Business Stationary Source and Budget (OMB) for review and that are available electronically. Once in Technical and Environmental approval. This is a request to renew an the system, select ‘‘docket search,’’ then Compliance Assistance Programs existing approved collection. The ICR, key in the docket ID number identified (SBTCP). which is abstracted below, describes the above. Please note that EPA’s policy is Estimated Number of Respondents: nature of the information collection and that public comments, whether 53. its estimated burden and cost. submitted electronically or in paper, Frequency of Response: Annual. DATES: Additional comments may be will be made available for public Estimated Total Annual Hour Burden: submitted on or before February 25, viewing at www.regulations.gov as EPA 4,240. 2008. receives them and without change, Estimated Total Annual Cost: unless the comment contains ADDRESSES: Submit your comments, $144,997, includes $0 annualized copyrighted material, Confidential referencing Docket ID No. EPA–HQ– capital or O&M costs. Business Information (CBI), or other Changes in the Estimates: There is an SFUND–2004–0006, to (1) EPA online information whose public disclosure is increase of 2,120 hours in the total using www.regulations.gov (our restricted by statute. For further estimated burden currently identified in preferred method), by e-mail to information about the electronic docket, the OMB Inventory of Approved ICR [email protected], or by mail go to www.regulations.gov. Burdens. The new total estimate of 80 to: EPA Docket Center, Environmental Title: Community Right-to-Know hours per state to complete the Annual Protection Agency, Superfund Docket Reporting Requirements of the Survey Form presented in this ICR (Mail Code 2822T), 1200 Pennsylvania Emergency Planning and Community represents an increase of 40 hours from Ave., NW., Washington, DC 20460, and Right-to-Know Act (Renewal). what was estimated to complete the (2) OMB by mail to: Office of ICR numbers: EPA ICR No. 1352.11, previous form. A workgroup comprising Information and Regulatory Affairs, OMB Control No. 2050–0072. representatives from several state 507 Office of Management and Budget ICR Status: This ICR is scheduled to programs reviewed the reporting form (OMB), Attention: Desk Officer for EPA, expire on January 31, 2008. Under OMB and the burden estimates for this ICR. 725 17th Street, NW., Washington, DC regulations, the Agency may continue to The group determined that the burden 20503. conduct or sponsor the collection of to complete the previous form was FOR FURTHER INFORMATION CONTACT: Sicy information while this submission is underestimated and the addition of new Jacob, Office of Emergency pending at OMB. An Agency may not outcome measures to the revised form Management, 5104A, Environmental conduct or sponsor, and a person is not will require additional time to track and Protection Agency, 1200 Pennsylvania required to respond to, a collection of report. The new burden estimate Ave., NW., Washington, DC 20460; information, unless it displays a represents an increase to 54 hours to telephone number: (202) 564–8019; fax currently valid OMB control number.

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The OMB control numbers for EPA’s CFR 370.30 is estimated to be one hour sections 311 and 312 than was regulations in title 40 of the CFR, after per request. The average burden for estimated in previous years. appearing in the Federal Register when managing and maintaining the reports Dated: January 17, 2008. approved, are listed in 40 CFR part 9, and MSDS files is estimated to be 32.50 Sara Hisel-McCoy, are displayed either by publication in hours. The average burden for the Federal Register or by other maintaining and updating a 312 Director, Collection Strategies Division. appropriate means, such as on the database is estimated to be 320 hours. [FR Doc. E8–1187 Filed 1–23–08; 8:45 am] related collection instrument or form, if Burden means the total time, effort, or BILLING CODE 6560–50–P applicable. The display of OMB control financial resources expended by persons numbers in certain EPA regulations is to generate, maintain, retain, or disclose consolidated in 40 CFR part 9. or provide information to or for a ENVIRONMENTAL PROTECTION Abstract: The authority for these Federal agency. This includes the time AGENCY requirements is sections 311 and 312 of needed to review instructions; develop, [EPA–HQ–OECA–2007–0032; FRL–8519–8] the Emergency Planning and acquire, install, and utilize technology Community Right-to-Know Act and systems for the purposes of Agency Information Collection (EPCRA), 1986 (42 U.S.C. 11011, 11012). collecting, validating, and verifying Activities; Submission to OMB for EPCRA Section 311 requires owners and information, processing and Review and Approval; Comment operators of facilities subject to OSHA maintaining information, and disclosing Request; NSPS for Portland Cement Hazard Communication Standard (HCS) and providing information; adjust the Plants (Renewal), EPA ICR Number to submit a list of chemicals or Material existing ways to comply with any 1051.10, OMB Control Number 2060– Safety Data Sheets (MSDSs) (for those previously applicable instructions and 0025 chemicals that exceed thresholds, requirements which have subsequently specified in 40 CFR part 370) to the changed; train personnel to be able to AGENCY: Environmental Protection State Emergency Response Commission respond to a collection of information; Agency. (SERC), Local Emergency Planning search data sources; complete and ACTION: Notice. Committee (LEPC) and the local fire review the collection of information; department (LFD) with jurisdiction over and transmit or otherwise disclose the SUMMARY: In compliance with the their facility. This is a one-time information. Paperwork Reduction Act (44 U.S.C. requirement unless a new facility Respondents/Affected Entities: Any 3501 et seq.), this document announces becomes subject to the regulations or facility owner or operator that is that an Information Collection Request updating the information by facilities required to prepare or have a material (ICR) has been forwarded to the Office that are already covered by the safety data sheet (MSDS) for a of Management and Budget (OMB) for regulations. EPCRA section 312 requires hazardous chemical under OSHA review and approval. This is a request owners and operators of facilities Hazardous Communication Standard to renew an existing approved subject to OSHA HCS to submit an and if the chemical meets the threshold collection. The ICR which is abstracted inventory form (for those chemicals that level specified in 40 CFR part 370. Some below describes the nature of the exceed the thresholds, specified in 40 facilities include but are not limited to, collection and the estimated burden and CFR part 370) to the SERC, LEPC, and chemical, petroleum, warehouse, food, cost. LFD with jurisdiction over their facility. paper mills, etc. DATES: Additional comments may be This form is to be submitted on March Estimated Number of Respondents: submitted on or before February 25, 1 of each year, on the inventory of 353,552 2008. chemicals in the previous calendar year. Frequency of Response: Annually, on ADDRESSES: Burden Statement: The annual occasion Submit your comments, average burden for MSDS reporting Estimated Total Annual Hour Burden: referencing docket ID number EPA–HQ– (basic and additional reporting) is 3,792,432 OECA–2007–0032, to (1) EPA online estimated at 6.75 hours for new Estimated Total Annual Cost: using www.regulations.gov (our facilities. Additional reporting, which is $207,454,485, includes $6,389,900 preferred method), or by e-mail to to submit revised and new MSDSs for annualized capital or O&M costs. [email protected], or by mail to: EPA currently covered and new facilities is Changes in the Estimates: There is an Docket Center (EPA/DC), Environmental 2 hours. The average burden for new increase of 1,763,732 hours in the total Protection Agency, Enforcement and and currently covered facilities to estimated burden currently identified in Compliance Docket and Information submit MSDS upon request is 1 hour. the OMB Inventory of Approved ICR Center, mail code 2822T, 1200 The average burden to comply with Tier Burdens. EPA had contacted small, Pennsylvania Avenue, NW., II inventory reporting for small, medium medium and large size facilities in both Washington, DC 20460, and (2) OMB at: and large manufacturers is 8, 80 and 120 manufacturing and non-manufacturing Office of Information and Regulatory hours, respectively. The average burden sectors to develop this burden. In Affairs, Office of Management and to comply with Tier II inventory previous ICRs, the Agency only Budget (OMB), Attention: Desk Officer reporting for small, medium and large contacted small and medium size for EPA, 725 17th Street, NW., non-manufacturers is 6, 20, and 40 facilities and used a weighted average. Washington, DC 20503. hours, respectively. There are no For this ICR, EPA applied the burden FOR FURTHER INFORMATION CONTACT: recordkeeping requirements for facilities reported by each sector that we Leonard Lazarus, Compliance under EPCRA sections 311 and 312, contacted. There is a decrease of Assessment and Media Programs although it is assumed that they will 209,948 in the estimated universe from Division (CAMPD), Office of maintain a copy of annual reports to use the previous ICR. EPA believes that the Compliance, (2223A), Environmental for future filings. The recordkeeping for universe estimates in this ICR are more Protection Agency, 1200 Pennsylvania MSDSs is mandated under OSHA rules. accurate since most States now collect Ave., NW., Washington, DC 20460; The average burden for state and local Tier II electronically so they were able telephone number: (202) 564–6369; fax governments to respond to requests for to provide EPA with a better estimate of number: (202) 564–0050; e-mail address: MSDSs or Tier II information under 40 the number of facilities subject to [email protected].

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SUPPLEMENTARY INFORMATION: EPA has and displayed either by publication in policies set forth in title 40, chapter 1, submitted the following ICR to OMB for the Federal Register or by other part 2, subpart B—Confidentiality of review and approval according to the appropriate means, such as on the Business Information (see 40 CFR 2; 41 procedures prescribed in 5 CFR 1320.12. related collection instrument or form, if FR 36902, September 1, 1976; amended On March 9, 2007 (72 FR 10735), EPA applicable. The display of OMB control by 43 FR 40000, September 8, 1978; 43 sought comments on this ICR pursuant numbers in certain EPA regulations is FR 42251, September 20, 1978; 44 FR to 5 CFR 1320.8(d). EPA received no consolidated in 40 CFR part 9. 17674, March 23, 1979). comments. Any additional comments on Abstract: Particulate matter emissions Burden Statement: The annual public this ICR should be submitted to EPA from portland cement plants cause or reporting and recordkeeping burden for and OMB within 30 days of this notice. contribute to air pollution that may this collection of information is EPA has established a public docket reasonably be anticipated to endanger estimated to average 56 hours per for this ICR under docket ID number public health or welfare. Therefore, response. Burden means the total time, EPA–HQ–OECA–2007–0032, which is NSPS were promulgated for this source effort, or financial resources expended available for public viewing online at category. by persons to generate, maintain, retain, The control of emissions of http://www.regulations.gov, in person or disclose or provide information to or particulate matter from portland cement viewing at the Enforcement and for a Federal agency. This includes the plants requires not only the installation Compliance Docket in the EPA Docket time needed to review instructions; of properly designed equipment, but Center (EPA/DC), EPA West, Room develop, acquire, install, and utilize also the operation and maintenance of 3334, 1301 Constitution Avenue, NW., technology and systems for the purposes that equipment. Emissions of particulate Washington, DC. The EPA Docket of collecting, validating, and verifying Center Public Reading Room is open matter from portland cement plants are information, processing and from 8:30 a.m. to 4:30 p.m., Monday the result of operation of kilns, clinker maintaining information, and disclosing through Friday, excluding legal coolers, raw mill systems, raw mill and providing information; adjust the holidays. The telephone number for the dryers, raw material storage, clinker existing ways to comply with any Reading Room is (202) 566–1744, and storage, finished product storage, previously applicable instructions and the telephone number for the conveyor transfer points, bagging and requirements which have subsequently Enforcement and Compliance Docket is bulk loading and unloading systems. changed; train personnel to be able to (202) 566–1752. These standards rely on the capture of Use EPA’s electronic docket and particulate emissions by a baghouse or respond to a collection of information; comment system at http:// electrostatic precipitator. search data sources; complete and www.regulations.gov, to submit or view In order to ensure compliance with review the collection of information; public comments, access the index these standards, adequate reporting and and transmit or otherwise disclose the listing of the contents of the docket, and recordkeeping is necessary. In the information. to access those documents in the docket absence of such information, Respondents/Affected Entities: that are available electronically. Once in enforcement personnel would be unable Portland Cement Plants. the system, select ‘‘docket search,’’ then to determine whether the standards are Estimated Number of Respondents: key in the docket ID number identified being met on a continuous basis, as 118. above. Please note that EPA’s policy is required by the Clean Air Act. Frequency of Response: Initially and that public comments, whether All reports are sent to the delegated Semiannually. submitted electronically or in paper, state or local authority. In the event that Estimated Total Annual Hour Burden: will be made available for public there is no such delegated authority, the 13,806 hours. viewing at http://www.regulations.gov, reports are sent directly to the EPA as EPA receives them and without regional office. Notifications are used to Estimated Total Annual Cost: change, unless the comment contains inform the Agency or delegated $1,413,511, which includes capital/ copyrighted material, confidential authority when a source becomes startup costs of $37,000, O&M costs of business information (CBI), or other subject to the standard. The reviewing $495,600, and labor costs of $880,911. information whose public disclosure is authority may then inspect the source to Changes in the Estimates: There is no restricted by statute. For further check if the pollution control devices change in the labor hours or cost in this information about the electronic docket, are properly installed and operated. ICR compared to the previous ICR. This go to www.regulations.gov. Performance test reports are needed as is due to two considerations. First, the Title: NSPS for Portland Cement these are the Agency’s record of a regulations have not changed over the Plants (Renewal). source’s initial capability to comply past three years and are not anticipated ICR Numbers: EPA ICR Number with the emission standard and note the to change over the next three years. 1051.10, OMB Control Number 2060– operating conditions under which Secondly, the growth rate for the 0025. compliance was achieved. The quarterly industry is very low, negative or non- ICR Status: This ICR is scheduled to reports are used for problem existent, so there is no significant expire on January 31, 2008. Under OMB identification, as a check on source change in the overall burden. regulations, the Agency may continue to operation and maintenance, and for Since there are no changes in the conduct or sponsor the collection of compliance determinations. The regulatory requirements and there is no information while his submission is standard also requires semiannual significant industry growth, the labor pending at OMB. An Agency may not reporting of deviations from monitored hours and cost figures in the previous conduct or sponsor, and a person is not opacity, as this is a good indicator of the ICR are used in this ICR and there is no required to respond to, a collection of source’s compliance status. change in burden to industry. information unless it displays a Responses to this information currently valid OMB control number. collection are mandatory (40 CFR part Dated: January 17, 2008. The OMB control numbers for EPA’s 60, subpart F). Any information Sara Hisel-McCoy, regulations in title 40 of the CFR, after submitted to the Agency for which a Director, Collection Strategies Division. appearing in the Federal Register when claim of confidentiality is made will be [FR Doc. E8–1188 Filed 1–23–08; 8:45 am] approved, are listed in 40 CFR part 9, safeguarded according to the Agency BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION March 24, 2008. Technical comments I. Summary of Information About the AGENCY should be in writing and must be Integrated Risk Information System (IRIS) [FRL–8520–5; Docket ID No. EPA–HQ–ORD– received by EPA by March 24, 2008. 2007–1095] EPA intends to submit comments from IRIS is a database that contains the public received by this date to potential adverse human health effects Draft Toxicological Review of Versar prior to the workshop for information that may result from Chlordecone (Kepone): In Support of consideration by the panel. chronic (or lifetime) exposure to specific the Summary Information in the ADDRESSES: The peer-review workshop chemical substances found in the Integrated Risk Information System environment. The database (available on (IRIS) will be held at the Westin Alexandria, 400 Courthouse Square, Alexandria, the Internet at http://www.epa.gov/iris) contains qualitative and quantitative AGENCY: Environmental Protection Virginia 22314. Versar is organizing, health effects information for more than Agency (EPA). convening, and conducting the peer- 540 chemical substances that may be ACTION: Notice of Peer-Review review workshop. To attend the used to support the first two steps Workshop and Public Comment Period. workshop, register by April 1, 2008 via (hazard identification and dose- the Internet at http://epa.versar.com/ SUMMARY: EPA is announcing that response evaluation) of a risk Versar, under a contract with EPA, will kepone. You may also register by calling assessment process. When supported by convene an independent panel of Versar at 703–750–3000 extension 582, available data, the database provides experts and organize and conduct an or sending an email to Gina Casciano at oral reference doses (RfDs) and external peer-review workshop to [email protected]. You must inhalation reference concentrations review the external review draft register by April 1, 2008 and indicate (RfCs) for chronic health effects, and document entitled, ‘‘Toxicological whether you wish to provide brief oral oral slope factors and inhalation unit Review of Chlordecone (Kepone): In comments at the workshop. risks for carcinogenic effects. Combined Support of Summary Information on the The draft ‘‘Toxicological Review of with specific exposure information, Integrated Risk Information System Chlordecone (Kepone): In Support of government and private entities can use (IRIS)’’ (EPA/635/R–07/004). The EPA is Summary Information on the Integrated IRIS data to help characterize public also announcing a public comment Risk Information System (IRIS)’’ is health risks of chemical substances in a period for the draft document. EPA available via the Internet on the site-specific situation and thereby intends to consider comments and National Center for Environmental support risk management decisions recommendations from the public and Assessment’s (NCEA) home page under designed to protect public health. the expert panel meeting when EPA the Recent Additions and the Data and II. Workshop Information finalizes the draft document. Publications menus at http:// The public comment period and the Members of the public may attend the www.epa.gov/ncea. A limited number of external peer-review workshop are workshop may attend the workshop as paper copies are available from NCEA’s separate processes that provide observers, and there will be a limited Information Management Team; opportunities for all interested parties to time for oral comments from the public. comment on the document. EPA intends telephone: 703–347–8561; facsimile: Please let Versar know if you wish to to forward public comments, submitted 703–347–8691. If you are requesting a make comments during the workshop in accordance with this notice, to the paper copy, please provide your name, prior to the meeting by registering on external peer-review panel prior to the mailing address, and the document title. the Web site at http://epa.versar.com/ workshop for their consideration. Comments may be submitted kepone and indicating your intent to EPA is releasing this draft document electronically via www.regulations.gov, make oral comments. Space is limited, solely for the purpose of pre- by mail, by facsimile, or by hand and reservations will be accepted on a dissemination peer review under delivery/courier. Please follow the first-come, first-served basis. applicable information quality detailed instructions as provided in the guidelines. This document has not been III. How to Submit Technical SUPPLEMENTARY INFORMATION section of Comments to the Docket at formally disseminated by EPA. It does this notice. not represent and should not be www.regulations.gov construed to represent any Agency FOR FURTHER INFORMATION CONTACT: For Submit your comments, identified by policy or determination. information on the peer review Docket ID No. EPA–HQ–ORD2007–1095 Versar invites the public to register to workshop, contact Gina Casciano at by one of the following methods: attend this workshop as observers. In Versar; telephone: 703–750–3000 • http://www.regulations.gov: Follow addition, Versar invites the public to extension 582 or e-mail the on-line instructions for submitting give brief oral comments at the [email protected]. For information comments. workshop regarding the draft document on the public comment period, contact • E-mail: [email protected]. under review. The draft document and the Office of Environmental Information • Fax: 202–566–1753. EPA’s peer review charge are available Docket; telephone: 202–566–1752; • Mail: Office of Environmental via the Internet on NCEA’s home page facsimile: 202–566–1753; or e-mail: Information (OEI) Docket (Mail Code: under the Recent Additions and the [email protected]. If you have 2822T), U.S. Environmental Protection Data and Publications menus at http:// questions about the document, contact Agency, 1200 Pennsylvania Ave., NW., www.epa.gov/ncea. When finalizing the Kathleen Newhouse, IRIS Staff, National Washington, DC 20460. The phone draft document, EPA intends to Center for Environmental Assessment, number is 202–566–1752. consider any public comments that EPA (8601P), U.S. EPA, 1200 Pennsylvania • Hand Delivery: The OEI Docket is receives in accordance with this notice. Avenue, NW., Washington, DC 20460; located in the EPA Headquarters Docket DATES: The peer-review panel workshop telephone: 703–347–8641; e-mail: Center, EPA West Building, Room 3334, will be held on April 10, 2008 at 9 a.m. [email protected]. 1301 Constitution Ave., NW., The 60-day public comment period Washington, DC. The EPA Docket begins on January 24, 2008 and ends SUPPLEMENTARY INFORMATION: Center Public Reading Room is open

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from 8:30 a.m. to 4:30 p.m., Monday available, e.g., CBI or other information yosemite.epa.gov/r5/ardcorre.nsf/ through Friday, excluding legal whose disclosure is restricted by statute. permits. holidays. The telephone number for the Certain other material, such as Public Reading Room is 202–566–1744. copyrighted material, will be publicly FOR FURTHER INFORMATION CONTACT: Such deliveries are only accepted available only in hard copy. Publicly Pamela Blakley, Chief, Air Permits during the docket’s normal hours of available docket materials are available Section, Air Programs Branch, Air and operation, and special arrangements either electronically in Radiation Division, EPA, Region 5, 77 should be made for deliveries of boxed www.regulations.gov or in hard copy at West Jackson Boulevard, Chicago, information. the OEI Docket in the EPA Headquarters Illinois 60604, telephone (312) 886– If you provide comments by mail or Docket Center. 4447. hand delivery, please submit one Dated: January 17, 2008. unbound original with pages numbered SUPPLEMENTARY INFORMATION: The Act consecutively, and three copies of the Rebecca Clark, affords EPA a 45-day period to review, comments. For attachments, provide an Deputy Director, National Center for and object to as appropriate, operating index, number pages consecutively with Environmental Assessment. permits proposed by state permitting the comments, and submit an unbound [FR Doc. E8–1224 Filed 1–23–08; 8:45 am] authorities. Section 505(b)(2) of the Act original and three copies. BILLING CODE 6560–50–P authorizes any person to petition the Instructions: Direct your comments to EPA Administrator within 60 days after Docket ID No. EPA–HQ–ORD–2007– the expiration of the EPA review period 1095. Please ensure that your comments ENVIRONMENTAL PROTECTION to object to a state operating permit if are submitted within the specified AGENCY EPA has not done so. A petition must comment period. Comments received be based only on objections to the after the closing date will be marked [Regional Docket Nos. V–2006–4, FRL– permit that were raised with reasonable ‘‘late,’’ and may only be considered if 8520–2] specificity during the public comment time permits. It is EPA’s policy to period provided by the state, unless the include all comments it receives in the Clean Air Act Operating Permit petitioner demonstrates that it was public docket without change and to Program; Petition for Objection to impracticable to raise issues during the make the comments available online at State Operating Permit for Wisconsin comment period, or the grounds for the www.regulations.gov, including any Public Service Corporation—Weston issues arose after this period. Generating Station personal information provided, unless a On November 20, 2006, EPA received comment includes information claimed AGENCY: Environmental Protection a petition from the Sierra Club to be Confidential Business Information Agency (EPA). requesting that EPA object to the Title (CBI) or other information whose ACTION: Notice of final order on petition V operating permit for Weston. The disclosure is restricted by statute. Do petition alleged that: (1) The permit not submit information that you to object to Clean Air Act operating permit. limits evidence that can be used by consider to be CBI or otherwise citizens to demonstrate noncompliance; protected through www.regulations.gov SUMMARY: This document announces (2) the permit omits operating or e-mail. The www.regulations.gov Web that the EPA Administrator has limitations applicable to Unit 3; (3) the site is an ‘‘anonymous access’’ system, responded to a petition asking EPA to permit fails to include a compliance which means EPA will not know your object to a Clean Air Act (Act) operating schedule for the plant’s continuing identity or contact information unless permit issued by the Wisconsin violations of the heat and energy limits you provide it in the body of your Department of Natural Resources. in the prevention of significant comment. If you send an e-mail Specifically, the Administrator granted deterioration (‘‘PSD’’) permit for Unit 3; comment directly to EPA without going in part and denied in part the petition (4) the permit contains insufficient through www.regulations.gov, your submitted by the Sierra Club to object to monitoring for particulate matter e-mail address will be automatically emissions from Units 1, 2, and 3; (5) the captured and included as part of the the operating permit for Wisconsin permit fails to require sufficient comment that is placed in the public Public Service Corporation—Weston monitoring to ensure compliance with docket and made available on the Generating Station (Weston). visible emission limits on sources B11, Internet. If you submit an electronic Pursuant to section 505(b)(2) of the B12, and B13; (6) revisions to the permit comment, EPA recommends that you Act, a Petitioner may seek in the United constitute a change in the method of include your name and other contact States Court of Appeals for the operation without going through PSD information in the body of your appropriate circuit judicial review of permitting; (7) Units 1 and 2 underwent comment and with any disk or CD–ROM those portions of a petition which EPA major modifications without PSD permit you submit. If EPA cannot read your denied. Any petition for review shall be review; and (8) Weston Generating comment due to technical difficulties filed within 60 days from the date this and cannot contact you for clarification, notice appears in the Federal Register, Station has unaddressed opacity EPA may not be able to consider your pursuant to section 307 of the Act. violations. comment. Electronic files should avoid ADDRESSES: You may review copies of On December 19, 2007, the the use of special characters, any form the final order, the petition, and other Administrator issued an order granting of encryption, and be free of any defects supporting information at the EPA, in part and denying in part the petition. or viruses. For additional information Region 5 Office, 77 West Jackson The order explains the reasons behind about EPA’s public docket visit the EPA Boulevard, Chicago, Illinois 60604. If EPA’s conclusion. Docket Center homepage at http:// you wish to examine these documents, Dated: January 11, 2008. www.epa.gov/epahome/dockets.htm. you should make an appointment at Docket: All documents in the docket least 24 hours before visiting day. Gary Gulezian, are listed in the www.regulations.gov Additionally, the final order for the Acting Regional Administrator, Region 5. index. Although listed in the index, Weston petition is available [FR Doc. E8–1221 Filed 1–23–08; 8:45 am] some information is not publicly electronically at: http:// BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION the lawsuit styled Sierra Club, et al. v. or writing Ms. Smith at the above AGENCY Browner, et al., No. LR–C–99–114. address. Please contact Ms. Smith to DATES: Comments must be submitted in schedule an inspection. [FRL–8520–4] writing to EPA on or before February 25, FOR FURTHER INFORMATION CONTACT: 2008. Diane Smith at (214) 665–2145. Clean Water Act Section 303(d): Final ADDRESSES: Agency Action and Availability of 4 Comments on the 4 TMDLs SUPPLEMENTARY INFORMATION: In 1999, Total Maximum Daily Loads (TMDL) in should be sent to Diane Smith, five Arkansas environmental groups, the Arkansas Environmental Protection Specialist, Sierra Club, Federation of Fly Fishers, Water Quality Protection Division, U.S. Crooked Creek Coalition, Arkansas Fly AGENCY: Environmental Protection Environmental Protection Agency Fishers, and Save our Streams Agency (EPA). Region 6, 1445 Ross Ave., Dallas, TX (plaintiffs), filed a lawsuit in Federal ACTION: Notice of availability. 75202–2733 or e-mail: Court against the EPA, styled Sierra [email protected]. For further Club, et al. v. Browner, et al., No. LR– SUMMARY: This notice announces the information, contact Diane Smith at C–99–114. Among other claims, final agency action of 4 TMDLs and the (214) 665–2145 or fax 214.665.7373. The plaintiffs alleged that EPA failed to availability of the administrative record administrative record files for the 4 establish Arkansas TMDLs in a timely files for comment on 4 TMDLs and the TMDLs are available for public manner. calculations for these TMDLs prepared inspection at this address as well. by EPA Region 6 for waters listed in the Documents from the administrative EPA Seeks Comment on 4 TMDLs State of Arkansas, under section 303(d) record files may be viewed at http:// By this notice EPA is seeking of the Clean Water Act (CWA). These www.epa.gov/earth1r6/6wq/npdes/ comment on the following 4 TMDLs for TMDLs were completed in response to tmdl/index.htm, or obtained by calling waters located within Arkansas basins:

Segment-Reach Waterbody name Pollutant

11140109–013 ...... Holly Creek ...... Fecal coliform. 11140109–013 ...... Holly Creek ...... E. coli. 11140109–033 ...... Mine Creek ...... Fecal coliform. 11140109–033 ...... Mine Creek ...... E. coli.

EPA requests that the public provide ENVIRONMENTAL PROTECTION Environmental Protection Specialist, to EPA any water quality related data AGENCY Water Quality Protection Division, U.S. Environmental Protection Agency and information that may be relevant to [FRL–8520–3] the calculations for the 4 TMDLs. EPA Region 6, 1445 Ross Ave., Dallas, TX will review all data and information Clean Water Act Section 303(d): Final 75202–2733. Please contact Ms. Smith submitted during the public comment Agency Action on 3 Arkansas Total to schedule an inspection. period and revise the TMDLs where Maximum Daily Loads (TMDLs) FOR FURTHER INFORMATION CONTACT: appropriate. EPA will then forward the Diane Smith at (214) 665–2145. AGENCY: Environmental Protection TMDLs to the Arkansas Department of Agency (EPA). SUPPLEMENTARY INFORMATION: In 1999, Environmental Quality (ADEQ). The ACTION: Notice of availability. five Arkansas environmental groups, the ADEQ will incorporate the TMDLs into Sierra Club, Federation of Fly Fishers, its current water quality management SUMMARY: This notice announces the Crooked Creek Coalition, Arkansas Fly plan. final agency action on 3 TMDLs Fishers, and Save our Streams Dated: January 14, 2008. established by EPA Region 6 for waters (plaintiffs), filed a lawsuit in Federal listed in the State of Arkansas, under William K. Honker, Court against the EPA, styled Sierra section 303(d) of the Clean Water Act Club, et al. v. Browner, et al., No. LR– P.E., Deputy Director, Water Quality (CWA). These TMDLs were completed C–99–114. Among other claims, Protection Division, EPA Region 6. in response to the lawsuit styled Sierra plaintiffs alleged that EPA failed to [FR Doc. E8–1193 Filed 1–23–08; 8:45 am] Club, et al. v. Browner, et al., No. LR– establish Arkansas TMDLs in a timely BILLING CODE 6560–50–P C–99–114. Documents from the manner. administrative record files for the final 3 TMDLs, including TMDL calculations EPA Takes Final Agency Action on 3 may be viewed at http://www.epa.gov/ TMDLs region6/6wq/npdes/tmdl/index.htm. By this notice EPA is taking final ADDRESSES: The administrative record agency action on the following 3 TMDLs files for these 3 TMDLs may be obtained for waters located within the State of by writing or calling Ms. Diane Smith, Arkansas:

Segment-Reach Waterbody name Pollutant

08020203–007 ...... Blackfish Bayou ...... Siltation/Turbidity. 08020203–005 ...... Blackfish Bayou ...... Siltation/Turbidity. 08020203–003 ...... Blackfish Bayou ...... Siltation/Turbidity.

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EPA requested the public to provide Potomac Yard (South Bldg.), 2777 S. the use of special characters, any form EPA with any significant data or Crystal Dr., Arlington, Virginia 22202. of encryption, and be free of any defects information that might impact the 3 Comments. Submit your comments, or viruses. TMDLs at Federal Register Notice: identified by docket identification (ID) Docket. All documents in the docket Volume 72, Number 241, pages 71409— number EPA–HQ–OPP–2008–0012, by are listed in a docket index available in 71410 (December 17, 2007). No one of the following methods: regulations.gov. To access the electronic comments were received. • Federal eRulemaking Portal: http:// docket, go to http:// www.regulations.gov. Follow the on-line www.regulations.gov, select ‘‘Advanced Dated: January 14, 2008. instructions for submitting comments. Search,’’ then ‘‘Docket Search.’’ Insert William K. Honker, • Mail: Office of Pesticide Programs the docket ID number where indicated P.E., Deputy Director, Water Quality (OPP) Regulatory Public Docket (7502P), and select the ‘‘Submit’’ button. Follow Protection Division, EPA Region 6. Environmental Protection Agency, 1200 the instructions on the regulations.gov [FR Doc. E8–1195 Filed 1–23–08; 8:45 am] Pennsylvania Ave., NW, Washington, website to view the docket index or BILLING CODE 6560–50–P DC 20460–0001. access available documents. Although • Delivery: OPP Regulatory Public listed in a docket index, some Docket (7502P), Environmental information is not publicly available, ENVIRONMENTAL PROTECTION Protection Agency, Rm. S–4400, One e.g., CBI or other information whose AGENCY Potomac Yard (South Bldg.), 2777 S. disclosure is restricted by statute. [EPA–HQ–OPP–2008–0012; FRL–8348–6] Crystal Dr., Arlington, VA. Deliveries Certain other material, such as are only accepted during the Docket’s copyrighted material, is not placed on FIFRA Scientific Advisory Panel; normal hours of operation (8:30 a.m. to the Internet and will be publicly Notice of Public Meeting 4 p.m., Monday through Friday, available only in hard copy form. excluding legal holidays). Special Publicly available docket materials are AGENCY: Environmental Protection arrangements should be made for available in the electronic docket at Agency (EPA). deliveries of boxed information. The http://www.regulations.gov, or, if only ACTION: Notice. Docket Facility telephone number is available in hard copy, at the OPP (703) 305–5805. SUMMARY: There will be a 4–day meeting Regulatory Public Docket in Rm. S– Instructions. Direct your comments to 4400, One Potomac Yard (South Bldg.), of the Federal Insecticide, Fungicide, docket ID number EPA–HQ–OPP–2008– and Rodenticide Act Scientific Advisory 2777 S. Crystal Dr., Arlington, VA. The 0012. If your comments contain any hours of operation of this Docket Panel (FIFRA SAP) to consider and information that you consider to be CBI review the Endocrine Disruptor Facility are from 8:30 a.m. to 4 p.m., or otherwise protected, please contact Monday through Friday, excluding legal Screening Program (EDSP) Proposed the DFO listed under FOR FURTHER Tier-1 Screening Battery. holidays. The Docket Facility telephone INFORMATION CONTACT to obtain special number is (703) 305–5805. DATES: The meeting will be held on instructions before submitting your Nominations: Nominations, requests March 25–28, 2008, from approximately comments. EPA’s policy is that all to present oral comments, and requests 8:30 a.m. to 5:00 p.m, Eastern Standard comments received will be included in for special accommodations. Submit Time. the docket without change and may be nominations to serve as an ad hoc Comments. The Agency encourages made available on-line at http:// member of the FIFRA SAP, requests for written comments be submitted by www.regulations.gov, including any special seating accommodations, or March 11, 2008 and requests for oral personal information provided, unless requests to present oral comments to the comments be submitted by March 18, the comment includes information DFO listed under FOR FURTHER 2008. Written comments and requests to claimed to be Confidential Business INFORMATION CONTACT. make oral comments are accepted until Information (CBI) or other information FOR FURTHER INFORMATION CONTACT: Jim the date of the meeting but anyone whose disclosure is restricted by statute. Downing, DFO, Office of Science submitting written comments after Do not submit information that you Coordination and Policy (7201M), March 11, 2008 should contact the consider to be CBI or otherwise Environmental Protection Agency, 1200 Designated Federal Official (DFO) listed protected through regulations.gov or e- Pennsylvania Ave., NW., Washington, under FOR FURTHER INFORMATION mail. The regulations.gov website is an DC 20460–0001; telephone number: CONTACT. For additional instructions, ‘‘anonymous access’’ system, which (202) 564–8432; fax number: (202) 564– SUPPLEMENTARY see Unit I.C. of the means EPA will not know your identity 8382; e-mail addresses: INFORMATION. or contact information unless you [email protected]. Nominations. Nominations of provide it in the body of your comment. candidates to serve as ad hoc members If you send an e-mail comment directly SUPPLEMENTARY INFORMATION: of the FIFRA SAP for this meeting to EPA without going through I. General Information should be provided on or before regulations.gov, your e-mail address February 7, 2008. will be automatically captured and A. Does this Action Apply to Me? Special accommodations. For included as part of the comment that is This action is directed to the public information on access or services for placed in the docket and made available in general. This action may, however, be individuals with disabilities, and to on the Internet. If you submit an of particular interest to persons who are request accommodation of a disability, electronic comment, EPA recommends or may be required to conduct testing of please contact the DFO listed under FOR that you include your name and other chemical substances under the Federal FURTHER INFORMATION CONTACT at least contact information in the body of your Food, Drug, and Cosmetic Act (FFDCA), 10 days prior to the meeting to give EPA comment and with any disk or CD-ROM FIFRA, and the Food Quality Protection as much time as possible to process you submit. If EPA cannot read your Act of 1996 (FQPA). Since other entities your request. comment due to technical difficulties may also be interested, the Agency has ADDRESSES: The meeting will be held at and cannot contact you for clarification, not attempted to describe all the specific the Environmental Protection Agency, EPA may not be able to consider your entities that may be affected by this Conference Center - Lobby Level, One comment. Electronic files should avoid action. If you have any questions

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regarding the applicability of this action included on the meeting agenda. committee to a Federal department or to a particular entity, consult the DFO Requests to present oral comments will agency or their employment by a listed under FOR FURTHER INFORMATION be accepted until the date of the meeting Federal department or agency except the CONTACT. and, to the extent that time permits, the EPA. Other factors considered during Chair of the FIFRA SAP may permit the the selection process include B. What Should I Consider as I Prepare presentation of oral comments at the My Comments for EPA? availability of the potential panel meeting by interested persons who have member to fully participate in the When submitting comments, not previously requested time. The panel’s reviews, absence of any conflicts remember to: request should identify the name of the of interest or appearance of lack of 1. Identify the document by docket ID individual making the presentation, the impartiality, independence with respect number and other identifying organization (if any) the individual will to the matters under review, and lack of information (subject heading, Federal represent, and any requirements for bias. Although financial conflicts of Register date and page number). audiovisual equipment (e.g., overhead interest, the appearance of lack of 2. Follow directions. The Agency may projector, 35 mm projector, chalkboard). impartiality, lack of independence, and ask you to respond to specific questions Oral comments before FIFRA SAP are bias may result in disqualification, the or organize comments by referencing a limited to approximately 5 minutes absence of such concerns does not Code of Federal Regulations (CFR) part unless prior arrangements have been assure that a candidate will be selected or section number. made. In addition, each speaker should to serve on the FIFRA SAP. Numerous 3. Explain why you agree or disagree; bring 30 copies of his or her comments qualified candidates are identified for suggest alternatives and substitute and presentation slides for distribution language for your requested changes. to the FIFRA SAP at the meeting. each panel. Therefore, selection 4. Describe any assumptions and 3. Seating at the meeting. Seating at decisions involve carefully weighing a provide any technical information and/ the meeting will be open and on a first- number of factors including the or data that you used. come basis. candidates’ areas of expertise and 5. If you estimate potential costs or 4. Request for nominations to serve as professional qualifications and burdens, explain how you arrived at ad hoc members of the FIFRA SAP for achieving an overall balance of different your estimate in sufficient detail to this meeting. As part of a broader scientific perspectives on the panel. allow for it to be reproduced. process for developing a pool of In order to have the collective breadth 6. Provide specific examples to candidates for each meeting, the FIFRA of experience needed to address the illustrate your concerns and suggest SAP staff routinely solicits the Agency’s charge for this meeting, the alternatives. stakeholder community for nominations Agency anticipates selecting 7. Explain your views as clearly as of prospective candidates for service as approximately 15 to 20 ad hoc possible, avoiding the use of profanity ad hoc members of the FIFRA SAP. Any scientists. FIFRA SAP members are or personal threats. interested person or organization may subject to the provisions of 5 CFR part 8. Make sure to submit your nominate qualified individuals to be 2634, Executive Branch Financial comments by the comment period considered as prospective candidates for Disclosure, as supplemented by the EPA deadline identified. a specific meeting. Individuals in 5 CFR part 6401. In anticipation of nominated for this meeting should have C. How May I Participate in this this requirement, prospective expertise in one or more of the Meeting? candidates for service on the FIFRA following areas: Endocrinology, SAP will be asked to submit You may participate in this meeting toxicology, aquatic toxicology, thyroid confidential financial information by following the instructions in this biology, reproductive or developmental which shall fully disclose, among other unit. To ensure proper receipt by EPA, toxicology/endocrinology, comparative financial interests, the candidate’s it is imperative that you identify docket endocrinology, and toxicological employment, stocks and bonds, and ID number EPA–HQ–OPP–2008–0012 in pathology. Nominees should be the subject line on the first page of your scientists who have sufficient where applicable, sources of research request. professional qualifications, including support. The EPA will evaluate the 1. Written comments. The Agency training and experience, to be capable of candidates financial disclosure form to encourages that written comments be providing expert comments on the assess whether there are financial submitted, using the instructions in scientific issues for this meeting. conflicts of interest, appearance of a ADDRESSES, no later than March 11, Nominees should be identified by name, lack of impartiality or any prior 2008, to provide FIFRA SAP the time occupation, position, address, and involvement with the development of necessary to consider and review the telephone number. Nominations should the documents under consideration written comments. Written comments be provided to the DFO listed under FOR (including previous scientific peer are accepted until the date of the FURTHER INFORMATION CONTACT on or review) before the candidate is meeting but anyone submitting written before February 7, 2008. The Agency considered further for service on the comments after March 11, 2008 should will consider all nominations of FIFRA SAP. Those who are selected contact the DFO listed under FOR prospective candidates for this meeting from the pool of prospective candidates FURTHER INFORMATION CONTACT. Anyone that are received on or before this date. will be asked to attend the public submitting written comments at the However, final selection of ad hoc meetings and to participate in the meeting should bring 30 copies for members for this meeting is a discussion of key issues and distribution to the FIFRA SAP. discretionary function of the Agency. assumptions at these meetings. In 2. Oral comments. The Agency The selection of scientists to serve on addition, they will be asked to review encourages that each individual or the FIFRA SAP is based on the function and to help finalize the meeting group wishing to make brief oral of the panel and the expertise needed to minutes. The list of FIFRA SAP comments to FIFRA SAP submit their address the Agency’s charge to the members participating at this meeting request to the DFO listed under FOR panel. No interested scientists shall be will be posted on the FIFRA SAP FURTHER INFORMATION CONTACT no later ineligible to serve by reason of their website at http://www.epa.gov/scipoly/ than March 18, 2008, in order to be membership on any other advisory sap or may be obtained from the OPP

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Regulatory Public Docket at http:// screening and testing program. The the Tier-1 screening battery and has www.regulations.gov. screening program was also reviewed chosen the FIFRA SAP process. The and reported on by the EPA’s Science FIFRA SAP will be charged with II. Background Advisory Board and Scientific Advisory commenting on whether the EPA’s A. Purpose of the FIFRA SAP Panel (SAB/SAP) as required by the proposed battery composition fulfills its The FIFRA SAP serves as the primary FFDCA. Together, the EDSTAC and purpose (i.e., to identify the potential to scientific peer review mechanism of SAB/SAP recommended that the EPA interact with the EAT hormone EPA’s Office of Prevention, Pesticides address both human and ecological systems). The SAP will specifically be and Toxic Substances (OPPTS) and is effects and examine effects on the asked to comment on the strengths and structured to provide scientific advice, estrogen as well as the androgen and limitations of the proposed battery, and thyroid (EAT) hormonal systems, and information and recommendations to to suggest improvements that could be that a two-tiered approach be used for the EPA Administrator on pesticides made to the proposed battery screening (EPA. Endocrine Disruptor and pesticide-related issues as to the considering candidate assays. The SAP’s Screening and Testing Advisory impact of regulatory actions on health advice will inform the EPA’s final Committee EDSTAC Final Report. and the environment. The FIFRA SAP is decision on the composition of the August 1998.http://www.epa.gov/ a Federal advisory committee EDSP’s Tier-1 screening battery. scipoly/oscpendo/pubs/edspoverview/ established in 1975 under FIFRA that finalrpt.htm). The purpose of Tier-1 is to C. FIFRA SAP Documents and Meeting operates in accordance with identify substances that have the Minutes requirements of the Federal Advisory potential to interact with the EAT EPA’s background paper, related Committee Act. The FIFRA SAP is hormonal systems using a battery of supporting materials, charge/questions composed of a permanent panel screening assays. The purpose of Tier 2 to the FIFRA SAP, FIFRA SAP consisting of seven members who are testing is to identify and establish a composition (i.e., members and ad hoc appointed by the EPA Administrator dose-response relationship for any members for this meeting), and the from nominees provided by the National adverse effects that might result from meeting agenda will be available by late Institutes of Health and the National the interactions identified through the February 2008. In addition, the Agency Science Foundation. FIFRA, as Tier-1 screening battery. may provide additional background amended by FQPA, established a The EPA has validated (or anticipates documents as the materials become Science Review Board consisting of at completing validation in 2008) several available. You may obtain electronic least 60 scientists who are available to candidate assays for the Tier-1 battery as copies of these documents, and certain the Scientific Advisory Panel on an ad follows: other related documents that might be hoc basis to assist in reviews conducted Screening assays being considered for available electronically, at http:// by the Scientific Advisory Panel. As a the Tier-1 battery: www.regulations.gov and the FIFRA peer review mechanism, the FIFRA SAP In vitro SAP homepage at http://www.epa.gov/ provides comments, evaluations and • Rat uterine cytosol and human scipoly/sap. recommendations to improve the recombinant estrogen receptor (ER) The FIFRA SAP will prepare meeting effectiveness and quality of analyses binding* minutes summarizing its made by Agency scientists. Members of • Rat prostate cytosol androgen recommendations to the Agency the FIFRA SAP are scientists who have receptor (AR) binding approximately 90 days after the sufficient professional qualifications, • Human cell line (H295R) meeting. The meeting minutes will be including training and experience, to steroidogenesis* • posted on the FIFRA SAP website or provide expert advice and Human placental and recombinant may be obtained from the OPP recommendations to the Agency. aromatase In vivo Regulatory Public Docket at http:// B. Public Meeting • Uterotrophic (rat) www.regulations.gov. • Hershberger (rat) The EPA is implementing an • List of Subjects Endocrine Disruptor Screening Program Pubertal female (rat) • Pubertal male (rat) Environmental protection, pesticides (EDSP) in response to a 1996 • Adult male (rat) and pests. Congressional mandate under the • Amphibian metamorphosis (frog) Federal Food, Drug, and Cosmetic Act • Fish short-term reproduction January 17, 2008. (FFDCA). Section 408(p) of the FFDCA *Consideration of these assays will be Elizabeth Resek, required the EPA ‘‘to develop a contingent on individual assay peer Acting Director, Office of Science screening program, using appropriate review, which is expected in 2008. Coordination and Policy. validated test systems and other Following an extensive validation [FR Doc. E8–1191 Filed 1–23–08; 8:45 am] scientifically relevant information, to process, the EPA has had (or expects to BILLING CODE 6560–50–S determine whether certain substances have in 2008) each of these assays peer may have an effect in humans that is reviewed independently by a panel of similar to an effect produced by a scientific experts. The individual assay FEDERAL COMMUNICATIONS naturally occurring estrogen, or other peer review process was done to ensure COMMISSION such endocrine effect as EPA may that independent scientific opinions [CG Docket No. 03–123; DA 07–5009] designate (FFDCA 21 U.S.C. 346a(p). In about the candidate assays were 1998, the Endocrine Disruptor obtained and considered. Information The Consumer & Governmental Affairs Screening and Testing Advisory regarding individual assay peer review Bureau Reports on the First Triennial Committee (EDSTAC), a panel of experts can be found in section IV.D. of the Review of the Commission’s Policies chartered pursuant to the Federal Federal Register of July 13, 2007, http:// and Practices Under Section 504 of the Advisory Committee Act (FACA) in www.epa.gov/fedrgstr/EPA-PEST/2007/ Rehabilitation Act of 1973 response to the FFDCA, submitted a July/Day-13/p13672.pdf. final report to advise the EPA on how The EPA is now convening an AGENCY: Federal Communications to develop its Endocrine Disruptor independent scientific peer review of Commission.

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ACTION: Notice. comments from consumers served, and documents, and in all consumer fact replies to the single filing submitted in sheets and advisories. Requests for SUMMARY: In this document, the response to the Public Notice seeking services are generally received via the Consumer & Governmental Affairs comment on the Commission’s section Commission’s FCC504 mailbox Bureau (Bureau) reports on its review of 504 policies and practices, The ([email protected]), the Disability Access the Commission’s policies and practices Consumer & Governmental Affairs telephone line (both voice and TTY), or under section 504 of the Rehabilitation Bureau Seeks Comment on the by direct contact with the Commission’s Act of 1973. The Commission’s rules Commission’s Policies and Practices Section 504 Officer. mandate that it conduct a review of its Under Section 504 of the Rehabilitation The report examines the access current policies and practices in view of Act of 1973, CG Docket No. 03–123, DA services provided by the Commission in advances in relevant technology and 07–1396, published at 72 FR 19502, the following eight forms from July 2004 achievability every three years. The April 18, 2007. The report concludes through June 2007: sign language report concludes that during the past that during the past three years, the three years, the Commission has Commission has successfully provided interpreting; captioning; CART successfully provided access to its access to its programs and activities for (Computer Assisted Realtime programs and activities for people with persons with disabilities in accordance Translation); re-voicing; Braille; large disabilities in accordance with section with section 504 of the Rehabilitation print; electronic formats (e.g., text, PDF); 504 of the Rehabilitation Act. Act. and audio (e.g., MP3 files, CDs). For ADDRESSES: Federal Communications each form of accommodation, the Background Commission, 445 12th Street, SW., Commission attempts to acquire the best Washington DC 20554. By way of background, section 504 of services available under the circumstances. When the Commission FOR FURTHER INFORMATION CONTACT: the Rehabilitation Act prohibits has received consumer reports of Diane Mason, Consumer & discrimination against persons with dissatisfaction with service providers Governmental Affairs Bureau, Disability disabilities under any program or (e.g., regarding turnaround times for Rights Office at (202) 418–7126 (voice), activity receiving federal funds. In 1978, Braille documents, sign language (202) 418–7828 (TTY), or e-mail the Act was amended to include any interpreters who have difficulty [email protected]. program or activity conducted by an Executive Branch agency or the United understanding specific deaf consumers), SUPPLEMENTARY INFORMATION: This is a States Postal Service. The 1978 it has been able to work with the summary of the Commission’s amendments also required covered consumers to make sure that their document DA 07–5009, released agencies to establish regulations to preferences are noted when subsequent December 17, 2007, in CG Docket No. implement section 504’s mandates. In requests for accommodations are made. 03–123. A copy of document DA 07– 2003, the Commission released an order Overall, consumer feedback has been 5009 will be available for public amending its section 504 rules, positive. The report concludes that the inspection and copying during regular Amendment of Part 1, Subpart N of the Commission does not need to modify its business hours at the FCC Reference Commission’s Rules Concerning Non- accessibility policies and practices at Information Center, Portals II, 445 12th Discrimination on the Basis of Disability this time, but will continue to address Street, SW., Room CY–A257, in the Commission’s Programs and specific accessibility issues as they Washington, DC 20554, (202) 418–0270. Activities, FCC 03–48 (2003 Section 504 arise. Document DA 07–5009 also may be Order), published at 68 FR 22315, April Sorenson Communications, Inc. purchased from the Commission’s 28, 2003. These amendments updated (Sorenson) filed comments on May 22, duplicating contractor at its Web site, terminology to be consistent with 2007, focusing on Video Relay Service http://www.bcpiweb.com, or by calling current statutory language, supplied (VRS) access issues. Sorenson notes that (800) 378–3160. Document DA 07–5009 specifications for filing in alternative the Commission’s public videophone also may be found by searching the formats, outlined procedures for located near the Commission Meeting Commission’s Electronic Comment requesting reasonable accommodations, Room on the TW level of the Portals II Filing System at http://www.fcc.gov/ and established a triennial self- Building ‘‘appears to be dedicated to cgb/ecfs (insert CG Docket No. 03–123 evaluation. Federal Relay.’’ Sorenson asserts that into the Proceeding block). Concurrent with the release of the ‘‘[t]he Commission’s current practice of To request materials in accessible 2003 Section 504 Order, the restricting on-premises callers to formats for people with disabilities Commission also produced and Federal Relay denies those callers the (Braille, large print, electronic files, distributed the Federal Communications full access mandated’’ by section 504. audio format), send an e-mail to Commission Section 504 Programs and Contrary to Sorenson’s assertion, the [email protected] or call the Consumer & Activities Accessibility Handbook Commission’s public videophone does Governmental Affairs Bureau at (202) (Section 504 Handbook). Since the not require callers to use Federal Relay 418–0530 (voice), (202) 418–0432 Section 504 Handbook functions as a Service. Calls can be made peer-to-peer (TTY). centralized source for both disability information and accessibility best or through any VRS provider. Synopsis practices, it was also made available to Sorenson also recommends that the Pursuant to 47 CFR 1.1810, every the public via the Commission’s Web information about VRS in the three years the Commission must site, at: http://www.fcc.gov/cgb/dro/ Commission’s Section 504 Handbook be undertake a self-evaluation of its section_504.html. Paper copies were updated to reflect changes in the compliance with section 504 of the supplied upon request. services offered through VRS Rehabilitation Act of 1973, 29 U.S.C. In order to ensure that consumers providers—specifically, that VRS calls 794. The year 2007 marked the end of with disabilities know how to request may now be initiated by hearing callers the first triennium. The Bureau releases the access services they need, and that ASL-to-Spanish VRS services this report accordingly, which reviews instructions for requesting reasonable are available. These changes will be disability access services provided accommodations are included on the reflected in the next edition of the during the past three years, considers Commission Web site, in most public Section 504 Handbook.

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Federal Communications Commission. adopt this framework (71 FR 55981). • Mail: Jennifer J. Johnson, Secretary, Nicole McGinnis, The agencies have made certain Board of Governors of the Federal Deputy Bureau Chief, Consumer & modifications to the proposed reporting Reserve System, 20th Street and Governmental Affairs Bureau. requirements as described in this notice Constitution Avenue, NW., Washington, [FR Doc. E8–1166 Filed 1–23–08; 8:45 am] both in response to comments received DC 20551. BILLING CODE 6712–01–P and to reflect requirements of the final All public comments are available rule implementing the Advanced from the Board’s Web site at http:// Capital Adequacy Framework (72 FR www.federalreserve.gov/generalinfo/ DEPARTMENT OF THE TREASURY 69288, referred to hereafter as the final foia/ProposedRegs.cfm as submitted, rule). The FFIEC, of which the agencies unless modified for technical reasons. Office of the Comptroller of the are members, has approved publication Accordingly, your comments will not be Currency of these reporting requirements and the edited to remove any identifying or agencies are submitting these reporting contact information. Public comments FEDERAL RESERVE SYSTEM requirements to OMB for review and may also be viewed electronically or in approval. Upon approval, OMB control paper in Room MP–500 of the Board’s FEDERAL DEPOSIT INSURANCE numbers will be obtained. Martin Building (20th and C Streets, CORPORATION DATES: Comments must be submitted on NW.) between 9 a.m. and 5 p.m. on or before February 25, 2008. These weekdays. DEPARTMENT OF THE TREASURY reporting requirements are effective FDIC: You may submit comments, April 1, 2008, and institutions subject to which should refer to ‘‘FFIEC 101,’’ by Office of Thrift Supervision any of the following methods: these requirements must begin reporting • data at the end of the first quarter in http://www.FDIC.gov/regulations/ Agency Information Collection laws/federal/notices.html. which they have begun their parallel • Activities: Submission for OMB run period. E-mail: [email protected]. Review; Joint Comment Request Include ‘‘FFIEC 101’’ in the subject line ADDRESSES: Interested parties are of the message. AGENCIES: Office of the Comptroller of invited to submit written comments to • Mail: Valerie Best (202–898–3907), the Currency (OCC), Treasury; Board of any or all of the agencies. All comments, Supervisory Counsel, Attn: Comments, Governors of the Federal Reserve which should refer to the OMB control Room F–1070, Federal Deposit System (Board); Federal Deposit number(s), will be shared among the Insurance Corporation, 550 17th Street, Insurance Corporation (FDIC); and agencies. NW., Washington, DC 20429. Office of Thrift Supervision (OTS), OCC: Communications Division, • Hand Delivery: Comments may be Treasury. Office of the Comptroller of the hand delivered to the guard station at ACTION: Notice of information Currency, Public Information Room, the rear of the 550 17th Street Building collections to be submitted to OMB for Mail Stop 1–5, Attention: 1557–NEW, (located on F Street) on business days review and approval under the 250 E Street, SW., Washington, DC between 7 a.m. and 5 p.m. Paperwork Reduction Act. 20219. In addition, comments may be Public Inspection: All comments sent by fax to (202) 874–4448, or by received will be posted without change SUMMARY: In accordance with the electronic mail to to http://www.fdic.gov/regulations/laws/ requirements of the Paperwork [email protected]. You may federal/notices.html including any Reduction Act of 1995 (44 U.S.C. personally inspect and photocopy personal information provided. chapter 35), the OCC, the Board, the comments at the OCC’s Public Comments may be inspected at the FDIC FDIC, and the OTS (collectively, the Information Room, 250 E Street, SW., Public Information Center, Room E– agencies) may not conduct or sponsor, Washington, DC. For security reasons, 1002, 3501 Fairfax Drive, Arlington, VA and the respondent is not required to the OCC requires that visitors make an 22226, between 9 a.m. and 5 p.m. on respond to, an information collection appointment to inspect comments. You business days. unless it displays a currently valid may do so by calling (202) 874–5043. OTS: You may submit comments, Office of Management and Budget Upon arrival, visitors will be required to identified by ‘‘FFIEC 101’’ by any of the (OMB) control number. On September present valid government-issued photo following methods: 25, 2006, the agencies, under the identification and submit to security • E-mail address: auspices of the Federal Financial screening in order to inspect and [email protected]. Institutions Council (FFIEC), requested photocopy comments. Please include ‘‘FFIEC 101’’ in the public comment on a proposal to Board: You may submit comments, subject line of the message and include implement new regulatory reporting which should refer to ‘‘FFIEC 101’’ by your name and telephone number in the requirements for banks 1 that qualify for any of the following methods: message. and adopt the Advanced Capital • Agency Web Site: http:// • Fax: (202) 906–6518. Adequacy Framework to calculate their www.federalreserve.gov. Follow the • Mail: Information Collection risk-based capital requirement or are in instructions for submitting comments Comments, Chief Counsel’s Office, the parallel run stage of qualifying to on the http://www.federalreserve.gov/ Office of Thrift Supervision, 1700 G generalinfo/foia/ProposedRegs.cfm. Street, NW., Washington, DC 20552, 1 For simplicity, and unless otherwise indicated, • Federal eRulemaking Portal: http:// Attention: ‘‘FFIEC 101.’’ this notice uses the term ‘‘bank’’ to include banks, www.regulations.gov. Follow the • Hand Delivery/Courier: Guard’s savings associations, and bank holding companies (BHCs). The terms ‘‘bank holding company’’ and instructions for submitting comments. Desk, East Lobby Entrance, 1700 G ‘‘BHC’’ refer only to bank holding companies • E-mail: Street, NW., from 9 a.m. to 4 p.m. on regulated by the Board and do not include savings [email protected]. business days, Attention: Information and loan holding companies regulated by the OTS. Include docket number in the subject Collection Comments, Chief Counsel’s For a detailed description of the institutions line of the message. Office, Attention: ‘‘FFIEC 101.’’ covered by this notice, refer to Part I, Section 1, of • the final rule entitled Risk-Based Capital Standards: FAX: 202–452–3819 or 202–452– Instructions: All submissions received Advanced Capital Adequacy Framework. 3102. must include the agency name and OMB

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Control Number for this information Chief Counsel’s Office, Office of Thrift information collection will be given collection. All comments received will Supervision, 1700 G Street, NW., confidential treatment (5 U.S.C. be posted without change to the OTS Washington, DC 20552. 552(b)(4)) except for selected data items Internet Site at http://www.ots.treas.gov/ SUPPLEMENTARY INFORMATION: The (Schedules A and B, and data items pagehtml.cfm?catNumber=67&an=1, agencies are requesting OMB approval 1–2 of the operational risk Schedule S) including any personal information to implement the following new that will be released for reporting provided. information collection. periods after an institution has Docket: For access to the docket to Report Title: Advanced Capital successfully completed its parallel run read background documents or Adequacy Framework Regulatory period and is qualified to use the comments received, go to http:// Reporting Requirements. advanced approaches for regulatory www.ots.treas.gov/ Form Number: FFIEC 101. capital purposes. The agencies will not pagehtml.cfm?catNumber=67&an=1. Frequency of Response: Quarterly. publicly release information submitted In addition, you may inspect Affected Public: Business or other for- during an entity’s parallel run period. comments at the Public Reading Room, profit. 1700 G Street, NW., by appointment. To Abstract make an appointment for access, call OCC Each bank that qualifies for and (202) 906–5922, send an e-mail to OMB Number: 1557–NEW. applies the advanced internal ratings- [email protected], or send a Estimated Number of Respondents: 52 based approach to calculate regulatory facsimile transmission to (202) 906– national banks. credit risk capital and the advanced 7755. (Prior notice identifying the Estimated Time per Response: 625 measurement approaches to calculate materials you will be requesting will hours. regulatory operational risk capital, as assist us in serving you.) We schedule Estimated Total Annual Burden: described in the final rule, is required appointments on business days between 130,000 hours. to file quarterly regulatory data. The 10 a.m. and 4 p.m. In most cases, agencies will use these data to assess appointments will be available the next Board and monitor the levels and components business day following the date we OMB Number: 7100–NEW. of each reporting entity’s risk-based receive a request. Estimated Number of Respondents: 6 capital requirements and the adequacy Additionally, commenters may send a state member banks. of the entity’s capital under the copy of their comments to the OMB Estimated Time per Response: 625 Advanced Capital Adequacy desk officer for the agencies by mail to hours. Framework; to evaluate the impact and the Office of Information and Regulatory Estimated Total Annual Burden: competitive implications of the Affairs, U.S. Office of Management and 15,000 hours. Advanced Capital Adequacy Framework Budget, New Executive Office Building, OMB Number: 7100–NEW. on individual reporting entities and on Room 10235, 725 17th Street, NW., Estimated Number of Respondents: 15 an industry-wide basis; as one input to Washington, DC 20503, or by fax to BHCs. develop an interagency study at the end (202) 395–6974. Estimated Time per Response: 625 of the second transitional floor period as FOR FURTHER INFORMATION CONTACT: For hours. described more fully in the final rule further information about the regulatory Estimated Total Annual Burden: implementing the Advanced Capital reporting requirements discussed in this 37,500 hours. Adequacy Framework; and to notice, please contact any of the agency supplement on-site examination clearance officers whose names appear FDIC processes. The reporting schedules will below. In addition, copies of reporting OMB Number: 3064–NEW. also assist banks in understanding schedules and instructions can be Estimated Number of Respondents: 19 expectations around the system obtained from the FFIEC’s Web site.2 state nonmember banks. development necessary for OCC: Mary Gottlieb, OCC Clearance Estimated Time per Response: 625 implementation and validation of the Officer (202–874–5090), Legislative and hours. Advanced Capital Adequacy Regulatory Activities Division, Office of Estimated Total Annual Burden: Framework. Submitted data that is the Comptroller of the Currency, 250 E 47,500 hours. released publicly following a reporting Street, SW., Washington, DC 20219. OTS entity’s parallel run period will also Board: Michelle Shore, Federal provide other interested parties with Reserve Board Clearance Officer, OMB Number: 1550–NEW. information about banks’ risk-based Division of Research and Statistics, Estimated Number of Respondents: 5 capital. Board of Governors of the Federal savings associations. Reserve System, 20th and C Streets, Estimated Time per Response: 625 Current Actions NW., Washington, DC 20551 (202–452– hours. Risk-Based Capital Standards: 3829). Telecommunications Device for Estimated Total Annual Burden: Advanced Capital Adequacy the Deaf (TDD) users may call (202) 12,500 hours. Framework: Regulatory Reporting 263–4869. General Description of Reports Requirements FDIC: Valerie Best (202–898–3812), I. Background Supervisory Counsel, Legal Division, This information collection is Federal Deposit Insurance Corporation, mandatory for banks using the On September 25, 2006, the agencies 550 17th Street, NW., Washington, DC Advanced Capital Adequacy issued for comment a joint notice of 20429. Framework: 12 U.S.C. 161 (for national proposed regulatory capital reporting OTS: Ira L. Mills at banks), 12 U.S.C. 324 and 12 U.S.C. requirements (71 FR 55981) for U.S. [email protected], (202) 906–6531, 1844(c) (for state member banks and banks that qualify for and adopt the or facsimile number (202) 906–6518, BHCs respectively), 12 U.S.C. 1817 (for advanced internal ratings-based (AIRB) Regulations and Legislation Division, insured state nonmember commercial approach for calculating regulatory and savings banks), and 12 U.S.C. 1464 credit risk capital and the advanced 2 http://www.ffiec.gov/ffiec_report_forms.htm. (for savings associations). This measurement approaches (AMA) for

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calculating regulatory operational risk the proposed reporting requirements approach, the agencies have decided to capital (together, the advanced without sufficient offsetting benefits in retain the fixed band approach to approaches). These proposed regulatory terms of the analytical needs of achieve greater comparability among reporting requirements were issued supervisors and the information needs reporting banks. Third, the agencies concurrently with the joint notice of of investors and other public users of asked about the appropriateness of proposed rulemaking seeking public financial information. Specific areas of making certain data items available to comment on a new risk-based capital concern identified in the comments the public for reporting periods framework for banks (71 FR 55830). On covered a range of issues including subsequent to a bank’s parallel run December 7, 2007, the agencies concerns about (1) the length of time period. With the exception of certain published final rules implementing the allowed following a quarter-end to file information contained in the new risk-based capital framework (72 reports with the agencies, (2) public operational risk schedule (data items 3 FR 69288). This notice describes the disclosures of certain risk estimates through 7 of this schedule), the agencies final risk-based capital reporting used to calculate risk-weighted assets have decided to continue to require requirements for banks that qualify for for credit risk portfolios, (3) public public disclosure of all other data items and adopt the new risk-based capital disclosures of certain data items contained in Schedules A and B, and framework or are in the parallel run contained in the operational risk data items 1 and 2 only of the stage of qualifying to adopt this schedule, (4) the reporting of credit risk operational risk schedule, for reporting framework. portfolios not defined in the proposed periods after a bank has qualified to use Data items contained within the rulemaking, (5) the reporting of data the advanced approaches for regulatory reporting proposal pertained to the risk elements not required for calculation of capital purposes. The agencies believe parameters and drivers of a bank’s regulatory capital, and (6) potential that such disclosures are consistent with regulatory capital measures under the duplication or inconsistencies of the Pillar 3 of the Advanced Capital AIRB and AMA approaches. The reporting requirements with Pillar 3 Adequacy Framework and will provide reporting proposal identified a number disclosures. useful information to investors and of uses for the data to be submitted, The agencies have made a number of other market participants about a bank’s which included the ability of the modifications to the reporting capital structure, risk exposures, and agencies to monitor risk-based capital requirements in light of these main components of a bank’s regulatory requirements, assess the components of comments. Among the changes that capital calculations. As in the reporting these requirements, evaluate the impact address concerns about reporting proposal, all other information of implementing the new advanced burden, the agencies have eliminated submitted per these reporting approaches, and supplement on-site three schedules and approximately 600 requirements will remain confidential. examination processes relating to the reportable data items, expanded the One commenter also indicated its implementation of the new advanced submission deadlines during a bank’s belief that the burden estimate provided approaches. The proposal also indicated parallel run period, and allowed more in the reporting proposal of 280 hours that certain summary information data items to be reported on an optional per respondent was significantly would be made available to the public basis (depending on information understated. Although the final for reporting periods after a bank has availability, e.g., information pertaining reporting requirements require qualified to use the advanced to pre-credit risk mitigation risk submission of significantly less data approaches for regulatory capital to estimates for wholesale exposures when items than under the reporting proposal, provide a sufficient degree of public the substitution approach is used, and the agencies have revised their estimates disclosure to market participants. various data items pertaining to of reporting burden on a per respondent The agencies have evaluated operational risk modeling). basis upward in recognition of reporting comments received on the reporting Additionally, in recognition of concerns burdens incurred by banks on other proposal and have made changes to the about report certification requirements, types of regulatory reports and the level reporting requirements as described the agencies have adopted alternative of detail required to be submitted under below. Certain changes to the reporting certification language that focuses on these reports. requirements, collected data elements, meeting the requirements imposed by Certain other modifications, such as and reporting instructions have also the final rule and reporting instructions the elimination of data items relating to been made to conform reporting to as opposed to a statement attesting to expected loss given default, were made changes made to the final rule. the accuracy of data items that include to conform the reporting requirements parameter estimates. and instructions to the final rule. A II. Comment Overview The reporting proposal raised three complete discussion of comments, and The agencies received sixteen specific questions for industry’s changes made to the reporting comment letters that directly addressed consideration. First, the agencies asked requirements, is contained in the the reporting proposal. In addition to about the feasibility of collecting following sections. providing responses to the specific additional information to help isolate questions posed by the agencies, a the causes of changes in regulatory III. Scope and Frequency of Reporting number of commenters identified both credit risk-based capital requirements general and technical issues relating to (the lookback portfolio approach). The Banks That Are Required To Submit the reporting requirements, report agencies have decided not to pursue the Reports schedules, and reporting instructions. collection of this additional information The reporting requirements associated Some additional comments focused at this time but intend to explore with with the final rule will apply, as primarily on the Pillar 3 disclosure the industry in the future ways to proposed, to each BHC, on a requirements of the joint notice of facilitate such analyses. Second, the consolidated basis, and each depository proposed rulemaking, but also included agencies asked about the desirability of institution that qualifies for and applies less specific comments on regulatory using an alternative approach to fixed the advanced approaches (section I of reporting. bands for reporting wholesale and retail the final rule provides a detailed In general, commenters reflected schedules. Although the majority of discussion of institutions covered by concerns over the perceived burdens of commenters favored the alternative these reporting requirements), as well as

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banks in the parallel run stage of requirements for this regulatory report these reporting requirements must qualifying to use the advanced submission. These report certifications submit these reports in an electronic approaches. The agencies did not are substantially similar to those format using file specifications and receive any comments objecting to the required for banks’ Pillar 3 disclosures formats determined by the agencies. scope of application of these reporting in that they require one or more senior IV. Overview of the Data Reporting requirements as stated. officers of the reporting entity to attest Requirements that the risk estimates and other Frequency of Reports information submitted to the agencies The reporting proposal contained 22 As proposed, the reports described meet the requirements set forth in the separate schedules: One schedule herein are to be submitted to the final rule and reporting instructions. (Schedule A) detailing banks’ capital agencies on a quarterly basis. The elements (the numerator of the risk- agencies did not receive comments that Initial Reporting Period based capital calculation); one schedule generally opposed quarterly reporting. For those banks subject to these (Schedule B) that summarizes the However, as discussed below, some reporting requirements, the first components of risk-weighted assets for commenters argued for less frequent or reporting period (as proposed) will categories of credit risk portfolios, lagged reporting of certain data elements correspond to the quarter-end of the first operational risk exposures, and market relating to operational risk. quarter of a bank’s parallel run period. risk; and 20 schedules (Schedules C Although no commenters objected to through V) that provide additional Reporting Due Dates this requirement, some commenters did detail on the risk parameters and drivers A number of commenters raised raise concerns over the ability to of credit risk-weighted and operational concerns over the proposed requirement implement those systems changes risk-weighted assets. For wholesale and to align reporting due dates with those necessary to meet these reporting retail credit exposures, the reporting currently required for banks, savings requirements without a sufficient schedules contain information on the associations, and BHCs that file amount of time between publishing risk parameters used in specific risk- Consolidated Reports of Condition and these requirements and the first based capital formulas to determine Income (Call Reports), Thrift Financial reporting period. The agencies are risk-weighted asset amounts, namely: Reports (TFRs), and BHC FR Y–9C mindful of the tight timeframes for Probability of default (PD, which reports, respectively. These commenters banks whose first reporting period measures the likelihood that an obligor offered a range of alternative reporting corresponds to the quarter-end will default over a one-year horizon); deadlines but generally argued for following the effective date of the final loss given default (LGD, which is an extended deadlines through at least the rule. The agencies expect that systems estimate of the economic loss if a parallel run and transitional floor development will be an iterative process default occurs during downturn periods. The agencies agree that it is during the parallel run period, with economic conditions); exposure at reasonable to extend reporting deadlines steady improvement in overall reporting default (EAD, which is measured in through the parallel run period to 60 and gradual reduction of manual dollars and is an estimate of the amount days following the end of a quarter. processes prior to qualification. that would be owed to the bank at the However, the agencies believe that once time of default); and, for wholesale a bank qualifies to use the advanced Relationship to Other Regulatory credit exposures, an exposure’s effective approaches and enters the transitional Reporting of Risk-Based Capital maturity (M, which is measured in years floor period, the bank should have the As proposed, banks subject to these and reflects the effective remaining ability to fully support regulatory reporting requirements will submit maturity of the exposure). The retail capital calculations to coincide with the capital information under both this credit risk schedules also include timing of other financial disclosures. notice and under the existing risk-based information on loan-to-values, credit Accordingly, after a bank’s parallel run capital reporting requirements (the bureau scores, and account seasoning, period, the agencies are requiring general risk-based capital rules) during which are likely to be important risk submission of the information required their respective parallel run periods and drivers within these portfolios. For by this notice within the same subsequent transitional floor periods.3 A securitization, equity, and operational timeframes set forth in the reporting bank would discontinue reporting under risk exposures, the reporting schedules instructions for the Call Report, TFR, the general risk-based capital rules once include data on the main inputs to, and and BHC FR Y–9C filed by banks, it is permitted to exit its third outputs of, internal models and savings associations, and BHCs, transitional floor period. The agencies regulatory risk weight functions used to respectively. received no comments on this determine risk-weighted assets for these requirement. exposures. Report Certification Requirements Several commenters raised concerns Under the reporting proposal, banks Electronic Submission of Reports about burdens associated with and the would be required to meet the same Consistent with requirements for the need for reporting of certain types of reporting standards that are applied to agencies’ reports which collect data credit exposures not explicitly defined other regulatory reports including under the existing risk-based capital outside the reporting proposal. These certification by a bank’s Chief Financial reporting requirements, banks subject to exposure types include Construction Officer attesting to the correctness of the Income Producing Real Estate (IPRE) reports. While acknowledging the 3 General risk-based capital data under the and Other Retail Exposures—Small reasonableness of requiring existing risk-based capital standards are currently Business. In response to industry captured in the Consolidated Reports of Condition certifications of reported information, and Income (Call Report) for banks (Form FFIEC concerns, the agencies have one commenter raised concerns over 031 or FFIEC 041); OMB No. 1557–0081 for the consolidated several schedules. certifications of the accuracy of risk OCC, 7100–0036 for the Board, and 3064–0052 for Specifically, the final reporting parameter estimates and the procedures the FDIC), the Thrift Financial Report (TFR) for requirements consolidate reporting of savings associations (OTS Form 1313; OMB No. used to validate those estimates. In 1550–0023), and the Consolidated Financial Construction IPRE and non-construction recognition of these concerns, the Statements for Bank Holding Companies (Board IPRE exposures into one IPRE schedule agencies have modified the certification Form FR Y–9C; OMB No. 7100–0128). (new Schedule F), consolidate reporting

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of Qualifying Revolving Exposures— calculation of total credit risk-weighted as defined within the final rule since Credit Cards and Qualifying Revolving assets scaled by the 1.06 multiplier each of these exposures is associated Exposures—All Other into one contained in the final rule, (3) the with a specific set of risk weight curves, Qualifying Revolving Exposure addition of data item 29 to recognize risk weight functions, or calculation schedule (new Schedule N), and risk-weighted asset deductions for approaches. As a result, the agencies consolidate reporting of Other Retail excess eligible credit reserves not have decided not to redefine exposure Exposures—Small Business and Other included in Tier 2 capital (to be categories to be consistent with those Retail Exposures—All Other into one consistent with paragraph (a)(2) of defined within other regulatory reports. Other Retail Exposure schedule (new section 13 of the final rule), (4) the The agencies have also decided not to Schedule O). With these schedule elimination of three data items for impose additional burden of reconciling consolidations, the final reporting exposure types whose reporting has the financial information contained in requirements require the submission of been consolidated with other exposure these reports to balance sheet 19 schedules instead of the 22 schedules types as described above, and (5) information contained in other contained in the reporting proposal. changes to various caption headings to regulatory reports. Rather, the agencies align them with the descriptions and believe that the comprehensiveness of A. Publicly Available Risk-Based definitions contained in the final rule. these reports can be confirmed through Capital Data for the Advanced The agencies received the following other means such as on-site reviews. Approaches technical comments on data elements Publicly Available Information Content of Schedules A and B contained in Schedule B, Summary of Risk Weighted Assets for Banks The agencies received a number of Schedule A contains information Approved to Use the Advanced comments relating to the public about the components of Tier 1 and Tier Approaches: disclosure of information reported in 2 capital, as well as adjustments to • Several commenters recommended Schedules A and B, and data items 1 regulatory risk-based capital as defined re-labeling line 30 in the reporting through 7 of the Operational Risk in the final rule. Certain modifications proposal from Immaterial Exposures to schedule. These commenters argued for were made to data item captions, Credit Exposures on Other Methods. limited or phased-in disclosure of schedule footnotes, and instructions for These commenters argued that a broader Schedule B data items in particular, clarification purposes and to conform exposure category was needed for the limiting disclosure of Schedule B data the reporting requirements to the final inclusion of unsettled securities items to risk-weighted assets by rule. More specifically, in Part 1 of transactions and other exposures where exposure type and related on- and off- Schedule A for banks and BHCs, data it is not feasible to estimate risk balance sheet amounts, or flexibility in item 6b, ‘‘Qualifying trust preferred parameters under the advanced timing of submissions when an securities,’’ as well as the deduction in approaches. The agencies have modified institution views certain information as data item 7b, ‘‘LESS: Cumulative change Schedule B to include a separate data proprietary in nature. These in fair value of all financial liabilities item for reporting the balance sheet commenters generally argued that accounted for under a fair value option amounts and risk-weighted assets components of the risk-weighted asset that is included in retained earnings and associated with unsettled transactions calculation such as PD, LGD, and EAD is attributable to changes in the bank’s (data item 24). The agencies note that are not well understood, are incomplete own creditworthiness,’’ were added to the final rule specifically addresses and measures of risk, are not comparable derive the appropriate numerator for the defines credit exposures that are not across institutions, and may be subject Tier 1 risk-based capital calculation. In included within a defined exposure to misinterpretation by investors and addition, the deductions in data items category, as well as non-material other market participants. 10a and 16a, ‘‘LESS: Insurance portfolios of exposures. Schedule B has After consideration, the agencies have underwriting subsidiaries’ minimum been modified to include reporting of decided to retain public disclosure of all regulatory capital (for BHCs only)’’ were the risk-weighted assets and balance data items in Schedules A and B (as added to conform to the final rule and sheet amounts for these categories of modified) for reporting periods after a are necessary to derive the numerator exposures as described in the final rule; bank has qualified to use the advanced for both the Tier 1 and Tier 2 risk-based • Several commenters sought approaches for regulatory capital capital calculation. A number of clarification that the Expected Credit purposes (i.e., once a bank enters its proposed data items relating to the Loss (ECL) column in Schedule B first transitional floor period). All regulatory leverage capital ratio were should be reported after considering reported information will remain also eliminated from Part 1 of the credit risk mitigation (CRM) effects. The confidential during the bank’s parallel schedule because they are reported in agencies confirm that all ECL data items run. The agencies believe such other regulatory reports. within the reporting schedules are to be disclosures, at the bank level, are Schedule B contains summary reported on a post-CRM basis; and consistent with the Advanced Capital information about risk-weighted assets • One commenter requested revisions Adequacy Framework and will provide by exposure categories, and for credit to Schedule B to allow for agreement useful information to investors and risk exposures, outstanding balances between aggregated credit portfolio other market participants about a bank’s and aggregated information about the (balance sheet) information and capital structure, its risk exposures, and estimates that underlie the calculation amounts listed in other regulatory the main components and risk drivers of risk-weighted assets. The information reports such as Call Reports and the underlying the bank’s regulatory capital in Schedule B is largely unchanged from BHC FR Y–9C report. The agencies calculations. Although the agencies the reporting proposal with some minor acknowledge the desired objective agree with industry comments that care modifications. The modifications conveyed by this commenter to ensure must be taken in making comparisons of include: (1) The addition of data item 24 that regulatory capital calculations aggregated risk parameters across for unsettled transactions (balance sheet encompass all exposures within a bank. institutions, the agencies note that amount and risk-weighted assets) in However, the agencies believe it is more comparability concerns have been response to industry comments, (2) the important to delineate exposures by substantially reduced by changes made addition of data item 28 for the exposure categories (and subcategories) to the final rule (such as the elimination

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of expected loss given default or ELGD Reporting of Credit Risk by Fixed these same commenters indicated that and the adoption of the New Accord’s Supervisory Bands changes in regulatory capital could be definition of default for wholesale credit For the wholesale and retail credit better and more efficiently identified exposures). As with the Pillar 3 portfolios (Schedules C through O), through alternative processes such as disclosure requirements, the agencies aggregated information is reported at the on-site reviews. After considering these believe public disclosure of the level of fixed supervisory PD bands as comments, the agencies have decided at information in Schedules A and B is defined within the reporting proposal. this time not to require submissions of consistent with the objectives of market The agencies received a number of the additional information suggested by discipline and transparency advanced comments on the use of supervisory PD this alternative lookback reporting proposal. within the final rule and will provide bands for purposes of aggregating investors and other market participants The agencies continue to see merit in information in the wholesale and retail with a basic set of summary-level being able to identify whether changes schedules (question 2 of the reporting standardized information about the in a bank’s assessment of risk are due proposal). Most commenters indicated main components of banks’ risk-based to changes in the mix of exposures held such aggregations would impose capital requirements. As noted in the or due to changes in risk assessments. reporting burdens over an alternative proposed reporting requirements, banks As a result, the agencies intend to approach discussed in the reporting may be able to use certain data items in publish a proposal for comment that proposal that would have allowed banks these disclosures to augment Pillar 3 would facilitate such analyses. This to report information by internal loan disclosures required by the final rule. notice would identify safety and Data items 1 and 2 only of the grades and internal segments. One soundness issues that could be operational risk schedule (Schedule S), commenter indicated indifference to the addressed by additional data items will also be made publicly available for two reporting approaches for wholesale contained in the proposal as well as reporting periods after a bank has exposures. However, this latter other alternatives beyond a formal qualified to use the advanced commenter indicated that reporting of reporting process for obtaining this approaches for regulatory capital retail exposures by fixed PD bands information. Comments received on this purposes (i.e., once an institution enters would be more practical since reporting proposal will directly influence the into its first transitional floor period). by internal segments could be unwieldy, agencies’ decision whether to collect This requirement is a modification of given the large number of possible additional information beyond what is the reporting proposal, which proposed segments and segmentation schemes contained in the reporting requirements making data items 1 through 7 of this within a given bank, and would reduce, contained in this notice. schedule publicly available along with if not eliminate, comparability. One Wholesale Exposures information in Schedules A and B. A commenter supported reporting by fixed number of commenters raised concerns PD band and suggested that reporting Data reported in Schedules C through that data items 3 through 7 of the burdens could actually increase to J include information about the risk- operational risk schedule contain achieve comparability under the weighted assets, balance sheet proprietary or sensitive information. In alternative approach. exposures, number of obligors, and light of these comments, the agencies The agencies have considered these main components or aggregated risk have reevaluated whether these data comments and have decided to retain parameter estimates of the risk-based elements are appropriate for public reporting by fixed supervisory PD bands capital calculation for wholesale credit disclosure and have concluded they are as presented in the reporting proposal. exposures. Each schedule represents a not. Therefore, all operational risk While the agencies acknowledge some sub-portfolio of the wholesale exposure schedule data items with the exception incremental reporting burden related to category and each portfolio corresponds of data items 1 and 2 will remain this approach, the agencies believe this to a data item on the summary Schedule confidential. Commenters generally reporting format achieves the desired B. The wholesale sub-portfolios are as agreed that data items 1 and 2 of this objective of facilitating peer follows: Corporate (Schedule C); Bank schedule were appropriate for public comparisons of risk-weighted asset and (Schedule D); Sovereign (Schedule E); disclosure. risk parameter estimation information. Income Producing Real Estate or ‘‘IPRE’’ Moreover, the agencies believe that the (Schedule F); High Volatility B. Non-Publicly Available Risk-Based alternative approach could introduce Commercial Real Estate or ‘‘HVCRE’’ Capital Data for the Advanced incremental reporting burdens over the (Schedule G); Eligible Margin Loans, Approaches adopted approach given the need to Repo-Style Transactions, and OTC With the exception of data items 1 develop rules for combining and Derivatives with Cross-product Netting and 2 in Schedule S, information aggregating the large number of possible (Schedule H); Eligible Margin Loans and submitted in Schedules C through S will segmentation schemes used by banks. Repo-Style Transactions without Cross- be shared among the four agencies but product Netting (Schedule I); and OTC will not be released to the public. The Lookback Portfolio Reporting Derivatives without Cross-product data elements contained in these The agencies also received many Netting (Schedule J). As discussed schedules will provide the agencies comments opposing the data collection above, exposures reported in these with additional, aggregated detail about alternative presented in question 1 of schedules are to be grouped into more the components and main drivers of the reporting proposal. This alternative detailed sub-portfolio segments using reporting banks’ risk-based capital involved collecting additional the fixed supervisory PD bands. levels. The agencies will use this information to help identify causes of Several commenters raised concerns information to help focus on-site changes in credit risk regulatory capital about the reporting proposal’s supervisory examination efforts by requirements (the lookback portfolio requirement to calculate and disclose facilitating off-site monitoring of banks’ proposal). Commenters were strongly the impact of guarantees and credit regulatory capital calculations and opposed to this alternative, citing derivatives on risk-weighted assets for regulatory capital trends, and to significant additional reporting burdens wholesale exposures. These commenters facilitate peer comparisons of capital and concerns about the lack of indicated that such a requirement and capital risk estimation parameters. specificity of the alternative. Many of would impose significant burden on

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institutions whose current practice is adjustment approach, banks subject to • One commenter sought clarification not to maintain separate risk the advanced approaches have the that exposures reported in the new information for obligors and guarantors option of using this approach to reduce Schedules I and J include transactions on certain exposures. Some of these capital requirements against hedged not subject to cross-product netting but commenters suggested an alternative wholesale exposures. Therefore, the may be subject to single-product netting. reporting approach that would require agencies have decided to retain these The agencies confirm this reporting of the EAD amounts columns in the wholesale schedules. interpretation; and associated with exposures where risk is The agencies intend to reevaluate the • One commenter indicated that the mitigated by guarantees or credit need for this information in light of PD ranges for the reporting of eligible derivatives. actual submissions. margin loans, repo-style transactions, The agencies have considered these The agencies received the following and OTC derivatives (new Schedules H comments and note that similar technical comments relating to data to through J) should be consistent with the concerns were raised with respect to the be reported in Schedules C through J: PD ranges contained in other wholesale application of the substitution approach • Two commenters indicated possible schedules. The agencies believe that the described in the agencies’ proposed confusion in Schedule E of where to different PD ranges for exposures in rule. For reporting, the agencies have reflect the impact of sovereign these schedules, which contain a larger revised the reporting instructions guarantees since such guarantees often number of lower-risk PD bands, will relating to credit risk mitigation to are used to reduce corporate exposures, likely result in more meaningful conform to the final rule. Specifically, not sovereign exposures. These reported distributions of exposures banks need not calculate and report the commenters noted that the confusion across the credit quality spectrum for impact of guarantees and credit could be eliminated by adopting a these sub-portfolios. Accordingly, the derivatives on risk-weighted assets recommendation to report the EAD of agencies have decided to retain the PD where a bank extends credit based exposures eligible for the substitution, bands as proposed. However, to capture solely on the financial strength of a LGD adjustment, or double default a larger range of low-risk exposures and guarantor, provided the bank applies the approaches. In response, the agencies achieve better comparability across PD substitution approach to all have modified the reporting instructions exposure categories, the agencies have exposures of that obligor. The agencies to indicate that while banks should also decided to widen one of the PD believe that this modification to the generally use the underlying obligor as bands and align the end points of two reporting instructions should alleviate the basis for categorizing wholesale PD bands with those in other wholesale much of the concern expressed in the credit exposures, the categorization of credit schedules. Specifically, the PD comments since reporting the effects of wholesale exposures may be determined band for line 2 on these schedules was credit risk mitigation on risk-weighted by the guarantor in cases where a PD is widened to 0.03 to 0.10 (from 0.03 to assets would be required only in those not assigned to the obligor; 0.05 in the reporting proposal); and the situations where the bank is required by • One commenter sought clarification PD bands for lines 3 and 4 were changed the final rule to maintain separate of the term ‘‘Number of Obligors’’ listed to 0.10 to 0.15 and 0.15 to 0.25, internal risk ratings for a wholesale as a column in Schedules C through G respectively (from 0.05 to 0.10 and 0.10 obligor and the guarantor or credit under the following scenarios: (i) When to 0.25, respectively). provider under a credit derivative. The a bank has multiple facilities The agencies made two additional agencies note that reporting under the outstanding to one borrower; (ii) when clarifications in the instructions to the double default approach is not affected a bank lends to both a subsidiary and to wholesale exposure Schedules C by this modification since separate a parent of that same facility; and (iii) through J to conform reporting to the internal risk ratings are a necessary when a bank has two exposures to an final rule. Both of these clarifications requirement to calculate regulatory risk- obligor, one with no guarantee and the relate to the basis for assigning based capital using this approach. In other with a guarantee. The agencies exposures to the fixed supervisory PD those cases where it is feasible to do so, note that similar comments were bands specified within each wholesale the agencies are retaining the approach received with respect to the internal risk exposure schedule. Generally, these contained in the reporting proposal to rating assignment process described in assignments should be based on the PD require institutions to report the impact the proposed rule and that a formal estimates associated with the internal of credit risk mitigation on risk- definition for obligor was adopted in the loan rating assigned to the obligor. weighted assets rather than adopt the final rule as a result. For reporting However, consistent with the final rule, suggestion made in some comments to purposes, banks should apply this same an exception is made in cases where the report the EAD related to exposures definition when determining how to bank extends credit based solely on the eligible for the substitution, LGD quantify the number of obligors to financial strength of the guarantor adjustment, or double default report in Schedules C through G; 4 provided that all of the bank’s exposures approaches. to an obligor are fully covered by One commenter also questioned the 4 The final rule defines an obligor as the legal eligible guarantees and the bank applies need for a separate column for the entity or natural person contractually obligated on the PD substitution approach to all of weighted average LGD percentage before a wholesale exposure except that a bank may treat those exposures. In these cases, banks the following exposures as having separate obligors: consideration of guarantees and credit (1) Exposures to the same legal entity or natural may use the PD estimate associated with derivatives, arguing that banks have person denominated in different currencies; (2)(i) the internal loan grade assigned to the little incentive to use the LGD an income-producing real estate exposure for which guarantor for purposes of assigning adjustment approach since adjustment all or substantially all of the repayment of the exposures to a given fixed supervisory exposure is reliant on cash flows of the real estate is subject to a floor based on the PD serving as collateral for the exposure; the bank, in PD band. Another exception is made for substitution approach (i.e., the risk- economic substance, does not have recourse to the eligible purchased wholesale exposures based capital requirement for a hedged borrower beyond the real estate serving as exposure can never be lower than that collateral; and no cross-default or cross-acceleration of the U.S. Bankruptcy Code (11 U.S.C. 364) to a of a direct exposure to the protection clauses are in place other than clauses obtained legal entity or natural person who is a debtor-in- solely out of an abundance of caution; and (ii) other possession for purposes of Chapter 11 of the provider). Notwithstanding any credit exposures to the same legal entity; and (3)(i) Bankruptcy Code; and (ii) other credit exposures to disincentives to using the LGD a wholesale exposure authorized under section 364 the same legal entity or natural person.

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(as defined in the final rule). For these requirements, is not always used in a loan seasoning is likely to be an exposures, banks should use segment- bank’s segmentation processes, and is important risk driver for many types of level risk estimates for purposes of not always readily available and retail exposures, especially for closed- assigning exposures to a given fixed therefore potentially burdensome to end mortgage exposures. Accordingly, supervisory PD band.5 This treatment is collect (particularly information for closed-end mortgages, the agencies consistent with paragraph (d)(4) of pertaining to updated LTVs). The are retaining the definition of account section 31 of the final rule. agencies note that the instructions age, which requires that banks The agencies made the following accompanying the reporting proposal determine the age of an account (in additional modifications to Schedules required reporting of LTV-related months) with respect to the account’s H, I, and J: (1) To conform reporting to information only to the extent the origination date. For revolving the final rule, the agencies added a data information is available. The agencies exposures, the agencies agree that item 13 to columns C and E in continue to believe that LTV is likely to account age (in months) should be Schedules H and I to capture the EAD be an important risk driver for mortgage determined with respect to the time on and risk-weighted asset amounts exposures and will be used by many the bank’s books. For all other retail associated with eligible margin loans institutions in the mortgage exposures, the agencies will allow banks subject to a 300 percent risk weight, (2) segmentation process. Several the flexibility to determine the age of an data items for reporting the number of commenters also questioned the account using a reference point deemed counterparties were eliminated from all collection of weighted average bureau most logical by the reporting bank. three schedules, and (3) certain captions scores, and the names and types of The agencies received the following and footnotes were modified for clarity credit scoring systems used, for retail technical comments relating to data to and to conform to the terminology used exposures. These commenters indicated be reported in Schedules K through O: in the final rule. in general that this risk driver • Two commenters indicated that it information was not necessary for Retail Exposures was not a common practice to include determination of risk-based capital both junior and senior lien positions in Data reported in Schedules K through requirements, is not always used in a the calculation of LTVs when only the O include information about the risk- bank’s segmentation processes, and may senior lien position was held. These weighted assets, balance sheet not be meaningful for banks that use comments recommended that only exposures, the number of accounts, and internal scores or behavioral scores in senior lien positions be included in the the main components or risk parameters their risk measurement and calculation for first lien exposures. The of the risk-based capital calculation for segmentation processes. Some agencies agree with this comment and retail credit exposures. These schedules commenters also indicated that some have revised the footnotes and also incorporate information pertaining scoring systems (for example, non-U.S. instructions for first lien mortgage to risk characteristics believed to be scores) would not align with each other, exposures accordingly; commonly used drivers within banks’ making the calculation of weighted • A commenter sought confirmation risk management and measurement averages either incomplete or that LTV cell values do not cumulate processes, to include information on potentially misleading. The agencies across the columns. The agencies loan-to-values, credit bureau scores, and note that the instructions accompanying confirm that the LTV cell values do not account seasoning. Each schedule the reporting proposal required cumulate across the columns and have represents a sub-portfolio of the retail reporting of credit bureau score reworded the appropriate footnotes in exposure category and each portfolio information only to the extent the the mortgage schedules; and corresponds to a data item on the public information is available, and only for • A commenter indicated that if LTV Schedule B. These retail sub-portfolios commonly-mapped scoring systems reporting is retained, an additional are as follows: Residential Mortgage— used for the largest proportion of column should be added to encompass Closed-end First Lien Exposures exposures in a sub-portfolio when exposures where the LTV is unknown. (Schedule K); Residential Mortgage— multiple scoring systems are used. The Since the reporting of LTV information Closed-end Junior Lien Exposures agencies continue to believe that credit is required only when the information is (Schedule L); Residential Mortgage— bureau scores are likely to be an available, the agencies do not believe it Revolving Exposures (Schedule M); important risk driver for many types of is necessary to collect information Qualifying Revolving Exposures retail exposures and will be used by pertaining to exposures with unknown (Schedule N); and Other Retail many institutions in their retail LTVs. Exposures (Schedule O). As with the segmentation processes. After further consideration, the wholesale credit schedules, exposures Some commenters also raised agencies have made an additional reported in these schedules are to be concerns about reporting the age of modification to the retail credit risk grouped into more detailed sub- mortgage exposures. These commenters schedules to eliminate all columns portfolio segments using the fixed indicated that this information is not requiring the reporting of weighted supervisory PD bands. always used to segment mortgage loan average LGD before consideration of Many commenters objected to the exposures and that there could be a eligible guarantees and credit inclusion of information pertaining to number of possible ways to interpret the derivatives. The agencies believe that loan-to-values (LTV) and EAD of term ‘‘average age’’ used to calculate the the quantification of this data item accounts with updated LTVs for weighted average age of a mortgage could have imposed an excessive mortgage exposures. These commenters exposure depending on whether the burden on banks since it would have indicated in general that this risk driver loan was originated or purchased. These required disentangling the effect of information was not necessary for commenters indicated that it would be credit risk mitigation on LGDs assigned determination of risk-based capital significantly burdensome to determine to a retail segment. Accordingly, the months since origination for purchased LGD estimates reflected in all retail 5 Reporting of other risk parameters (LGD, EAD, M, and ECL) for eligible purchased wholesale loans and sought confirmation that the credit exposure schedules should be exposures should also be done on a segment-level number of months on books could be inclusive of any credit risk mitigation basis. used instead. The agencies believe that effects.

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Securitization Exposures no IRB treatment for the underlying proposed data items 7 and 8, for Schedule P provides information by exposures,’’ was replaced by data item ‘‘excluded equity exposures to rating categories about exposures 2, requiring reporting of all other investment funds’’ and ‘‘aggregate subject to either the Ratings-Based securitization deductions; (3) proposed equity exposures in hedge pairs with Approach (RBA) or the Internal data item 2, deductions under the SFA, smaller adjusted carrying value;’’ (ii) the Assessment Approach (IAA). Schedule was consolidated with proposed data elimination of reporting for the 100 Q provides additional memoranda item 3 requiring reporting of exposures percent risk-weight category for FHLB/ information about unrated securitization and risk-weighted assets for this Farmer Mac exposures proposed data exposures, exposures treated under the approach (see data item 3); (4) reporting item 4 (such exposures are risk of exposures and risk-weighted assets of weighted at 20 percent under the final Supervisory Formula Approach (SFA), synthetic exposures and hedged rule); (iii) the addition of data item 9, synthetic securitizations, and risk- synthetic exposures on proposed data ‘‘600 percent risk weight equity weighted assets relating to early items 4 and 5 were consolidated into exposures under the Simple Risk amortization features of securitizations one line (see data item 4); and (5) the Weighted Approach (SRWA)’’ to as prescribed in the final rule. captions for proposed data items 7 and conform with the final rule; (iv) the The agencies did not receive any 8, relating to investors’ interest in addition of data item 14 for reporting substantive comments on the securitization, were modified to exposures to investment funds eligible securitization exposure schedules but conform to the terminology used in the for treatment under the Money Market did receive the following technical final rule. Fund Approach defined within the final comments: rule; and (v) splitting proposed data • One commenter requested Equity Exposures items 13, 18, and 22 to better conform clarification on how to report long-term Data reported in Schedule R contains with the logical flow of the calculation securitization exposures rated more exposure amount and risk-weighted of risk-weighted assets for equity than one category below investment asset information about a bank’s equity exposures under the final rule using one grade, and short-term securitization exposures by type of exposure and by of three different approaches: the exposures rated below the third highest approach to measuring required capital SRWA, the full Internal Models grade. The agencies have clarified including equity exposures subject to Approach (IMA), or the partial IMA. reporting instructions to indicate that specific risk weights and equity such exposures are not to be reported in exposures to investment funds. Banks Operational Risk Schedule P. These low-rated exposures would also complete the appropriate The new Schedule S provides data are to be included in the appropriate section of the schedule based on items pertaining to risk-based capital data items of Schedule A (lines 9f and whether it uses a simple risk weight held against operational risk as well as 17c); approach, a full internal models various details about historical • One commenter requested approach, or a partially modeled operational losses used to model clarification about the possible approach to measuring required capital operational risk capital. The schedule inconsistency of reporting between data for equity exposures. also contains data items related to items 1 and 2 on the securitization The agencies received the following scenarios, distribution assumptions, and detail schedule (new Schedule Q) and technical comments on the equity risk loss caps used to model operational risk data item 5 of schedule for schedule: capital. securitization exposures subject to • Two commenters indicated that the The agencies received several either the RBA or IAA (Schedule P). As flow of the schedule’s sections was comments objecting to quarterly described below, the agencies have confusing and recommended that the disclosures of certain data contained in made a number of modifications to the schedule be redesigned. These the proposed operational risk schedule, securitization detail schedule to commenters also requested clarification particularly those disclosures pertaining improve the consistency and logical of reporting for certain data items such to the disclosure of historical loss event flow of the schedule as well as to as equity investments in investment frequency and severity information. conform reported data items and funds that have material liabilities. In These commenters indicated that such captions with the final rule; and response, the agencies have modified disclosures were contrary to the • Multiple comments were received the equity schedule to more closely principles outlined in the Basel about the burdens associated with align with the structure and flow of the Committee’s New Accord and calculating the risk-weighted assets for equity risk capital calculation represented only a portion of securitization exposures not capped approaches contained in the final rule. information that is used to develop under section 42(d) of the final rule The agencies have also developed more regulatory capital for operational risk. (data item 6b of Schedule T in the specific reporting instructions and After considering these comments, the reporting proposal). The agencies have modified captions of reported data items agencies have made several removed this data item from the new to conform with the terminology used in modifications to the reporting Schedule Q. the final rule. With respect to the requirements for operational risk data The following additional treatment of equity investments in items that includes the elimination of modifications were made to the investment funds with material certain data items (i.e., the reporting of securitization detail schedule (new liabilities, the agencies refer to the current period loss distribution schedule Q) to more comprehensively discussion of such investments in information) and the inclusion of capture securitization deductions section V.F.4 in the preamble of the conditional reporting for a number of specified in the final rule and to final rule. data items depending on whether a bank consolidate certain data items on the The agencies made several additional uses a given technique (e.g., historical schedule: (1) Data item 1 was added to modifications to the equity schedule to loss distributions or scenario analyses) require reporting of deductions under simplify reporting and conform data or parameterization assumption (e.g., the RBA and IAA approaches; (2) items within the schedule to the final loss threshold) to develop regulatory proposed data item 1, ‘‘unrated rule. These changes include the capital requirements for operational exposures requiring deduction because following: (i) The elimination of risk. In cases where these techniques or

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assumptions are not used, banks would transactions as long as they are all (a) Whether the proposed new report either ‘‘N/A’’ or ‘‘0’’ (none) for related to the same event. However, collections of information are necessary these data items, as discussed in the losses that do not relate to the same for the proper performance of the instructions. event should be considered separate agencies’ functions, including whether Several commenters also raised a loss events and should be separately the information has practical utility; question about which specific counted for purposes of reporting data (b) The accuracy of the agencies’ subsidiaries the operational risk items 11 through 15. The instructions estimates of the burden of the proposed disclosures would apply to. The have also been clarified to state that information collections, including the agencies believe that all banking reporting of the dollar volume of losses validity of the methodology and subsidiaries that qualify for and adopt in data item 15 should be calculated on assumptions used; the advanced approaches for calculating an event basis. In addition, data item (c) Ways to enhance the quality, regulatory capital should be required to 14a for loss events ‘‘less than $10,000’’ utility, and clarity of the information to submit information about the regulatory and data item 15a for the dollar amount be collected; capital held against operational risk of losses ‘‘Less than $10,000’’ have been (d) Ways to minimize the burden of capital to include certain details about added to provide a comprehensive information collections on respondents, the information used to model distribution of loss events. The agencies including through the use of automated operational risk capital. In those have eliminated the requirement to collection techniques or other forms of situations where a banking subsidiary report loss event information pertaining information technology; and does not use a specified technique or to the ‘‘current reporting period’’ and (e) Estimates of capital or start up assumption, it will be allowed to report therefore see no need to allow banks to costs and costs of operation, either ‘‘N/A’’ or ‘‘0’’ depending on the report remaining loss event information maintenance, and purchase of services context of the reported data item. on a one quarter lagged basis; to provide information. The agencies received the following • Comments submitted in response to Two commenters requested this joint notice will be shared among technical comments on the operational confirmation that information risk schedule: the agencies. All comments will become pertaining to the number of scenarios • Several commenters requested a matter of public record. used to model operational risk capital clarification whether column B in the on data items 16 through 18 referred to Dated: January 10, 2008. proposed operational risk reporting Stuart E. Feldstein, schedule refers to the quarterly the number of relevant industry events. The agencies have clarified the Assistant Director, Legislative and Regulatory reporting period for the schedule or for Activities Division, Office of the Comptroller a model that may be annual. The reporting instructions to state that only scenarios used in calculating the risk- of the Currency. agencies have decided to eliminate Board of Governors of the Federal Reserve column B from the schedule; based capital requirements for • operational risk should be included in System, January 17, 2008. Several commenters requested Robert deV. Frierson, clarification on how to report starting these data items. In addition, data item Deputy Secretary of the Board. and ending dates for event loss data 18a, for scenario analysis in the range of when these dates differ for frequency ‘‘less than $1 million’’ was added in Dated at Washington, DC, this 14th day of January, 2008. and for severity estimation purposes. order to provide a comprehensive The agencies have revised the schedule distribution of scenario data; Federal Deposit Insurance Corporation. to request starting and ending dates for • Several commenters requested Robert E. Feldman, both historical frequency and severity clarification of information pertaining to Executive Secretary. distribution data, and only to the extent distributional assumptions in data items Dated: January 17, 2008. a bank uses this information to model 20 and 21 as to whether the change in Deborah Dakin, operational risk capital (see data items assumptions refers to a change in a Senior Deputy Chief Counsel, Regulations and 8a through 8d); parameter of a distribution or a change Legislation Division, The Office of Thrift • Several commenters requested in the distribution class or type. The Supervision. clarification of how to report loss agencies have clarified the instructions [FR Doc. E8–1198 Filed 1–23–08; 8:45 am] thresholds in data item 9 of the to specify that the change in BILLING CODE 4810–33–P, 6714–01–P, 6210–01–P, schedule when multiple thresholds are assumptions refers to a change in 6720–01–P used within the modeling framework. distribution type. Further, no reporting The agencies have clarified the is required when the bank does not use instructions to require reporting of the a frequency or severity distribution to FEDERAL MARITIME COMMISSION largest threshold used; model risk-based capital for operational • Several commenters requested risk; and Notice of Agreements Filed clarification of how to report the • Several commenters requested The Commission hereby gives notice number and dollar amount of individual confirmation that the agencies would of the filing of the following agreements loss events in data items 11 through 15 accept ‘‘not applicable’’ in response to under the Shipping Act of 1984. of the schedule when losses below the loss cap information requested in Interested parties may submit comments internal thresholds are aggregated data items 22 through 24 when a bank on agreements to the Secretary, Federal without capturing the number of does not use loss caps. The agencies Maritime Commission, Washington, DC individual events. Another commenter have clarified the instructions to report 20573, within ten days of the date this also requested that banks be allowed to the number ‘‘0’’ on line 22 and ‘‘N/A’’ notice appears in the Federal Register. report losses on an event basis rather in lines 23 and 24 when no loss caps are Copies of agreements are available than a dollar volume basis and that used. through the Commission’s Office of banks be allowed to report such V. Request for Comment Agreements (202–523–5793 or information on a one quarter lagged [email protected]). basis. The agencies have clarified the Public comment is requested on all Agreement No.: 011839–007. instructions to specify that a loss event aspects of this joint notice. Comments Title: Med-Gulf Space Charter may encompass multiple loss are invited on: Agreement.

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Parties: Hapag-Lloyd AG and methods of competition. The attached FOR FURTHER INFORMATION CONTACT: Compania Sud Americana de Vapores Analysis to Aid Public Comment Gregory Ashe (202–326–3719) or Janice S.A. describes both the allegations in the Frankle (202–326–3022), Bureau of Filing Party: Wayne R. Rohde, Esq.; complaint and the terms of the consent Consumer Protection, 600 Pennsylvania Sher & Blackwell; 1850 M Street, NW.; order—embodied in the consent Avenue, NW., Washington, D.C. 20580. Suite 900; Washington, DC 20036. agreement—that would settle these SUPPLEMENTARY INFORMATION: Pursuant Synopsis: The amendment would allegations. to section 6(f) of the Federal Trade reduce the amount of space chartered to DATES: Comments must be received on Commission Act, 38 Stat. 721, 15 U.S.C. Compania Sud Americana de Vapores or before February 19, 2008. 46(f), and § 3.25(f) of the Commission S.A. Rules of Practice, 16 CFR 3.25(f), notice ADDRESSES: Interested parties are Agreement No.: 011962–004. is hereby given that the above-captioned invited to submit written comments. Title: Consolidated Chassis consent agreement containing a consent Comments should refer to ‘‘Herbs Management Pool Agreement. order to cease and desist, having been Nutrition, Docket No. 9325,’’ to facilitate Parties: The Ocean Carrier Equipment filed with and accepted, subject to final the organization of comments. A Management Association and its approval, by the Commission, has been comment filed in paper form should member lines; the Association’s placed on the public record for a period include this reference both in the text subsidiary Consolidated Chassis of thirty (30) days. The following and on the envelope, and should be Management LLC and its affiliates; Analysis to Aid Public Comment mailed or delivered to the following China Shipping Container Lines Co., describes the terms of the consent address: Federal Trade Commission/ Ltd.; Companhia Libra de Navegacao; agreement, and the allegations in the Office of the Secretary, Room 135-H, Compania Libra de Navegacion complaint. An electronic copy of the 600 Pennsylvania Avenue, N.W., Uruguay; Matson Navigation Co.; full text of the consent agreement Washington, D.C. 20580. Comments Mediterranean Shipping Co., S.A.; package can be obtained from the FTC containing confidential material must be Norasia Container Lines Limited; Home Page (for January 17, 2008), on filed in paper form, must be clearly Westwood Shipping Lines; and Zim the World Wide Web, at http:// labeled ‘‘Confidential,’’ and must Integrated Shipping Services Ltd. www.ftc.gov/os/2008/01/index.htm. A comply with Commission Rule 4.9(c). Filing Party: Jeffrey F. Lawrence, Esq.; paper copy can be obtained from the 16 CFR 4.9(c) (2005).1 The FTC is Sher & Blackwell LLP; 1850 M Street, FTC Public Reference Room, Room 130- requesting that any comment filed in NW.; Suite 900; Washington, DC 20036. H, 600 Pennsylvania Avenue, NW, paper form be sent by courier or Synopsis: The amendment would add Washington, D.C. 20580, either in overnight service, if possible, because the Midwest Consolidated Chassis Pool person or by calling (202) 326-2222. U.S. postal mail in the Washington area LLC as a member to the agreement. Public comments are invited, and may and at the Commission is subject to be filed with the Commission in either Agreement No.: 012023. delay due to heightened security paper or electronic form. All comments Title: CSAV/NYK ECUS–WCSA Space precautions. Comments that do not should be filed as prescribed in the Charter Agreement. contain any nonpublic information may ADDRESSES section above, and must be Parties: Compania Sud Americana de instead be filed in electronic form as received on or before the date specified Vapores S.A. and Nippon Yusen Kaisha. part of or as an attachment to email in the DATES section. Filing Party: Wayne R. Rohde, Esq.; messages directed to the following email Analysis of Agreement Containing Sher & Blackwell LLP; 1850 M Street, box: [email protected]. Consent Order to Aid Public Comment NW.; Suite 900; Washington, DC 20036. The FTC Act and other laws the Synopsis: The agreement authorizes Commission administers permit the The Federal Trade Commission CSAV to charter space to NYK for the collection of public comments to (‘‘FTC’’ or ‘‘Commission’’) has accepted, carriage of vehicles from Baltimore and consider and use in this proceeding as subject to final approval, an agreement Miami to ports in Chile and Peru. appropriate. All timely and responsive containing a consent order from Herbs By Order of the Federal Maritime public comments, whether filed in Nutrition Corporation, a corporation, Commission. paper or electronic form, will be and Syed Jafry, individually and as an Dated: January 18, 2008. considered by the Commission, and will officer of Herbs Nutrition (together, Karen V. Gregory, be available to the public on the FTC ‘‘respondents’’). The proposed order resolves the allegations of the complaint Assistant Secretary. website, to the extent practicable, at www.ftc.gov. As a matter of discretion, issued against the respondents on [FR Doc. E8–1225 Filed 1–23–08; 8:45 am] September 28, 2007. BILLING CODE 6730–01–P the FTC makes every effort to remove home contact information for The proposed consent order has been individuals from the public comments it placed on the public record for thirty receives before placing those comments (30) days for reception of comments by FEDERAL TRADE COMMISSION on the FTC website. More information, interested persons. Comments received during this period will become part of [Docket No. 9325] including routine uses permitted by the Privacy Act, may be found in the FTC’s the public record. After thirty (30) days, Herbs Nutrition Corporation, et al.; privacy policy, at http://www.ftc.gov/ the Commission will again review the Analysis of Proposed Consent Order ftc/privacy.htm. agreement and the comments received to Aid Public Comment and will decide whether it should withdraw from the agreement or make 1 The comment must be accompanied by an AGENCY: Federal Trade Commission. explicit request for confidential treatment, final the agreement’s proposed order. ACTION: Proposed Consent Agreement. including the factual and legal basis for the request, This matter involves the advertising and must identify the specific portions of the and promotion of Eternal Woman SUMMARY: The consent agreement in this comment to be withheld from the public record. Progesterone Cream and Pro-Gest Body The request will be granted or denied by the matter settles alleged violations of Commission’s General Counsel, consistent with Cream, transdermal creams that, federal law prohibiting unfair or applicable law and the public interest. See according to their respective labels, deceptive acts or practices or unfair Commission Rule 4.9(c), 16 CFR 4.9(c). contain, among other ingredients,

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natural progesterone. According to the corporate structure and changes in requesting that any comment filed in Commission’s complaint, the employment that might affect paper form be sent by courier or respondents represented that Eternal compliance obligations under the order; overnight service, if possible, because Woman Progesterone Cream and Pro- and to file compliance reports with the U.S. postal mail in the Washington area Gest Body Cream: (1) were effective in Commission. Part IX provides that the and at the Commission is subject to preventing, treating, or curing order will terminate after twenty (20) delay due to heightened security osteoporosis; (2) were effective in years under certain circumstances. precautions. Comments that do not preventing or reducing the risk of The purpose of this analysis is to contain any nonpublic information may estrogen-inducted endometrial (uterine) facilitate public comment on the instead be filed in electronic form as cancer; and (3) did not increase the proposed order. It is not intended to part of or as an attachment to email user’s risk of developing breast cancer constitute an official interpretation of messages directed to the following email and/or were effective in preventing or the agreement and proposed order or to box: [email protected]. reducing the user’s risk of developing modify in any way their terms. The FTC Act and other laws the breast cancer. The complaint alleged By direction of the Commission. Commission administers permit the that the respondents failed to have collection of public comments to Donald S. Clark substantiation for these claims. The consider and use in this proceeding as proposed consent order contains Secretary appropriate. All timely and responsive provisions designed to prevent the [FR Doc. E8–1169 Filed 1–23–08: 8:45 am] public comments, whether filed in respondents from engaging in similar [BILLING CODE 6750–01–S] paper or electronic form, will be acts and practices in the future. considered by the Commission, and will Part I of the proposed order requires be available to the public on the FTC the respondents to have competent and FEDERAL TRADE COMMISSION website, to the extent practicable, at reliable scientific evidence [File No. 072 3046] www.ftc.gov. As a matter of discretion, substantiating claims that any the FTC makes every effort to remove progesterone product or any other Life is good, Inc., and Life is good home contact information for dietary supplement, food, drug, device Retail, Inc.; Analysis of Proposed individuals from the public comments it or health-related service or program is Consent Order to Aid Public Comment receives before placing those comments effective in preventing, treating, or on the FTC website. More information, curing osteoporosis, in preventing or AGENCY: Federal Trade Commission. including routine uses permitted by the reducing the risk of estrogen-induced ACTION: Proposed Consent Agreement. Privacy Act, may be found in the FTC’s endometrial cancer or breast cancer, or privacy policy, at http://www.ftc.gov/ SUMMARY: The consent agreement in this in the mitigation, treatment, prevention, matter settles alleged violations of ftc/privacy.htm. or cure of any disease, illness, or health federal law prohibiting unfair or FOR FURTHER INFORMATION CONTACT: condition; that it does not increase the deceptive acts or practices or unfair Jessica Rich, FTC Bureau of Consumer user’s risk of developing breast cancer, methods of competition. The attached Protection, 600 Pennsylvania Avenue, is safe for human use, or has no side Analysis to Aid Public Comment NW., Washington, D.C. 20580, (202) effects; or about its health benefits, describes both the allegations in the 326-2252. performance, efficacy, safety, or side draft complaint and the terms of the SUPPLEMENTARY INFORMATION: Pursuant effects. consent order—embodied in the consent to section 6(f) of the Federal Trade Part II of the proposed order prevents Commission Act, 38 Stat. 721, 15 U.S.C. the respondents from misrepresenting agreement—that would settle these allegations. 46(f), and § 2.34 of the Commission the existence, contents, validity, results, Rules of Practice, 16 CFR 2.34, notice is conclusions, or interpretations of any DATES: Comments must be received on hereby given that the above-captioned test, study, or research. or before February 19, 2008. consent agreement containing a consent Part III of the proposed order provides ADDRESSES: Interested parties are order to cease and desist, having been that the order does not prohibit the invited to submit written comments. filed with and accepted, subject to final respondents from making Comments should refer to ‘‘Life is good, approval, by the Commission, has been representations for any drug that are File No. 072 3046,’’ to facilitate the placed on the public record for a period permitted in labeling for the drug under organization of comments. A comment of thirty (30) days. The following any tentative final or final Food and filed in paper form should include this Analysis to Aid Public Comment Drug Administration (‘‘FDA’’) standard reference both in the text and on the describes the terms of the consent or under any new drug application envelope, and should be mailed or agreement, and the allegations in the approved by the FDA; representations delivered to the following address: complaint. An electronic copy of the for any medical device that are Federal Trade Commission/Office of the full text of the consent agreement permitted in labeling under any new Secretary, Room 135-H, 600 package can be obtained from the FTC medical device application approved by Pennsylvania Avenue, NW., Home Page (for January 17, 2008), on the FDA; and representations for any Washington, D.C. 20580. Comments the World Wide Web, at http:// product that are specifically permitted containing confidential material must be www.ftc.gov/os/2008/01/index.htm. A in labeling for that product by filed in paper form, must be clearly paper copy can be obtained from the regulations issued by the FDA under the labeled ‘‘Confidential,’’ and must FTC Public Reference Room, Room 130- Nutrition Labeling and Education Act of comply with Commission Rule 4.9(c). H, 600 Pennsylvania Avenue, NW., 1990. 16 CFR 4.9(c) (2005).1 The FTC is Washington, D.C. 20580, either in Parts IV through VIII require the person or by calling (202) 326-2222. respondents to keep copies of relevant 1 The comment must be accompanied by an Public comments are invited, and may advertisements and materials explicit request for confidential treatment, be filed with the Commission in either substantiating claims made in the including the factual and legal basis for the request, and must identify the specific portions of the paper or electronic form. All comments advertisements; to provide copies of the comment to be withheld from the public record. order to certain of their personnel; to The request will be granted or denied by the applicable law and the public interest. See notify the Commission of changes in Commission’s General Counsel, consistent with Commission Rule 4.9(c), 16 CFR 4.9(c).

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should be filed as prescribed in the related types of attacks; (4) failed to use 4. Develop and use reasonable steps to ADDRESSES section above, and must be readily available security measures to retain service providers capable of received on or before the date specified monitor and control connections from appropriately safeguarding personal in the DATES section. the network to the internet; and (5) information they receive from failed to employ sufficient measures to Analysis of Agreement Containing respondents, require service providers Consent Order to Aid Public Comment detect unauthorized access to credit by contract to implement and maintain card information. appropriate safeguards, and monitor The Federal Trade Commission has The complaint further alleges that their safeguarding of personal accepted, subject to final approval, a between June and August 2006, a hacker information. consent agreement from Life is good, exploited Life is good’s failures by using Inc. and Life is good Retail, Inc. SQL injection attacks on Life is good’s 5. Evaluate and adjust its information (collectively, ‘‘Life is good’’). website and web application and security program in light of the results The proposed consent order has been exporting to the hacker’s browser of the testing and monitoring, any placed on the public record for thirty consumer information for thousands of material changes to its operations or (30) days for receipt of comments by customers, including credit card business arrangements, or any other interested persons. Comments received numbers, expiration dates, and security circumstances that it knows or has during this period will become part of codes. reason to know may have a material the public record. After thirty (30) days, The proposed order applies to impact on the effectiveness of their the Commission will again review the personal information Life is good information security program. agreement and the comments received, collects from or about consumers. It and will decide whether it should Part III of the proposed order requires contains provisions designed to prevent withdraw from the agreement and take that Life is good obtain, covering the Life is good from engaging in the future appropriate action or make final the first 180 days after the order is served, in practices similar to those alleged in agreement’s proposed order. and on a biennial basis thereafter for Life is good designs and distributes the complaint. twenty (20) years, an assessment and retail apparel and accessories and Part I of the proposed order prohibits report from a qualified, objective, operates a retail website at Life is good, in connection with the independent third-party professional, www.lifeisgood.com. In selling its collection of personally identifiable certifying, among other things, that (1) products, Life is good routinely has information from or about consumers, in it has in place a security program that collected sensitive information from or affecting commerce, from provides protections that meet or exceed consumers, including name, address, e- misrepresenting the extent to which it the protections required by Part II of the maintains and protects the privacy, mail address, phone number, credit card proposed order; and (2) its security confidentiality, or integrity of such number, credit card expiration date, and program is operating with sufficient information. credit card security code (hereinafter effectiveness to provide reasonable Part II of the proposed order requires ‘‘consumer information’’). Life is good assurance that the security, Life is good to establish and maintain a has collected this consumer information confidentiality, and integrity of through its website and telephone comprehensive information security program in writing that is reasonably consumers’ personal information is orders and stored it on a network protected. computer accessible through the designed to protect the security, website. This matter concerns alleged confidentiality, and integrity of personal Parts IV through VII of the proposed false or misleading representations Life information collected from or about order are reporting and compliance is good made about the security it consumers. The security program must provisions. Part IV requires Life is good provided for this information. contain administrative, technical, and to retain documents relating to their The Commission’s proposed physical safeguards appropriate to Life compliance with the order. For most complaint alleges that Life is good is good’s size and complexity, the records, the order required that the represented that it implemented nature and scope of its activities, and documents be retained for a five-year reasonable and appropriate security the sensitivity of the personal period. For the third-party assessments measures to protect the privacy and information collected from or about and supporting documents, Life is good confidentiality of sensitive consumer consumers. Specifically, the order must retain the documents for a period information. The complaint alleges this requires Life is good to: of three years after the date that each representation was false because Life is 1. Designate an employee or assessment is prepared. Part V requires good engaged in a number of practices employees to coordinate and be dissemination of the order now and in that, taken together, failed to provide accountable for the information security the future to persons with reasonable and appropriate security for program. responsibilities relating to the subject the sensitive consumer information 2. Identify material internal and matter of the order. Part VI ensures stored on its computer network. In external risks to the security, notification to the FTC of changes in particular, Life is good: (1) created confidentiality, and integrity of personal corporate status. Part VII mandates that unnecessary risks to credit card information that could result in the Life is good submit an initial unauthorized disclosure, misuse, loss, information by storing it indefinitely in compliance report to the FTC, and make clear, readable text on its network alteration, destruction, or other available to the FTC subsequent reports. without a business need, and by storing compromise of such information, and Part VIII is a provision ‘‘sunsetting’’ the credit card security codes; (2) failed to assess the sufficiency of any safeguards order after twenty (20) years, with assess adequately the vulnerability of its in place to control these risks. web application and corporate computer 3. Design and implement reasonable certain exceptions. network to certain commonly known or safeguards to control the risks identified The purpose of the analysis is to aid reasonably foreseeable attacks, such through risk assessment, and regularly public comment on the proposed order. SQL injection attacks; (3) failed to test or monitor the effectiveness of the It is not intended to constitute an implement simple, free or low-cost, and safeguards’ key controls, systems, and official interpretation of the proposed readily available defenses to SQL and procedures. order or to modify its terms in any way.

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By direction of the Commission. burden to the Regulatory Secretariat DEPARTMENT OF HEALTH AND (VIR), General Services Administration, HUMAN SERVICES Donald S. Clark Room 4035, 1800 F Street, NW., Secretary Washington, DC 20405. Please cite OMB Administration for Children and [FR Doc. E8–1168 Filed 1–23–08: 8:45 am] Control No. 3090–0197, GSAR Provision Families [BILLING CODE 6750–01–S] 552.237–70, Qualifications of Offerors, Submission for OMB Review; in all correspondence. Comment Request GENERAL SERVICES SUPPLEMENTARY INFORMATION: ADMINISTRATION Title: Application Requirements for A. Purpose the Low Income Home Energy [OMB Control No. 3090–0197] Assistance Program (LIHEAP) The General Services Administration Residential Energy Assistance Challenge General Services Administration (GSA) has various mission Program (REACH) Model Plan. Acquisition Regulation;Information responsibilities related to the OMB No.: New Collection. Collection; GSAR Provision 552.237– acquisition and provision of service 70, Qualifications of Offerors Description: States, including the contracts. These mission responsibilities District of Columbia, Tribes, Tribal AGENCY: Office of the Chief Acquisition generate requirements that are realized organizations and Territories applying Officer, GSA. through the solicitation and award of for LIHEAP REACH funds must submit ACTION: Notice of request for comments contracts for building services. an annual application prior to receiving regarding a renewal to an existing OMB Individual solicitations and resulting Federal funds. The Human Services clearance. contracts may impose unique Amendments of 1994 (Pub. L. 103–252) information collection and reporting amended the LIHEAP statute to add SUMMARY: Under the provisions of the requirements on contractors not Section 2607B, which established the Paperwork Reduction Act of 1995 (44 required by regulation, but necessary to REACH Program. REACH was funded U.S.C. Chapter 35), the General Services evaluate particular program for the first time in FY 1996 and is Administration will be submitting to the accomplishments and measure success intended to: (1) Minimize health and Office of Management and Budget in meeting program objectives. safety risks that result from high energy (OMB) a request to review and approve burdens on low-income Americans; (2) a renewal of a currently approved B. Annual Reporting Burden reduce home energy vulnerability and information collection requirement Respondents: 6794 prevent homelessness as a result of the regarding the qualifications of offerors. inability to pay energy bills; (3) increase The clearance currently expires on April Responses Per Respondent: 1 the efficiency of energy usage by low- 30, 2008. Hours Per Response: 1 income families, helping them achieve Public comments are particularly Total Burden Hours: 6794 energy self-sufficiency; and (4) target invited on: Whether this collection of energy assistance to individuals who are information is necessary and whether it OBTAINING COPIES OF most in need. will have practical utility; whether our PROPOSALS: Requesters may obtain a The REACH Model Plan clarifies the estimate of the public burden of this copy of the information collection information being requested and collection of information is accurate, documents from the General Services ensures the submission of all the and based on valid assumptions and Administration, Regulatory Secretariat information required by statute. The methodology; ways to enhance the (VIR), 1800 F Street, NW., Room 4035, form facilitates our response to quality, utility, and clarity of the Washington, DC 20405, telephone (202) numerous queries each year concerning information to be collected. 501–4755. Please cite OMB Control No. the information that should be included DATES: Submit comments on or before: 3090–0197, GSAR Provision 552.237– in the REACH application. Submission March 24, 2008. 70, Qualifications of Offerors, in all of a REACH application and use of the FOR FURTHER INFORMATION CONTACT: Mr. correspondence. REACH Model Plan is voluntary. Michael Jackson, Contract Policy Dated: January 15, 2008. Grantees have the option to use another Division, GSA, (202) 208–4949. format. Al Matera, ADDRESSES: Submit comments regarding Respondents: State Governments, this burden estimate or any other aspect Director, Office of Acquisition Policy. Tribal governments, Insular Areas, the of this collection of information, [FR Doc. E8–1144 Filed 1–23–08; 8:45 am] District of Columbia, and the including suggestions for reducing this BILLING CODE 6820–61–S Commonwealth of Puerto Rico.

ANNUAL BURDEN ESTIMATES

Number of Average Instrument Number of responses per burden hours Total burden respondents respondent per response hours

REACH Model Plan ...... 51 1 72 3,672

Estimated Total Annual Burden Administration, Office of Information information collection. E-mail address: Hours: 3,672. Services, 370 L’Enfant Promenade, SW., [email protected]. Additional Information: Copies of the Washington, DC 20447, Attn: ACF OMB Comment: OMB is required to proposed collection may be obtained by Reports Clearance Officer. All requests make a decision concerning the writing to the Administration for should be identified by the title of the collection of information between 30 Children and Families, Office of and 60 days after publication of this

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document in the Federal Register. dockets/ecomments or http:// respondents, including through the use Therefore, a comment is best assured of www.regulations.gov. Submit written of automated collection techniques, having its full effect if OMB receives it comments on the collection of when appropriate, and other forms of within 30 days of publication. Written information to the Division of Dockets information technology. comments and recommendations for the Management (HFA–305), Food and Drug Customer/Partner Service Surveys proposed information collection should Administration, 5630 Fishers Lane, rm. (OMB Control Number 0910–0360)— be sent directly to the following: 1061, Rockville, MD 20852. All Office of Management and Budget, comments should be identified with the Extension Paperwork Reduction Project, Fax: 202– docket number found in brackets in the Under section 903 of the Federal 395–6974, Attn: Desk Officer for the heading of this document. Food, Drug, and Cosmetic Act (21 U.S.C. Administration for Children and FOR FURTHER INFORMATION CONTACT: 393), FDA is authorized to conduct Families. Jonna Capezzuto, Office of the Chief research and public information Janean Chambers, Information Officer (HFA–250), Food programs about regulated products and and Drug Administration, 5600 Fishers Reports Clearance Officer. responsibilities of the agency. Executive Lane, Rockville, MD 20857, 301–827– [FR Doc. 08–246 Filed 1–23–08; 8:45 am] Order 12862, entitled ‘‘Setting Customer 4659. Service Standard,’’ directs Federal BILLING CODE 4184–01–M SUPPLEMENTARY INFORMATION: Under the agencies that ‘‘provide significant PRA (44 U.S.C. 3501–3520), Federal services directly to the public’’ to DEPARTMENT OF HEALTH AND agencies must obtain approval from the ‘‘survey customers to determine the HUMAN SERVICES Office of Management and Budget kind and quality of services they want (OMB) for each collection of and their level of satisfaction with Food and Drug Administration information they conduct or sponsor. existing services.’’ FDA is seeking OMB [Docket No. 2008N–0009] ‘‘Collection of information’’ is defined clearance to conduct a series of surveys in 44 U.S.C. 3502(3) and 5 CFR to implement Executive Order 12862. Agency Information Collection 1320.3(c) and includes agency requests Participation in the surveys is Activities; Proposed Collection; or requirements that members of the voluntary. This request covers Comment Request; Customer/Partner public submit reports, keep records, or customer/partner service surveys of Service Surveys provide information to a third party. regulated entities, such as food Section 3506(c)(2)(A) of the PRA (44 processors; cosmetic drug, biologic and AGENCY: Food and Drug Administration, U.S.C. 3506(c)(2)(A)) requires Federal medical device manufacturers; HHS. agencies to provide a 60-day notice in consumers; and health professionals. ACTION: Notice. the Federal Register concerning each The request also covers ‘‘partner’’ (State proposed collection of information, and local governments) customer SUMMARY: The Food and Drug including each proposed extension of an service surveys. Administration (FDA) is announcing an existing collection of information, opportunity for public comment on the FDA will use the information from before submitting the collection to OMB proposed collection of certain these surveys to identify strengths and for approval. To comply with this information by the agency. Under the weaknesses in service to customers/ requirement, FDA is publishing notice Paperwork Reduction Act of 1995 (the partners and to make improvements. of the proposed collection of PRA), Federal agencies are required to The surveys will measure timeliness, information set forth in this document. publish notice in the Federal Register appropriateness and accuracy of With respect to the following information, courtesy, and problem concerning each proposed collection of collection of information, FDA invites information, including each proposed resolution in the context of individual comments on these topics: (1) Whether programs. extension of an existing collection of the proposed collection of information information, and to allow 60 days for is necessary for the proper performance FDA estimates conducting 15 public comment in response to the of FDA’s functions, including whether customer/partner service surveys per notice. This notice solicits comments on the information will have practical year, each requiring an average of 18 voluntary customer satisfaction service utility; (2) the accuracy of FDA’s minutes for review and completion. We surveys to implement Executive Order estimate of the burden of the proposed estimate respondents to these surveys to 12862. collection of information, including the be between 50 and 6,000 customers. DATES: Submit written or electronic validity of the methodology and Some of these surveys will be repeats of comments on the collection of assumptions used; (3) ways to enhance earlier surveys for purposes of information by March 24, 2008. the quality, utility, and clarity of the monitoring customer/partner service ADDRESSES: Submit electronic information to be collected; and (4) and developing long-term data. comments on the collection of ways to minimize the burden of the FDA estimates the burden of this information to: http://www.fda.gov/ collection of information on collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN 1

No. of Annual Frequency Hours per Type of Survey Respondents per Response Response Total Hours

Mail, telephone, fax, web-based 15,000 1 .30 4,500 1There are no capital costs or operating and maintenance costs associated with this collection of information.

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Dated: January 9, 2008. found at the IHS Web site at: http:// Tribal colleges meeting the definition of Jeffrey Shuren, www.ihs.gov/NonMedicalPrograms/ a Tribal organization as defined by 25 Assistant Commissioner for Policy. IHS_Stats. Although the AI/AN U.S.C. 1603(e)) and institutions that [FR Doc. E8–1200 Filed 1–23–08; 8:45 am] mortality rates for all cancers are about conduct intensive academic-level BILLING CODE 4160–01–S 20 percent lower than the U.S. rates for biomedical, behavioral and health all races, there is variation among IHS services research. These partnerships Areas for specific cancers. Moreover, the are called Native American Research DEPARTMENT OF HEALTH AND favorable AI/AN mortality rates for Centers for Health (NARCH). Due to the HUMAN SERVICES some cancers may be due to markedly complexity of factors contributing to the lower incidence rates partly offset by health and disease of AI/ANs, and to Indian Health Service higher case-fatality rates. Unfamiliarity their health disparities compared with with modern health care may adversely other Americans, the collaborative Native American Research Centers for influence health status among the efforts of the agencies of the Department Health (NARCH) Grants elderly, the low-income elderly, and of Health and Human Services (HHS) Tribes, and also may reduce the and the collaboration of researchers and Announcement Type: New and acceptability of health research among AI/AN communities are needed to Competing Continuations. them. The daunting tasks confronting achieve significant improvements in the Funding Announcement Number: Tribes, researchers, and health care and health status of AI/AN people. To HHS–2009–IHS–NARCHV–0001. public health programs in the beginning accomplish this goal, in addition to Catalog of Federal Domestic of the twenty-first century are to resume objectives set by the Tribe, Tribal Assistance Number(s): 93.933. the reduction of health disparities that Organization or Indian Health Boards, Key Dates: Letter of Intent Deadline: had occurred through the 1980s, to the IHS NARCH program will pursue March 15, 2008. reverse the worsening in a few diseases, the following program objectives: Application Deadline Date: May 16, to maintain and strengthen the favorable • To develop a cadre of AI/AN 2008. status, and to reduce the disparities scientists and Health Professionals— Review Date: October, 2008. among and within Areas and Tribes. Opportunities are needed to develop Earliest Anticipated Start Date: June Factors known to contribute to health more AI/AN scientists and health 1, 2009. status and disparities are complex, and professionals engaged in research, and I. Funding Opportunity Description include underlying biology, physiology, to conduct biomedical, clinical, and genetics, as well as ethnicity, behavioral and health services research The Indian Health Service (IHS), in that is responsive to the needs of the AI/ conjunction with the National Institute culture, socioeconomic status, gender/ sex, age, geographical access to care, AN community and the goals of this of General Medical Sciences (NIGMS) initiative. Faculty/researchers and and other institutes of the National and levels of insurance. Additional factors known to contribute to health students at each proposed NARCH will Institutes of Health (NIH) announces develop investigator-initiated, competitive grant applications for status and dispariteis include: 1. Family, home, and work scientifically meritorious research Native American Research Centers for environments; projects, including pilot research Health (NARCH), an initiative to 2. General or culturally specific health projects, and will be supported through support new and/or continuing centers practices; science education projects designed to or projects funded under the NARCH 3. Social support systems; increase the numbers of, and to improve grant program. This funding mechanism 4. Lack of access to culturally- the research skills of, AI/AN will develop further opportunities for appropriate health care; and investigators and investigators involved conducting research and research 5. Attitudes toward health. with AI/ANs. training to meet the needs of American Yet none of these along or in • To enhance Partnerships and Indian/Alaska Native (AI/AN) combination accounts for all reduce distrust of research by AI/AN communities. This program is documented differences. Health communities—Recent community-based authorized under the Snyder Act, 25 disparities of AI/ANs may also reflect a participatory research suggests that AI/ U.S.C. 13, the Public Health Service Act, lack of in-depth research relevant to AN communities can work 42 U.S.C. 241 as amended, and the improving their health status. Many AI/ collaboratively in partnership with Indian Health Care Improvement Act, 25 ANs distrust research for historical health researchers to further the U.S.C. 1602(a)(b)(16). This program is reasons. One approach that combats this research needs of AI/ANs. Fully described at 93.933 in the Catalog of distrust is to ensure that Tribes are the utilizing all cultural and scientific Federal Domestic Assistance. managing partners in training and knowledge, strengths, and Background Information: TheAI/AN research that involves them, as for competencies, such partnerships can Tribal nations and communities have example, in community-based lead to better understanding of the long experienced health status worse participatory research (CBPR) (i.e., a biological, genetic, behavioral, than that of other Americans. Although collaborative research process between psychological, cultural, social, and major gains in reducing health researchers and community economic factors either promoting or disparities were made during the last representatives). This approach is hindering improved health status of AI/ half of the twentieth century, most gains especially helpful to design both ANs, and generate the development and stopped by the mid-1980s (Trends in training relevant to researchers from evaluation of interventions to improve Indian Health 1998–99) and a few Tribal communities, and research their health status. Community distrust diseases, e.g., diabetes, worsened. ‘‘All relevant to the health needs of the of research and researchers will be Indian’’ rates contain marked variation communities. reduced by offering the Tribe greater among the IHS Areas or regions Research Objectives: The NARCH control over the research process. (Regional Differences in Indian Health initiative will support partnerships • To Reduce Health Disparities—In 1998–99); and variation by Tribe exists between Federally Recognized AI/AN the Indian Health Care Improvement within Areas as well. The Trends and Tribes Organizations (including national Act, Pub. L. 94–437 (as amended), IHS Regional Differences reference can be and area Indian Health Boards, and was legislatively mandated to improve

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the delivery of effective health care to III. Eligibility Information Principal Investigator may be, but is not AI/ANs. In the NIH Revitalization Act of The new or existing NARCH must be required to be, the NARCH Program 1993, NIH was encouraged to increase a working partnership of the eligible AI/ Director or a Research Project the number of under-represented AN organization and of the research- Investigator. The NARCH Principal minorities participating in biomedical, intensive institution. Applicants eligible Investigator may or may not have formal clinical, and behavioral research, to receive the NARCH award are academic/research credentials, but if including studies on drug abuse and Federally recognized Tribes and Tribal not, then the NARCH Program Director alcoholism, and the examination of the organizations as defined under the must be so qualified. The traditional NIH research project role of resiliency in the prevention and Indian Health Care Improvement Act, 25 treatment of those conditions. Also, the grant consists of a single Principal U.S.C. 1603(d) and (3), including ‘‘Initiative to Eliminate Racial and Investigator (PI) working with a small eligible Indian Health Boards or Tribal Ethnic Disparities in Health’’ by HHS group of subordinates on an Colleges applying on behalf of eligible (http://www.omhrc.gov/rah) encouraged independent research project. Although Federally recognized Tribes or Tribal NIH to help reduce health disparities. In this model clearly continues to work organizations. As the grantee, the response to these priorities, the IHS and well and encourages creativity and eligible AI/AN organization will define NIH have established a collaboration to productivity, it does not always work criteria and eligibility for participation support the NARCH. well for multidisciplinary efforts and Reducing health disparities among in all aspects of the partnership, collaboration. Increasingly, health- AI/AN communities and individuals consistent with this announcement. A related research involves teams that may be fostered by greater minimum of 30 percent of the grant vary in terms of size, hierarchy, location understanding of how to enhance their funds must be budgeted in the of participants, goals, disciplines, and strengths and resilience. While AI/AN application to remain with the eligible structure. There is growing consensus communities have relied on health AI/AN organization(s); that is, no more that team science would be encouraged research and medical science to reduce than 70 percent of the application’s total if more than one PI could be recognized health disparities, they have also relied budget may be contained in subcontract on individual awards. The NIH has on their own psychological, budgets of the non-eligible adopted a multiple-PI model, as recently organizational, and cultural assets and subcontracting partner institutions or directed by the Office of Science and strengths to survive major harms and organization. Technology Policy. All agencies that disruptions over the centuries, and to 1. Eligible Applicants—The AI/AN have research and research-related applicant must be one of the following: programs must offer the multiple-PI rebound from insults to health. • The mission of NIH is to acquire new A federally-recognized AI/AN model as an option. Note, it is only an knowledge that will lead to better health Tribe, as defined under 25 U.S.C. option, not a requirement. The 1603(d); or traditional NARCH division of roles by understanding the processes • underlying health and disease that in A Tribal organization, as defined between Principal Investigator and turn will help prevent, detect, diagnose, under 25 USC 1603(e), including Tribal Project Director will usually address and treat disease and disability. The Colleges or health boards meeting this these issues to a satisfactory degree. For definition; or additional information regarding the NARCH initiative works toward the NIH • mission by supporting research that A consortium of two or more of new multiple-PI model, please click on discovers the interrelationships among those Tribes or Tribal organizations. the following Web site: http:// the many factors that contribute to Applicants other than Tribes must grants.nih.gov/grants/multi_pi/ health and disease, and by helping to provide proof of non-profit status. index.htm. train and promote AI/AN researchers 2. Cost Sharing or Matching—The 5. NARCH Program Director: The and researchers concerned with AI/AN NARCH program does not require NARCH Program Director is the health. matching funds or cost sharing. individual responsible for the day-to- 3. The Research-Intensive Partner: day leadersip and management of the II. Award Information The Research-Intensive Partner must be research and training programs within Type of Awards: Grant. an accredited public or private the proposed NARCH. The Program Estimated Funds Available: The nonprofit university or other institution Director may be, but is not required to estimated funds (total costs) available that has an established record of be, the Student and Faculty/Researcher for the first year of support for the entire conducting research into the health Development Director or a Research initiative is expected to be at least $3.0 problems of AI/AN; has demonstrated a Project Investigator. The NARCH million in Fiscal Year 2009. The actual commitment to enhancing the capability Program Director may or may not have amount may vary, depending on the of AI/AN faculty/researchers, students, formal academic/research credentials, response to the request for applications investigators, and communities to but if not, then the Principal (RFA) and availability of funds. An engage in biomedical, behavioral, Investigator must be so qualified. applicant may request a project period clinical and health services research; 6. Student and Faculty/Researcher not to exceed four years of support, and and has demonstrated a commitment to Development Director and Participants: direct costs not to exceed $1,000,000 per mentoring AI/AN faculty/researchers, The NARCH initiative is an institutional center or $500,000 per project (research students, and investigators. developmental grant mechanism that or training) in the first year of each 4. Principal Investigator: The places an emphasis on the continual award. Direct costs to the applicant Principal Investigator, the individual development of students and faculty/ include the total cost of each responsible for the administration researchers. If a new Student and/or subcontract (subcontractor direct plus (including fiscal management) of the Faculty/Researcher Development subcontractor indirect costs). overall project, must have his/her Program is proposed in the current Anticipated Number of Awards: An primary appointment with the AI/AN application, then the Principal estimated five to fifteen awards will be applicant organization. Special Investigator of that project is expected to made under the program. arrangements of employment, such as be the NARCH Student and Faculty Award Amount: $100,000–$1,000,000 inter-organizational personnel Development Director. In order to be per year. agreements, are permissible. The included as the Student and Faculty

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Development Director, the prospective served by the project in the proposal single-sided photocopied and signed director must have a faculty/researcher must match the set of appended applications, including the Checklist, appointment at the research-intensive resolutions. If a resolution from an Appendices, and supporting institution (or equivalent appointment appropriate representative of each Tribe documentation to: Center for Scientific at the AI/AN organization or other to be served is not submitted prior to Review (CSR), National Institutes of consortium partner) and must November 1, 2008, the application will Health, 6701 Rockledge Drive, Room demonstrate that he/she has the be considered incomplete and will not 6160—MSC 7892, Bethesda, MD 20892– knowledge, skills, and capabilities to be considered for funding. 7720, Bethesda, MD 20817 (for express mentor students and faculty/researchers An official signed resolution must be or courier service). Telephone: (301) and to generate and direct development received by November 1, 2008 to the 435–0715. The CSR no longer accepts and mentoring programs. Division of Grants Operation by (DGO), hand delivered applications. The Student and Faculty IHS, at the Reyes Building, 801 The RFA label available at http:// Development Director may be the Thompson Avenue, TMP 360, Rockville, grants1.nih.gov/grants/funding/phs398/ NARCH Program Director. Faculty/ MD 20852. A grant will not be awarded label-bk.pdf in the PDF format, must be researchers and students should be unless the signed resolution is received. affixed to the bottom-face page of the supported in research education Please include the funding opportunity application. Type this RFA number: activities that improve their skills and number, as a reference to this ‘‘NOT GM–08–115’’ on the label. Failure abilities to be successful at the next announcement, if the resolutions are to use this label could delay processing stage of their professional development. submitted as a separate mailing. the application and it may not reach the To be included as a participant for 9. Mechanism of Support: Awards review committee in time for review. In faculty/researcher development in the under this initiative will be addition, the ‘‘Native American proposed NARCH, the individual must administered using the competing Research Centers for Health’’ and the have a faculty/researcher appointment institutional grant mechanism of the RFA number must be typed on line 2 of at the research-intensive institution or IHS, and will be reviewed using the NIH the face page of the application form equivalent appointment at the AI/AN S06 mechanism. and the YES box must be marked. E- organization or consortium partner. IV. Application and Submission mail or other electronic applications 7. Research Project Investigators: The will not be accepted under this Information NARCH initiative is an institutional announcement. developmental grant mechanism that 1. Address To Request Application Specific supplementary instructions places an emphasis on continual Package: NARCH Program Official, for the PHS 398 application and budget improvement of the research Reyes Building, 801 Thompson Avenue, preparation for the NARCH program competitiveness of the research Rockville, MD 20852 or by e-mail to may be obtained from the initiative investigators. In order to be included as [email protected]. Applicants are strongly contacts listed under VII. Agency a research project investigator in the encouraged to establish eligibility of Contacts, and will be posted at: http:// NARCH, a prospective investigator must their proposed applications prior to www.ihs.gov/MedicalPrograms/ have a faculty appointment at the submission. Inquiries about eligibility Research/narch.cfm. There will be no research-intensive institution or should be addressed to Alan acknowledgment of receipt of the equivalent appointment at the AI/AN Trachtenberg, MD, MPH, at (301) 443– application. organization or other consortium 0578 or by E-mail to [email protected]. The 2. Content and Form of Application partner, and must show that he/she has application package, including Submission: A proposed NARCH may the need, based on institutional, supplemental instructions will be include any or all of the following departmental, and professional posted on the IHS Research Program components: student development development plans, to enhance his/her Web site, at: http://www.ihs.gov/ projects; faculty/researcher research knowledge, skills, and MedicalPrograms/Research/narch.cfm. development projects; research projects capabilities by engaging in the proposed The NIH PHS 398 application (including pilot projects); and ‘‘core’’ research program and associated instructions are available in an administrative facilities. activities. interactive format at: http:// The content of the application should 8. Tribal Approval of the Application: grants.nih.gov/grants/funding/phs398/ explain the components of the It is the policy of the IHS that all phs398.html. Applicants must use the application, and how they help meet the research involving AI/AN Tribes be currently approved version of the PHS purpose of the NARCH initiative. A approved by the Tribal governments 398. For further assistance contact description should be provided of the with jurisdiction. Therefore, the GrantsInfo, Telephone (301) 435–0714, current state of the research and following documentation is required as E-mail: [email protected], research training enterprise at the part of the application for new or Telecommunications for the hearing proposed NARCH and its institutional continuing centers or additional impaired: TTY 301–451–0088. and community partners, including NARCH projects: Submit a typed and signed original faculty/researcher and student profiles. • Tribal Resolution: If the applicant is application, including the Checklist, A clear statement should be presented an Indian Tribe or Tribal organization, and one (1) single-sided photocopy of of the overall goals, specific measurable a resolution from the Tribal government the entire application (including objectives, and anticipated milestones. of all Tribes to be served supporting the Appendices and supporting documents) These elements should be presented in project must accompany the application in one package to: Division of Grants the context of needed improvements in submission. Applications by Tribal Operations, Indian Health Service, the partners’ organizational organizations will not require Reyes Building, 801 Thompson Avenue, infrastructure and environment for resolutions if the current Tribal TMP 360, Rockville, MD 20852–1627 research. Documentation should be resolutions under which they operate (zip code is unchanged for express/ provided to establish that the research- would encompass the proposed courier services), Telephone: (301) 443– intensive partner is an institution with activities. In this instance a copy of the 5204. a record of conducting research into the current resolution must accompany the At the time of submission, applicants health of AI/ANs, and that it has a application. The listed Tribes to be must also send four (4) additional demonstrated commitment to the

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special encouragement of, and with role models, and providing application must clearly describe how assistance to, AI/AN faculty/researchers, opportunities to travel to present results the development plans for faculty/ students, investigators, and at national scientific meetings. If researchers will meet both the communities for enhancing their research mentorships or apprenticeships individual’s professional development capacity to engage in biomedical, are proposed, the application should goals, and two purposes of the NARCH behavioral and health services research. clearly document the experience, initiative: Documentation about the nature of the proposed commitment, and quality of • To develop a cadre of AI/AN partnership itself should be included, the mentors in providing guidance and scientists and health professionals, and such as: the process to develop the advice to students (including • To enhance the partnership of the application and proposed NARCH itself, responsible conduct of research and proposed NARCH. the past and future efforts to increase research integrity, teaching, and NARCH applications may include a the capacity of the partners to improve protection of human subjects), and in maximum of five (5) regular Research their partnership, and efforts to fostering the development of academic Projects and a maximum of five (5) Pilot contribute to the success of the NARCH. and/or community based AI/AN Research Projects. Unlike regular A plan for assessment of the benefits researchers. research projects, a pilot research of the activities by the proposed NARCH The application should describe how project is limited in scope and is not on specific, measurable outcomes the development plans for the student expected to have preliminary data. It is identified in the application should be will meet both the individual’s also limited to a budget of no more then provided. IHS and NIGMS recognize professional development goals, and $50,000 direct costs per year for four that Tribes, Tribally-based one purpose for the NARCH initiative: years. The pilot research project is organizations, and research-intensive to develop a cadre of AI/AN scientists intended for faculty/researchers without institutions are diverse in their and health professionals. The current federal research support. missions, their health and economic application must have an evaluation Support for faculty/researchers status, and their cultures. Such an plan for the project(s) that indicates the participating in pilot research projects is assessment could include a self-study anticipated outcomes relative to the preparatory to seeking more substantial by the proposed NARCH and its current baseline data. For example, one funding from NIH research grant partners, which focuses on fact-finding, outcome might be the improved programs (e.g., Academic Research program evaluation, and retention of AI/AN students in science Enhancement Award, K and R01 recommendations for improvement in majors. The application should indicate awards), as well as funding from other key areas. the anticipated (quantitative) agencies and private sources. Funds Strategies for determining the initial improvement relative to the current received from the proposed NARCH to and ongoing success of their efforts for retention rate. support pilot research projects may not organizational development should also A student in a NARCH Student be used to supplement ongoing research be presented. It is expected that each Development Project must be a full-time projects. A NARCH application need not proposed NARCH will develop its own or part-time student officially enrolled include both research projects and pilot set of strategies that best match its in an educational program leading to an research projects. Applications for only circumstances. Guidance and undergraduate or graduate degree, or in pilot research projects or for only suggestions for program evaluation of a a post-doctoral educational program, or research projects may be submitted. proposed NARCH can be obtained from (if well justified) in a late high school. Individual project investigators may http://www.the-aps.org/education/ A helpful book about mentoring science propose either a research project or a promote/promote.html. students is found at http:// pilot research project, but not both. Applications are strongly urged to book.nap.edu/catalog/5789.html. Each research project or pilot research contact NARCH initiative staff at an If Faculty/Researcher Development project should follow the instructions early stage to request the specific Projected are proposed, the NARCH provided in PHS 398 (Revised 9/2004, supplementary instructions for the PHS application should describe the need, Interim Revision 4/2006) for preparing 398 for the NARCH grants. proposed activity, and anticipated research grant applications. The Supplementary instructions may be outcomes. Faculty/researcher professional development goals must obtained from the initiative contacts development projects might include, but clearly describe specific objectives and listed under VII. Agency Contacts, and are not limited to, short-term mentored milestones which should include, but will be posted at: http://www.ihs.gov/ research experiences in the lab of an are not limited to, improving MedicalPrograms/Research/narch.cfm. active NIH-extramurally-funded competitiveness in acquiring grant If Student Development Projects are researcher with an explicit mentoring support. The applicant should described proposed, the NARCH application plan, long-term general mentoring under how successful completion of the should describe new programs of an explicit mentoring plan, or proposed research project will improve modifications or additions to existing attendance at workshops or courses or the research skills and will help develop programs of the partners that encourage national meetings needed for acquiring the students and faculty/researchers, and facilitate AI/AN students to enter, specific skills or methodologies needed thus contributing to the overall goals advance, and remain in research careers. for prospective research. As with and specific measurable objectives of Such projects might include, but are not student development projects, the the proposed NARCH. limited to, providing employment as application should document the Each research project or pilot research research assistants in research projects experience, proposed commitment, and project must follow the IHS policy of research-active mentors with an quality of the mentors, teachers, or concerning Tribal approval, that all explicit mentoring plan, providing other experience in providing guidance and research involving AI/AN Tribes be mentoring with an explicit mentoring advice to faculty/researchers, and in approved by the Tribal governments plan, providing workshops to improve fostering the development of academic with jurisdiction. That is, each grantee technical or communication skills, and community-based AI/AN research. must include a resolution of approval providing motivating seminars or The application must also describe the from the Tribal government(s), or (if journal clubs highlighting problems of evaluation plan for the faculty/ applicable) a letter of support signed by interest to students, providing contact researcher development project. The the director of the eligible AI/AN

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organization, or both (if applicable) for explore the complex array of social, meaningful results to the specific AI/AN projects that involve people or behavioral, psychological, contextual, population of interest. community(ies) of an AI/AN Tribe, or environmental and biological factors Pilot research projects that are an eligible Tribal organization. and their interactions that may designed to lead to larger research Research projects (including pilot contribute to oral health disparities projects funded as part of a center or as research projects) proposed under this within AI/AN communities. Including free-standing NIH grants may be initiative must be in research areas oral health status measures within proposed. normally funded by any of the NIH or broader epidemiologic studies is For additional information about oral other research agencies in the HHS. encouraged. However, applications that health research contact: Research projects addressing health are limited to the assessment of disease Ruth Nowjack-Raymer, M.P.H., Ph.D., disparities and the health priorities of prevalence and that explore a very Director, Health Disparities Research the AI/AN partner are especially limited range of potential determinants Program, National Institute of Dental encouraged. will be considered non-responsive. and Craniofacial Research, 45 Center A listing of grants recently funded by The NIDCR has particular interest in Drive, Room 4AS–43F, Bethesda, MD NIH may be found at Computer intervention research that will provide 20892–6401, Phone: (301) 594–5394, Retrieval of Information on Scientific clinically meaningful outcomes and Fax: (301) 480–8322, E-mail: Projects (CRISP), a searchable database essential information needed to inform [email protected]. of Federally funded biomedical research clinical practice, public health policy, projects conducted at universities, health care provision, community and/ National Institute on Drug Abuse hospitals, and other research or individual action. Intervention (NIDA) institutions. It may be accessed at studies that are grounded in theory are Neuroscience and Drug Abuse Research http://ott.od.nih.gov/crisp.html. needed. Both basic and applied The following agencies, institutes, intervention research applications are AI/ANs demonstrate higher rates of offices and centers have stated invited. Studies may need to intervene drug abuse, particularly particular interests in supporting at multiple levels within communities. methamphetamine, tobacco and alcohol research under the NARCH Program as The NIDCR encourages the use of the abuse, relative to other racial subgroups. follows: strongest research design possible and According to 2002–2006 National National Institute of Dental and recognizes that not all intervention Survey on Drug Use and Health Craniofacial Research (NIDCR) research is amenable to randomized (NSDUH) data, AI/AN past year clinical trials. Examples of health methamphetamine use was 1.4% Oral Health Research disparities intervention research of compared to 0.1% for African NIDCR is committed to reducing the interest to the NIDCR includes but are Americans, 0.6% for Hispanics or disproportionate burden of oral diseases not limited to: Latinos and 0.7% for Whites. Prevalence experienced by AI/ANs. The focus of • Effectiveness studies that tailor/ of use is high in both men and women. NIDCR’s health disparities research is target preventive approaches to Drug abuse patterns among AI/AN are on improving oral health status and communities/individuals; complex and can vary by factors such as quality of life by understanding and • Research that intervenes in novel Tribe and geographic location. While addressing oral diseases that are ways on macro- or intermediate level some datasets are available that can prevalent in AI/AN communities, determinants of oral health status; provide general epidemiological data specifically caries (including early • Health services research that regarding use and abuse rates in this childhood caries), oral and pharyngeal explores alternative approaches to group, data are needed that better clarify cancer, and periodontal disease. delivering preventive oral health care; where use rates are highest, among Interdisciplinary research teams and the • Studies that intervene on common which Tribes, age and gender groups full participation of communities are risk factors or that take a systems and the factors that predict drug abuse viewed by NIDCR as essential approach; in these locales and groups. These data components of any health disparities • Studies that explore multifaceted will assist in developing more targeted research. strategies to intervene at several levels interventions and in identifying Data that document oral disease within society; mechanisms related to drug abuse prevalence are readily available for • Dissemination and implementation which can then serve as focal points for some populations, but not for others. research at multiple organizational intervention. Homogeneity in subgroups of levels; and In addition to scarce data on patterns populations cannot be assumed. For • Research that uses appropriate of use, limited data are available instance, there are national data for technology for translation, assessing drug abuse prevention and Mexican Americans, but not for the implementation, adoption, adherence treatment interventions for AI/AN. The numerous other Hispanic subgroups. and acceptance of oral disease matrix model has been proposed in Similarly, data regarding the oral health prevention programs in defined particular to address methamphetamine status of various AI/AN Tribes are populations, clinics, and communities. abuse, but few data are available to unavailable. Moreover, available data Intervention research should be assess the efficacy of this approach with provide little insight into the etiology or reasonably applicable to a specific AI/ this population. Several preventive determinants of oral disease and oral AN population. To facilitate adequate interventions have been designed health. The paucity of quality data and enrollment and generalizability, particularly for this population and conceptual models concerning the broad intervention studies may need to be results from them indicate their value, array of potential determinants and risk- conducted at multiple sites. While small but more research is needed to clarify factors inhibits progress toward clinical trials are not permitted, studies why these sometimes don’t work in preventing disease, and improving oral may be conducted at a single site if expected ways and whether the health status and quality of life. The enrollment is adequate and if sufficient interventions that are being used but NIDCR invites applications that, in numbers of participants are available to have not been evaluated are working to preparation for intervention research, allow extrapolation of clinically reduce drug use.

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The NIDA is committed to reducing National Survey on Drug Use and • Development and evaluation of health disparities in drug abuse and Health. These data also show that non- culturally appropriate interventions for related health and social consequences smoking AI/AN youth demonstrated tobacco use prevention and cessation among AI/AN. Further, the Institute higher susceptibility to experimenting targeted to AI/AN populations; supports methodologies required by the with smoking than most other racial/ • Studies of how tobacco related NARCH, expecting that studies be ethnic groups.2 attitudes and behaviors in youth and developed and implemented using At the same time, however, tobacco adults are influenced by ceremonial community participatory approaches. use patterns among the AI/AN tobacco use and other cultural factors; Research topics of interest include but population are complex and can vary • Studies of tobacco use behavior in are not limited to: substantially among subgroups of this relation to different products, including • Studies that explore a range of population. Smoking rates among AI/ dual use of cigarettes and smokeless behavioral, cultural, environmental and ANs vary widely by region, being tobacco; • individual factors that contribute to highest in the northwestern United Research on the characteristics, use drug abuse; States, in Canada, and in Alaska. and health effects of traditional tobacco • Additionally, use of smokeless tobacco products, such as Iqmik; Studies that explore the • consequences of drug abuse among AI/ is higher among AI/AN adults compared Research to understand disparities AN; with other racial/ethnic groups. Some in tobacco use within AI/AN • Studies that consider the full studies have found particularly high populations given substantial variations rates of smokeless tobacco use (greater by region and other factors; and context of drug abuse, including • poverty, family factors, school factors, than 50%) among AN populations, Studies to identify and address intergenerational trauma, etc.; including pregnant women, due to the barriers to treatment among AI/ANs. • Studies that explore the role of use of Iqmik, a traditional form of References smokeless tobacco.3 traditional practices and spirituality in 1. Tobacco Use Among Adults— protecting against drug abuse; Understanding tobacco use among • Native American populations is also United States, 2005. MMWR. October Studies that explore other factors 27, 2006; 55: 1145–1148. that protect against use in those groups complicated by the fact that tobacco has had a substantial role in Native 2. Racial/Ethnic Differences Among for whom use rates are lower; Youths in Cigarette Smoking and • Studies that explore the efficacy American culture and tradition. Historically, tobacco has been used in Susceptibility to Start Smoking—United and/or effectiveness of culturally States, 2002–2004. MMWR. December 1, relevant preventive interventions; medicinal and healing rituals and in • ceremonial and religious practices. It is 2006; 55; 1275 1277. Studies that explore the efficacy 3. Renner CC, Pattern CA, Day GE, and/or effectiveness of culturally important to distinguish the traditional, ceremonial uses of tobacco, which are Enoch CC, Schroeder DR, Offord KP, relevant treatment interventions; Hurt RD, Gasheen A, Gill L. Tobacco use • Studies that assess factors related to limited to specific occasions, from addictive use of tobacco products. during pregnancy among Alaska Natives service utilization, including use rates in western Alaska. Alaska Med. and access to services, either in However, the relationship between these different contexts of tobacco use 2005;47:12–6. reservation or urban settings; and 4. Burgess D, Fu SS, Joseph AM, • and their impact on behavior has not Studies that explore the Hatsukami DK, Solomon J, van Ryn M. organization, management and delivery received sufficient scientific study. Moreover, limited data are available Beliefs and experiences regarding of interventions. smoking cessation among American For additional information about on the effectiveness of tobacco use cessation interventions targeted to AI/ Indians. Nicotine Tob Res. 2007; 9 neuroscience or drug abuse research Suppl 1: S19–28. contact: Kathy Etz, PhD, National ANs. Preliminary focus group studies suggest that Native American smokers For additional information about NCI Institute on Drug Abuse, 6001 Executive tobacco research contact: Mark Blvd., Room 5153 MSC 9589, Bethesda, are more likely to have negative attitudes towards pharmacotherapies, Parascandola, PhD, Epidemiologist, MD 20852, Phone: (301) 402–1749, Fax: Tobacco Control Research Branch, (301) 480–2543. such as concerns about side effects and lack of trust in conventional medicine.4 National Cancer Institute, 6130 National Cancer Institute (NCI) Thus, there is a need to develop Executive Blvd. MSC 7337, Executive Plaza North, Room 4039, Bethesda, MD Tobacco Control Research culturally-appropriate interventions targeted to this population. 20892, Phone: 301–451–4587, Fax: 301– AI/ANs have been documented to The NCI Tobacco Control Research 496–8675, [email protected]. have the highest smoking rate of any Branch is committed to supporting National Heart, Lung, and Blood major racial/ethnic group in the U.S. transdisciplinary research aimed at Institute (NHLBI) According to the 2005 National Health reducing disparities in tobacco use and Interview Survey of adults 18 and over, related health outcomes. The NARCH Cardiovascular and Respiratory 32% of AI/AN are current smokers, provides a unique mechanism to Research compared with 21.9% of non-Hispanic support collaborative research involving The NHLBI has a strong history of whites, 21.5% of non-Hispanic Blacks, researchers from multiple disciplines to supporting research to document and 13.3% of Asians and 16.2% of address a complex scientific and public intervene on health disparities among Hispanics. Prevalence of smoking is health challenge. AI/ANs, including the Strong Heart high among both men (37.5%) and Sample research areas of interest Study, Pathways, Genetics of Coronary women (26.8%).1 A similar pattern can include but are not limited to the Artery Disease in Alaska Natives be seen among youth, where AI/AN following: (GOCADAN), the Stop Atherosclerosis youth have substantially higher smoking • Studies to understand the role of a in Native Diabetics Study (SANDS), and prevalence (23.1%) than non-Hispanic range of behavioral, cultural and Community-Responsive Interventions to whites (14.9%), Hispanics (9.3%), non- environmental factors that lead to Reduce Cardiovascular Risks in AI/ANs. Hispanics blacks (6.5%), and Asians initiation of tobacco use among AI/AN The Strong Heart Study showed that (4.3%), according to data from the populations. many AI/AN communities bear a heavy

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burden of cardiovascular disease (CVD) morbidity in AI/AN, whether by • A more balanced perspective in the and cardiovascular risk factors (e.g., lifestyle changes, drug interventions, or determination of research priorities; obesity, diabetes) that could be reduced combinations thereof. • A improved capacity to recruit Lifestyles characterized by sleeping through effective interventions on subjects from diverse backgrounds into less than 5–6 hours per night are modifiable risk factors. The high burden clinical research protocols; and of disease will worsen unless behaviors associated with increased risk of CVD, • and lifestyles affecting CVD risk can be obesity, and diabetes. Insufficient sleep An improved capacity to address changed. Prevalence of obesity in AI/AN as a behavioral stressor is associated and eliminate health disparities. communities is about 50% higher than with risk of new onset substance abuse For more information, please contact: in the U.S. general population in which and relapse, and depression risk and Jared B. Jobe, Ph.D. (Cherokee), Program obesity is often described as being of relapse. Intervention studies to assess Director, Clinical Applications and epidemic proportions. In some AI/AN the efficacy of improving sleep as part Prevention Branch, Division of of a healthy lifestyle or assessing how communities, cigarette smoking, Prevention and Population Sciences, improving sleep disorders could sedentary lifestyle, and stress augment National Heart, Lung, and Blood improve CVD outcomes would be of the adverse effects of obesity. AI/AN are Institute, 6701 Rockledge Drive, Suite particularly vulnerable to Type II interest to NHLBI. AI/AN also have been documented to 10018, MSC 7936, Bethesda, Maryland diabetes, a problem exacerbated by high exhibit high rates of chronic respiratory 20892–7936 (20817 express), Phone: rates of obesity. Diabetes prevalence is disease. AI/AN adults have the highest (301) 435–0407, Fax: (301) 480–5158, 3–20 fold higher among AI/AN than in asthma rate among single-race groups. [email protected] (e-mail). the general U.S. population. It is an Recent evidence suggests that 11.6 National Institute of Arthritis and important cause of coronary heart percent of AI/AN suffer from asthma. Musculoskeletal and Skin Diseases disease, cardiomyopathy, end-stage This is significantly higher than the (NIAMS) renal disease, non-traumatic national average of 7.5 percent, and amputation, and vision impairment. much higher than every other single Lipid abnormalities also are common in Research in Osteoporosis and Other racial or ethnic group. Chronic Bone Diseases, Osteoarthritis, Type II diabetics,, particularly high obstructive pulmonary disease (COPD), triglycerides and low HDL-cholesterol Rheumatoid Arthritis and Skin Disease which includes emphysema and chronic Within the NIAMS Mission levels. Dyslipidemia and blood pressure bronchitis, is the eighth leading cause of can be improved by appropriate changes death from chronic disease for AI/AN The NIAMS supports efforts to in diet and by increased exercise. CVD men and the sixth leading cause of conduct research into the causes, risk is also substantially improved by death for women. AI/AN have the treatment, and prevention of arthritis smoking cessation. In addition, second highest rates of cystic fibrosis and musculoskeletal and skin diseases; attention to high stress levels, untreated following whites. One in 10,500 AI/AN the training of basic and clinical sleep disordered breathing, short sleep has cystic fibrosis compared with one in duration, and depression may be scientists to carry out this research; and 3,500 whites. Pueblo Indians and Zuni the dissemination of research progress warranted because of evidence that they Indians have higher incidence than may influence the health behaviors of to improve the public health. Goals among other AI/AN Tribes. Sleep specific to the AI/AN communities interest. For example, poorer diet, disordered breathing appears to be 30– involve research addressing the training higher smoking rates, and physical 60% more common among American of underrepresented minority AI/AN inactivity are more prominent in those Indians than other racial and ethnic with high stress, sleep disorders, or groups. NHLBI is interested in researchers and ensuring inclusion of depression. These psychosocial factors supporting research in AI/AN Native communities in clinical research also are associated with CVD communities that includes studies of studies. NIAMS actively monitors the progression in observational approaches to improve clinical delivery inclusion of minority populations in epidemiologic studies, and there is of efficacious treatments of chronic lung clinical research and will highlight any evidence from smaller clinical studies disease and their risk factors, improved grants that specifically target AI/AN they may affect mechanisms leading to methods of chronic lung disease self- populations. The mission of the NIAMS CVD. NHLBI is interested in supporting management, studies to promote or is to support research into the causes, research in AI/AN communities that maintain respiratory health or improved treatment, and prevention of arthritis promote the adoption of healthy methods of rehabilitation for diseases of and musculoskeletal and skin diseases, lifestyles and/or improve behaviors the lungs and airways, such as asthma, the training of basic and clinical related to cardiovascular (CV) risk, such emphysema, cystic fibrosis; sleep scientists to carry out this research, and as weight reduction, regular physical disordered breathing, occupational lung the dissemination of information on activity, and smoking cessation. These diseases, pulmonary vascular disease or research progress in these diseases. behaviors and lifestyles are known to pulmonary complications of Acquired Studies in these mission areas as they affect biological cardiovascular risk Immune Deficiency Syndrome (AIDS). relate to the AI/AN population may be factors, such as hypertension, In addition to these areas of research, proposed. dyslipidemia, obesity, glucose the NHLBI recognizes a unique and intolerance, and diabetes. In addition, compelling need to promote diversity in For additional information about control of these risk factors by the biomedical, behavioral, clinical, and research in these areas contact: guideline-based use of antihypertensive, social sciences research workforce. The Madeline Turkeltaub, CRNP, Ph.D., lipid lowering, and hypoglycemic drugs NHLBI expects efforts to diversify the Deputy Director, Extramural Program, can reduce their adverse consequences. workforce to lead to: National Institute of Arthritis and However, these pharmacological • The recruitment of the most Musculoskeletal and Skin Diseases, interventions are often suboptimally talented researchers from all groups; 6701 Democracy Blvd., Suite 800, utilized in AI/AN communities. The • An improvement in the quality of Bethesda, MD 20912, Phone: (301) 594– NHLBI is interested in reducing the educational and training 2463, Fax: (301) 480–4543, E-mail: cardiovascular disease mortality and environment; [email protected].

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National Center for Complementary outcome measures to those commonly critical component of response to and Alternative Medicine (NCCAM) used by conventional biomedicine; and mental health and HIV infection in • Health services research of Native American communities will be to Research on Traditional Healing established AI/AN traditional healing identify, train, mentor, and develop Practices practices to explore the factors that Native American investigators. Towards Many AI/AN communities use influence access to and use of such these ends, a promising model is traditional healing practices to prevent therapies; the nature, cost effectiveness, community-based participatory research and/or treat diseases and to maintain and quality of such care; and ultimately together with community capacity health. NCCAM is interested in the effects on health and well-being. building. supporting research on traditional For additional information on Some NIMH research areas that can healing practices with these goals in NCCAM-supported research topics, contribute to scientific knowledge about mind. NCCAM is also interested in contact: Peter J. Kozel, Ph.D., National mental health and HIV interventions in research on the safe and effective Center of Complementary and Native Americans includes: integration of conventional care with Alternative Medicine, 6707 Democracy • Research methods/community traditional healing practices for AI/AN Boulevard, Suite 401, MSC 5475, assessment; communities. The methodological Bethesda, MD 20892–5475, Phone: (301) • Studies of the impact of traumatic feasibility for integration has yet to be 496–8004, Fax: (301) 480–3621, stressors, studies of patient, provider addressed for many traditional healing [email protected]. and contextual factors; practices. Consequently, NCCAM is • Intervention research to evaluate Office of Research on Women’s Health interested in supporting developmental the effectiveness of pharmacologic, (ORWH) studies to identify and address difficult psychosocial (psychotherapeutic and methodological and design issues Women’s Health Research behavioral), somatic, rehabilitative and particular to traditional healing combination interventions on mental The ORWH at the NIH supports and behavior disorders-including acute practices, as well as to allow for the research related to women’s health and development of contextually and and longer-term therapeutic effects on the study of sex and gender differences. functioning for children, adolescents, culturally sensitive research mirroring Detailed information about the NIH the values of AI/AN communities. and adults; Research Priorities for Women’s Health, • Examples of study areas of interest Studies of services organization, can be found at http://orwh.od.nih.gov/ delivery (process and receipt of care), include, but are not limited to: research.html. • and related health economics at the Qualitative research to characterize For additional information on and document healing practices and individual, clinical, program, women’s health research, contact: Lisa community and systems levels in diagnostic approaches of indigenous Begg, DrPH., RN, Director of Research peoples, and study the feasibility of specialty mental health, general health, Programs, NIH Office of Research on and other delivery settings (such as the research on those practices and Women’s Health, 6707 Democracy approaches in future clinical studies; workplace); Blvd., Suite 400, Bethesda, MD 20892– • Interventions to improve the quality • Observational studies to explore 5484, Phone: (301) 496–7853, Fax: (301) and outcomes of care (including patient and care provider preferences, 402–1798, [email protected]. diagnostic, treatment, preventive, and beliefs, attitudes, and patient-provider National Institute of Mental Health rehabilitation services); interactions; • • (NIMH) Studies to enhance the research Case-control, observational, and infrastructure for conducting services other studies to understand traditional Research projects aimed at research; studies of clinical healing strategies from multiples understanding the burden, treatment or epidemiology of mental disorders across perspectives, including: (a) Optimal prevention of mental disorders and all clinical and service settings; dosing, duration, and frequency of Human Immunodeficiency Virus (HIV)/ • Scientifically rigorous investigation treatment; (b) type of treatment; (c) AIDS in AI/AN populations. of culturally appropriate prevention and examinations of different healing Indigenous people in the United control strategies; practices to treat a particular disease/ States are disproportionately affected by • Adaptation, evaluation, safety and condition; (d) comparisons of complex mental illness and HIV infection, as are costs of proven interventions; versus simple interventions; (e) the larger racial and ethnic populations • Dissemination and implementation evaluation of adherence among patient such as African Americans and Latinos. strategies; and, populations to interventions with AI/ANs are highly underrepresented in • The role of community stakeholders varying levels of complexity; and (f) the physician workforce and as in the research process, especially examination of potentially important researchers in health research in readiness for change. individual differences that mediate or general, numbering fewer than one For additional information on NIMH moderate treatment outcome; hundred. NonAIDS Applications contact: Carmen • Studies to determine if traditional Other factors that contribute to P. Moten, Ph.D., Chief, Primary Care, healing practices can be translated into disparities that affect these communities Socio Cultural and Disparities Research a broader clinical setting, in terms of: include geographic isolation, poor Programs, Division of Services and Reliability, responsiveness, and utility; access to health services, Intervention Research, National Institute assessment procedures, instruments, underutilization of health services, of Mental Health, 6001 Executive and tools in psychosocial, functional, insufficient screening and partner Boulevard, Room 7131, MSC 9631, and physiological domains; management services, unique social Bethesda, MD 20892–9631, Telephone: • Studies to construct and validate norms, stigma and gender dynamics. (301) 443–3725, FAX: (301) 443–4045, culturally sensitive data collection Research is needed to identify and E-mail: [email protected]. instruments; to design and pilot address the impact as well as the For additional information on NIMH outcome measures consistent with the specific and unique aspects of mental HIV/AIDS-related applications contact: tenets of traditional, indigenous systems disorders and HIV infection upon David M. Stoff, Ph.D., Chief: HIV/AIDS of medicine and comparisons of these Native American communities. A Neuropsychiatry Program, AIDS

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Research Training and HIV/AIDS, technologies. To this end, the NIBIB is Public Policy Requirements: All Disparities Program, Division of AIDS interested in supporting the translation Federal-wide public policies apply to and Health and Behavior Research, of biomedical technologies that target IHS grants with exception of Lobbying National Institute of Mental Health, the health needs of AI/AN communities. and Discrimination public policy. 6001 Executive Boulevard, Room 6210, Specifically, the NIBIB is interested in 3. Submission Dates and Times: MSC 9619, Bethesda, MD 20892–9619, supporting the development of A. Letter of Intent Deadline: March 15, Telephone: (301) 443–4625, FAX: (301) technologies that have broad therapeutic 2008. 443–9719, E-mail: [email protected]. and interventional applications as well Prospective applicants are asked to submit a letter of intent that includes National Library of Medicine (NLM) as technologies that complement technology development in all program the title of the new project(s) proposed, Biomedical Informatics and Knowledge areas of the NIBIB, http:// the name, address, and telephone Management www.nibib.nih.gov/Research/ number of the project Principal Investigator(s), the identities of the NLM supports research into how ProgramAreas. partners and of key personnel, and the computers and networks can best be For additional information about number and title of this RFA. The letter used to capture, represent, store, NIBIB programs contact: John W. Haller, of intent should be received before 5 retrieve, manipulate, manage, and PhD., National Institute of Biomedical p.m. Eastem Standard Time on March disseminate information for use in Imaging and Bioengineering, NIH/ 15, 2008, by Mushtaq A. Khan, D.V.M., health care and public health, health DHHS, 6707 Democracy Blvd. Suite 200, Ph.D., Chief, Digestive and Respiratory education, and biomedical research. Bethesda, MD 20892–5649, E-mail: Sciences IRGs, Center for Scientific These informatics research projects [email protected], Phone: (301) 451– Review, MSC 7818, Room 2176; 6701 must be user-centered, aimed at meeting 4780, Fax: (301) 480–1614. Rockledge Drive; Bethesda, MD 20892 needs of health care providers, National Eye Institute (NEI) (20817 for Fed Ex) Phone: (301) 435– consumers, students, researchers, and 1778; Fax (301) 451–2043; E-Mail: policy makers. To be user centered, Vision Research [email protected]. information systems must be usable and The NEI supports research and health Letters may be submitted by mail, fax useful, and information must be information dissemination with the goal or e-mail. Although a letter of intent is understandable to the audience for of protecting and prolonging the vision not required, is not binding, and does whom it is intended, accurate, and of the American people. Examples of not enter into the review of a timely. The knowledge people need to such activity that may be of interest subsequent application, the information participate in their own health care and include, but are not limited to: that it contains allows the IHS and NIH the care of others is complex and comes • Epidemiological studies to Center for Scientific Review (CSR) staffs from many sources. Important research determine the prevalence and possible to estimate the potential review questions remain to be answered about risk factors of eye diseases and disorders workload and avoid conflict of interest the most effective ways to bring these among AI/AN populations; in the review. different sources together when and • Basic research studies into the B. Application Deadline: May 16, where they are needed. Informatics is by causes and mechanisms of eye diseases 2008. nature an interdisciplinary field, and and visual impairments in AI/AN, The applications must be received the training of researchers for research into disparities in access to before 5 p.m. Eastern Standard Time on informatics careers involves coursework ophthalmic/optometric health services; May 16, 2009 at the Center for Scientific in the concepts and practices of and, Review (CSR, National Institutes of information and computer science as • Development and evaluation of Health, 6701 Rockledge Drive, Room well as in domains of health and culturally appropriate health education 6160—MSC 7892, Bethesda, MD 20892– biomedicine. NLM offers training and intervention. 7720, Bethesda, MD 20817 (for express programs at 18 academic organizations, For additional information on vision or courier service). Telephone: (301) for pre and post-doctoral trainees who research topics contact: Jerome R. 435–0715.) and at the IHS Division of wish to pursue a career in informatics. Wujek, Ph.D., National Eye Institute, Grants Operations (DGO, Indian Health Many of these organizations offer 2020 Vision Place, Bethesda, MD Service, Reyes Building, 801 Thompson special short-term traineeships of three 20892–3655, Phone: (301) 451–2020, Avenue, TMP Suite 360, Rockville, MD months that provide a trainee with an Fax: (301) 402–0528, E-mail: 20852–1627 [zip code is unchanged for introduction to informatics research. [email protected]. express/courier services], Telephone: For additional information about The omission above of any NIH (301) 443–5204). Applications received NLM programs contact: Valerie institute, center, office, or research area after this date will be returned to the Florance, Ph.D., Deputy Director, NLM should not be taken as a lack of applicant. Competing applications not Extramural Programs, Rockledge 1, availability of support for proiects in meeting the deadline date specified in Suite 301, 6705 Rockledge Drive, those areas. NARCH is an NIH-wide the announcement are considered late Bethesda, MD 20892, Phone: (301) 594– partnership, led at NIH by the National applications and will not be considered 4882, Fax: (301) 402–2952, Web site: Institute of General Medical Sciences for funding under this announcement. http://www.nlm.nih.gov/ep NLM/NIH/ (NIGMS). General research priorities for The CSR will not accept any application DHHS. all of the individual NIH Institutes, in response to this RFA that is National Institute of Biomedical Centers, Divisions and Offices can be essentially the same as one currently Imaging and Bioengineering (NIBIB ) found on their respective Web sites at: pending initial review, unless the http://www.nih.gov/icd/index.html. applicant withdraws the pending Research in Technology for Health However, applicants and potential application. The CSR will not accept The National Institute of Biomedical academic partners are reminded that any application that is essentially the Imaging and Bioengineering (NIBIB) is that the NARCH program is focused on same as one already reviewed. This does committed to reducing health the research needs of the Tribes and not not preclude the submission of disparities through the development of those of the Federal or academic substantial revisions of applications new and affordable biomedical partners. already reviewed, but such applications

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must include an introductory letter submit its budget as part of that project’s organization has a DUNS number. addressing the previous critique. budget, using appropriate form pages Registration with the CCR is free of 4. Intergovernmental Review: This from the PHS 398. Each project charge. funding opportunity is not subject to submission should include a set of Applicants may register by calling Executive Order 12372, budget pages from each of the 1–888–227–2423. Please review and ‘‘Intergovernmental Review of Federal institutional partners participating in complete the CCR Registration Programs.’’ A State approval is not that project. Each research project Worksheet located at http:// required. budget should explicitly include that www.grants.gov/CCRRegister. 5. Funding Restrictions: portion of the grantee’s indirect costs • More detailed information regarding Pre-award costs are allowable that are associated with activities under these registration processes can be pending prior approval from the that project. found at http://www.grants.gov. awarding agency. However, in Submit a typed and signed original accordance with 45 CFR Part 74 all pre- application, including the Checklist, Application Review Information award costs are incurred at the and one single-sided photocopy of the Upon receipt, IHS and NIH staff will recipient’s risk. The awarding office is entire application (including administratively review applications for under no obligation to reimburse such Appendices and supporting documents) completeness and responsiveness. costs if for any reason the applicant in one package to: Division of Grants Applications that are incomplete, non- does not receive an award or if the Operations, Indian Health Service, responsive to this RFA, not from award to the recipient is less than Reyes Building, 801 Thompson Avenue, existing NARCH programs, or do not anticipated. TMP Suite 360, Rockville, MD 20852– • The available funds are inclusive of follow the guidelines of the PHS form 1627 (zip code is unchanged for 398 (revised 9/2004) or of the direct and appropriate indirect costs. express/courier services), Telephone: • Only one grant/cooperative supplementary instructions for NARCH (301) 443–5204. grants (available at: http://www.ihs.gov/ agreement will be awarded per At the time of submission, applicants MedicalPrograms/Research/narch.cfm), applicant under this announcement. . must also send four additional single- • may be returned to the applicant IHS will not acknowledge receipt of sided photocopied and signed without further consideration. applications. . applications, including the Checklist, • Applications will be evaluated in Grantees are allowed a reasonable Appendices, and supporting accordance with the criteria stated period of time in which to submit documentation to: Center for Scientific below for scientific and technical merit required financial and performance Review, National Institutes of Health, by appropriate peer review groups reports. Failure to submit required 6701 Rockledge Drive, Room 6160–MSC convened by the CSR. The National reports within the time allowed may 7892, Bethesda, MD 20892–7720, Advisory General Medical Sciences result in suspension or termination of Bethesda, MD 20817 (for express or Council will conduct the second level of an active grant, withholding of courier service). Telephone: (301) 435– review. additional awards for the project, or 0715. The Center for Scientific Review other enforcement actions such as no longer accepts hand delivered Criteria withholding of payments or converting applications. E-mail or other electronic Priorities for funding will be based on to the reimbursement method of applications will not be accepted under the scientific and technical merit of the payment. Continued failure to submit this announcement. required reports may result in the Specific supplementary instructions application, the assessed potential of imposition of special award provisions, for the PHS 398 application and budget investigators in the developmental or cause other eligible projects or preparation for the NARCH program stages of their careers, and the activities involving that grantee may be obtained from the initiative likelihood that the proposed project(s) organization, or the individual contacts listed under VII. Agency can further the purposes of the NARCH responsible for the delinquency to not Contacts, and will be posted at http:// initiative. Awards will be made only to be funded. Failure to obtain prior www.ihs.gov/MedicalPrograms/ organizations with financial approval for change in Scope, Principal Research/narch.cfm. management systems and management Investigator, Grantee Institutions, capabilities that are acceptable under Successor in Interest, or Recipient DUNS Number HHS policy. Awards will be Institute Name, undertaking any Applicants are required to have a Dun administered under the HHS Grants activities disapproved or restricted as a and Bradstreet (DUNS) number to apply Policy Statement, January 2007. condition of the award, may result in for a grant or cooperative agreement A. Review of Student and Faculty/ fund restrictions. from the Federal Government. The Researcher Development Plans: The 6. Other Submission Requirements: DUNS number is a nine-digit anticipated effectiveness of the Each submitted research project identification number, which uniquely proposed NARCH in making a (including pilot research projects) identifies business entities. Obtaining a difference relative to the current base- should be budgeted so that it could DUNS number is easy and there is no line data (based in part on previous stand on its own. That is, each project charge. To obtain a DUNS number, experience of the NARCH) will be should be fundable under its own access http:// assessed. Factors to be considered budget so that it could be completed www.dunandbradstreet.com or call include: even if the rest of the NARCH is not 1–866–705–5711. Interested parties may • The appropriateness of the content, funded. All things vital to each project wish to obtain their DUNS number by phasing, quality, and duration of the should be included in the budget of that phone to expedite the process. student or faculty/researcher project and not included in the core. A DUNS number is required before development plans in the NARCH The 49 NARCH core should include Central Contractor Registry (CCR) application to achieve the scientific only administrative, training or other registration can be completed. Many development of the faculty/researcher, items that are non-essential to the organizations may already have a DUNS post-doctoral, pre-doctoral, research projects. Each subcontractor number. Please use the number listed undergraduate, and (if well justified) participating in each project should above to investigate whether or not your high school students; and

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• The research experience and carry out this work? Is the work • This Announcement. expertise, proposed commitment, and proposed appropriate to the experience • Administrative Requirements: 45 quality of the mentoring plan and of level of the principal investigator and CFR part 92, (Uniform Administrative individual mentors of the partners in other researchers? Does the investigative Requirements for Grants and providing mentoring, guidance, and team bring complementary and Cooperative Agreements to State, Local advice to candidates (including training integrated expertise to the project (if and Tribal Governments), or 45 CFR in responsible conduct of research and applicable)? part 74, (Uniform Administrative research integrity, teaching, and • Environment: Does the scientific Requirements for Awards to Institutions protection of human subjects), and in environment in which the work will be of Higher Education, Hospitals, Other fostering the development of academic done contribute to the probability of Non-Profit Organizations, and and community-based AI/AN success? Do the proposed studies Commercial Organizations). researchers. benefit from unique features of the • Grants Policy Guidance: HHS B. Review of Research Projects: The scientific environment, or subject Grants Policy Statement, January 2007. NIH has announced procedures to be populations, or employ useful • Cost Principles: OMB Circular A– used for the review of research grant collaborative arrangements? Is there 87, (State, Local, and Indian Title 2 Part applications (NIH Guide, Volume 26, evidence of institutional support? 225). Number 22, June 27, 1997, or see http:// In addition to the above criteria, in • Cost Principles: OMB Circular A– grants.nih.gov/grants/guide/notice-files/ accordance with NIH policy, all 122, (Non-profit Organizations Title 2 not97-010.html and http:// applications will also be reviewed with Part 230). respect to the following: grants.nih.gov/grants/guide/notice-files/ • Audit Requirements: OMB Circular • The adequacy of plans, if research NOT–OD–05–002.html for additional A–133, (Audits of States, Local updated information. For NARCH on human subjects is involved, to include both genders and children as Governments, and Non-profit applications, the five criteria listed in Organizations). this announcement will be used for the appropriate for the scientific goals of the B. Inclusion of Women and Minorities scientific review of research projects research. Plans for the recruitment and in Research Involving Human Subjects: and pilot research projects. The review retention of subjects will also be It is the policy of the NIH that women of research projects and pilot research evaluated. and members of minority groups and projects will be the same except that • The reasonableness of the proposed their subpopulations must be included applications for pilot studies may be budget and duration in relation to the in all NIH-supported biomedical, smaller in scope and would not be proposed research. • clinical, behavioral and health services expected to have preliminary data. The adequacy of the proposed In the written comments, reviewers protection for humans, animals or the research projects involving human will be asked to discuss the following environment, to the extent they may be subjects; unless a clear and compelling aspects of the application in order to adversely affected by the project rationale and justification is provided judge the likelihood that the proposed proposed in the application. that inclusion is inappropriate with • research will have a substantial impact The adequacy of the proposed plan respect to the health of the subjects or on the pursuit of these purposes. Each to share data, if appropriate. the purpose of the research. This policy results from the NIH Revitalization Act of these criteria will be addressed and VI Award Administration Information considered in assigning the overall of 1993 (Section 492B of Pub. L. 103– score, weighting them as appropriate for 1. Award Notices 43). Because the NARCH initiative each application. The Notice of Award (NoA) will be targets AI/AN people and communities, • Significance: Does this study initiated by the IHS Division of Grants a minority population, only the policy address an important problem? If the Operations (DGO) and will be mailed of inclusion of women applies to this aims of the application are achieved, via postal mail to each entity that is RFA. The IHS has fully accepted the how will scientific knowledge or approved for funding under this Office for Human Research Protections clinical practice be advanced? What will announcement. The NoA will be signed (OHRP) policy regarding human be the effect of these studies on the by the Grants Management Officer and subjects. The OHRP Web site is http:// concepts, methods, technologies, this is the authorizing document for www.hhs.gov/ohrp/. All investigators treatments, services, or preventative which funds are dispersed to the proposing research involving human interventions that drive this field? approved entities. The NoA will serve subjects should read the Updated NIH • Approach: Are the conceptual or as the official notification of the grant Guidelines for Inclusion of Women and clinical framework, design, methods, award and will reflect the amount of Minorities as Subjects in Clinical and analyses adequately developed, Federal funds awarded, the purpose of Research, published in the NIH Guide well integrated, well reasoned, and the grant, the terms and conditions of for Grants and Contracts on August 2, appropriate to the aims of the project? the award, the effective date of the 2000. Does the applicant acknowledge award, and the budget/project period. • (http://grants.nih.gov/grants/guide/ potential problem areas and consider The NoA is a legally binding document. notice-files/NOT-OD-00-048.html). The alternative tactics? Applicants who are approved but complete Guidelines are available at: • Innovation: Is the project original unfunded or disapproved based on their http://grants1.nih.gov/grants/funding/ and innovative? For example: Does the objective review score will receive a women_min/ project challenge existing paradigms or copy of the Executive Summary which guidelines_amended_10_2001.htm. The clinical practice; address an innovative identifies the weaknesses and strengths revisions relate to NIH defined Phase III hypothesis or critical barrier to progress of the application submitted. clinical trials and require: in the field? Does the project develop or • All applications or proposals and/or employ novel concepts, approaches, 2. Administrative and Policy protocols to provide a description of methodologies, tools, or technologies for Requirements plans to conduct analyses, as this area? A. Grants are administrated in appropriate, to address differences by • Investigators: Are the investigators accordance with the following sex/gender and/or racial/ethnic groups, appropriately trained and well suited to documents: including subgroups if applicable; and

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• All investigators to report accrual, Circular appropriate for them, A–87 training sources (such as loans and and to conduct and report analyses, as (Cost Principles for State, local, and assistance under the Veterans’ appropriate, by sex/gender and/or Indian Tribal Governments), at http:// Adjustment Benefit Act or Pell Grants) racial/ethnic group differences. www.whitehouse.gov/omb/circulars or for which they are eligible. C. Inclusion of Children as A–122 (Cost Principles for Non-Profit Graduate and post-doctoral students Participants in Research Involving Organizations), at http:// cannot concurrently hold other Human Subjects: It is the policy of NIH frwebgate.access.gpo.gov/cgi-bin/ Federally-sponsored stipends or that children (i.e., individuals under the leaving.cgi?from=leavingFR. fellowship or any other Federal award age of 21) must be included in all html&log=linklog&fxsp0;&to=http:// that duplicates the NARCH support. human subjects research, conducted or http://www.whitehouse.gov/omb/ Faculty/Researcher Development supported by the NIH, unless there are circulars, or should contact the grants Costs: scientific or ethical reasons not to management officer listed under VII. Faculty/Researcher Development include them. This policy applies to all Agency Contacts. Costs: Costs to support faculty/ initial (Type 1) applications submitted. Costs for evaluation activities are researcher development activities, such All investigators proposing research allowable, as are costs for the as workshops or courses, national involving human subjects should read Community and Scientific Advisory meetings, or short-term research the NIH Policy and Guidelines on the Council. All applications must include experiences in the laboratory of an Inclusion of Children as Participants in costs associated with one annual active NIH-extramurally-funded Research Involving Human Subjects that meeting per year in Rockville, MD, of researcher needed for acquiring specific was published in the NIH Guide for the project Principal Investigator(s) and skills or methodologies needed for Grants and Contracts, March 6, 1998, their key scientific personnel. prospective research, are allowable. and is available at the following URL Applications should also include costs Such costs might include tuition, travel address: http://grants.nih.gov/grants/ associated with attendance at the annual and per diem costs, as well as salary guide/notice-files/not98–024.html. Indian Health Research Conference for support appropriate to the percent effort Investigators may obtain copies of these key personnel and trainees. needed for the activity. policies from the initiative staff listed Student Development Costs: Student Research Project Costs: Direct costs under VII. Agency Contacts. Initiative (graduate, undergraduate, and high associated with research and pilot staff may also provide additional school if well justified) remuneration research projects are allowable when relevant information concerning the through salary/wages for participation adequate justification is provided. These policy. in research experiences may be include faculty/researcher salaries, D. URLS in NIH Grant Applications or requested, provided all the following reimbursed according to percent effort. Appendices: All applications and conditions are met: Summer salary support can be paid proposals for NIH funding must be self- I. The student is performing necessary provided the institution’s academic contained within specified page work involved in the research; schedule permits such release and when limitations. Unless otherwise specified II. There is an employer-employee the institution approves. The maximum in an NIH solicitation, Internet relationship between the student and summer-salary support provided by the addresses (URLs) should not be used to the proposed NARCH or its partners; program cannot exceed the equivalent of provide information necessary to the III. The total compensation is three months at 100 percent effort, or review because reviewers are under no reasonable for the work performed; and time specified by the institution as its obligation to view the Internet sites. IV. It is the practice of the proposed policy. Grant funds may not be used to Reviewers are cautioned that their NARCH or its partners to provide increase or supplement faculty/ anonymity may be compromised when compensation for all students in similar researcher academic year salaries. they directly access an Internet site. circumstances, regardless of the source Salary support for technical assistance E. Allowable Administrative Costs: of support for the activity. and costs for consultants, if justified, are Certain administrative costs for Graduate students, but not allowable. Costs for equipment to be managing a comprehensive program are undergraduate students, are allowed used to carry out the proposed research allowable and may vary, depending tuition costs as part of a compensation are allowable. upon the size and complexity of the package. When requesting support for a Cost for Supplies: Costs for supplies, program’s activities. The costs budgeted graduate student, the NARCH including costs for animals necessary to for NARCH grants and subcontracts may application should provide, in the carry out the proposed research, may be not duplicate items already budgeted in budget justification section of the included. Travel costs for the other cost centers of the AI/AN, application, the basis for the investigator(s) are permitted when research-intensive, and subcontracted compensation level. The IHS staff will direct benefits to the program are organizations and institutions, such as review the requested compensation expected, and when adequate accounts which make up the Facilities level and, if it is reasonable and justification is provided. Alterations and and Administration (F&A) cost pool. justified, will provide compensation up renovations costs (up to $40,000) are The grantee organization receiving the to a maximum of $45,000 (http:// allowable only when essential for award must be prepared to provide grants.nih.gov/grants/guide/notice-files/ conduct of the proposed research. Other documentation showing the direct not98–168.html). Post-doctoral students permitted costs include animal relationship of proposed costs to the should be compensated at a rate maintenance (unit care costs and program, and that costs of this type are commensurate with that of other post- number of care days), donor fees, charged in a uniform manner to all other doctoral employees with similar degrees publication costs, computer charges, grants at all institutions and and experience at the research-intensive rentals and leases, equipment organizations participating in the award. institution. It is the expectation of the maintenance, and service contracts. Limited salary support for secretarial IHS and NIGMS that students who are Consortium and Contract or clerical help is allowable only when enrolled in a accredited graduate Arrangements: Consortium in direct support of the proposed program, as part of a proposed NARCH, arrangements that may involve NARCH project. For guidance, will not be excluded from support from personnel costs, supplies, and other applicants should refer to the OMB other non-Federal or Federal graduate allowable costs, including F&A costs;

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contractual costs for support services, subgrantees) without OLAW-approved 3. Indirect Costs: This section applies such as the laboratory testing of assurances, whether domestic or to all grant recipients that request biological materials, clinical services, foreign. Funds included in this award reimbursement of indirect costs in their data processing, or core administrative may not be used to support studies grant application, but not to the indirect services, are allowable expenses. using live vertebrate animals until costs that may be negotiated by the Consortia and contractual costs with approval from the Institutional Animal grantees with their subcontractors Native health organizations, Tribes and/ Care and Use Committee (IACUC) has (which become direct costs to the or research institutions in Canada or been received by the IHS Grants grantee). In accordance with HHS Mexico are allowable expenses. Management Officer (GMO). Grants Policy Statement, Part II–27, IHS Pilot Research Projects: The intent of Federal Regulations (45 CFR, Pt. 46) requires applicants to have a current pilot research projects is to lead to require that applications and proposals indirect cost rate agreement in place regular research projects funded as part involving human subjects must be prior to award. The rate agreement must of the center grant or as freestanding evaluated with reference to the risks to be prepared in accordance with the grants. For pilot research projects, the subjects, the adequacy of protection applicable cost principles and guidance applications may request support for up against these risks, the potential benefits as provided by the cognizant agency or to $50,000 (direct costs) per year for up of the research to the subjects and office. A current rate means the rate to four years. This pilot research others, and the importance of the covering the applicable activities and support is non-renewable. However, knowledge gained or to be gained. the award budget period. If the current NARCH research projects based on prior Under governing regulations 45 CFR rate is not on file with the DGO at the NARCH pilot research projects are Part 46, found at http://www.hhs.gov/ time of award, the indirect cost portion encouraged. ohrp/humansubjects/guidance/ of the budget will be restricted and not Subcontracts: The grant recipient may 45cfr46.htm. Federal funds available to the recipient until the issue subcontracts to other organizations administered by HHS shall not be current rate is provided to DGO. (such as the research-intensive expended for research involving human Generally, indirect costs rates for IHS institution of the partnership), as long as subjects, and individuals shall not be grantees are negotiated with the a minimum of 30 percent of the grant enrolled in such research, without prior Division of Cost Allocation (DCA) funds are budgeted in the application to approval by the Office for Human http://rates.psc.gov/ and the Department remain with the eligible AI/AN Research Protections (OHRP), of an of Interior (National Business Center) organization(s); that is, no more than 70 appropriate Federal Wide Assurance http://www.nbc.gov/acquisition/ics/ percent of the application’s total budget (FWA) and prior approval by an icshome.html. If your organization has may be contained in subcontract Institutional Review Board (IRB) questions regarding the indirect cost budgets of the non-eligible policy, please contact the DGO at (301) recognized and listed by the OHRP. subcontracting partner institutions or 443–5204. Funds included in this award may not organizations. 4. Reporting F. Unallowable Costs: Unallowable be used to support studies using human A. Progress Report. Program progress costs for research projects (including for subjects until evidence of IRB approval reports are required semi annually. pilot projects) include costs for student has been received by the IHS GMO. These reports will include a brief development, textbooks, journals, Applicants are expected to provide their comparison of actual accomplishments memberships, and Internet subscription own institutional FWA. to the goals established for the period, costs, as well as other costs prohibited H. Research Integrity—Grantees shall or, if applicable, provide sound by OMB Circulars A–87 or A–122 as comply with Public Health Service justification for the lack of progress, and applicable. Employees of the applicant Policies on Research Misconduct (42 other pertinent information as required. organization may not serve as paid CFR Part 93) which require grantees to A final progress report, cumulative from consultants but may be paid. The pilot have procedures for responding to the beginning of the project period, research project is intended for faculty/ allegations of research misconduct that must be submitted within 90 days of researcher without current Federal comply with those policies, to submit expiration of each budget period. research support. Therefore, their procedures to the Office of B. Financial Status Report. Quarterly investigators with significant current. Research Integrity (ORI) (http:// financial status reports must be support from other mechanisms such as ori.hhs.gov) upon request for review, submitted within 30 days of the end of the RO1 and research funding from and revise their procedures in each quarter. Final financial status other extramural sources are not accordance with ORI comments. In reports are due within 90 days of eligible, and the costs therefore are not addition, grantees shall file the Annual expiration of the budget/project period. allowable. Release time for preparing Report on Possible Research Misconduct Standard Form 269 (long form) will be proposals or mini-research projects, not with ORI at http://www.ori.dhhs.gov/ used for financial reporting. submitted as pilot projects, is not assurance/electronic_submission.shtml. C. Reports. Grantees are responsible allowed. Grantees shall file documentation of and accountable for accurate reporting G. Research Subjects Protection: their Annual Reports with the IHS of the Progress Reports and Financial Under governing policy, Federal funds GMO. Status Reports. Financial Status Reports administered by the HHS shall not be 1. Healthy People 2010: The Public (SF–269) are due 90 days after each expended for research involving live Health Service (PHS) is committed to budget period and the final SF–269 vertebrate animals without prior achieving the health promotion and must be verified from the grantee approval by the NIH Office of disease prevention objectives of Healthy records on how the value was derived. Laboratory Animal Welfare (OLAW), of People 2010, a PHS led national activity Grantees must submit reports in a an assurance to comply with the Public for setting priority areas. This RFA reasonable period of time. Health Service (PHS) Policy on Humane announcement is related to one or more Failure to submit required reports Care and Use of Laboratory Animals. of the priority areas. Potential within the time allowed may result in This restriction applies to all applicants may obtain a copy of Healthy suspension or termination of an active performance sites (e.g., collaborating People 2010 at: http:// grant, withholding of additional awards institutions, subcontractors, www.healthypeople.gov. for the project, or other enforcement

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actions such as withholding of Other Information DEPARTMENT OF HEALTH AND payments or converting to the HUMAN SERVICES reimbursement method of payment. References for Background Continued failure to submit required Information: Office of Inspector General reports may result in one or both of the Anderson, N.B. Levels of analysis in health following: (1) The imposition of special science: A framework for integrating Solicitation of Information and sociobehavioral and biomedical research. Recommendations for Revising the award provisions; and (2) the non- Annals of the New York Academy of funding or non-award of other eligible Compliance Program Guidance for Sciences, 1998, 840, 563–576. Nursing Facilities projects or activities. This applies Ballantine, B., Ballantine, I. (Eds.), whether the delinquency is attributable Thomas, D.H., Miller, J., White, R., Nabokov, AGENCY: Office of Inspector General to the failure of the grantee organization P., Deloria, P.J. (Text by), Joseph, A.M. (OIG), HHS. or the individual responsible for (Intro.) The Native Americans: An Illustrated preparation of the reports. History. Turner Publishing, Inc. Atlanta, GA, ACTION: Notice. 1993. 5. Telecommunication for the hearing SUMMARY: This Federal Register notice impaired is available at: TTY (301) 443– Freeman, W.L. The role of community in research with stored tissue samples. Weir R seeks the input and recommendations of 6394. (Ed.) Stored tissue samples: Ethical, legal, interested parties as OIG revises the Agency Contact(s) and public policy implications. University compliance program guidance (CPG) for Iowa Press. Iowa City, lA, 1998, 267–301. nursing facilities, especially those 1. Questions on the initiative, Gazmararian, J.A., Baker, D.W., Williams, serving Medicare, Medicaid, and other regarding IHS NARCH issues and M.V., Parker, R.M., Scott, T.L., Green, D.C., Federal health care program policies, may be directed to: Alan Fehrenbach, S.N., Ren, J. & Koplan, J.P. beneficiaries. The nursing home Trachtenberg, MD, MPH, Division of Health literacy among Medicare enrollees in industry has experienced a number of Planning, Evaluation and Research, a managed care organization. Journal of the American Medical Association, 1999, 281, changes since OIG first published a CPG Indian Health Service, 801 Thompson in this area (65 FR 14289; March 16, Avenue, TMP Suite 450, Rockville, MD 545–551. Haynes, M.A. & Smedley, B.D. (Eds.) The 2000). Additionally, the subsequent 20852, Telephone: (301) 443–4700, Fax: Unequal Burden of Cancer: An Assessment of years of enforcement and compliance (301) 443–0114, e-mail: [email protected]. NIH Programs for Ethnic Minorities and the activity in the nursing home industry 2. Questions on grants management Medically Underserved. Institute of has allowed OIG to address more fully and fiscal matters may be directed to: Medicine. National Academy Press. the various risk areas in nursing home Sylvia Ryan, Division of Grants Washington, DC, 1999. compliance. In evaluating the contents Operations, Indian Health Service, Macaulay, A.C., Commanda, L.E., Freeman, of the nursing facility CPG, OIG is Reyes Building, 801 Thompson Avenue, W.L., Gibson, N., McCabe, M.L., Robbins, C.M., & Twohig, P.L., (for the) North soliciting comments, recommendations, TMP Suite 350, Rockville, MD 20852, and other suggestions from concerned Telephone: (301) 443–5204, Fax: (301) American Primary Care Research Group. Participatory research maximizes community parties and organizations on how best to 443–9602, e-mail: [email protected]. and lay involvement. British Medical Journal, revise the nursing facility CPG to 3. Questions on NIGMS issues and 1999, 319, 774–778. address relevant compliance issues. policies, may be directed to: Clifton A. Minority Economic Profiles. U.S. Bureau of Specifically, OIG seeks comments Poodry, Ph.D., Minority Opportunities the Census, Population Division. Issued July addressing any changes to existing risk in Research Division, National Institute 24, 1992. (Tables 1990 CPH–L–92, 93, 94 and areas and introducing any new risk of General Medical Sciences, 45 Center 95). areas. Drive, Suite 2AS.37, MSC 6200, NIH Publication 98–4247. Women of Color Bethesda, MD 20892, Telephone: (301) Health Data Book. Office of Research On DATES: To assure consideration, Women’s Health, Office of the Director, comments must be delivered to the 594–3900, Fax: (301) 480–2753, e-mail: National Institutes of Health, 1998. [email protected]. address provided below by no later than Trends in Indian Health 1998–99. Program 5 p.m. on February 25, 2008. 4. Questions on the review of Statistics Team, Office of Public Health, applications may be directed to: Indian Health Service, 2001. ADDRESSES: In commenting, please refer Mushtaq A. Khan, D.V.M., Ph.D., Chief, Regional Differences in Indian Health to file code OIG–126–N. Because of staff Digestive and Respiratory Sciences 1998–99. Program Statistics Team, Office of and resource limitations, we cannot IRGs, Center for Scientific Review, MSC Public Health, Indian Health Service, 2000. accept comments by facsimile (FAX) 7818, Room 2176; 6701 Rockledge Weiss, B.D., Reed, R.L., & Kligman, E.W. transmission. Drive; Bethesda, MD 20892 (20817 for Literary skills and communication methods You may submit comments in one of of low-income older persons. Patient three ways (no duplicates, please): courier or express service) Telephone: Education and Counseling, 1995, 25, 109– (301) 435–1778; Fax: (301) 451–2043; e- 119. 1. Electronically. You may submit mail: khanm@csr,nih.gov. Williams, D.R. & Collins, C. U.S. electronic comments on specific recommendations and suggestions Other required documents Socioeconomic and Racial Differences in Health: Patterns and Explanations. Annual through the Federal eRulemaking Portal If the applicant is a Federally- Review of Sociology, 1995, 21, 349–386. at http://www.regulations.gov. recognized Tribe, Tribal organization, or Williams, M.V., Parker, R.M., Baker, D.W., (Attachments should be in Microsoft a Tribal college letters of support from Parikh, N.S., Pitkin, K., Coates, W.C., & Word, if possible.) the Chairman, President, Governor or Nurss, J.R. Inadequate functional health 2. By regular, express, or overnight literacy among patients at two public Tribal Health Director is required of all hospitals. Journal of the American Medical mail. You may send written comments Tribes to be served to show their Association, 1995, 274, 1677–1682. to the following address: Office of support of the grant project. Letters of Inspector General, Department of Health support are intended to document that Dated: January 16, 2008. and Human Services, Attention: OIG– applicants have Tribal support for the Robert G. McSwain, 126–N, Room 5246, Cohen Building, specific grant for which they are Acting Director, Indian Health Service. 330 Independence Avenue, SW., applying. All letters of support must [FR Doc. 08–243 Filed 01–23–08; 8:45 am] Washington, DC 20201. Please allow accompany the grant application. BILLING CODE 4165–16–M sufficient time for mailed comments to

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be received before the close of the parties as OIG considers revising the commensurate with our performance of comment period. CPG for the nursing home industry. OIG duties. 3. By hand or courier. If you prefer, will consider all comments, DATES: Please submit comments on or you may deliver, by hand or courier, recommendations, and suggestions before February 25, 2008. your written comments before the close received within the time frame ADDRESSES: To make sure your period to Office of Inspector General, indicated above. OIG would appreciate comments and related material do not Department of Health and Human specific comments, recommendations, enter the Coast Guard docket [USCG– Services, Cohen Building, 330 and suggestions on risk areas for the 2007–29053] or OIRA more than once, Independence Avenue, SW., nursing home industry, such as the please submit them by only one of the Washington, DC 20201. Because access submission of false claims, as well as following means: to the interior of the Cohen Building is quality of care concerns, kickbacks, and (1) Electronic submission. (a) To Coast not readily available to persons without accurate reporting of data to Medicare Guard docket at http:// Federal Government identification, and Medicaid. Detailed justifications www.regulations.gov. (b) To OIRA by commenters are encouraged to schedule and empirical data supporting any e-mail to: [email protected]. their delivery with one of our staff suggestions would be appreciated. (2) Mail or Hand delivery. (a) To members at (202) 358–3141. We request that any comments, Docket Management Facility (M–30), Inspection of Public Comments: All recommendations, or suggestions be U.S. Department of Transportation, comments received before the end of the submitted in a format that addresses the West Building Ground Floor, Room comment period are available for topics outlined above in a concise W12–140, 1200 New Jersey Avenue, SE., viewing by the public. All comments manner rather than in the form of a Washington, DC 20590–0001. Hand will be posted on http:// comprehensive draft guidance that deliver between the hours of 9 a.m. and www.regulations.gov as soon as possible mirrors previous CPGs. 5 p.m., Monday through Friday, except after they have been received. Dated: January 16, 2008. Federal holidays. The telephone number Comments received timely will also be Daniel R. Levinson, is 202–366–9329. (b) To OIRA, 725 17th available for public inspection as they Inspector General. Street, NW., Washington, DC 20503, to are received at Office of Inspector the attention of the Desk Officer for the [FR Doc. E8–1213 Filed 1–23–08; 8:45 am] General, Department of Health and Coast Guard. Human Services, Cohen Building, 330 BILLING CODE 4150–04–P (3) Fax. (a) To Docket Management Independence Avenue, SW., Facility at 202–493–2251 (b) To: OIRA Washington, DC 20201, Monday at 202–395–6566. To ensure your through Friday of each week from 8:30 DEPARTMENT OF HOMELAND comments are received in time, mark a.m. to 4 p.m. To schedule an SECURITY the fax to the attention of Mr. Nathan appointment to view public comments, Lesser, Desk Officer for the Coast Guard. Coast Guard phone (202) 619–0089. The Docket Management Facility FOR FURTHER INFORMATION CONTACT: Joel [USCG–2007–29053] maintains the public docket for this Schaer, OIG Regulations Officer, (202) notice. Comments and material received 619–0089; Amanda Walker, Office of Collection of Information Under from the public, as well as documents Counsel to the Inspector General, (202) Review by Office of Management and mentioned in this notice as being 619–0335; or Catherine Hess, Office of Budget: OMB Control Numbers: 1625– available in the docket, will become part Counsel to the Inspector General, (202) 0024, 1625–0036, 1625–0061, and of this docket and will be available for 619–1306. 1625–0100 inspection or copying at room W12–140 SUPPLEMENTARY INFORMATION: The AGENCY: Coast Guard, DHS. on the West Building Ground Floor, 1200 New Jersey Avenue, SE., development of CPGs is a major ACTION: Thirty-day notice requesting Washington, DC, between 9 a.m. and 5 initiative of OIG in its effort to engage comments. the private health care industry in p.m., Monday through Friday, except addressing and combating fraud and SUMMARY: In compliance with the Federal holidays. You may also find this abuse. Over the past several years, OIG Paperwork Reduction Act of 1995, this docket on the Internet at http:// has developed and issued CPGs directed request for comments announces that www.regulations.gov. at various segments of the health care the U.S. Coast Guard is forwarding four Copies of complete ICRs are available industry. These guidances are designed Information Collection Requests (ICRs), through this docket on the Internet at to provide clear direction and assistance abstracted below, to the Office of http://www.regulations.gov. to specific sections of the health care Information and Regulatory Affairs Additionally, copies are available from industry that are interested in (OIRA) of the Office of Management and Commandant (CG–611), U.S. Coast addressing compliance with Federal Budget (OMB) requesting an extension Guard Headquarters, (Attn: Mr. Arthur health care program requirements. of their approval for the following Requina), 2100 2nd Street, SW., The CPGs set forth OIG’s suggestions collections of information: Washington, DC 20593–0001. The on how providers can most effectively (1) 1625–0024, Safety Approval of telephone number is 202–475–3523. establish internal controls and Cargo Containers; (2) 1625–0036, Plan FOR FURTHER INFORMATION CONTACT: Mr. implement monitoring procedures to Approval and Records for U.S. and Arthur Requina, Office of Information identify, correct, and prevent potentially Foreign Tank Vessels Carrying Oil in Management, telephone 202–475–3523 fraudulent conduct. The suggestions Bulk; (3) 1625–0061, Commercial or fax 202–475–3929, for questions on contained in the CPGs are not Fishing Industry Vessel Safety these documents. Contact Ms. Renee V. mandatory for providers, nor do they Regulations; and (4) 1625–0100, Wright, Program Manager, Docket represent an exclusive discussion of the Advance Notice of Vessel Arrival. Our Operations, 202–366–9826, for advisable elements of a compliance ICRs describe the information we seek questions on the docket. program. to collect from the public. Review and SUPPLEMENTARY INFORMATION: The Coast Through this Federal Register notice, comments by OIRA ensure we only Guard invites comments on whether OIG is seeking input from interested impose paperwork burdens these information collection requests

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should be granted based on it being received during the comment period. Affected Public: Owners and necessary in the proper performance of We may change the documents operators of vessels. Departmental functions. In particular, supporting this collection of Abstract: Section 3703 of 46 U.S.C. the Coast Guard would appreciate information or even the underlying provides the Coast Guard with the comments addressing: (1) The practical requirements in view of them. authority to regulate design, utility of the collections; (2) the Viewing comments and documents: construction, alteration, repair, accuracy of the estimated burden of the Go to http://www.regulations.gov to maintenance, operation, equipping, collections; (3) ways to enhance the view documents mentioned in this personnel qualification, and manning of quality, utility, and clarity of notice as being available in the docket. information subject to the collections; Click on ‘‘Search for Dockets,’’ and enter vessels carrying oil in bulk. See 33 CFR and (4) ways to minimize the burden of the docket number (USCG–2007–29053) part 157, Rules for the Protection of the collections on respondents, including in the Docket ID box, and click enter. Marine Environment Relating to Tank the use of automated collection You may also visit the Docket Vessels Carrying Oil in Bulk, and 46 techniques or other forms of information Management Facility in room W12–140 CFR chapter I, subchapter D, Tank technology. on the West Building Ground Floor, Vessels. Comments to the Coast Guard or 1200 New Jersey Avenue, SE., Burden Estimate: The estimated OIRA must contain the OMB Control Washington, DC, between 9 a.m. and 5 burden has increased from 582 hours to Number of the ICRs addressed. p.m., Monday through Friday, except 1,253 hours a year. Comments to the Coast Guard must Federal holidays. 3. Title: Commercial Fishing Industry contain the docket number [USCG Privacy Act: Anyone can search the Vessel Safety Regulations. 2007–29053]. For your comments to electronic form of all comments OIRA to be considered, it is best if OIRA received in dockets by the name of the OMB Control Number: 1625–0061. receives them on or before the February individual submitting the comment (or Type of Request: Extension of a 25, 2008. signing the comment, if submitted on currently approved collection. Public participation and request for behalf of an association, business, labor Affected Public: Owners, agents, comments: We encourage you to union, etc.). You may review the respond to this request by submitting individuals-in-charge of commercial Privacy Act Statement of DOT in the comments and related materials. We Federal Register published on April 11, fishing vessels, and insurance will post all comments received, 2000 (65 FR 19477), or you may visit underwriters. without change, to http:// http://DocketsInfo.dot.gov. Abstract: Under the authority of 46 www.regulations.gov. They will include U.S.C. 6104, the Coast Guard has any personal information you provide. Previous Request for Comments promulgated regulations in 46 CFR part We have an agreement with DOT to use This request provides a 30-day their Docket Management Facility. 28 to improve the overall safety of comment period required by OIRA. The Please see the paragraph on DOT’s commercial fishing industry vessels. Coast Guard has published the 60-day ‘‘Privacy Act Policy’’ below. The rules allowing the collection Submitting comments: If you submit a notice (72 FR 57053, October 5, 2007) provide a means of verifying comment, please include the docket required by 44 U.S.C. 3506(c)(2). That compliance and enhancing safe number [USCG–2007–29053]; indicate notice elicited no comments. operation of fishing vessels. Information Collection Request the specific section of the document to Burden Estimate: The estimated which each comment applies, providing 1. Title: Safety Approval of Cargo Containers. burden has decreased from 7,720 hours a reason for each comment. We to 5,917 hours a year. recommend you include your name, OMB Control Number: 1625–0024. mailing address, an e-mail address, or Type of Request: Extension of a 4. Title: Advance Notice of Vessel other contact information in the body of currently approved collection. Arrival. your document so that we can contact Affected Public: Owners and OMB Control Number: 1625–0100. you if we have questions regarding your manufacturers of containers and organizations the Coast Guard delegates Type of Request: Extension of a submission. You may submit your currently approved collection. comments and material by electronic to act as an approval authority. means, mail, fax, or delivery to the Abstract: This collection of Affected Public: Vessel owners and Docket Management Facility at the information addresses the reporting/ operators. address under ADDRESSES; but please recordkeeping requirements for Abstract: This information is required submit them by only one means. If you containers in 49 CFR parts 450 through under 33 CFR part 160 subpart C to submit them by mail or delivery, submit 453. These rules are necessary since the control vessel traffic, develop them in an unbound format, no larger U.S. is signatory to the International contingency plans, and enforce 1 Convention for Safe Containers (CSC), than 8 ⁄2 by 11 inches, suitable for regulations. copying and electronic filing. If you which requires all containers to be submit them by mail and would like to safety approved prior to being used in Burden Estimate: The estimated know that they reached the Facility, trade. These rules prescribe only the burden has increased from 175,525 please enclose a stamped, self-addressed minimum requirements of the CSC. hours to 199,889 hours a year. postcard or envelope. We will consider Burden Estimate: The estimated Dated: January 14, 2008. all comments and material received burden has increased from 73,272 hours D.T. Glenn, during the comment period. We may to 105,920 hours a year. 2. Title: Plan Approval and Records Rear Admiral, U.S. Coast Guard, Assistant change the documents supporting this Commandant for Command, Control, for U.S. and Foreign Tank Vessels collection of information or even the Communications, Computers and underlying requirements in view of Carrying Oil in Bulk. Information Technology. OMB Control Number: 1625–0036. them. [FR Doc. E8–1132 Filed 1–23–08; 8:45 am] The Coast Guard and OIRA will Type of Request: Extension of a consider all comments and material currently approved collection. BILLING CODE 4910–15–P

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DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: in this triennial cycle that PWSRCAC must provide comprehensive SECURITY Request for Comments information. Coast Guard The Coast Guard encourages At the conclusion of the comment interested persons to submit written [Docket No. USCG–2008–0034] period, February 25, 2008, the Coast data, views, or arguments. We solicit Guard will review all application Application for Recertification of comments from interested groups materials and comments received and Prince William Sound Regional including oil terminal facility owners will take one of the following actions: Citizens’ Advisory Council and operators, owners and operators of (a) Recertify the advisory group under crude oil tankers calling at terminal 33 U.S.C. 2732(o); AGENCY: Coast Guard, DHS. facilities, and fishing, aquacultural, (b) Issue a conditional recertification ACTION: Notice of availability; request recreational and environmental citizens for a period of 90 days, with a statement for comments. groups, concerning the recertification of any discrepancies, which must be application of PWSRCAC. Persons corrected to qualify for recertification SUMMARY: The Coast Guard announces submitting comments should include for the remainder of the year; or the availability of and seeks comments their names and addresses, identify this (c) Deny recertification of the advisory on the application for recertification notice (USCG–2008–0034), the specific group if the Coast Guard finds that the submitted by the Prince William Sound section of the document to which each group is not broadly representative of Regional Citizens’ Advisory Council comment applies, and give the reason the interests and communities in the (PWSRCAC) for March 1, 2008, through for each comment. Please submit all area or is not adequately fostering the February 28, 2009. Under the Oil comments and attachments in an goals and purposes of 33 U.S.C. 2732. Terminal and Tanker Environmental unbound format, no larger than 81⁄2 by The Coast Guard will notify Oversight Act of 1990, the Coast Guard 11 inches, suitable for copying and PWSRCAC by letter of the action taken may certify on an annual basis, an electronic filing. Persons wanting on their respective applications. A alternative voluntary advisory group in acknowledgement of receipt of notice will be published in the Federal lieu of a Regional Citizens’ Advisory comments should enclose stamped, self- Register to advise the public of the Council for Prince William Sound, addressed postcards or envelopes. Coast Guard’s determination. Alaska. This advisory group monitors The Coast Guard plans no public the activities of terminal facilities and hearing. Persons may request a public Dated: January 7, 2008. crude oil tankers under the Prince hearing by writing to Commander (dp), Arthur E. Brooks, William Sound program established by Seventeenth Coast Guard District, P.O. Rear Admiral, U.S. Coast Guard, Commander, the statute. The current certification for 25517, Juneau, AK 99802–5517. The Seventeenth Coast Guard District. PWSRCAC will expire February 29, request should include reasons why a [FR Doc. 08–284 Filed 1–18–08; 3:58 pm] 2008. hearing would be beneficial. If there is BILLING CODE 4910–15–P sufficient evidence to determine that DATES: Public comments on oral presentations will aid this PWSRCAC’s recertification application recertification process, the Coast Guard DEPARTMENT OF HOMELAND must reach the Seventeenth Coast Guard will hold a public hearing at a time and SECURITY District on or before February 25, 2008. place announced by a later notice in the ADDRESSES: Comments should be Federal Register. Federal Emergency Management mailed to the Seventeenth Coast Guard Agency Background and Purpose District (dpi), P.O. Box 25517, Juneau, [FEMA–3282–EM] AK 99802–5517. Or, hand carried The Coast Guard published guidelines documents may be delivered to the on December 31, 1992 (57 FR 62600) to Kansas; Amendment No. 1 to Notice of Juneau Federal Building, 709 West 9th assist groups seeking recertification an Emergency Declaration Street, Room 753, Juneau, AK between under the Oil Terminal and Oil Tanker 8 a.m. and 4 p.m., Monday through Environmental Oversight and AGENCY: Federal Emergency Friday, except Federal holidays. Monitoring Act of 1990 (33 U.S.C. 2732) Management Agency, DHS. The Seventeenth Coast Guard District (the Act). The Coast Guard issued a ACTION: Notice. maintains the public docket for this policy statement on July 7, 1993 (58 FR SUMMARY: recertification process. The application 36504) to clarify the factors that the This notice amends the notice and comments regarding recertification Coast Guard would be considering in of an emergency for the State of Kansas will become part of this docket and will making its determination as to whether (FEMA–3282–EM), dated December 12, be available for inspection or copying at advisory groups should be certified in 2007, and related determinations. the Juneau Federal Building, 709 West accordance with the Act; and the EFFECTIVE DATE: December 19, 2007. 9th Street, Room 753, Juneau, AK. procedures which the Coast Guard FOR FURTHER INFORMATION CONTACT: A copy of the application will also be would follow in meeting its certification Peggy Miller, Disaster Assistance available for inspection at the responsibilities under the Act. Most Directorate, Federal Emergency PWSRCAC offices at 3709 Spenard recently, on September 16, 2002 (67 FR Management Agency, Washington, DC Road, Anchorage, AK between the hours 58440) the Coast Guard changed its 20472, (202) 646–2705. of 8 a.m. and 5 p.m., Monday through policy on recertification procedures for SUPPLEMENTARY INFORMATION: Notice is Friday, except federal holidays. regional citizen’s advisory council by hereby given that the incident period for PWSRCAC’s telephone number is (907) requiring applicants to provide this emergency is closed effective 277–7222. comprehensive information every 3 December 19, 2007. FOR FURTHER INFORMATION CONTACT: For years. For the 2 years in between, (The following Catalog of Federal Domestic questions on viewing or submitting applicants only submit information Assistance Numbers (CFDA) are to be used material to the docket, contact LT Ken describing substantive changes to the for reporting and drawing funds: 97.030, Phillips, Seventeenth Coast Guard information provided at the last Community Disaster Loans; 97.031, Cora District (dpi), (907) 463–2821. triennial recertification. This is the year Brown Fund Program; 97.032, Crisis

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Counseling; 97.033, Disaster Legal Services Assistance Grants; 97.039, Hazard Mitigation (E Street, 3rd Floor), Washington, DC Program; 97.034, Disaster Unemployment Grant Program.) 20472. Assistance (DUA); 97.046, Fire Management R. David Paulison, Hand Delivery/Courier: National Assistance; 97.048, Individuals and Advisory Council, DFO c/o Rules Administrator, Federal Emergency Households Housing; 97.049, Individuals and Docket Clerk, Office of the Chief Households Disaster Housing Operations; Management Agency. Counsel, Federal Emergency 97.050 Individuals and Households [FR Doc. E8–1210 Filed 1–23–08; 8:45 am] Management Agency, Room 835, 500 C Program—Other Needs, 97.036, Public BILLING CODE 9110–10–P Assistance Grants; 97.039, Hazard Mitigation Street, SW., Washington, DC 20472. Grant Program.) Instructions: All submissions received must include the docket number: R. David Paulison, DEPARTMENT OF HOMELAND SECURITY FEMA–2008–0002. Comments received Administrator, Federal Emergency will also be posted without alteration at Management Agency. Federal Emergency Management http://www.regulations.gov, including [FR Doc. E8–1222 Filed 1–23–08; 8:45 am] Agency any personal information provided. BILLING CODE 9110–10–P Docket: For access to the docket to [Docket No. FEMA–2008–0002] read background documents or comments received by the National National Advisory Council DEPARTMENT OF HOMELAND Advisory Council, go to http:// SECURITY AGENCY: Federal Emergency www.regulations.gov. Federal Emergency Management Management Agency, DHS. FOR FURTHER INFORMATION CONTACT: Agency ACTION: Notice of Federal Advisory Alyson Price, Designated Federal Committee Meeting. Officer, Federal Emergency Management Agency, 500 C Street, SW., (E Street, 3rd [FEMA–1734–DR] SUMMARY: This notice announces the Floor), Washington, DC 20472, date, time, location and agenda for the Washington; Amendment No. 7 to telephone 202–646–3746, fax 202–646– next meeting of the National Advisory Notice of a Major Disaster Declaration 3061, and e-mail [email protected]. Council (NAC). At the meeting, new SUPPLEMENTARY INFORMATION: members will be introduced and sworn Notice of AGENCY: Federal Emergency this meeting is given under the Federal Management Agency, DHS. in. The meeting will be open to the public. Advisory Committee Act (FACA), Public ACTION: Notice. Law 92–463, as amended (5 U.S.C. App. DATES: Meeting Dates: Tuesday, 1 et seq.). The NAC will be holding this SUMMARY: This notice amends the notice February 12, 2008, 8:30 a.m. to 5 p.m. meeting on Tuesday and Wednesday, of a major disaster declaration for the and Wednesday, February 13, 2008, 8:30 February 12 and 13, 2008 in Georgetown State of Washington (FEMA–1734–DR), a.m. to 3:30 p.m. A public comment I/II of the Washington Marriott Hotel, dated December 8, 2007, and related period will take place on the afternoon 1221 22nd Street, NW., Washington, DC determinations. of February 13, 2008 between 2:15 p.m. 20037. EFFECTIVE DATE: January 11, 2008. and 2:45 p.m. Comment Date: Written comments or Tentative Agenda of Council Meeting, FOR FURTHER INFORMATION CONTACT: requests to make oral presentations February 12–13, 2008 Peggy Miller, Disaster Assistance must be received by February 5, 2008. Directorate, Federal Emergency Tuesday, February 12, 2008 ADDRESSES: The meeting will be held at Management Agency, Washington, DC (1) Introduction and swearing-in of the Washington Marriott Hotel, 1221 20472, (202) 646–2705. new members; 22nd Street, NW., Washington, DC SUPPLEMENTARY INFORMATION: The (2) Highlights/Updates from FEMA 20037 in the Georgetown I/II meeting Headquarters; Federal Emergency Management Agency rooms. Persons wishing to make an oral (FEMA) hereby gives notice that (3) NAC Operations Overview; presentation or who are unable to attend (4) FEMA Administrator’s remarks; pursuant to the authority vested in the or speak at the meeting may submit Administrator, under Executive Order and written comments. Written comments (5) Council Discussion. 12148, as amended, Willie G. Nunn, of and requests to make oral presentations FEMA is appointed to act as the Federal at the meeting should be provided to the Wednesday, February 13, 2008 Coordinating Officer for this declared Designated Federal Officer, Alyson (1) Summary of previous day; disaster. Price, at the address listed below and (2) Council Discussion; This action terminates my must be received by February 5, 2008. (3) Public comment period; and appointment of Thomas P. Davies as All submissions received must include (4) Closing remarks/Next steps. Federal Coordinating Officer for this the docket number: FEMA–2008–0002 A final agenda will be posted on the disaster. and may be submitted by any one of the NAC Web site prior to the meeting at (The following Catalog of Federal Domestic following methods: http://www.fema.gov/about/nac/. Assistance Numbers (CFDA) are to be used Federal Rulemaking Portal: http:// A public comment period will take for reporting and drawing funds: 97.030, www.regulations.gov. Follow place on February 13, 2008, between Community Disaster Loans; 97.031, Cora instructions for submitting comments 2:15 p.m. and 2:45 p.m. Brown Fund Program; 97.032, Crisis on the Web site. Public Attendance: The meeting is Counseling; 97.033, Disaster Legal Services E-mail: [email protected]. open to the public. Persons with Program; 97.034, Disaster Unemployment Include docket number in the subject disabilities who require special Assistance (DUA); 97.046, Fire Management Assistance; 97.048, Individuals and line of the message. assistance should advise the Designated Households Housing; 97.049, Individuals and Facsimile: (866) 466–5370. Federal Officer of their anticipated Households Disaster Housing Operations; Mail: Alyson Price, Designated special needs as early as possible. 97.050 Individuals and Households Federal Officer, Federal Emergency Members of the public who wish to Program—Other Needs, 97.036, Public Management Agency, 500 C Street, SW., make comments on the afternoon of

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Wednesday, February 13, 2008 are with the requirement that Federal assistance ACTION: Notice. requested to register in advance. In be supplemental, any Federal funds provided order to allow as many people as under the Stafford Act for Hazard Mitigation SUMMARY: This notice amends the notice will be limited to 75 percent of the total of a major disaster for the State of possible to speak, speakers are eligible costs. Federal funds provided under requested to limit their remarks to three Nevada (FEMA–1738–DR), dated the Stafford Act for Public Assistance also January 8, 2008, and related minutes. For those wishing to submit will be limited to 75 percent of the total written comments, please follow the eligible costs, except for any particular determinations. procedure noted above. projects that are eligible for a higher Federal EFFECTIVE DATE: January 10, 2008. cost-sharing percentage under the FEMA Dated: January 17, 2008. FOR FURTHER INFORMATION CONTACT: Public Assistance Pilot Program instituted R. David Paulison, pursuant to 6 U.S.C. § 777. If Other Needs Peggy Miller, Disaster Assistance Administrator, Federal Emergency Assistance under Section 408 of the Stafford Directorate, Federal Emergency Management Agency. Act is later requested and warranted, Federal Management Agency, Washington, DC [FR Doc. E8–1220 Filed 1–23–08; 8:45 am] funding under that program also will be 20472, (202) 646–2705. limited to 75 percent of the total eligible BILLING CODE 9110–21–P SUPPLEMENTARY INFORMATION: Notice is costs. Further, you are authorized to make hereby given that the incident period for changes to this declaration to the extent this disaster is closed effective January DEPARTMENT OF HOMELAND allowable under the Stafford Act. 10, 2008. SECURITY The Federal Emergency Management (The following Catalog of Federal Domestic Federal Emergency Management Agency (FEMA) hereby gives notice that Assistance Numbers (CFDA) are to be used pursuant to the authority vested in the for reporting and drawing funds: 97.030, Agency Community Disaster Loans; 97.031, Cora Administrator, under Executive Order [FEMA–1739–DR] Brown Fund Program; 97.032, Crisis 12148, as amended, Justo Hernandez, of Counseling; 97.033, Disaster Legal Services Nebraska; Major Disaster and Related FEMA is appointed to act as the Federal Program; 97.034, Disaster Unemployment Determinations Coordinating Officer for this declared Assistance (DUA); 97.046, Fire Management disaster. Assistance; 97.048, Individuals and AGENCY: Federal Emergency The following areas of the State of Households Housing; 97.049, Individuals and Management Agency, DHS. Nebraska have been designated as Households Disaster Housing Operations; ACTION: Notice. adversely affected by this declared 97.050 Individuals and Households major disaster: Program—Other Needs, 97.036, Public SUMMARY: This is a notice of the Assistance Grants; 97.039, Hazard Mitigation Gage, Jefferson, Johnson, Nemaha, Otoe, Grant Program.) Presidential declaration of a major Pawnee, Richardson, and Thayer Counties for disaster for the State of Nebraska Public Assistance. R. David Paulison, (FEMA–1739–DR), dated January 11, All counties within the State of Nebraska Administrator, Federal Emergency 2008, and related determinations. are eligible to apply for assistance under the Management Agency. EFFECTIVE DATE: January 11, 2008. Hazard Mitigation Grant Program. [FR Doc. E8–1226 Filed 1–23–08; 8:45 am] FOR FURTHER INFORMATION CONTACT: (The following Catalog of Federal Domestic BILLING CODE 9110–10–P Peggy Miller, Disaster Assistance Assistance Numbers (CFDA) are to be used Directorate, Federal Emergency for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Management Agency, Washington, DC Brown Fund Program; 97.032, Crisis DEPARTMENT OF HOMELAND 20472, (202) 646–2705. Counseling; 97.033, Disaster Legal Services SECURITY SUPPLEMENTARY INFORMATION: Notice is Program; 97.034, Disaster Unemployment hereby given that, in a letter dated Assistance (DUA); 97.046, Fire Management Federal Emergency Management January 11, 2008, the President declared Assistance; 97.048, Individuals and Agency a major disaster under the authority of Households Housing; 97.049, Individuals and [FEMA–1733–DR] the Robert T. Stafford Disaster Relief Households Disaster Housing Operations; 97.050, Individuals and Households Oregon; Amendment No. 6 to Notice of and Emergency Assistance Act, 42 Program—Other Needs; 97.036, Public U.S.C. 5121–5206 (the Stafford Act), as Assistance Grants; 97.039, Hazard Mitigation a Major Disaster Declaration follows: Grant Program.) AGENCY: Federal Emergency I have determined that the damage in R. David Paulison, Management Agency, DHS. certain areas of the State of Nebraska ACTION: resulting from a severe winter storm during Administrator, Federal Emergency Notice. the period of December 10–12, 2007, is of Management Agency. SUMMARY: This notice amends the notice sufficient severity and magnitude to warrant [FR Doc. E8–1223 Filed 1–23–08; 8:45 am] of a major disaster declaration for the a major disaster declaration under the Robert BILLING CODE 9110–10–P T. Stafford Disaster Relief and Emergency State of Oregon (FEMA–1733–DR), Assistance Act, 42 U.S.C. §§ 5121–5206 (the dated December 8, 2007, and related Stafford Act). Therefore, I declare that such DEPARTMENT OF HOMELAND determinations. a major disaster exists in the State of SECURITY EFFECTIVE DATE: Nebraska. January 15, 2008. In order to provide Federal assistance, you Federal Emergency Management FOR FURTHER INFORMATION CONTACT: are hereby authorized to allocate from funds Agency Peggy Miller, Disaster Assistance available for these purposes such amounts as Directorate, Federal Emergency you find necessary for Federal disaster [FEMA–1738–DR] Management Agency, Washington, DC assistance and administrative expenses. 20472, (202) 646–2705. You are authorized to provide Public Nevada; Amendment No. 1 to Notice of SUPPLEMENTARY INFORMATION: Assistance in the designated areas, Hazard a Major Disaster Declaration The notice Mitigation throughout the State, and any of a major disaster declaration for the other forms of assistance under the Stafford AGENCY: Federal Emergency State of Oregon is hereby amended to Act that you deem appropriate. Consistent Management Agency, DHS. include the following area among those

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areas determined to have been adversely at the address below by February 7, 5. International Trade Issues/Updates. affected by the catastrophe declared a 2008. Comments must be identified by 6. Import Safety. major disaster by the President in his USCBP–2008–0001 and may be 7. Intellectual Property Rights. declaration of December 8, 2007. submitted by one of the following 8 . World Customs Organization Updates. The Confederated Tribes of the Coos, methods: • Federal eRulemaking Portal: http:// Lower Umpqua and Siuslaw Indians located Procedural within Coos County for Public Assistance. www.regulations.gov. Follow the instructions for submitting comments. This meeting is open to the public. (The following Catalog of Federal Domestic • Assistance Numbers (CFDA) are to be used E-mail: [email protected]. Please note that the meeting may close for reporting and drawing funds: 97.030, Include the docket number in the early if all business is finished. Community Disaster Loans; 97.031, Cora subject line of the message. Participation in COAC deliberations is Brown Fund Program; 97.032, Crisis • Fax: 202–344–2064. limited to committee members, Counseling; 97.033, Disaster Legal Services • Mail: Ms. Wanda Tate, Office of Department of Homeland Security Program; 97.034, Disaster Unemployment International Affairs and Trade officials, and persons invited to attend Assistance (DUA); 97.046, Fire Management Relations, U.S. Customs and Border the meeting for special presentations. Assistance; 97.048, Individuals and Protection, Department of Homeland All visitors to the hotel must check- Households Housing; 97.049, Individuals and Security, Room 8.5C, Washington, DC in with CBP officials at registration held Households Disaster Housing Operations; 20229. in the lobby at the JW Marriott Starr 97.050, Individuals and Households Instructions: All submissions received Program—Other Needs; 97.036, Public Pass Resort & Spa. Since seating is Assistance Grants; 97.039, Hazard Mitigation must include the words ‘‘Department of limited, all persons attending this Grant Program.) Homeland Security’’ and the docket meeting should provide notice, number for this action. Comments preferably by close of business R. David Paulison, received will be posted without Thursday, February 8, 2008, to Ms. Administrator, Federal Emergency alteration at http://www.regulations.gov, Wanda Tate, Office of Trade Relations, Management Agency. including any personal information U.S. Customs and Border Protection, [FR Doc. E8–1231 Filed 1–23–08; 8:45 am] provided. Department of Homeland Security, BILLING CODE 9110–10–P Docket: For access to the docket to Washington, DC 20229, telephone 202– read background documents or 344–1440; facsimile 202–344–2064. comments received by the COAC, go to DEPARTMENT OF HOMELAND http://www.regulations.gov. Information on Services for Individuals With Disabilities SECURITY FOR FURTHER INFORMATION CONTACT: Ms. Wanda Tate, Office of International For information on facilities or U.S. Customs and Border Protection Affairs and Trade Relations, U.S. services for individuals with disabilities [Docket No. USCBP–2008–0001] Customs and Border Protection, or to request special assistance at the Department of Homeland Security, 1300 meeting, contact Ms. Wanda Tate as Notice of Meeting of the Departmental Pennsylvania Ave., NW., Room 8.5C, soon as possible. Advisory Committee on Commercial Washington, DC 20229; Dated: January 18, 2008. Operations of Customs and Border [email protected]; telephone 202– Michael C. Mullen, Protection and Related Homeland 344–1440; facsimile 202–344–2064. Security Functions (COAC) Assistant Commissioner, Office of SUPPLEMENTARY INFORMATION: Pursuant International Affairs and Trade Relations, AGENCY: U.S. Customs and Border to the Federal Advisory Committee Act U.S. Customs and Border Protection. Protection, Department of Homeland (5 U.S.C., app.), DHS hereby announces [FR Doc. E8–1214 Filed 1–23–08; 8:45 am] Security (DHS). the meeting of the Departmental BILLING CODE 9111–14–P Advisory Committee on Commercial ACTION: Notice of Federal Advisory Committee meeting. Operations of U.S. Customs and Border Protection and Related Homeland DEPARTMENT OF HOMELAND SUMMARY: The Departmental Advisory Security Functions (COAC). COAC is SECURITY Committee on Commercial Operations tasked with providing advice to the of U.S. Customs and Border Protection Secretary of Homeland Security, the Bureau of Customs and Border and Related Homeland Security Secretary of the Treasury, and the Protection Functions (popularly known as Commissioner of U.S. Customs and [USCBP–2007–0083] ‘‘COAC’’) will meet on February 13, Border Protection (CBP) on matters 2008 in Tucson, AZ. The meeting will pertaining to the commercial operations Proposed Interpretation of the be open to the public. of CBP and related functions within Expression ‘‘Sold for Exportation to DATES: COAC will meet Wednesday, DHS or the Department of the Treasury. the United States’’ for Purposes of February 13th from 1 p.m. to 5 p.m. The fifth meeting of the tenth term of Applying the Transaction Value Please note that the meeting may close COAC will be held at the date, time and Method of Valuation in a Series of early if the committee has completed its location specified above. A tentative Sales business. agenda for the meeting is set forth below. AGENCY: Customs and Border Protection, ADDRESSES: The meeting will be held at Department of Homeland Security. the JW Marriott Starr Pass Resort & Spa, Tentative Agenda ACTION: Proposed interpretation; 3800 W. Starr Blvd., Tucson, AZ 85745. 1. Secure Freight Initiative/Advance solicitation of comments. Written material and comments should Trade Data (10+2). reach the contact person listed below by 2. International Container Security. SUMMARY: ‘‘Transaction value’’ is the February 7th. Requests to have a copy 3. C–TPAT (Customs-Trade primary method of appraising imported of your material distributed to each Partnership Against Terrorism). merchandise and is defined in 19 U.S.C. member of the committee prior to the 4. ITDS (International Trade Data 1401a as ‘‘the price actually paid or meeting should reach the contact person System). payable for merchandise when sold for

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exportation to the United States,’’ plus comments should be made in advance law substantively incorporates the specified additions to that amount. This by calling Joseph Clark at (202) 572– definitions of ‘‘transaction value’’ and document provides notice to interested 8768. ‘‘price actually paid or payable’’ parties that Customs and Border FOR FURTHER INFORMATION CONTACT: contained in the Valuation Agreement. Protection (CBP) proposes a new Lorrie Rodbart, Valuation and Special The statutory additions that form part of interpretation of the phrase ‘‘sold for Programs Branch, Regulations and transaction value are the ones provided exportation to the United States’’ for Rulings, Office of International Trade, for in Article 8 of the Valuation purposes of applying the transaction (202) 572–8740. Agreement. Neither 19 U.S.C. 1401a, nor value method of valuation in a series of SUPPLEMENTARY INFORMATION: the implementing regulations set forth sales importation scenario. CBP in part 152 of title 19 of the Code of proposes that in a transaction involving Public Participation Federal Regulations (19 CFR part 152), a series of sales, the price actually paid Interested persons are invited to defines the phrase ‘‘sold for exportation or payable for the imported goods when submit written data, views, or to the United States.’’ sold for exportation to the United States arguments on all aspects of the II. Determining Transaction Value in a is the price paid in the last sale proposed interpretation. If appropriate Series of Sales Situation occurring prior to the introduction of to a specific comment, the commenter the goods into the United States, instead should reference the specific portion of When the import transaction involves of the first (or earlier) sale. Under this the proposed interpretation, explain the only one sale, it is generally easy to proposal, transaction value will reason for any recommended change, identify the sale for exportation to the normally be determined on the basis of and include data, information, or United States for purposes of the price paid by the buyer in the authority that support such determining the price actually paid or United States. This proposed recommended change. payable. In that situation, there is only interpretation reflects the conclusions of Background one buyer, usually located in the United the Technical Committee on Customs States, and one seller, usually located in Valuation as set forth in Commentary I. Transaction Value—The Valuation another country. Difficulties arise when 22.1, entitled ‘‘Meaning of the Agreement and U.S. Value Law the import transaction involves a series Expression ‘Sold for Export to the The Agreement on Implementation of of sales. Country of Importation’ in a Series of Article VII of the General Agreement on Sales.’’ Since it is common for import Tariffs and Trade (GATT) (Valuation transactions to involve multiple parties DATES: Comments must be received on Agreement) sets forth the methods for and multiple sales, the issue of which or before March 24, 2008. determining the value of imported 1 sale must be used to calculate the price ADDRESSES: You may submit comments, goods. The General Introductory actually paid or payable arises identified by docket number USCBP Commentary to the Valuation frequently. Although this series of sales 2007–0083, by one of the following Agreement provides that the primary issue is critical to the proper methods: basis for customs value is ‘‘transaction determination of transaction value, the • Federal eRulemaking Portal: http:// value’’ as defined in Article 1. Article 1 statute does not explicitly address this www.regulations.gov. Follow the provides that the customs value of question. instructions for submitting comments imported merchandise ‘‘shall be the via docket number USCBP 2007–0083. transaction value, that is the price CBP’s current interpretation is to base • Mail: Trade and Commercial actually paid or payable for the goods transaction value on the price paid by Regulations Branch, Customs and when sold for export to the country of the buyer in the first or earlier sale (e.g., Border Protection, 1300 Pennsylvania importation, adjusted in accordance the sale between the manufacturer and Avenue, NW. (Mint Annex), with the provisions of Article 8. * * * ’’ the intermediary) provided the importer Washington, DC 20229. [Emphasis added] The Agreement does can establish by sufficient evidence that Instructions: All submissions received not define the phrase ‘‘sold for export to this was an arm’s length sale and that, must include the agency name and the country of importation.’’ at the time of such sale, the docket number for this proposed Under the U.S. value law, set forth at merchandise was clearly destined for interpretive rule. All comments received 19 U.S.C. 1401a, transaction value is exportation to the United States. See will be posted without change to also the primary method of determining T.D. 96–87, vols. 30/31 Cust. B. & Dec. http://www.regulations.gov, including the appraised value.2 The U.S. value Nos. 52/1 (January 2, 1997); Customs any personal information provided. For Informed Compliance Publication, detailed instructions on submitting 1 This Agreement was one of the codes resulting entitled Bona Fide Sales and Sales for comments and additional information in 1979 from the Multilateral Trade Negotiations in Exportation to the United States, and; GATT and provides a detailed set of valuation numerous CBP rulings.3 Application of on the rulemaking process, see the rules. These rules expanded and gave greater ‘‘Public Participation’’ heading of the precision to the general valuation principles this ‘‘first-sale’’ principle often results SUPPLEMENTARY INFORMATION section of established in the GATT. The United States enacted in the transaction value being this document. the provisions of this Agreement into U.S. law in determined on the basis of the price the Trade Agreements Act of 1979 (TAA), Public paid by a foreign buyer to a foreign Docket: For access to the docket to Law 96–39, 93 Stat. 144, codified at 19 U.S.C. read background documents or 1401a. See also 19 U.S.C. 2503(a) and (c)(1). As a seller. CBP has reassessed this current comments received, go to http:// result of the 1994 Agreement establishing the World interpretation in light of a recent www.regulations.gov. Submitted Trade Organization (WTO), the Agreement on decision issued by the Technical Implementation of Article VII of the GATT is now Committee on Customs Valuation. comments may also be inspected during commonly referred to as the WTO Valuation regular business days between the hours Agreement. For ease of reference, this document of 9 a.m. and 4:30 p.m. at the Trade and will refer to this Agreement as the Valuation exportation to the United States plus specified Commercial Regulations Branch, Agreement. All Members of the WTO are required amounts. See 19 U.S.C. 1401a(b)(1). to implement and apply the provisions of the 3 The informed compliance publication, as well Customs and Border Protection, 799 9th Valuation Agreement. as customs rulings issued since 1989, are available Street, NW., 5th Floor, Washington, DC. 2 Transaction value is the price actually paid or to the public for downloading from the CBP Web Arrangements to inspect submitted payable for the merchandise when sold for site at http://www.customs.gov.

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III. Technical Committee on Customs 1,000 pens of styles xx and yy. B T.D. 96–87 and in CBP ruling letters is Valuation: Commentary 22.1, Meaning contracts with C for the same amounts not correct. The reasons for this of the Expression ‘‘Sold for Export to and styles of pens. C subsequently ships conclusion are discussed below. CBP is the Country of Importation’’ in a Series the pens directly to A. One of the proposing a new interpretation to of Sales questions posed was whether the price address how transaction value will be Article 18 of the Valuation Agreement actually paid or payable for the determined in a series of sales situation established the Technical Committee on imported goods when sold for export to that is consistent with the conclusions Customs Valuation (Technical the country of importation is the price of the Technical Committee in Committee) ‘‘with a view to ensuring, at A pays B in the last sale or the price B Commentary 22.1. the technical level, uniformity in pays C in the first sale. In the section of Commentary 22.1 CBP further notes its understanding interpretation and application of this that most WTO Members already apply Agreement’’.4 One of the responsibilities entitled, ‘‘Guidance derived from the provisions of the Agreement,’’ the the interpretation set forth in of the Technical Committee is to furnish Commentary 22.1. Therefore, adoption information and advice on matters Technical Committee notes that the Agreement does not define or otherwise of the proposed interpretation would concerning the valuation of imported conform the U.S. interpretation goods for customs purposes, as may be directly address the meaning of the expression ‘‘sold for export to the regarding the application of transaction requested by any WTO Member or the value in a series of sales to the current Committee on Customs Valuation. The country of importation.’’ Therefore, the Technical Committee analyzes in great interpretation of most other WTO advice may take the form of advisory Members. opinions, commentaries or explanatory detail various provisions of the notes (referred to collectively as Agreement for guidance regarding the Discussion of Proposed Interpretation instruments). At its 24th Session held at meaning of this phrase, including, for I. Transaction Value—Statutory the WCO in April, 2007, the Technical example, Article 8 relating to the Language Committee adopted Commentary 22.1, adjustments that must be made to the price actually paid or payable in the entitled ‘‘Meaning of the Expression Transaction value is derived from the determination of transaction value. ‘Sold for Exportation to the Country of price the buyer actually paid the seller Importation’ in a Series of Sales.’’ 5 The On the basis of this analysis, and in consideration of the fact that different for the imported merchandise. In this series of sales issue had been on the regard, the current statute directs that agenda of the Technical Committee for countries’ administrations may find it difficult to verify relevant information ‘‘the transaction value of imported several sessions. Recognizing that this merchandise is the price actually paid issue is important to the proper including accounting records that relate to the first sale, the Technical or payable for the merchandise when application of the transaction value sold for exportation to the United method under Articles 1 and 8, and that Committee reached the following conclusions: States.’’ [Emphasis added] See 19 U.S.C. different administrations have adopted 1401a(b)(1) and 19 CFR 152.103(b). The different interpretations, the Technical The Technical Committee is of the view term ‘‘price actually paid or payable’’ that the underlying assumption of Article 1 Committee decided to study and clarify means the total payment made, or to be this issue.6 is that normally the buyer would be located in the country of importation and that the made, for imported merchandise by the In Commentary 22.1, the Technical buyer to, or for the benefit of, the seller. Committee states, ‘‘[a] series of sales price actually paid or payable would be based on the price paid by this buyer. The See 19 U.S.C. 1401a(b)(4)(A) and 19 CFR consists of two or more successive Technical Committee concludes that in a 152.102(f). In determining transaction contracts for sales of goods. A basic series of sales situation, the price actually value, various costs must be added to issue in a series of sales is which sale paid or payable for the imported goods when the price actually paid or payable, to the should be used to determine the sold for export to the country of importation extent they are not already included. transaction value under Articles 1 and is the price paid in the last sale occurring See 19 U.S.C. 1401a(b)(1)(A)–(E).7 These 8 of the Agreement. The purpose of this prior to the introduction of the goods into the additions form an integral part of document is to clarify this issue.’’ country of importation, instead of the first (or The Commentary includes an earlier) sale. This is consistent with the transaction value. If sufficient example illustrating a series of sales purpose and overall text of the Agreement. information is not available with respect situation. In the example, A is a retail [Emphasis added] to any of the specified amounts, the In the example, consistent with the transaction value of the imported store located in the country of conclusion, the sale between A and B importation, B is a pen distributor merchandise concerned will be treated, represents such a sale. Therefore, the price for purposes of this section, as one that located in country Z, and C is a pen actually paid or payable for the imported manufacturer located in country X. A goods when sold for export to Country I is cannot be determined. See 19 U.S.C. contracts with B for the purchase/sale of 10,000 c.u. (the price A pays B in the last 1401a(b)(1). The statute also specifies sale). certain limitations on the use of 4 transaction value. For example, a related Article 18 established the Technical Committee In view of the fact that CBP’s current under the auspices of the Customs Cooperation party transaction value is acceptable if interpretation of the expression ‘‘sold Council, now known as the World Customs it ‘‘closely approximates * * * the for exportation to the United States’’ for Organization (WCO). The WCO publishes the transaction value of identical instruments of the Technical Committee in the purposes of applying the transaction Customs Valuation Compendium. Article 18 also value method of valuation in a series of merchandise, or of similar merchandise, established the Committee on Customs Valuation. sales situation is contrary to the in sales to unrelated buyers in the 5 Commentary 22.1 was published in July, 2007, considered views of the Technical United States ***.’’ [Emphasis added] as part of Amending Supplement 6, WCO Customs See 19 U.S.C. 1401a(b)(2)(B)(i).8 Valuation Compendium. A copy is included as Committee, as reflected in Commentary ‘‘Attachment A’’ to this document. 22.1, CBP has undertaken a thorough 6 The Technical Committee asked Members to examination of this series of sales issue 7 These additions are listed in footnote 11 of this provide information about how each document. Administration addressed the series of sales issue. under the U.S. value law. Based on this 8 The various methods of establishing that a In response, the U.S. Administration submitted a examination, CBP has concluded that related party transaction value is acceptable are copy of T.D. 96–87. the current interpretation as set forth in specified in 19 U.S.C. 1401a(b)(2)(B).

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II. Transaction Value—Legislative (assists are one of the additions to the sale’’, a result that was not intended. History price actually paid or payable), the Based on the provisions of Article 1, Prior to the enactment of the TAA, Court of International Trade (CIT) Article 8, and the General Introductory imported merchandise was appraised, indicated that the legislative history of Commentary, the Technical Committee in general, on its export value.9 the U.S. value law includes an states that ‘‘the Article 8 adjustments are Verification of facts in the country of examination of the GATT Valuation intended to fully reflect the substance of export was frequently required to Code (Valuation Agreement) noting that the entire transaction’’ and that ‘‘it is determine export value. The legislative 19 U.S.C. 1401a implemented the essential to apply transaction value in a history of the TAA makes it clear that Agreement in the U.S. law. series of sales situation in a manner that It is therefore appropriate to examine Congress intended to replace the takes into account the substance of the the analysis of this issue by the complicated ‘‘export value’’ system entire commercial import transaction Technical Committee. To that end, it is requiring investigations into the pricing and permits the proper application of noted that the Technical Committee practices in a foreign country with one Article 8.’’ The Technical Committee stated in Commentary 22.1: concludes that this occurs when in which the requisite information was transaction value is based on the last easily obtainable and the determination Article 1 does not refer to import sale rather than the first sale: of the appraised value was predictable transactions involving a series of sales and consequently does not provide criteria in that and straightforward. See S. Rep. No. 96– . . . [F]or example, under Article 8.1(a) and respect. Therefore, guidance must be sought (c), selling commissions or royalties and 249 and H. Rep. No. 96–317 to from the purpose and the overall text of the accompany H.R. 4537, 96th Cong. 1st license fees, are only to be included in the Agreement, including an examination of its Customs value where they are incurred or Sess. (1979). provisions. In addition, certain practical paid by the buyer. Similarly, under Article The methods of valuation * * * represent considerations are relevant. 8.1(b), the buyer must supply the assist. In a a simplification of U.S. law and add Accordingly, the Technical series of sales, a buyer who is located in the significantly more predictability regarding Committee undertook a detailed country of importation would rarely be the the value which will be used for customs examination of the Agreement. This buyer in the first sale. (Paragraph 17) Moreover, in a series of sales, the buyer in purposes. The use of transaction value as the examination included the General primary basis for customs valuation will the first sale is not necessarily the party who allow use of the price which the buyer and Introductory Commentary, the text, and pays the royalties or provides the assists. seller agreed to in their transaction as the interpretative notes to Articles 1, 6, 7, 8, Therefore, the application of the first sale basis for valuation, rather than having to and 9. The Technical Committee may preclude the addition of certain selling resort to the more difficult concepts of concluded that ‘‘there are various commissions, royalties and assists that ‘‘freely offered,’’ ‘‘ordinary course of trade,’’ indications in the General Introductory otherwise would be included in the ‘‘principal markets of the country of Commentary, Article 1 and other transaction value. Similarly, under Article exportation,’’ and ‘‘usual wholesale provisions of the Agreement that it was 8.1(d), only proceeds that accrue directly or indirectly to the seller may be added to the quantities’’ contained in existing U.S. law. envisaged that Article 1 would normally S. Rep. No. 96–249, at 119. price actually paid or payable. Proceeds paid be based on sales to buyers in the by the buyer in the country of importation An attempt has been made to ensure that 10 these new rules are fair and simple, conform country of importation.’’ Two of these would not necessarily revert to the seller in to commercial reality, and allow traders to indications, Article 8 regarding the first sale. (Paragraph 18) predict, with a reasonable degree of accuracy, adjustments and Article 7 regarding the In sum, a transaction value based on the the duty that will be assessed to their fallback method, are discussed below. first sale may not fully reflect the substance products. In paragraphs 14–20, Commentary of the inputs resulting from, or forming part H. Rep. No. 96–317, at 79. 22.1, the Technical Committee analyzes of the entire commercial chain as envisioned by the General Introductory Commentary, The Court of Appeals for the Federal the adjustments that must be made to and Articles 1 and 8. In contrast, a Circuit (CAFC) quoted the Senate Report the price actually paid or payable transaction value based on the last sale will language with approval in Generra pursuant to Article 8. The Technical more fully reflect the substance of the entire Sportswear Co. v. United States, 905 Committee observes that the transaction as envisioned. (Paragraph 21) F.2d 377, 380 (Fed. Cir. 1990). In determination of the proper sale upon As indicated above, Article 8 is Generra, the CAFC also indicated that which transaction value is based under implemented in U.S. law in 19 U.S.C. the transaction value statute was Article 1 (i.e., the first or last sale) 1401a(b)(1)(A)–(E). These provisions are enacted in order to provide a directly affects what adjustments can be substantively the same as Article 8 and ‘‘straightforward approach’’ to valuation made under Article 8. Article 8 requires include these same references to costs that would not require Customs to the addition of specified costs, incurred by or paid by the buyer or engage in ‘‘formidable fact-finding.’’ See including certain commissions incurred proceeds that accrue to the seller.11 also VWP of America v. Untied States, by the buyer, certain goods and services 175 F.3d 1327 (Fed. Cir. 1999). (referred to as assists under U.S. law) 11 The additions under 19 U.S.C. 1401a(b)(1) In Salant v. United States, 86 F. Supp. supplied by the buyer, certain royalties include: 2d 1301 (C.I.T. 2000), a case involving and license fees paid by the buyer and (A) The packing costs incurred by the buyer with certain proceeds that accrue to the respect to the imported merchandise; the interpretation of the assist provision (B) Any selling commission incurred by the buyer seller. Because these costs must be with respect to the imported merchandise; 9 Export value was defined as the ‘‘price, at the incurred by the buyer, supplied by the (C) The value, apportioned as appropriate, of any time of exportation to the United States * * * at buyer, paid by the buyer or must accrue assist; (An assist is defined as specified items if which such or similar merchandise is freely sold or, to the seller, the Technical Committee supplied directly or indirectly, and free of charge in the absence of sales, offered for sale in the or at reduced cost, by the buyer of imported principal markets of the country of exportation, in observes that ‘‘in many cases it would merchandise for use in connection with the the usual wholesale quantities and in the ordinary not be possible to make the Article 8 production or the sale for export to the United course of trade, for exportation to the United adjustments if transaction value was States of the merchandise) States.’’ [Emphasis added] 19 U.S.C. 1401a(b) (1976) determined based on (the price actually (D) Any royalty or license fee related to the and 19 U.S.C. 1402(d) (1976). The ‘‘export value’’ imported merchandise that the buyer is required to statute required an appraisement based on sales in paid or payable by the buyer in) the first pay, directly or indirectly, as a condition of the sale the country of exportation at the time of the of the imported merchandise for exportation to the exportation, i.e., the value of ‘‘exported 10 These are addressed in detail in Commentary Untied States; and merchandise.’’ 22.1. See ‘‘Attachment’’ to this document Continued

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Therefore, the above considerations of the view that these same observations on the basis of a domestic sale in the would also apply to the U.S. law. This can be made on the basis of 19 U.S.C. country of exportation, it would not means that the series of sales issue has 1401a(f). CBP has also observed many have included this prohibition under a a direct impact on the additions that can instances where the first sale is between flexible application of transaction value be made under 19 U.S.C. a manufacturer and distributor each under the fallback method. 1401a(b)(1)(A)–(E). In fact, CBP has located in the country of exportation CBP is of the view that basing encountered many situations where (e.g., see E.C. McAfee Co. v. United transaction value on the last sale certain royalties, selling commissions or States, 842 F.2d 314 (Fed. Cir. 1988), occurring prior to the introduction of other required statutory additions could discussed below). The fact that Congress the goods into the United States reflects not be included in the transaction value expressly prohibited the use of these the proper construction of the statute due to the application of the first sale sale prices under the fallback method and carries out the legislative intent of principle. (which permits a flexible application of the TAA. In addition, it establishes a After analyzing various provisions of the other statutory methods) provides a straightforward rule for determining the Valuation Agreement that directly good indication that Congress assumed transaction value in a series of sales relate to the determination of that these sale prices would not be used situation that does not require CBP to transaction value under Article 1 (i.e., to determine transaction value. This engage in formidable fact-finding or to the General Introductory Commentary, anomaly does not arise when conduct foreign inquiries. This new Article 1, Article 8, and the Note to transaction value is determined on the approach will enable traders to predict Article 8), Commentary 22.1 refers to basis of the last sale. with a reasonable degree of accuracy the other provisions of the Valuation Based on its examination of all the customs value based on information Agreement for further guidance (i.e., provisions of the Valuation Agreement, readily available in the U.S. In addition, Articles 6, 7 and 9). For example, in and the Agreement’s underlying this proposal is consistent with the paragraph 23, the Technical Committee purpose, the Technical Committee provisions and purpose of the Valuation refers to the text of Article 7 (commonly stated that it is of the view that the Agreement, as clarified by the Technical referred to as ‘‘the fallback method’’) underlying assumption of Article 1 is Committee. and finds indications therein that that normally the buyer would be III. Court Decisions on Series of Sales Article 1 was intended to be determined located in the country of importation Issue on the basis of the last sale, instead of and that the price actually paid or the first (or earlier) sale. The fallback payable would be based on the price A. Early court decisions and the method is used when transaction value paid by this buyer. The Technical invocation of the export value statute. Committee therefore concluded that in a (Article 1) and the other methods of Two early court cases that considered valuation (Articles 2–6) cannot be series of sales situation the price actually paid or payable is the price the series of sales issue under the applied to determine the value. transaction value statute were E.C. Paragraph 23 states: paid in the last sale occurring prior to the introduction of the goods into the McAfee Co. v. United States, 842 F.2d As provided in paragraph 2 of the Note to country of importation, rather than the 314 (Fed. Cir. 1988) and Nissho Iwai Article 7, the methods of valuation to be first, or earlier, sale. American Corp. v. United States, 982 employed under Article 7 should be those F.2d 505 (Fed. Cir. 1992). laid down in Articles 1 through 6 but with Although Congress also did not explicitly address the series of sales E.C. McAfee Co. v. United States a reasonable flexibility. However, Article 7 involved the importation of made-to- indicates that this flexibility does not extend issue in the U.S. value law, based on an to allow the use of certain prices, including examination of all the provisions of 19 measure suits. The U.S. purchaser ‘‘the price of goods on the domestic market U.S.C. 1401a and the legislative history, ordered the suits from a Hong Kong of the country of exportation’’ (see Article CBP is of the view that the underlying distributor who then contracted with a 7.2). This gives a clear indication of the assumption of transaction value was tailor in Hong Kong to assemble the intended scope of Article 1, namely that a that normally the buyer would be clothing. After receiving the completed sale that is prohibited under a flexible located in the United States and that the clothing from the tailor, the Hong Kong application of Article 1 cannot possibly be price actually paid or payable would be distributor delivered the clothing to the considered as valid under the normal based on the price paid by this buyer. freight forwarder for transport to the application of Article 1. In a series of sales United States and the purchaser in the situation, the first sale often involves a sale In light of the concerns expressed about between a producer and a local distributor in export value (i.e., that it was a complex U.S. The issue presented was whether the same country. Clearly, these sales cannot valuation system that required foreign transaction value should be determined be used to determine the Customs value inquiries in order to determine the on the basis of the price the U.S. under Article 7. It follows that such sales value), CBP is of the view that had purchaser paid to the distributor or the should also not be used to determine the Congress intended that under the lower price the distributor paid to the value under Article 1. transaction value statute the price Hong Kong tailor who assembled the The provisions of Article 7, including actually paid or payable ought to be the clothing. its prohibitions, are implemented in price paid by a buyer in the first sale Although the transaction value statute U.S. law in 19 U.S.C. 1401a(f).12 CBP is (usually a buyer located outside the applied to the importations at issue in U.S.) or that the required additions McAfee, the CAFC concluded that it was (E) The proceeds of any subsequent resale, ought to be based on the costs incurred necessary to follow the judicial disposal, or use of the imported merchandise that by that buyer in the first sale, it would precedents decided under the prior accrue, directly or indirectly, to the seller. have so provided. CBP also maintains export value statute. The court adopted [Emphasis added] 12 19 U.S.C. 1401a(f)(1) states: If the value of that if Congress had intended that Customs’ reasoning that the export imported merchandise cannot be determined, or transaction value would be determined value decisions were applicable to the otherwise used for the purposes of this Act, under issue presented because the phrase ‘‘for subsections (b) through (e), the merchandise shall arrive at a value. 19 U.S.C. 1401a(f)(2)(C) states: exportation to the United States’’ in the be appraised for the purposes of this Act on the Imported merchandise may not be appraised, for old export value statute ‘‘is not basis of a value that is derived from the methods the purposes of this Act, on the basis of the price set forth in such subsections, with such methods of merchandise in the domestic market of the significantly different from the quoted being reasonably adjusted to the extent necessary to country of exportation. provision of the current statute.’’

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McAfee 842 F.2d 314, 318.13 The long as that sale constitutes a viable United States, 175 F.3d 1327 (Fed. Cir. McAfee Court reasoned: transaction value.15 1999), the CAFC held that the prior The cited [export value] cases assume, The court in Nissho Iwai utilized a export value case law cannot properly without explanation, that if the importer two-prong test for determining whether account for the significant differences establishes that his claimed, lower valuation the ‘‘first-sale’’ was a viable transaction between the two statutes, citing falls within the statute, the importer is value: The sale must be an arm’s length Generra, which quoted from S. Rep. No. entitled to the benefit of that valuation even sale and the goods must be clearly 96–249, as discussed above: though Customs valuation also satisfies the destined for export to the U.S. Based on In Generra Sportswear Co. v. United States, same statutory requirements. While an the facts presented, the CAFC 905 F.2d 377, 380 (Fed. Cir. 1990), we argument could be made that Customs determined that these criteria were met referred to ‘‘the critical difference’’ between should have the option to impose the higher and held that the custom-made subway ‘‘export value’’ under pre-1979 law and duty in such circumstances, the cited ‘‘transaction value’’ under the present statute. precedent is to the contrary. [Parenthetical cars at issue must be appraised based on the price the intermediary paid the In that context, we quoted with approval added] material from legislative history of the Trade 14 manufacturer. McAfee at 318. Agreements Act: The use of transaction value In Synergy Sport International, Ltd. v. The CAFC primarily relied on United as the primary basis for customs valuation United States, 17 C.I.T. 18 (1993), will allow use of the price which the buyer States v. Getz Bros. & Co, 55 C.C.P.A 11 another transaction value case involving (1967) and other cases decided under and seller agreed to in their transaction as the a series of sales that was decided shortly basis for valuation, rather than having to the export value statute in finding that after Nissho Iwai, the CIT applied the resort to the more difficult concepts of the price actually paid or payable must reasoning in Nissho Iwai and concluded ‘‘freely offered,’’ ‘‘ordinary course of trade,’’ be based on the price the Hong Kong that the imported garments at issue ‘‘principal markets of the country of distributor paid to the Hong Kong tailor. should be appraised based on the price exportation,’’ and ‘‘usual wholesale quantities’’ contained in existing U.S. law. It is noteworthy that McAfee did not the intermediary paid to the take into account any of the new manufacturer. The CIT stated that there [a]s the Court of International Trade itself recognized, Getz and Bjelland were decided language in the transaction value statute was no allegation that the sale was not or the legislative history of 19 U.S.C. under the export value statute, which was an arm’s length sale and determined repealed in 1979. In determining that 1401a. that the garments were clearly destined The CAFC subsequently considered transactions between [the parties] were not for export to the United States by virtue viable, the court applied incorrect standards, another series of sales situation in of the labels the manufacturer was specifically, standards relevant under the Nissho Iwai American Corp. v. United required to place on the garments.16 now superseded export value statute. The States, cited above, which involved Thus, the early court decisions that correct standards are those set forth in the imported subway cars. The issue required transaction value to be provisions of 19 U.S.C. 1401a discussed above. presented was whether transaction determined on the basis of the price value should be determined using the VWP of America, Inc. v. United States at actually paid or payable in the first sale 1334. price the U.S. customer paid to the are based primarily on case law decided intermediary or the price the under the prior export value law and the The substantial differences between intermediary’s parent company paid to similarity of some language from the export value and transaction value were the manufacturer. Relying on the export value law. also noted by the CIT in Moss analysis in McAfee, and the export value Manufacturing Co., Inc. v. United case law cited therein regarding the B. Recent Decisions Departing From the States, 714 F. Supp. 1223 (C.I.T. 1989), phrase ‘‘for exportation to the United Statutory Analysis in Prior Court Cases aff’d, 896 F.2d 535 (Fed. Cir. 1990). States,’’ the CAFC determined that on Series of Sales In light of the decisions in VWP and transaction value must be based on the More recently, the CAFC again had Moss, CBP is of the view that ‘‘first sale;’’ that is, the sale between the occasion to consider the relevance of notwithstanding the fact that the export intermediary and the manufacturer so certain court decisions decided under value and transaction value statutes the prior export value law to the each contain the phrase ‘‘for exportation 13 The merchandise at issue in McAfee was application of the transaction value to the United States,’’ the two statutes addressed by CBP (formerly the U.S. Customs statute. In VWP of America, Inc. v. are substantially different. Therefore, Service) in TAA #10/065056, entitled ‘‘Export the analysis of the series of sales issue Value: Dutiability of Sales from Manufacturers to Distributors’’ Customs Service Decision 81–72, 15 15 In Nissho Iwai, the imported merchandise under the transaction value statute Cust. B. & Dec. 876, Oct. 17, 1980. In this ruling, consisted of subway cars custom manufactured for should be based on a full analysis of the CBP concluded that case law decided under the the New York City Metropolitan Transit Authority provisions of 19 U.S.C. 1401a and its export value statute was also applicable to the (MTA). The MTA contracted with Nissho Iwai legislative history, rather than on the interpretation of the transaction value statute, American Corporation (NIAC) for subway cars made noting that both statutes include the language ‘‘for according to its specifications. NIAC assigned its only common wording found in both exportation to the United States.’’ CBP is now of the contract rights to its Japanese corporate parent, statutes and the cases decided under the view that this conclusion was erroneous because Nissho Iwai Corporation (NIC), and NIC contracted export value statute. CBP relied on the only phrase common to both with the manufacturer, Kawasaki Heavy Industries statutes and did not take into account the remainder (Kawasaki), for the subway cars. Kawasaki was IV. Difficulties in Administering the of the new statutory text that reflects the significant directly involved in the negotiations and sale First Sale Principle in a Series of Sales analytical change that Congress intended. (TAA #10 between MTA and NIAC and was named as the was subsequently revoked by an unpublished manufacturer in the MTA–NIAC contract. The The application of the first-sale ruling, TAA #40/542643, October 19, 1981 due to custom-made subway cars manufactured by principle for transaction value in a discrepancies in the facts presented). Kawasaki were imported by NIAC. series of sales requires considerable 14 CBP issued a general notice indicating that the 16 That case involved garments imported by holding of McAfee is limited by the language of the Synergy, a Hong Kong company with offices in the review of the specific facts and court to the facts of that particular case. According United States. Synergy sold the garments to J.C. documentation presented. For example, to the notice, the principles set forth within the Penney in the U.S. After J.C. Penney placed its determining whether fungible goods are court case should only be applied to the order with Synergy, Synergy placed an order with clearly destined to the U.S. when they importation of made-to-measure clothing and only Chinatex, the Chinese manufacturer. The issue in situations where the distributor and tailor are presented was whether the garments should be are sold to the intermediary is never located in the same country. See 22 Cust. B. & Dec. appraised based on the price J.C. Penney paid to clear-cut, especially when the No. 18, 7–8 (May 4, 1988). Synergy or on the price Synergy paid to Chinatex. merchandise is shipped to a foreign

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intermediary prior to the importation The first-sale principle for Agreement, both the CAFC and the CIT into the U.S. For example, the determining transaction value also have noted the importance of intermediary often sells the same makes it difficult for an importer to interpreting 19 U.S.C. 1401a in a merchandise both to buyers in the U.S. meet its obligations under 19 U.S.C. manner consistent with GATT and to buyers in other countries but the 1484 to use reasonable care to properly obligations. See Luigi Bormioli Corp., claim is made that the inventory records declare the value of imported Inc. v. United States, 304 F.3d 1362 and other evidence establish that the merchandise.18 The importer’s burden (Fed. Cir. 2002) and Caterpillar Inc. v. imported merchandise was clearly increases greatly when an importer United States, 20 C.I.T. 1169, 941 F. destined to the U.S. In these cases, CBP declares a transaction value based on Supp 1241 (CIT 1996). For this same must review the inventory records and the first sale, a sale for which the reason, the CIT determined in Salant, other evidence in order to evaluate the importer may not have access to all the cited above, that the legislative history claim. In other cases, importers claim transaction documents and the of 19 U.S.C. 1401a includes an that the submitted paper trail relating to surrounding details. In addition, examination of the Valuation all the various sales in the series of sales without knowledge of all the particulars Agreement. is sufficient to establish that the surrounding that sale, it is difficult for In the Luigi Bormioli case, the CAFC imported merchandise was destined for the importer to attest to the truthfulness relied on a decision by the Committee a particular U.S. customer. Determining of the value declaration as required by on Customs Valuation regarding the whether the merchandise was clearly 19 U.S.C. 1485(a). For example, it may proper interpretation of transaction destined to the U.S. customer requires a be impossible to know whether all the value under Article 1 of the Valuation review of all of these documents and applicable statutory additions have been Agreement and under 19 U.S.C. 1401a. extensive fact-finding. fully and accurately reported. In that case, the CAFC considered the Considerable fact-finding is also The proposed interpretation in this validity of T.D. 85–111, which necessary to determine whether a document addresses the above concerns concerned the treatment of interest particular first sale transaction is a bona by establishing a transparent standard payments under the transaction value fide arm’s length sale, especially when for determining transaction value that is statute. In T.D. 85–111, CBP determined some or all of the parties involved in the easily applied and based on information that interest payments are not included series of sales are related parties or available in the United States. Under the in transaction value when the when the series of sales involves more proposal, transaction value is based on conditions specified therein are than two sales and when additional the price paid in the last sale occurring satisfied. This decision was issued in parties, such as buying and/or selling prior to the introduction of the goods order to implement Decision 3.1 of the agents, are involved in the series of sales into the United States, instead of the Committee on Customs Valuation, transactions. In these cases, before a first (or earlier) sale. This will generally entitled ‘‘Treatment of Interest Charges determination can be made that the first be the price paid by the buyer in the in the Customs Value of Imported sale represents transaction value, it is United States. CBP will be better able to Goods.’’ The court in Luigi Bormioli necessary to examine the roles of the verify the accuracy of the declared value noted that in the background to the various parties and whether the claimed when transaction value is based on the document CBP stated, ‘‘the 1994 GATT first sale is a bona fide arm’s length sale. last sale. As a result, both CBP and Committee Decision had prompted If the buyer and seller are related, CBP importers will be better able to meet Customs to reassess its previous has to consider whether the relationship their shared responsibilities with position.’’ In upholding T.D. 85–11, the between the parties has affected the respect to proper customs valuation. CAFC emphasized the fact that it price. Assuming that a determination incorporated the conclusions of the has been made that the first sale is an V. Relevance of Technical Committee Committee on Customs Valuation in arm’s length sale and that the goods are Commentary 22.1, Meaning of the Decision 3.1 regarding the treatment of clearly destined to the U.S., additional Expression ‘‘Sold for Export to the interest under the Valuation Agreement. fact-finding is necessary to determine Country of Importation’’ in a Series of It also noted that the Committee whether all the statutory additions have Sales to Interpretation of U.S. Value decision established a uniform and been properly reflected. Statute (19 U.S.C. 1401a) logical policy regarding the treatment of The first sale principle also presents The courts have previously interest payments and the post-entry audit verification issues. This considered the relevance of the documentation required, and that such is due to the fact that the first sale Valuation Agreement as interpreted by policy was consistent with the U.S. law usually involves a foreign sale and CBP the Committee on Customs Valuation to and with the policy of the U.S. law. In does not have easy access to the records, the proper interpretation of 19 U.S.C. its analysis, the Luigi Bormioli Court including accounting records, which 1401a. stated: may be needed for verification Recognizing that 19 U.S.C. 1401a was We must first consider whether T.D. 85– purposes. CBP lacks direct access to the promulgated specifically to implement 111 is consistent with the statute. Although books and records relevant to the first the provisions of the Valuation all the detailed criteria of T.D. 85–111 cannot sale transaction.17 be found in the explicit language of the compliance assessment, audit or other inquiry for statute, we think that the statute must be 17 On December 8, 1993, Title VI (Customs the purpose of ascertaining the correctness of the interpreted to be consistent with GATT Modernization of ‘‘Mod Act’’), of the North entry and insuring compliance with the customs obligations, absent contrary indications in American Free Trade Agreement Implementation laws. When transaction value is based on the last the statutory language or its legislative Act (Pub. L. 103–182, 107 Stat. 2057), went into sale, it is likely that at least one of the parties to history. See Fed. Mogul Corp. v. United effect. Title VI amended many sections of the Tariff that sale would be subject to the recordkeeping States, 63 F.3d 1572, 1581 (Fed. Cir. 1990) Act of 1930, as amended, and related laws. Under requirements and the pertinent information relating to the sale is easily verified by CBP. This is often (‘‘Absent express Congressional language to the provisions of the Mod Act and 19 CFR part 163, the contrary, statutes should not be certain persons are required to maintain specified not the case when transaction value is determined records pertaining to the import transaction for based on the first sale. interpreted to conflict with international examination and inspection by CBP (i.e., an owner, 18 Section 484, as amended by the Customs obligations.’’). Here there are no such importer, consignee, importer of record, and entry Modernization Act, requires importers to use contrary indications. The GATT approach is filer and other specified persons). Under these reasonable care to correctly value and classify quite consistent with the statute. Like 19 provisions, CBP may initiate an investigation or entered merchandise. See 19 U.S.C. 1484. U.S.C. 1401a(b)(4)(A), the GATT broadly

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defines ‘‘price actually paid or payable.’’ See Specifically, CBP is proposing that in a the U.S. Based on the facts presented, 1994 GATT Interpretive Note. GATT is also series of sales situation, the price the first sale is an arm’s length sale and consistent with the policy of the statute. The actually paid or payable for the the pens were always clearly destined to GATT parameters not only provide a uniform imported goods when sold for the United States. Under this method to evaluate when ‘interest’ charges are included in transaction value, but they exportation to the United States is the interpretation, the proceeds of the also serve to prevent importers from price paid in the last sale occurring subsequent resale from the buyer in the manipulating the amount of duties assessed prior to the introduction of the goods U.S. to the distributor could not be on particular merchandise by simply into the United States, instead of the included in the transaction value absent designating part of the payment made for that first (or earlier) sale. The result will be evidence that such proceeds accrued merchandise as ‘‘interest.’’ Without a policy that transaction value is normally directly or indirectly to the seller in the that requires both sufficient documentation determined on the basis of the price first sale (i.e., the manufacturer). of the transaction, and evidence of paid by the buyer in the United States. Under the proposed interpretation, comparable prevailing rates and sales, an importer could easily reduce the ‘‘price If this proposed interpretation is the sale between the buyer in the U.S. actually paid or payable’’ of the goods by adopted, it will result in the revocation and the distributor is the last sale prior denominating charges that actually of T.D. 96–87, the modification or to the introduction of the pens into the represented a portion of the price of the revocation of administrative rulings that United States. Therefore, transaction goods as ‘‘interest.’’ Thus, we construe the have analyzed the series of sales issue value would be determined based on the statute to make it consistent with GATT. using the first-sale criteria, and the price paid by the buyer in the U.S. to Under that construction, T.D. 85–111 is revocation of any treatment previously the distributor in this last sale. The consistent with the statute because it is the accorded by CBP to substantially proceeds of the subsequent resale paid same as GATT. In all relevant respects T.D. 85–111 and the 1984 GATT Committee identical transactions. In addition, the by this buyer accrue directly to the decision set forth the same criteria *** application of McAfee, Nissho Iwai and seller in this last sale (i.e., the [Emphasis added] Synergy would be limited to the specific distributor). Therefore, under the entries at issue in those cases. Luigi Bormioli at 1369. proposed interpretation, these proceeds CBP is of the view that this decision II. Application of Proposed would be added to the price actually strongly supports an interpretation of 19 Interpretation to U.S. Value Law paid or payable pursuant to 19 U.S.C. 1401a(b)(1)(E). Basing transaction value U.S.C. 1401a that is consistent with the In order to facilitate a greater Valuation Agreement as clarified by the on the sale from the buyer in the U.S. understanding of how the proposed to the foreign distributor is consistent Technical Committee in Commentary interpretation set forth in this document 22.1. There are no contrary indications with the statement in Commentary 22.1 would apply to U.S. value law, it is that the underlying assumption of in the statutory language of 19 U.S.C. useful to examine the proposed 1401a or its legislative history. In fact, Article 1 (transaction value) is that interpretation in the context of a series normally the buyer would be located in CBP notes that most of the provisions in of sales example. 19 U.S.C. 1401a mirror the provisions of the country of importation and that the The example, set forth in paragraphs price actually paid or payable would be the Valuation Agreement. Moreover, the 4–9 of Commentary 22.1 (attached), relevant definitions of transaction value based on the price paid by this buyer. reflects a common fact pattern Basing transaction value on this sale and price actually paid or payable and addressed in numerous first-sale rulings also allows for the inclusion of the the provisions regarding the additions to issued by CBP; namely, the buyer in the applicable additions to the price be made to the price actually paid or country of importation (i.e., the U.S.) actually paid or payable, in this case, payable under the Valuation Agreement begins the series of sales by agreeing to the proceeds of the subsequent resale. and the U.S. value law are substantively purchase certain items (in this case, identical. Similar to the circumstances pens) according to its specifications Solicitation of Comments considered in the CAFC’s analysis and from a foreign distributor. The foreign CBP will consider written comments holding in Luigi Bormioli, CBP has distributor then orders these items from reassessed its current position regarding timely submitted in accordance with the an unrelated manufacturer according to instructions set forth in the ADDRESSES the determination of transaction value the buyer’s specifications and the in light of a decision issued by a section of this document in its review of merchandise is shipped directly from the proposed interpretation of the term Committee established under Article 18 the manufacturer to the buyer in the of the Valuation Agreement and is ‘‘sold for exportation to the United U.S. The example also presents an issue States’’ for purposes of applying the proposing to adopt that Committee’s that often arises in first-sale rulings; conclusions. Most important, transaction value method of valuation in namely, whether one or more additions a series of sales importation scenario. Commentary 22.1 clarifies the series of to the price actually paid or payable sales issue and provides a uniform Before making this proposed apply. In the example, the buyer in the interpretation final, consideration will method for determining transaction country of importation is required to value in a series of sales in a manner be given to any written comments pay certain proceeds of a subsequent timely received on this matter. that CBP believes is consistent with the resale to the distributor. The issue is text and legislative history of the U.S. whether these proceeds accrue, directly Dated: January 17, 2008. value law. or indirectly, to the seller as provided in W. Ralph Basham, Commissioner, U.S. Customs and Border Conclusions 19 U.S.C. 1401a(b)(1)(E). Based on the facts presented in Protection. I. Proposal for Adoption of Commentary 22.1 and the various Attachment—Meaning of the Commentary 22.1 assumptions made (e.g., all the relevant Expression ‘‘Sold for Export to the For the reasons discussed in this documentation pertaining to both sales Country of Importation’’ in a Series of document, CBP proposes to change its can be produced), the pens in the Sales current position with regard to the example would currently qualify for determination of transaction value in a appraisement based on the first sale 1. Introduction series of sales context and to adopt the between the distributor and the 1. A series of sales consists of two or conclusions in Commentary 22.1. manufacturer if they were imported into more successive contracts for sales of

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goods. A basic issue in a series of sales • The pens will be shipped directly determine transaction value under is which sale should be used to from the manufacturer to A; Article 1 when the import transaction determine the transaction value under • Title will pass from B to A when involves only one sale. In that situation, Articles 1 and 8 of the Agreement. the pens are boarded on the ship in there is only one buyer, usually located Advisory Opinion 14.1—Meaning of the country X; in the country of importation, and one expression ‘‘sold for export to the • Payment is due within 30 days of seller, usually located in another country of importation’’—does not shipment; country. clarify the meaning of this phrase as • A agrees to pay B 20% of the resale 11. Article 1 does not refer to import applied to a series of sales situation. The price for each pen A sells prior to transactions involving a series of sales purpose of this document is to clarify October 1, 2004. and consequently does not provide this issue. 6. On July 12, 2004, B contracts with criteria in that respect. Therefore, 2. As provided in the General manufacturer C for the purchase/sale of guidance must be sought from the Introductory Commentary of the certain pens. Pursuant to the B–C sales purpose and the overall text of the Agreement, the primary basis for contract: Agreement, including an examination of Customs value is transaction value. • B agrees to purchase 1,000 pens its provisions. In addition, certain Transaction value is defined in Article from C for 8,000 c.u.; practical considerations are relevant. 1 as ‘‘the price actually paid or payable • C will provide B with 400 pens of 12. As set forth below, there are for the goods when sold for export to the style xx and 600 pens of style yy; various indications in the General country of importation adjusted in • Each pen will display A’s name and Introductory Commentary, Article 1 and accordance with the provisions of address; other provisions of the Agreement that Article 8’’. Price actually paid or • C will ship the pens directly to A; it was envisaged that Article 1 would payable is defined in the Note to Article • Title passes from C to B when the normally be based on sales to buyers in 1 as ‘‘the total payment made or to be pens leave C’s factory; the country of importation. made by the buyer to or for the benefit • Payment is due within 30 days of 13. There is explicit language in of the seller for the imported goods’’. shipment. Article 1 that reflects the intended scope 3. In a series of sales, it is necessary 7. On August 10, 2004, C ships the of Article 1. Pursuant to Article 1.1(a)(i), to establish which of the sales should be pens to A. On August 20, the pens arrive the Customs value of imported goods taken into account in order to identify in country I and A files a Customs entry. shall be the transaction value provided the price actually paid or payable for the On September 1, A pays B 10,000 c.u. that there are no restrictions as to the goods when sold for export to the On September 5, B pays C 8,000 c.u. disposition or use of the goods by the country of importation. Any series of Prior to October 1, A sells 400 pens at buyer other than restrictions which are sales will include a last sale occurring 15 c.u. each. On October 5, A pays B imposed or required by law or by the in the commercial chain prior to the 1,200 c.u. (20% of A’s resale price for public authorities in the country of introduction of the goods into the pens sold prior to October 1). importation. The emphasized text is a country of importation (the last sale) 8. In this example, the last sale is the good indication that the underlying and a first (or earlier) sale in the assumption of Article 1.1(a)(i) was that 1 one between A and B and the first sale commercial chain. In the example is the one between B and C. the buyer of the goods sold for export below, there are two successive to the country of importation would contracts for sales of the imported 3. Questions normally be located in the country of goods, one between importer A and 9. Assuming transaction value is the importation.2 distributor B (the last sale) and another appropriate basis for determining the 14. The intended scope of Article 1 is between distributor B and manufacturer Customs value of the imported pens, also reflected in the provisions C (the first sale). and that A is able to produce all the regarding the adjustments to the price 2. Example Illustrating a Series of Sales documentation pertaining to both the actually paid or payable. The General Situation A–B and B–C sales (contracts, purchase Introductory Commentary makes it clear orders, invoices, payment records): that the proper determination of 4. A is a retail store located in the (1) Is the price actually paid or transaction value depends on the country of importation I, B is a pen payable for the imported goods when application of Article 1 in conjunction distributor located in country Z, and C sold for export to country I 10,000 c.u. with Article 8. Paragraph 1 of the is a pen manufacturer located in country (the price A pays B in the last sale) or General Introductory Commentary X. There is no relationship between A, 8,000 c.u. (the price B pays C in the first provides that ‘‘the primary basis for B, or C within the meaning of Article sale)? Customs value under the Agreement is 15.4. ‘transaction value’ as defined in Article 5. On July 10, 2004, retailer A (2) Should the 1,200 c.u. payment from A to B be added to the price 1’’. It further states that ‘‘Article 1 is to contracts with distributor B for the be read together with Article 8, which purchase/sale of certain pens. Pursuant actually paid or payable as ‘‘proceeds of a subsequent resale of the imported provides, inter alia, for adjustments to to the A–B sales contract: the price actually paid or payable in • A agrees to purchase 1,000 pens goods that accrues directly or indirectly to the seller’’ pursuant to Article 8.1(d)? cases where certain specific elements from B for 10,000 currency units (c.u.); which are considered to form a part of • B will provide A with 400 pens of 4. Analysis the value for Customs purposes are style xx and 600 pens of style yy; • Each pen will display A’s name and Guidance Derived From the Provisions incurred by the buyer but are not address; of the Agreement included in the price actually paid or • payable for the imported goods. B can obtain the pens from any pen 10. The Agreement does not define or manufacturer in country X; 15. Article 8 also provides for the otherwise directly address the meaning inclusion in the transaction value of of the expression ‘‘sold for export to the 1 In a series of sales, it is common to refer to the certain considerations which may pass various sales as the last sale and the first (or earlier) country of importation.’’ However, it is sale whether or not these terms are consistent with easy to identify the sale for export to the 2 This assumption would not apply if there was the chronological order of the sales contracts. country of importation that is used to no buyer in the country of importation.

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from the buyer to the seller in the form seller and the proceeds paid to B would country of importation than information of specified goods or services rather fall squarely within the provisions of about the first sale. than in the form of money.’’ 3 If the Article 8.1(d). Under the latter 23. As provided in paragraph 2 of the specified amounts are not already interpretation, the transaction value Note to Article 7, the methods of included in the price actually paid or takes into account the substance of the valuation to be employed under Article payable, Article 8 requires their entire commercial transaction. In 7 should be those laid down in Articles addition. In others words, the contrast, application of the first sale 1 through 6 but with a reasonable transaction value method is intended to results in a transaction value that does flexibility. However, Article 7 indicates take account of the substance of the not fully reflect the substance of the that this flexibility does not extend to entire commercial import transaction entire transaction. allow the use of certain prices, preceding import of the goods, 20. In sum, a transaction value based including ‘‘the price of goods on the including the economic inputs and on the first sale may not fully reflect the domestic market of the country of related transactions which arise substance of the inputs resulting from, exportation’’ (see Article 7.2). This gives therefrom. or forming part of the entire commercial a clear indication of the intended scope 16. Therefore, as mandated by the chain as envisioned by the General of Article 1, namely that a sale that is General Introductory Commentary, it is Introductory Commentary, and Articles prohibited under a flexible application essential to apply transaction value in a 1 and 8. In contrast, a transaction value of Article 1 cannot possibly be series of sales situation in a manner that based on the last sale will more fully considered as valid under the normal takes into account the substance of the reflect the substance of the entire application of Article 1. In a series of entire commercial import transaction transaction as envisioned. sales situation, the first sale often and permits the proper application of 21. Certain provisions of the involves a sale between a producer and Article 8. Agreement use the terms ‘‘buyer’’ and a local distributor in the same country. 17. In many cases, it would not be ‘‘importer’’ interchangeably. For Clearly, these sales cannot be used to possible to make the Article 8 example, while Article 8.1(a)(i) determine the Customs value under adjustments if transaction value was Article 7. It follows that such sales stipulates that buying commissions determined based on the first sale. For should also not be used to determine the incurred by the buyer are not to be example, under Article 8.1(a) and (c), value under Article 1. added to the price actually paid or selling commissions or royalties and 24. There are also other indications in payable, the Note to that Article defines licence fees, are only to be included in the Agreement that it was not envisaged the term ‘‘buying commissions’’ as ‘‘fees the Customs value where they are that the determination of transaction paid by an importer to the importer’s incurred or paid by the buyer. Similarly, value would diverge, depending on agent for the service of representing the under Article 8.1(b), the buyer must whether the import transaction involved importer abroad in the purchase of the supply the assist. In a series of sales, a a single sale or a series of sales. For goods being valued.’’ Also, while Article buyer who is located in the country of example, in the General Introductory 8.1(b) stipulates that the value of certain importation would rarely be the buyer Commentary, the Members recognize elements supplied by the buyer is to be in the first sale. the need for a uniform system of 18. Moreover, in a series of sales, the added to the price actually paid or valuation. In a series of sales, buyer in the first sale is not necessarily payable, paragraph 2 of the Note to determining transaction value based on the party who pays the royalties or Paragraph 1(b)(ii) of Article 8 explains the last sale addresses this need for provides the assists. Therefore, the the value of the element in relation to uniformity. In a single sale situation, the application of the first sale may the importer. Furthermore, paragraph 4 price actually paid or payable will preclude the addition of certain selling of that Note provides an illustrative case normally be represented by the price commissions, royalties and assists that where an importer is the buyer who paid by the buyer in the country of otherwise would be included in the supplies the producer with a mould to importation. If, in a series of sales transaction value. Similarly, under be used in the production of the situation, transaction value is based on Article 8.1(d), only proceeds that accrue imported goods. the last sale, the result will generally be directly or indirectly to the seller may 22. The Note to Article 6 states that the same; namely, a transaction value be added to the price actually paid or ‘‘as a general rule, Customs value is based on the price paid by the buyer in payable. Proceeds paid by the buyer in determined under this Agreement on the country of importation. On the other the country of importation would not the basis of information readily hand, if transaction value is based on necessarily revert to the seller in the available in the country of importation’’. the first sale, then the price actually first sale. This concept is also reflected in Article paid or payable will generally be 19. The example is illustrative. If the 7: ‘‘If the Customs value of the imported represented by the price paid by a buyer transaction value is determined on the goods cannot be determined under the outside the country of importation and basis of the first sale between B and C, provisions of Articles 1 to 6, inclusive, the result is a different transaction C is considered the seller of the the Customs value shall be determined value. imported goods and the proceeds of the using reasonable means consistent with 25. It should also be noted that the subsequent resale from A to B would the principles and general provisions of Agreement allows Members to apply not be proceeds that accrue directly to this Agreement * * * and on the basis different treatments in certain cases. In the seller. In the absence of evidence of data available in the country of this regard, Article 8.2 specifies that in that the proceeds accrued indirectly to importation.’’ With respect to the framing its legislation, each Member the seller, such proceeds could not be determination of transaction value shall provide for the inclusion in or the added pursuant to Article 8.1(d). under Article 1, it is the last sale, rather exclusion from the Customs value of However, if the transaction value is than the first sale, that will normally certain transportation costs. Article 9 determined on the basis of the last sale satisfy this general rule. As noted, the specifies that the currency conversion between A and B, B is considered the last sale normally involves a buyer rate to be used shall be that in effect at located in the country of importation the time of exportation or the time of 3 These goods or services are often referred to as and information about this sale will importation, as provided by each assists. usually be more readily available in the Member. Since Article 1 provides no

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such choice, the logical conclusion is DEPARTMENT OF THE INTERIOR ACTION: Notice of public meeting. that the authors envisaged that the resulting transaction value would be the Bureau of Land Management SUMMARY: In accordance with the same whether the importation involves [ES–956–07–1910–4482; Group No. 29, Federal Land Policy and Management a single sale or a series of sales (i.e., Illinois] Act (FLPMA), the Federal Advisory transaction value would normally be Committee Act of 1972 (FACA), and the determined based on the price paid by Eastern States: Filing of Plat of Survey Federal Lands Recreation Enhancement the buyer in the country of importation). AGENCY: Bureau of Land Management, Act of 2004 (FLREA), the U.S. Otherwise, they would have either Interior. Department of the Interior, Bureau of specified how transaction value should ACTION: Notice of filing of plat of survey; Land Management (BLM) Twin Falls be determined in a series of sales District Resource Advisory Council situation or provided an explicit choice Minnesota. (RAC) will meet as indicated below. to Members. SUMMARY: The Bureau of Land DATES: February 21, 2008. The meeting Practical Consideration Management (BLM) will file the plat of survey of the lands described below in will start at 8:30 a.m. and end no later 26. In practice, the Customs the BLM-Eastern States, Springfield, than 4 p.m. The public comment period administration may face difficulties in Virginia, 30 calendar days from the date will be from 9:30 a.m. to 10 a.m. The verifying information, including of publication in the Federal Register. meeting will be held at the Red Lion accounting records, related to the first FOR FURTHER INFORMATION CONTACT: Canyon Springs Hotel, 1357 Blue Lakes sale when such information is held by Boulevard, Twin Falls, Idaho, 83301. the foreign intermediary or seller. This Bureau of Land Management, 7450 could include, for example, information Boston Boulevard, Springfield, Virginia FOR FURTHER INFORMATION CONTACT: and accounting records pertaining to the 22153. Attn: Cadastral Survey. Heather Tiel-Nelson, Twin Falls total payment made by the foreign SUPPLEMENTARY INFORMATION: This District, Idaho, 2536 Kimberly Road, intermediary to the seller and the survey was requested by the U.S. Army Twin Falls, Idaho 83301, (208) 736– Article 8 adjustments. Such difficulties Corps of Engineers. 2352. are alleviated when the last sale is The lands we surveyed are: applied. Third Principal Meridian, Illinois SUPPLEMENTARY INFORMATION: The 15- member RAC advises the Secretary of 5. Conclusion T. 3 N., R. 10 W. The plat of survey represents the corrective the Interior, through the Bureau of Land 27. The Technical Committee is of the survey of a portion of the Lock and Dam No. Management, on a variety of planning view that the underlying assumption of 27 Acquisition Boundary in Township 3 and management issues associated with Article 1 is that normally the buyer North, Range 10 West of the Third Principal public land management in Idaho. The would be located in the country of Meridian, The State of Illinois, and was agenda will include the following importation and that the price actually accepted December 27, 2007. This corrective topics: welcome to new members, Field paid or payable would be based on the survey placed Angle Points Nos. 70 and 71 in their correct positions. Office updates, energy projects price paid by this buyer. The Technical discussion, Twin Falls District fire Committee concludes that in a series of We will place a copy of the plat we described in the open files. It will be rehabilitation efforts and planning for sales situation, the price actually paid or available to the public as a matter of upcoming tours for the RAC. Additional payable for the imported goods when information. topics may be added and will be sold for export to the country of If BLM receives a protest against this included in local media importation is the price paid in the last survey, as shown on the plat, prior to announcements. More information is sale occurring prior to the introduction the date of the official filing, we will of the goods into the country of available at www.blm.gov/id/st/en/res/ stay the filing pending our _ importation, instead of the first (or resource advisory.3.html. consideration of the protest. earlier) sale. This is consistent with the All meetings are open to the public. We will not officially file the plat purpose and overall text of the The public may present written until the day after we have accepted or Agreement. comments to the RAC in advance of or dismissed all protests and they have 28. In the example, consistent with become final, including decisions on at the meeting. Each formal RAC the conclusion, the sale between A and appeals. meeting will also have time allocated for B represents such a sale. Therefore, the receiving public comments. Depending price actually paid or payable for the Dated: January 16, 2008. on the number of persons wishing to imported goods when sold for export to Joseph W. Beaudin, comment and time available, the time country I is 10,000 c.u. (the price A pays Acting Chief Cadastral Surveyor. for individual oral comments may be B in the last sale). [FR Doc. E8–1176 Filed 1–23–08; 8:45 am] limited. Individuals who plan to attend 29. Accordingly, the 1,200 c.u. BILLING CODE 4310–GJ–P and need special assistance, such as payment from A to B represents sign language interpretation or other proceeds of a subsequent resale of the reasonable accommodations, should imported goods that accrues directly or DEPARTMENT OF THE INTERIOR contact the BLM as provided above. indirectly to the seller under Article 8.1(d) that must be added to the price Bureau of Land Management Dated: January 15, 2008. actually paid or payable in determining [ID–200–1120–DD–241A] Bill Baker, transaction value. District Manager. Com. 22.1 Notice of Public Meeting, Twin Falls [FR Doc. E8–1134 Filed 1–23–08; 8:45 am] Amending Supplement No. 6—July District Resource Advisory Council BILLING CODE 4310–GG–P 2007 Meeting, Idaho [FR Doc. E8–1140 Filed 1–23–08; 8:45 am] AGENCY: Bureau of Land Management, BILLING CODE 9111–14–P Interior.

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DEPARTMENT OF THE INTERIOR ACTION: Notice of Realty Action and Section 1: Lots 1, 2, 3, 4, S1⁄2NE1⁄4, Proposed Plan Amendment. SW1⁄4NW1⁄4, S1⁄2. Bureau of Land Management Section 2: Lots 1 & 2, S1⁄2NE1⁄4, NE1⁄4SE1⁄4, SUMMARY: Thirty-four parcels of public NE1⁄4SE1⁄4, and that portion (approx. 25 [CO–922–08–1310–FI; COC65947] land in Ada, Adams, Canyon, Gem, acres) of the NW1⁄4SE1⁄4 remaining in Payette, Valley, and Washington federal ownership. Notice of Proposed Reinstatement of Section 12: N1⁄2NE1⁄4, SW1⁄4NE1⁄4, that Counties, Idaho are being proposed for 1 Terminated Oil and Gas Lease portion of the NW ⁄4 lying north and east direct and competitive sale under the of the Northeasterly right-of-way provisions of the Federal Land Policy AGENCY: Bureau of Land Management, boundary of State Highway 52. Management Act of 1976 (FLPMA), and Interior. Aggregating approximately 948.04 acres, the Federal Lands Transaction and more or less. ACTION: Notice of Proposed Facilitation Act of 2000 (FLTFA) at no Appraised value $1,422,000. Reinstatement of Terminated Oil and less than the appraised fair market Parcel 2. These lands will be offered for Gas Lease value. Three parcels may be disposed of direct sale to Canyon County to be used as under the authority of the Recreation a buffer zone around the Pickles Butte SUMMARY: Under the provisions of 30 Sanitary Landfill, for expansion of an U.S.C. 188(d) and (e), and 43 CFR and Public Purposes Act of 1926, as amended (R&PP). Five of these parcels existing shooting range, and for additional 3108.2–3(a) and (b)(1), the Bureau of dispersed and OHV recreation. Land Management (BLM) received a require amendment of the Cascade Resource Management Plan (RMP) prior T. 2 N., R. 3 W., Boise Meridian, Canyon petition for reinstatement of oil and gas County, Idaho to sale. 1 1 lease COC65947 from Laramie Energy, Section 20: S ⁄2S ⁄2; LLC for lands in Garfield County, DATES: Comments on the proposed sales Section 21: NW1⁄4NE1⁄4, NE1⁄4NW1⁄4; Colorado. The petition was filed on time must be received by March 10, 2008. E1⁄2SW1⁄4NE1⁄4, E1⁄2W1⁄2SE1⁄4; 1 1 1 1 1 and was accompanied by all the rentals Protests on the proposed RMP Section 28: N ⁄2, N ⁄2SE ⁄4, SE ⁄4SE ⁄4; Section 29: N1⁄2NE1⁄4; due since the date the lease terminated amendment must be received or under the law. postmarked by February 25, 2008. Aggregating approximately 820.00 acres, more or less. ADDRESSES: Comments regarding the FOR FURTHER INFORMATION CONTACT: Appraised value $4,100,000. Bureau of Land Management, Milada proposed sales, as well as sealed bids, Parcel 3. This isolated parcel near the City Krasilinec, Land Law Examiner, Branch should be addressed to Rosemary of Star will be offered to the City of Star via of Fluid Minerals Adjudication, at Thomas, Four Rivers Field Manager, direct sale or other authority. 303.239.3767. Bureau of Land Management, Boise T. 5 N., R. 1 W., Boise Meridian, Ada County, District Office, 3948 Development Idaho SUPPLEMENTARY INFORMATION: The lessee Avenue, Boise, Idaho 83705, the Section 31: N1⁄2SE1⁄4; has agreed to the amended lease terms location where the public auction will Containing 80.00 acres, more or less for rentals and royalties at rates of be held. Appraised value $2,360,000. $10.00 per acre or fraction thereof, per Protests to the proposed RMP Parcel 4. This isolated parcel near the City year and 162⁄3 percent, respectively. The amendment must be sent to the Director of Cascade will be offered for competitive lessee has paid the required $500 (760), Chief, Planning and sale. administrative fee and $163 to Environmental Coordination, Bureau of T. 14 N., R. 3 E., Boise Meridian, Valley reimburse the Department for the cost of Land Management, 1849 C Street, NW., County, Idaho this Federal Register notice. The lessee Washington, DC 20240. Section 25: Lot 13; has met all the requirements for FOR FURTHER INFORMATION CONTACT: Containing 8.76 acres, more or less. reinstatement of the lease as set out in Information regarding the competitive Appraised value $1,095,000. Parcel 5. This isolated parcel near existing Section 31(d) and (e) of the Mineral sale procedures, including the Lands Leasing Act of 1920 (30 U.S.C. developments in Canyon County will be environmental assessment, appraisals, offered to the City of Caldwell via direct sale 188), and the Bureau of Land and maps can be obtained at the public Management is proposing to reinstate or other authority. reception desk at the BLM Boise District T. 3 N., R. 3 W., Boise Meridian, Canyon lease COC65947 effective June 1, 2007, Office, from 8 a.m. to 4:30 p.m., Monday under the original terms and conditions County, Idaho through Friday (except Federal Section 15: Lots 2 and 3; of the lease and the increased rental and holidays), or by contacting Effie royalty rates cited above. Containing 29.57 acres, more or less. Schultsmeier, Four Rivers Realty Appraised value $1,242,000. Dated: January 16, 2008. Specialist, at the above address or Parcel 6. These lands will be offered for Milada Krasilinec, phone (208) 384–3357. direct sale to Adams County for landfill purposes. Land Law Examiner. SUPPLEMENTARY INFORMATION: The [FR Doc. E8–1160 Filed 1–23–08; 8:45 am] following described public lands have T. 15 N., R. 1 W., Boise Meridian, Adams County, Idaho BILLING CODE 4310–JB–P been examined and found suitable for Section 17: NW1⁄4NE1⁄4; transfer out of Federal ownership by Section 18: NW1⁄4SE1⁄4; sale utilizing direct and competitive sale DEPARTMENT OF THE INTERIOR Aggregating 80.00 acres, more or less procedures under the authority of Appraised value $102,000. Section 203 and Section 209 of FLPMA Bureau of Land Management The following 28 parcels will be sold (90 Stat. 2750, 43 U.S.C. 1713 and through open, competitive bidding. 1719), and/or the R&PP Act (43 U.S.C. Parcel 7. [ID–110–1430–EU 241A; DBG–08–1005] 869, et seq.). T. 8 N., R. 2 W., Boise Meridian, Payette Notice of Realty Action; Direct and Parcel 1. These lands encompass the County, Idaho 1 1 Competitive Sales of Public Land, existing Clay Peak Motorcycle Park and will Section 18: Lots 5, 6, E ⁄2SW ⁄4; Idaho and Proposed Plan Amendment be offered to Payette County via direct sale Containing 158.64 acres, more or less. or other authority. Appraised value $15,864. AGENCY: Bureau of Land Management, T. 8 N., R. 5 W., Boise Meridian, Payette Parcel 8. Interior. County, Idaho T.8 N., R. 2 W., Boise Meridian, Payette

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County, Idaho Appraised value $8,373. Section 18: Lot 2; Section 19: NE1⁄4, E1⁄2NW1⁄4, NE1⁄4SW1⁄4, Parcel 20. Containing 21.98 acres, more or less. N1⁄2SE1⁄4; T.1 N., R. 3 W., Boise Meridian, Canyon Appraised value $2,200. Containing 360.00 acres, more or less. County, Idaho Parcel 33. Appraised value $36,000. Section 26: SE1⁄4NE1⁄4; T. 7 N., R. 2 W., Boise Meridian, Gem Parcel 9. Containing 40.00 acres, more or less. County, Idaho T.8 N., R. 2 W., Boise Meridian, Payette Appraised value $19,280. Section 8 : NE1⁄4NW1⁄4; County, Idaho Parcel 21. Containing 40.00 acres, more or less. 1 Section 20: NW ⁄4; T.1 N., R. 3 W., Boise Meridian, Canyon Appraised value $4,000. Containing 160.00 acres, more or less. County, Idaho Parcel 34. 1 1 Appraised value $16,000. Section 25: SW ⁄4NW ⁄4; T. 7 N., R. 2 W., Boise Meridian, Gem Parcel 10. Containing 40.00 acres, more or less. County, Idaho T.8 N., R. 3 W., Boise Meridian, Payette Appraised value $19,280. Section 17: NE1⁄4NE1⁄4; County, Idaho Parcel 22. Removed from sale. Containing 40.00 acres, more or less. 1 1 1 1 Section 23: W ⁄2NE ⁄4, SE ⁄4NE ⁄4; Parcel 23. Appraised value $4,000. Containing 120.00 acres, more or less. T.8 N., R. 3 W., Boise Meridian, Payette Parcel 35. Appraised value $12,000. County, Idaho 1 1 T. 7 N., R. 3 W., Boise Meridian, Payette Parcel 11. Section 33: S ⁄2S ⁄2; County, Idaho T.8 N., R. 3 W., Boise Meridian, Payette Containing 160.00 acres, more or less. Section 5: Lot 1, SE1⁄4NE1⁄4; County, Idaho Appraised value $16,000. Containing 80.08 acres, more or less. Section 24: NE1⁄4NW1⁄4, S1⁄2NW1⁄4, Parcel 24. Appraised value $8,080. NE1⁄4SW1⁄4; T.8 N., R. 2 W., Boise Meridian, Payette Containing 160.00 acres, more or less. County, Idaho If tracts offered for direct sale are not Appraised value $16,000. Section 31: S1⁄2SE1⁄4; purchased by the identified party(s), the Parcel 12. Containing 80.00 acres, more or less. subject tracts may subsequently be T.10 N., R. 3 W., Boise Meridian, Washington Appraised value $8,000. offered for open competitive sale. County, Idaho Parcel 25. The 1988 Cascade RMP identified Section 26: NW1⁄4NW1⁄4; T.8 N., R. 2 W., Boise Meridian, Payette parcels 6 through 35 as suitable for Containing 40.00 acres, more or less. County, Idaho disposal subject to a site-specific Appraised value $4,000. Section 32: SW1⁄4NE1⁄4, N1⁄2SW1⁄4; analysis. An RMP amendment is Parcel 13. Containing 120.00 acres, more or less. required to allow the sale of parcels 1 T.10 N., R. 3 W., Boise Meridian, Washington Appraised value $12,000. through 5. BLM has prepared an County, Idaho Parcel 26. Environmental Assessment (EA) for Section 27: SW1⁄4SE1⁄4; T. 7 N., R. 3 W., Boise Meridian, Gem these proposed sales, including the plan Containing 40.00 acres, more or less. County, Idaho amendment, pursuant to the National Appraised value $4,000. Section 4: Lots 1, 2, 3, 4, S1⁄2N1⁄2, E1⁄2SE1⁄4; Environmental Policy Act. BLM will be Parcel 14. Containing 398.90 acres, more or less. accepting public comments on the T.11 N., R. 2 W., Boise Meridian, Washington Appraised value $45,475. proposed sale until March 10, 2008. County, Idaho Parcel 27. As of January 24, 2008, the above 1 1 Section 1: Lot 1, SE ⁄4NE ⁄4; T. 7 N., R. 3 W., Boise Meridian, Gem described land is segregated from Containing 80.18 acres, more or less. County, Idaho appropriation under the public land 1 1 Appraised value $8,018. Section 2: SW ⁄4NE ⁄4; laws, including the mining laws, except Parcel 15. Containing 40.00 acres, more or less. for the Recreation and Public Purposes T.14 N., R. 2 W., Boise Meridian, Adams Appraised value $4,000. Act and the sale provisions of the County, Idaho Parcel 28. FLPMA. The segregative effect will Section 1: SE1⁄4SW1⁄4; T.15 N., R. 2 W., Boise Meridian, Washington terminate upon issuance of a patent, Containing 40.00 acres, more or less. County, Idaho publication in the Federal Register of a Appraised value $4,560. Section 35: NW1⁄4SE1⁄4; termination of the segregation, or Parcel 16. Containing 40.00 acres, more or less. T.15 N., R. 1 W., Boise Meridian, Adams Appraised value $4,000. January 25, 2010, whichever first County, Idaho Parcel 29. occurs, unless extended by the BLM Section 3: Lot 4; T.11 N., R. 1 E., Boise Meridian, Gem County, State Director in accordance with 43 Containing 39.11 acres, more or less. Idaho CFR 2711.1–2(d) prior to the Appraised value $41,000. Section 24: SW1⁄4NW1⁄4; termination date. Parcel 17. Containing 40.00 acres, more or less. If tracts offered for direct sale are not T.15 N., R. 1 W., Boise Meridian, Adams Appraised value $4,000. purchased by the identified party(s), the County, Idaho Parcel 30. subject tracts may subsequently be Section 9: S1⁄2NW1⁄4; T.11 N., R. 2 E., Boise Meridian, Gem County, offered for open competitive sale. Containing 80.00 acres, more or less. Idaho Whether sold through direct or Appraised value $160,000. Section 19: Lot 7; competitive sale, each of the above Parcel 18. Containing 40.23 acres, more or less. parcels will be transferred subject to the T.15 N., R. 2 W., Boise Meridian, Adams Appraised value $4,586. following terms, conditions, and County, Idaho Parcel 31. reservations: Section 13: N1⁄2N1⁄2; T. 9 N., R. 2 E., Boise Meridian, Boise 1. A reservation to the United States Containing 160.00 acres, more or less. County, Idaho of a right-of-way for ditches and canals Appraised value $70,400. Section 19: Lot 3; constructed by the authority of the Parcel 19. Containing 22.25 acres, more or less. United States under the Act of August T.17 N., R. 1 W., Boise Meridian, Adams Appraised value $2,225. 30, 1890 (43 U.S.C. 945); County, Idaho Parcel 32. 2. Pursuant to the requirements Section 5: Lot 4, SW1⁄4NW1⁄4; T. 9 N., R. 2 E., Boise Meridian, Boise established by section 120(h) of the Containing 73.45 acres, more or less. County, Idaho Comprehensive Environmental

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Response, Compensation, and Liability Parcel 1—IDBL–047699 FEDERAL AID Parcel 2—IDI–35131 ROAD RIGHT-OF- Act [42 U.S.C. 9620(h)] (CERCLA), as HIGHWAY (SEC 17) Idaho Dept. of WAY Ralph Sevy, Act of October 21, amended by the Superfund Transportation, Act of November 9, 1976 (43 U.S.C. 1761) Amendments and Reauthorization Act 1921 (42 Stat. 216) Parcel 3—IDI–20849 ROAD RIGHT-OF- of 1988 (100 Stat. 1670), notice is hereby Parcel 1—IDI–26915 FEDERAL AID WAY Robert Morrison, Act of October given that the above-described lands HIGHWAY (SEC 317) Idaho Dept. of 21, 1976 (43 U.S.C. 1761) have been examined and no evidence Transportation, Act of August 27, Parcel 3—IDI–30448 WATER FACILITY was found to indicate that any 1958 (23 U.S.C.317(A)) RIGHT-OF-WAY Star Sewer & Water, hazardous substances had been stored Parcel 16—IDI–4973 FEDERAL AID Act of October 21, 1976 (43 U.S.C. for one year or more, nor had any HIGHWAY (SEC 317) Idaho Dept. of 1761) hazardous substances been disposed of Transportation, Act of August 27, Parcel 4—IDI–35649 TRAIL RIGHT-OF- or released on the subject property. 1958 (23 U.S.C. 317(A)) WAY Southern Valley County 3. All purchasers/patentees, by The following parcels would be Recreation District, Act of October 21, accepting a patent, covenant and agree transferred subject to specific valid 1976 (43 U.S.C. 1761) to indemnify, defend, and hold the existing rights, as described below. Parcel 6—IDI–22584 TEL & United States harmless from any costs, Parcel 1—IDBL–056202 TELEGRAPH RIGHT-OF-WAY damages, claims, causes of action, TRANSMISSION LINE RIGHT-OF- Council Telephone Co., Act of penalties, fines, liabilities, and WAY Idaho Power Co., Act of March October 21, 1976 (43 U.S.C. 1761) Parcel 6—IDI–33309 ROAD RIGHT-OF- judgments of any kind or nature arising 4, 1911, as amended (43 U.S.C. 961) from the past, present, and future acts Parcel 1—IDI–13054 TRANSMISSION WAY Adams County, Act of October or omissions of the patentees or their LINE RIGHT-OF-WAY Idaho Power 21, 1976 (43 U.S.C. 1761) Parcel 6—IDI–33794 TRANSMISSION employees, agents, contractors, lessees, Co., Act of October 21, 1976 (43 LINE RIGHT-OF-WAY Idaho Power or any third party, arising out of or in U.S.C. 1761) connection with the patentee’s use, Parcel 1—IDI–20018 TRANSMISSION Co., Act of October 21, 1976 (43 occupancy, or operations on the LINE RIGHT-OF-WAY Idaho Power U.S.C. 1761) Parcel 6—IDI–34097 TRANSMISSION patented real property. This Co., Act of October 21, 1976 (43 LINE AND ROAD RIGHT-OF-WAY indemnification and hold harmless U.S.C. 1761) agreement includes, but is not limited Parcel 1—IDI–22927 ROAD RIGHT-OF- Idaho Power Co., Act of October 21, to, acts and omissions of the patentees WAY Payette County, Act of October 1976 (43 U.S.C. 1761) Parcel 6—IDI–34111 TEL & and their employees, agents, 21, 1976 (43 U.S.C. 1761) contractors, or lessees, or any third Parcel 1—IDI–30003 TEL & TELEGRAPH RIGHT-OF-WAY party, arising out of or in connection TELEGRAPH RIGHT-OF-WAY Qwest, Cambridge Telephone, Act of October with the use and/or occupancy of the Act of October 21, 1976 (43 U.S.C. 21, 1976 (43 U.S.C. 1761) Parcel 16—IDI–0733 TRANSMISSION patented real property which has 1761) already resulted or does hereafter result Parcel 1—IDI–31924 ROAD RIGHT-OF- LINE RIGHT-OF-WAY Idaho Power in: (1) Violations of Federal, state, and WAY Idaho Power Co., Act of October Co., Act of March 4, 1911, as amended local laws and regulations that are now 21, 1976 (43 U.S.C. 1761) (43 U.S.C. 961) or may in the future become applicable Parcel 1—IDI–33588 POWER LINE Parcel 16—IDI–22584 TEL & to the real property; (2) Judgments, RIGHT-OF-WAY Idaho Power Co., TELEGRAPH RIGHT-OF-WAY claims or demands of any kind assessed Various Authorities/Statutes Council Telephone Co., Act of against the United States; (3) Costs, Parcel 2—IDI–001025 IRRIGATION October 21, 1976 (43 U.S.C. 1761) expenses, or damages of any kind FACILITY RIGHT-OF-WAY Farm Parcel 16—IDI–31364 ROAD RIGHT-OF- incurred by the United States; (4) Development Corp., Act of March 3, WAY Alan Gamblin, Act of October Releases or threatened releases of solid 1891, as amended (43 U.S.C. 946–949) 21, 1976 (43 U.S.C. 1761) or hazardous waste(s), and/or hazardous Parcel 2—IDI–0005012 TRANSMISSION The following authorizations are substance(s), as defined by Federal or LINE RIGHT-OF-WAY Idaho Power revocable Land Use Permits that may or state environmental laws, off, on, into or Co., Act of October 21, 1976 (43 may not be included as valid existing under land, property and other interests U.S.C. 1761) rights on the affected patent, depending of the United States; (5) Activities by Parcel 2—IDI–0015221 TRANSMISSION on whether or not the permits have been which solid waste or hazardous LINE RIGHT-OF-WAY Idaho Power revoked prior to patent issuance. substance(s) or waste, as defined by Co., Act of March 4, 1911, as amended Parcel 2—IDI–24390 LAND USE Federal and state environmental laws (43 U.S.C. 961) PERMIT—BEE HIVES Honeygold are generated, released, stored, used or Parcel 2—IDI–0015222 TRANSMISSION Corp., Act of October 21, 1976 (43 otherwise disposed of on the patented LINE RIGHT-OF-WAY Idaho Power U.S.C. 1732) real property, and any cleanup Co., Act of March 4, 1911, as amended Parcel 2—IDI–24410 LAND USE response, remedial action or other (43 U.S.C. 961) PERMIT—BEE HIVES Hamilton actions related in any manner to said Parcel 2—IDI–20732 IRRIGATION Honey LLC, Act of October 21, 1976 solid or hazardous substance(s) or FACILITY RIGHT-OF-WAY Bing/ (43 U.S.C. 1732) waste(s); or (6) Natural resource Frost Ranch Co., Act of July 26, 1866 Parcel 2—IDI–24421 LAND USE damages as defined by Federal and state Parcel 2—IDI–20932 IRRIGATION PERMIT—AIR STRIP Valley Air law. This covenant shall be construed as FACILITY RIGHT-OF-WAY Desert Service, Act of October 21, 1976 (43 running with the parcel of land patented Sun Farms, Inc., Act of July 26, 1866 U.S.C. 1732) or otherwise conveyed by the United Parcel 2—IDI–29683 ROAD & PARKING The public lands will not be offered States, and may be enforced by the RIGHT-OF-WAY Joe DeCleur, Act of for sale until at least 60 days after the United States in a court of competent October 21, 1976 (43 U.S.C. 1761) date of publication of this notice in the jurisdiction. Parcel 2—IDI–34099 ROAD RIGHT-OF- Federal Register, and then at no less The patent to the following parcels WAY Canyon County Solid Waste than the appraised fair market value. would be issued with a reservation of a Dept., Act of October 21, 1976 (43 These lands will be offered for sale on right-of-way for a federal aid highway. U.S.C. 1761) May 6, 2008, pursuant to 43 CFR

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2711.3–1. In the event of sale, the information in your comment, be below five comments received on the unreserved mineral estate will be advised that your entire comment— proposed Final Judgment in United conveyed simultaneously with the including your personal identifying States v. Federation of Physicians and surface estate. The unreserved mineral information—may be made publicly Dentists, Case No. 1:05–cv–431, which interests have been determined to have available at any time. While you can ask were filed on December 17, 2007, in the no known mineral value pursuant to 43 us in your comment to withhold from United States District Court for the CFR 2720.2 (a). Acceptance of the sale public review your personal identifying Southern District of Ohio, together with offer will constitute an application for information, we cannot guarantee that the United States’ response to the conveyance of the unreserved mineral we will be able to do so. comments. interests. The purchaser will be required The BLM will make available for Copies of the comments and the to pay a $50.00 non-refundable filing fee public review, in their entirety, all response are available for inspection at for conveyance of the available mineral comments submitted by businesses or the Department of Justice, Antitrust interests. organizations, including comments by Division; 325 Seventh Street, NW.; individuals in their capacity as an Competitive Sale Procedures Room 200; Washington, DC 20530 official or representative of a business or (telephone (202) 514–2481); and at the The sales will be by sealed bid, organization. Office of the Clerk of the United States followed by oral auction. Sealed bids Any adverse comments on the District Court for the Southern District must be received at the BLM Boise proposed sales will be reviewed by the of Ohio, Potter Stewart U.S. Courthouse, District Office at the above address no BLM Idaho State Director, who may Room 103, 100 East Fifth Street, later than 4:30 p.m. MDT on the day sustain, vacate, or modify this realty Cincinnati, Ohio 45202 (telephone (513) before the sale. Federal law requires that action and issue a final determination. 564–7500). Copies of any of these bidders must be U.S. citizens 18 years In the absence of any objections, the materials may be obtained upon request of age or older, or in the case of a realty action will become the final and payment of a copying fee. corporation, subject to the laws of any determination of the Department of the State of the U.S. Proof of citizenship Interior. (Authority: 43 CFR 2711.1– J. Robert Kramer II, shall accompany the bid. 2(a)). Protests on the proposed plan Director of Operations, Antitrust Division. At 10 a.m. MDT on May 6, 2008, amendment must be received or In the United States District Court for sealed bids will be opened at the BLM postmarked no later than February 25, the Southern District of Ohio Western Boise District Office, and the highest 2008 and must be sent to the Director Division acceptable sealed bid will be (760), Chief, Planning and determined for each parcel. An oral Environmental Coordination, at the United States of America, Plaintiff, vs. auction will follow the determination of above address. Any protest to the plan Federation of Physicians and Dentists, the highest acceptable sealed bid at or amendment should include: (1) Name, et al., Defendants. in excess of the appraised fair market address, telephone number and interest [Case No. 1:05–cv–431] value, with the opening oral bid being of protesting party, (2) identification of for not less than the highest acceptable the issue being protested, (3) a statement Hon. Sandra S. Beckwith, C.J. sealed bid. Oral bidding will continue on the parts of the plan being protested, Hon. Timothy S. Hogan, M.J. until the highest bid is determined. If no (4) a copy of all documents addressing oral bids are received, the highest the issues that were submitted during Plaintiff United States’ Response to acceptable sealed bid will be considered the planning process, and (5) a concise Public Comments the purchaser. If neither a sealed nor an statement explaining why the State Pursuant to the requirements of the oral bid is received for a particular Director’s decision is believed to be in Antitrust Procedures and Penalties Act parcel, that parcel will remain available error. The State Director will make a (‘‘APPA’’ or ‘‘Tunney Act’’), 15 U.S.C. for over-the-counter sale at the final decision on this proposed plan 16(b)–(h), the United States submits this appraised fair market value for a period amendment following the Governor’s response to five public comments of 180 days following the sale date. consistency review and resolution of relating to the proposed Final Judgment The purchaser will have 30 days from any protests that may be received by the that has been lodged with the Court for the date of acceptance of the high bid to Director. (Authority: 43 CFR 1610.5–2) eventual entry in this case. After review submit a deposit of 20 percent of the Parcels 1 through 5, which require a of the comments, the United States purchase price and the $50.00 filing fee plan amendment, will not be sold prior continues to believe that the proposed for conveyance of mineral interests. The to the completion of the plan Final Judgment will provide an effective purchaser must remit the remainder of amendment. and appropriate remedy for the antitrust the purchase price within 180 days from Dated: January 16, 2008. violation alleged in the Complaint. the date of the sale. Payments must be John Sullivan, Following publication of the comments by certified check, postal money order, and this response to them in the Federal Acting Four Rivers Field Manager. bank draft or cashiers check payable to Register, pursuant to 15 U.S.C. 16(d), the U.S. Department of the Interior— [FR Doc. E8–1162 Filed 1–23–08; 8:45 am] the United States will request that the BLM. Failure to meet conditions BILLING CODE 4310–GG–P Court enter the proposed Final established for this sale will void the Judgment. sale, and any monies received will be forfeited to the BLM. DEPARTMENT OF JUSTICE I. Procedural History Public Comments: For a period until On June 24, 2005, the United States March 10, 2008, the public and Antitrust Division filed this civil antitrust action, alleging interested parties may submit written Public Comment and Response on that the Federation of Physicians and comments regarding the proposed sale Proposed Final Judgment Dentists (‘‘Federation’’) and Federation to the BLM Four Rivers Field Manager employee Lynda Odenkirk, along with at the above address. Before including Pursuant to the Antitrust Procedures physician co-defendants Drs. Warren your address, phone number, e-mail and Penalties Act, 15 U.S.C. 16(b)–(h), Metherd, Michael Karram, and James address, or other personal identifying the United States hereby publishes Wendel, coordinated a conspiracy

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among about 120 obstetrician- terms in their contracts with health care physicians in coordinating their gynecologist physicians (‘‘OB–GYNs’’) insurers. dealings with payers for health care practicing in greater Cincinnati, Ohio, In spring 2002, several Cincinnati services. It accordingly prohibits the that unreasonably restrained interstate OB–GYNs became interested in joining Federation defendants from being trade and commerce in violation of the Federation to negotiate higher fees involved in its private-practice Section 1 of the Sherman Act, 15 U.S.C. from health care insurers. The physician members’ negotiations or contracting 1. The physician defendants agreed to a defendants assisted the Federation in with health insurers or other payers for judgment that was filed concurrently recruiting other Cincinnati-area OB– health care services anywhere in the with the Complaint and entered by this GYNs as members. By June 2002, the United States. Court on November 14, 2005, as being membership of the Federation had The proposed Final Judgment in the public interest. (Dkt. Entry #36). grown to include a large majority of prohibits the Federation defendants The Federation and Ms. Odenkirk (the competing OB–GYN physicians in the from providing any services to any ‘‘Federation defendants’’), however, Cincinnati area. physician in private practice (defined as contested the charges. Withe substantial assistance from the an ‘‘independent physician’’) regarding On January 26, 2006, the United physician defendants and Ms. Odenkirk, such physician’s negotiation, States filed with the Court a motion the Federation coordinated and helped contracting, or other dealings with any seeking entry of partial summary implement its members’ concerted payer. The proposed Final Judgment judgment on liability against the demands to insurers for higher fees and also prohibits the Federation defendants Federation defendants. (Dkt. entry ## related terms, accompanied by threats of from (1) representing any independent 40, 47). After briefing on this motion contract terminations. From September physician with any payer (including as was completed, the Federation 2002 through the fall of 2003, Ms. a messenger); (2) reviewing or defendants filed an unopposed motion Odenkirk communicated with the analyzing, for any such physician, any requesting the Court to order that the physician defendants and other proposed or actual contract or contract case be referred to mediation. (Dkt. cincinnati-area OB–GYN Federation term between the physician and any entry # 63). On April 14, 2006, the Court members to coordinate their contract payer; and (3) communicating with any ordered that the case be referred to negotiations with health care insurers. independent physician about the status mediation. Along with the physician defendants, of that physician’s, or any other Following two mediation conferences Ms. Odenkirk developed a strategy to physician’s, negotiations, contracting, or and protracted settlement negotiations, intensify Federation member participation with any payer. The on June 19, 2007, the United States filed physicians’ pressure on health care Federation defendants are also generally with the Court a settlement stipulation insurers to renegotiate their contracts, prohibited from communicating about (Dkt. Entry # 81) with the Federation including informing member physicians any proposed or actual contract or defendants, consenting to entry of the about the status of competing member contract term between any independent proposed Final Judgment (Dkt. entry # groups’ negotiations and taking steps to physician and any payer. In addition, 81–2), which was lodged with the Court coordinate their negotiations. the proposed Final Judgment enjoins the pending the parties’ compliance with The agreement coordinated by the Federation defendants from responding the APPA. On July 18, 2007, the United Federation defendants forced to any question initiated by any payer, States published the Stipulation, Cincinnati-area health care insurers to except to state that the Final Judgment proposed Final Judgment, and raise fees paid to Federation member prohibits such a response. Finally, the Competitive Impact Statement (‘‘CIS’’) OB–GYNs above the levels that would proposed Final Judgment generally (Dkt. Entry # 84) in the Federal Register likely have resulted if Federation prohibits the Federation defendants 39450 (2007), as required by the APPA members had negotiated competitively to facilitate public comments on the with those insurers. As a result of the from training or educating, or proposed Final Judgment. A summary of conspirators’ conduct, the three largest attempting to train or educate, any the terms of the proposed Final Cincinnati-area health care insurers independent physician in any aspect of Judgment and CIS was published for each were forced to increase fees paid contracting or negotiating with any seven consecutive days in the to most Federation member 0B-GYNs by payer. Cincinnati Enquirer from July 20 approximately 15–20% starting July 1, The proposed decree includes through July 26, 2007, and in the 2003, followed by cumulative increases exceptions to these prohibitions Washington Post from July 18 through of approximately 20–25% starting covering conduct that neither threatens July 24, 2007, also pursuant to the January 1, 2004, and approximately 25– competitive harm nor undermines the APPA. The 60-day period for public 30% effective January 1, 2005. This clarity of the prohibitions. For example, comments on the proposed Final conduct by Federation member OB- the proposed decree limits its Judgment began on July 27, 2007, and GYNs, coordinated by the Federation prohibition on training or educating expired on September 24, 2007. During defendants, also caused other insurers independent physicians in any aspect of that period, five comments were to raise the fees that they paid to contracting or negotiating with payers submitted. Federation OB-GYN members. The by allowing the Federation defendants increased fees paid by health care to II. Summary of the Complainant’s insurers to Federation OB-GYN (1) Speak on general topics (including Allegations members in the Cincinnati area are contracting), when (a) invited to do so as part The Federation is a membership ultimately borne by employers and their of a regularly scheduled medical educational organization of physicians and dentists, employees. seminar offering continuing medical headquartered in Tallahassee, Florida. education credit, (b) advance written notice the Federation’s membership includes iii. Summary of Relief to be Obtained has been given to Plaintiff, and (c) documents Under the Proposed Final Judgment relating to what was said by the Federation economically independent physician defendants are retained by them for possible groups in private practice in many The proposed Final Judgment is inspection by the United States. states, including Ohio. The Federation designed to enjoin the Federation (2) Publish articles on general topics has offered member physicians defendants from taking future actions (including contracting) in a regularly assistance in negotiating fees and other that could facilitate private-practice disseminated newsletter; and

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(3) Provide education to independent that the proposed Final Judgment is not 2. United States’ Response to Comments physicians regarding the regulatory structure in the public interest. None of the Submitted by Dr. Michael Connair and (including legislative developments) of comments contend that the proposed the American Academy of Orthopaedic workers compensation, Medicaid, and Medicare, except Medicare Advantage, decree fails adequately to redress the Surgeons violations and competitive harm alleged provided that such conduct does not in the Complaint. Rather, two of the Dr. Connair’s and the Academy’s violate any other injunctive provision of comments challenge the United States’ comments contend that the proposed the proposed Final Judgment. decision to prosecute the defendants’ Final Judgment is too stringent, and In a section titled ‘‘permitted alleged anticompetitive conduct, rather another implies the same point. Two conduct,’’ the proposed decree permits than alleged anticompetitive actions by certain other conduct as well: other comments contend that this case health insurers. Such an argument is resulted from an unfair application of (1) Federation defendants may engage in outside the scope of this APPA activities involving physician participation the antitrust laws to physicians in their proceeding because the APPA does not in written fee surveys that are covered by the dealings with insurers. The remaining permit the Court to review the efficacy ‘‘safety zone’’ under Statement 6 of the 1996 comment generally criticizes what is or ‘‘correctness’’ of the United States’ Statements of Antitrust Enforcement Policy characterized as an unreasonably enforcement policy or its determination in Health Care, 4 Trade Reg. Rep. (CCH) aggressive antitrust enforcement policy to pursue—or not pursue—a particular ¶ 13,153, which addresses provider by the Department of Justice and participation in exchanges of price and cost claim in the first instance. As explained information; Federal Trade Commission with respect by the District Court for the District of (2) Federation defendants and Federation to physicians. The United States Columbia, in a Tunney Act ‘‘public members may engage in lawful union addresses these concerns below and interest’’ proceeding, the district court organizational efforts and activities; explains why the proposed Final should not second-guess the (3) Federation defendants may petition Judgment is appropriate. prosecutorial decisions of the Antitrust governmental entities in accordance with Division regarding the nature of the doctrine established in Eastern Railroad A. Comments Questioning the Charges claims brought in the first instance; Presidents Conference v. Noerr Motor Freight, Brought Against the Federation Inc., 365 U.S. 127 (1961), and its progeny; ‘‘rather, the court is to compare the and Defendants complaint filed by the United States (4) Federation physician members may 1. Summary of Comments Submitted by with the proposed consent decree and choose independently, or with other Dr. Michael Connair and the American determine whether the proposed decree members or employees of such member’s clearly and effectively addresses the bona fide solo practice or practice groups, the Academy of Orthopaedic Surgeons health insurers with which to contract, and/ anticompetitive harms initially or to refuse to enter into discussions or Dr. Michael Connair, an orthopedic identified.’’ United States v. The negotiations with any health care payer. surgeon in Connecticut and a Vice Thomson Corp, 949 F. Supp. 907, 913 President of the defendant Federation of (D.D.C. 1996); accord, United States v. The proposed Final Judgment clarifies Physicians and dentists, has submitted Microsoft Corp., 56 F.3d 1448, 1459 that it does not alter the Federation’s (D.C. Cir. 1995) (in APPA proceeding, obligations under the decree entered by a comment (attachment 1) that criticizes ‘‘district court is not empowered to the district court in Delaware in a prior, the United States’ Competitive Impact review the actions or behavior of the similar case against the Federation, Statement (‘‘CIS’’) (Dkt. Entry # 84) as Department of Justice; the court is only United States v. Federation of ‘‘reflect[ing] a misguided DOJ authorized to review the decree itself’’). Physicians and Dentists, Inc., CA 98– enforcement policy that ignores 475 JJF (D. Del., consent judgment antitrust principles and that encourages Although the comments of Dr. entered Nov. 6, 2002) (the ‘‘Delaware anticompetitive behavior by insurers.’’ Connair and the Academy are beyond decree’’). If there is any conflict between According to Dr. Connair, the CIS the scope of an APPA proceeding, the the injunctive provisions of the ignores that Cincinnati ‘‘physicians United States nevertheless observes that proposed Final Judgment and the were forced to react to anti-competitive their comments are incorrect as a matter injunctive provisions or conduct behaviors by Cincinnati insurers of fact and law. The United States permitted by the Delaware decree, the because the Department of Justice did believes that the uncontested evidence proposed Final Judgment controls. The not enforce antitrust principles against and law presented in support of its proposed Final Judgment embodies those insurers.’’ motion for summary judgment, which more stringent relief than that provided the Court was not called on to decide in Similarly, the American Academy of view of the parties’ proposed settlement, by the Delaware decree because it Orthopaedic Surgeons’ comment prohibits the Federation, for example, strongly supports the Complaint’s (Attachment 2) expresses the Academy’s from representing physicians in their allegations that the Federation belief that this case ‘‘is the result of the dealings with payers as a messenger and defendants violated the antitrust laws. reviewing and analyzing physician antitrust laws not being applied equally (Dkt. Entry ## 1, 47). Further, even if the contracts with any payer. The Delaware to the insurance industry as they are to Federation defendants believed that decree had permitted such conduct in physicians or other professions,’’ which Cincinnati insurers had colluded on limited circumstances. ‘‘would reduce competition in the payments made to OB–GYNs, as the insurance industry and, ultimately, comments imply, such circumstances IV. Summary of Public Comments and harm consumers.’’ The Academy’s would provide no defense for the the United States’ Responses to Them comment also asserts that ‘‘[i]n this Federation defendants’ coordination of During the 60-day public comment case, the physicians appeared to be Cincinnati OB–GYNs price fixing. period, the United States received reacting to anticompetitive behaviors by Controlling law is clear ‘‘[t]hat a comments from one individual and four Cincinnati insurers which artifically particular practice may be unlawful is medical societies. Upon review, the lowered prices below Medicare levels.’’ not, in itself, a sufficient justification for United States believes that nothing in collusion among competitors to prevent the comments warrants a change in the it.’’ FTC v. Indiana Fed’n of Dentists, proposed Final Judgment or suggests 476 U.S. 447, 465 (1986).

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B. Comments Arguing that the Proposed Delaware decree. The United States had required. ‘‘While the resulting Final Judgment is Overly Restrictive agreed to resolve its earlier case against [proposed Final Judgment] may curtail 1. Summary of Comments Submitted by the Federation, in part, to give the the exercise of liberties that the the Connecticut State Medical Society, Federation an opportunity to conduct [Federation defendants] might otherwise Connecticut Orthopedic Society, and some of its activities in a lawful manner enjoy, that is a necessary and, in cases Utah State Orthopaedic Society that should not have led to such as this, unavoidable consequence anticompetitive results. The Federation The Connecticut State Medical of the [recurrent] violation.’’ Nat’l Soc’y defendants’ actions in Cincinnati, as of Prof’l Eng’rs v. United States, 435 Society (CSMS) comments (Attachment alleged in the United States’ Complaint 3) that the proposed Final Judgment is U.S. 679, 697 (1978). Although the (Dkt. Entry # 1) and demonstrated in its proposed Final Judgment ‘‘goes beyond ‘‘unnecessarily restrictive and more summary judgment brief (Dkt. Entry onerous than final decrees typically a simple proscription against the precise # 47), however, have shown that such a conduct previously pursued[,] that is proposed by both the [Department of decree is insufficient to prevent the entirely appropriate’’ under the Justice] and the Federal Trade Federation defendants from engaging in circumstances. Id. at 698. Commission (FTC) under similar substantial anticompetitive conduct circumstances in that it precludes the and, therefore, that a more restrictive Conclusion Federation from engaging in lawful decree is appropriate. The Federation conduct including representing defendants’ alleged conduct in After considering the five comments physicians in their dealing with payers Cincinnati demonstrates that the received, the United States continues to as messengers and from reviewing and USOS’s expressed ‘‘hope’’ that the believe that the proposed Final analyzing physician contracts with any Federation defendants have employed Judgment reasonably and appropriately third-party payer.’’ The CSMS asks the the ‘‘messenger model’’ appropriately addresses the harm alleged in the United States to modify the proposed elsewhere has not been realized. Complaint. Therefore, following Final Judgment to allow the defendant Had the Federation defendants’ Federation to participate in (1) qualified publication of this response to complied with the Delaware decree, it risk-sharing and qualified clinically comments in the Federal Register and plainly would have prevented them integrated joint arrangements, (2) submission of the United States’ from coordinating Cincinnati OB-GYNs’ messenger-model arrangements, and (3) certification of compliance with the fee negotiations with health insurers. communications with physicians about APPA, the United States intends to insurer contracts. The Connecticut The Federation defendants nonetheless request entry of the proposed Final Orthopedic Society comments have steadfastly maintained that their Judgment once the Court determines (Attachment 4) in support of the letter conduct challenged in this matter that entry is in the public interest. complied with the Delaware decree, submitted by the CSMS. Dated: December 17, 2007. The Utah State Orthopaedic Society’s which—like the proposed Final (‘‘USOS’s’’) comment (Attachment 5) Judgment—is nationwide in scope. Respectfully submitted, Accordingly, the United States decided states that the defendant Federation has For Plaintiff United States of America served as a messenger for orthopedists in this matter to negotiate a more restrictive proposed Final Judgment in Utah with productive results. Based Gregory G. Lockhart, with the Federation defendants that on the Utah experience, the comment United States Attorney. ‘‘presume[s] that the activities in assures that the Federation will not Cincinnati have been handled in a again engage in conduct that has the /s/ Gerald F. Kaminski similar fashion by the Federation.’’ The anticompetitive effect alleged in the Gerald F. Kaminski, Assistant United States Attorney, USOS’s comment further expresses the complaint. The proposed Final Bar No. 0012532. ‘‘hope * * * [that] the ‘messenger Judgment thus provides appropriate Office of the United States Attorney, 221 E. model’ throughout the country is additional assurance that the type of 4th Street, Suite 400, Cincinnati, Ohio managed legally by those that employ conduct that occurred in Cincinnati, 45202, (513) 684–3711. it.’’ despite the Delaware decree, will not recur. /s/ Steven Kramer 2. United States’ Response to Comments In short the orthopedic groups’ Steven Kramer Submitted by the Connecticut State comments fail to recognize that the Attorney, Antitrust Division. Medical Society, Connecticut Federation defendants’ conduct in U.S. Department of Justice, 1401 H Street, Orthopedic Society, and Utah State Cincinnati has shown that the Delaware NW., Suite 4000, Washington, DC 20530, Orthopaedic Society decree is insufficient to prevent their (202) 307–0997, [email protected]. These comments seek entry of a recurrent anticompetitive conduct and, BILLING CODE 4401–11–M decree that essentially tracks the therefore, that a more stringent decree is

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[FR Doc. 08–227 Filed 1–23–08; 8:45 am] BILLING CODE 4401–11–C

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DEPARTMENT OF LABOR Type of Review: Extension without NATIONAL CREDIT UNION change of a previously approved ADMINISTRATION Office of the Secretary collection. Title of Collection: Notice of Alleged Community Development Revolving Submission for OMB Review: Safety or Health Hazards. Loan Fund for Credit Unions Comment Request OMB Control Number: 1218–0064. AGENCY: National Credit Union January 17, 2008. Agency Form Number: OSHA–7. Administration. The Department of Labor (DOL) Affected Public: Individuals or ACTION: Notice of application period. hereby announces the submission of the households. following public information collection Estimated Number of Respondents: SUMMARY: The National Credit Union requests (ICR) to the Office of 48,298. Administration (NCUA) will accept Management and Budget (OMB) for Estimated Total Annual Burden applications for participation in the review and approval in accordance with Hours: 12,775. Community Development Revolving the Paperwork Reduction Act of 1995 Estimated Total Annual Costs Burden: Loan Fund’s [Fund] Loan Program in (Pub. L. 104–13, 44 U.S.C. chapter 35). $990. September 2008, subject to availability A copy of each ICR, with applicable Description: The OSHA–7 Form is of funds. The Fund’s total appropriation supporting documentation; including used by employees who wish to report is $13.4 million. As of December 31, among other things a description of the unhealthful and/or unsafe conditions at 2007, the Fund’s loan portfolio totaled 1 likely respondents, proposed frequency their place of employment. This to $13.3 million. Application of response, and estimated total burden information is used by OSHA to procedures for the 2008 Fund Loan may be obtained from the RegInfo.gov evaluate the alleged hazards and to Program will be posted to the NCUA Web site at http://www.reginfo.gov/ schedule an inspection. For additional Web site. public/do/PRAMain or by contacting information, see related notice DATES: Applications can be submitted Darrin King on 202–693–4129 (this is published at 72 FR 61377 on October starting on September 1, 2008, and not a toll-free number)/e-mail: 30, 2007. closing on November 30, 2008. [email protected]. ADDRESSES: Applications for Interested parties are encouraged to Agency: Occupational Safety and participation may be obtained from and send comments to the Office of Health Administration. should be submitted to: NCUA, Office of Information and Regulatory Affairs, Type of Review: Extension without Small Credit Union Initiatives, 1775 Attn: John Kraemer, OMB Desk Officer change of a previously approved Duke Street, Alexandria, VA 22314– for the Occupational Safety and Health collection. 3428. Administration (OSHA), Office of Title of Collection: 29 CFR Part 1904 Management and Budget, Room 10235, Recordkeeping and Reporting FOR FURTHER INFORMATION CONTACT: Washington, DC 20503, Telephone: Occupational Injuries and Illnesses. Tawana James, Director, Office of Small 202–395–7316/Fax: 202–395–6974 OMB Control Number: 1218–0176. Credit Union Initiatives at the above (these are not toll-free numbers), e-mail: Agency Form Numbers: OSHA–300; address or telephone (703) 518–6610. [email protected] within OSHA–300A; and OSHA–301. SUPPLEMENTARY INFORMATION: Part 705 of 30 days from the date of this publication Affected Public: Private Sector: the NCUA Rules and Regulations in the Federal Register. In order to Business or other for-profits. implements the Community ensure the appropriate consideration, Estimated Number of Respondents: Development Revolving Loan Fund comments should reference the OMB 1,541,900. (Fund) for Credit Unions. The purpose Control Number (see below). Estimated Total Annual Burden of the Fund is to assist officially The OMB is particularly interested in Hours: 3,072,980. designated ‘‘low-income’’ credit unions comments which: in providing basic financial services to • Estimated Total Annual Costs Burden: Evaluate whether the proposed residents in their communities that collection of information is necessary $0. Description: The Occupational Safety result in increased income, home for the proper performance of the ownership, and employment. The Fund functions of the agency, including and Health Act (Pub. L. 91–596) and 29 CFR Part 1904 prescribe that certain makes available low interest loans in the whether the information will have aggregate amount of $300,000 to practical utility; employers maintain records of job- • related injuries and illnesses. The data qualified participating ‘‘low-income’’ Evaluate the accuracy of the designated credit unions. Interest rates agency’s estimate of the burden of the are needed by OSHA to carry out intervention and enforcement activities are currently set at one percent, subject proposed collection of information, to change depending on market interest including the validity of the that help ensure workers are provided with safe and healthful workplaces. The rates. methodology and assumptions used; Specific details regarding availability • Enhance the quality, utility, and data are also used by the Bureau of and requirements for technical clarity of the information to be Labor Statistics in order to produce assistance grants from the Fund will be collected; and national statistics on occupational published in a Letter to Credit Unions • Minimize the burden of the injuries and illnesses (See OMB Number and on NCUA’s Web site at http:// collection of information on those who 1220–0045, Survey of Occupational www.ncua.gov/. Fund participation is are to respond, including through the Injuries and Illnesses). For additional limited to existing credit unions with an use of appropriate automated, information, see related notice official ‘‘low-income’’ designation. electronic, mechanical, or other published at 72 FR 60028 on October This notice is published pursuant to technological collection techniques or 23, 2007. other forms of information technology, Section 705.9 of the NCUA Rules and e.g., permitting electronic submission of Darrin A. King, Acting Departmental Clearance Officer. 1 Total outstanding loans at year-end 2007 responses. amounted to $13.3 million. One loan commitment, Agency: Occupational Safety and [FR Doc. E8–1194 Filed 1–23–08; 8:45 am] in the amount of $150,000 has been approved and Health Administration. BILLING CODE 4510–26–P will be funded as monies become available.

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Regulations that states NCUA will prior to the meeting to be advised of any which would be likely to significantly provide notice in the Federal Register potential changes in the agenda. frustrate implementation of a proposed when funds in the program are Dated: January 15, 2008. agency action pursuant to 5 U.S.C. available. Charles G. Hammer, 552b(c)(9)(B).] By the National Credit Union Acting Chief, Reactor Safety Branch. 3:15 p.m.–5 p.m.: Cable Response to Administration Board on January 17, 2008. Live Fire (CAROLFIRE) Testing and Fire [FR Doc. E8–1071 Filed 1–23–08; 8:45 am] Mary F. Rupp, Model Improvement Program (Open)— BILLING CODE 7590–01–P Secretary, NCUA Board. The Committee will hear presentations [FR Doc. E8–1147 Filed 1–23–08; 8:45 am] by and hold discussions with representatives of the NRC staff and its BILLING CODE 7535–01–P NUCLEAR REGULATORY COMMISSION contractors regarding the results of the CAROLFIRE Testing and Fire Model Improvement Program, including staff’s NUCLEAR REGULATORY Advisory Committee on Reactor COMMISSION Safeguards; Meeting Notice resolution of public comments. 5:15 p.m.–7 p.m.: Preparation of In accordance with the purposes of Advisory Committee on Reactor ACRS Reports (Open)—The Committee sections 29 and 182b. of the Atomic Safeguards (ACRS); Subcommittee will discuss proposed ACRS reports on Energy Act (42 U.S.C. 2039, 2232b), the Meeting on Planning and Procedures; matters considered during this meeting, Advisory Committee on Reactor Notice of Meeting as well as a proposed report on State- Safeguards (ACRS) will hold a meeting of-the-Art Reactor Consequence The ACRS Subcommittee on Planning on February 7–9, 2008, 11545 Rockville Analysis (SOARCA) program. and Procedures will hold a meeting on Pike, Rockville, Maryland. The date of February 6, 2008, Room T–2B1, 11545 this meeting was previously published Friday, February 8, 2008, Conference Rockville Pike, Rockville, Maryland. in the Federal Register on Monday, Room T–2B3, Two White Flint North, The entire meeting will be open to October 22, 2007 (72 FR 59574). Rockville, Maryland public attendance, with the exception of Thursday, February 7, 2008, 8:30 a.m.–8:35 a.m.: Opening a portion that may be closed pursuant Conference Room T–2B3, Two White Remarks by the ACRS Chairman to 5 U.S.C. 552b(c)(2) and (6) to discuss Flint North, Rockville, Maryland (Open)—The ACRS Chairman will make organizational and personnel matters opening remarks regarding the conduct 8:30 a.m.–8:35 a.m.: Opening that relate solely to the internal of the meeting. Remarks by the ACRS Chairman personnel rules and practices of the 8:35 a.m.–10:30 a.m.: Proposed BWR ACRS, and information the release of (Open)—The ACRS Chairman will make opening remarks regarding the conduct Owners Group (BWROG) Topical Report which would constitute a clearly on Methodology for Calculating unwarranted invasion of personal of the meeting. 8:35 a.m.–10:30 a.m.: Final Review of Available Net Positive Suction Head privacy. (NPSH) for ECCS Pumps (Open/ The agenda for the subject meeting the License Renewal Application for the Closed)—The Committee will hear shall be as follows: Vermont Yankee Nuclear Power Station (Open)—The Committee will hear presentations by and hold discussions Wednesday, February 6, 2008, 8:30 a.m. presentations by and hold discussions with representatives of the NRC staff Until 10 a.m. with representatives of the NRC staff and the BWR Owners Group regarding The Subcommittee will discuss and Entergy Nuclear Operations the proposed topical report on proposed ACRS activities and related regarding the License Renewal Methodology for Calculating the matters. The Subcommittee will gather Application for the Vermont Yankee Available NPSH for ECCS Pumps, information, analyze relevant issues and Nuclear Power Station and the including NRC staff’s position on this facts, and formulate proposed positions associated NRC staff’s Final Safety topical report. and actions, as appropriate, for Evaluation Report. [Note: A portion of this session may deliberation by the full Committee. 10:45 a.m.–12 p.m.: Draft Final be closed to discuss and protect Members of the public desiring to Revision to Regulatory Guide 1.45 (DG– information that is proprietary to provide oral statements and/or written 1173), ‘‘Guidance on Monitoring and BWROG and their contractors pursuant comments should notify the Designated Responding to Reactor Coolant System to 5 U.S.C. 552b(c)(4).] Federal Officer, Mr. Sam Duraiswamy Leakage’’ (Open)—The Committee will 10:45 a.m.–11:30 a.m.: Future ACRS (telephone: 301–415–7364) between hear presentations by and hold Activities/Report of the Planning and 7:30 a.m. and 4 p.m. (ET) five days prior discussions with representatives of the Procedures Subcommittee (Open)—The to the meeting, if possible, so that NRC staff regarding draft final Revision Committee will discuss the appropriate arrangements can be made. 1 to Regulatory Guide 1.45 (DG–1173) recommendations of the Planning and Electronic recordings will be permitted and the staff’s resolution of public Procedures Subcommittee regarding only during those portions of the comments. items proposed for consideration by the meeting that are open to the public. 1 p.m.–3 p.m.: Proposed Licensing full Committee during future meetings. Detailed procedures for the conduct of Strategy for the Next Generation Also, it will hear a report of the and participation in ACRS meetings Nuclear Plant (NGNP) (Open/Closed)— Planning and Procedures Subcommittee were published in the Federal Register The Committee will hear presentations on matters related to the conduct of on September 26, 2007 (72 FR 54695). by and hold discussions with ACRS business, including anticipated Further information regarding this representatives of the NRC staff and workload and member assignments. meeting can be obtained by contacting Department of Energy regarding the 11:30 a.m.–11:45 a.m.: Reconciliation the Designated Federal Officer between proposed licensing strategy for the Next of ACRS Comments and 7:30 a.m. and 4 p.m. (ET). Persons Generation Nuclear Plant. Recommendations (Open)—The planning to attend this meeting are [Note: A portion of this session may Committee will discuss the responses urged to contact the above named be closed to prevent disclosure of from the NRC Executive Director for individual at least two working days information the premature disclosure of Operations to comments and

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recommendations included in recent meetings may be adjusted by the NUCLEAR REGULATORY ACRS reports and letters. Chairman as necessary to facilitate the COMMISSION 11:45 a.m.–12 p.m.: Subcommittee conduct of the meeting, persons Report (Open)—The Committee will planning to attend should check with Advisory Committee on Reactor hear a report by the Chairman of the the Cognizant ACRS staff if such Safeguards; Subcommittee Meeting on ACRS Subcommittee on Reliability and rescheduling would result in major Safety Research Program; Notice of Probabilistic Risk Assessment (PRA) inconvenience. Meeting regarding Draft NUREG–1855, ‘‘Guidance on the Treatment of In accordance with Subsection 10(d) The ACRS Subcommittee on Safety Uncertainties Associated with PRAs in (Pub.L. 92–463), I have determined that Research Program will hold a meeting Risk-Informed Decisionmaking,’’ that it may be necessary to close portions of on February 5, 2008, Room T–2B1, was discussed during the meeting on this meeting noted above to discuss and 11545 Rockville Pike, Rockville, December 19, 2007. protect information classified as Maryland. 1 p.m.–3 p.m.: Draft ACRS Report on proprietary to BWROG, and their The entire meeting will be open to the NRC Safety Research Program contractors pursuant to 5 U.S.C. public attendance. (Open)—The Committee will discuss 552b(c)(4), and information the The agenda for the subject meeting the draft ACRS report to the premature disclosure of which would be shall be as follows: Commission on the NRC Safety likely to significantly frustrate Tuesday, February 5, 2008—9:30 a.m. Research Program. implementation of a proposed agency Until the Conclusion of Business 3:15 p.m.–7 p.m.: Preparation of action pursuant to 5 U.S.C. ACRS Reports (Open)—The Committee 552b(c)(9)(B). The Subcommittee will discuss the will discuss proposed ACRS reports. scope of long-term research the agency Further information regarding topics needs to consider. The purpose of this Saturday, February 9, 2008, Conference to be discussed, whether the meeting meeting is to gather information, Room T–2B3, Two White Flint North, has been canceled or rescheduled, as analyze relevant issues and facts, and Rockville, Maryland well as the Chairman’s ruling on formulate proposed positions and 7:30 a.m.–9:30 a.m.: Draft ACRS requests for the opportunity to present actions, as appropriate, for deliberation Report on the NRC Safety Research oral statements and the time allotted by the full Committee. Program (Open)—The Committee will therefor can be obtained by contacting Members of the public desiring to continue its discussion of the draft Mr. Girija S. Shukla, Cognizant ACRS provide oral statements and/or written ACRS report on the NRC Safety staff (301–415–6855), between 7:30 a.m. comments should notify the Designated Research Program. and 4 p.m., (ET). ACRS meeting agenda, Federal Official, Dr. Hossein P. 9:45 a.m.–1 p.m.: Preparation of meeting transcripts, and letter reports Nourbakhsh (Telephone: 301–415–5622) ACRS Reports (Open)—The Committee are available through the NRC Public five days prior to the meeting, if will continue its discussion of proposed Document Room at [email protected], or by possible, so that appropriate ACRS reports. calling the PDR at 1–800–397–4209, or arrangements can be made. Electronic 1 p.m.–1:30 p.m.: Miscellaneous from the Publicly Available Records recordings will be permitted. Detailed (Open)—The Committee will discuss System (PARS) component of NRC’s procedures for the conduct of and matters related to the conduct of document system (ADAMS) which is participation in ACRS meetings were Committee activities and matters and accessible from the NRC Web site at published in the Federal Register on specific issues that were not completed http://www.nrc.gov/reading-rm/ September 26, 2007 (72 FR 54695). during previous meetings, as time and adams.html or http://www.nrc.gov/ Further information regarding this availability of information permit. reading-rm/doc-collections/ (ACRS & meeting can be obtained by contacting Procedures for the conduct of and ACNW Mtg schedules/agendas). the Designated Federal Official between participation in ACRS meetings were Video teleconferencing service is 7:30 a.m. and 4:15 p.m. (ET). Persons published in the Federal Register on available for observing open sessions of planning to attend this meeting are September 26, 2007 (72 FR 54695). In ACRS meetings. Those wishing to use urged to contact the above named accordance with those procedures, oral this service for observing ACRS individual at least two working days or written views may be presented by meetings should contact Mr. Theron prior to the meeting to be advised of any members of the public, including Brown, ACRS Audio Visual Technician potential changes to the agenda. representatives of the nuclear industry. Dated: January 15, 2008. Electronic recordings will be permitted (301–415–8066), between 7:30 a.m. and only during the open portions of the 3:45 p.m., (ET), at least 10 days before Charles G. Hammer, meeting. Persons desiring to make oral the meeting to ensure the availability of Acting Chief, Reactor Safety Branch. statements should notify the Cognizant this service. [FR Doc. E8–1073 Filed 1–23–08; 8:45 am] ACRS staff named below five days Individuals or organizations BILLING CODE 7590–01–P before the meeting, if possible, so that requesting this service will be appropriate arrangements can be made responsible for telephone line charges to allow necessary time during the and for providing the equipment and OFFICE OF THE UNITED STATES meeting for such statements. Use of still, facilities that they use to establish the TRADE REPRESENTATIVE motion picture, and television cameras video teleconferencing link. The during the meeting may be limited to availability of video teleconferencing [Docket No. WTO/DS–291] selected portions of the meeting as services is not guaranteed. WTO Dispute Settlement Proceedings determined by the Chairman. Dated: January 17, 2008. Regarding Measures of the European Information regarding the time to be set Annette Vietti-Cook, Communities Affecting the Approval aside for this purpose may be obtained and Marketing of Biotech Products by contacting the Cognizant ACRS staff Secretary of the Commission. prior to the meeting. In view of the [FR Doc. E8–1189 Filed 1–23–08; 8:45 am] AGENCY: Office of the United States possibility that the schedule for ACRS BILLING CODE 7590–01–P Trade Representative.

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ACTION: Notice; request for comments. Luxembourg are inconsistent with the agreement the United States will file a obligations set out in the WTO formal consultation request with the EC, SUMMARY: The Office of the United Agreement on the Application of followed by a request for the States Trade Representative (‘‘USTR’’) is Sanitary and Phytosanitary Measures establishment of a WTO compliance providing notice that on January 17, (‘‘SPS Agreement’’). In particular: panel. Should the compliance panel 2008, the United States submitted to the —The Panel found that the EC adopted find that the EC has not complied with World Trade Organization (‘‘WTO’’) a a de facto, across-the-board DSB recommendations and rulings, request for authorization to suspend moratorium on the final approval of upon request of the United States the WTO concessions and other obligations biotech products, starting in 1999 up arbitration will proceed. Once the with respect to the European through the time the panel was arbitrator has issued its award, the Communities (‘‘EC’’) in an amount equal established in August 2003. United States will be entitled to receive to the level of nullification and —The Panel found that the EC had from the DSB the authorization to impairment resulting from EC non- presented no scientific or regulatory suspend concessions in accordance with compliance with the WTO justification for the moratorium, and the award. recommendations and rulings. Under a thus that the moratorium resulted in sequencing agreement with the EC, that Procedures for Exercising WTO ‘‘undue delays’’ in violation of the request will be referred to arbitration Authorization To Suspend Trade EC’s obligations under the SPS and the arbitration will be suspended Concessions Agreement. while the United States and EC continue —The Panel also identified specific, The practice of USTR, in pursuing WTO authorization to suspend trade to try to resolve this dispute and related WTO-inconsistent ‘‘undue delays’’ concessions on particular products, is to matters. To prepare for the possibility with regard to 24 of the 27 pending publish a broad preliminary product list that the arbitration is resumed and the product applications that were listed and ask for public comments on the WTO Dispute Settlement Body (‘‘DSB’’) in the U.S. panel request. products to be included on a final authorizes the United States to suspend —The Panel found that the bans retaliation list. This current notice is not WTO concessions with respect to the adopted by six EC member States on intended to replace a notice publishing EC, USTR is inviting written comments biotech products approved in the EC and seeking comments on a preliminary on action that USTR should take to prior to the moratorium were not product list. Rather, the public exercise such an authorization. In supported by scientific evidence and comments received in response to this particular, USTR seeks written were thus inconsistent with current notice will be used as input in comments with respect to the specific obligations under the SPS Agreement. products of the EC or EC member States, the development of a preliminary list of and/or with respect to the specific The DSB adopted the panel report on specific products and of specific EC member States of the EC, that should be November 21, 2006. At the meeting of member States. The preliminary list will subject to a suspension of WTO the DSB held on December 19, 2006, the not necessarily include all products or concessions, such as through increases EC notified the DSB that the EC EC member States suggested in response of rates of duty above current rates. intended to implement the to this notice, nor will the preliminary recommendations and rulings of the DATES: Comments are requested to be list be limited to such products or EC DSB in the dispute, and stated that it member States. submitted on or before March 21, 2008. would need a reasonable period of time ADDRESSES: Comments should be for implementation. On June 21, 2007, Public Comment: Requirements for submitted either (i) electronically, to the United States notified the DSB that Submissions [email protected], with ‘‘EC-Biotech it had agreed with the EC on a one-year To prepare for the possibility that the Dispute’’ in the subject line, or (ii) by period of time for implementation, to WTO arbitration is resumed and the fax, to Sandy McKinzy at 202–395– end on November 21, 2007. The United DSB authorizes the United States to 3640, with a confirmation copy sent States subsequently notified the DSB suspend WTO concessions with respect electronically to the e-mail address that it had agreed with the EC to extend to the EC, USTR is seeking written above. the implementation period to January comments on action that USTR should FOR FURTHER INFORMATION CONTACT: 11, 2008. take to exercise such an authorization. Melissa Clarkson, Director, Agricultural On January 17, 2008, the United In particular, USTR seeks written Affairs, (202) 395–6127, or William States submitted to the DSB a request comments with respect to the specific Busis, Associate General Counsel and for authorization to suspend WTO products of the EC or of one or more EC Chair, Section 301 Committee, (202) concessions and other obligations with member States, and/or with respect to 395–3150. respect to the EC on an annual basis in specific member States of the EC, that SUPPLEMENTARY INFORMATION: an amount equal to the annual level of should be subject to a suspension of nullification and impairment resulting WTO concessions and related EC-Biotech Dispute from EC non-compliance with DSB obligations, such as through increases of USTR has previously provided notice recommendations and rulings. Under a rates of duty above current rates. If and requested public comment sequencing agreement with the EC, that commenters suggest suspension of WTO regarding the establishment on August request will be referred to arbitration concessions or related obligations with 29, 2003, of a WTO panel at the request and the arbitration will be suspended respect to specific products, the of the United States to examine EC while the United States and EC continue comments should identify the specific measures affecting the approval and to try to resolve this dispute and related headings or subheadings of the marketing of biotech products. See 69 matters. The United States will Harmonized Tariff Schedule of the FR 11,927. periodically evaluate EC progress United States in which such products The WTO Panel issued its report on toward normalizing biotech trade are classified. Commenters are September 29, 2006. The Panel agreed against a set of benchmarks and requested to explain why the with the United States that the disputed timelines. If the United States decides to suspension with respect to particular measures of the EC, Austria, France, pursue WTO proceedings on the EC’s products or with respect to particular Germany, Greece, Italy, and compliance, then pursuant to that EC member States would be effective in

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terms of encouraging a favorable and 1 p.m. to 4 p.m., Monday through The Exchange Act requires all SROs resolution of the EC-Biotech dispute. Friday. to submit to the SEC any proposals to amend, add, or delete any of their rules. Persons submitting comments may William Busis, Certain entities (Security Futures either send one copy by fax to Sandy Chair, Section 301 Committee. McKinzy at 202–395–3640, or transmit Product Exchanges) would be national [FR Doc. E8–1143 Filed 1–23–08; 8:45 am] a copy electronically to securities exchanges only because they [email protected], with ‘‘EC-Biotech BILLING CODE 3190–W8–P trade security futures products. Dispute’’ in the subject line. For Similarly, certain entities (Limited documents sent by fax, USTR requests Purpose National Securities that the submitter provide a SECURITIES AND EXCHANGE Associations) would be national confirmation copy electronically. USTR COMMISSION securities associations only because encourages the submission of their members trade security futures Proposed Collection; Comment products. The Exchange Act, as documents in Adobe PDF format, as Request attachments to an electronic mail. amended by the CFMA, established a Interested persons who make Upon Written Request, Copies Available procedure for Security Futures Product submissions by electronic mail should From: U.S. Securities and Exchange Exchanges and Limited Purpose not provide separate cover letters; Commission, Office of Investor National Securities Associations to information that might appear in a cover Education and Advocacy, provide notice of proposed rule changes 1 letter should be included in the Washington, DC 20549–0213. relating to certain matters. Rule 19b–7 submission itself. Similarly, to the and Form 19b–7 implemented this Extension: Rule 19b–7 and Form 19b–7; OMB procedure. extent possible, any attachments to the Control No. 3235–0553; SEC File No. The collection of information is submission should be included in the 270–495. designed to provide the Commission same file as the submission itself, and Notice is hereby given that pursuant with the information necessary to not as separate files. to the Paperwork Reduction Act of 1995 determine, as required by the Exchange Comments must be in English. A (44 U.S.C. 3501 et seq.), the Securities Act, whether the proposed rule change person requesting that information and Exchange Commission is consistent with the Exchange Act and contained in a comment submitted by (‘‘Commission’’) is soliciting comments the rules thereunder. The information is that person be treated as confidential on the collection of information used to determine if the proposed rule business information must certify that summarized below. The Commission change should remain in affect or such information is business plans to submit this existing collection abrogated. confidential and would not customarily of information to the Office of The respondents to the collection of be released to the public by the Management and Budget for extension information are SROs. Five respondents submitter. Confidential business and approval. file an average total of 12 responses per information must be clearly designated • (Rule 19b–7 (17 CFR 240.19b–7) year. Each response takes approximately as such and the submission must be and Form 19b–7 (17 CFR 249.822)— 17.25 hours to complete, which marked ‘‘Business Confidential’’ at the Filings with respect to proposed rule corresponds to an estimated annual top and bottom of the cover page and changes submitted pursuant to Section response burden of 207 (12 responses × each succeeding page. 19(b)(7) of the Act. 17.25 hours) hours. The average cost per Information or advice contained in a The Securities Exchange Act of 1934 response is $4,607.25 (17.25 hours comment submitted, other than business (15 U.S.C. 78a et seq.) (‘‘Exchange Act’’) multiplied by an average hourly rate of confidential information, may be provides a framework for self-regulation $267.09). The resultant total related cost determined by USTR to be confidential under which various entities involved of compliance for these respondents is in accordance with section 135(g)(2) of in the securities business, including approximately $55,287 per year (12 the Trade Act of 1974 (19 U.S.C. national securities exchanges and responses × $4,607.25 per response). 2155(g)(2)). If the submitter believes that national securities associations Compliance with Rule 19b–7 is information or advice may qualify as (collectively, self-regulatory mandatory. Information received in such, the submitter— organizations or ‘‘SROs’’), have primary response to Rule 19b–7 shall not be kept (1) Must clearly so designate the responsibility for regulating their confidential; the information collected information or advice; members or participants. The role of the is public information. Commission in this framework is Written comments are invited on: (a) (2) Must clearly mark the material as primarily one of oversight: the Exchange Whether the proposed collection of ‘‘Submitted in Confidence’’ at the top Act charges the Commission with information is necessary for the proper and bottom of the cover page and each supervising the SROs and assuring that performance of the functions of the succeeding page; and each complies with and advances the Commission, including whether the (3) Is encouraged to provide a non- policies of the Exchange Act. information shall have practical utility; confidential summary of the The Exchange Act was amended by (b) the accuracy of the Commission’s information or advice. the Commodity Futures Modernization estimates of the burden of the proposed USTR will maintain a file of non- Act of 2000 (‘‘CFMA’’). Prior to the collection of information; (c) ways to confidential comments received in CFMA, federal law did not allow the enhance the quality, utility, and clarity response to this notice, accessible to the trading of futures on individual stocks public, in the USTR Reading Room, or on narrow-based stock indexes 1 These matters are higher margin levels, fraud or which is located at 1724 F Street, NW., (collectively, ‘‘security futures manipulation, recordkeeping, reporting, listing standards, or decimal pricing for security futures Washington, DC 20508. An appointment products’’). The CFMA removed this products; sales practices for security futures to review the public file (Docket No. restriction and provides that trading in products for persons who effect transactions in WTO/DS–291) may be made by calling security futures products would be security futures products; or rules effectuating the the USTR Reading Room at (202) 395– regulated jointly by the Commission and obligation of Security Futures Product Exchanges and Limited Purpose National Securities 6186. The USTR Reading Room is open the Commodity Futures Trading Associations to enforce the securities laws. See 15 to the public from 9:30 a.m. to 12 noon Commission. U.S.C. 78s(b)(7)(A).

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of the information to be collected; and penalty bids and disclose such and Exchange Commission (the (d) ways to minimize the burden of the information to the SRO. ‘‘Commission’’) has submitted to the collection of information on There are approximately 795 Office of Management and Budget respondents, including through the use respondents per year that require an (‘‘OMB’’) a request for extension and of automated collection techniques or aggregate total of 159 hours to comply approval of the collections of other forms of information technology. with this rule. Each respondent makes information discussed below. Consideration will be given to an estimated 1 annual response. Each Temporary rule 206(3)–3T (17 CFR comments and suggestions submitted in response takes approximately 0.20 275.206(3)–3T) under the Investment writing within 60 days of this hours (12 minutes) to complete. Thus, Advisers Act of 1940 (15 U.S.C. 80b–1 publication. the total compliance burden per year is et seq.) is entitled: ‘‘Temporary rule for Comments should be directed to: R. 159 burden hours. The total compliance principal trades with certain advisory Corey Booth, Director/Chief Information cost for the respondents is clients.’’ The temporary rule provides Officer, Securities and Exchange approximately $8,943.75, resulting in a investment advisers who are registered Commission, C/O Shirley Martinson, cost of compliance for the respondent with the Commission as broker-dealers 6432 General Green Way, Alexandria, per response of approximately $11.25 an alternative means to meet the Virginia 22312 or send an e-mail to: (i.e., $8,943.75 / 795 responses). requirements of section 206(3) of the [email protected]. Comments must Written comments are invited on: (a) Advisers Act (15 U.S.C. 80b–6(3)) when be submitted within 60 days of this Whether the proposed collection of they act in a principal capacity in notice. information is necessary for the proper transactions with certain of their performance of the functions of the Dated: January 15, 2008. advisory clients. The temporary rule, Commission, including whether the and its attendant paperwork burdens, Florence E. Harmon, information shall have practical utility; will expire and no longer be effective on Deputy Secretary. (b) the accuracy of the Commission’s December 31, 2009. [FR Doc. E8–1157 Filed 1–23–08; 8:45 am] estimates of the burden of the proposed Temporary rule 206(3)–3T permits BILLING CODE 8011–01–P collection of information; (c) ways to dually-registered advisers to satisfy the enhance the quality, utility, and clarity Advisers Act’s principal trading of the information to be collected; and restrictions by: (i) Providing written, SECURITIES AND EXCHANGE (d) ways to minimize the burden of the prospective disclosure regarding the COMMISSION collection of information on conflicts arising from principal trades; respondents, including through the use (ii) obtaining written, revocable consent Proposed Collection; Comment of automated collection techniques or Request from the client prospectively other forms of information technology. authorizing the adviser to enter into Upon written request, copies available Consideration will be given to principal transactions; (iii) making oral from: U.S. Securities and Exchange comments and suggestions submitted in or written disclosure and obtaining the Commission, Office of Investor writing within 60 days of this client’s consent before each principal Education and Advocacy, publication. transaction; (iv) sending to the client Washington, DC 20549–0213. Comments should be directed to: R. confirmation statements disclosing the Corey Booth, Director/Chief Information capacity in which the adviser has acted; Extension: Rule 104: OMB Control No. 3235– Officer, Securities and Exchange 0465; SEC File No. 270–411. and (v) delivering to the client an Commission, C/O Shirley Martinson, annual report itemizing the principal Notice is hereby given that pursuant 6432 General Green Way, Alexandria, transactions. to the Paperwork Reduction Act of 1995 Virginia 22312 or send an e-mail to: _ The Commission staff estimates that (44 U.S.C. 3501 et seq.), the Securities PRA [email protected]. Comments must approximately 380 investment advisers and Exchange Commission be submitted within 60 days of this make use of rule 206(3)–3T, and that on (‘‘Commission’’) is soliciting comments notice. average an investment adviser spends on the collection of information Dated: January 15, 2008. approximately 1,301 hours annually in summarized below. The Commission Florence E. Harmon, complying with the requirements of the plans to submit this existing collection Deputy Secretary. rule. The Commission staff therefore of information to the Office of [FR Doc. E8–1158 Filed 1–23–08; 8:45 am] estimates the total annual burden of the Management and Budget for extension BILLING CODE 8011–01–P rule’s paperwork requirements to be and approval. approximately 494,440 hours. • Rule 104 of Regulation M (17 CFR Rule 206(3)–3T does not require 242.104)—Stabilizing and Other SECURITIES AND EXCHANGE recordkeeping or record retention. The Activities in Connection with an COMMISSION collection of information requirements Offering. under the rule are required to obtain a Rule 104 permits stabilizing by a Submission for OMB Review; benefit. The information collected distribution participant during a Comment Request pursuant to the rule is not required to distribution so long as the distribution be filed with the Commission, but rather Upon Written Request, Copies Available participant discloses information to the takes the form of disclosures to, and From: Securities and Exchange market and investors. This rule requires responses from, clients. Accordingly, Commission, Office of Investor disclosure in offering materials of the these filings are not kept confidential. Education and Advocacy, potential stabilizing transactions and To the extent advisers include any of Washington, DC 20549–0213. that the distribution participant inform the information required by the rule in the market when a stabilizing bid is Extension: Rule 206(3)–3T; SEC File No. a filing, such as Form ADV, the made. It also requires the distribution 270–571; OMB Control No. 3235–0630. information will not be kept participants (i.e., the syndicate manager) Notice is hereby given that pursuant confidential. An agency may not to maintain information regarding to the Paperwork Reduction Act of 1995 conduct or sponsor, and a person is not syndicate covering transactions and (44 U.S.C. 350 et seq.), the Securities required to respond to, a collection of

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information unless it displays a There are approximately 1,634 and Exchange Commission currently valid control number. respondents per year that require an (‘‘Commission’’), pursuant to Section Please direct general comments aggregate total of 31,355 hours to 19(b)(1) of the Securities Exchange Act regarding the above information to the comply with this rule. Each respondent of 1934 (‘‘Act’’) 1 and Rule 19b–4 following persons: (i) Desk Officer for makes an estimated 1 annual response. thereunder,2 a proposed rule change to the Securities and Exchange Each response takes approximately amend complex orders procedures to Commission, Office of Management and 19.19 hours to complete. Thus, the total allow the adjustment of the options leg Budget, Room 10102, New Executive compliance burden per year is 31,355 of the order if market conditions prevent Office Building, Washington, DC 20503 burden hours. The total compliance cost the execution of the non-option leg at or e-mail to: for the respondents is approximately the price agreed upon. On November 28, [email protected]; and $1,763,718.75, resulting in a cost of 2007, Amex filed Amendment No. 1 to (ii) R. Corey Booth, Director/Chief compliance for the respondent per the proposed rule change. The proposed Information Officer, Securities and response of approximately $1,079.39 rule change was published for comment Exchange Commission, C/O Shirley (i.e., $1,763,718.75/1,634 responses). in the Federal Register on December 12, Martinson, 6432 General Green Way, Written comments are invited on: (a) 2007.3 The Commission received no Alexandria, VA 22312; or send an e- Whether the proposed collection of comment letters regarding the proposal. mail to: [email protected]. information is necessary for the proper This order approves the proposed rule Comments must be submitted to OMB performance of the functions of the change, as modified by Amendment No. within 30 days of this notice. Commission, including whether the 1. information shall have practical utility; Dated: January 14, 2008. II. Description (b) the accuracy of the Commission’s Florence E. Harmon, estimates of the burden of the proposed The Exchange proposes to amend Deputy Secretary. collection of information; (c) ways to Rule 953–ANTE (b)(ii) to provide that if [FR Doc. E8–1159 Filed 1–23–08; 8:45 am] enhance the quality, utility, and clarity the stock leg or security futures leg of BILLING CODE 8011–01–P of the information to be collected; and the order cannot be executed at the (d) ways to minimize the burden of the price agreed upon due to market collection of information on conditions, the price of a trade SECURITIES AND EXCHANGE respondents, including through the use representing the execution of the COMMISSION of automated collection techniques or options leg of the transaction may be other forms of information technology. adjusted to be consistent with the net Proposed Collection; Comment debit or credit price of the original Request Consideration will be given to comments and suggestions submitted in order, if market conditions in any of the Upon Written Request, Copies Available writing within 60 days of this non-Exchange markets prevent the From: U.S. Securities and Exchange publication. execution of the non-option leg at the Commission, Office of Investor Comments should be directed to: price agreed upon. In addition, the Commission notes Education and Advocacy, R. Corey Booth, Director/Chief that Amex has represented that the re- Washington, DC 20549–0213. Information Officer, Securities and Exchange Commission, c/o Shirley pricing of the options leg must be Extension: Rule 101: OMB Control No. 3235– consistent with Amex’s priority and 0464; SEC File No. 270–408. Martinson, 6432 General Green Way, Alexandria, Virginia 22312 or send an e- parity rules. If the transaction does not Notice is hereby given that pursuant mail to: [email protected]. satisfy the Exchange’s priority and to the Paperwork Reduction Act of 1995 Comments must be submitted within 60 parity rules by the end of the trading (44 U.S.C. 3501 et seq.), the Securities days of this notice. day, then the transaction would be cancelled. and Exchange Commission Dated: January 17, 2008. (‘‘Commission’’) is soliciting comments Nancy M. Morris, III. Discussion on the collection of information summarized below. The Commission Secretary. The Commission has carefully plans to submit this existing collection [FR Doc. E8–1179 Filed 1–23–08; 8:45 am] reviewed the proposed rule change and of information to the Office of BILLING CODE 8011–01–P the Commission finds that the proposed Management and Budget for extension rule change is consistent with the 4 and approval. requirements of Section 6 of the Act SECURITIES AND EXCHANGE and the rules and regulations • (Rule 101 of Regulation M (17 CFR COMMISSION thereunder applicable to a national 242.101)—Activities by Distribution securities exchange.5 In particular, the Participants [Release No. 34–57160; File No. SR–Amex– 2007–20] Commission finds that the proposal is Rule 101 prohibits distribution consistent with Section 6(b)(5) of the participants from purchasing activities Self-Regulatory Organizations; Act,6 because it is designed to promote at specified times during a distribution American Stock Exchange LLC; Order just and equitable principles of trade, to of securities. Persons otherwise covered Approving Proposed Rule Change as remove impediments to and perfect the by these rules may seek to use several Modified by Amendment No. 1 Related applicable exceptions such as a 1 to Amending Complex Orders 15 U.S.C. 78s(b)(1). calculation of the average daily trading 2 Procedures 17 CFR 240.19b–4. volume of the securities in distribution, 3 See Securities Exchange Act Release No. 56901 the maintenance of policies regarding January 16, 2008. (December 5, 2007), 72 FR 70625. information barriers between their 4 15 U.S.C. 78f. affiliates, and the maintenance of a I. Introduction 5 In approving this proposed rule change the Commission has considered the proposed rule’s written policy regarding general On February 15, 2007, the American impact on efficiency, competition, and capital compliance with Regulation M for de Stock Exchange LLC (‘‘Amex’’ or formation. 15 U.S.C. 78c(f). minimus transactions. ‘‘Exchange’’) filed with the Securities 6 15 U.S.C. 78f(b)(5).

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mechanism of a free and open market proposed rule change. The Commission million in the underlying securities.6 and a national market system, and, in is publishing this notice to solicit The Exchange proposes to reduce the general, to protect investors and the comments on the proposed rule change, ‘‘250 contracts’’ component to ‘‘150 public interest. as amended, from interested persons. contracts;’’ the $1 million underlying The Commission believes that the value component will continue to apply I. Self-Regulatory Organization’s Exchange’s proposal to amend its unchanged.7 complex order procedures as described Statement of the Terms of Substance of The proposal would become effective above may facilitate the execution of the Proposed Rule Change on a pilot program basis for a period of such complex orders. CBOE proposes to amend its rules 11⁄2 years. If the Exchange were to IV. Conclusion regarding the minimum value size for an propose an extension, expansion, or opening transaction in FLEX Equity permanent implementation of the For the foregoing reasons, the Option series on a pilot program basis. program, the Exchange would submit, Commission finds that the proposed The text of the proposed rule change is along with a filing proposing any rule change is consistent with the Act available on the Exchange’s Web site necessary amendments to the program, and the rules and regulations (http://www.cboe.org/Legal), at the a pilot program report. The report thereunder applicable to a national Office of the Secretary, CBOE and at the would include, for the period during securities exchange, and, in particular, Commission’s Public Reference Room. which the program was in effect: (i) Data 7 with Section 6(b)(5) of the Act. and analysis on the open interest and II. Self-Regulatory Organization’s It is therefore ordered, pursuant to trading volume in FLEX Equity Options 8 Statement of the Purpose of, and Section 19(b)(2) of the Act, that the for which series were opened with a Statutory Basis for, the Proposed Rule proposed rule change (SR–Amex–2007– minimum opening size of 150 to 249 Change 20), as modified by Amendment No. 1, contracts and less than $1 million in is approved. In its filing with the Commission, underlying value; and (ii) analysis on For the Commission, by the Division of CBOE included statements concerning the types of investors that initiated Trading and Markets, pursuant to delegated the purpose of, and basis for, the opening FLEX Equity Options 9 authority. proposed rule change and discussed any transactions (i.e., institutional, high net Nancy M. Morris, comments it received on the proposed worth, or retail, if any). The report Secretary. rule change. The text of those would be submitted to the Commission [FR Doc. E8–1177 Filed 1–23–08; 8:45 am] statements may be examined at the at least ninety days prior to the BILLING CODE 8011–01–P places specified in Item IV below. The expiration date of the 11⁄2 year pilot Exchange has prepared summaries, set program. forth in Sections A, B, and C below, of The Exchange believes that the SECURITIES AND EXCHANGE the most significant aspects of such reduction of the minimum value size for COMMISSION statements. opening a series in the manner proposed provides FLEX-participating members [Release No. 34–57161; File No. SR–CBOE– A. Self-Regulatory Organization’s 2006–36] with greater flexibility in structuring the Statement of the Purpose of, and terms of FLEX Equity Options that best Self-Regulatory Organizations; Statutory Basis for, the Proposed Rule comports with their and their Chicago Board Options Exchange, Change customers’ particular needs. The Incorporated; Notice of Filing of a 1. Purpose Exchange notes that the opening size Proposed Rule Change as Modified by requirement for FLEX Equity Options The purpose of the filing is to modify Amendments No. 1 and 2 Thereto was originally put in place to limit the minimum value size for an opening Regarding FLEX Equity Option participation in FLEX Equity Options to transaction (other than FLEX Quotes Opening Transactions sophisticated, high net worth investors responsive to a FLEX Request for rather than retail investors.8 Based on January 16, 2008. Quotes) in any FLEX Equity Option 5 the Exchange’s experience to date with Pursuant to Section 19(b)(1) of the series in which there is no open interest such options, it appears that the existing Securities Exchange Act of 1934 (the at the time the Request for Quotes is 250 contract component is too large to ‘‘Act’’),1 and Rule 19b–4 thereunder,2 submitted. Currently, the minimum accommodate the needs of FLEX- notice is hereby given that on April 14, opening transaction value size in the participating members and their 2006, the Chicago Board Options case of a FLEX Equity Options series is institutional and high net worth Exchange, Incorporated (‘‘CBOE’’ or the lesser of (i) 250 contracts or (ii) the ‘‘Exchange’’), filed with the Securities number of contracts overlying $1 6 Under this formula, an opening transaction in a and Exchange Commission (the FLEX Equity series in a stock priced at $40 or more ‘‘Commission’’) the proposed rule to (i) modify the proposed formula contained in would reach the $1 million limit before it would change as described in Items I, II, and Rule 24A.4 applicable to determining the minimum reach the contract size limit, i.e., 250 contracts III below, which Items have been value size for FLEX Equity Options in new series times the multiplier (100) times the stock price to change the minimum contract component from ($40) equals $1 million in underlying value. For a substantially prepared by CBOE. On the originally proposed 100 contracts to 150 FLEX Equity series in a stock priced at less than December 24, 2007, the Exchange filed contracts, and make this change applicable on a $40, the 250 contract size limit applies. 3 4 1 Amendments No. 1 and 2 to the 1 ⁄2-year pilot program basis; (ii) propose changes 7 Under this proposed formula, an opening to the formula applicable to determining the transaction in a FLEX Equity series in a stock priced 7 15 U.S.C. 78f(b)(5). minimum value size in currently-opened series; (iii) at approximately $66.67 or more would reach the include corresponding amendments to Rule 24B.4; $1 million limit before it would reach the contract 8 15 U.S.C. 78s(b)(2). and (iv) provide additional information in the size limit, i.e., 150 contracts times the multiplier 9 17 CFR 200.30–3(a)(12). Purpose section of the filing. (100) times the stock price ($66.67) equals just over 1 15 U.S.C. 78s(b)(1). 5 FLEX Equity Options are flexible exchange- $1 million in underlying value. For a FLEX Equity 2 17 CFR 240.19b–4. traded options contracts which overlie equity series in a stock priced at less than $66.67, the 150 3 Amendment No. 1 replaced the original filing in securities. FLEX Equity Options provide investors contract size limit would apply. its entirety. with the ability to customize basic option features 8 The existing customer base for FLEX Options 4 Amendment No. 2 replaced Amendment No. 1 including size, expiration date, exercise style, and includes both institutional investors and high net in its entirety. The purpose of Amendment 2 was certain exercise prices. worth individuals.

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customers and thus has become overly Equity Option transactions can occur in opening transactions in a currently- restrictive. In particular, the Exchange increments of 100 or more contracts in opened series is smaller than the has recently received numerous requests subsequent opening transactions, the minimum size needed to initially open from broker-dealers representing Exchange believes it is reasonable to the series. Therefore, Exchange believes institutional investors that the permit the initial series opening that this change is necessary for there to minimum value size for opening transaction size to be 150 contracts (or be consistency between the minimum transactions be reduced. $1 million in underlying value, size requirements for new series and In proposing the reduction of the 250 whichever is less). currently-opened series when the contract component to 150 contracts, The Exchange also believes that underlying stock is trading at $100 or CBOE is cognizant of the desire to modifying the minimum opening more. For example, a new FLEX Equity continue to provide the requisite transaction value size in this way will series in a stock trading at $110 could amount of investor protection that the further broaden the base of institutional open with an initial transaction size of minimum opening size requirement was investors that use FLEX Equity Options 91 contracts, i.e., 91 contracts times the originally designed to achieve, on the to manage their trading and investment multiplier (100) times the stock price one hand, and the need for market risk, including investors that currently ($110) equals just over $1 million in participants to have the flexibility to trade in the OTC market for customized underlying value. Once the series is serve their customers’ particular options which, as indicated above, can opened, absent the proposed change, investment needs, on the other hand. As take on contract characteristics similar any further opening transactions would discussed further below, CBOE is also to FLEX Options but for which similar require a minimum contract size of 100 aware of the over-the-counter (‘‘OTC’’) opening size restrictions do not apply. contracts. However, if the initial series market in customized options, which By reducing the minimum opening size opening can occur with a 91 contract can take on contract characteristics requirements for FLEX Equity Options, transaction, the Exchange believes that similar to FLEX Options but for which market participants will have greater it is reasonable to permit the size of similar opening size restrictions do not flexibility in determining whether to subsequent opening transactions in the apply. In light of these considerations, execute their customized options in an series to be for 91 contracts. CBOE believes it is appropriate to exchange environment or in the OTC modify the FLEX Equity Option market. CBOE believes market 2. Statutory Basis minimum opening size requirement in participants benefit from being able to By providing FLEX-participating the manner proposed. By reducing the trade these customized options in an members and their customers greater 250 contract component to 150 exchange environment in several ways, flexibility to trade FLEX Equity Options contracts, the Exchange believes FLEX- including, but not limited to, enhanced by lowering from 250 to 150 the participating members could better efficiency in initiating and closing out minimum number of contracts required serve the needs of investors, while positions; increased market to open a series, the Exchange believes maintaining a requirement substantial transparency; and heightened contra- the proposed rule change is consistent enough to limit participation to party creditworthiness due to the role of with Section 6(b) of the Act 11 in general investors who have adequate resources, The Options Clearing Corporation as and furthers the objectives of Section thereby continuing to provide the issuer and guarantor of FLEX Options. 6(b)(5) of the Act 12 in particular in that Finally, the Exchange is also requisite amount of investor protection it should promote just and equitable proposing to modify the minimum value that the opening size requirement was principles of trade, serve to remove size for an opening transaction in a originally designed to achieve. Also, impediments to and perfect the currently-opened FLEX Equity series limiting the term of the program to a mechanism of a free and open market (other than FLEX Quotes responsive to period of 11⁄2 years would give the and a national market system, and, in a FLEX Request for Quotes). As Exchange time to consider whether it general, protect investors and the public discussed above, presently, the should request that the program should interest. minimum transaction value size for an be extended, expanded, and/or made opening transaction in a currently- B. Self-Regulatory Organization’s permanent. If so, CBOE would seek opened series is 100 contracts. The Statement on Burden on Competition Commission approval. Exchange is proposing to modify the In further support of its proposal, the CBOE does not believe that the minimum size formula to the lesser of Exchange notes that the minimum value proposed rule change will impose any (i) 100 contracts or (ii) the number of size for currently-opened FLEX Equity burden on competition that is not contracts overlying $1 million in the Option series is already set at 100 necessary or appropriate in furtherance underlying securities. This change contracts, and the minimum size for of the purposes of the Act. would only impact those FLEX Equity FLEX Quotes entered in response to a series in which the underlying stock is C. Self-Regulatory Organization’s FLEX Request for Quotes is set at 25 trading at $100 or more.10 Statement on Comments on the contracts (whether in a new series or in The FLEX minimum size Proposed Rule Change Received From a currently-opened series).9 If FLEX requirements have generally provided Members, Participants, or Others that the minimum size for subsequent 9 Specifically, the minimum value size for a No written comments were solicited transaction in any currently-opened FLEX Equity or received with respect to the proposed Option series is 100 contracts in the case of opening (ii) orders to purchase and orders to sell FLEX rule change. transactions and 25 contracts in the case of closing Options entered by Exchange members other than transactions (or any lesser amount in a closing Market-Makers, in each case in response to a III. Date of Effectiveness of the transaction that represents the remaining Request for Quotes. See CBOE Rules 24A.1(h) and Proposed Rule Change and Timing for underlying size, whichever is less). Additionally, 24B.1(k). the minimum value size for a FLEX Quote entered 10 Under this proposed formula, a transaction in Commission Action in response to a Request for Quotes in FLEX Equity a currently-opened FLEX Equity series in a stock Within 35 days of the date of Options is the lesser of 25 contracts or the priced at $100 or more would reach the $1 million publication of this notice in the Federal remaining underlying size in a closing transaction. limit before it would reach the contract size limit, See Exchange Rules 24A.4(a)(4)(iii)–(iv) and i.e., 100 contracts times the multiplier (100) times 24B.4(a)(5)(iii)–(iv). A ‘‘FLEX Quote’’ refers to (i) the stock price ($100) equals $1 million in 11 15 U.S.C. 78(f)(b). FLEX bids and offers entered by Market-Makers and underlying value. 12 15 U.S.C. 78(f)(b)(5).

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Register or within such longer period (i) information from submissions. You proposed rule change is available at as the Commission may designate up to should submit only information that http://www.finra.org, the principal 90 days of such date if it finds such you wish to make available publicly. All offices of FINRA, and the Commission’s longer period to be appropriate and submissions should refer to File Public Reference Room. publishes its reasons for so finding, or Number SR–CBOE–2006–36 and should II. Self-Regulatory Organization’s (ii) as to which CBOE consents, the be submitted on or before February 14, Statement of the Purpose of, and Commission will: 2008. (A) By order approve such proposed Statutory Basis for, the Proposed Rule For the Commission, by the Division of Change rule change, or Trading and Markets, pursuant to delegated (B) Institute proceedings to determine authority. In its filing with the Commission, whether the proposed rule change Nancy M. Morris, FINRA included statements concerning should be disapproved. the purpose of and basis for the Secretary. IV. Solicitation of Comments proposed rule change and discussed any [FR Doc. E8–1178 Filed 1–23–08; 8:45 am] comments it received on the proposed Interested persons are invited to BILLING CODE 8011–01–P rule change. The text of these statements submit written data, views, and may be examined at the places specified arguments concerning the foregoing, in Item IV below. FINRA has prepared including whether the proposed rule SECURITIES AND EXCHANGE COMMISSION summaries, set forth in Sections A, B, change is consistent with the Act. and C below, of the most significant Comments may be submitted by any of [Release No. 34–57164; File No. SR–FINRA– aspects of such statements. the following methods: 2007–041] A. Self-Regulatory Organization’s Electronic Comments Self-Regulatory Organizations; Statement of the Purpose of, and • Use the Commission’s Internet Financial Industry Regulatory Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ Authority, Inc.; Notice of Filing of a Change rules/sro.shtml); or Proposed Rule Change To Amend 1. Purpose • Send an e-mail to rule- NASD Rule 7001B To Adjust the [email protected]. Please include File Percentage of Market Data Revenue Background Number SR–CBOE–2006–36 on the Shared With NASD/Nasdaq TRF The NASD/Nasdaq TRF provides subject line. Participants FINRA members a mechanism for reporting locked-in transactions in Paper Comments January 17, 2008. exchange-listed securities effected • Send paper comments in triplicate Pursuant to Section 19(b)(1) of the otherwise than on an exchange. In to Nancy M. Morris, Secretary, Securities Exchange Act of 1934 connection with the establishment of Securities and Exchange Commission, 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, the NASD/Nasdaq TRF, FINRA and The 100 F Street, NE., Washington, DC notice is hereby given that on December Nasdaq Stock Market, Inc. (‘‘Nasdaq’’) 20549–1090. 21, 2007, Financial Industry Regulatory entered into the Limited Liability All submissions should refer to File Authority, Inc. (‘‘FINRA’’) (f/k/a Company Agreement of the Trade Number SR–CBOE–2006–36. This file National Association of Securities Reporting Facility LLC (‘‘the NASD/ number should be included on the Dealers, Inc. (‘‘NASD’’)), filed with the Nasdaq TRF LLC Agreement’’), a copy of subject line if e-mail is used. To help the Securities and Exchange Commission which appears in the NASD Manual. Commission process and review your (‘‘Commission’’) the proposed rule Under the NASD/Nasdaq TRF LLC comments more efficiently, please use change as described in Items I, II and III Agreement, FINRA, the ‘‘SRO Member,’’ only one method. The Commission will below, which Items have been prepared has sole regulatory responsibility for the post all comments on the Commission’s substantially by FINRA. The NASD/Nasdaq TRF. Nasdaq, the Internet Web site (http://www.sec.gov/ Commission is publishing this notice to ‘‘Business Member,’’ is primarily rules/sro.shtml). Copies of the solicit comments on the proposed rule responsible for the management of the submission, all subsequent change from interested persons. NASD/Nasdaq TRF’s business affairs to amendments, all written statements I. Self-Regulatory Organization’s the extent those activities are not with respect to the proposed rule Statement of the Terms of Substance of inconsistent with the regulatory and change that are filed with the the Proposed Rule Change oversight functions of FINRA. Commission, and all written Additionally, the Business Member is FINRA is proposing to amend NASD communications relating to the obligated to pay the cost of regulation Rule 7001B (Securities Transaction proposed rule change between the and is entitled to the profits and losses, Credit) to modify the percentage of New Commission and any person, other than if any, derived from the operation of the York Stock Exchange (‘‘Tape A’’), those that may be withheld from the NASD/Nasdaq TRF. public in accordance with the American Stock Exchange and regional On July 21, 2006, FINRA filed a provisions of 5 U.S.C. 552, will be exchange (‘‘Tape B’’), and Nasdaq proposed rule change for immediate available for inspection and copying in Exchange (‘‘Tape C’’) market data effectiveness to adopt a new NASD Rule the Commission’s Public Reference revenue shared with FINRA members 7000B Series relating to fees and credits reporting trades to the NASD/Nasdaq Room, 100 F Street, NE., Washington, applicable to the NASD/Nasdaq TRF.4 DC 20549, on official business days Trade Reporting Facility (the ‘‘NASD/ 3 between the hours of 10 a.m. and 3 p.m. Nasdaq TRF’’). The text of the business as the FINRA/Nasdaq TRF. The formal Copies of such filing also will be name change of each Trade Reporting Facility available for inspection and copying at 1 15 U.S.C. 78s(b)(1). (‘‘TRF’’) is pending and once completed, FINRA the principal office of the CBOE. All 2 17 CFR 240.19b–4. will file a separate proposed rule change to reflect 3 Effective July 30, 2007, FINRA was formed those changes in the Manual. comments received will be posted through the consolidation of NASD and the member 4 See Securities Exchange Act Release No. 54353 without change; the Commission does regulatory functions of NYSE Regulation. (August 23, 2006), 71 FR 51255 (August 29, 2006) not edit personal identifying Accordingly, the NASD/Nasdaq TRF is now doing (SR–NASD–2006–090).

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Pursuant to NASD Rule 7001B, FINRA whose trade reports constitute 0.5% or difficulty competing. Nasdaq believes members reporting trades in Tape A, more of the total consolidated volume in that the proposed tiered revenue sharing Tape B 5 and Tape C securities to the those stocks would receive 100% of the program, in which market participants NASD/Nasdaq TRF currently receive a attributable market data revenue, a that make the most use of the NASD/ 50% pro rata credit on market data member with less than 0.5% but at least Nasdaq TRF are eligible for the highest revenue earned by the NASD/Nasdaq 0.25% would receive 80% of the level of revenue sharing with others TRF. At present, the revenue eligible for attributable market data revenue, a receiving progressively lower sharing is the revenue received by the member with less than 0.25% but at percentages, will allow the NASD/ NASD/Nasdaq TRF from the three tape least 0.10% would receive 50%, and a Nasdaq TRF to remain competitive associations after deducting the amount, member with less than 0.1% would not while still funding a portion of its if any, that the NASD/Nasdaq TRF pays be eligible for the program. For Tape C regulatory costs out of market data to the Consolidated Tape Association or stocks, a member whose trade reports revenue. Nevertheless, Nasdaq will be the Nasdaq Securities Information constitute 0.75% or more of the total required to fund a portion of the Processor for capacity usage.6 consolidated volume in those stocks regulatory costs associated with the Proposal to Adjust Securities would receive 100% of the attributable NASD/Nasdaq TRF from Nasdaq’s Transaction Credit market data revenue, a member with general revenues. less than 0.75% but at least 0.25% FINRA is proposing that the FINRA is proposing to amend Rule would receive 80% of the attributable implementation date of the proposed 7001B to base the percentage of market market data revenue, a member with rule change shall be retroactive to data revenue shared with a FINRA less than 0.25% but at least 0.10% January 1, 2008. member reporting trades to the NASD/ would receive 50%, and a member with 2. Statutory Basis Nasdaq TRF on the member’s ‘‘Market less than 0.1% would not be eligible for Share.’’ FINRA proposes to define the program. According to Nasdaq, as FINRA believes that the proposed rule ‘‘Market Share’’ in Rule 7001B as the the Business Member under the NASD/ change is consistent with the provisions percentage calculated by dividing the Nasdaq TRF LLC Agreement, the of Section 15A of the Act,8 in general, total number of shares represented by different percentages required for and with Section 15A(b)(5) of the Act,9 trades reported by a member to the different tapes reflect the current extent in particular, which requires, among NASD/Nasdaq TRF during a given to which participants use the NASD/ other things, that FINRA rules provide calendar quarter by the total number of Nasdaq TRF to report trades in different for the equitable allocation of reasonable shares represented by all trades reported stocks, i.e., comparatively higher dues, fees and other charges among to the Consolidated Tape Association or volumes of trades in Tape C stocks are members and issuers and other persons the Nasdaq Securities Information reported through the NASD/Nasdaq TRF using any facility or system that FINRA Processor, as applicable, during that than in Tape B or Tape A stocks, and operates or controls. FINRA believes quarter. Market Share will be calculated thus for Tape C, the levels of revenue that the proposed rule change is a separately for each tape. sharing are tied to higher market share reasonable and equitable credit Pursuant to the proposed rule change, levels. structure in that it bases the percentage the percentage of Market Share required As the Business Member, Nasdaq has of revenue shared on members’ to receive particular percentages of determined that the proposed changes respective contributions to the revenues revenue will vary among the three tapes. in the percentage of market data revenue of the NASD/Nasdaq TRF, and further Thus, for example, a member whose shared with NASD/Nasdaq TRF Nasdaq has indicated that all regulatory trade reports in NYSE-listed stocks participants may be necessary for costs owed by Nasdaq as the Business constitute 0.25% or more of the total competitive reasons. FINRA recently Member related to the NASD/Nasdaq consolidated volume in those stocks filed proposed rule changes to share TRF that are not funded out of market would receive 100% of the attributable 100% and 75% of the revenues paid data revenue or trade reporting fees will market data revenue, a member with with respect to trades reported to the be funded by Nasdaq general revenues. less than 0.25% but at least 0.15% NASD/NYSE TRF and the NASD/NSX would receive 80% of the attributable B. Self-Regulatory Organization’s TRF, respectively.7 market data revenue, a member with Nasdaq believes that Statement on Burden on Competition less than 0.15% but at least 0.10% market data revenue associated with over-the-counter trade reporting should FINRA does not believe that the would receive 50%, and a member with proposed rule change will impose any less than 0.1% would not be eligible for continue to serve its traditional function of defraying at least a portion of the burden on competition that is not the market data revenue sharing necessary or appropriate in furtherance program. For Tape B stocks, a member regulatory costs associated with the activity and is reluctant to impose the of the purposes of the Act. 5 The proposed rule change would clarify an regulatory costs of the NASD/Nasdaq C. Self-Regulatory Organization’s ambiguity in the current rule. Both Rule 7001B and TRF exclusively on customers that lack Statement on Comments on the the predecessor rule in effect prior to Nasdaq’s a nexus to its operations. Even with Proposed Rule Change Received From separation from FINRA referred to ‘‘Amex’’ and 50% revenue sharing, however, the Members, Participants or Others ‘‘Tape B’’ as synonymous, but in fact the Tape B amount of remaining market data revenue sharing program has always been Written comments were neither revenue is not sufficient to defray the interpreted to include stocks listed on regional solicited nor received. exchanges, such as NYSE Arca, because regulatory costs of the NASD/Nasdaq transactions in such stocks are reported to Tape B. TRF. Without a significant pricing III. Date of Effectiveness of the This ambiguity also exists in the market data change, Nasdaq believes that the NASD/ Proposed Rule Change and Timing for revenue sharing rules relating to the other TRFs, which FINRA will propose to clarify in a separate Nasdaq TRF would have greater Commission Action filing. Within 35 days of the date of 6 The proposed rule change would eliminate the 7 See Securities Exchange Act Release No. 56754 publication of this notice in the Federal deduction for capacity usage. Nasdaq, as the (November 6, 2007), 72 FR 64101 (November 14, Business Member, believes that the amount of the 2007) (SR–NASD–2007–031); Securities Exchange deduction is small and needlessly complicates the Act Release No. 56752 (November 6, 2007), 72 FR 8 15 U.S.C. 78o–3. administration of the revenue sharing program. 64099 (November 14, 2007) (SR–NASD–2007–043). 9 15 U.S.C. 78o–3(b)(5).

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Register or within such longer period (i) information from submissions. You and (C) below, of the most significant as the Commission may designate up to should submit only information that aspects of these statements.2 90 days of such date if it finds such you wish to make publicly available. All (A) Self-Regulatory Organization’s longer period to be appropriate and submissions should refer to File Statement of the Purpose of, and publishes its reasons for so finding, or Number SR–FINRA–2007–041 and Statutory Basis for, the Proposed Rule (ii) as to which FINRA consents, the should be submitted on or before Change Commission will: February 14, 2008. OCC is proposing to amend Rule 805, (A) By order approve such proposed For the Commission, by the Division of rule change; or Trading and Markets, pursuant to delegated which prescribes expiration date (B) Institute proceedings to determine authority.10 exercise procedures including exercise whether the proposed rule change Florence E. Harmon, by exception processing, to reduce from should be disapproved. Deputy Secretary. $.05 to $.01 the threshold amount used to determine the equity options that are IV. Solicitation of Comments [FR Doc. E8–1156 Filed 1–23–08; 8:45 am] deemed to be in the money for purposes Interested persons are invited to BILLING CODE 8011–01–P of exercise by exception processing.3 submit written data, views, and arguments concerning the foregoing, (1) Background SECURITIES AND EXCHANGE including whether the proposed rule OCC has for years maintained an COMMISSION change is consistent with the Act. ‘‘exercise by exception’’ procedure. Comments may be submitted by any of [Release No. 34–57163; File No. SR–OCC– Under that procedure, options that are the following methods: 2007–18] in the money at expiration by more than a specified threshold amount are Electronic Comments Self-Regulatory Organizations; The exercised automatically unless the • Use the Commission’s Internet Options Clearing Corporation; Notice clearing member carrying the position comment form (http://www.sec.gov/ of Filing and Order Granting instructs otherwise. Equity options are rules/sro.shtml); or Accelerated Approval of a Proposed determined to be in the money or not • Send an e-mail to rule- Rule Change Relating to Expiration based on the difference between the [email protected]. Please include File Date Exercise Procedure exercise price and the closing price of Number SR–FINRA–2007–041 on the January 16, 2008. the underlying equity interest on the subject line. Pursuant to Section 19(b)(1) of the last trading day before expiration. In Paper Comments Securities Exchange Act of 1934 each of the last two years, OCC has 1 reduced the threshold amounts for • Send paper comments in triplicate (‘‘Act’’), notice is hereby given that on December 7, 2007, The Options Clearing equity options in order to streamline to Nancy M. Morris, Secretary, expiration processing.4 These changes Securities and Exchange Commission, Corporation (‘‘OCC’’) filed with the Securities and Exchange Commission were implemented at the request of the Station Place, 100 F Street, NE., OCC Roundtable 5 and benefited both Washington, DC 20549–1090. (‘‘Commission’’) the proposed rule change described in Items I and II OCC and clearing members by reducing All submissions should refer to File the time required for the submission of below, which items have been prepared Number SR–FINRA–2007–041. This file exercise instructions on an average primarily by OCC. The Commission is number should be included on the expiration weekend. subject line if e-mail is used. To help the publishing this notice and order to Commission process and review your solicit comments from interested (2) Discussion comments more efficiently, please use persons and to grant accelerated In view of the high options volumes only one method. The Commission will approval to the proposed rule change. experienced in 2007, the OCC post all comments on the Commission’s I. Self-Regulatory Organization’s Roundtable once again recommended Internet Web site (http://www.sec.gov/ Statement of the Terms of Substance of that OCC decrease the threshold rules/sro.shtml). Copies of the the Proposed Rule Change applicable to equity options in an effort to continue to improve expiration submission, all subsequent The proposed rule change would amendments, all written statements reduce the threshold amounts used to 2 The Commission has modified the text of the with respect to the proposed rule determine the equity options that are change that are filed with the summaries prepared by OCC. deemed to be in the money for purposes 3 A conforming change is also being made to Rule Commission, and all written of exercise by exception processing. 1106, which concerns the treatment of open communications relating to the positions following the suspension of a clearing proposed rule change between the II. Self-Regulatory Organization’s member. Commission and any person, other than Statement of the Purpose of, and 4 In September, 2005, the threshold was reduced Statutory Basis for, the Proposed Rule from $.75 to $.25 for equity options in a clearing those that may be withheld from the member’s customers’ account and from $.25 to $.15 public in accordance with the Change for equity options in any other account (i.e., firm provisions of 5 U.S.C. 552, will be In its filing with the Commission, and market makers’ accounts). Securities Exchange available for inspection and copying in Act Release No. 50178 (August 10, 2004), 69 FR OCC included statements concerning 51343 (August 18, 2004) [File No. SR–OCC–2004– the Commission’s Public Reference the purpose of and basis for the 04]. In October, 2006, the threshold became $.05 for Room, 100 F Street, NE., Washington, proposed rule change and discussed any equity options in all account types. Securities DC 20549, on official business days comments it received on the proposed Exchange Act Release No. 54514 (September 26, 2006), 71 FR 58656 (October 4, 2006) [File No. SR– between the hours of 10 a.m. and 3 p.m. rule change. The text of these statements OCC–2006–05]. Copies of such filing also will be may be examined at the places specified 5 OCC’s Roundtable is an OCC sponsored available for inspection and copying at in Item IV below. OCC has prepared advisory group comprised of representatives from the principal office of FINRA. All summaries, set forth in sections (A), (B), OCC’s participant exchanges, OCC, a cross-section comments received will be posted of OCC clearing members, and industry service bureaus. The Roundtable considers operational without change; the Commission does 10 17 CFR 200.30–3(a)(12). improvements that may be made to increase not edit personal identifying 1 15 U.S.C. 78s(b)(1). efficiencies and lower costs in the options industry.

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processing and to reducing operational to the change if supported by the III. Date of Effectiveness of the risks. The Roundtable suggested $.01 as majority of clearing members. Proposed Rule Change and Timing for the new threshold for all accounts. After carefully considering clearing Commission Action As with the other proposed threshold member views on the threshold change, Section 17A(b)(3)(F) of the Act reductions, OCC conducted a survey of OCC has concluded that a $.01 requires, among other things, that the its clearing membership to assess threshold will generally benefit the rules of a clearing agency be designed to support for the change. Survey results majority of clearing members and will promote the prompt and accurate reflected strong support for the change further improve expiration processing. clearance and settlement of securities across the membership.6 Seventy-nine OCC will modify its clearing system to transactions.9 OCC Rule 805 is based on clearing members responded to the provide increased functionality in order the assumption that when an option is survey with 69 clearing members in to lessen the operational burden that in-the-money by at least a minimum favor of the threshold change and 10 may be experienced by the clearing fixed threshold level, most OCC clearing members opposed. Clearing members needing to submit additional members and their customers would members supporting the change ‘‘do not exercise’’ instructions as a choose to exercise the option. The rule confirmed the Roundtable’s view that it result of changing the threshold. has the effect, therefore, of reducing the would significantly reduce the number The clearing member survey also number of exercise instructions that of instructions they are required to asked firms to provide an estimate of the must be submitted to and processed by input on expiration and thereby shorten time needed to accommodate the OCC. As OCC notes in its description of the timeframe for completing threshold change based upon supplied the proposed rule change, if a threshold instructions to OCC. time frames (i.e., 0–3 months or 4–6 amount is set too low, the result could months). The majority of clearing be that some members would have to OCC contacted each clearing member members indicated that they could that opposed the threshold change, submit a greater number of ‘‘do not complete the necessary systems exercise’’ instructions than they would generally mid-size to small retail development and customer notifications clearing members. Their principal have to submit if the threshold amount within six months. OCC contacted every was set at a higher amount. However, concern was that the lowered threshold clearing member that commented on the the Commission is satisfied that by would require them to input more ‘‘do proposed timeframes, and all expressed consulting with an industry advisory not exercise’’ instructions although the view that their efforts would be group, by surveying its clearing some indicated concerns about the need completed in the six month time period. members, and by its analysis, OCC has to educate customers and the possibility The Roundtable has asked that this made a reasoned determination in that commission costs could make an change be implemented no later than deciding to set the threshold amount for exercise unprofitable.7 For the June 2008 expiration. OCC therefore equity options in all account types at approximately half of the 10 clearing requests the Commission to approve this $.01. Furthermore, we note that OCC members opposed to the change, rule filing no later than January 31, indicated that it would modify its expiration exercise reports for the first 2008, in order for OCC to provide clearing system to provide increase eight months of 2007 reflected that there sufficient advance notice to clearing functionality in order to lessen the were about 20 to 70 line items of members that it has been approved for operational burden on clearing members positions that were in the money but not implementation. OCC further requests that experience increased ‘‘do not exercised because the in the money that it be authorized to implement the exercise’’ instructions as a result of the amount was less than the current threshold change thereafter based upon new threshold amount. Accordingly, 8 threshold level. As a result, OCC its assessment of clearing member because the proposed rule change is believes these clearing members would readiness. OCC will provide at least ten designed to reduce the amount of most likely have to input more ‘‘do not days advance notice to clearing processing required for in-the-money exercise’’ instructions. The remaining members of the effective date of the new equity options, we find that it is clearing members carried positions in threshold amounts. Such notice will be designed to promote the prompt and fewer than ten expiring series that were provided through information accurate clearance and settlement of in the money by less than the current memoranda and other forms of securities transactions. threshold, leading OCC to conclude that electronic notice such as email. OCC has requested that the these clearing members would have a OCC believes that the proposed rule Commission approve the proposed rule negligible increase in processing time change is consistent with Section 17A of at least six months prior to the June for submitting instructions not to the Act because it facilitates the prompt 2008 expiration. The Commission finds exercise. All clearing members, and accurate processing of exercise good cause for approving the proposed however, agreed that they could adapt information on expiration. rule change prior to the thirtieth day (B) Self-Regulatory Organization’s after publication of notice because such 6 OCC also contacted clearing members that did Statement on Burden on Competition approval will allow OCC to give its not respond to its survey. These clearing members clearing members sufficient time to expressed no opinion on the matter. OCC does not believe that the 7 As noted, clearing members are able to instruct complete the necessary system OCC not to exercise an expiring equity option even proposed rule change would impose any developments and customer though the option is in the money by more than the burden on competition. notifications before OCC’s scheduled exercise by exception threshold. Clearing members implementation for the June 2008 could, for example, choose not to exercise an (C) Self-Regulatory Organization’s expiring equity option that is in the money where Statement on Comments on the expiration. the in the money amount is less than the applicable Proposed Rule Change Received From IV. Solicitation of Comments commission costs. Members, Participants, or Others 8 OCC continually reviews expiration exercise Interested persons are invited to reports of clearing members to monitor exercise Written comments were not and are submit written data, views, and activity. The referenced information, which remained consistent across expirations during this not intended to be solicited with respect arguments concerning the foregoing, period and thereafter was obtained in the course of to the proposed rule change, and none performing such reviews. have been received. 9 15 U.S.C. 78q–1(b)(3)(F).

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including whether the proposed rule particular Section 17A of the Act and Yazoo. change is consistent with the Act. the rules and regulations thereunder.10 Alabama: Lamar and Pickens. Comments may be submitted by any of It is therefore ordered, pursuant to The Interest Rates are: the following methods: Section 19(b)(2) of the Act, that the proposed rule change (File No. SR– Percent Electronic Comments OCC–2007–18) be and hereby is • Use the Commission’s Internet approved. Homeowners With Credit Available comment form (http://www.sec.gov/ Elsewhere ...... 5.875 For the Commission by the Division of Homeowners Without Credit Avail- rules/sro.shtml) or Trading and Markets, pursuant to delegated • able Elsewhere ...... 2.937 Send an e-mail to rule- authority.11 Businesses With Credit Available [email protected]. Please include File Florence E. Harmon, Elsewhere ...... 8.000 Number SR–OCC–2007–18 on the Deputy Secretary. Businesses & Small Agricultural subject line. [FR Doc. E8–1155 Filed 1–23–08; 8:45 am] Cooperatives Without Credit Available Elsewhere ...... 4.000 Paper Comments BILLING CODE 8011–01–P Other (Including Non-Profit Organi- • Send paper comments in triplicate zations) With Credit Available to Nancy M. Morris, Secretary, Elsewhere ...... 5.250 Securities and Exchange Commission, SMALL BUSINESS ADMINISTRATION Businesses And Non-Profit Organi- zations Without Credit Available 100 F Street, NE., Washington, DC [Disaster Declaration #11154 and #11155] Elsewhere ...... 4.000 20549–1090. Mississippi Disaster # MS–00014 All submissions should refer to File The number assigned to this disaster Number SR–OCC–2007–18. This file AGENCY: U.S. Small Business for physical damage is 11154 C and for number should be included on the Administration. economic injury is 11155 0. subject line if e-mail is used. To help the ACTION: Notice. The States which received EIDL Commission process and review your Declaration # are Mississippi and comments more efficiently, please use SUMMARY: This is a notice of an Alabama. only one method. The Commission will Administrative declaration of a disaster (Catalog of Federal Domestic Assistance post all comments on the Commission’s for the State of Mississippi dated Numbers 59002 and 59008) Internet Web site (http://www.sec.gov/ 01/16/2008. rules/sro.shtml). Copies of the Incident: Severe Storms And Steven C. Preston, submission, all subsequent Tornadoes. Administrator. amendments, all written statements Incident Period: 01/10/2008. [FR Doc. E8–1218 Filed 1–23–08; 8:45 am] with respect to the proposed rule Effective Date: 01/16/2008. BILLING CODE 8025–01–P change that are filed with the Physical Loan Application Deadline Commission, and all written Date: 03/17/2008. communications relating to the Economic Injury (EIDL) Loan SMALL BUSINESS ADMINISTRATION proposed rule change between the Application Deadline Date: 10/16/2008. [Disaster Declaration #11145] Commission and any person, other than ADDRESSES: Submit completed loan those that may be withheld from the applications to: U.S. Small Business Missouri Disaster Number MO–00019 public in accordance with the Administration, Processing and AGENCY: U.S. Small Business provisions of 5 U.S.C. 552, will be Disbursement Center, 14925 Kingsport Administration. available for inspection and copying in Road, Fort Worth, TX 76155. ACTION: Amendment 1. the Commission’s Public Reference FOR FURTHER INFORMATION CONTACT: A. Room, 100 F Street, NE., Washington, Escobar, Office of Disaster Assistance, SUMMARY: This is an amendment of the DC 20549, on official business days U.S. Small Business Administration, between the hours of 10 a.m. and 3 p.m. Presidential declaration of a major 409 3rd Street, SW., Suite 6050, disaster for Public Assistance Only for Copies of such filing also will be Washington, DC 20416. available for inspection and copying at the State of Missouri (FEMA–1736–DR), SUPPLEMENTARY INFORMATION: the principal office of OCC and on Notice is dated 12/27/2007. Incident: Severe Winter Storms. OCC’s Web site at http:// hereby given that as a result of the Incident Period: 12/06/2007 through www.theocc.com/publications/rules/ Administrator’s disaster declaration, 12/15/2007. proposed_changes/sr_occ_07_18.pdf. applications for disaster loans may be All comments received will be posted filed at the address listed above or other DATES: Effective Date: 12/15/2007. without change; the Commission does locally announced locations. Physical Loan Application Deadline not edit personal identifying The following areas have been Date: 02/25/2008. information from submissions. You determined to be adversely affected by ADDRESSES: Submit completed loan should submit only information that the disaster: applications to: U.S. Small Business you wish to make available publicly. All Primary Counties: Administration, Processing and submissions should refer to File Holmes and Lowndes. Disbursement Center, 14925 Kingsport Number SR–OCC–2007–18 and should Contiguous Counties: Road, Fort Worth, TX 76155. be submitted on or before February 14, Mississippi: Attala, Carroll, Clay, FOR FURTHER INFORMATION CONTACT: A. 2008. Humphreys, Leflore, Madison, Escobar, Office of Disaster Assistance, Monroe, Noxubee, Oktibbeha, and U.S. Small Business Administration, IV. Conclusion 409 3rd Street, SW., Suite 6050, On the basis of the foregoing, the 10 In approving the proposed rule change, the Washington, DC 20416. Commission considered the proposal’s impact on Commission finds that the proposed SUPPLEMENTARY INFORMATION efficiency, competition and capital formation. 15 : The notice rule change is consistent with the U.S.C. 78c(f). of the President’s major disaster requirements of the Act and in 11 17 CFR 200.30–3(a)(12). declaration for Private Non-Profit

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organizations in the State of Missouri, Percent SMALL BUSINESS ADMINISTRATION dated 12/27/2007, is hereby amended to establish the incident period for this Businesses and Non-Profit Orga- [Disaster Declaration #11124 and #11125] disaster as beginning 12/06/2007 and nizations Without Credit Avail- able Elsewhere ...... 4.000 Washington Disaster Number WA– continuing through 12/15/2007. 00015 All other information in the original declaration remains unchanged. The number assigned to this disaster AGENCY: U.S. Small Business for physical damage is 11156. (Catalog of Federal Domestic Assistance Administration. Number 59008) (Catalog of Federal Domestic Assistance ACTION: Amendment 5. Number 59008) Herbert L. Mitchell, SUMMARY: This is an amendment of the James E. Rivera, Associate Administrator for Disaster Presidential declaration of a major Assistance. Acting Associate Administrator for Disaster disaster for the State of Washington Assistance. [FR Doc. E8–1125 Filed 1–23–08; 8:45 am] (FEMA–1734–DR ), dated [FR Doc. E8–1127 Filed 1–23–08; 8:45 am] BILLING CODE 8025–01–P 12/09/2007. BILLING CODE 8025–01–P Incident: Severe Storms, Flooding, Landslides, and Mudslides. SMALL BUSINESS ADMINISTRATION Incident Period: 12/01/2007 through SMALL BUSINESS ADMINISTRATION [Disaster Declaration #11156] 12/17/2007. DATES: Effective Date: 01/09/2008. [Disaster Declaration #11148 and #11149] Nebraska Disaster #NE–00018 Physical Loan Application Deadline AGENCY: U.S. Small Business Nevada Disaster Number NV–00008 Date: 02/07/2008. Administration. EIDL Loan Application Deadline Date: AGENCY: U.S. Small Business 09/09/2008. ACTION: Notice. Administration. ADDRESSES: Submit completed loan SUMMARY: This is a Notice of the ACTION: Amendment 1. applications to: U.S. Small Business Presidential declaration of a major Administration Processing And disaster for Public Assistance Only for SUMMARY: This is an amendment of the Disbursement Center, 14925 Kingsport the State of Nebraska (FEMA–1739–DR), Presidential declaration of a major Road, Fort Worth, TX 76155. dated 01/11/2008. disaster for the State of Nevada (FEMA– FOR FURTHER INFORMATION CONTACT: A. Incident: Severe Winter Storm. 1738–DR), dated 01/08/2008. Escobar, Office of Disaster Assistance, Incident Period: 12/10/2007 through Incident: Severe Winter Storms and U.S. Small Business Administration, 12/12/2007. Flooding. 409 3rd Street, SW, Suite 6050, DATES: Effective Date: 01/11/2008. Incident Period: 01/05/2008 and Washington, DC 20416. Physical Loan Application Deadline continuing through 01/10/2008. SUPPLEMENTARY INFORMATION: The notice Date: 03/11/2008. Effective Date: 01/10/2008. of the Presidential disaster declaration ADDRESSES: Submit completed loan Physical Loan Application Deadline for the State of Washington, dated applications to: U.S. Small Business Date: 03/10/2008. 12/09/2007 is hereby amended to Administration, Processing and Economic Injury (EIDL) Loan include the following areas as adversely Disbursement Center, 14925 Kingsport Application Deadline Date: 10/08/2008. affected by the disaster: Road, Fort Worth, TX 76155. ADDRESSES: Submit completed loan Primary Counties: FOR FURTHER INFORMATION CONTACT: A. applications to: U.S. Small Business Wahkiakum. Escobar, Office of Disaster Assistance, Administration, Processing and Contiguous Counties: U.S. Small Business Administration, Disbursement Center, 14925 Kingsport Oregon: Clatsop, Columbia. 409 3rd Street, SW., Suite 6050, Road, Fort Worth, TX 76155. Washington, DC 20416. All other information in the original FOR FURTHER INFORMATION CONTACT: A. declaration remains unchanged. SUPPLEMENTARY INFORMATION: Notice is Escobar, Office of Disaster Assistance, hereby given that as a result of the (Catalog of Federal Domestic Assistance U.S. Small Business Administration, Numbers 59002 and 59008) President’s major disaster declaration on 409 3rd Street, SW., Suite 6050, 01/11/2008, Private Non-Profit Washington, DC 20416. Herbert L. Mitchell, organizations that provide essential SUPPLEMENTARY INFORMATION: The notice Associate Administrator for Disaster services of a governmental nature may of the President’s major disaster Assistance. file disaster loan applications at the declaration for the State of Nevada, [FR Doc. E8–1126 Filed 1–23–08; 8:45 am] address listed above or other locally dated 01/08/2008 is hereby amended to BILLING CODE 8025–01–P announced locations. The following areas have been establish the incident period for this determined to be adversely affected by disaster as beginning 01/05/2008 and the disaster: continuing through 01/10/2008. DEPARTMENT OF STATE All other information in the original Primary Counties: Gage, Jefferson, [Public Notice 6067] declaration remains unchanged. Johnson, Nemaha, Otoe, Pawnee, Richardson, Thayer. (Catalog of Federal Domestic Assistance Notice of Receipt of Application for a The Interest Rates are: Numbers 59002 and 59008). Presidential Permit To Construct, Herbert L. Mitchell, Operate, and Maintain a New Border Percent Crossing Facility on the U.S.-Mexico Associate Administrator for Disaster Assistance. Border at San Diego, CA and Tijuana, Other (Including Non-Profit Orga- Baja California, Mexico nizations) With Credit Available [FR Doc. E8–1216 Filed 1–23–08; 8:45 am] Elsewhere ...... 5.250 BILLING CODE 8025–01–P AGENCY: Department of State.

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ACTION: Notice. DEPARTMENT OF STATE Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. 6501 note, et [Public Notice 6069] SUMMARY: The Department of State seq.), Delegation of Authority No. 234 of hereby gives notice that, on January 14, Culturally Significant Object Imported October 1, 1999, Delegation of Authority 2008, it received an application for a for Exhibition Determinations: No. 236 of October 19, 1999, as Presidential Permit to authorize the ‘‘Khatchkar of Lori’’ amended, and Delegation of Authority construction, operation, and No. 257 of April 15, 2003 [68 FR 19875], maintenance of a new border crossing SUMMARY: Notice is hereby given of the I hereby determine that the objects in facility on the U.S.-Mexico border at following determinations: Pursuant to the exhibition ‘‘Rococo: The Continuing San Diego, California and Tijuana, Baja the authority vested in me by the Act of Curve, 1730–2008, imported from October 19, 1965 (79 Stat. 985; 22 U.S.C. California, Mexico. The new crossing abroad for temporary exhibition within 2459), Executive Order 12047 of March would be approximately two miles east the United States, are of cultural 27, 1978, the Foreign Affairs Reform and of the current Otay Mesa port of entry, significance. The objects are imported Restructuring Act of 1998 (112 Stat. pursuant to loan agreements with the and would connect to existing roads via 2681, et seq.; 22 U.S.C. 6501 note, et foreign owner or custodian. I also a proposed new State highway. The seq.), Delegation of Authority No. 234 of determine that the exhibition or display California Department of Transportation October 1, 1999, Delegation of Authority of the exhibit objects at the Cooper- (‘‘Caltrans’’), a branch of the California No. 236 of October 19, 1999, as Hewitt, National Design Museum, State government, filed this application amended, and Delegation of Authority Smithsonian Institution, New York, NY, and is acting as the project’s sponsor. No. 257 of April 15, 2003 [68 FR 19875], from on or about March 7, 2008, until The Department of State’s jurisdiction I hereby determine that the object on or about July 7, 2008, and at possible over this application is based upon ‘‘Khatchkar of Lori’’, imported from additional exhibitions or venues yet to Executive Order 11423 of August 16, abroad for temporary exhibition within be determined, is in the national 1968, as amended. As provided in E.O. the United States, is of cultural interest. Public Notice of these 11423, the Department is circulating significance. The object is imported Determinations is ordered to be this application to relevant Federal and pursuant to a loan agreement with the published in the Federal Register. State agencies for review and comment. foreign owner or custodian. I also FOR FURTHER INFORMATION CONTACT: For Under E.O. 11423, the Department has determine that the exhibition or display further information, including a list of the responsibility to determine, taking of the exhibit object at The Metropolitan the exhibit objects, contact Julie into account input from these agencies Museum of Art, New York, New York, Simpson, Attorney-Adviser, Office of and other stakeholders, whether this from on or about September 15, 2008, the Legal Adviser, U.S. Department of proposed border crossing is in the U.S. until on or about February 15, 2009, and State (telephone: 202–453–8050). The national interest. at possible additional exhibitions or address is U.S. Department of State, SA– venues yet to be determined, is in the DATES: Interested members of the public 44, 301 4th Street, SW., Room 700, national interest. Public Notice of these Washington, DC 20547–0001. are invited to submit written comments Determinations is ordered to be Dated: January 16, 2008. regarding this application on or before published in the Federal Register. April 23, 2008 to Mr. Daniel Darrach, C. Miller Crouch, FOR FURTHER INFORMATION CONTACT: For U.S.-Mexico Border Affairs Coordinator, further information, including a list of Principal Deputy Assistant Secretary for via e-mail at WHA- Educational and Cultural Affairs, Department the exhibit objects, Wolodymyr of State. [email protected] or by mail at Sulzynsky, Attorney-Adviser, Office of [FR Doc. E8–1201 Filed 1–23–08; 8:45 am] WHA/MEX—Room 4258, Department of the Legal Adviser, U.S. Department of State, 2201 C St., NW., Washington, DC State (telephone: 202/453–8050). The BILLING CODE 4710–05–P 20520. address is U.S. Department of State, SA– FOR FURTHER INFORMATION CONTACT: Mr. 44, 301 4th Street, SW., Room 700, DEPARTMENT OF STATE Daniel Darrach, U.S.-Mexico Border Washington, DC 20547–0001. [Public Notice 6070] Affairs Coordinator, via e-mail at WHA- Dated: January 17, 2008. [email protected]; by phone at C. Miller Crouch, Culturally Significant Objects Imported 202–647–9894; or by mail at WHA/ Principal Deputy Assistant Secretary for for Exhibition Determinations: ‘‘Works MEX—Room 4258, Department of State, Educational and Cultural Affairs, Department by Frans Hals and Philips 2201 C St., NW., Washington, DC 20520. of State. Wouwerman’’ General information about Presidential [FR Doc. E8–1204 Filed 1–23–08; 8:45 am] SUMMARY: Notice is hereby given of the Permits is available on the Internet at BILLING CODE 4710–05–P http://www.state.gov/p/wha/rt/permit/. following determinations: Pursuant to the authority vested in me by the Act of SUPPLEMENTARY INFORMATION: This DEPARTMENT OF STATE October 19, 1965 (79 Stat. 985; 22 U.S.C. application and related environmental 2459), Executive Order 12047 of March assessment documents are available for [Public Notice 6068] 27, 1978, the Foreign Affairs Reform and review in the Office of Mexican Affairs, Culturally Significant Objects Imported Restructuring Act of 1998 (112 Stat. Border Affairs Unit, Department of for Exhibition Determinations: Rococo: 2681, et seq.; 22 U.S.C. 6501 note, et State, during normal business hours. The Continuing Curve, 1730–2008 seq.), Delegation of Authority No. 234 of October 1, 1999, Delegation of Authority Dated: January 17, 2008. SUMMARY: Notice is hereby given of the No. 236 of October 19, 1999, as John Dickson, following determinations: Pursuant to amended, and Delegation of Authority Director, Office of Mexican Affairs, the authority vested in me by the Act of No. 257 of April 15, 2003 [68 FR 19875], Department of State. October 19, 1965 (79 Stat. 985; 22 U.S.C. I hereby determine that the works by [FR Doc. E8–1217 Filed 1–23–08; 8:45 am] 2459), Executive Order 12047 of March Frans Hals and Philips Wouwerman, BILLING CODE 4710–29–P 27, 1978, the Foreign Affairs Reform and imported from abroad for temporary

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exhibition within the United States, are Surface Transportation Infrastructure necessary in order to enhance safety in of cultural significance. The objects are Financing Commission and charged it air commerce and the DOT policies and imported pursuant to loan agreements with analyzing the future highway and procedures to seek public participation with the foreign owners or custodians. transit needs and the finances of the in that process. I also determine that the exhibition or Highway Trust Fund and with making This meeting is part of the Rotorcraft display of the exhibit objects at the J. recommendations regarding alternative Directorate’s initiative and supports one Paul Getty Museum, Los Angeles, CA, approaches to financing transportation of the top safety objectives of the FAA from on or about February 4, 2008, until infrastructure. Flight Plan to reduce the number of fatal on or about May 25, 2010, and at Notice of Meeting Location and Time: accidents in general aviation. At this possible additional exhibitions or The Commissioners have agreed to hold meeting, we will brief attendees on venues yet to be determined, is in the their eighth meeting from 8:30 a.m. to 4 some of the FAA’s initiatives intended national interest. Public Notice of these p.m. on Tuesday, February 12, 2008. to reduce rotorcraft accidents, including Determinations is ordered to be The meeting will be open to the public rotorcraft accident prevention outreach published in the Federal Register. and is scheduled to take place at the programs and the use of Night Vision FOR FURTHER INFORMATION CONTACT: For APS Corporate Office, Two Arizona Imaging Systems (NVIS). You will have further information, including a list of Center, 400 N. 5th Street, Phoenix, an opportunity to propose safety- the exhibit objects, contact Richard Arizona 85004, in Conference Room enhancing recommendations and to Lahne, Attorney-Adviser, Office of the CHQ2 South. recommend how the FAA should Legal Adviser, U.S. Department of State If you need accommodations because implement strategies that will help (telephone: 202/453–8058). The address of a disability or require additional reduce rotorcraft accidents. Attendance is U.S. Department of State, SA–44, 301 information to attend these meetings, is open to all interested persons, but 4th Street, SW., Room 700, Washington, please contact John V. Wells, Chief will be limited to the space available. DC 20547–0001. Economist, U.S. Department of Issued in Fort Worth, Texas, on January 15, Transportation, (202) 366–9224, 2008. Dated: January 16, 2008. [email protected]. David A. Downey, C. Miller Crouch, Issued on this 10th day of January, 2008. Manager, Rotorcraft Directorate, Aircraft Principal Deputy Assistant Secretary for Certification Service. Educational and Cultural Affairs, Department John V. Wells, of State. Chief Economist, U.S. Department of [FR Doc. E8–1227 Filed 1–23–08; 8:45 am] [FR Doc. E8–1203 Filed 1–23–08; 8:45 am] Transportation, Designated Federal Official. BILLING CODE 4910–13–P BILLING CODE 4710–05–P [FR Doc. 08–263 Filed 1–23–08; 8:45 am] BILLING CODE 4910–9X–M DEPARTMENT OF TRANSPORTATION

DEPARTMENT OF TRANSPORTATION DEPARTMENT OF TRANSPORTATION Federal Highway Administration [Docket No. OST–2007–27407 Environmental Impact Statement: Federal Aviation Administration Mariposa County, CA National Surface Transportation Infrastructure Financing Commission FAA (Aircraft Certification Service) AGENCY: Federal Highway ‘‘Meet the Regulators’’ Information Administration (FHWA), DOT. AGENCY: Department of Transportation Sharing and Listening Session ACTION: Notice of Intent. (DOT). AGENCY: Federal Aviation ACTION: SUMMARY: The FHWA, on behalf of the Notice of meeting location and Administration (FAA), DOT. time. California Department of Transportation ACTION: Notice of meeting. (Caltrans), is issuing this notice to SUMMARY: This notice lists the location SUMMARY: advise the public that an environmental and time of the eighth meeting of the This notice announces a meeting to discuss various FAA impact statement (EIS) will be prepared National Surface Transportation for a proposed highway project in Infrastructure Financing Commission. rotorcraft safety initiatives and to gather any relevant information that will help Mariposa County, California. FOR FURTHER INFORMATION CONTACT: John to reduce general aviation rotorcraft FOR FURTHER INFORMATION CONTACT: V. Wells, Chief Economist, U.S. accidents. Juergen Vespermann, Chief, San Joaquin Department of Transportation, (202) Valley Environmental Analysis Branch, 366–9224, [email protected]. DATES: The meeting will be on February Caltrans, 2015 East Shields Avenue, 26, 2008, 10 a.m.–12 noon CST. SUPPLEMENTARY INFORMATION: By Suite 100, Fresno CA, 93726, E-mail at Federal Register Notice dated March 12, ADDRESSES: The meeting is in [email protected], 2007, and in accordance with the conjunction with Heli-Expo at the telephone at (559) 243–8157. requirements of the Federal Advisory George Brown Convention Center, Room SUPPLEMENTARY INFORMATION: Effective Committee Act (‘‘FACA’’) (5 U.S.C. App. 350 (A, B, D, and E), 1001 Avendia de July 1, 2007, the FHWA assigned, and 2) and the Safe, Accountable, Flexible, las Americas, Houston, Texas. Caltrans assumed, environmental Efficient Transportation Equity Act: A FOR FURTHER INFORMATION CONTACT: responsibilities for this project pursuant Legacy for Users (‘‘SAFETEA–LU’’) Jorge Castillo, Safety Management to 23 U.S.C. 327. Caltrans will prepare (Pub. L. 109–59, 119 Stat. 1144), the Group, ASW–112, 2601 Meacham an EIS on a proposal for reopening and U.S. Department of Transportation (the Boulevard, Fort Worth, TX 76137, restoring full access to the section of ‘‘Department’’) issued a notice of intent telephone (817) 222–5112, or by e-mail State Route 140 damaged by the to form the National Surface at [email protected]. Ferguson rockslide in Mariposa County, Transportation Infrastructure Financing SUPPLEMENTARY INFORMATION: The California. The project is located on Commission (the ‘‘Financing meeting is announced pursuant to 49 State Route 140 from 8 miles east of Commission’’.) Section 11142(a) of U.S.C. 40113 and 49 U.S.C. 44701 to Briceburg, post mile 42.0, to SAFETEA–LU established the National take actions the FAA considers approximately 7.6 miles west of El

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Portal, post mile 42.7 in Mariposa 2007. The circulation period was a 45- ADDRESSES: You may submit comments County, California. The total length of day review that ended on January 3, [identified by DOT Docket No. NHTSA– the project is 0.7 mile. This project is 2008. Based on agency and public 2008–0010] by any of the following proposing the following build comments, Caltrans has decided to methods: alternatives: begin the preparation of an EIS. Scoping • Federal eRulemaking Portal: Go to • Alternative C (Open-Cut meetings and hearings were previously http://www.regulations.gov. Follow the Realignment) would realign the held during May, June, and November online instructions for submitting highway to the northeast, spanning the of 2007. The meetings and hearings comments. Merced River and bypassing the were held at Mariposa and El Portal, • Mail: Docket Management Facility: rockslide. State Route 140 would cut California. U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building through the mountain across from the To ensure that the full range of issues Ground Floor, Room W12–140, rockslide and then span back across the related to this proposed action are Washington, DC 20590–0001. river where it would meet the existing addressed and all significant issues • Hand Delivery or Courier: West alignment. Two bridges would be identified, comments and suggestions Building Ground Floor, Room W12–140, constructed to cross the river. are invited from all interested parties. • 1200 New Jersey Avenue, SE., between Alternative T (Tunnel Realignment) Comments or questions concerning this 9 a.m. and 5 p.m. ET, Monday through would realign the highway to the proposed action and the EIS should be Friday, except Federal holidays. northeast, spanning the Merced River directed to Caltrans at the address Telephone: 1–800–647–5527. and bypassing the rockslide. State Route provided above. 140 would tunnel 725 feet through the • Fax: 202–493–2251. mountain across from the rockslide and (Catalog of Federal Domestic Assistance Instructions: All submissions must then span back across the river where it Program Number 20.205, Highway Planning include the agency name and docket and Construction. The regulations number for this proposed collection of would meet the existing alignment. Two implementing Executive Order 12372 bridges would be constructed to cross regarding intergovernmental consultation on information. Note that all comments the river. Federal programs and activities apply to this received will be posted without change • Alternative S (Viaduct Realignment) program.) to http://www.regulations.gov, including any personal information provided. would realign the highway to the Issued on: January 16, 2008. northeast, spanning the Merced River Please see the Privacy Act heading Nancy Bobb, with two bridges and bypassing the below. rockslide with a hillside viaduct and Director, State Programs, Federal Highway Privacy Act: Anyone is able to search Administration, Sacramento, California. retaining wall. the electronic form of all comments • No-Build Alternative would leave [FR Doc. E8–1142 Filed 1–23–08; 8:45 am] received into any of our dockets by the State Route 140 damaged and blocked BILLING CODE 4910–22–P name of the individual submitting the by the Ferguson rockslide. As a result of comment (or signing the comment, if the No-Build Alternative, the temporary submitted on behalf of an association, DEPARTMENT OF TRANSPORTATION detour would become the permanent business, labor union, etc.). You may State Route 140 alignment. The current National Highway Traffic Safety review DOT’s complete Privacy Act vehicle length restrictions would remain Administration Statement in the Federal Register in place along with the traffic signals published on April 11, 2000 (65 FR controlling the single-lane access [U.S. DOT Docket Number NHTSA–2008– 19477–78) or you may visit http:// through the detour. The structures for 0010] DocketInfo.dot.gov. the temporary detour were constructed Docket: For access to the docket to Reports, Forms, and Recordkeeping read background documents or during a declared emergency and were Requirements designed as a temporary solution to the comments received, go to http:// closure of State Route 140. These AGENCY: National Highway Traffic www.regulations.gov or the street structures would not meet standard Safety Administration (NHTSA), address listed above. Follow the online design features nor would the detour Department of Transportation. instructions for accessing the dockets. meet the purpose and need of the ACTION: Request for public comment on FOR FURTHER INFORMATION CONTACT: project. proposed collection of information. Walter Culbreath at the National Letters describing the proposed action Highway Traffic Safety Administration, and soliciting comments will be sent to SUMMARY: Before a Federal agency can Office of the Chief Information Officer, appropriate Federal, State, Participating collect certain information from the Room W51–204, 1200 New Jersey Agencies, the American Indian Council public, it must receive approval from Avenue, SW., Washington, DC 20590. of Mariposa County, the Yosemite-Mono the Office of Management and Budget Mr. Culbreath’s telephone number is Lake Paiute Indian Community and (OMB). Under procedures established (202) 366–1566. Please identify the local agencies, and to private by the Paperwork Reduction Act of relevant collection of information by organizations and citizens who have 1995, before seeking OMB approval, referring to its OMB Control Number. previously expressed or are known to Federal agencies must solicit public SUPPLEMENTARY INFORMATION: Under the have interest in this proposal. Public comment on proposed collections of Paperwork Reduction Act of 1995, hearings will be held in Mariposa and information, including extensions and before an agency submits a proposed El Portal, California. Public notice will reinstatement of previously approved collection of information to OMB for be given of the time and place of the collections. approval, it must first publish a hearings. The draft EIS will be available This document describes a previously document in the Federal Register for public and agency review and approved collection of information for providing a 60-day comment period and comment prior to the public hearings. which NHTSA intends to seek OMB otherwise consult with members of the An Environmental Assessment was approval for an extension. public and affected agencies concerning prepared and then circulated for agency DATES: Comments must be received on each proposed collection of information. and public review on November 19, or before March 24, 2008. The OMB has promulgated regulations

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describing what must be included in Estimated Total Annual Burden: telephone number is (202) 366–0846. such a document. Under OMB’s 13,468. Her fax number is (202) 493–2290. regulation (at 5 CFR 1320.8(d)), an Comments are invited on: Whether SUPPLEMENTARY INFORMATION: In a agency must ask for public comment on the proposed collection of information petition dated October 22, 2007, the following: is necessary for the proper performance Hyundai-Kia America Technical Center, (i) Whether the proposed collection of of the functions of the Department, Inc., on behalf of Hyundai-Kia Motors information is necessary for the proper including whether the information will (Hyundai) requested an exemption from performance of the functions of the have practical utility; the accuracy of the parts-marking requirements of the agency, including whether the the Department’s estimate of the burden Theft Prevention Standard (49 CFR Part information will have practical utility; of the proposed information collection; 541) for the Hyundai Genesis vehicle (ii) The accuracy of the agency’s ways to enhance the quality, utility and line beginning with MY 2009. The estimate of the burden of the proposed clarity of the information to be petition requested an exemption from collection of information, including the collected; and ways to minimize the parts-marking pursuant to 49 CFR Part validity of the methodology and burden of the collection of information 543, Exemption from Vehicle Theft assumptions used; on respondents, including the use of Prevention Standard, based on the (iii) How to enhance the quality, automated collection techniques or installation of an antitheft device as utility, and clarity of the information to other forms of information technology. standard equipment for an entire be collected; vehicle line. (iv) How to minimize the burden of Issued on: January 17, 2008. Under § 543.5(a), a manufacturer may the collection of information on those Margaret O’Brien, petition NHTSA to grant an exemption who are to respond including the use of Chief Information Officer. for one of its vehicle lines per year. appropriate automated, electronic, [FR Doc. E8–1131 Filed 1–23–08; 8:45 am] Hyundai has petitioned the agency to mechanical, or other technological BILLING CODE 4910–59–P grant an exemption for its Genesis collection techniques or other forms of vehicle line beginning with MY 2009. In information technology, e.g., permitting its petition, Hyundai provided a electronic submission of responses. DEPARTMENT OF TRANSPORTATION In compliance with these detailed description and diagram of the requirements, NHTSA asks for public National Highway Traffic Safety identity, design, and location of the comments on the following proposed Administration components of the antitheft device for collection of information. the Genesis vehicle line. Hyundai will Petition for Exemption From the install its passive antitheft device as SUPPLEMENTARY INFORMATION: Vehicle Theft Prevention Standard; standard equipment on the vehicle line. National Highway Traffic Safety Hyundai-Kia America Technical Center, Features of the antitheft device will Administration Inc. include a passive immobilizer consisting of an EMS (engine control Title: Generic Clearance for Customer AGENCY: National Highway Traffic unit), SMARTRA 3 (immobilizer unit), Surveys. Safety Administration (NHTSA) an antenna coil and transponder OMB Number: 2127–0579. Department of Transportation (DOT). Type of Request: Extension of a ignition keys. Additionally, the Hyundai ACTION: Grant of petition for exemption. currently approved information Genesis will have a standard alarm system which will monitor all the doors, collection. SUMMARY: This document grants in full Abstract: Executive Order 12862 the petition of Hyundai-Kia Motors the trunk and the hood of the vehicle. mandates that agencies survey their Corporation (Hyundai) in accordance The audible and visual alarms are customers to identify the kind and with § 543.9(c)(2) of 49 CFR Part 543, activated when an unauthorized person quality of services they want and their Exemption from the Theft Prevention attempts to enter or move the vehicle by level of satisfaction with existing Standard, for the Hyundai Genesis unauthorized means. Hyundai’s services. Other requirements include the vehicle line beginning with model year submission is considered a complete Governmental Performance and Results (MY) 2009. This petition is granted petition as required by 49 CFR 543.7, in Act (GPRA) of 1993 which promotes a because the agency has determined that that it meets the general requirements new focus on results, service quality, the antitheft device to be placed on the contained in § 543.5 and the specific and customer satisfaction. NHTSA will line as standard equipment is likely to content requirements of § 543.6. use surveys of the public and other be as effective in reducing and deterring The antitheft device to be installed on external stakeholders to gather data as motor vehicle theft as compliance with the MY 2009 Hyundai is a transponder- one input to decisionmaking on how the parts-marking requirements of the based electronic immobilizer system. better to meet the goal of improving Theft Prevention Standard. Hyundai The vehicle immobilizer device consists safety on the nation’s highways. The requested confidential treatment for its of the EMS, the SMARTRA 3 and data gathered on public expectations, information and attachments submitted ignition keys with a built-in NHTSA’s products and services, along in support of its petition. The agency transponder. Hyundai stated that the with specific information on will address Hyundai’s request for EMS carries out the check of the transportation safety, will be used by confidential treatment in a separate ignition key by special encryption the agency as input to structure its letter. algorithm which runs in the processes and products, forecast safety transponder and in the EMS in parallel. trends and achieve the agency’s goals. DATES: The exemption granted by this The engine can only be started if the Affected Public: Individuals or notice is effective beginning with model results of the ignition key check and households are primary survey year (MY) 2009. algorithm are equal. respondents. Business or other for- FOR FURTHER INFORMATION CONTACT: Ms. Hyundai stated that the device is profit, not-for-profit institutions, Federal Deborah Mazyck, International Policy, automatically activated by removing the agencies, and State, local or tribal Fuel Economy and Consumer Programs, key from the ignition switch and locking governments are other possible survey NHTSA, 1200 New Jersey Avenue, SE., the vehicle door. In order to arm the respondents. Washington, DC 20590. Ms. Mazyck’s device, the key must be removed from

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the ignition switch, all of the doors and and durability of its proposed device. company may have to submit a petition hood must be closed and the driver’s To ensure reliability and durability of to modify the exemption. Part 543.7(d) door must be locked with the ignition the device, Hyundai conducted tests states that a Part 543 exemption applies key or all doors must be locked with the based on its own specified standards. only to vehicles that belong to a line keyless entry. When the device is Hyundai also provided a detailed list of exempted under this part and equipped armed, the visual (flashing hazard the tests conducted and believes that the with the anti-theft device on which the lamps) and audible (horn sound) alarm device is reliable and durable since the line’s exemption is based. Further, Part system will be triggered if unauthorized device complied with its specified 543.9(c)(2) provides for the submission entry is attempted through the doors, requirements for each test. of petitions ‘‘to modify an exemption to trunk or the hood. The device is Based on the evidence submitted by permit the use of an antitheft device disarmed when the driver’s door is Hyundai, the agency believes that the similar to but differing from the one unlocked with the transponder key or antitheft device for the Genesis vehicle specified in that exemption.’’ keyless entry. line is likely to be as effective in The agency wishes to minimize the Hyundai stated that its antitheft reducing and deterring motor vehicle administrative burden that Part device has been installed as standard theft as compliance with the parts- 543.9(c)(2) could place on exempted equipment on the Hyundai Azera which marking requirements of the Theft vehicle manufacturers and itself. The was previously approved for exemption Prevention Standard (49 CFR Part 541). agency did not intend in drafting Part from Part 541. There is currently no Based on the information Hyundai 543 to require the submission of a available theft rate data for Hyundai provided about its device, the agency modification petition for every change vehicle lines that have been installed concludes that the device will provide to the components or design of an with similar devices. However, Hyundai the five types of performance listed in antitheft device. The significance of submitted data on the effectiveness of § 543.6(a)(3): Promoting activation; many such changes could be de various antitheft devices to support its attracting attention to the efforts of minimis. Therefore, NHTSA suggests belief that its device will be at least unauthorized persons to enter or operate that if the manufacturer contemplates effective as comparable devices a vehicle by means other than a key; making any changes, the effects of installed on other vehicle lines preventing defeat or circumvention of which might be characterized as de previously granted exemptions by the the device by unauthorized persons; minimis, it should consult the agency agency. Hyundai further stated that it preventing operation of the vehicle by before preparing and submitting a believes that the General Motors, Ford unauthorized entrants; and ensuring the petition to modify. and Isuzu devices contain components reliability and durability of the device. that are functionally and operationally As required by 49 U.S.C. 33106 and Authority: 49 U.S.C. 33106; delegation of similar to its device. Hyundai also 49 CFR 543.6(a)(4) and (5), the agency authority at 49 CFR 1.50. stated that the theft data from the finds that Hyundai has provided Issued on: January 17, 2008. National Crime Information Center adequate reasons for its belief that the Stephen R. Kratzke, (NCIC) show a clear reduction in vehicle antitheft device will reduce and deter Associate Administrator for Rulemaking. thefts after the introduction of the GM theft. [FR Doc. E8–1141 Filed 1–23–08; 8:45 am] For the foregoing reasons, the agency and Ford devices. Therefore, Hyundai BILLING CODE 4910–59–P believes that its device will be at least hereby grants in full Hyundai’s petition as effective as those devices that have for exemption for the Genesis vehicle been installed on lines previously line from the parts-marking DEPARTMENT OF TRANSPORATION granted exemptions by the agency. requirements of 49 CFR Part 541. The Hyundai provided theft rate data for the agency notes that 49 CFR Part 541, Pipeline and Hazardous Materials Chevrolet Camaro and Pontiac Firebird Appendix A–1, identifies those lines Safety Administration, Office of vehicle lines showing a substantial that are exempted from the Theft Hazardous Materials Safety Notice of reduction in theft rates comparing the Prevention Standard for a given model Application for Special Permits lines between pre- and post year. 49 CFR Part 543.7(f) contains introduction of the Pass-Key device. publication requirements incident to the AGENCY: Pipeline and Hazardous Hyundai also provided ‘‘percent disposition of all Part 543 petitions. Materials Safety Administration reduction’’ data for theft rates between Advanced listing, including the release (PHMSA), DOT. pre- and post-production years for the of future product nameplates, the ACTION: List of Applications for Special Ford Taurus and Mustang, and beginning model year for which the Permits. Oldsmobile Toronado and Riviera petition is granted and a general vehicle lines normalized to the three- description of the antitheft device is SUMMARY: In accordance with the year average of the Camaro and Firebird necessary in order to notify law procedures governing the application pre-introduction data. Hyundai stated enforcement agencies of new vehicle for, and the processing of, special that the data shows a dramatic lines exempted from the parts-marking permits from the Department of reduction of theft rates due to the requirements of the Theft Prevention Transportation’s Hazardous Material introduction of devices substantially Standard. Regulations (49 CFR Part 107, Subpart similar to the Hyundai immobilizer If Hyundai decides not to use the B), notice is hereby given that the Office device. Specifically, the Taurus, exemption for this line, it must formally of Hazardous Materials Safety has Mustang, Riviera and Toronado vehicle notify the agency. If such a decision is received the application described lines showed a 63, 70, 80 and 58 percent made, the line must be fully marked herein. Each mode of transportation for theft rate reduction respectively according to the requirements under 49 which a particular special permit is between pre- and post-introduction of CFR Parts 541.5 and 541.6 (marking of requested is indicated by a number in immobilizer devices as standard major component parts and replacement the ‘‘Nature of Application’’ portion of equipment on these vehicle lines. parts). the table below as follows: 1—Motor In addressing the specific content NHTSA notes that if Hyundai wishes vehicle, 2—Rail freight, 3—Cargo vessel, requirements of 543.6, Hyundai in the future to modify the device on 4—Cargo aircraft only, 5—Passenger- provided information on the reliability which this exemption is based, the carrying aircraft.

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DATES: Comments must be received on comments is desired, include a self- This notice of receipt of applications or before February 25, 2008. addressed stamped postcard showing for special permit is published in ADDRESSES COMMENTS TO: Record the special permit number. accordance with part 107 of the Federal Center, Pipeline and Hazardous hazardous materials transportation law FOR FURTHER INFORMATION CONTACT: (49 U.S.C. 5117(b); 49 CFR 1.53(b)). Materials Safety Administration, U.S. Copies of the applications are available Department of Transportation, for inspection in the Records Center, Issued in Washington, DC, on January 14, Washington, DC 20590. 2008. East Building, PHH–30, 1200 New Comments should refer to the Delmer F. Billings, Jersey Avenue, SE., Washington, DC or application number and be submitted in at http://dms.dot.gov. Director, Office of Hazardous Materials, triplicate. If confirmation of receipt of Special Permits and Approvals.

NEW SPECIAL PERMITS

Application No. Docket No. Applicant Regulation(s) affected Nature of special permits thereof

14624–N ...... INOCOM Inc., 49 CFR 173.302a, 173.304a and To authorize the manufacture, marking, sale Dalsung-gun, Daegu. 180.205. and use of non-DOT specification fiber re- inforced plastic (FRP) full composite (FC) cylinders for the transportation in com- merce of certain Division 2.1 and 2.2 com- pressed gases. (modes 1, 2, 3, 4, 5). 14625–N ...... Sun & Skin Care Re- 49 CFR 173.306(a)(3)(v) ...... To authorize the transportation in commerce search, Inc., Cocoa, of an aerosol in certain non-refillable con- FL. tainers which have been tested by an alter- native method in lieu of the hot water bath test. (modes 1, 2, 3, 4, 5). 14626–N ...... Aerojet, Sacramento, 49 CFR 173.56, 173.60 and To authorize the one-time, one-way transpor- CA. 173.62. tation in commerce of a Class 1 explosive contained in a solid rocket motor in alter- native packaging. (mode 1). 14627–N ...... American Spraytech, 49 CFR 173.306(a)(3)(v) ...... To authorize the transportation in commerce North Branch, NJ. of certain aerosols containing a Division 2.2 compressed gas in certain non-refill- able aerosol containers which are not sub- ject to the hot water bath test. (mode 1). 14628–N ...... National Aeronautics 49 CFR 173.301(f) and To authorize the transportation in commerce and Space Adminis- 173.302a(a). of certain non-DOT specification pressure tration. vessels containing compressed hydrogen, which are component parts of a nickel-hy- drogen battery. (mode 1). 14629–N ...... Eastman Chemical 49 CFR 173.31, 174.50 and To authorize the filling and transportation of Company, Kings- 179.200–16. certain railcars having broken or unused port, TN. magnetic gauging devices (MGDs) without first obtaining a specific FRA Movement Approval for each railcar or conducting the repair on site. (mode 2). 14630–N ...... Dow Agrosciences 49 CFR 172.302(a); 172.504(a) ... To authorize the transportation in commerce LLC, Indianapolis, of Division 6.1 liquid fumigants in non-DOT IN. specification cargo tanks equipped with an alternative pressure relief system. (mode 1). 14631–N ...... iSi Automotive GmbH, 49 CFR 173.301, 173.302a and To authorize the manufacture, marking, sale Austria. 173.305. and use of non-DOT specification cylinders for certain hazardous materials for use as components of safety systems. (mode 1, 2, 3, 4, 5).

[FR Doc. 08–248 Filed 1–23–08; 8:45 am] DEPARTMENT OF TRANSPORTATION SUMMARY: In accordance with the BILLING CODE 4909–60–M procedures governing the application Pipeline and Hazardous Materials for, and the processing of, special Safety Administration, Office of permits from the Department of Hazardous Materials Safety Transportation’s Hazardous Material Regulations (49 CFR part 107, subpart Notice of Applications for Modification B), notice is hereby given that the Office of Special Permit of Hazardous Materials Safety has AGENCY: Pipeline and Hazardous received the application described Materials Safety Administration herein. This notice is abbreviated to (PHMSA), DOT. expedite docketing and public notice. Because the sections affected, modes of ACTION: List of Applications for transportation, and the nature of Modifications of Special Permit. application have been shown in earlier

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Federal Register publications, they are ADDRESS COMMENTS TO: Record Center, Jersey Avenue, SE., Washington, DC or not repeated here. Requests of Pipeline and Hazardous Materials Safety at http://dms.dot.gov. modifications of special permits (e.g., to Administration, U.S. Department of This notice of receipt of applications provide for additional hazardous Transportation, Washington, DC 20590. for modification of special permit is materials, packaging design changes, Comments should refer to the published in accordance with part 107 additional mode of transportation, etc.) application number and be submitted in of the Federal hazardous materials are described in footnotes to the triplicate. If confirmation of receipt of application number. Application transportation law (49 U.S.C. 5117(b); comments is desired, include a self- numbers with the suffix ‘‘M’’ demote a 49 CFR 1.53(b)). addressed stamped postcard showing modification request. These Issued in Washington, DC on January 14, the special permit number. applications have been separated from 2008. the new application for special permits FOR FURTHER INFORMATION CONTACT: Delmer F. Billings, to facilitate processing. Copies of the applications are available Director, Office of Hazardous Materials, DATES: Comments must be received on for inspection in the Records Center, Special Permits and Approvals. or before February 8, 2008. East Building, PHH–30, 1200 New

MODIFICATION SPECIAL PERMITS

Application Docket Regulation(s) No. No. Applicant affected Nature of special permit thereof

14318–M ...... PHMSA–23861 Lockheed Martin Corporation (Former 49 CFR 173.315 .... To modify the special permit to clarify Grantee: Lockheed-Martin Technical the requirement for a dedicated en- Operations) Vandenberg AFB, CA. closed metal-sided truck. 14608–M ...... Ultimate Adventure Ballooning, LLC 49 CFR 173.304 .... To reissue the special permit originally Washington, MO. issued on an emergency basis for the transportation in commerce of non- DOT specification tanks that contain propane.

[FR Doc. 08–249 Filed 1–23–08; 8:45 am] copies of the form and instructions The following paragraph applies to all BILLING CODE 4909–60–M should be directed to Glenn Kirkland, of the collections of information covered (202) 622–3428, at Internal Revenue by this notice: Service, room 6129, 1111 Constitution An agency may not conduct or DEPARTMENT OF THE TREASURY Avenue, NW., Washington, DC 20224, sponsor, and a person is not required to or through the Internet at respond to, a collection of information Internal Revenue Service [email protected]. unless the collection of information displays a valid OMB control number. Proposed Collection; Comment SUPPLEMENTARY INFORMATION: Request for Form 8925 Title: Report of Employer-Owned Life Books or records relating to a Insurance Contracts. collection of information must be AGENCY: retained as long as their contents may Internal Revenue Service (IRS), OMB Number: 1545–2089. Treasury. become material in the administration Form Number: Form 8925. ACTION: Notice and request for of any internal revenue law. Generally, Abstract: Form 8925, Report of comments. tax returns and tax return information Employer-Owned Life Insurance are confidential, as required by 26 SUMMARY: The Department of the Contracts, is used by a policyholder U.S.C. 6103. (who is engaged in a trade or business Treasury, as part of its continuing effort Request for Comments: Comments which employs the person insured and to reduce paperwork and respondent submitted in response to this notice will who is a direct or indirect beneficiary) burden, invites the general public and be summarized and/or included in the to report certain information concerning other Federal agencies to take this request for OMB approval. All the number of employees covered by opportunity to comment on proposed comments will become a matter of employer-owned life insurance in force and/or continuing information public record. Comments are invited on: on those employees at the end of the tax collections, as required by the (a) Whether the collection of year. Paperwork Reduction Act of 1995, information is necessary for the proper Public Law 104–13 (44 U.S.C. Current Actions: There is no change performance of the functions of the 3506(c)(2)(A)). Currently, the IRS is in the paperwork burden previously agency, including whether the soliciting comments concerning Form approved by OMB. This form is being information shall have practical utility; 8925, Report of Employer-Owned Life submitted for renewal purposes only. (b) the accuracy of the agency’s estimate Insurance Contracts. Type of Review: Extension of a of the burden of the collection of DATES: Written comments should be currently approved collection. information; (c) ways to enhance the received on or before March 24, 2008 to Affected Public: Businesses and other quality, utility, and clarity of the be assured of consideration. for-profit organizations, Farms. information to be collected; (d) ways to ADDRESSES: Direct all written comments Estimated Number of Respondents: minimize the burden of the collection of to R. Joseph Durbala, Internal Revenue 16,000. information on respondents, including Service, room 6129, 1111 Constitution Estimated Time per Respondent: 4 through the use of automated collection Avenue, NW., Washington, DC 20224. hours 28 minutes. techniques or other forms of information FOR FURTHER INFORMATION CONTACT: Estimated Total Annual Burden technology; and (e) estimates of capital Requests for additional information or Hours: 71,360. or start-up costs and costs of operation,

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maintenance, and purchase of services concurrence of the General Services Counsel’s Office, Office of Thrift to provide information. Administration, has also approved Supervision, 1700 G Street, NW., Approved: January 14, 2008. renewal of the Panel. The membership Washington, DC 20552; send a facsimile R. Joseph Durbala, of the Panel is balanced between transmission to (202) 906–6518; or send museum directors and curators, art an e-mail to IRS Reports Clearance Officer. dealers and auction representatives to [email protected]. [FR Doc. E8–1146 Filed 1–23–08; 8:45 am] afford differing points of view in OTS will post comments and the related BILLING CODE 4830–01–P determining fair market value. index on the OTS Internet Site at Authority for this Panel will expire http://www.ots.treas.gov. In addition, two years from the date the Charter is interested persons may inspect DEPARTMENT OF THE TREASURY approved by the Assistant Secretary for comments at the Public Reading Room, Internal Revenue Service Management and Chief Financial Officer 1700 G Street, NW., by appointment. To and filed with the appropriate make an appointment, call (202) 906– Art Advisory Panel of the congressional committees unless, prior 5922, send an e-mail to Commissioner of Internal Revenue to the expiration of its Charter, the Panel [email protected], or send a is renewed. facsimile transmission to (202) 906– AGENCY: Internal Revenue Service, The Commissioner of Internal 7755. Treasury. Revenue has determined that this FOR FURTHER INFORMATION CONTACT: You ACTION: Notice of determination of document is not a major rule as defined can request additional information necessity for renewal of the Art in Executive Order 12291 and that a about this proposed information Advisory Panel. regulatory impact analysis therefore is collection from Patricia D. Goings (202) not required. Neither does this SUMMARY: It is in the public interest to 906–5668, Office of Thrift Supervision, document constitute a rule subject to continue the existence of the Art 1700 G Street, NW., Washington, DC the Regulatory Flexibility Act (5 U.S.C. Advisory Panel. The current charter of 20552. Chapter 6). the Art Advisory Panel will be renewed SUPPLEMENTARY INFORMATION: OTS may for a period of two years. Linda E. Stiff, not conduct or sponsor an information FOR FURTHER INFORMATION CONTACT: Acting Commissioner of Internal Revenue. collection, and respondents are not Karen E. Carolan, AP:ART, 1099 14th [FR Doc. E8–1165 Filed 1–23–08; 8:45 am] required to respond to an information Street, NW., Room 4200E, Washington, BILLING CODE 4830–01–P collection, unless the information DC 20005, Telephone No. (202) 435– collection displays a currently valid 5609, (not a toll free number). OMB control number. As part of the Pursuant to the Federal Advisory DEPARTMENT OF THE TREASURY approval process, we invite comments Committee Act, 5 U.S.C. App. (2000), Office of Thrift Supervision on the following information collection. the Commissioner of Internal Revenue Comments should address one or announces the renewal of the following more of the following points: advisory committee: Proposed Agency Information Title. The Art Advisory Panel of the Collection Activities; Comment a. Whether the proposed collection of Commissioner of Internal Revenue. Request—Savings Associations information is necessary for the proper Purpose. The Panel assists the Holding Company Application performance of the functions of OTS; Internal Revenue Service by reviewing b. The accuracy of OTS’s estimate of AGENCY: Office of Thrift Supervision the burden of the proposed information and evaluating the acceptability of (OTS), Treasury. property appraisals submitted by collection; ACTION: taxpayers in support of the fair market Notice and request for comment. c. Ways to enhance the quality, utility, and clarity of the information to value claimed on works of art involved SUMMARY: The Department of the in Federal Income, Estate or Gift taxes be collected; Treasury, as part of its continuing effort d. Ways to minimize the burden of the in accordance with sections 170, 2031, to reduce paperwork and respondent and 2512 of the Internal Revenue Code information collection on respondents, burden, invites the general public and including through the use of of 1986. other Federal agencies to comment on In order for the Panel to perform this information technology. proposed and continuing information We will summarize the comments function, Panel records and discussions collections, as required by the must include tax return information. that we receive and include them in the Paperwork Reduction Act of 1995, 44 OTS request for OMB approval. All Therefore, the Panel meetings will be U.S.C. 3507. The OTS within the closed to the public since all portions of comments will become a matter of Department of the Treasury will submit public record. In this notice, OTS is the meetings will concern matters that the proposed information collection are exempted from disclosure under the soliciting comments concerning the requirement described below to the following information collection. provisions of section 552b(c)(3), (4), (6) Office of Management and Budget Title of Proposal: Savings and (7) of Title 5 of the U.S. Code. This (OMB) for review, as required by the Associations Holding Company determination, which is in accordance Paperwork Reduction Act. Today, OTS Application. with section 10(d) of the Federal is soliciting public comments on its OMB Number: 1550–0015. Advisory Committee Act, is necessary to proposal to extend this information Form Number: H–(E). protect the confidentiality of tax returns collection. and return information as required by Description: OTS analyzes each section 6103 of the Internal Revenue DATES: Submit written comments on or holding company application to code. before March 24, 2008. determine whether the applicant meets Statement of Public Interest. It is in ADDRESSES: Send comments, referring to the statutory criteria set forth in section the public interest to continue the the collection by title of the proposal or 10(e) of the Act to become a savings and existence of the Art Advisory Panel. The by OMB approval number, to loan holding company. The forms are Secretary of Treasury, with the Information Collection Comments, Chief reviewed for adequacy of answers to

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items and completeness in all material ADDRESSES: Send comments, referring to Description: Pursuant to 12 U.S.C. respects. the collection by title of the proposal or 1817(j), persons who proposed to Type of Review: Extension of a by OMB approval number, to OMB and acquire control of a savings association currently approved collection. OTS at these addresses: Office of or savings and loan holding company Affected Public: Business or other for- Information and Regulatory Affairs, must provide prior written notice to the profit institutions; Federal Government. Attention: Desk Officer for OTS, U.S. Office of Thrift Supervision (OTS). That Estimated Number of Respondents: Office of Management and Budget, 725– notice will now be made on the 50. 17th Street, NW., Room 10235, ‘‘Interagency Notice of Change in Estimated Frequency of Response: Washington, DC 20503, or by fax to Director or Senior Executive Officer’’ Other; when seeking regulatory activity (202) 395–6974; and Information and supplemented, as necessary, by request. Collection Comments, Chief Counsel’s information on the ‘‘Interagency Estimated Burden Hours per Office, Office of Thrift Supervision, Biographical and Financial Report.’’ Response: 500 hours. 1700 G Street, NW., Washington, DC Required notices must include at a Estimated Total Burden: 25,000. 20552, by fax to (202) 906–6518, or by minimum the information described in e-mail to 12 U.S.C. 1817(j)(6)(A). Clearance Officer: Ira L. Mills, (202) [email protected]. 906–6531, Office of Thrift Supervision, OTS is required to make a OTS will post comments and the related 1700 G Street, NW., Washington, DC determination as to the hiring or index on the OTS Internet Site at http:// 20552. appointment of senior executive officers www.ots.treas.gov. In addition, or directors at savings institutions or Dated: January 18, 2008. interested persons may inspect thrift holding companies. The OTS’s Deborah Dakin, comments at the Public Reading Room, determination must be based upon an Senior Deputy Chief Counsel, Regulations and 1700 G Street, NW., by appointment. To evaluation of the individual’s Legislation Division. make an appointment, call (202) 906– competence, experience, character, and [FR Doc. E8–1192 Filed 1–23–08; 8:45 am] 5922, send an e-mail to integrity. The information required by BILLING CODE 6720–01–P [email protected], or send a the collection is necessary to make this facsimile transmission to (202) 906– determination. Without this 7755. information, the OTS cannot DEPARTMENT OF THE TREASURY FOR FURTHER INFORMATION CONTACT: For accomplish the statutory requirement designed to protect the interests of the Office of Thrift Supervision further information or to obtain a copy of the submission to OMB, please Savings Association Insurance Fund. Notice of Hiring or Indemnifying Senior contact Ira L. Mills at, Type of Review: Extension without Executive Officers or Directors [email protected] (202) 906–6531, change of currently approved collection. or facsimile number (202) 906–6518, Affected Public: Business or other for AGENCY: Office of Thrift Supervision Regulations and Litigation Division, profit. (OTS), Treasury. Chief Counsel’s Office, Office of Thrift Estimated Number of Respondents: ACTION: Notice and request for comment. Supervision, 1700 G Street, NW., 100. Washington, DC 20552. Estimated Burden Hours per SUMMARY: The proposed information Response: 100 hours. SUPPLEMENTARY INFORMATION: OTS may Estimated Frequency of Response: collection request (ICR) described below not conduct or sponsor an information has been submitted to the Office of Other; As required per transaction. collection, and respondents are not Estimated Total Burden: 233 hours. Management and Budget (OMB) for required to respond to an information review and approval, as required by the Clearance Officer: Ira L. Mills, (202) collection, unless the information 906–6531, Office of Thrift Supervision, Paperwork Reduction Act of 1995. OTS collection displays a currently valid is soliciting public comments on the 1700 G Street, NW., Washington, DC OMB control number. As part of the 20552. proposal. approval process, we invite comments DATES: Submit written comments on or on the following information collection. Dated: January 18, 2008. before February 25, 2008. A copy of this Title of Proposal: Notice of Hiring or Deborah Dakin, ICR, with applicable supporting Indemnifying Senior Executive Officers Senior Deputy Chief Counsel, Regulations and documentation, can be obtained from or Directors. Legislation Division. RegInfo.gov at http://www.reginfo.gov/ OMB Number: 1550–0047. [FR Doc. E8–1207 Filed 1–23–08; 8:45 am] public/do/PRAMain. Form Number: OTS Form 1606. BILLING CODE 6720–01–P

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Part II

Environmental Protection Agency 40 CFR Parts 72 and 75 Revisions to the Continuous Emissions Monitoring Rule for the Acid Rain Program, NOX Budget Trading Program, Clean Air Interstate Rule, and the Clean Air Mercury Rule; Final Rule

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ENVIRONMENTAL PROTECTION incorporated by reference. These Friday, excluding legal holidays. The AGENCY revisions do not impose significant new telephone number for the Public requirements upon sources with regard Reading Room is (202) 566–1744, and 40 CFR Parts 72 and 75 to monitoring or quality assurance the telephone number for the Air and [EPA–HQ–OAR–2005–0132; FRL–8511–1] activities. Radiation Docket is (202) 566–1742. RIN 2060–AN16 DATES: This final rule is effective on FOR FURTHER INFORMATION CONTACT: January 24, 2008, for good cause found Matthew Boze, Clean Air Markets Revisions to the Continuous as explained in this rule. Division, U.S. Environmental Protection Emissions Monitoring Rule for the The incorporation by reference of Agency, Clean Air Markets Division, MC Acid Rain Program, NOX Budget certain publications listed in the rule is 6204J, Ariel Rios Building, 1200 Trading Program, Clean Air Interstate approved by the Director of the Federal Pennsylvania Ave., NW., Washington, Rule, and the Clean Air Mercury Rule Register as of January 24, 2008, for good DC 20460, telephone (202) 343–9211, e- cause found as explained in this rule. AGENCY: Environmental Protection mail at [email protected]. ADDRESSES: The EPA has established a Agency (EPA). Electronic copies of this document can docket for this action under Docket ID ACTION: Final rule. be accessed through the EPA Web site No. EPA–HQ–OAR–2005–0132. All at: http://www.epa.gov/airmarkets. SUMMARY: EPA is finalizing rule documents in the docket are listed in SUPPLEMENTARY INFORMATION: revisions that modify existing the www.regulations.gov index. Regulated requirements for sources affected by the Although listed in the index, some Entities. Entities regulated by this action federally administered emission trading information is not publicly available, primarily are fossil fuel-fired boilers, turbines, and combined cycle units that programs including the NOX Budget e.g., CBI or other information whose Trading Program, the Acid Rain disclosure is restricted by statute. serve generators that produce electricity, Program, the Clean Air Interstate Rule, Certain other material, such as generate steam, or cogenerate electricity and the Clean Air Mercury Rule. copyrighted material, will be publicly and steam. Some trading programs The revisions are prompted primarily available only in hard copy. Publicly include process sources, such as process by changes being implemented by EPA’s available docket materials are available heaters or cement kilns. Although Part Clean Air Markets Division in its data either electronically in 75 primarily regulates the electric utility systems in order to utilize the latest www.regulations.gov or in hard copy at industry, certain State and Federal NOX modern technology for the submittal of the Air and Radiation Docket, EPA/DC, mass emission trading programs rely on data by affected sources. Other revisions EPA West Building, EPA Headquarters subpart H of Part 75, and those address issues that have been raised Library, Room 3334, 1301 Constitution programs may include boilers, turbines, during program implementation, fix Avenue, NW., Washington, DC. The combined cycle, and certain process specific inconsistencies in rule Public Reading Room is open from 8:30 units from other industries. Regulated provisions, or update sources a.m. to 4:30 p.m., Monday through categories and entities include:

Category NAICS code Examples of potentially regulated industries

Industry ...... 221112 and others ...... Electric service providers Process sources with large boilers, turbines, combined cycle units, process heaters, or cement kilns where emissions exhaust through a stack.

This table is not intended to be of the rule will be posted on the TTN’s reconsideration if the petitioner exhaustive, but rather to provide a guide policy and guidance page for newly demonstrates that it was impracticable for readers regarding entities likely to be proposed or promulgated rules at to raise an objection during the public regulated by this action. This table lists http://www.epa.gov/ttn/oarpg. The TTN comment period or if the grounds for the types of entities which EPA is now provides information and technology such objection arose after the comment aware could potentially be regulated by exchange in various areas of air period (but within the time for judicial this action. Other types of entities not pollution control. review) and if the objection is of central listed in this table could also be Judicial Review. Under CAA section relevance to the rule. Any person regulated. To determine whether your 307(b), judicial review of this final seeking to make such a demonstration to facility, company, business, action is available only by filing a EPA should submit a Petition for organization, etc., is regulated by this petition for review in the U.S. Court of Reconsideration, clearly labeled as such, action, you should carefully examine Appeals for the District of Columbia to the Office of the Administrator, U.S. the applicability provisions in §§ 72.6, Circuit on or before March 24, 2008. EPA, Room 3000, Ariel Rios Building, 72.7, and 72.8 of title 40 of the Code of Under CAA section 307(d)(7)(B), only 1200 Pennsylvania Ave., Washington, Federal Regulations and in 40 CFR Parts those objections to the final rule that DC 20460, with a copy to the Associate 96 and 97. If you have questions were raised with specificity during the General Counsel for the Air and regarding the applicability of this action period for public comment may be Radiation Law Office, Office of General to a particular entity, consult the person raised during judicial review. Moreover, Counsel, Mail Code 2344A, U.S. EPA, listed in the preceding FOR FURTHER under CAA section 307(b)(2), the 1200 Pennsylvania Ave., NW., INFORMATION CONTACT section. requirements established by today’s Washington, DC 20460. World Wide Web (WWW). In addition final rule may not be challenged to being available in the docket, an separately in any civil or criminal Outline electronic copy of the final rule is also proceedings brought by EPA to enforce I. Detailed Discussion of Rule Revisions available on the WWW through the these requirements. Section 307(d)(7)(B) A. Rule Definitions Technology Transfer Network Web site also provides a mechanism for the EPA B. General Monitoring Provisions (TTN Web). Following signature, a copy to convene a proceeding for C. Certification Requirements

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D. Missing Data Substitution should be used. All sources will be test teams, equipment, and vendor E. Recordkeeping and Reporting required to use the new process support) over the entire course of 2008. F. Subpart H (NOX Mass Emissions) beginning in 2009. For these reasons, EPA believes it has G. Subpart I (Hg Mass Emissions) good cause to expedite the effective date H. Appendix A Therefore, EPA finds good cause to I. Appendix B determine that the final rule is effective of this final rule. J. Appendix D on January 24, 2008. EPA normally A. Rule Definitions K. Appendix E issues final regulations with at least a L. Appendix F 30-day effective date after Federal Background M. Appendix G Register publication. However, this EPA proposed to add several new N. Appendix K provision of the rule which pertains to definitions to Part 72, including O. Other Rule Revisions the re-engineering of the Clean Air II. Statutory and Executive Order Reviews definitions for: ‘‘Long-term cold A. Executive Order 12866: Regulatory Markets Division’s data systems and to storage’’ (to mean the complete Planning and Review implementation of the Clean Air shutdown of a unit intended to last for B. Paperwork Reduction Act Mercury Regulation (CAMR), must be at least two calendar years); ‘‘EPA C. Regulatory Flexibility Act effective by January 1, 2008. Today’s Protocol Gas Verification Program’’ (to D. Unfunded Mandates Reform Act rule allows sources the option of support the proposed calibration gas E. Executive Order: 13132: Federalism reporting emissions data in the new audit program); ‘‘Air Emission Testing F. Executive Order 13175: Consultation XML data reporting format in 2008, one Body (AETB)’’ and ‘‘Qualified and Coordination With Indian Tribal year before the use of XML becomes Individual’’ (to support the proposed Governments mandatory. The final rule provides the G. Executive Order 13045: Protection of stack tester accreditation program). Children From Environmental Health necessary record keeping and reporting EPA also proposed to modify the and Safety Risks requirements to support the XML definitions of ‘‘Capacity factor’’, ‘‘EPA H. Executive Order 13211: Actions That format. Second, sources subject to protocol gas,’’ and ‘‘Excepted Significantly Affect Energy Supply, CAMR are required to install and certify monitoring system’’, and to remove the Distribution, or Use continuous mercury (Hg) monitoring definition of ‘‘Calibration gas’’ and I. National Technology Transfer and systems by January 1, 2009. To meet this related definitions describing the Advancement Act deadline, companies with multiple various types of gas standards that are J. Executive Order 12898: Federal Actions CAMR-affected units will begin monitor classified as calibration gas. To Address Environmental Justice in certification testing in the first quarter of Minority Populations and Low-Income Summary of Rule Changes Populations 2008. As described in Sections I.C.3 and K. Congressional Review Act I.O.3., today’s rule adds two recently- All of the proposed new and modified L. Petition for Judicial Review published Hg test methods, i.e., definitions have been finalized without M. Determination Under Section 307(d) Methods 30A and 30B, to Part 75 as substantive changes. However, one alternatives to the Ontario Hydro commenter cautioned that removing the I. Detailed Discussion of Rule Revisions Method. For many sources, 30A and definitions of the calibration gas EPA is in the process of re- 30B will be the test methods of choice. standards from Part 72 might have engineering the data systems associated Third, as discussed in Section I.A., consequences that could necessitate with the collection and processing of today’s rule defers until January 1, 2010 further rule revisions. In view of this, emissions, monitoring plan, quality the requirement for the calibration the Agency reconsidered these proposed assurance, and certification data. The re- standards used to certify Hg continuous changes and the final rule retains all but engineering project includes the emission monitoring systems (CEMS) one of the definitions. The definition of creation of a client tool, provided by under CAMR to be traceable to the ‘‘Research gas material’’ was found to be EPA that sources will use to evaluate National Institute of Standards and identical to the definition of ‘‘Research and submit their Part 75 monitoring Technology (NIST). Fourth, for CAMR gas mixture’’ and has been removed data. This process change will enable units that seek to qualify as low mass from the rule. sources to assess the quality of their emitting units under § 75.81, Hg Further, for consistency with Method data prior to submitting the data using emission testing is required in 2008. As 30A, the new instrumental reference EPA established checking criteria. The discussed in Section G.2., today’s rule method for mercury (Hg) (which, as process will also allow sources to report adds considerable flexibility to the way noted in sections I.C.3 and I.O.3 of this their data directly to a database. Having in which this testing is conducted, preamble has been added to the list of the data in a true database will allow the particularly for common stack acceptable Hg reference methods in Agency to implement and assess the configurations and groups of identical § 75.22), and in light of other changes in program more efficiently and will units. The use of Methods 30A and 30B today’s rule related to the certification streamline access to the data. Also, this for this testing is also desirable. Absent of Hg monitoring systems, EPA is database structure will enable EPA to this determination of good cause, adding definitions of ‘‘NIST traceable implement process changes that will sources would not be able to begin elemental Hg standards’’ and ‘‘NIST reduce the redundant reporting of scheduled monitoring certification traceable source of oxidized Hg’’ to certain types of data. The re-engineered activities until the necessary provisions § 72.2. These definitions pertain to Hg systems will be supported by a new of this rule became effective. A thirty calibration gas standards and are extensible markup language (XML) data day delay would significantly decrease deemed necessary for implementation of format that will replace the record type/ the overall amount of time available for the continuous monitoring requirements column format currently used by EPA to industry to comply with the of the Clean Air Mercury Regulation collect electronic data. EPA intends to certification deadline of January 1, 2009. (CAMR). transition existing sources to the new Such a delay could result in sources not Affected units under CAMR are XML electronic data report (XML–EDR) being able to meet the certification required to install and certify Part 75- format during the 2008 reporting year. deadline, since industry would lose compliant Hg monitoring systems by For sources reporting in 2008 for the some of its ability to spread utilization January 1, 2009. To meet this first time, the new XML–EDR format of various certification resources (i.e., requirement, the vast majority of the

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certification testing will be performed in traceability requirement for Hg § 72.2. Section 5.1.9 of Appendix A to 2008. When CAMR was first proposed, standards is modeled after the NIST Part 75 has been revised to reflect this. only one reference test method (the traceability requirements in Section 5 of In view of this, EPA strongly Ontario Hydro (OH) Method) was Appendix A for SO2, NOX, and diluent recommends that in 2009, all CAMR- prescribed for the relative accuracy test gas (CO2 and O2) calibration gas affected sources should take the audits (RATAs) of the required Hg standards. necessary steps to ensure that the NIST monitoring systems. However, the OH For the SO2, NOX, CO2, and O2 traceability requirement is met. In most method is wet chemistry-based, and is compressed gas standards used in Part cases, this will involve the certification both difficult and expensive to perform. 75 applications, ‘‘NIST traceability’’ of elemental and oxidized Hg Also, the laboratory analysis required to means that the calibration gases have generators, according to the traceability obtain the test results can take a week been prepared according to the EPA- protocols. If a source elects to perform or more, making the OH method approved protocol cited in Section 5.1.4 daily calibrations and/or linearity incompatible with the Hg emissions of Appendix A. Further, § 75.22(c)(1) checks using compressed gas cylinders trading program described in the CAMR requires NIST-traceable gas standards to instead of an elemental Hg generator, model rule. be used to calibrate the instrumental the owner or operator will have to In a cap and trade program, the RATA reference methods used for relative obtain cylinder gases that conform to results must be known while the test accuracy testing of SO2, NOX, CO2, and the EPA traceability protocol for gaseous team is still on-site, so that any O2 CEMS (i.e., Methods 6C, 7E and 3A). calibration standards. necessary corrective actions can be Prior to today’s rulemaking, no NIST Finally, note that EPA is conditionally taken and retesting performed without traceability protocols for Hg calibration allowing Method 30A to be used for Part delay. With the OH method, if the standards were referenced in Part 75. 75 Hg emission testing and RATA results of the lab analysis indicate a The new definitions of ‘‘NIST traceable applications prior to finalization of the RATA failure, a retest must be elemental Hg standards’’ and ‘‘NIST traceability protocols in section 16.0 of rescheduled and the Hg monitoring traceable source of oxidized Hg’’ the method. The condition is that system is considered out-of-control until address this deficiency and cite the EPA interim traceability protocols are a subsequent RATA is passed. This can protocols that must be followed to developed and posted on the Agency’s result in an extended missing data ensure that the elemental and oxidized Technology Transfer Network Web site period and loss of Hg allowances. Hg standards are traceable to NIST. (http://www.epa.gov/ttn/emc/), as Thus, it became apparent during the However, these protocols, which are ‘‘broadly applicable alternative test CAMR rulemaking that an alternative to referenced in Section 16.0 of Method method approvals’’ that will expire the OH method was needed. An 30A, are not yet fully developed, and when the final protocols are issued. instrumental Hg reference method was are not expected to be ready for use EPA’s authority to approve such test put forth as the logical choice, because until the latter part of 2008. A method alternatives is described in 72 it would provide real-time Hg cooperative field demonstration FR 4257, January 30, 2007. concentration data, allowing the RATA program that will include EPA believes that a phased-in results to be known on the day of the representatives from EPA, NIST, approach to NIST traceability is test. When CAMR was published on industry, equipment vendors, and other appropriate and necessary, in light of May 18, 2005, EPA stated its intention key personnel is planned for the coming the additional time needed to finalize to ‘‘propose and promulgate’’ an months, to gather the data necessary to the traceability protocols and the time instrumental Hg reference method (see refine and finalize the traceability required for the affected sources and 70 FR 28636). In support of the final protocols. Once these traceability equipment vendors to set up the CAMR rule, Hg monitoring provisions protocols are finalized, they will be necessary infrastructure to implement were added to Part 75. Among these was posted on the Agency’s Technology the protocols. The Agency also believes an amendment to § 75.22, allowing the Transfer Network Web site (http:// that this approach will not compromise use of either the OH method or an www.epa.gov/ttn/emc/) and on the the quality of the data for the emissions ‘‘instrumental reference method * * * Agency’s Clean Air Markets Division trading program under CAMR, since in subject to the approval of the Web site (http://www.epa.gov/ 2010, the first year in which Hg Administrator’’ for the certification airmarkets/). emissions count against allowances testing of Hg continuous monitoring In view of this, EPA is temporarily held, NIST traceability of the Hg systems. Method 30A was published on deferring (until January 1, 2010) the calibration standards is mandatory. September 7, 2007 in a direct-final requirement for elemental and oxidized rulemaking, and became effective on Hg standards to be NIST traceable. The B. General Monitoring Provisions November 6, 2007 (see 72 FR 51494). deferral affects both initial certifications 1. Update of Incorporation by Reference Method 30A represents the fulfillment of the CEMS and routine quality- (§ 75.6) of the Agency’s commitment to publish assurance tests of the CEMS performed an instrumental reference method for prior to January 1, 2010. Note that only Background Hg. the NIST traceability requirement for Section 75.6 identifies a number of One of the most important Part 75 the Hg calibration standards is being methods and other standards that are requirements for the certification of Hg waived, not the requirement to perform incorporated by reference into Part 75. continuous emission monitoring the calibration error tests, linearity This section includes standards systems (CEMS) is that the checks, and system integrity checks of published by the American Society for concentrations of the elemental and the Hg monitoring systems by January 1, Testing and Materials (ASTM), the oxidized Hg calibration gas standards 2009. American Society of Mechanical used for the 7-day calibration error tests, Beginning on January 1, 2010, all Engineers (ASME), the American linearity checks, and system integrity daily calibration error tests, linearity National Standards Institute (ANSI), the checks of the CEMS must be traceable checks, and system integrity checks of Gas Processors Association (GPA), and to the National Institute of Standards Hg CEMS must be performed using the American Petroleum Institute (API). and Technology (NIST) (see Part 75, NIST traceable elemental and oxidized EPA proposed changes to § 75.6 that Appendix A, Section 5.1.9). This NIST Hg calibration standards, as defined in would reflect the need to incorporate

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recent updates for many of the assured under a State CEMS program. 3. Default Moisture Value for Natural referenced standards. The proposed Lastly, the Agency proposed technical Gas revisions would recognize or adhere to revisions to the Equations LM–5 and Background these newer standards by updating LM–6 changing the units of rate to units references for the standards listed in of measure to make the equations EPA proposed to allow gas-fired §§ 75.6(a) through 75.6(f). Additionally, correct as units of rate cannot boilers equipped with CEMS to use new §§ 75.6(a)(45) through 75.6(a)(48) technically be summed. default moisture values in lieu of and 75.6(f)(4) would incorporate by Summary of Rule Changes continuously monitoring the stack gas reference additional ASTM and API Commenters were generally moisture content. Two conservative standards that are relevant to Part 75 default values were proposed: 14.0% implementation. supportive of the proposed revisions to § 75.19, and they have been finalized H2O under § 75.11(b), and 18.0% H2O Summary of Rule Changes with only one substantive change. EPA under § 75.12(b). The Agency also The updates and additions to § 75.6 has incorporated one commenter’s proposed that the higher default value have been finalized as proposed. One suggestion not to restrict the allowable would apply only when Equation 19–3, commenter requested that an additional fuel oil sampling options to those 19–4, or 19–8 (from Method 19 in ASTM method for analyzing the sulfur described in Appendix D. The final rule appendix A–7 to part 60 of this chapter) content of low-sulfur fuel oil, i.e., allows the use of other consensus is used to determine the NOX emission ASTM D5453–06, ‘‘Standard Test standard fuel sampling methods (e.g., rate. The proposed default values Method for Determination of Total ASTM, API, etc.) specified in applicable represent the 10th and 90th percentile Sulfur in Light Hydrocarbons, Spark State or Federal regulations or in the values from two sets of supplemental Ignition Engine Fuel, Diesel Engine unit’s operating permit, to determine the moisture data provided to the Agency, Fuel, and Engine Oil by Ultraviolet sulfur content of the oil. which is consistent with the approach Fluorescence’’, be added to the list of Another commenter requested that that the Agency has used in responding acceptable methods in § 75.6. This EPA go beyond its proposal for SO2 and to past petitions under § 75.66 for site- method has been incorporated by consider providing a similar, more specific default moisture values. reference as § 75.6(a)(49) and has been reasonable site-specific alternative to added to section 2.2.5 of Appendix D. reporting the generic NOX emission Summary of Rule Changes rates in Table LM–2. Specifically, the 2. Default Emission Rates for Low Mass commenter suggested that for units with No adverse comments were received Emissions (LME) Units very low annual capacity factors, the on these proposed rule changes and they have been finalized. Background Agency should waive the testing requirements of §§ 75.19(c)(1)(iv) and 4. Expanded Use of Equation F–23 EPA proposed to allow LME units to allow emission test data that was use site-specific default SO2 emission generated more than 5 years ago (e.g., Background rates for fuel oil combustion, in lieu of from a Part 60 performance test) to be using the ‘‘generic’’ default SO2 used to determine fuel-specific default EPA proposed to revise § 75.11(e)(1) to remove the current restrictions on the emission rates specified in Table LM–1 NOX emission rates. The commenter of § 75.19. To use this option, a federally asserted that the cost of additional use of Equation F–23 to determine the enforceable permit condition would testing could impose a financial burden SO2 mass emission rate, by allowing have to be in place for the unit, limiting on smaller affected sources. After Equation F–23 to be used whether or not the sulfur content of the oil. This careful consideration, EPA decided the unit has an SO2 monitor and to revision, if made, would allow more against allowing infrequently-operated expand its use to fuels other than representative, yet still conservatively units to use emission test data older natural gas. The proposal would allow high, SO2 emissions data to be reported than 5 years for Part 75 reporting. Equation F–23 to be used for any from oil-burning LME units. As However, § 75.19(c)(1)(iv)(I) has been gaseous fuel that qualifies for a default proposed, the site-specific default SO2 amended to provide reduced emission SO2 emission rate under Section 2.3.6(b) emission rate would be calculated using testing requirements for very low of Appendix D. Further, Equation F–23 an equation from EPA publication AP– capacity factor LME units. The final rule could be used for the combustion of 42. The sulfur content used in the allows single-load testing, between 75 liquid and solid fuels that meet the calculations would be the maximum and 100 percent of maximum load, to be definition of ‘‘very low sulfur fuel’’ in weight percent sulfur allowed by the performed (both for the initial Appendix § 72.2, if a petition for a fuel-specific federally-enforceable permit. Sources E testing and for retests) if, for the 3 default SO2 emission rate is submitted choosing to implement this option years prior to the year of the test, the to the Administrator under § 75.66 and would be required to perform periodic unit’s average capacity factor was 2.5 the Administrator approves the petition. oil sampling using one of the four percent or less and did not exceed 4.0 Under the proposed rule, petitions methodologies described in Section 2.2 percent in any of those three years. would also be accepted for the of Appendix D to Part 75, and would be Alternatively, for combustion turbines, combustion of mixtures of these fuels required to keep records documenting the emission test may be done at the and for the co-firing of these fuels with the sulfur content of the fuel. maximum attainable load corresponding gaseous fuel. The Agency also proposed to revise to the season of the year in which the § 75.19(c)(1)(iv)(G) to clarify that fuel- test is performed. For a group of Summary of Rule Changes and-unit-specific default NOX emission identical units, the single-load testing rates for LME units may be determined option may be used for any unit(s) in Commenters were supportive of the using data from a Continuous Emissions the group that meet the very low expanded use of Equation F–23 and the Monitoring System (CEMS) that has capacity factor requirements. For a more revisions to § 75.11(e) and been quality-assured according to either detailed discussion of this issue, refer to corresponding changes to section 7 of Appendix B of Part 75 or Appendix F section 2.3.2 of the Response to Appendix F have been finalized as of Part 60, or comparably quality- Comments (RTC) document. proposed.

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5. Calculation of NOX Emission Rate— controls are not bypassed and are emission testing and RATAs. Three new LME Units documented to be operating properly. testing options that were added to the Background For example, for a coal-fired unit methods were deemed unacceptable for equipped with FGD and SCR add-on use under Part 75. These include: EPA proposed to re-title emission controls, if the SCR is (1) Section 7.1 of revised EPA Method § 75.19(c)(4)(ii) as ‘‘NOX mass emissions documented to be working during an 7E, allowing for custom calibration gas and NOX emission rate’’ and to add a FGD malfunction and the effluent gases concentrations to be produced by new subparagraph (D) to § 75.19 are routed through an unmonitored diluting EPA protocol gases, in (c)(4)(ii), providing instructions for bypass stack after passing through the accordance with Method 205 in determining quarterly and cumulative SCR, then the MCR, rather than the Appendix M of 40 CFR Part 51. NOX emission rates for a LME unit. The MER, would be the more appropriate (2) Section 8.4 of revised EPA Method NOX emission rate for each hour (lb/ NOX emission rate to report for the 7E, allowing the use of a multi-hole mmBtu) would simply be the bypass hour(s). Documentation of ‘‘rake’’ probe to satisfy the multipoint appropriate generic or unit-specific proper add-on control operation for traverse requirement of the method. default NOX emission rate defined in such hours of operation would be (3) Section 8.6 of revised EPA Method the monitoring plan for the type of fuel required as described in § 75.34(d). The 7E, allowing for the use of ‘‘dynamic being combusted and (if applicable) the MCR would be calculated in a manner spiking’’ as an alternative to the NOX emission control status. Then, the similar to the calculation of the MER, interference and system bias checks of Agency proposed that the quarterly NOX except that the maximum expected NOX the method. emission rate would be determined by concentration (MEC) would be used Although revised Method 7E states averaging all of the hourly NOX instead of the maximum potential NOX that for use under Part 75 the three emission rates and the cumulative (year- concentration (MPC). options above require approval by the to-date) NO emission rate would be the Administrator, EPA proposed to add X Summary of Rule Changes arithmetic average of the quarterly similar language to § 75.22(a)(5) to values. Commenters were generally reinforce its position regarding these supportive of the proposed rule changes testing alternatives. Summary of Rule Changes and they have been finalized. One Summary of Rule Changes No adverse comments were received commenter recommended that parallel on these proposed rule changes and the language be added to § 75.72(c)(3), to No adverse comments were received revisions to § 75.19(c)(4)(ii) have been cover non-Acid Rain Program units that on the proposed amendments to § 75.22(a)(5) and they have been finalized as proposed. are subject to the NOX mass emissions monitoring provisions of Subpart H. finalized. However, one commenter 6. LME Units—Scope of Applicability EPA agrees with this comment and has brought to EPA’s attention another Background added the necessary language to revision to the Part 60 reference § 75.72(c)(3). methods that impacts Part 75. EPA EPA proposed to revise § 75.19(a)(1) Method 20 was also revised on May 15, to clarify that the low mass emissions C. Certification Requirements 2006. Method 20 has been the NOX (LME) methodology is a stand-alone 1. Alternative Monitoring System emission test method prescribed for alternative to a CEMS and/or the Certification combustion turbines (CTs) in section ‘‘excepted’’ monitoring methodologies 2.1.2.2 of Appendix E. Method 20 has in Appendices D, E, and G. In other Background also been used to determine fuel- words, if a unit qualifies for LME status, EPA proposed to delete §§ 75.20(f)(1) specific NOX emission rates for the owner or operator is required either and (2) from the rule, thereby removing combustion turbines that qualify as low to use the LME methodology for all the requirement for the Administrator to mass emissions (LME) units under parameters or not to use the method at publish each request for certification of § 75.19. all. No mixing-and-matching of other an alternative monitoring system in the The original Method 20 required monitoring methodologies with LME is Federal Register, with an associated 60- testing at 8 sampling points per run, permitted. Parallel revisions to day public comment period. This rule with typical run times averaging about §§ 75.11(d)(3), 75.12(e)(3), and provision is considered unnecessary, in 15 to 20 minutes. However, the revised 75.13(d)(3), consistent with the changes view of the Agency’s authority under Method 20 no longer specifies the to § 75.19(a)(1), were also proposed to Subpart E to approve alternative minimum number of test points per run, clarify the Agency’s intent. monitoring systems and the rigorous but rather requires sampling point Summary of Rule Changes requirements in §§ 75.40 through 75.48 selection to be done according to that alternative monitoring systems Method 7E. Revised Method 7E requires No adverse comments were received must meet in order to be certified. 12 traverse points for an emission test on the proposed changes and they have run (which would suffice for Appendix Summary of Rule Changes been finalized. E testing), but the method also allows Commenters were supportive of the 7. Use of Maximum Controlled NOX the results of stratification testing to be Emission Rate When Using Bypass proposed amendments to § 75.20(f), and used to justify using three or, in some Stacks they have been finalized. cases, one sample point instead. This 2. Part 60 Reference Test Methods raises questions about the required Background length of an Appendix E test run. For Revisions to § 75.17(d)(2) were Background instance, if testing were required at only proposed that would allow a maximum On May 15, 2006, EPA promulgated one point, each Appendix E test run controlled NOX emission rate (MCR) to final revisions to EPA reference test would be reduced from 15–20 minutes be reported instead of the maximum methods 6C, 7E, and 3A, which are to as little as 2 minutes (depending on potential NOX emission rate (MER) found in Appendix A of 40 CFR Part 60. the system response time). The whenever an unmonitored bypass stack (See 71 FR 28082, May 15, 2006). These commenter stated that such short is used, provided that the add-on test methods are prescribed for Part 75 sampling runs seem inadequate to

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develop a substantial correlation curve paired OH trains, as specified in trains for the OH method was made for emission reporting. The commenter Performance Specification 12A in during the rulemaking that led to recommended that EPA modify Appendix B of 40 CFR Part 60. publication of the Clean Air Mercury Appendix E or Method 20 and either set EPA also proposed amendments to Regulation (CAMR) (see 70 FR 28636– a minimum run time of 20 minutes §§ 75.22(a)(7), 75.59(a)(7), 75.81(c)(1), 28639, May 18, 2005). (providing an hour of data at each load) and to sections 6.5.10 and 7.6.1 of Two commenters supported the or specify a minimum number of Appendix A, allowing EPA Method 29 proposed 20 percent alternative RD sampling points for an Appendix E test (back-half impinger catch, only) to be specification for low emitters, and that of a CT. used as an alternative to the OH provision has been finalized. However, EPA has incorporated the method, both for RATA testing and for one of the commenters noted that even commenter’s recommendations into Part periodic emission testing of units with a 20 percent RD specification may be 75. First, § 75.22(a)(5) has been low Hg mass emissions (≤29 lb/yr). Two too stringent for extremely low Hg amended to prohibit the use of Method caveats on the use of Method 29 were concentrations. EPA agrees that when 7E to determine the required number of proposed. First, sources electing to use Hg concentrations are exceptionally low sample points for the emission testing of Method 29 (which is similar to the OH (0.1 µg/m3 or less), the 20 percent RD a combustion turbine. Section method, but somewhat simpler and specification may be difficult to meet. 75.22(a)(5)(ii) requires the sample points more familiar to stack testers) would be Therefore, the final rule adds a third tier to be determined according to section required to use paired sampling trains to the RD specifications in § 75.22. The 2.1.2.2 of Appendix E, instead. Second, (i.e., two trains sampling the source paired train agreement is also for the emission test of a CT, section effluent simultaneously), and the RD considered to be acceptable if the 2.1.2.2 of Appendix E has been revised specifications in § 75.22(a)(7) would absolute difference between the two to require a minimum of 12 test points have to be met for each run. Second, measured Hg concentrations does not µ 3 per run, located according to EPA certain analytical and quality assurance exceed 0.03 g/m . Method 1. Third, amendments have (QA) procedures in the OH method Several commenters strongly been made to § 75.22(a)(6), (ASTM D6784–02) would have to be supported the proposal to allow the use § 75.19(c)(1)(iv)(A), section 6.5.10 of followed instead of the corresponding of a sorbent-based reference method for Appendix A, and sections 2.1.2.2 and procedures in Method 29 (because the Hg emission testing and for the RATAs 2.1.2.3 of Appendix E, to remove all analytical and quality assurance/quality of Hg monitoring systems. Since references to EPA Method 20 from Part control (QA/QC) requirements of the OH publication of the proposed rule, a great 75. Fourth, for the testing of an method are more detailed and rigorous deal of progress has been made in this Appendix E boiler, the text of section than those in Method 29), and testers area. First, EPA conducted a Method 2.1.2.1 of Appendix E has been revised could opt to follow several of the 301 analysis of available data comparing to require 12 traverse points per run, sample recovery and preparation sorbent trap sampling to the OH making it consistent with revised procedures in the OH method instead of method. The results of this analysis section 2.1.2.2 (note that this is not a the Method 29 procedures. showed that a sorbent-based sampling new requirement—section 2.1.2.1 has Finally, the Agency solicited method can be a viable alternative always required 12 test points, located comment on the use of sorbent traps for reference method. Second, EPA drafted reference method testing. Members of according to section 8.3.1 of Method 3, ‘‘Method 30B’’, a reference method that the regulated community had expressed and that section refers back to Method uses iodated carbon traps to measure an interest in using portable sorbent trap 1). Finally, in section 2.1.2.3 of vapor phase Hg emissions. Finally, as monitoring systems for Hg reference Appendix E, the references to the part of a direct final rulemaking, method testing, as an alternative to the measurement system response time in Method 30B was published on OH method. EPA proposed to section 5.5 of Method 20 (which section September 7, 2007 (see 72 FR 51494– accommodate a possible future sorbent- no longer exists) have been replaced 51531), along with Method 30A, an based reference method by adding with references to the response time instrumental Hg reference method. language to § 75.22(a)(7) that would provisions in sections 8.2.5 and 8.2.6 of Today’s final rule allows both Methods allow an ‘‘other suitable’’ reference Method 7E. Appendix E tests performed 30A and 30B to be used. method approved by the Administrator on CTs prior to the effective date of to be used for Hg emission testing and D. Missing Data Substitution these amendments are grandfathered RATAs. from the revised test point location 1. Block Versus Step-Wise Approach requirements. Summary of Rule Changes Background 3. Mercury Reference Methods Commenters were generally Historically, EPA’s policy has supportive of the proposed amendments required sources to use a ‘‘block’’ Background that would add Method 29 as an approach for CEMS missing data EPA proposed to add an alternative alternative Hg reference method, and substitution. The percent monitor data relative deviation (RD) specification for those provisions have been finalized availability (PMA) at the end of the the results of mercury (Hg) emission without substantive change. One missing data period has been used to data collected with paired Ontario commenter objected to the requirement determine which mathematical Hydro (OH) reference method sampling to use paired sampling trains for OH algorithm applies, and the substitute trains. The principal RD specification in and Method 29 tests, asserting that this data value or values prescribed by that § 75.22(a)(7) is 10 percent. However, adds to the cost of testing and may one algorithm have been reported for this acceptance criterion may be too result in significant numbers of test runs each hour of the missing data period. stringent for sources with low Hg being discarded. However, EPA does not However, EPA has recently emissions. Therefore, for average Hg agree with the commenter. The Agency reconsidered and revised its missing concentrations of 1.0 µg/m3 or less, EPA believes rather that paired sampling substitution data policy, to allow proposed an alternative RD specification trains provide added assurance of data sources to apply the missing data of 20 percent. This is consistent with quality when these test methods are algorithms in a stepwise manner instead the acceptance criteria for data from used. The decision to require paired of using the block approach. Under the

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stepwise methodology, the various period. The proposed revisions would provisions to ozone season-only missing data algorithms are applied simply allow the maximum controlled reporters. Another commenter asked sequentially. That is, the least values to be reported whenever EPA to clarify that the MCR may be conservative algorithm is applied to the parametric data are available to implemented on a fuel-specific basis. missing data hours until the PMA drops document that the emission controls are EPA has incorporated both of these below 95%. Then, the next algorithm is operating properly. The proposed rule suggestions in the final rule. Two other applied until the PMA has dropped would further clarify that this reporting commenters suggested that, for common below 90%, and so on. option applies only to the third missing stack configurations, EPA should allow Since Part 75 is not clear about which data tier, when the PMA is greater than the substitute data values to be of the two methods should be used for or equal to 80.0 percent, but less than apportioned or prorated in some way missing data substitution, EPA proposed 90.0 percent. instead of requiring maximum potential to amend §§ 75.33 and 75.32(b), to EPA also proposed to add a new values to be reported, in cases where the clarify that the stepwise, hour-by-hour paragraph (a)(5) to § 75.34, which would emission controls installed on some of method is the preferred one, and that allow units with add-on emission the units sharing the stack are use of that method would be required controls to report alternative substitute documented to be operating properly, for all CEMS data recorded on and after data values for missing data periods in but such documentation cannot be January 1, 2009, and for any CEMS data the fourth missing data tier, when the provided for the controls on the other recorded in XML-format during the PMA is below 80.0 percent. Proposed units. The Agency believes that this transition year of 2008. § 75.34(a)(5) would allow the owner or approach would unnecessarily operator to replace the maximum complicate the missing data substitution Summary of Rule Changes potential SO2 or NOX concentration process and would provide no Commenters unanimously supported (MPC) or the maximum potential NOX assurance that emissions are not being the proposal to adopt stepwise missing emission rate (MER) with a less underestimated. Therefore, this data substitution and the proposed conservative substitute data value, for suggestion was not incorporated in the amendments to §§ 75.32 and 75.33 have missing data hours where parametric final rule. been finalized. data, (as described in §§ 75.34(d) and 75.58(b)) are available to verify proper 3. Substitute Data Values for Hg 2. Substitute Data Values for Controlled operation of the add-on controls. Background Units Specifically, for SO and NO 2 X EPA proposed to revise the Hg Background concentration, the replacement value for the MPC would be the greater of: (a) The missing data procedures. First, for Hg For units with add-on emission maximum expected concentration CEMS, the text of § 75.38(a) would be controls, when the PMA for SO2 or NOX (MEC); or (b) 1.25 times the maximum amended to clarify that the PMA is below 90.0 percent, § 75.34(a)(3) has controlled value in the standard missing ‘‘trigger conditions’’ for Hg monitoring historically allowed the designated systems are different from the trigger data lookback period. For NOX emission representative (DR) to petition the rate, the replacement value for the MER conditions for all other parameters. For Administrator under § 75.66 for would be the greater of: (a) The all parameters except Hg, the trigger permission to report the maximum points that define the boundaries of the maximum controlled NOX emission rate controlled concentration or emission (MCR); or (b) 1.25 times the maximum four missing data tiers are 95 percent, 90 rate recorded in a specified lookback controlled value in the standard missing percent, and 80 percent PMA. However, period instead of reporting the data lookback period. The NOX MCR for Hg the corresponding trigger points maximum value recorded in that would be calculated in the same manner are 90 percent, 80 percent and 70 lookback period, for each missing data as the NOX MER, except that the MEC, percent, respectively. hour in which the add-on controls are rather than the MPC, would be used in Second, EPA proposed to completely documented to be operating properly. the calculation. The proposed revise the missing data provisions in After more than ten years of alternative data substitution § 75.39 for sorbent trap monitoring implementing the Acid Rain Program, methodology in § 75.34(a)(5) would systems, to make them the same as for EPA no longer believes that such special ensure that the substitute data values for Hg CEMS, so that. the initial missing petitions are necessary, because sources the fourth missing data tier are always data procedures of § 75.31(b) and the with add-on controls are required to higher than the corresponding substitute standard Hg missing data provisions of implement a quality assurance/quality data values for the third tier. § 75.38 would be followed for sorbent control (QA/QC) program that includes Finally, EPA proposed to revise trap systems. EPA believes that this the recording of parametric data to § 75.38(c) to extend the alternative proposed missing data approach greatly document the hourly operating status of missing data options for the third and simplifies the missing data substitution the emission controls. This parametric fourth tiers to mercury (Hg) process for Hg monitoring systems. The information must be made available to concentration, and § 75.58(b)(3) would hourly Hg concentration data stream inspectors and auditors upon request. be revised to be consistent with the from a sorbent trap system will look Therefore, any claim that the emission proposed revisions to §§ 75.34(a)(3), essentially the same as the data stream controls were operating properly during 75.34(a)(5), and 75.38(c). from a CEMS, except that the Hg a particular missing data period can be concentration will ‘‘flat-line’’ (i.e., will easily verified through the audit Summary of Rule Changes not change) during each data collection process. Comments on the proposed period. Therefore, under the proposal, In view of this, the Agency proposed alternative missing data substitution when the owner or operator elects to use to remove from § 75.34(a)(3) and values for controlled units were a primary Hg CEMS and a backup § 75.66(f) the requirement to petition the generally supportive and these sorbent trap system (or vice-versa), the Administrator to use the maximum provisions have been finalized. Two appropriate substitute data values controlled SO2 or NOX concentration (or commenters requested that parallel would be derived from a lookback maximum controlled NOX emission language be added to § 75.72(c)(3), to through the previous 720 hours of rate) from the applicable lookback extend the use of the new missing data quality-assured data, irrespective of

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whether they were from the primary support the new XML data structure. (CAMR), which goes into effect in 2009. monitoring system or from the backup The proposed changes to the monitoring The proposed revisions to §§ 75.4(d) system. plan and recordkeeping sections were and 75.61(a)(3) were deemed necessary presented, section-by-section, in Tables because the CAIR and CAMR rules do Summary of Rule Changes 1, 2, and 3 in the preamble to the not address deferred units. Commenters were supportive of the August 22, 2006 proposed rule. The proposed revisions to § 75.4(d) proposed changes to the sorbent trap Summary of Rule Changes would require the owner or operator of missing data procedures in § 75.39, and a deferred unit to provide notice of unit these provisions have been finalized. No significant adverse comments shutdown and recommencement of were received on the proposed changes 4. Correction of Cross-References commercial operation, either according and they have been finalized. to § 75.61(a)(3) (for planned shutdowns Background 1. Other Reporting Issues such as scheduled maintenance outages For sources that report emissions data and for unplanned, forced unit outages) a. Long-Term Cold Storage and Deferred on an ozone season-only basis, EPA or § 75.61(a)(7) (for units in long-term Units proposed to revise § 75.74(c)(3)(xi) and cold storage). For all of these (c)(3)(xii) by replacing references to Background circumstances involving deferred units, specific missing data sections with more EPA proposed changes to Part 75 to EPA proposed that the Part 75 general references to the entire block of clarify the meaning of the term ‘‘long- continuous monitoring systems would CEMS missing data sections, i.e., term cold storage (LTCS)’’, found in have to be certified within 90 unit §§ 75.31 through 75.37. § 75.4(d). First, a proposed definition of operating days or 180 calendar days (whichever comes first) of the date that Summary of Rule Changes long-term cold storage would be added to § 72.2. LTCS would mean that the the unit recommences commercial No adverse comments were received unit has been completely shut down operation. In the time interval between on these proposed rule changes and and placed in storage and that the the unit re-start and the completion of they have been finalized, as proposed. shutdown is intended to last for an the required certification tests, the owner or operator would be required to E. Recordkeeping and Reporting extended period of time (at least two calendar years). Second, the Agency report emissions data, using either: (1) Background proposed to add a new paragraph, (a)(7), Maximum potential values; (2) the To accommodate its new, re- to § 75.61, requiring the owner or conditional data validation procedures engineered XML reporting format, operator to provide notifications when a of § 75.20(b)(3); (3) EPA reference which will replace the current unit is placed in LTCS and when the methods; or (4) another procedure electronic data reporting (EDR) format unit re-commences operation. Third, approved by petition to the in 2009, EPA proposed to revise the modifications to § 75.20(b) were Administrator under § 75.66. Finally, monitoring plan recordkeeping proposed, requiring recertification of all the Agency proposed to revise the requirements in § 75.53, with monitoring systems when a unit re- notification requirements of corresponding revisions to § 75.73(c)(3) commences operations after a period of § 75.61(a)(3) to be consistent with the proposed changes to § 75.4(d). (for sources reporting NOX mass long-term cold storage. If a source emissions under Subpart H) and to claiming LTCS status re-commenced Summary of Rule Changes § 75.84 (for sources reporting Hg mass operation sooner than two years after emissions under Subpart I). being placed in LTCS, the notification Commenters were generally EPA proposed to add two new and recertification requirements would supportive of the proposed long-term paragraphs, (g) and (h), to § 75.53, apply. Fourth, the proposed rule would cold storage provisions, requesting only which describe the required monitoring exempt a unit in LTCS from quarterly minor clarifications. These provisions plan data elements in EPA’s re- emissions reporting under § 75.64 until have been finalized with no substantive engineered XML data structure. Under the unit recommences operation. changes. One commenter encouraged this proposal, the provisions of Parallel LTCS rule provisions and EPA to adopt the proposed amendments paragraphs (g) and (h) would be appropriate cross-references regarding to broaden the scope of § 75.4(d), to followed instead of the existing quarterly reporting requirements for ensure that deferred units under recordkeeping requirements of Subpart H and Subpart I units would be programs such as CAIR and CAMR are paragraphs (e) and (f), on and after added to §§ 75.73(f)(1) and 75.84(f)(1), provided with a reasonable window of January 1, 2009. In 2008, sources would respectively, for consistency. time in which to certify the required be allowed to choose between the EDR EPA also proposed to revise the monitoring systems, when the units format and XML, but new sources provisions of §§ 75.4(d) and 75.61(a)(3) resume operation. EPA has finalized reporting for the first time in 2008 pertaining to ‘‘deferred’’ units, i.e., units these amendments to § 75.4(d), as would be strongly encouraged to use the for which a planned or unplanned proposed. XML format. Included among the outage prevents the required continuous b. Notice of Initial Certification proposed monitoring plan changes monitoring systems from being certified Deadline would be mandatory recording and by the compliance date. The proposed Background reporting of the key rectangular duct revisions would broaden the scope of wall effects data elements using these § 75.4(d) beyond the Acid Rain Program, EPA proposed to add a new paragraph record types. The proposed to include units in State or Federal (a)(8) to § 75.61, to require new and requirements to record and report the pollutant mass emissions reduction newly affected sources to notify EPA results of wall effects adjustment factor programs that adopt the monitoring and when the monitoring system (WAF) determinations in the monitoring reporting provisions of Part 75. certification deadline is reached. plan are found in §§ 75.53 (e) and (g) Examples of such programs include the Depending on the program(s) to which and in § 75.64. Clean Air Interstate Regulation (CAIR), the unit is subject, this date will always EPA also proposed to make a series of which is scheduled to begin in 2008 and be a particular number of calendar days modifications to §§ 75.58 and 75.59 to the Clean Air Mercury Regulation or unit operating days after a unit either:

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(a) Commences commercial operation; Summary of Rule Changes g. Modifications to § 75.64 (b) commences operation; or (c) No adverse comments were received Background becomes an affected unit. For Acid Rain on these proposed rule changes and Program sources, the Agency must know As part of its data systems re- they have been finalized, as proposed. this date to correctly assess when to engineering effort, EPA proposed to begin counting emissions against d. EPA Form 7610–14 revise § 75.64(a) to describe the transition from the existing EDR allowances pursuant to § 72.9. Knowing Background this date also confirms that the reporting requirements to the reporting monitoring systems either have or have EPA proposed to amend §§ 75.63(a)(1) requirements of the new XML format. not been certified by the legal deadline. and (a)(2), to remove the requirement to The Agency proposed to renumber submit hardcopy EPA form 7610–14 several paragraphs, to replace Summary of Rule Changes along with every certification or paragraphs (a)(1) and (a)(2) with new paragraphs (a)(3) through (a)(7), and to One commenter asserted that the recertification application. Significant upgrades to EPA’s data systems have remove existing paragraph (a)(8). requirement for sources to submit to been made in recent years, and Form EPA a notification of the deadline for Summary of Rule Changes 7610–14 is no longer needed to process initial monitoring system certification is these applications. No adverse comments were received unnecessarily burdensome and should on these proposed rule changes. These not be incorporated into Part 75. Summary of Rule Changes amendments to § 75.64(a) have been Another commenter requested that the No adverse comments were received finalized, as proposed. information be reported in the on these proposed rule changes and electronic monitoring plan, rather than h. Steam Load Reporting they have been finalized, as proposed. requiring a separate notification. EPA Background does not agree that reporting this e. LME Applications EPA proposed to add a third option to information will be burdensome or that Background Part 75 for reporting load data in units it is appropriate to report the date of the of mmBtu/hr of steam thermal output. initial certification deadline in the EPA proposed to remove the This option is needed to accommodate electronic monitoring plan. Rather, this requirement from § 75.63(a)(1)(ii)(A) for emissions trading programs in which date is an essential data element that a hardcopy LME certification allowance allocations are made on an will be managed using the web-based application to be submitted to the electrical or thermal output basis, rather CAMD Business System (CBS). Administrator. The proposal would than a heat input basis. The Agency Therefore, the notification requirement require only the electronic portion of proposed to add text to several sections can be met electronically using the CBS. the application, including the in the main body of Part 75 and to the In view of this, the amendment to monitoring plan and LME qualification Appendices, to accommodate the new § 75.61 has been finalized, as proposed. records, to be sent to EPA’s Clean Air reporting option. Markets Division. The hardcopy portion c. Monitoring Plan Submittal Deadline of the LME application would be sent to Summary of Rule Changes Background the State and to the EPA Regional No adverse comments were received Office. on these proposed rule changes and EPA proposed to amend § 75.62(a) by Summary of Rule Changes they have been finalized, as proposed. changing the submittal deadline for the initial monitoring plan for new and No adverse comments were received i. Test Notification Requirements—Hg newly-affected units from 45 days to 21 on these proposed rule changes and Low Mass Emission Units days prior to the initial certification they have been finalized, as proposed. Background testing, in order to synchronize the f. Reporting Test Data for Diagnostic Section 75.61(a)(5) requires the owner initial monitoring plan submittal with Events or operator or the designated the initial test notice. Corresponding representative to provide 21-day changes to Subpart H (§ 75.73(e)) and to Background advance notice for various periodic Subpart I (§ 75.84(e)) were proposed, for EPA proposed to revise quality-assurance tests, including the consistency. § 75.63(a)(2)(iii) to make the reporting of semiannual or annual relative accuracy EPA also proposed to remove the the results of diagnostic tests more tests of CEMS, and for the re-tests of requirement from § 75.62(a)(1) that the flexible. Rather than requiring these test Appendix E peaking units and low mass electronic monitoring plan must be results to be reported in the electronic emissions (LME) units. Test notices submitted ‘‘in each electronic quarterly quarterly report for the quarter in which must be provided to the Administrator, report’’. Rather, inclusion of the the tests are performed, they could to the appropriate EPA Regional Office monitoring plan in the report would be either be submitted prior to or and to the State or local agency (unless optional, and monitoring plan updates concurrent with that quarterly report. a particular agency issues a waiver from would be made either prior to or However, this proposed flexibility in the the requirement). concurrent with (but not later than) the reporting of diagnostic test results Under Subpart I of Part 75, certain date of submission of the quarterly would only be available to sources low-emitting units covered by the Clean report. These proposed revisions would reporting in the new XML format under Air Mercury Regulation (CAMR) may allow sources to maintain their the re-engineered data submission qualify under §§ 75.81(b) through (d) to monitoring plan information separate process. perform periodic (semiannual or from the quarterly report, but this Summary of Rule Changes annual) Hg emission testing in lieu of option would only be available to operating and maintaining continuous sources reporting in the new XML No adverse comments were received Hg monitoring systems. EPA proposed format under the re-engineered data on these proposed rule changes and to expand the notification requirements submission process. they have been finalized, as proposed. of § 75.61(a)(5) and to add

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corresponding introductory text to applied. Additional supporting data system. The NOX concentration system § 75.61(a)(1), requiring the owner or elements, not in the current rule, are would be used only to determine NOX operator or the designated also needed for Method 2 flow RATAs mass emissions, and the NOX emission representative to provide at least 21 when wall effects adjustments are made. rate system would be used only to meet days notice of the scheduled dates of In view of this, EPA proposed to revise the ARP requirement to report NOX in these periodic Hg emission tests. the text of §§ 75.64(a)(2)(xiii), lb/mmBtu. 75.73(f)(1)(ii)(K) and 75.84(f)(1)(ii)(I) Summary of Rule Changes and to add RATA support data elements Summary of Rule Changes No adverse comments were received to a new paragraph, (vii), in No adverse comments were received. on this proposed rule change and this § 75.59(a)(7), to clarify which wall This provision has been finalized, as test notification requirement has been effects data elements must be reported proposed. finalized, as proposed. for circular stacks, which ones are 3. Reporting of Subpart H Facility reported for rectangular stacks and j. Hardcopy Reports for Retests of Hg Information ducts, and which data elements must be Low Mass Emission Units reported for both types of stacks. Background Background Summary of Rule Changes Consistent with the proposed Sections 75.60(b)(6) and (b)(7) require revisions to § 75.64, EPA proposed to No adverse comments were received the designated representative (DR) to revise § 75.73(f)(1), to phase out the on these proposed rule changes and submit the results of certain periodic requirement of § 75.73(f)(1)(i)(B) to they have been finalized, as proposed. quality-assurance tests to the include facility location information in appropriate EPA Regional Office or to F. Subpart H (NOX Mass Emissions) each quarterly report. the State or local agency, when the test 1. Subpart H Diluent Monitoring Summary of Rule Changes results are requested in writing (or by Systems electronic mail). In particular, the No adverse comments were received. results of semiannual or annual RATAs Background This provision has been finalized, as of CEMS and the routine re-tests of For coal-fired Subpart H units that proposed. Appendix E units may be requested. If calculate NOX mass emissions as the 4. Linearity Check Requirements for requested, the test results must be product of NOX concentration and flow Ozone Season-Only Reporters submitted within 45 days after the test rate and are required to monitor and is completed or within 15 days of the report the unit heat input, § 75.71(a)(2) Background request, whichever is later. EPA requires the installation of an ‘‘O2 or For Subpart H sources that report proposed to add a new paragraph (b)(8) CO2 diluent gas monitor’’. Consistent emissions data on an ozone season-only to § 75.60, requiring the DR to provide, with the definition of a CEMS in § 72.2, (OSO) basis, EPA proposed to revise the upon request from EPA or the State, the this diluent monitor, which is only used linearity check provisions in results of the semiannual or annual Hg for the heat input determination, should § 75.74(c)(2), (c)(2)(i), (c)(2)(ii), (c)(3)(ii), emission tests required under be described as an ‘‘O2 or CO2 (c)(3)(vi), and (c)(3)(viii). Historically, § 75.81(d)(4) for low-emitting units monitoring system’’. EPA proposed to OSO reporters have been required to do covered by CAMR. The proposed time revise the text of § 75.71(a)(2) a pre-season linearity check, an in- frame for submitting these Hg emission accordingly. season second quarter linearity check test results would be the same as the (in May or June, if the unit operates for Summary of Rule Changes current one for the RATAs and ≥ 168 hours in May and June), and a Appendix E re-tests. No adverse comments were received. third quarter linearity check, if the unit This clarification of § 75.71(a)(2) has ≥ Summary of Rule Changes operates for 168 hours in that quarter. been finalized, as proposed. Many sources have misunderstood these No adverse comments were received 2. Identifying a NOX Mass Methodology rule provisions, particularly the and this provision has been finalized, as requirement to perform an in-season proposed. Background linearity check in the second quarter. In k. Wall Effects Adjustment Factors EPA proposed to revise § 75.72 to some cases, this has resulted in CEMS require that only one NOX mass out-of-control periods and has required Background emissions methodology be identified in the use of missing data substitution. For sources with flow monitors the monitoring plan at any given time, OSO reporters have also been required installed on circular stacks, reporting of and to disallow the designation of to operate and maintain each CEMS and wall effects information is currently primary and secondary NOX mass to perform daily calibration error tests, required by §§ 75.64(a)(2)(xiii), calculation methodologies. EPA believes in the time period extending from the 75.73(f)(1)(ii)(K) and 75.84(f)(1)(ii)(I), that one methodology for NOX mass hour of completion of the pre-season when Method 2H is used in conjunction emissions is sufficient. If a source is linearity check through April 30. EPA with Method 2, 2F or 2G. The specific subject to both Subpart H and to the has found that this rule provision is also wall effects data elements that must be Acid Rain Program (ARP) and is not well-understood by the affected reported are found in § 75.59(a)(7)(ii) concerned about losing NOX data when sources and assessing compliance with and (a)(7)(iii). These data are submitted the diluent component of the NOX the provision has been difficult, since along with flow RATA results, as emission rate system is out-of-control, sources have not been required to report supplementary information. that source should choose the NOX the results of any off-season calibration For rectangular stacks and ducts, concentration times flow rate error tests done prior to April. some of the same supporting data calculation method as the NOX mass In view of these considerations, EPA elements in § 75.59(a)(7)(ii) and calculation methodology. This would proposed to revise § 75.74(c)(2) to (a)(7)(iii) are needed for flow RATAs require a NOX concentration system to require the pre-season linearity checks performed using Method 2F or 2G, be identified in the monitoring plan, in to be conducted in the month of April, when wall effects corrections are addition to the NOX emission rate and to delete all references to

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performing the pre-season linearity proposed amendments requiring the to those proposed for linearity checks, checks at other times. The Agency also pre-season linearity check to be in that a period of conditional data proposed to remove the conditional performed April and the 3rd quarter test validation (720 operating hours) would grace period provision from to be done in July were perceived as be allowed when the pre-season RATA § 75.74(c)(2)(i)(D), and to address (in being too restrictive. EPA does not agree is not completed by the April 30th § 75.74(c)(3)(ii)(E)) data validation in the with these commenters that the revised deadline. Consistent with these case where the April linearity check is quality assurance requirements for revisions, the Agency proposed to delete not completed prior to the start of the ozone season-only reporters lack the data validation and conditional ozone season. In that case, data from the flexibility. The amendments allow grace period provisions in monitor would be considered invalid as sources to use conditional data § 75.74(c)(2)(ii)(G) and (c)(2)(ii)(H) and of May 1, unless the conditional data validation for up to 168 unit or stack to remove and reserve § 75.74(c)(3)(vi), validation procedures of § 75.20(b)(3) operating hours, in situations where the (vii), and (viii). are applied. A 168 unit operating hour linearity check cannot be completed by period of conditional data validation the prescribed deadline. If the required Summary of Rule Changes would be allowed, in which to perform test is performed and passed within the the required linearity check. Passing the allotted window of time, the source will The amendments to § 75.74(c) have linearity check on the first attempt incur no data loss. OSO reporters been finalized, as proposed. One within the allotted time would result in desiring greater flexibility in scheduling commenter objected to the proposed the conditionally valid data becoming quality assurance tests should seriously restriction on the timing of the RATAs quality-assured. Failing the linearity consider switching to year-round and requested that the existing check would result in all data from the reporting. Doing so would provide many flexibility in the rule be retained. The monitor be invalidated back to the benefits, such as grace periods, test commenter expressed a strong beginning of the ozone season and the deadline extensions, and in some cases, preference to perform RATAs in the data would remain invalid until a test exemptions. autumn, rather than in the January-April linearity check is passed. Performing the time frame proposed by EPA. A second linearity check after the 168-hour period 5. RATA Requirements for Ozone commenter stated that EPA should expires would require the data Season Only Reporters remove the requirement to keep records validation provisions in Background of off-season daily calibration and § 75.20(b)(3)(viii) to be applied, subject For Subpart H sources that report interference check records in a format to the restrictions of § 75.74(c)(3)(xii). suitable for inspection from NOX mass emission data on an ozone EPA proposed to add a new paragraph § 75.74(c)(2)(ii)(E)(1). (F) to § 75.74(c)(3)(ii), stating that a pre- season-only (OSO) basis, Part 75 has season linearity check done in April required, for quality-assurance Regarding the first commenter’s fulfills the second quarter linearity purposes, that at the start of each ozone assertion that the proposed RATA time check requirement, and to remove and season each required CEMS must be frame for OSO reporters is too reserve related Section 75.74(c)(3)(viii). within the ‘‘window’’ of data validation restrictive, EPA recommends that the Further, proposed § 75.74(c)(3)(ii)(B) of a current, non-expired RATA. In past owner or operator seriously consider would require the third quarter linearity years, this requirement has been met switching to year-round reporting. Year- check to be conducted either by July 30 either by performing a RATA in the pre- round reporting allows complete or within a 168 operating hour period of season (between October 1 and April 30) freedom to schedule RATAs at any conditional data validation thereafter. or, in some instances, by relying on the convenient time during the year and Finally, the Agency proposed that results of a RATA done in the previous provides many benefits, such as grace § 75.74(c)(3)(ii)(G) would address the ozone season. The rule has further periods, test deadline extensions, and in case where a unit operates infrequently required each CEMS to be operated, some cases, test exemptions. Even if and the 168 operating hour conditional calibrated and maintained in the time EPA had decided not to amend the data validation period associated with period extending from the completion of RATA provisions for OSO reporters, the April linearity check extends the RATA, through April 30. Many § 75.74(c)(2)(ii)(E)(1) would still require through the second quarter, into the sources choosing the OSO reporting the CEMS to be operated, maintained third quarter. In that case, if a linearity option find this operation and and calibrated in the time period check is performed and passed in the maintenance (O&M) requirement to be between the RATA and the start of the third quarter, before the 168 operating counter intuitive, because they expect to next ozone season. Thus, if the RATAs hour window expires, EPA proposed be required to meet Part 75 monitoring are performed in the autumn (e.g., that this one linearity check would obligations only during the ozone November), the CEMS would have to be satisfy all three of the ozone season season. maintained and calibrated for at least 10 linearity check requirements, i.e., for the In view of these considerations, EPA months of the year; in this case, OSO pre-season, for the second quarter, and proposed to restrict the window of time reporting offers no clear advantage over for the third quarter. in which pre-season RATAs may be year-round reporting. performed. As proposed, § 75.74(c)(2)(ii) Summary of Rule Changes would require the RATAs to be done EPA did not incorporate the second The amendments to § 75.74(c) have either in the first quarter of the year or commenter’s suggestion to remove the been finalized, as proposed. in the month of April. That restriction recordkeeping requirement from Commenters supported EPA’s proposal would prohibit RATAs done in the § 75.74(c)(2)(ii)(E)(1). However, the text to allow a linearity check performed in previous year from being used to of § 75.74(c)(6)(iii) has been revised to April to satisfy both the pre-season and validate data in the current ozone remove the requirement to report the second quarter linearity check season. daily calibrations and interference requirements. However, several EPA also proposed to revise checks done in the month of April. The commenters requested that the Agency § 75.74(c)(2)(ii)(F), to address data requirement to record these data allow greater flexibility in the timing of validation. The proposed data remains intact, but the reporting has the required linearity checks. The validation rules for RATAs are similar been made optional.

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6. Determining Peaking Status for Ozone monitor and a diluent monitor on the would be determined from Table LM–4 Season Only Reporters duct leading from each unit to the in § 75.19. The proposed amendments allowed Background common stack. For multiple stack configurations, proposed § 75.82(c)(4) one exception to the requirement to test EPA proposed to revise § 75.74(c)(11) and (d)(3) would require the owner or the individual units sharing a common to clarify that when peaking unit status operator to determine the hourly unit stack, in order to demonstrate that the for ozone season-only reporters is heat input by measuring the hourly heat units qualify for low mass emitter determined, 3,672 hours (i.e., the input rate (mmBtu/hr) at each stack, status, i.e., the case where the gas number of hours in the ozone season) multiplying each stack heat input rate streams from the individual units are should be used instead of 8,760 hours by the stack operating time (hr) to combined together and routed through in the capacity factor equation. convert it to heat input (mmBtu), and emission controls that reduce the Hg Summary of Rule Changes then summing the hourly stack heat concentration (e.g., a wet scrubber) input values. before entering the common stack. No adverse comments were received. Owners or operators electing to use this This provision has been finalized, as Summary of Rule Changes option would be required to perform the proposed. No adverse comments were received. testing with all of the units that share 7. Calculation of Ozone Season NOX These provisions have been finalized, as the stack in operation, and the Mass Emissions—LME Units proposed. combined load during the testing would have to be ‘‘normal’’, as defined in Background 2. Low Mass Emission Alternative Section 6.5.2.1 of Appendix A. EPA proposed to correct an Background EPA also proposed to revise organizational error in Subpart H of Part § 75.81(c)(1), to specify the acceptable Section 75.81(b) of Subpart I provides 75. The proposal would remove time frame in which to perform the an alternative (‘‘excepted’’) monitoring § 75.72(f), which describes ozone season initial certification testing for the low methodology for units with low Hg mass NO mass calculations for units using mass emission option. As originally X emissions. To qualify to use this the low mass emission (LME) published, the rule simply states that methodology, emission testing is methodology under § 75.19, and the this testing must be done ‘‘prior to the required to demonstrate that the unit basic content of § 75.72(f) would be compliance date in § 75.80(b)’’, but does has the potential to emit no more than relocated to § 75.71(e). The LME not specify how far in advance of that 29 lb (464 ounces) of Hg per year. Once provision in § 75.72 appears to have date the testing may be done and still be a unit qualifies, periodic retesting been inadvertently placed in that considered acceptable. Further, (semiannual or annual, depending on section. The monitoring provisions of § 75.81(d)(1) requires the test results to the emission level) is required to § 75.72 apply to common and multiple be submitted as a certification demonstrate that the unit is actually stack configurations, whereas § 75.71 application, no later than 45 days after emitting less than 29 lb/yr of Hg. addresses unit-level monitoring. LME is completing the testing. And Section 75.81(e), as originally a unit-level monitoring methodology. § 75.81(d)(4) requires periodic Hg published, allowed the low mass retesting to commence within two or Summary of Rule Changes emission alternative to be used for four ‘‘QA operating quarters’’ after the No adverse comments were received. common stacks, provided that the units quarter of the certification testing. This provision has been finalized, as sharing the stack are tested individually If there is too long a gap between the proposed. and each one qualifies as a low-emitter. certification testing and the start of the Though not explicitly stated in the rule, program, it becomes problematic. For G. Subpart I (Hg Mass Emissions) it was implied that the periodic retests instance, if the testing is done too early, 1. Heat Input Provisions for Common for common stack configurations would the requirement to submit a certification and Multiple Stacks also have to be done at the unit level. application within 45 days could result EPA has reconsidered this approach, in applications being submitted long Background believing it to be overly restrictive, before the regulatory agencies are ready Due to an apparent oversight, the heat unnecessarily difficult, and costly to to receive and process them. Also, the input monitoring provisions for certain implement. periodic retesting requirements of monitoring configurations in Subpart I Therefore, EPA proposed to revise § 75.81(d)(4), which become active on of Part 75 were inadvertently omitted § 75.81(e) to require Hg testing of the the certification test date, could result in when Subpart I was promulgated. In individual units that share the common several Hg retests being done before the particular, EPA found the heat input stack only for the initial demonstration program begins. This is clearly contrary methodologies for common stacks that the units individually qualify as to the purpose of the retests, which, like shared by affected and non-affected low emitters. Once this has been the periodic relative accuracy tests of units and for multiple stack or duct satisfactorily demonstrated, the required CEMS, are intended to commence after configurations to be missing. In view of semiannual or annual retests could then the compliance date, when Hg this, the Agency proposed to add three be done at the common stack, at a emissions reporting has begun. This also new paragraphs, (b)(3), (c)(4) and (d)(3) normal load level for the configuration. raises questions about which default to § 75.82 to correct this deficiency. The proposed revisions to § 75.81(e) emission rate to use for the initial For the common stack shared by would also allow the initial low mass reporting. In view of these affected and non-affected units, emitter qualification for a group of considerations, EPA proposed to revise proposed § 75.82(b)(3) would require identical units sharing a common stack § 75.81(c)(1), to require that the Hg the owner or operator to either measure to be based on emission testing of a testing for initial certification be done the total heat input rate at the common subset of those units. To exercise this no more than 1 year before the stack and apportion it to the individual proposed option, the group of units compliance date. Sections 75.81(d)(2) units by load, according to § 75.16(e)(3), would first have to qualify as identical and 75.81(d)(5) would also be revised, or to determine the heat input rate at the under § 75.19(c)(1)(iv)(B). Then, the to address the case where a retest may individual units by installing a flow number of units required to be tested be required before the compliance date

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(e.g., when § 75.81(d)(4) requires a retest operator must record parametric data or coal as the primary fuel for the unit, in- within two QA operating quarters, SO2 concentration data in accordance between the scheduled LME retests following a certification test that was with § 75.58(b)(3)(i) to document proper (where coal rank is defined by ASTM done 9 to 12 months before the operation of the controls. D388–99), an additional LME retest is compliance date). In such cases, the For retests, provided that the required required within 720 operating hours of default Hg emission rate used at the load level is attained and that all of the the change. The results of this retest are beginning of the program would be the units sharing the stack are fed from the then applied retrospectively back to the value that was obtained in the retest. same on-site coal supply during normal date and hour of the fuel switch. The Finally, EPA proposed to amend operation, it is not necessary for all of four principal coal ranks are anthracitic, §§ 75.81(d)(4) and (d)(5) to address the the units sharing the stack to be in bituminous, subbituminous, and emission testing requirements when the operation during a retest. However, if lignitic. The ranks of anthracite coal fuel supply is changed. The proposed two or more of the units that share the refuse (culm) and bituminous coal revisions would require additional Hg stack are fed from different on-site coal refuse (gob) are considered to be retesting within 720 unit operating supplies (e.g., one unit burns low-sulfur anthracitic and bituminous, hours, following a change in the fuel coal for compliance and the other respectively. supply. The results of this retest would combusts higher-sulfur coal), then the Equation 1 in § 75.81(c )(2), which is then be applied retrospectively, back to owner or operator must either: (1) used to demonstrate that a unit qualifies the time of the fuel switch. The Agency Perform the retest with all units in as a Hg low mass emissions unit, also proposed to revise § 75.81(c)(1) to normal operation; or (2) if this is not conservatively estimates the unit’s require that the fuel combusted during possible, due to circumstances beyond potential annual Hg emissions by the initial certification testing be from the control of the owner or operator assuming that it operates at the the same source of supply as the fuel (e.g., a forced unit outage), perform the maximum potential flow rate for 8,760 combusted when the program starts. retest with the available units operating hours per year. One commenter The proposed revisions only addressed and assess the test results as follows. requested that EPA consider modifying the emission testing and reporting The Hg concentration obtained in the Equation 1 to conditionally allow a requirements for one case, i.e., where retest is used for reporting purposes if number of hours less than 8,760 to be the source of supply for the primary fuel the concentration is greater than or used in the calculations, the condition (assumed to be coal) changes. EPA equal to the value obtained in the most being that there is a Federally- solicited comments and suggestions on recent test. However, if the retested enforceable permit provision in place, how to apply the Hg low mass emitter value is lower than the Hg concentration limiting the unit’s annual operating option in situations where the coal from the previous test, then the higher hours. EPA has incorporated this supply does not change, but the unit value from the previous test continues suggestion into the final rule. The term sometimes burns other types of fuel to be used for reporting purposes, and ‘‘8,760’’ in Equation 1 has been replaced besides coal or co-fires mixtures of coal that same higher Hg concentration is with ‘‘N’’, which will either be 8,760 or and other fuels (i.e., what emission used in Equation 1 to determine the due the maximum number of operating testing and reporting requirements date for the next retest. hours per year allowed by the unit’s The final rule expands the testing of might be appropriate). Federally-enforceable operating permit groups of identical units beyond (if less than 8,760). If the operating Summary of Rule Changes identical units that share a common permit restricts the unit’s annual heat Commenters were generally stack. Section 75.81(c)(1)(iv) has been input but not the number of annual unit supportive of the proposed amendments amended to allow a subset of any group operating hours, the owner or operator that would reduce the testing of identical units to be tested according may divide the allowable annual heat requirements for Hg low mass emission to Table LM–4 in § 75.19, whether or input (mmBtu) by the design rated heat units in common stack configurations. not the units share a common stack. input capacity of the unit (mmBtu/hr) to The final rule differs somewhat from the This amendment is modeled after the determine the value of ‘‘N’’. proposal, however, in that it also allows provisions of § 75.19(c)(1)(iv)(B) for Finally, no comments were received the initial qualifying test to be testing groups of identical LME units. performed at the common stack, if Several commenters objected to the on the proposal to require that the Hg certain conditions are met. The proposed requirement to perform emission testing for initial certification conditions are: (1) Testing must be done retesting of low mass emission units of a low mass emission unit be done no at a combined load corresponding to the when the fuel supply is changed. more than 1 year prior to the applicable designated normal load level (low, mid, Concerns were expressed that the term compliance date. Therefore, this or high) defined in the monitoring plan; ‘‘change in fuel supply’’ is not clearly provision has been finalized, as (2) all of the units that share the stack defined and could be interpreted to proposed. For units subject to the Clean must be operating in a normal, stable require frequent, unnecessary retesting, Air Mercury Regulation (CAMR), the manner and at typical load levels during especially in light of the variation in certification deadline is January 1, 2009. the emission testing; (3) the coal coal supplies from day to day in In view of this, only those Hg emission combusted in each unit during the competitive wholesale power markets. tests of candidate low mass emission testing must be representative of the A number of the commenters units that are performed on and after coal that will be combusted in that unit recommended that retesting be limited January 1, 2008 will be accepted for at the start of the Hg mass emission to changes in coal rank or classification initial certification. reduction program (preferably from the (e.g., changing from bituminous coal to 3. Harmonization of Subpart I With same source(s) of supply); and (4) if flue sub-bituminous coal). EPA has Other Proposed Rule Revisions gas desulfurization and/or add-on Hg incorporated the commenters’ emission controls are used to reduce the suggestion into the final rule. Section Background level of emissions exiting from the 75.81(d)(4) of the final rule clarifies Subpart I of Part 75 also contains a common stack, these emission controls what constitutes a ‘‘change in fuel recordkeeping and reporting section must be operating normally during the supply’’ that will trigger LME retesting. (§ 75.84). which, for the most part, emission testing and the owner or If a unit switches to a different rank of cross-references the primary monitoring

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plan, recordkeeping, notification and would allow only program participants tests. In view of this, EPA proposed to reporting sections of the rule (i.e., to market their gas standards as ‘‘EPA revise Section 6.1 of Appendix A to §§ 75.53, 75.57 through 75.59, 75.61, Protocol Gases.’’ EPA proposed to require all individuals who perform the and 75.64) and other sections of Subpart maintain a web site, listing the PGVP emission tests and CEMS performance I. participants and the audit results, in evaluations required by Part 75 to To make Subpart I consistent with the order to provide calibration gas users demonstrate conformance with ASTM proposed revisions to the monitoring with detailed information about the D7036–04 ‘‘Standard Practice for plan, recordkeeping, notification, and quality of EPA Protocol Gases. Competence of Air Emission Testing reporting sections of Part 75, EPA EPA also proposed to: (1) Add a Bodies’’. ASTM D7036–04 specifies the proposed to make a number of minor definition of ‘‘specialty gas producer’’ to general requirements for demonstrating adjustments to the text of §§ 75.84(c)(3), § 72.2; (2) delete several calibration gas that an air emission testing body (AETB) (e)(1), (e)(2), and (f)(1). standards and reference materials from is competent to perform emission tests Summary of Rule Changes section 5.1 of appendix A (believing of stationary sources. them to be prohibitively expensive and Proposed revisions to Section 6.1.2 of No adverse comments were received. not used in practice by Part 75 sources); Appendix A, Section 2.1 of Appendix E, These provisions have been finalized, as (3) remove from § 72.2 the and Section 1 of Appendix B make it proposed. corresponding definitions of the deleted clear that this requirement would apply H. Appendix A calibration gas standards; and (4) only to AETBs that perform RATAs, consolidate the remaining calibration NOX emission tests of Appendix E and 1. CO2 Span Values gas standards under section 5.1 of LME units, or Hg emission tests of low- Background appendix A. emitting units. It would not be applicable to the daily operation, daily EPA proposed to revise Section 2.1.3 Finally, EPA requested comment on the appropriate accuracy specification QA/QC (daily calibration error check, of Appendix A, to allow the use of CO2 to apply to Hg cylinder gases and other daily flow interference check, etc.), spans less than 6.0 percent CO2 if a Hg calibration standards (e.g., gases weekly QA/QC (i.e., Hg system integrity technical justification is provided in the checks), quarterly QA/QC (linearity hardcopy monitoring plan. This added from NIST-traceable generators). Currently, EPA requires that accuracy of checks, etc.), and routine maintenance flexibility in the CO2 span value mirrors of the CEMS. a similar provision in Section 2.1.3 for other EPA Protocol gases to be within 2 percent of the certified tag values. EPA also proposed to incorporate O2 span values. ASTM Method D7036–04 by reference Summary of Rule Changes Summary of Rule Changes in § 75.6(a)(45), and to add a definition Only one organization commented on of ‘‘Air Emission Testing Body’’ to No adverse comments were received. § 72.2. This provision has been finalized, as the proposed protocol gas verification proposed. program (PGVP). The commenter stated Summary of Rule Changes that a transition period is needed to 2. Protocol Gas Audit Program The amendments to Section 6.1.2 of implement the program. Sources need Appendix A, Section 2.1 of Appendix E, Background time to communicate with their gas and to Section 1 of Appendix B, EPA is responsible for implementing vendors regarding their participation in requiring AETBs to conform to ASTM air quality programs that rely heavily on the PGVP. The commenter further D7036–04, have been finalized, as the accuracy of calibration gas asserted that the PGVP would be proposed. Two commenters strongly standards. Section 2.1.10 of ‘‘EPA disruptive and costly, both in the short- supported the proposed revisions. Traceability Protocol for Assay and term and in the long-term, and that the However, several others objected to Certification of Gaseous Calibration affected sources would bear the brunt of them, believing they would be costly Standards’’ (Protocol Procedures), the cost impact. and burdensome, without producing September 1997 (EPA–600/R–97/121) EPA agrees with the commenter any noticeable improvement in data states that EPA will periodically assess regarding the need for a transition quality. EPA does not agree with these the accuracy of calibration gases and period. The final rule amends section commenters, for the following reasons. publish the results. Between 1978 and 5.1.4 (c) to have the Protocol Gas The experience of the State and 1996, EPA conducted several Verification Program (PGVP) take effect Federal regulators in the ASTM work performance audits of calibration gases on January 1, 2009. As the commenter group indicates that implementation of from various manufacturers. One has stated, the costs of the PGVP will be the ASTM Practice will result in notable result of these audits was a borne by the Part 75 sources using the improved data quality. EPA believes the steady, significant reduction in the calibration gases, and the Agency notes evidence is abundant that unqualified, failure rate of the audited gas cylinders, that these minimal costs ($5 to $10 under-trained and inexperienced testers from about 27% in 1992 down to 5% in added to a $500 to $1,000 cylinder) will are often deployed on testing projects. 1996. The annual audits were be offset by the savings generated by The Agency has had experiences with discontinued after 1996. Then, in 2003, fewer failed calibration error tests, tests that have been invalidated or EPA conducted a ‘‘surprise’’ audit of 14 linearity checks, and relative accuracy called into question due to poor national specialty gas producers and test audits. performance by testing contractors (see found that the failure rate had risen to 3. Requirements for Air Emission Docket Items OAR–2005–0132–0009, 11%. Testing Bodies –0021, and –0035). Conformance with In view of this, EPA proposed to ASTM D7036–04 does not guarantee establish a Protocol Gas Verification Background that every test will be performed Program (PGVP) and would require that Since the inception of the Acid Rain properly. However, it will reduce the EPA Protocol Gases being used for 40 Program, field audits of Part 75-affected likelihood of problems. Furthermore, it CFR Part 75 purposes be obtained from facilities have brought to EPA’s provides a guideline for both regulatory specialty gas producers who participate attention a number of improperly- agencies and affected sources to in the PGVP. As proposed, the rule performed RATAs and other QA/QC evaluate and select competent testing

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firms. One of the cornerstones of the standard depend on the current state of comply with ASTM D7036–04 are Practice is that AETBs must collect an AETB’s quality program. Those that reasonable. Similar requirements have performance data on how well they plan do not currently have an organized been successfully implemented for and execute test projects. These data quality program will most likely incur many years in the UK with no small must be shared with regulators and greater costs than those who do. In any companies going out of business and no clients upon request. case, the burden will be no greater than complaints of being overly burdensome In response to claims that ASTM that experienced by the UK companies on industry. EPA does not expect to D7036–04 will significantly increase the who successfully went through the same provide funds to support small stack cost and burden of Part 75 testing, EPA process. test companies in meeting the notes that no data were provided to The main costs to comply with the requirements of ASTM D7036–04. support these claims. The ISO 17025 ASTM D7036–04 standard are EPA notes that virtually the same standard upon which the ASTM associated with taking a stack test QSTI program has been in place in Europe for standard is based has been implemented (qualified stack test individual) several years and is functioning very in Europe for many years. Mark Elliot, competency exam, and developing or well with the support of stack testers, Chairman of the Stack Testing revising a quality assurance (QA) the government, and industry. The Association (STA) of Great Britain, has manual. A nationwide compliance cost ASTM standard is actually less stringent provided the following information on estimate may be obtained using the in some areas than the European the costs of their programs. Their following estimates: program. Based on this extensive certification program (for individuals) is • 450 stack test companies in U.S. experience in Europe, EPA believes that called MCERTS. (The number of private (external) stack this program can be successfully • MCERTS testing fees: Level 1 $350; test companies came from www.epa.gov/ implemented here in the U.S. with very Level 2 $940 ttn/emc/software.html#testfirm. RMB little additional burden. In summary, • Technical endorsements (1–4): $350 Consulting, Inc. estimated 10 in-house there is an abundance of both data and each utility RATA test teams in the U.S.); experience showing that this program The Level 2 certification requires a • On average, 10 people per company can be implemented without an personal interview with the applicant. (Source: www.epa.gov/ttn/emc/ unreasonable burden, and also Please note that according to Mr. Elliot, software.html#testfirm); (according to UK industry participants) this program has been successfully • QSTI exam (required by ASTM) that it will improve the quality of data. implemented in the UK with no small costs $150 and must be taken every 5 Two commenters asserted that the companies going out of business and no years (Source: December 11, 2006 letter existing infrastructure is not adequate complaints of being overly burdensome from the Source Evaluation Society in for testers to comply with the ASTM on industry. In fact, many large Docket OAR–2005–0132); and method. EPA disagrees with these companies such as Mobil, Dow, Pfizer, • Roughly 1 QSTI is required for claims. The Source Evaluation Society and 3M are members of the STA and every 3 people in a stack test company. is currently offering qualification exams fully support the program because, Using these inputs, the Agency in several areas. The commenters may according to Mr. Elliot, they believe it estimates the cost to comply with ASTM be concerned that the SES website used improves the quality of the data D7036–04 at about $100 per yr per to state that their exams may not provided by testing companies. Even company to cover the QSTI exam. There specifically satisfy the requirements of major UK utility companies such as is also approximately a $4,000 one time the ASTM Practice (because they were Drax Power, Energy Power Resources, cost per company, whether a large or not developed specifically for that the Electricity Supply Board, PB Power, small entity as defined by the Small purpose). However, SES has updated Scottish and Southern Energy, and Business Administration’s (SBA) the wording on their Web site to say that Scottish Power participate in the regulations at 13 CFR 121.201, to their qualification exams do meet the program. And they do this voluntarily develop a QA manual (estimate exam requirement of the ASTM because they have found it to their provided by Air Tech, see Docket Item Practice. The Stack Testing benefit to do so. # EPA–HQ–OAR–2005–0132–0093). Accreditation Council (STAC) also There are several differences between However, the costs will be borne by the recognizes that not only does the SES the program described in the final rule Part 75 sources using the air emission program meet the requirements of the and the UK program. First, the final rule testing bodies, and the Agency notes ASTM standard—it actually exceeds does not require accreditation. The that these costs will be offset by the them. It requires more experience than individual testing requirements in the savings generated by fewer failed or the ASTM standard and also requires rule are less expensive and less incorrectly performed relative accuracy letters of recommendation. Both EPA stringent than the UK program. In the test audits, and fewer repeat tests and STAC accept an SES certification as US, The Source Evaluation Society is required. Therefore, the effect of this meeting the external testing and currently providing Qualified revision is to actually relieve a experience requirements of the ASTM Individual testing. The fees are $155 for regulatory burden on these entities. Practice. the first test (including a one-time $15 Regarding the issue of the financial If an external QSTI test is not SES membership) and $89 for any impact on smaller companies and the available to a company, an internal test subsequent tests taken during the same request to provide funds to these may be used to meet the requirements testing session). It should also be noted companies, EPA notes that small stack of ASTM D7036–04 until an external that ASTM D7036–04 does not require test companies were represented on the test becomes available. EPA is aware of that every individual be tested. Only ASTM work group. At least one small at least one large stack test company one ‘‘Qualified Individual’’ need be stack test company (3 people) has that has developed a training module for present on-site during a test. Therefore, already complied with ASTM D7036– mercury methods meeting the even this minimal cost and burden is 04, is supportive of the requirement, requirements of the ASTM D7036–04, considerably less than the successful and expects to actually realize an and has trained and tested their people UK program. increase in business because of their according to the internal qualification The costs of coming into initial compliance with ASTM D7036–04. As exam provision of ASTM D7036–04. compliance with the ASTM D7036–04 stated in another response, the costs to When a third party test becomes

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available, this company has indicated calibration records for the equipment for the diluent monitor component of a that they will re-certify their people used, or failing to follow through with NOX-diluent monitoring system. according to the requirements of ASTM corrective actions when required. Summary of Rule Changes D7036–04. The Source Evaluation There will undoubtedly be some Society is reviewing steps to improve discussions between EPA, affected The proposed amendments to Section and expand the QSTI examination sources and AETB’s as this program 6.2 of Appendix A have been finalized, process. unfolds that will help define the without substantive change. At the Four commenters asked EPA to clarify implementation of the Practice. But this request of one commenter, the final rule how compliance with ASTM D7036–04 is the case with every new rule and clarifies that the low-span linearity would be determined. Section 6.1.2 in standard. exemption applies to recertification as Appendix A of the final rule specifically There is always a balance in standard well as to initial certification and states that there are two ways an AETB writing between being overly detailed ongoing QA. can certify compliance: (1) A certificate of accreditation, or (2) a letter of and prescriptive and being too loose and 5. Dual Span Applications-Data certification signed by senior flexible. The stakeholders involved in Validation the consensus process of ASTM management. The latter option is similar Background to the way major sources certify determined that the proper balance had been achieved. It is important to keep in compliance with their Title V permits. EPA proposed to clarify the mind that ASTM D7036–04 is However, AETBs are under much more relationship between the quality- essentially an international standard direct regulatory scrutiny than a Title V assured (QA) status of the low and high that has been used successfully in source. Every state has a field test ranges of a gas monitor in a dual-span countries all over the world. observer program. In the case of one application. Sections 2.1.1.5(b) and large stack testing company, Clean Air Three commenters requested that EPA 2.1.2.5(b) of Appendix A have provided provide a 1–2 year transition period Engineering, about half of their instructions for reporting SO2 and NOX compliance tests are directly observed after promulgation of the final rule, to concentration data when the full-scale by state regulators. This oversight allow AETBs sufficient time to conform range of the monitor is exceeded. For provides an on-going check of whether to ASTM D7036–04. Particular concerns single-range applications, reporting a an AETB remains in conformance. In co- were expressed about the availability of value of 200 percent of the range has operation with the New Jersey DEP, a Qualified Individuals (QIs) for Hg been required when a full-scale standardized state observer checklist is emission testing. EPA agrees that a exceedance occurs. For dual range being developed that will facilitate transition period is appropriate, given applications, if the low range is incorporating state observer assessments the testers’ relative unfamiliarity with exceeded, no special reporting has been into the ASTM process. Hg test methods. Therefore, the final necessary, provided that the high range EPA expects to treat non-compliance rule gives AETBs until January 1, 2009 is ‘‘available and not out-of-control or with this standard in the same way it to comply with ASTM D7036–04. out-of-service for any reason’’. However, treats noncompliance with any other A number of other comments were if the high range is ‘‘not able to provide standard—using its enforcement received on the proposed AETB quality-assured data’’ during the low- discretion. EPA does not anticipate certification program. These are range exceedance, then sources have invalidating test results because of addressed in detail in the Response to been required to report the maximum minor infractions. The proper way to Comments (RTC) document. potential concentration (MPC). deal with these issues, if either the regulatory authority or the client 4. Linearity Requirements for Dual-Span Believing that the two phrases used to discovers them, is to notify the AETB Applications describe the QA status of the high range that a problem has been found. The Background during low-scale exceedances, i.e., AETB is then obligated to initiate a ‘‘available and not out-of-control or out- corrective action to address the In May 1999, EPA revised the of-service for any reason’’ and ‘‘not able problem. This becomes part of the linearity check provisions in Part 75, to provide quality assured data’’ to be AETB’s Performance Data required by Appendix A, section 6.2, to exempt SO2 too general, the Agency proposed to the Practice. The Agency recommends and NOX span values of 30 ppm or less revise these rule texts by defining the that the client also ask the AETB to from performing linearity checks. Since QA status of the high range in terms of report back on what corrective actions the May 1999 revisions became its most recent calibration error and were taken. In the case of serious effective, some have questioned whether linearity checks. Provided that both of infractions, EPA may exercise the same the linearity exemption applies only to these QA tests are still ‘‘active’’, i.e., authority it has always had to reject the ongoing QA or whether it applies also their windows of data validation have test. to initial certification. Others have not expired, the high range would be EPA encounters deviations in test asked whether the exemption applies considered in-control and able to methodology routinely in reviewing only to a particular measurement range provide quality-assured data. However stack test reports. Minor deviations are or to all of the linearity check if either of the tests has expired, data noted and reported back to the source requirements for a monitoring system. recorded on the high range would be but the underlying results are accepted. In view of this, EPA proposed to revise considered invalid until the expired test Major deviations result in a rejection of Section 6.2 of Appendix A to make it was repeated and passed. The MPC the test. This situation is no different. clear that the 30 ppm linearity would be reported until the expired This Practice should be treated much exemption: (1) Is range-specific; (2) high-range test is redone or until the like a test method in this regard. Minor covers both initial certification and data return to the low scale. Thus, the deviations may be of the type the ongoing QA; (3) does not remove the proposed revisions would clarify that commenters cite in their examples. requirement to perform linearity checks when the low range is up-to-date on its Major deviations may include (for of the high range (if > 30 ppm) for dual QA tests but the high range is not, the example) not having a Qualified span applications; and (4) does not take QA status of each range is evaluated Individual on-site, not having proper away the linearity check requirements separately.

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Summary of Rule Changes i.e., begin the test by measuring stack absolute difference between the No adverse comments were received. gas emissions and then inject the reference gas value and the monitor These provisions have been finalized, as calibration gas. EPA agrees with this response. comment and has revised the cycle time proposed. Summary of Rule Changes test procedure and Figure 6 in 6. Cycle Time Test-Stability Criteria Appendix A accordingly. EPA believes In the final rule, the performance Background this change in the test procedure (which specifications for the linearity checks is closer to the way in which the test and system integrity checks of Hg The cycle time test described in was originally presented in the January monitors have been made the same, but Section 6.4 of Appendix A is required 1993 rule) gives a more accurate the proposed 5.0 percent of span for the initial certification and indication of the monitor’s true criterion (with an alternative recertification of gas monitoring µ 3 response time and will help to prevent specification of 0.6 g/m ) has not been systems, and occasionally as a ‘‘false positive’’ test failures. adopted. The commenters did not take diagnostic test. The test is designed to EPA has also revised the reporting issue with the proposal to equalize the determine how long it takes for a requirement (in Appendix A § 6.4) for performance specifications for the two monitor to respond to step changes in cycle time tests of dual range monitors QA tests, but several commenters gas concentration. Two calibration gases in light of the transition to the revised objected to the proposed values of the (zero- and high-level) are used for the XML format. The change requires that specifications, citing a lack of test, which has both an upscale and a cycle time for both ranges of a supporting data to demonstrate that the downscale component. component be reported separately specifications are achievable. Two Section 6.4 has specified criteria for commenters favored setting both determining when a stable gas (consistent with the reporting of other component level tests for CEMS), rather specifications at the existing values for concentration reading has been the linearity check, i.e., 10.0 percent of obtained. The reading is considered than only reporting the results from the range with the longer cycle time. This the reference gas value, with an stable if it changes by less than 2.0 alternative specification of 1.0 µg/m3. percent of the span value for 2 minutes change is consistent with the proposed changes that required reporting of In response to these comments, EPA or less than 6.0 percent from the average analyzed data from two recent field certain test at the component level concentration over 6 minutes. These studies in which elemental and rather than at a system/component criteria are reasonable when the source oxidized Hg calibration gases were level, which overall reduces redundant effluent concentrations are moderate or injected into commercially-available Hg reporting of test data from shared high. However, when concentrations are CEMS, at different concentration levels components. No adverse comments very low, the criteria can become overly (low, mid, high). Based on the results of were received on those similar proposed stringent and difficult to meet. In view the data analysis, the Agency has changes. This revision was necessary for of this, the Agency proposed to add concluded that equalizing the consistency with those other proposed alternative stability criteria to Section performance specifications for linearity changes which EPA is finalizing. 6.4 of Appendix A. By the alternative checks and system integrity checks of criteria, an SO2 or NOX reading would 7. System Integrity and Linearity Checks Hg monitors at 10.0 percent of the be considered stable if it changed by no of Hg CEMS reference gas value, with an alternate more than 0.5 ppm for 2 minutes or, for specification of 0.8 µg/m3 absolute Background a diluent monitor, if it changed by no difference is appropriate, and the final more than 0.2% CO2 or O2 for 2 The required certification tests for a rule incorporates these specifications. minutes. Hg CEMS include a 3-level system A total of 97 data points from the two integrity check, using a NIST-traceable field studies were analyzed. Data Summary of Rule Changes source of oxidized Hg and a 3-level recorded during known periods of probe Substantive changes have been made linearity check, using elemental Hg malfunction and excessive analyzer drift to the cycle time test procedure, in standards. The performance were excluded from the analysis. response to comments received. The specification for the system integrity Eighteen of the 97 data points analyzed sequence of the test has been reversed, check, which is found in paragraph were elemental Hg injections, and the i.e., it now begins with a stable reading (3)(iii) of Appendix A, Section 3.2, has rest were oxidized Hg injections. Each of stack emissions and ends with a been that the system measurement error gas injection was evaluated on a pass/ stable reading of calibration gas must not exceed 5.0 percent of the span fail basis against six candidate sets of concentration (see section 2.6 of the value at any of the three calibration gas performance specifications. These were: Response to Comments document for levels. However no explanation of how (1) The proposed performance further discussion). Commenters were to calculate the measurement error has specifications, i.e., 5.0 percent of span, generally supportive of the proposed been provided. EPA proposed to with an alternative specification of 0.6 alternative stability criteria, and these restructure paragraph (3) of Section 3.2, µg/m3; (2) the existing linearity have been incorporated into the final to add the necessary mathematical specifications, i.e., 10.0 percent of the rule. One commenter noted the absence procedure. reference gas value, with alternative of corresponding alternative stability Believing that the performance specification of 1.0 µ/m3; (3) the existing criteria for Hg monitors. To correct this specification for the linearity check system integrity specification, i.e., 5.0 apparent oversight, the final rule (which is done with elemental Hg) percent of span, with no alternative includes an alternative specification of should be at least as stringent as the specification; (4) 5.0 percent of span, 0.5 µg/m3 for Hg CEMS. The same performance for the system integrity with an alternative specification of 0.8 commenter also expressed concerns check (which is done with oxidized Hg), µg/m3 ; (5) 5.0 percent of span, with an about temporal variations in stack gas the Agency also proposed to make the alternative specification of 1.0 µg/m3; concentration (particularly for Hg) that linearity and system integrity check and (6) 10.0 percent of the reference gas can make it difficult to meet the stability specifications for Hg monitors the same, value, with alternative specification of criteria, and recommended that the i.e., 5.0 percent of the span value, with 0.8 µg/m3. For each set of performance order of the cycle time test be reversed, an alternative specification to 0.6 µg/m3 specifications, the pass rate of the 97 gas

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injections was determined. The two Summary of Rule Changes EPA also proposed to revise the highest pass rates (96.9% and 95.9%) No comments were received on the RATA grace period provisions in were attained with sets (2) and (5), proposal. Therefore, the provisions have Section 2.3.3, by removing the method respectively, which have the widest been finalized, but there is one notable of determining the deadline for the next µ 3 alternative specification of 1.0 g/m . change. The proposed rule RATA after a grace period test from Similarly high pass rates (93.8% and inappropriately limited the requirement paragraph (c) of Section 2.3.3 and 94.8%) were also attained with sets (4) to account for added moisture in the replacing it with a different method and (6), both of which have an calibration gas to dry-basis Hg CEMS. In described in new paragraph (d). µ 3 Paragraph (d) proposed a change to alternative specification of 0.8 g/m . the final rule text, this restriction has the methodology for determining RATA The lowest pass rates (85.5% and been removed. This is simply a deadlines, without changing the end 75.3%) were attained with sets (1) and technical correction of a misstatement result. The intent of paragraph (c) in (3), the proposed performance in the proposal. specifications and the existing system Section 2.3.3 had always been for the integrity check specification. 9. Correction of Cross-References source to return to its original RATA schedule following a grace period test, From these results, EPA concludes, on Background in order to prevent the grace period the one hand, that both the proposed EPA proposed to correct a number of provisions from being abused. However, performance specifications (set 1) and cross-references in Appendix A, for infrequently operated units (e.g., existing system integrity check Sections 6.2(g), 6.5.6(b)(3) and 6.5.6.3. many combustion turbines), the grace specifications (set 3) may be too Regarding the system integrity checks of period sometimes spans across many stringent. On the other hand, very high Hg monitors, Section 6.2(g) of Appendix calendar quarters, which effectively pass rates were achieved with the four A incorrectly only referred to Section eliminates the possibility of establishing sets having the wider alternate 2.6 of Appendix B, which only a meaningful relationship between the µ 3 µ specifications of 1.0 g/m and 0.8 g/ describes weekly, single-level system 3 original RATA due date and the m , i.e., sets (2), (5), (4), and (6). For integrity checks. The proposed revisions deadline for the next test. these four sets, it seems to make little or would also refer to Sections 2.1.1 and In view of these considerations, EPA no difference whether the main 2.2.1 of Appendix B, which describe the proposed a simpler methodology for specification is 5.0 percent of span or 3-level system integrity checks. Finally, determining RATA deadlines that will 10.0 percent of the reference gas value. corrections to sections 6.5.6(b)(3) and work for both base load units and In view of these considerations, EPA has 6.5.6.3 of Appendix A were proposed, combustion turbines that seldom selected the main specification for the changing references to Section 3.2 of operate. The deadline for the next system integrity and linearity checks to Performance Specification No. 2 (PS2) RATA following a grace period test be 10.0 percent of the reference gas to Section 8.1.3, of PS2. would be two QA operating quarters value, and the alternative specification after the quarter of the test, if the RATA to be the more stringent value of 0.8 µg/ Summary of Rule Changes results trigger a semiannual test m3. These values have been No adverse comments were received. frequency, and three QA operating incorporated into paragraph (3) of These corrections have been finalized, quarters after the quarter of the test if Section 3.2 in Appendix A. as proposed. the RATA qualifies for an annual test frequency. As proposed, there was one 8. Correction of Hg Calibration Gas I. Appendix B Concentrations for Moisture exception to these rules. Regardless of 1. 3-Load Flow RATA Frequency and the number of QA operating quarters Background RATA Grace Period that have elapsed following the grace When calibration error tests and Background period test, the maximum allowable interval between a grace period RATA linearity checks of SO2, NOX, and On May 26, 1999, EPA revised diluent gas monitors are performed, and the next RATA would be eight Appendix B of Part 75, to reduce the calendar quarters. This is consistent EPA protocol gases are used. The required frequency of 3-load flow protocol gases are essentially moisture- with Section 2.3.1.1(a) of Appendix B. RATAs from annually to ‘‘at least once Finally, EPA proposed to amend free. However, when mercury monitors every 5 consecutive calendar years’’. As paragraph (c ) of Section 2.3.3, to state are calibrated, moisture is sometimes written, this rule provision actually that when a RATA is performed after added to the calibration gas. This allows more than five years (20 calendar the expiration of a grace period, the creates a potential source of error in the quarters) to elapse between 3-load flow ‘‘clock’’ is reset, and the deadline for the calculations. In view of this, EPA RATAs. For instance, if successive 3- next RATA is determined in the usual proposed to revise the calibration error load flow RATAs are performed in the manner, i.e., the next test would be due procedures in section 6.3.1 of Appendix 1st quarter of 2002 and in the 4th within two QA operating quarters (for A, to require that when moisture is quarter of 2007, this satisfies the ‘‘once semiannual frequency) or four QA added to the Hg calibration gas, the every 5 consecutive calendar years’’ operating quarters (for annual moisture content of the gas must be requirement, but there would be 23 frequency), not to exceed eight calendar accounted for. The proposed revisions calendar quarters between the two tests. quarters. would also require the calibration gas In light of this, EPA proposed to concentration to be converted to a dry revise Section 2.3.1.3(c)(4) of Appendix Summary of Rule Changes basis for purposes of performing the B, to require 3-load flow RATAs to be Commenters were supportive of the calibration error calculations. done at least once every 20 calendar proposed amendments to the RATA The Agency also proposed to add quarters. This is consistent with both grace period provisions, and no parallel language to Section 6.2 of the other 5-year testing requirements in comments were received on the Appendix A, in a new paragraph ‘‘(h)’’, Part 75 (i.e., for Appendix E and LME proposal to determine 3-load flow to address this issue for the linearity units) and the maximum allowable RATA deadlines on a calendar quarter checks and system integrity checks of interval between successive accuracy basis. Therefore, these provisions have Hg monitors. tests of Appendix D fuel flowmeters. been finalized, as proposed.

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2. RATA Requirement for Shared separate analyzers are used for the two measure emissions. While it is possible Components ranges, a failed or expired calibration that in some instances, the problem Background error test on one of the ranges would not causing the failure of a test on one range affect the QA status of the other range. does not affect the accuracy of the EPA proposed to amend paragraph (g) For a dual-range analyzer (i.e., a single monitor’s measurements on the other in section 2.3.2 of Appendix B, to analyzer with two scales), a failed range, it is far from certain. Therefore, specify the consequences of a failed calibration error test on either range the Agency’s firm position is that RATA, in the case where a particular would result in an out-of-control period, whenever a calibration error test or NOX pollutant concentration monitor is and data from the monitor would linearity check is failed on either a component of both a NOX remain invalid until corrective actions measurement scale of a dual-range concentration monitoring system and a are taken, followed by successful analyzer, it is necessary to calibrate both NOX-diluent monitoring system. In such ‘‘hands-off’’ calibrations of both ranges. ranges following corrective actions cases, the Agency proposed that if the However, if the most recent calibration (which usually involve adjustments to NOX concentration system RATA is error test on one range of a dual-range the monitor), to verify that the monitor failed, both the NOX concentration analyzer was successful, but its data is back in-control and is able to generate monitoring system and the associated validation window expires, this would quality-assured data on both ranges. NOX-diluent monitoring system would have no effect on the QA status of the be considered out-of-control, and other range. 5. Off-Line Calibration Error Tests successful RATAs of both monitoring Further, the Agency proposed to Background systems would be required to get them amend Section 2.2.3(e) of Appendix B to Section 2.1.1.2 of Appendix B allows back in-control. make it clear that ‘‘hands-off’’ linearity checks of both ranges of a dual-range the owner or operator to make limited Summary of Rule Changes analyzer are required whenever a use of off-line calibration error tests to No adverse comments were received. linearity check on either range fails or validate data if an off-line calibration This amendment has been finalized, as is aborted (unless, of course, a particular demonstration test is performed and proposed. range is exempted from linearity checks passed. If the off-line calibration error under Section 6.2 of Appendix A). demonstration is successful, then off- 3. AETB Requirements line calibrations may be used to validate Summary of Rule Changes Background up to 26 unit operating hours of data These provisions have been finalized, before an on-line calibration error test is EPA proposed to amend Appendix B as proposed. Two commenters did not required. by adding a new Section, 1.1.4, to understand why failure of a calibration The off-line calibration provisions in require that an Air Emissions Testing error test or a linearity check on one Appendix B have not been well- Body (AETB) that performs emission scale of a dual-range analyzer should understood by many affected sources. testing or RATAs for on-going quality- invalidate data on both ranges, and Through the years, EPA has received assurance under Part 75 must conform asked for EPA to more fully explain the numerous requests for a more detailed to ASTM D7036–04. technical basis for this requirement. explanation and/or examples of how to Summary of Rule Changes The requirement to perform apply these rule provisions. In view of calibration error tests or linearity checks this, the Agency proposed to revise No adverse comments were received. on both scales of a dual-range analyzer Sections 2.1.1.2 and 2.1.5.1 of Appendix This provision has been finalized, as to resolve an out-of-control period does B to clarify the data validation rules for proposed. not reflect a change in Agency policy. off-line calibration error tests. 4. Calibration Error Tests and Linearity Rather, EPA’s proposal intended to EPA proposed to revise paragraph (2) Checks-Dual Range Applications clarify the existing requirement that in Section 2.1.1.2 to state that sources each range of a dual-range monitor must may make limited use of off-line Background be known to be in-control in order to calibrations if the off-line calibration EPA proposed to revise Sections 2.1.1, validate data from the monitor. demonstration has been performed and 2.1.1.2, 2.1.5.1 and 2.2.3(e) of Appendix The final rule allows data to be passed. The proposed changes to B, to clarify the data validation considered valid from a particular paragraph (2) of Section 2.1.5.1 would requirements for daily calibration error measurement range that has passed a explain what ‘‘limited use’’ of off-line tests and linearity checks of gas calibration error check when the calibrations means. Off-line calibrations monitors when two span values and two calibration error test for the other could be used to validate up to 26 measurement ranges are required for a measurement range has expired. In such consecutive unit operating hours of data particular parameter (e.g., SO2 or NOX). instances, since there is no indication before an on-line test is required. Each The proposed revisions to Section that the monitor is not functioning individual off-line calibration would be 2.1.1 of Appendix B would require that properly, but there is evidence that the valid only for 26 clock hours, and if the ‘‘sufficient’’ calibration error tests be measurement range being used is sequence of consecutive operating hours performed on the low and high monitor properly calibrated, EPA is allowing validated by off-line calibrations is ranges to validate the data recorded on that range to be considered quality broken before reaching the 26th each range, in accordance with Section assured. However, whenever a monitor consecutive unit operating hour, data 2.1.5 of Appendix B. EPA also proposed fails any required daily, quarterly, semi- from the monitor would become invalid to add a new paragraph, (3), to Section annual or annual quality assurance test, until an on-line calibration is performed 2.1.5.1 of Appendix B, to clarify how regardless of range, EPA maintains that and passed. the QA status of the low and high ranges data from that monitor must be is determined when: (a) a calibration considered invalid until the required Summary of Rule Changes error test on one of the ranges is failed; quality assurance tests are passed. A Numerous commenters objected to the or (b) the most recent calibration error failed test on either range of a dual proposed revisions to Section 2.1.5.1 of test of one of the ranges has expired. range monitor indicates a problem with Appendix B. The commenters found the Under proposed paragraph (3), when the monitor’s ability to accurately proposed rule language to be confusing

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rather than clarifying, and several of proposed to add the following data linearity check exemptions are provided them asserted that EPA appeared to be validation rules for the weekly system for ‘‘non-QA operating quarters’’, i.e., placing new restrictions on the use of integrity check to Section 2.6 of calendar quarters in which the unit off-line calibration error tests. Appendix B: (a) If the test fails, it would operates for < 168 hours. After careful consideration of these trigger an out-of-control period until a However, the required frequency for comments, EPA agrees that the subsequent system integrity check is the system integrity checks of a Hg proposed rule language, particularly the passed; and (b) if the test is not CEMS is weekly, not quarterly. This is term ‘‘sequence of consecutive unit performed within 168 unit operating the only weekly QA test required by operating hours’’ can be misinterpreted. hours of the previous successful system Part 75. Therefore, the existing ‘‘QA However, the Agency’s intent was (and integrity check, data from the CEMS operating quarter’’ model and grace is) simply to clarify the existing would become invalid, starting with the period scheme cannot be directly procedures for using off-line 169th unit operating hour and applied to the system integrity check. A calibrations to validate CEMS data. That continuing until a system integrity new concept, perhaps a ‘‘QA operating is, a source desiring to use the off-line check is passed. week’’ would have to be introduced and calibration provisions in paragraph (2) The Agency also proposed to correct an appropriate grace period determined. of Appendix B, section 2.1.5.1 must first a typographical error in Section 2.6 of EPA considered this approach and pass the off-line calibration Appendix B. The performance decided against it, believing that it demonstration described in section specification for the weekly system would unnecessarily complicate the 2.1.1.2. After successfully completing integrity check was incorrectly process of QA status tracking for Hg this demonstration, off-line calibrations referenced as Section 3.2 (c)(3) of CEMS. may be used on a limited basis for data Appendix A. The correct citation is The Agency believes that if the DAHS validation. In particular, off-line Appendix A, Section 3.2, paragraph is programmed to track the number of calibrations may be used to validate (3)(iii). unit operating hours since the last data for up to 26 consecutive unit Summary of Rule Changes system integrity check and if an alert is operating hours following a passed on- The revision has been finalized as provided to let plant personnel know line calibration error test. when the test deadline is approaching, The term ‘‘consecutive unit operating proposed. Several commenters objected to the proposed data validation rules for there will seldom, if ever be a missed hours’’ does not mean consecutive clock weekly system integrity checks of Hg test. Furthermore, the Agency believes hours. For example, two consecutive CEMS. Commenters expressed concern that as experience is gained with Hg unit operating hours could be separated that the specified test frequency, i.e., monitors, it may be possible to automate by several hours, days, weeks, etc., due once every 168 unit operating hours, the weekly system integrity check so to a unit outage. Each off-line will cause scheduling difficulties, due that during the 168th hour of operation calibration error test has the same to the limited availability of qualified since the last system integrity check, the prospective, 26 clock hour window of technicians and other factors. The check is automatically initiated by the data validation as an on-line calibration commenters requested that EPA provide DAHS computer system or other error test. a grace period of 72 to 96 hours for this appropriate programmable logic Therefore, for a source that has passed QA test, to minimize the possibility of controller (PLC) systems. Such the off-line calibration demonstration, data loss. automation would further reduce the EPA considers the data for a particular EPA does not agree with the probability of a missed test. operating hour to be valid if there is: (1) commenters’ assertions that the 168 A passed on-line calibration within the 7. Correction of Hg Units of Measure— operating hour requirement will be Figure 2 26 unit operating hours preceding that difficult to implement and that a grace operating hour; and (2) a passed off-line period should be added. The number of Background calibration within the 26 clock hours operating hours since the last weekly EPA proposed to correct a minor error immediately preceding that operating system integrity check can (and should) in the units of measure for Hg hour. The Agency has revised the be tracked by the data acquisition and concentration in Figure 2 of Appendix proposed rule language to clarify these handling system (DAHS). An alarm or B, changing the units of micrograms per requirements. For each hour of unit prompt could be activated when the dry standard cubic meter (µg/dscm) to operation, these criteria will be used to deadline for the next test is near (e.g., micrograms per standard cubic meter evaluate each monitoring system’s when 120 or 144 operating hours have (µg/scm). This change was proposed control status with respect to daily elapsed since the last test). because not all Hg monitoring systems calibrations. EPA favors basing the interval measure Hg concentration on a dry 6. Weekly System Integrity Check—Data between successive tests on operating basis. Validation hours rather than clock hours in a week, primarily for reasons of simplicity. The Summary of Rule Changes Background Agency acknowledges that this is No adverse comments were received. For a Hg CEMS that is equipped with distinctly different from the way in The proposed correction to Figure 2 has a converter and that uses elemental Hg which the deadlines for RATAs and been made. for daily calibrations, Section 2.6 of Part linearity checks are determined. For a 75, Appendix B requires a weekly RATA or linearity check, the deadline is J. Appendix D system integrity check, using a NIST- always at the end of a calendar quarter. 1. Update of Incorporation by Reference traceable source of oxidized Hg. This Grace periods are provided for these ‘‘weekly’’ test is required once every 168 tests because the deadlines can pass Background unit operating hours. However, due to while the unit is either off-line or As previously noted, EPA proposed to an apparent oversight, Section 2.6 did experiencing operational abnormalities update the list of test methods, sampling not explain the consequences of either that prevent the monitors from being and analysis procedures, and other failing the test or failing to perform the tested on time. Also, a limited number items that are incorporated by reference test on schedule. In view of this, EPA of RATA deadline extensions and in § 75.6. As such, the proposed rule

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included corresponding updates to the are used to qualify, the rule has required multiple GCV samples each month, or references in Appendix D. that each individual sample result must may receive the results of multiple GCV EPA also proposed to add to Section meet the total sulfur limit. Once a fuel samples from the fuel supplier each 2.1.5.1 of Appendix D, the American has qualified as pipeline natural gas, month. In view of this, the Agency Petroleum Institute’s (API) Manual of Section 2.3.1.4(e) of Appendix D proposed to revise Section 2.3.4.1 to Petroleum Measurement Standards requires annual sampling of the total require that the monthly average GCV Chapter 22—Testing Protocol: Section sulfur content to demonstrate that the value be used for Part 75 reporting, for 2—Differential Pressure Flow fuel still meets the definition of PNG. At any month in which multiple samples Measurement Devices (First Edition, least one sample per year must be taken are taken and analyzed. To implement August 2005) as a new standard and if multiple samples are taken, the this provision in the case where the procedure for verifying flowmeter rule has required each one to meet the owner or operator has elected to use the accuracy. 0.5 gr/100 scf total sulfur limit. actual monthly GCV value in the Many suppliers of natural gas Summary of Rule Changes emission calculations, revisions to regularly sample the total sulfur content Section 2.3.7(c) of Appendix D were These provisions have been finalized, of the gas (in many cases, daily) and proposed, requiring the monthly average as proposed. Note that in response to a provide that data to their customers GCV value to be applied starting from comment, EPA has also incorporated by upon request. Sources desiring to use the latest date of any of the individual reference ASTM D5453–06, ‘‘Standard this data to meet the initial or ongoing GCV samples used to calculate the Test Method for Determination of Total total sulfur sampling requirements of monthly average. In the case where an Sulfur in Light Hydrocarbons, Spark Appendix D have asked whether the gas assumed GCV value is used in the Ignition Engine Fuel, Diesel Engine would be disqualified from using the calculations (i.e., either a contract value Fuel, and Engine Oil by Ultraviolet 0.0006 lb/mmBtu SO2 emission rate if or the highest monthly average from the 1 Fluorescence’’ , and has added ASTM the total sulfur content of one of these previous year), the assumed value D5453–06 to the list of acceptable oil daily samples exceeded 0.5 gr/100 scf. would continue to be used unless sampling methods in Section 2.2.5 of EPA has been handling these requests superseded by a higher monthly average Appendix D (see section 2.7 of the individually, on a case-by-case basis. GCV value. Response to Comments document for However, the Agency believes it will be further discussion). In addition, the more efficient to address the issue Summary of Rule Changes equation for Hourly SO2 Mass Emissions through rulemaking. In view of this, The provisions pertaining to from the Combustion of all Fuels in amendments to Sections 2.3.1.4(a)(2) documentation that a particular gaseous Appendix D, section 3.5.1 has been and (e) of Appendix D were proposed. fuel qualifies as pipeline natural gas revised to be consistent with the new For the initial documentation that the have been finalized, with only minor XLM format. This change is considered gas meets the 0.5 gr/100 scf total sulfur editorial changes. Regarding the to be insignificant and was made to be limit, the proposed revisions to Section proposed requirement to average the consistent with the proposed changes to 2.3.1.4(a)(2) would allow sources with results of all GCV samples of natural gas harmonize the units of measure for at least 100 total sulfur samples from the taken in each calendar month, one reporting hourly mass emissions. previous 12 months to reduce the data commenter asked whether the monthly to monthly averages. Then, if all average would be used to back-calculate 2. Pipeline Natural Gas—Method of monthly averages meet the 0.5 gr/100 Qualification and Monthly GCV Values the heat input values for each day in scf limit, the fuel would qualify as that month. Background pipeline natural gas, and the source The proposed revisions to Section For a unit which combusts a fuel that could use the 0.0006 lb/mmBtu default 2.3.7(c) of Appendix D specified that SO emission rate. Alternatively, if at meets the definition of ‘‘pipeline natural 2 when the option to use the actual least 98 percent of the 100 (or more) gas’’ (PNG) in § 72.2, Section 2.3.1.1 of monthly GCV in the calculations is samples from the previous 12 months Appendix D allows the owner or selected and multiple samples are taken, have a total sulfur content of 0.5 gr/100 operator to estimate the unit’s SO2 mass each monthly average GCV would be scf or less, the fuel would qualify as emissions using a default SO2 emission applied prospectively, starting on the pipeline natural gas. rate of 0.0006 lb/mmBtu. To qualify to The proposed revisions to Section date of the last sample taken during the use this SO 2 emission rate, the owner or 2.3.1.4(e) would allow this same month. However, in light of the operator must document that the natural calculation methodology to be used for commenter’s question, EPA has gas has a total sulfur content of 0.5 the annual total sulfur sampling reconsidered this approach. The final grains per 100 standard cubic foot or requirement. That is, each year, if the rule requires instead that each monthly less. Section 2.3.1.4 describes three results of at least 100 total sulfur GCV value be applied to every day in ways to initially demonstrate that the samples from the past 12 months are that month. The Agency believes that gas meets this total sulfur requirement: obtained, the data could either be this approach provides a more (1) Based on the gas quality reduced to monthly averages, or the representative estimate of the unit’s true characteristics specified in a purchase percentage of the samples that meet the monthly heat input. contract, tariff sheet, or pipeline 0.5 gr/100 scf limit could be Note that the text of paragraph (b)(2) transportation contract; or (2) based on determined. in section 2.3.7 has also been modified historical fuel sampling data from the EPA also proposed to clarify the gross to address the new alternative previous 12 months; or (3) based on at calorific value (GCV) sampling methodology for making annual least one representative sample of the requirements for pipeline natural gas in assessments of the sulfur content of gas, if the requirements of (1) or (2) Section 2.3.4.1 of Appendix D. The natural gas. cannot be met. When fuel sampling data current rule requires monthly GCV 3. Requirement to Split Oil Samples sampling for PNG. However, Section 1 ASTM D5453–05 is no longer available. EPA is Background thus adding ASTM D5453–06, the version currently 2.3.4.1 refers only to the ‘‘monthly available. EPA considers this a minor ministerial sample’’ (singular), whereas affected For affected units that combust fuel correction. sources may collect and analyze oil and use the Appendix D

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methodology to quantify SO2 mass estimate NOX emissions, the owner or two subsections, 8.2.1 and 8.2.2. Section emissions and/or unit heat input, operator is required, for each fuel type, 8.2 had described a procedure for Section 2.2 of Appendix D requires the to perform four-load emission testing for calculating the NOX mass emission rate owner or operator to perform periodic initial certification in order to develop in lb/hr, when NOX mass emissions are sampling of the sulfur content, gross a correlation curve of NOX emission rate determined using a NOX concentration calorific value and density of the oil (as versus heat input rate. Each correlation monitoring system and a flow monitor. applicable). Section 2.2.5 of Appendix D curve is programmed into the data However, Section 8.2 simply cross- requires each oil sample to be split and acquisition and handling system referenced other parts of the rule, rather a portion (at least 200 cc) of it to be (DAHS), and retesting is required every than showing the actual equations used. maintained for at least 90 days after the five years (20 calendar quarters) to To correct this, the Agency proposed to end of the allowance accounting period. develop a new curve. add Equation F–26a to subsection 8.2.1 The requirement to split and maintain If the 20 calendar quarter test and Equation F–26b to subsection 8.2.2, a portion of each oil sample has been in deadline passes without a retest having clearly showing how the NOX mass Appendix D since it was first been performed, the previous emission rate is calculated on a wet and promulgated on January 11, 1993. At correlation curve expires and is no dry basis, and to renumber Equation F– that time, on-site fuel oil sampling was longer valid. However, the appropriate 26 in Section 8.3 as Equation F–26c. required on every day that the unit missing data procedure to follow when Proposed Equations F–26a and F–26b combusted oil. Later, on May 17, 1995, a correlation curve expires has been have been used since 2002 by sources in an option to sample each shipment conspicuously absent from Section 2.5 the NO Budget Program, and the upon delivery was added for diesel fuel. of Appendix E. To address this X equations have been represented in the Then, on May 26, 1999, the four basic deficiency, EPA proposed to add a new EDR reporting instructions as Equations oil sampling options in the current rule Section, 2.5.2.4, to Appendix E, N–1 and N–2, respectively. were put in place. However, the requiring the fuel-specific maximum requirement to split and maintain a potential NOX emission rate (MER) to be Summary of Rule Changes portion of each sample has remained reported, from the date and hour in unchanged through all of these which a baseline correlation curve No adverse comments were received. rulemakings. expires until a new correlation curve is These provisions have been finalized, as Believing that the requirement to split generated. proposed. and maintain oil samples should only apply to samples that are taken at the Summary of Rule Changes 2. Use of the Diluent Cap affected facility, EPA proposed to revise No adverse comments were received. Background Section 2.2.5 of Appendix D to limit this This provision has been finalized, as requirement to samples that are taken proposed. EPA proposed to restrict the use of the diluent cap to NOX emission rate on-site. If this proposed amendment L. Appendix F were finalized, sources electing to determinations. The original purpose for sample each fuel lot would no longer be 1. NOX Mass Calculations allowing the diluent cap to be used was required to split and maintain oil Background to keep calculated NOX emission rates samples in cases where the samples are from approaching infinity during taken off-site, from the fuel supplier’s EPA proposed to revise the manner in periods of unit startup and shutdown, which NO mass data are collected storage container. X when the diluent gas (CO2 or O2) under the XML format that will be concentration is close to the level in the Summary of Rule Changes required in 2009 as part of EPA’s effort ambient air. However, since 1999, Part No adverse comments were received. to re-engineer the Agency’s data 75 has allowed the diluent cap to be This provision has been finalized, as collection systems. To achieve this, the used for heat input rate calculations, hourly NOX mass emission rate (lb/hr) proposed. CO2 mass emission calculations, and would be reported instead of hourly K. Appendix E calculation of hourly CO2 concentration NOX mass emission (lb), when the from measured O2 concentrations, in source transitions from EDR reporting 1. AETB Requirements addition to being used for NOX emission format to the XML format. rate. Sources have been allowed to use Background To effect this, Equations F–24, and F– the cap value for some of these EPA proposed to revise Section 2.1 of 27 in Appendix F of Part 75 would have calculations and not others, which Appendix E to require that any Air to be modified and Equation F–26 greatly complicates the data collection Emissions Testing Body (AETB) removed. However, since the current process. EPA has also found that using performing emission measurements to EDR reporting format will continue to the diluent cap for other parameters develop an Appendix E correlation be supported through 2008, these besides NO emission rate always leads curve or to derive a default emission equations must remain in the rule until X to over-reporting of these parameters, rate for a LME unit, would have to the transition to XML is complete. which is clearly contrary to the conform to ASTM D7036–04. Therefore, EPA proposed to revise intended purpose of the diluent cap. Summary of Rule Changes Section 8 of Appendix F by adding Equations F–24a for the reporting of Therefore, the Agency proposed to remove all of the references in Sections No adverse comments were received. hourly NOX mass emission rate (lb/hr) This provision has been finalized, as and Equation F–27a , for the calculation 4 and 5 of Appendix F that allow the diluent cap to be used for other proposed. of cumulative NOX mass emissions. In parameters besides NOX emission rate. 2. Reporting Data When the Correlation 2009, the use of Equations F–24a and F– Curve Expires 27a would become mandatory for all Summary of Rule Changes sources and Equations F–24 and F–27 Background would no longer be applicable. No adverse comments were received. For oil and gas-fired peaking units EPA also proposed to revise Section These provisions have been finalized, as using the Appendix E methodology to 8.2 of Appendix F, by splitting it into proposed.

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3. Negative Emission Values volume of CO2 generated per million the prorated F-factor used in the Background Btu of heat input. The F-factor is fuel- emission calculations would be derived specific. from the Xi values from the most recent EPA proposed to provide special Sections 3.3.5 and 3.3.6 of Appendix update. The owner or operator would be reporting instructions to account for F allow the owner or operator to use required to document in the hard copy situations where the equations either a default F-factor from Table 1 in portion of the monitoring plan the prescribed by the rule yield negative Appendix F, or use Equation F–7a or F– method used to determine the Xi values. values. First, when Equation 19–3 or 7b in Appendix F to calculate a site- 19–5 (from EPA Method 19 in 40 CFR specific F-factor, based on the Summary of Rule Changes Part 60, Appendix A) is used to composition of the fuel. However, The revisions to Section 3.3.6.4 of calculate NOX emission rate, modified Appendix F has never specified how forms of these equations, designated as Appendix F regarding the prorating of much fuel sampling data is required to F-factors have been finalized, with only Equations 19–3D and 19–5D, would be develop a site-specific F-factor or how used whenever the diluent cap is minor changes. However, several often the F-factor must be updated. commenters requested that EPA applied. Second, for any hour where To address this issue, EPA proposed Equation F–14b results in a negative consider allowing the use of the ‘‘worst- to revise the introductory text of case’’ (i.e., highest) F-factor as an hourly average CO2 value, EPA Appendix F, Section 3.3.6 to require alternative to prorating, when proposed to require 0.0% CO2 to be each site-specific F-factor to be based on combinations of fuels are co-fired. After reported as the average CO2 value for a minimum of 9 samples of the fuel. careful consideration of these that hour. Third, the Agency proposed Fuel samples taken during the 9 runs of to require a default heat input rate value comments, EPA is persuaded by the an annual RATA would be acceptable commenters’ arguments in favor of this of 1 mmBtu/hr to be reported for any for this purpose. Further, re- hour in which Equation F–17 results in option and has decided to incorporate determination of the F-factor would be this suggestion into the final rule (see a negative hourly heat input rate. These required at least annually, and the value changes would be accomplished by section 2.4 of the Response to from the most recent determination Comments document). New Section modifying Sections, 3.3.4, 4.4.1, and would be used in the emission 5.2.3 of Appendix F. 3.3.6.5 of Appendix F allows sources calculations. that burn combinations of fuels listed in Summary of Rule Changes Summary of Rule Changes Table 1 of Appendix F to use the highest (‘‘worst-case’’) F-factor for any unit These provisions have been finalized, No adverse comments were received. operating hour, in lieu of prorating the with one notable change. The final rule These provisions have been finalized, as F-factor. Note that in view of the will require a default heat input rate proposed. value of 1 mmBtu/hr to be reported for revisions to Section 3.3.6.4, Agency has any hour in which Equation F–17 6. Prorated F-Factors deemed it necessary to modify the results in a hourly heat input rate that Background language in Section 3.3.6.3 of Appendix is less than or equal to zero. F. Administrative approval of the F- For affected units that co-fire factor is no longer required when 4. Calculation of Stack Gas Moisture combinations of fossil fuels or fossil combinations of fossil fuels with wood Content fuels and wood residue and that use or bark are combusted, since F-factors Background CEMS to monitor the NOX emission rate for these fuels are listed in Table 1. or unit heat input rate, Section 3.3.6.4 Rather, revised Section 3.3.6.3 requires EPA proposed to add Equation F–31 of Appendix F has required a prorated Administrative approval of the F-factor to a new Section 10 in Appendix F, to F-factor to be used in the emission only when a fuel not listed in Table 1 be used to calculate stack gas moisture calculations. The prorated F-factor is is co-fired with a fuel (or fuels) listed in values from wet and dry oxygen calculated using Equation F–8 in the Table. measurements, as described in Appendix F. In applying Equation F–8, Appendix A, Section 6.5.7(a). Sources the F-factor for each type of fuel is 7. Default F-Factors have been using this equation for many weighted according to the fraction of the Background years and it has been represented in the total heat input contributed by the fuel. EDR reporting instructions as Equation However, Equation F–8 has never In recent years, petroleum coke and M–1. specified how the total unit heat input tires have begun to be used as primary Summary of Rule Changes and the fraction of the heat input or secondary fuels by a number of contributed by each fuel are determined. affected sources. In view of this, EPA No adverse comments were received. Data from the CEMS cannot be used for proposed to add default F-factors for This provision has been finalized, as this purpose because the prorated F- petroleum coke and tire-derived fuels to proposed. factor must be known before the unit Table 1 in Section 3.3.5 of Appendix F. 5. Site-Specific F-Factors (Single Fuel) heat input rate can be calculated. The proposed values were 9,832 dscf/ To correct this situation, EPA mmBtu for F and 1,853 scf CO /mmBtu Background d 2 proposed to revise the definition of ‘‘Xi’’ for Fc for petroleum coke and 10,261 For units that use CEMS to measure (the fraction of the total heat input dscf/mmBtu for Fd and 1,803 scf CO2/ the NOX emission rate in lb/mmBtu derived from each fuel) in the Equation mmBtu for Fc for tire-derived fuels. The and/or the unit heat input rate in F–8 nomenclature. The proposed Agency also proposed F-factors of 9,819 mmBtu/hr, an equation from Appendix revision would require sources to dscf/mmBtu (for Fd) and 1,840 scf CO2/ F of Part 75 or from Method 19 of 40 determine Xi from the best available mmBtu (for Fc) for sub-bituminous coal. CFR Part 60 is required to convert the information on the quantity of each fuel All of the proposed F-factors were raw CEMS data into the proper units of combusted and its GCV value over a calculated using Equations F–7a and F– measure. Each of these equations specified time period. The value of Xi 7b and representative composition and contains an F-factor, which represents would be updated periodically, either gross calorific value (GCV) data for each either the total volume of flue gas or the hourly, daily, weekly, or monthly, and fuel.

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Summary of Rule Changes consequences were too lenient and the specification, provided that it also These provisions have been finalized, others unnecessarily severe. The Agency meets the rest of the Appendix K QA with minor editorial changes. One therefore proposed to revise them to criteria, the valid trap could be used for commenter recommended that the make them more consistent and Part 75 reporting, if the STAF value of proposed F-factor values be rounded off equitable. 1.222 is applied to the measured Hg Whenever one of the paired traps is to the nearest multiple of 10, to be concentration. accidentally lost, damaged, or broken Appendix K has required data from a consistent with the other values in and cannot be analyzed, § 75.15(h) has sorbent trap monitoring system to be Table 1. EPA agrees with this comment allowed the owner or operator to use the invalidated whenever the relative and has rounded off the F-factors remaining trap to determine the Hg deviation between the Hg accordingly. concentration for the data collection concentrations measured by the paired 8. Revisions to Equation F–23 period, provided that the remaining trap traps is greater than 10 percent. EPA meets all of the QA requirements of proposed to revise this requirement, to Background Appendix K. But no adjustment of the allow sources to report the higher of the Consistent with the proposed changes data has been required to compensate two Hg concentrations measured by a to § 75.11(e), expanding the for the loss of one of the samples. In pair of sorbent traps whenever the RD applicability of Equation F–23, EPA view of this, EPA proposed to revise specification is not met, rather than proposed to amend Section 7 of § 75.15(h) to require that the Hg invalidating the sorbent trap system Appendix F (introductory text), and the concentration measured by the data for the entire collection period. The Equation F–23 nomenclature. remaining valid trap be multiplied by a Agency also proposed, for consistency Summary of Rule Changes ‘‘single trap adjustment factor’’ (STAF) with the proposed changes § 75.22(a), to of 1.222. The STAF represents the revise Table K–1 to include an No adverse comments were received. maximum amount by which the Hg alternative relative deviation These provisions have been finalized, as concentration from the lost, damaged or specification of 20 percent for paired proposed. broken trap could have exceeded the sorbent traps, when low effluent ≤ µ 3 M. Appendix G concentration measured by the valid concentrations of Hg ( 1 g/m ) are trap and still met the 10% RD encountered. Background specification. EPA further proposed to add two new Consistent with the changes to other The Agency also proposed to revise paragraphs, (k) and (l), to § 75.15. parts of the rule, EPA proposed to Table K–1 in Appendix K, to extend the Proposed § 75.15(k) would have update the current ASTM standards use of the STAF to cases where one of required that whenever the RATA of a listed in Sections 2.1.2, 2.2.1, and 2.2.2, the paired sorbent traps either: (a) fails sorbent trap system is performed, the of Appendix G, citing the newer a post-test leak check; (b) has excessive sorbent traps used to collect the RATA versions. breakthrough in the second section; or run data must be the same size as the (c) is unable to meet the required traps used for daily operation of the Summary of Rule Changes percent recovery of the third section monitoring system. Likewise, the No adverse comments were received. elemental Hg spike. In all three of these sorbent material must be the same type These provisions have been finalized, as cases, provided that the other trap meets that is used for daily operation. proposed. all Appendix K requirements, rather Proposed § 75.15(l) would have required than invalidating the sorbent trap a diagnostic RATA of the sorbent trap N. Appendix K system data for the entire collection system whenever either the size of the Background period, the Hg concentration measured sorbent traps or the type of sorbent by the valid trap, multiplied by the material was changed. Data from the EPA proposed to addresses several STAF, could be used for Part 75 modified sorbent trap system would not issues regarding the use of sorbent trap reporting. have been acceptable for Part 75 monitoring systems for the Section 7.2.3 of Appendix K requires reporting until the RATA is passed, measurement and reporting of Hg mass that for each hour of the data collection with one exception, i.e., data collected emissions. When this monitoring option period, the ratio of the stack gas flow during a successful diagnostic RATA is selected, paired sorbent traps are rate to the sample flow rate through test period could be reported as quality- required to measure the effluent Hg each sorbent trap must be maintained assured. concentration. If the two Hg within ±25 percent of the initial ratio Finally, revisions to section 7.2.3 of concentrations measured by the paired established in the first hour of the data Appendix K were proposed, requiring traps meet the required relative collection period. However, the rule has that the sample flow rate through a deviation (RD) specification in stated that when this criterion is not sorbent trap monitoring system must be Appendix K of Part 75, and if each trap met, the appropriate consequences are zero when the unit is not operating. EPA individually meets certain other QA to be determined on a ‘‘case-by-case’’ believes this clarification is needed to requirements of Appendix K, then the basis. EPA has reconsidered this prevent the system from sampling two Hg concentrations are averaged approach and now believes that it ambient air during periods when the arithmetically and the average value is allows for inconsistent application of combustion unit is off-line, which used to determine the Hg mass the sorbent trap monitoring would artificially lower the Hg emissions in each hour of the data methodology. Therefore, the Agency concentrations measured by the sorbent collection period. However, in cases proposed to revise Table K–1 to specify traps, resulting in under-reporting of Hg where either or both of the traps fails to that a sample is invalidated if either: (a) mass emissions. meet the acceptance criteria, § 75.15(h) More than 5 percent of the hourly ratios; and Table K–1 in Appendix K specify or (b) more than 5 hourly ratios in the Summary of Rule Changes consequences of varying severity. In the data collection period (whichever is less The commenters generally favored the months following promulgation of these restrictive) fail to meet the ±25 percent proposal to add a 20 percent alternative rule provisions, EPA revisited them and acceptance criterion. Further, if only relative deviation (RD) specification for concluded that some of the one of the paired traps is able to meet sources with low Hg emissions (≤ 1.0

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µg/m3). However, concerns were paragraph (l) questioned why data 40 CFR Part 60 (see: 72 FR p.32710). For expressed that even a 20 percent RD collected by the modified sorbent trap certain affected units (some of which are specification might be difficult to meet system are considered invalid prior to also subject to Part 75), these rule when emissions are exceptionally low. the diagnostic RATA. The commenters revisions either require or allow a For instance, following a flue gas requested that EPA revise paragraph (l) particulate matter (PM) monitoring desulfurization system, the Hg emission to allow data collected prior to the system to be used in lieu of an opacity levels can be as low as 0.1 to 0.2 µg/m3. diagnostic RATA to be reported as valid monitor (e.g., see §§ 60.49Da(t), and One commenter suggested that the if the RATA is passed. The commenters’ 60.48b(j)). allowable RD for low emitters should be suggestion is reasonable and has been either 20 percent or 0.03 µg/m3 absolute incorporated into the final rule. A Summary of Rule Changes difference, whichever is less restrictive passed diagnostic RATA demonstrates Today’s rule incorporates the (see section 2.9.2 of the Response to that the change in sorbent material has commenter’s recommendation, as new Comments document). EPA agrees with not significantly affected the monitoring paragraph (e) in § 75.14. The Agency this comment and has incorporated the system’s ability to accurately measure believes that this revision to Part 75 is 0.03 µg/m3 alternative RD specification Hg emissions. Therefore, § 75.15(l) non-controversial and is consistent with into both Appendix K (for sorbent trap allows the data from the modified EPA’s ongoing commitment to monitoring systems), and § 75.22 (for sorbent trap system to be considered harmonization of the Part 60 and Part 75 the Ontario Hydro Method and EPA conditionally valid according to continuous monitoring regulations. Method 29). § 75.20(b)(3), for up to 720 unit or stack 2. Default Moisture Values for Hg The commenters were divided on the operating hours after switching to a new Monitoring proposed single trap adjustment factor type of sorbent material. If the (STAF) provisions. Two commenters diagnostic RATA is passed within the Background supported the proposed amendments 720 operating hour window, the data For dry-basis Hg CEMS and sorbent and four others objected to them. Those recorded by the modified system prior trap monitoring systems, the hourly Hg objecting expressed concern that to the RATA may be reported as quality- emissions data must be corrected for the applying the proposed STAF value of assured. If the RATA is failed, no data stack gas moisture content. This 1.222 in cases where one trap meets all from the modified system may be requirement can be met by using one of of the QA requirements is unnecessarily reported as quality-assured until a the fuel-specific default moisture values punitive. Several of the commenters subsequent RATA is passed. If the specified in Part 75. Several places in recommended that the STAF value diagnostic RATA is not completed § 75.80, § 75.81, and Appendix K state should be 1.111, which would be within the allotted 720 operating hour that for the purposes of Hg monitoring, consistent with the averaging that is window but is passed on the first a default moisture value from § 75.11(b) performed when the results of both attempt, data from the modified system or § 75.12(b) may be used in lieu of traps are available and would are considered to be invalid from the installing a continuous moisture appropriately weight the results of the first hour after the expiration of the 720 monitoring system. However, the valid trap (see section 4.3 of the operating hour window until the reference to § 75.12(b) is incorrect. Only Response to Comments document for completion of the RATA. the default moisture values in § 75.11(b) further discussion). After careful No comments were received on the are appropriate for Hg monitoring consideration of the comments, EPA has following proposed amendments: (1) applications. Equation F–29, the only decided to incorporate the commenters’ The proposal to allow the higher Hg suggestion regarding the value of the Hg mass emissions equation with a concentration to be reported when the moisture correction term, is structurally STAF. Therefore, the single-trap RD criterion for the paired sorbent traps similar to Equation F–2 for SO2 mass adjustment factor provisions have been is not met; (2) the proposed acceptance finalized as proposed, except that the emissions. The default moisture values criteria for the hourly ratios of stack gas in § 75.11(b) are the ones that apply to value of the STAF is 1.111. flow rate to sample flow rate; and (3) the Regarding proposed paragraphs (k) Equation F–2. Hence, they apply also to proposal to require the sample flow rate Equation F–29. The default moisture and (l) in § 75.15, EPA has reconsidered through a sorbent trap monitoring values in § 75.12(b) are used for NOX its position and has withdrawn the system to be zero when the affected unit requirement for the sorbent traps used emission rate calculations, and several is off-line. Therefore, these provisions of them are not applicable to Hg mass for RATA testing to be the same size as have been finalized, as proposed. the traps used for daily operation of the emissions monitoring. monitoring system. Accordingly, the O. Other Rule revisions Summary of Rule Changes proposed requirement to perform a 1. Particulate Matter Monitoring All references to the default moisture diagnostic RATA when the trap size is Systems changed has also been withdrawn. The values in § 75.12(b) have been removed Agency is finalized paragraph (k) as part Background from § 75.80, § 75.81, and Appendix K. of a direct-final rulemaking on EPA received a comment that was 3. Hg Stratification Testing September 7, 2007 (72 FR 51494– outside the scope of the proposed rule, Background 51531). Paragraph (k) requires only that requesting that units with installed the type of sorbent material used for the particulate matter (PM) monitoring To support the Clean Air Mercury RATAs be the same as the sorbent systems be exempted from the opacity Regulation (CAMR), which was material used for daily operation. monitoring requirements of § 75.14. published in 2005 (see: 70 FR 28606, Today’s rule finalizes paragraph (l) of May 18, 2005), EPA added Hg § 75.15, to require a diagnostic RATA Summary of Rule Changes monitoring provisions to Part 75, among within 720 operating hours whenever a Although the comment was outside which were revisions to § 75.22(a) and new type of sorbent material begins to the scope of this rulemaking and no to section 6.5.10 of Appendix A, be used in the traps (e.g., using response is required, EPA believes that specifying ASTM D6784–02, the brominated carbon instead of iodated it has merit in light of June 13, 2007 ‘‘Ontario Hydro Method’’, as the carbon). Commenters on proposed amendments to Subparts Da and Db of appropriate reference method for

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measuring Hg concentration. On August historically, most testers have opted to reporting requirements in 40 CFR Part 22, 2006 EPA proposed to add Method perform stratification testing at scrubbed 75, which are mandatory for all sources 29 (which is similar to Ontario Hydro) stacks to justify sampling along a 3- subject to the Acid Rain Program under to Part 75, as an alternative Hg reference point short line (or at a single point), Title IV of the Clean Air Act and certain method. Most recently, in a direct-final which greatly simplifies the test other emissions trading programs action on September 7, 2007. EPA procedures, in that all measurements administered by EPA. All information published two more alternative can be made at one test port, using a submitted to EPA pursuant to the reference methods (RMs) for measuring probe of reasonable length. recordkeeping and reporting vapor phase Hg emissions, Method 30A Unfortunately, Part 75 does not have a requirements for which a claim of (an instrumental method) and Method stratification test procedure for Hg, and, confidentiality is made is safeguarded 30B (a sorbent-based method). Today’s as previously noted, neither the Ontario according to Agency policies set forth in rule allows the use of Methods 29, 30A, Hydro Method nor Method 29 has any 40 CFR Part 2, subpart B. The and 30B as alternatives to the Ontario stratification test provisions—but there preexisting Part 75 rule requirements Hydro Method (see the revisions to is a Hg stratification test procedure in amended in this final rule are covered § 75.22(a) and Section 6.5.10 of Method 30A. by existing ICRs for the Acid Rain Appendix A). EPA anticipates that in Program (EPA ICR number 1633.14; Summary of Rule Changes 2008 and beyond, all four of the Hg OMB control number 2060–0258), the reference methods in Part 75 will be In view of these considerations, EPA NOX SIP Call (EPA ICR number 1857.04; used, to a greater or lesser extent, for the has deemed it necessary to revise OMB number 2060–0445), and the Hg emission testing required under Section 6.5.6(c) of Appendix A, to cross- Clean Air Interstate Rule (EPA ICR §§ 75.81(c) and (d) and for RATAs of Hg reference the Hg stratification test number 2152.02; OMB number 2060– monitoring systems. provisions in Sections 8.1.3 through 0570). The separate ICR for the final rule For Hg emission tests, Methods 30A 8.1.3.5 of Method 30A. Further, revisions addresses the one-time costs and 30B require 12 sampling points § 75.22(a)(7) has been revised to address necessary for sources to review the rule (located according to EPA Method 1) for RM sample point location and revisions and adapt their recordkeeping each test run, unless the results of a Hg stratification testing when the Ontario and reporting systems to the revised stratification test justify using fewer Hydro Method or Method 29 is used for requirements. The EPA believes that the points. The Ontario Hydro Method and the Hg low mass emission testing long term implications of the rule Method 29 each require a minimum of required under §§ 75.81(c) and (d). For revisions will be to reduce the ongoing 12 sample points and do not include that particular application, revised burdens and costs associated with Part any stratification test provisions or § 75.22(a)(7) requires the sampling 75 compliance, but those impacts will alternative sampling point location points to be located according to Section be addressed as EPA renews the criteria. 8.1 of Method 30A and cross-references individual program ICRs. The annual For the RATAs of Part 75 Hg the stratification test provisions in monitoring, reporting, and monitoring systems, when Methods 30A sections 8.1.3 through 8.1.3.5 of Method recordkeeping burden for this collection and 30B are used, both methods defer to 30A. (averaged over the first 3 years after the the RM point selection and location These amendments to Appendix A effective date of the final rule) is procedures described in Part 75, and § 75.22 provide a consistent estimated to be 124,976 labor hours per Appendix A, section 6.5.6 and approach to stratification testing and year at a total annual cost of $8,581,420. Performance Specification 2 (PS2) in RM sampling point location for Hg This estimate includes burdens for rule Appendix B of 40 CFR Part 60. This is emission testing and Hg monitoring review, recordkeeping and reporting the familiar sampling approach that system RATAs, irrespective of which Hg allows the use of a ‘‘short’’ 3-point software upgrades, and software reference method is used for the testing. measurement line at locations where debugging activities, as well as the stratification is not expected, but II. Statutory and Executive Order capital costs of upgrading recordkeeping requires the use of a 3-point ‘‘long’’ Reviews and reporting software. measurement line (which includes a Burden means the total time, effort, or A. Executive Order 12866: Regulatory point at the center of the stack) at financial resources expended by persons Planning and Review locations where stratification is to generate, maintain, retain, or disclose suspected (e.g., after a wet scrubber), This action is not a ‘‘significant or provide information to or for a unless the results of a stratification test regulatory action’’ under the terms of Federal agency. This includes the time justify using the 3-point short line (or Executive Order (EO) 12866 (58 FR needed to review instructions; develop, perhaps a single sampling point). As an 51735, October 4, 1993) and is therefore acquire, install, and utilize technology alternative, Part 75 allows the use of six not subject to review under the EO. and systems for the purposes of Method 1 sampling points located along collecting, validating, and verifying B. Paperwork Reduction Act a diameter, at any test location information, processing and (including those where stratification is The information collection maintaining information, and disclosing suspected). This same RM sampling requirements in the final rule have been and providing information; adjust the point location methodology applies to submitted for approval to OMB under existing ways to comply with any Hg RATAs in which the Ontario Hydro the Paperwork Reduction Act, 44 U.S.C. previously applicable instructions and Method or Method 29 is used as the 3501 et seq. The Information Collection requirements; train personnel to be able reference method. Request (ICR) document prepared by to respond to a collection of However, when testing is performed EPA has been assigned EPA ICR number information; search data sources; downstream of a scrubber, measuring at 2203.02. The information collection complete and review the collection of the center of a large-diameter stack is requirements are not enforceable until information; and transmit or otherwise extremely difficult logistically, and OMB approves them. disclose the information. An Agency testing at 6 points along a diameter may The information requirements are may not conduct or sponsor, and a not be possible for certain test platform based on the revisions to the person is not required to respond to a and test port configurations. Therefore, monitoring, recordkeeping, and collection of information unless it

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displays a currently valid OMB control existing electronic data reporting requirements of sections 202 and 205 of number. The OMB control numbers for software used under this program, the the UMRA. EPA’s regulations in 40 CFR are listed long term effects of these revisions will EPA has determined that this rule in 40 CFR Part 9. When this ICR is be to allow continued efficient contains no regulatory requirements that approved by OMB, the Agency will electronic data submittals that should might significantly or uniquely affect publish a technical amendment to 40 act to relieve some of the long term small governments. The revisions CFR part 9 in the Federal Register to reporting burdens for affected sources, primarily make certain changes EPA has display the OMB control number for the which include some small entities. determined are necessary as part of approved information collection upgrading the data systems used to D. Unfunded Mandates Reform Act requirements contained in this final manage data submitted under the rule. Title II of the Unfunded Mandates program and to streamline the methods Reform Act of 1995 (UMRA), Pub. L. for sources to report their information. C. Regulatory Flexibility Act 104–4, establishes requirements for The revisions also clarify certain issues The Regulatory Flexibility Act (RFA) Federal agencies to assess the effects of that have been raised during ongoing generally requires an agency to prepare their regulatory actions on State, local, implementation of the existing rule and a regulatory flexibility analysis of any and tribal governments and the private update the information on various rule subject to notice and comment sector. Under section 202 of the UMRA, voluntary consensus standards rulemaking requirements under the EPA generally must prepare a written incorporated by reference in the rule. Administrative Procedure Act or any statement, including a cost-benefit Some States do have programs that rely other statute unless the agency certifies analysis, for proposed and final rules on the monitoring provisions in 40 CFR that the rule will not have a significant with ‘‘Federal mandates’’ that may Part 75, and States may incur some costs economic impact on a substantial result in expenditures to State, local, associated with reviewing the number of small entities. Small entities and tribal governments, in the aggregate, modifications to Part 75, but the rule include small businesses, small or to the private sector, of $100 million revisions and the impact on the States organizations, and small governmental or more in any one year. Before are not significant. jurisdictions. For purposes of assessing promulgating an EPA rule for which a the impacts of today’s rule on small written statement is needed, section 205 E. Executive Order 13132: Federalism entities, small entity is defined as: (1) A of the UMRA generally requires EPA to Executive Order 13132, entitled small business as defined by the SBA’s identify and consider a reasonable ‘‘Federalism’’ (64 FR 43255, August 10, regulations at 13 CFR 121.201; (2) a number of regulatory alternatives and 1999), requires EPA to develop an small governmental jurisdiction that is a adopt the least costly, most cost accountable process to ensure government of a city, county, town, effective or least burdensome alternative ‘‘meaningful and timely input by State school district or special district with a that achieves the objectives of the rule. and local officials in the development of population of less than 50,000; and (3) The provisions of section 205 do not regulatory policies that have federalism a small organization that is any not-for- apply when they are inconsistent with implications.’’ ‘‘Policies that have profit enterprise which is independently applicable law. Moreover, section 205 federalism implications’’ is defined in owned and operated and is not allows EPA to adopt an alternative other the Executive Order to include dominant in its field. than the least costly, most cost-effective, regulations that have ‘‘substantial direct After considering the economic or least burdensome alternative if the effects on the States, on the relationship impacts of today’s final rule on small Administrator publishes with the final between the national government and entities, I certify that this action will not rule an explanation why that alternative the States, or on the distribution of have a significant economic impact on was not adopted. Before EPA establishes power and responsibilities among the a substantial number of small entities. any regulatory requirements that may various levels of government.’’ This In determining whether a rule has a significantly or uniquely affect small final rule does not have federalism significant economic impact on small governments, including tribal implications. It will not have substantial entities, the impact of concern is any governments, it must have developed direct effects on the States, on the significant adverse economic impact on under section 203 of the UMRA a small relationship between the national small entities, since the primary government agency plan. The plan must government and the States, or on the purpose of the regulatory flexibility provide for notifying potentially distribution of power and analysis is to identify and address affected small governments, enabling responsibilities among the various regulatory alternatives ‘‘which minimize officials of affected small governments levels of government, as specified in any significant economic impact of the to have meaningful and timely input in Executive Order 13132. These rule rule on small entities.’’ 5 U.S.C. 603 and the development of EPA regulatory revisions represent minor adjustments 604. Thus, an agency may certify that a proposals with significant Federal to existing regulations. The revisions rule will not have a significant intergovernmental mandates, and primarily make certain changes EPA has economic impact on a substantial informing, educating, and advising determined are necessary as part of number of small entities if the rule small governments on compliance with upgrading the data systems used to relieves regulatory burden or otherwise the regulatory requirements. EPA has manage data submitted under the has a positive economic effect on all of determined that this final rule does not program and to streamline the methods the small entities subject to the rule. contain a Federal mandate that may for sources to report their information. These final rule revisions represent result in expenditures of $100 million or The revisions also clarify certain issues minor changes to existing monitoring more for State, local, and tribal that have been raised during ongoing requirements used in EPA emission governments in the aggregate, or to the implementation of the existing rule and trading programs and we expect these private sector in any 1 year, nor does update the information on various revisions to reduce the economic this rule significantly or uniquely voluntary consensus standards burden for affected entities in the long impact small governments, because it incorporated by reference in the rule. term. contains no requirements that impose Some States do have programs that rely Although there will be some small new obligations upon them. Thus, this on the monitoring provisions in 40 CFR level of up front costs to reprogram final rule is not subject to the Part 75, and States may incur some costs

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associated with reviewing the Energy Supply, Distribution, or Use’’ (66 Agency promulgating the rule must modifications to Part 75, but the rule FR 28355, May 22, 2001) because it is submit a rule report, which includes a revisions and the impact on the States not a significant regulatory action under copy of the rule, to each House of the are not significant. Thus, Executive Executive Order 12866. Congress and to the Comptroller General Order 13132 does not apply to this final I. National Technology Transfer and of the United States. EPA will submit a rule. Advancement Act report containing this rule and other required information to the U.S. Senate, F. Executive Order 13175: Consultation Section 12(d) of the National the U.S. House of Representatives, and and Coordination With Indian Tribal Technology Transfer and Advancement Governments Act of 1995 (NTTAA), Public Law No. the Comptroller General of the United Executive Order 13175, entitled 104–113, section 12(d) (15 U.S.C. 272 States prior to publication of the rule in ‘‘Consultation and Coordination With note) directs EPA to use voluntary the Federal Register. A major rule Indian Tribal Governments’’ (65 FR consensus standards in its regulatory cannot take effect until 60 days after it 67249, November 9, 2000), requires EPA activities unless to do so would be is published in the Federal Register. to develop an accountable process to inconsistent with applicable law or This action is not a ‘‘major rule’’ as ensure ‘‘meaningful and timely input by otherwise impractical. Voluntary defined by 5 U.S.C. 804(2). This rule tribal officials in the development of consensus standards are technical will be effective on January 24, 2008 for regulatory policies that have tribal standards (e.g., materials specifications, good cause found as explained in this implications.’’ This final rule does not test methods, sampling procedures, and rule. have tribal implications, as specified in business practices) that are developed or Executive Order 13175. It will not have adopted by voluntary consensus L. Petitions for Judicial Review substantial direct effects on tribal standards bodies. The NTTAA directs Under Clean Air Act section 307(b)(1), governments, on the relationship EPA to provide Congress, through OMB, petitions for judicial review of this between the Federal government and explanations when the Agency decides action must be filed in the United States Indian tribes, or on the distribution of not to use available and applicable Court of Appeals for the appropriate power and responsibilities between the voluntary consensus standards. This circuit by March 24, 2008. Filing a Federal government and Indian tribes. rule includes updated information on a Thus, Executive Order 13175 does not number of voluntary consensus petition for reconsideration by the apply to this final rule. standards previously included in 40 Administrator of this final rule does not CFR Part 75, as well as the addition of affect the finality of this rule for the G. Executive Order 13045: Protection of certain other voluntary consensus purposes of judicial review, nor does it Children From Environmental Health standards. extend the time within which a petition and Safety Risks for judicial review may be filed, and Executive Order 13045: ‘‘Protection of J. Executive Order 12898: Federal shall not postpone the effectiveness of Children From Environmental Health Actions To Address Environmental such a rule or action. This action may Risks and Safety Risks’’ (62 FR 19885, Justice in Minority Populations and not be challenged later in proceedings to Low-Income Populations April 23, 1997) applies to any rule that: enforce its requirements. (See section (1) Is determined to be ‘‘economically Executive Order 12898 (59 FR 7629 307(b)(2) of the Administrative significant’’ as defined under Executive (Feb. 16, 1994)) establishes federal Procedures Act.) Order 12866, and (2) concerns an executive policy on environmental environmental health or safety risk that justice. Its main provision directs M. Determination Under Section 307(d) EPA has reason to believe may have a federal agencies, to the greatest extent Pursuant to Clean Air Act section disproportionate effect on children. If practicable and permitted by law, to the regulatory action meets both criteria, make environmental justice part of their 307(d)(1)(U), the Administrator the Agency must evaluate the mission by identifying and addressing, determines that this action is subject to environmental health or safety effects of as appropriate, disproportionately high the provisions of section 307(d). Section the planned rule on children, and and adverse human health or 307(d)(1)(U) provides that the explain why the planned regulation is environmental effects of their programs, provisions of section 307(d) apply to preferable to other potentially effective policies, and activities on minority ‘‘such other actions as the Administrator and reasonably feasible alternatives populations and low-income may determine.’’ While the considered by the Agency. EPA populations in the United States. EPA Administrator did not make this interprets Executive Order 13045 as has determined that this final rule will determination earlier, the Administrator applying only to those regulatory not have disproportionately high and believes that all of the procedural actions that are based on health or safety adverse human health or environmental requirements, e.g., docketing, hearing risks, such that the analysis required effects on minority or low-income and comment periods, of section 307(d) under section 5–501 of the Order has populations because it does not affect have been complied with during the the potential to influence the regulation. the level of protection provided to course of this rulemaking. This rule is not subject to Executive human health or the environment. This Order 13045 because it does not final rule does not affect or relax the List of Subjects in 40 CFR Parts 72 and establish an environmental standard control measures on sources impacted 75 intended to mitigate health or safety by emission trading programs that rely Environmental protection, Acid rain, risks. on monitoring under 40 CFR Part 75. Administrative practice and procedure, H. Executive Order 13211: Actions That K. Congressional Review Act Air pollution control, Carbon dioxide, Significantly Affect Energy Supply, The Congressional Review Act, 5 Continuous emission monitoring, Distribution, or Use U.S.C. 801 et seq., as added by the Small Electric utilities, Incorporation by This rule is not subject to Executive Business Regulatory Enforcement reference, Nitrogen oxides, Reporting Order 13211, ‘‘Actions Concerning Fairness Act of 1996, generally provides and recordkeeping requirements, Sulfur Regulations That Significantly Affect that before a rule may take effect, the oxides.

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Dated: December 19, 2007. certification with the EPA Traceability Specialty gas producer means an Stephen L. Johnson, Protocol or distributing gases as ‘‘EPA organization that prepares and analyzes Administrator. Protocol Gas’’ must participate in the compressed gas mixtures for use as For the reasons set forth in the EPA Protocol Gas Verification Program. calibration gases and that offers the preamble, parts 72 and 75 of chapter I Non-participating vendors may not use mixtures for sale to end users or to of title 40 of the Code of Federal ‘‘EPA’’ in any form of advertising for third-party vendors for resale to end Regulations are amended as follows: these products, unless approved by the users. Administrator. * * * * * PART 72—PERMITS REGULATION EPA Protocol Gas Verification Program means the EPA Protocol Gas PART 75—CONTINUOUS EMISSION 1. The authority citation for part 72 audit program described in Section MONITORING continues to read as follows: 2.1.10 of the ‘‘EPA Traceability Protocol Authority: 42 U.S.C. 7601 and 7651, et seq. for Assay and Certification of Gaseous 3. The authority citation for Part 75 Calibration Standards,’’ September continues to read as follows: Subpart A—Acid Rain Program 1997, EPA–600/R–97/121 (EPA Protocol Authority: 42 U.S.C. 7601, and 7651k, and General Provisions Procedure) or such revised procedure as 7651k note. approved by the Administrator. 2. Section 72.2 is amended as follows: Subpart A—General a. Revising the definition of ‘‘Capacity * * * * * Excepted monitoring system means a factor’’; monitoring system that follows the 4. Section 75.4 is amended by revising b. In the definition of ‘‘Diluent cap’’, paragraph (d) to read as follows: by removing the words ‘‘, CO2 mass procedures and requirements of § 75.15 emission rate, or heat input rate,’’ after of this chapter, § 75.19 of this chapter, § 75.4 Compliance dates. § 75.81(b) of this chapter or of appendix the words ‘‘NOX emission rate’’; * * * * * c. In the definition of ‘‘EPA protocol D, or E to part 75 for approved (d) This paragraph, applies to affected gas’’, by adding a new sentence to the exceptions to the use of continuous units under the Acid Rain Program and end of the definition; emission monitoring systems. to units subject to a State or Federal d. Revising the definition of * * * * * pollutant mass emissions reduction ‘‘Excepted monitoring system’’; Long-term cold storage means the program that adopts the emission e. Adding the new definitions in complete shutdown of a unit intended monitoring and reporting provisions of alphabetical order for ‘‘Air Emission to last for an extended period of time (at this part. In accordance with § 75.20, for Testing Body (AETB)’’, ‘‘EPA Protocol least two calendar years) where notice an affected unit which, on the Gas Verification Program’’, ‘‘Long-term for long-term cold storage is provided applicable compliance date, is either in cold storage’’, ‘‘NIST traceable under § 75.61(a)(7). long-term cold storage (as defined in elemental Hg standards’’, ‘‘NIST * * * * * § 72.2 of this chapter) or is shut down traceable source of oxidized Hg’’, NIST traceable elemental Hg as the result of a planned outage or a ‘‘Qualified Individual’’, and ‘‘Specialty standards means either: forced outage, thereby preventing the gas producer’’; and (1) Compressed gas cylinders having required continuous monitoring system f. Removing the definition for known concentrations of elemental Hg, certification tests from being completed ‘‘Research gas material (RGM)’’ which have been prepared according to by the compliance date, the owner or The revisions and additions read as the ‘‘EPA Traceability Protocol for follows: operator shall provide notice of such Assay and Certification of Gaseous unit storage or outage in accordance § 72.2 Definitions. Calibration Standards’’; or with § 75.61(a)(3) or § 75.61(a)(7), as (2) Calibration gases having known * * * * * applicable. For the planned and Air Emission Testing Body (AETB) concentrations of elemental Hg, unplanned unit outages described in means a company or other entity that produced by a generator that fully meets this paragraph, the owner or operator conducts Air Emissions Testing as the performance requirements of the shall ensure that all of the continuous ‘‘EPA Traceability Protocol for described in ASTM D7036–04 monitoring systems for SO2, NOX, CO2, (incorporated by reference under § 75.6 Qualification and Certification of Hg, opacity, and volumetric flow rate of this part). Elemental Mercury Gas Generators’’. required under this part (or under the * * * * * * * * * * applicable State or Federal mass Capacity factor means either: NIST traceable source of oxidized Hg emissions reduction program) are (1) The ratio of a unit’s actual annual means a generator that: Is capable of installed and that all required electric output (expressed in MWe/hr) providing known concentrations of certification tests are completed no later to the unit’s nameplate capacity (or vapor phase mercuric chloride (HgCl2), than 90 unit operating days or 180 maximum observed hourly gross load and that fully meets the performance calendar days (whichever occurs first) (in MWe/hr) if greater than the requirements of the ‘‘EPA Traceability after the date that the unit recommences nameplate capacity) times 8760 hours; Protocol for Qualification and commercial operation, notice of which or Certification of Oxidized Mercury Gas date shall be provided under (2) The ratio of a unit’s annual heat Generators’’. § 75.61(a)(3) or § 75.61(a)(7), as input (in million British thermal units * * * * * applicable. The owner or operator shall or equivalent units of measure) to the Qualified Individual means an determine and report SO2 concentration, unit’s maximum rated hourly heat input individual who meets the requirements NOX emission rate, CO2 concentration, rate (in million British thermal units per as described in ASTM D7036–04, Hg concentration, and flow rate data (as hour or equivalent units of measure) ‘‘Standard Practice for Competence of applicable) for all unit operating hours times 8,760 hours. Air Emission Testing Bodies’’ after the applicable compliance date * * * * * (incorporated by reference under § 75.6 until all of the required certification EPA protocol gas * * * On and after of this part). tests are successfully completed, using January 1, 2009, vendors advertising * * * * * either:

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(1) The maximum potential ‘‘High-Temperature’’, in paragraph 96’’, and also by removing the word concentration of SO2 (as defined in (a)(12); ‘‘By’’ and adding in its place, ‘‘by’’, in section 2.1.1.1 of appendix A to this m. Removing ‘‘D1826–88’’ and adding paragraph (a)(29); part), the maximum potential NOX in its place ‘‘D1826–94 (Reapproved dd. Removing and reserving emission rate, as defined in § 72.2 of 1998)’’, in paragraph (a)(13); paragraph (a)(30); this chapter, the maximum potential n. Removing ‘‘D1945–91’’ and adding ee. Removing ‘‘D3588–91’’ and adding flow rate, as defined in section 2.1.4.1 in its place ‘‘D1945–96 (Reapproved in its place ‘‘D3588–98’’, and also by of appendix A to this part, the 2001)’’, in paragraph (a)(14); removing the phrase, ‘‘(Specific maximum potential Hg concentration, o. Adding the phrase ‘‘(Reapproved Gravity)’’, in paragraph (a)(31); as defined in section 2.1.7.1 of appendix 2006)’’ after ‘‘D1946–90’’, in paragraph ff. Removing ‘‘D4052–91’’ and adding A to this part, or the maximum potential (a)(15); in its place ‘‘D4052–96 (Reapproved CO concentration, as defined in section p. Removing and reserving paragraph 2002)’’, in paragraph (a)(32); 2 2.1.3.1 of appendix A to this part; or (a)(16); gg. Removing ‘‘D4057–88’’ and adding q. Removing ‘‘D2013–86’’ and adding (2) The conditional data validation in its place ‘‘D4057–95 (Reapproved in its place ‘‘D2013–01’’, and also by provisions of § 75.20(b)(3); or 2000)’’, in paragraph (a)(33); removing the phrase, ‘‘Method of’’, and hh. Removing ‘‘D4177–82 (3) Reference methods under adding in its place, ‘‘Practice for’’, in (Reapproved 1990)’’ and adding in its § 75.22(b); or paragraph (a)(17); place ‘‘D4177–95 (Reapproved 2000)’’, (4) Another procedure approved by r. Removing and reserving paragraph in paragraph (a)(34); the Administrator pursuant to a petition (a)(18); ii. Removing ‘‘D4239–85’’ and adding under § 75.66. s. Removing ‘‘D2234–89’’ and adding in its place ‘‘D4239–02’’, and also by * * * * * in its place ‘‘D2234–00’’, and also by removing the phrase ‘‘High 5. Section 75.6 is amended by: removing the phrase ‘‘Test Methods’’, Temperature’’, and adding in its place a. Removing ‘‘D129–91’’ and adding and adding in its place, ‘‘Practice’’, in ‘‘High-Temperature’’, in paragraph in its place ‘‘D129–00’’, in paragraph paragraph (a)(19); (a)(35); (a)(1); t. Removing and reserving paragraph jj. Removing ‘‘D4294–90’’ and adding b. Removing ‘‘D240–87 (Reapproved (a)(20); in its place ‘‘D4294–98’’, adding the 1991)’’ and adding in its place ‘‘D240– u. Removing ‘‘D2502–87’’ and adding words ‘‘and Petroleum’’ after the word 00’’, in paragraph (a)(2); in its place ‘‘D2502–92 (Reapproved ‘‘Petroleum’’, by removing the word ‘‘X- c. Removing ‘‘D287–82 (Reapproved 1996)’’, in paragraph (a)(21); Ray’’ and adding in its place, ‘‘X-ray’’, 1987)’’ and adding in its place ‘‘D287– v. Removing ‘‘D2503–82 (Reapproved and by removing the word 92 (Reapproved 2000)’’, in paragraph 1987)’’ and adding in its place ‘‘D2503– ‘‘Spectroscopy’’ and adding in its place, (a)(3); 92 (Reapproved 1997)’’, and also by ‘‘Spectrometry’’ in paragraph (a)(36); d. Removing ‘‘D388–92’’ and adding removing the phrase ‘‘Molecular Weight kk. Removing the phrase in its place ‘‘D388–99’’, in paragraph (Relative Molecular Mass)’’, and by ‘‘(Reapproved 1989)’’ and adding in its (a)(4); adding in its place, ‘‘Relative Molecular place the phrase ‘‘(Reapproved 2006)’’, e. Removing and reserving paragraph Mass (Molecular Weight)’’, in paragraph in paragraph (a)(37); (a)(5); (a)(22); ll. Removing ‘‘(reapproved 2004)’’, f. Removing ‘‘D1072–90’’ and adding w. Removing ‘‘D2622–92’’ and adding and adding in its place, ‘‘(Reapproved in its place ‘‘D1072–06’’, and also by in its place ‘‘D2622–98’’, and also by 2004)’’, in paragraph (a)(38); adding the phrase ‘‘by Combustion and removing the phrase ‘‘X-Ray mm. Adding the phrase ‘‘(Reapproved Barium Chloride Titration’’ after the Spectrometry’’, and adding in its place 2006)’’ after ‘‘D4891–89’’, in paragraph ‘‘Wavelength Dispersive X-ray (a)(39); word ‘‘Gases’’, in paragraph (a)(6); g. Removing ‘‘D1217–91’’ and adding Fluorescence Spectrometry’’, in nn. Removing ‘‘D5291–92’’ and paragraph (a)(23); adding in its place ‘‘D5291–02’’, in in its place ‘‘D1217–93 (Reapproved x. Removing ‘‘D3174–89’’ and adding paragraph (a)(40); 1998)’’, in paragraph (a)(7); in its place ‘‘D3174–00’’, and also by oo. Removing ‘‘D5373–93’’, and h. Removing the phrase ‘‘(Reapproved removing the word ‘‘From’’ and adding adding in its place ‘‘D5373–02 1990)’’, and by removing ‘‘D1250–80’’ in its place ‘‘from’’, in paragraph (a)(24); (Reapproved 2007)’’ and adding the and adding in its place ‘‘D1250–07’’, y. Adding the phrase ‘‘(Reapproved word ‘‘Test’’ after the word ‘‘Standard’’, and also by adding the phrase ‘‘Use of 2002)’’ after ‘‘D3176–89’’, in paragraph in paragraph (a)(41); the’’ after the first occurrence of the (a)(25); pp. Removing ‘‘D5504–94’’ and word ‘‘for’’, in paragraph (a)(8); z. Removing ‘‘D3177–89’’ and adding adding in its place ‘‘D5504–01’’, in i. Removing the phrase ‘‘D1298–85 in its place the phrase ‘‘ D3177–02 paragraph (a)(42); (Reapproved 1990), Standard Practice (Reapproved 2007)’’ in paragraph qq. Adding new paragraphs (a)(45), for Density, Relative Density (Specific (a)(26); (a)(46), (a)(47), (a)(48), and (a)(49); Gravity)’’ and adding in its place aa. Removing ‘‘ D3178–89 (1997), rr. Removing the phrase ‘‘ASME ‘‘D1298–99, Standard Test Method for ‘‘Standard Test Methods for Carbon and MFC–3M–1989 with September 1990 Density, Relative Density (Specific Hydrogen in the Analysis Sample of Errata’’ and adding in its place the Gravity),’’, in paragraph (a)(9); Coal and Coke’’ and adding in its place phrase ‘‘ASME MFC–3M–2004 j. Removing ‘‘D1480–91’’ and adding ‘‘D5373–02 (Reapproved 2007) Standard (Revision of ASME MFC–3M–1989 in its place ‘‘D1480–93 (Reapproved Test Methods for Instrumental (R1995))’’, in paragraph (b)(1); 1997)’’, in paragraph (a)(10); Determination of Carbon, Hydrogen, and ss. Removing the date ‘‘1990’’ and k. Removing ‘‘D1481–91’’ and adding Nitrogen in Laboratory Samples of Coal adding in its place the date ‘‘1997’’ in in its place ‘‘D1481–93 (Reapproved and Coke’’ in paragraph (a)(27); the parenthetical, in paragraph (b)(2); 1997)’’, in paragraph (a)(11); bb. Removing ‘‘D3238–90’’ and adding tt. Adding the phrase ‘‘(Reaffirmed l. Removing ‘‘D1552–90’’ and adding in its place ‘‘D3238–95 (Reapproved 1994)’’ after ‘‘ASME–MFC–5M–1985,’’, in its place ‘‘D1552–01’’, and also by 2000)’’, in paragraph (a)(28); in paragraph (b)(3); removing the phrase, ‘‘High cc. Removing ‘‘D3246–81 (Reapproved uu. Removing the phrase ‘‘1987 with Temperature’’ and adding in its place 1987)’’ and adding in its place ‘‘D3246– June 1987 Errata’’ and adding in its

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place the number ‘‘1998’’ at the end of Measurement of Liquid Hydrocarbons in combusts only gaseous fuel, determine ‘‘MFC–6M–’’, and also by removing Stationary Pressurized Storage Tanks by SO2 emissions in accordance with ‘‘Flow Meters’’ and adding in its place, Automatic Tank Gauging, First Edition paragraph (e)(1) or (e)(3) of this section, ‘‘Flowmeters’’, in paragraph (b)(4); June 1996; Section 4—Standard Practice as applicable. vv. Removing the phrase ‘‘with for Level Measurement of Liquid (1) If the gaseous fuel qualifies for a December 1989 Errata’’ and adding in its Hydrocarbons on Marine Vessels by default SO2 emission rate under Section place the phrase ‘‘(Reaffirmed 2001)’’, in Automatic Tank Gauging, First Edition 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of appendix paragraph (b)(6); April 1995 (Reaffirmed, March 2006); D to this part, the owner or operator ww. Removing the number ‘‘86’’ and and Section 5—Standard Practice for may determine SO2 emissions by using adding in its place the number ‘‘96’’ at Level Measurement of Light Equation F–23 in appendix F to this the end of ‘‘GPA Standard 2172–’’, in Hydrocarbon Liquids Onboard Marine part. Substitute into Equation F–23 the paragraph (d)(1); Vessels by Automatic Tank Gauging, hourly heat input, calculated using the xx. Removing the number ‘‘90’’ and First Edition March 1997 (Reaffirmed, certified flow monitoring system and adding in its place the number ‘‘00’’ at March 2003); for § 75.19. the certified diluent monitor (according the end of ‘‘GPA Standard 2261–00’’, in * * * * * to the applicable equation in section 5.2 paragraph (d)(2); (3) American Petroleum Institute of appendix F to this part), in yy. Revising paragraphs (f)(1) and (API) Manual of Petroleum conjunction with the appropriate (f)(3); and default SO2 emission rate from section Measurement Standards, Chapter 4— zz. Adding new paragraph (f)(4). Proving Systems, Section 2—Pipe 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of appendix The revisions and additions read as Provers (Provers Accumulating at Least D to this part. When this option is follows: 10,000 Pulses), Second Edition, March chosen, the owner or operator shall § 75.6 Incorporation by reference. 2001, and Section 5—Master-Meter perform the necessary data acquisition and handling system tests under * * * * * Provers, Second Edition, May 2000, for (a) * * * appendix D to this part. § 75.20(c), and shall meet all quality (45) ASTM D6667–04, Standard Test (4) American Petroleum Institute control and quality assurance Method for Determination of Total (API) Manual of Petroleum requirements in appendix B to this part Volatile Sulfur in Gaseous Measurement Standards, Chapter 22— for the flow monitor and the diluent Hydrocarbons and Liquefied Petroleum Testing Protocol, Section 2—Differential monitor; or Gases by Ultraviolet Fluorescence, for Pressure Flow Measurement Devices (2) [Reserved] appendix D of this part. (First Edition, August 2005), for (3) The owner or operator may (46) ASTM D4809–00, Standard Test appendix D to this part. determine SO2 mass emissions by using Method for Heat of Combustion of 6. Section 75.11 is amended by: a certified SO2 continuous monitoring Liquid Hydrocarbon Fuels by Bomb a. Revising the heading of the section; system, in conjunction with the certified Calorimeter (Precision Method), for b. Adding the phrase ‘‘and 14.0% for flow rate monitoring system. However, appendices D and F of this part. natural gas (boilers, only);’’ after the if the gaseous fuel is very low sulfur fuel (47) ASTM D5865–01a, Standard Test word ‘‘wood;’’, in paragraph (b)(1); (as defined in § 72.2 of this chapter), the Method for Gross Calorific Value of Coal c. Revising paragraph (d)(3); SO2 monitoring system shall meet the and Coke, for appendices A, D, and F of d. Revising paragraphs (e) following quality assurance provisions this part. introductory text and (e)(1); when the very low sulfur fuel is (48) ASTM D7036–04, Standard e. Removing and reserving paragraph combusted: Practice for Competence of Air Emission (e)(2); * * * * * Testing Bodies, for appendices A, B, and f. Revising paragraph (e)(3) (4) The provisions in paragraph (e)(1) E of this part. introductory text; of this section, may also be used for the (49) ASTM D5453–06, Standard Test g. Add new paragraph (e)(4); and combustion of a solid or liquid fuel that Method for Determination of Total h. Revising paragraph (f). meets the definition of very low sulfur Sulfur in Light Hydrocarbons, Spark The revisions and additions read as fuel in § 72.2 of this chapter, mixtures Ignition Engine Fuel, Diesel Engine follows: of such fuels, or combinations of such Fuel, and Engine Oil by Ultraviolet § 75.11 Specific provisions for monitoring fuels with gaseous fuel, if the owner or Fluorescence, for appendix D of this SO2 emissions. operator submits a petition under part. * * * * * § 75.66 for a default SO2 emission rate * * * * * (d) * * * for each fuel, mixture or combination, (f) * * * (3) By using the low mass emissions and if the Administrator approves the (1) American Petroleum Institute excepted methodology in § 75.19(c) for petition. (API) Manual of Petroleum estimating hourly SO2 mass emissions if (f) Other units. The owner or operator Measurement Standards, Chapter 3— the affected unit qualifies as a low mass of an affected unit that combusts wood, Tank Gauging, Section 1A, Standard emissions unit under § 75.19(a) and (b). refuse, or other material in addition to Practice for the Manual Gauging of If this option is selected for SO2, the oil or gas shall comply with the Petroleum and Petroleum Products, LME methodology must also be used for monitoring provisions for coal-fired Second Edition, August 2005; Section NOX and CO2 when these parameters units specified in paragraph (a) of this 1B—Standard Practice for Level are required to be monitored by section, except where the owner or Measurement of Liquid Hydrocarbons in applicable program(s). operator has an approved petition to use Stationary Tanks by Automatic Tank (e) Special considerations during the the provisions of paragraph (e)(1) of this Gauging, Second Edition June 2001; combustion of gaseous fuels. The owner section. Section 2—Standard Practice for or operator of an affected unit that uses 7. Section 75.12 is amended by: Gauging Petroleum and Petroleum a certified flow monitor and a certified a. Revising the section heading; Products in Tank Cars, First Edition, diluent gas (O2 or CO2) monitor to b. Removing the word ‘‘and’’ before August 1995 (Reaffirmed March 2006); measure the unit heat input rate shall, the number ‘‘15.0%’’, and by adding the Section 3—Standard Practice for Level during any hours in which the unit phrase ‘‘; and 18.0% for natural gas

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(boilers, only)’’ after the word ‘‘wood’’, using the results of the analyses in § 75.16 Special provisions for monitoring in paragraph (b); and conjunction with contemporaneous emissions from common, bypass, and c. Revising paragraph (e)(3). hourly data recorded by a certified stack multiple stacks for SO2 emissions and heat input determinations. The revisions read as follows: flow monitor, corrected for the stack gas moisture content. For each pair of * * * * * § 75.12 Specific provisions for monitoring sorbent traps analyzed, the average of (b) * * * NOX emission rate. (1) * * * the two Hg concentrations shall be used (ii) Install, certify, operate, and * * * * * for reporting purposes under ( 75.84(f). (e) * * * maintain an SO2 continuous emission Notwithstanding this requirement, if, monitoring system and flow monitoring (3) Use the low mass emissions due to circumstances beyond the control excepted methodology in § 75.19(c) for system in the common stack and of the owner or operator, one of the combine emissions for the affected units estimating hourly NOX emission rate paired traps is accidentally lost, and hourly NO mass emissions, if for recordkeeping and compliance X damaged, or broken and cannot be applicable under § 75.19(a) and (b). If purposes. analyzed, the results of the analysis of this option is selected for NOX, the LME * * * * * the other trap may be used for reporting methodology must also be used for SO 2 purposes, provided that: 12. Section 75.17 is amended by and CO2 when these parameters are revising paragraph (d)(2) to read as required to be monitored by applicable (1) The other trap has met all of the follows: program(s). applicable quality-assurance requirements of this part; and § 75.17 Special provisions for monitoring * * * * * emissions from common, bypass, and (2) The Hg concentration measured by 8. Section 75.13 is amended by multiple stacks for NOX emission rate. revising paragraph (d)(3) to read as the other trap is multiplied by a factor of 1.111. * * * * * follows: (d) * * * * * * * * § 75.13 Specific provisions for monitoring (2) Install, certify, operate, and maintain a NOX-diluent CEMS only on CO2 emissions. (l) Whenever the type of sorbent material used by the traps is changed, the main stack. If this option is chosen, * * * * * it is not necessary to designate the (d) * * * the owner or operator shall conduct a exhaust configuration as a multiple (3) Use the low mass emissions diagnostic RATA of the modified stack configuration in the monitoring excepted methodology in § 75.19(c) for sorbent trap monitoring system within plan required under § 75.53, with estimating hourly CO mass emissions, 720 unit or stack operating hours after 2 respect to NO or any other parameter if applicable under § 75.19(a) and (b). If the date and hour when the new sorbent X that is monitored only at the main stack. this option is selected for CO , the LME material is first used. If the diagnostic 2 For each unit operating hour in which methodology must also be used for NO RATA is passed, data from the modified X the bypass stack is used and the and SO when these parameters are system may be reported as quality- 2 emissions are either uncontrolled (or the required to be monitored by applicable assured, back to the date and hour when add-on controls are not documented to program(s). the new sorbent material was first used. be operating properly), report the 9. Section 75.14 is amended by adding If the RATA is failed, all data from the maximum potential NO emission rate paragraph (e) to read as follows: modified system shall be invalidated, X back to the date and hour when the new (as defined in § 72.2 of this chapter). § 75.14 Specific provisions for monitoring sorbent material was first used, and data The maximum potential NOX emission opacity. from the system shall remain invalid rate may be specific to the type of fuel * * * * * until a subsequent RATA is passed. If combusted in the unit during the bypass (e) Unit with a certified particulate the required RATA is not completed (see § 75.33(c)(8)). Alternatively, for a matter (PM) monitoring system. If, for a within 720 unit or stack operating unit with NOX add-on emission particular affected unit, the owner or hours, but is passed on the first attempt, controls, for each unit operating hour in operator installs, certifies, operates, data from the modified system shall be which the bypass stack is used and the maintains, and quality-assures a invalidated beginning with the first add-on NOX emission controls are not continuous particulate matter (PM) operating hour after the 720 unit or bypassed, the owner or operator may monitoring system in accordance with stack operating hour window expires report the maximum controlled NOX Procedure 2 in appendix F to part 60 of and data from the system shall remain emission rate (MCR) instead of the this chapter, the unit shall be exempt invalid until the date and hour of maximum potential NOX emission rate from the opacity monitoring completion of the successful RATA. provided that the add-on controls are requirement of this part. documented to be operating properly, as 11. Section 75.16 is amended by: 10. Section 75.15 is amended by: described in the quality assurance/ a. Removing the reference ‘‘(j)’’ and a. Revising paragraph (b)(1)(ii); quality control program for the unit, adding the reference ‘‘(l)’’ in its place in b. Adding the word ‘‘rate’’ after the required by section 1 in appendix B of the introductory paragraph; phrase ‘‘report heat input’’ in the last this part. To provide the necessary b. Revising paragraph (h); and sentence, in paragraph (e)(1); and documentation, the owner or operator shall record parametric data to verify c. Adding paragraph (l). c. In the second sentence of the proper operation of the NOX add-on The revisions and additions read as paragraphs (e)(3) by removing both follows: emission controls as described in occurrences of the phrase ‘‘steam flow’’ § 75.34(d). Furthermore, the owner or § 75.15 Special provisions for measuring and adding in its place the phrase operator shall calculate the MCR using Hg mass emissions using the excepted ‘‘steam load’’ and adding the phrase ‘‘or the procedure described in section sorbent trap monitoring methodology. mmBtu/hr thermal output’’ inside the 2.1.2.1(b) of appendix A to this part * * * * * parentheses, after the phrase ‘‘in 1000 where the words ‘‘maximum potential lb/hr’’, in paragraph (e)(3). (h) The hourly Hg mass emissions for NOX emission rate (MER)’’ shall apply each collection period are determined The revisions read as follows: instead of the words ‘‘maximum

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controlled NOX emission rate (MCR)’’ specific SO2 emission factor may be between 75 and 100 percent of the and by using the NOX MEC in the used in lieu of the applicable emission maximum sustainable load. calculations instead of the NOX MPC. factor from Table LM–1, if a federally (4) The retest of any LME unit may be 13. Section 75.19 is amended by: enforceable permit condition is in place performed at a single load between 75 a. Revising paragraph (a)(1); that limits the sulfur content of the oil. and 100 percent of the maximum b. Revising paragraph (c)(1)(i); If this alternative is chosen, the fuel- sustainable load if, for the three c. Revising paragraph (c)(1)(iv)(A)(3); specific SO2 emission rate in lb/mmBtu calendar years immediately preceding d. Removing the words ‘‘Method 20’’ shall be calculated by multiplying the the year of the retest (or, if applicable, from paragraph (c)(1)(iv)(A)(4); fuel sulfur content limit (weight percent the three ozone seasons immediately e. Removing the words ‘‘Method 20’’ sulfur) by 1.01. In addition, the owner preceding the date of the retest), the from the definition of NOX obs in the or operator shall periodically determine applicable capacity factor requirements nomenclature for Equation LM–1a the sulfur content of the oil combusted described in paragraph (c)(1)(iv)(I)(3) of under paragraph (c)(1)(iv)(A); in the unit, using one of the oil this section are met. f. Adding the phrase, ‘‘that meets the sampling and analysis options described (5) Alternatively, for combustion quality assurance requirements of in section 2.2 of appendix D to this part, turbines, the single-load testing either: this part, or appendix F to part and shall keep records of these fuel described in paragraphs (c)(1)(iv)(I)(3) 60 of this chapter, or a comparable State sampling results in a format suitable for and (c)(1)(iv)(I)(4) of this section may be CEM program,’’ after the abbreviation inspection and auditing. Alternatively, performed at the highest attainable load ‘‘CEMS’’, in paragraph (c)(1)(iv)(G); the required oil sampling and associated level corresponding to the season of the g. Adding paragraphs (c)(1)(iv)(I)(3), recordkeeping may be performed using year in which the testing is conducted. (4), (5) and (6); a consensus standard (e.g., ASTM, API, (6) In all cases where the alternative h. Revising paragraph (c)(3)(ii)(B)(2); etc.) that is prescribed in the unit’s single-load testing option described in i. Revising paragraph (c)(3)(ii)(H); Federally-enforceable operating permit, paragraphs (c)(1)(iv)(I)(3) through j. Removing the words ‘‘from Table in an applicable State regulation, or in (c)(1)(iv)(I)(5) of this section is used, the owner or operator shall keep records LM–1 of this section’’ from the first another applicable Federal regulation. If documenting that the required capacity sentence of paragraph (c)(4)(i)(A); the unit combusts gaseous fuel(s) other factor requirements were met. k. Revising the heading for paragraph than natural gas, the owner or operator (c)(4)(ii); and shall use the procedures in section 2.3.6 * * * * * l. Adding paragraph (c)(4)(ii)(D). of appendix D to this part to document (3) * * * (ii) * * * The revisions and additions read as the total sulfur content of each such fuel follows: (B) * * * and to determine the appropriate default (2) American Petroleum Institute SO2 emission rate for each such fuel. § 75.19 Optional SO2, NOX, and CO2 (API) Manual of Petroleum emissions calculation for low mass * * * * * Measurement Standards, Chapter 3- emissions units. (iv) * * * Tank Gauging, Section 1A, Standard * * * * * (A) * * * Practice for the Manual Gauging of (a) * * * (3) Do not correct the NOX Petroleum and Petroleum Products, (1) For units that meet the concentration to 15% O2. Second Edition, August 2005; Section requirements of this paragraph (a)(1) * * * * * 1B-Standard Practice for Level and paragraphs (a)(2) and (b) of this (I) * * * Measurement of Liquid Hydrocarbons in section, the low mass emissions (LME) (3) The initial appendix E testing may Stationary Tanks by Automatic Tank excepted methodology in paragraph (c) be performed at a single load, between Gauging, Second Edition June 2001; of this section may be used in lieu of 75 and 100 percent of the maximum Section 2-Standard Practice for Gauging continuous emission monitoring sustainable load defined in the Petroleum and Petroleum Products in systems or, if applicable, in lieu of monitoring plan for the unit, if the Tank Cars, First Edition, August 1995 methods under appendices D, E, and G average annual capacity factor of the (Reaffirmed March 2006); Section 3- to this part, for the purpose of LME unit, when calculated according to Standard Practice for Level determining unit heat input, NOX, SO2, the definition of ‘‘capacity factor’’ in Measurement of Liquid Hydrocarbons in and CO2 mass emissions, and NOX § 72.2 of this chapter, is 2.5 percent or Stationary Pressurized Storage Tanks by emission rate under this part. If the less for the three calendar years Automatic Tank Gauging, First Edition owner or operator of a qualifying unit immediately preceding the year of the June 1996 (Reaffirmed, March 2001); elects to use the LME methodology, it testing, and that the annual capacity Section 4-Standard Practice for Level must be used for all parameters that are factor does not exceed 4.0 percent in Measurement of Liquid Hydrocarbons required to be monitored by the any of those three years. Similarly, for on Marine Vessels by Automatic Tank applicable program(s). For example, for a LME unit that reports emissions data Gauging, First Edition April 1995 an Acid Rain Program LME unit, the on an ozone season-only basis, the (Reaffirmed, September 2000); and methodology must be used to estimate initial appendix E testing may be Section 5-Standard Practice for Level SO2, NOX, and CO2 mass emissions, performed at a single load between 75 Measurement of Light Hydrocarbon NOX emission rate, and unit heat input. and 100 percent of the maximum Liquids Onboard Marine Vessels by * * * * * sustainable load if the 2.5 and 4.0 Automatic Tank Gauging, First Edition (c) * * * percent capacity factor requirements are March 1997 (Reaffirmed, March 2003); (1) * * * met for the three ozone seasons for § 75.19; Shop Testing of Automatic (i) If the unit combusts only natural immediately preceding the date of the Liquid Level Gages, Bulletin 2509 B, gas and/or fuel oil, use Table LM–1 of emission testing (see § 75.74(c)(11)). For December 1961 (Reaffirmed August this section to determine the a group of identical LME units, any 1987, October 1992) (all incorporated by appropriate SO2 emission rate for use in unit(s) in the group that meet the 2.5 reference under § 75.6 of this part); or calculating hourly SO2 mass emissions and 4.0 percent capacity factor * * * * * under this section. Alternatively, for requirements may perform the initial (H) For each low mass emissions unit fuel oil combustion, a lower, fuel- appendix E testing at a single load or each low mass emissions unit in a

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group of identical units, the owner or recorded under paragraph (c)(2) of this elects to report only during the ozone operator shall determine the cumulative section and shall be determined using season, the quarterly cumulative load quarterly unit load in megawatt hours or Equations LM–5 or LM–6. For a unit for the second calendar quarter of the thousands of pounds of steam. The subject to the provisions of subpart H of year shall include only the unit loads quarterly cumulative unit load shall be this part, which is not required to report for the months of May and June. the sum of the hourly unit load values emission data on a year-round basis and

= MWqtr ∑ MW Eq. LM-5 (for MW output) all− hours

= STqtr ∑ ST Eq. LM-6 (for steam output) all− hours

Where: separately on the NOX pollutant chapter must be used to measure total MWqtr = Sum of all unit operating loads concentration monitor and the diluent NOX emissions, both NO and NO2, for recorded during the quarter by the unit gas monitor); and purposes of this part. The owner or (MWh). * * * * * operator shall not use the following STfuel-qtr = Sum of all hourly steam loads sections, exceptions, and options of recorded during the quarter by the unit § 75.21 [Amended] method 7E in appendix A–4 to part 60 (klb of steam/hr). MW = Unit operating load for a particular 15. Section 75.21 is amended by of this chapter: unit operating hour (MWh). removing the words ‘‘or (e)(2)’’ at the (i) Section 7.1 of the method allowing ST = Unit steam load for a particular unit end of the first sentence of paragraph for use of prepared calibration gas operating hour (klb of steam). (a)(4). mixtures that are produced in * * * * * 16. Section 75.22 is amended by: accordance with method 205 in (4) * * * a. Revising paragraph (a) introductory Appendix M of 40 CFR Part 51; (ii) NOX mass emissions and NOX text; (ii) The sampling point selection emission rate. b. Revising paragraphs (a)(5), (a)(6), procedures in section 8.1 of the method, (D) The quarterly and cumulative and (a)(7); for the emission testing of boilers and NOX emission rate in lb/mmBtu (if c. Revising paragraph (b) introductory combustion turbines under appendix E required by the applicable program(s)) text; to this part. The number and location of shall be determined as follows. d. Removing the word ‘‘and’’ at the the sampling points for those Calculate the quarterly NOX emission end of paragraph (b)(3); applications shall be as specified in rate by taking the arithmetic average of e. Revising paragraph (b)(5); sections 2.1.2.1 and 2.1.2.2 of appendix all of the hourly EFNOX values. Calculate f. Adding paragraphs (b)(6), (b)(7), and E to this part; the cumulative (year-to-date) NOX (b)(8); and (iii) Paragraph (3) in section 8.4 of the emission rate by taking the arithmetic g. Revising paragraph (c)(1) method allowing for the use of a multi- average of the quarterly NOX emission introductory text. hole probe to satisfy the multipoint rates. The revisions and additions read as traverse requirement of the method; * * * * * follows: (iv) Section 8.6 of the method allowing for the use of ‘‘Dynamic 14. Section 75.20 is amended by: § 75.22 Reference test methods. Spiking’’ as an alternative to the a. Adding a new sentence after the (a) The owner or operator shall use interference and system bias checks of third sentence of paragraph (b) the following methods, which are found the method. Dynamic spiking may be introductory text; in appendix A–4 to part 60 of this conducted (optionally) as an additional b. Revising paragraph (c)(1)(v); and chapter or have been published by c. Removing paragraphs (f)(1) and quality assurance check. ASTM, to conduct the following tests: (6) Method 3A in appendix A–2 and (f)(2). monitoring system tests for certification The revisions and additions read as method 7E in appendix A–4 to part 60 or recertification of continuous emission follows: of this chapter are the reference monitoring systems and excepted methods for determining NOX and § 75.20 Initial certification and monitoring systems under appendix E to diluent emissions from stationary gas recertification procedures. this part; the emission tests required turbines for testing under appendix E to * * * * * under § 75.81(c) and (d); and required this part. (b) * * * The owner or operator shall quality assurance and quality control (7) ASTM D6784–02, Standard Test also recertify the continuous emission tests: Method for Elemental, Oxidized, monitoring systems for a unit that has * * * * * Particle-Bound and Total Mercury in recommenced commercial operation (5) Methods 6, 6A, 6B or 6C, and 7, Flue Gas Generated from Coal-Fired following a period of long-term cold 7A, 7C, 7D or 7E in appendix A–4 to Stationary Sources (Ontario Hydro storage as defined in § 72.2 of this part 60 of this chapter, as applicable, are Method) (incorporated by reference chapter. * * * the reference methods for determining under § 75.6 of this part) is the reference * * * * * SO2 and NOX pollutant concentrations. method for determining Hg (c) * * * (Methods 6A and 6B in appendix A–4 concentration. (1) * * * to part 60 of this chapter may also be (i) Alternatively, Method 29 in (v) A cycle time test, (where, for the used to determine SO2 emission rate in appendix A–8 to part 60 of this chapter NOX-diluent continuous emission lb/mmBtu.) Methods 7, 7A, 7C, 7D, or may be used, with these caveats: The monitoring system, the test is performed 7E in appendix A–4 to part 60 of this procedures for preparation of Hg

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standards and sample analysis in Procedure)’’ and Method 30B, 18. Section 75.32 is amended by sections 13.4.1.1 through 13.4.1.3 ASTM ‘‘Determination of Total Vapor Phase revising paragraph (b) to read as follows: D6784–02 (incorporated by reference Mercury Emissions from Coal-Fired under § 75.6 of this part) shall be Combustion Sources Using Carbon § 75.32 Determination of monitor data availability for standard missing data followed instead of the procedures in Sorbent Traps’’. procedures. sections 7.5.33 and 11.1.3 of Method 29 (iv) When Method 29 in appendix A– in appendix A–8 to part 60 of this 8 to part 60 of this chapter or ASTM * * * * * chapter, and the QA/QC procedures in D6784–02 (incorporated by reference (b) The monitor data availability shall section 13.4.2 of ASTM D6784–02 under § 75.6 of this part) is used for the be calculated for each hour during each (incorporated by reference under § 75.6 Hg emission testing required under missing data period. The owner or of this part) shall be performed instead §§ 75.81(c) and (d), locate the reference operator shall record the percent of the procedures in section 9.2.3 of method test points according to section monitor data availability for each hour Method 29 in appendix A–8 to part 60 8.1 of Method 30A, and if Hg of each missing data period to of this chapter. The tester may also opt stratification testing is part of the test implement the missing data substitution to use the sample recovery and protocol, follow the procedures in procedures. preparation procedures in ASTM sections 8.1.3 through 8.1.3.5 of Method * * * * * D6784–02 (incorporated by reference 30A. 19. Section 75.33 is amended by: under § 75.6 of this part) instead of the (b) The owner or operator may use a. Revising the section heading; Method 29 in appendix A–8 to part 60 any of the following methods, which are b. Removing the word ‘‘Whenever’’ of this chapter procedures, as follows: found in appendix A to part 60 of this and adding in its place the word ‘‘If’’, sections 8.2.8 and 8.2.9.1 of Method 29 chapter or have been published by and by removing the words ‘‘each hour in appendix A–8 to part 60 of this ASTM, as a reference method backup of each’’ and adding in its place the chapter may be replaced with sections monitoring system to provide quality- words ‘‘that hour of the’’, in paragraph 13.2.9.1 through 13.2.9.3 of ASTM assured monitor data: (b)(1) introductory text; D6784–02 (incorporated by reference * * * * * c. Removing the word ‘‘Whenever’’ under § 75.6 of this part); sections (5) ASTM D6784–02, Standard Test and adding in its place the word ‘‘If’’, 8.2.9.2 and 8.2.9.3 of Method 29 in Method for Elemental, Oxidized, and by removing the words ‘‘each hour appendix A–8 to part 60 of this chapter Particle-Bound and Total Mercury in of each’’ and adding in its place the may be replaced with sections 13.2.10.1 Flue Gas Generated from Coal-Fired words ‘‘that hour of the’’, in paragraph through 13.2.10.4 of ASTM D6784–02 Stationary Sources (Ontario Hydro (b)(2) introductory text; (incorporated by reference under § 75.6 Method) (incorporated by reference d. Removing the word ‘‘Whenever’’ of this part); section 8.3.4 of Method 29 under § 75.6 of this part) for and adding in its place the word ‘‘If’’, in appendix A–8 to part 60 of this determining Hg concentration; and by removing the word ‘‘each’’ and chapter may be replaced with section (6) Method 29 in appendix A–8 to adding in its place the words ‘‘that hour 13.3.4 or 13.3.6 of ASTM D6784–02 (as part 60 of this chapter for determining of the’’, in paragraphs (b)(3) and (b)(4); appropriate) (incorporated by reference Hg concentration; e. Removing the word ‘‘Whenever’’ under § 75.6 of this part); and section (7) Method 30A for determining Hg and adding in its place the word ‘‘If’’, 8.3.5 of Method 29 in appendix A–8 to concentration; and and by removing the words ‘‘each hour part 60 of this chapter may be replaced (8) Method 30B for determining Hg of each’’ and adding in its place the with section 13.3.5 or 13.3.6 of ASTM concentration. words ‘‘that hour of the’’, in paragraphs D6784–02 (as appropriate) (incorporated (c)(1) Instrumental EPA Reference (c)(1) introductory text, (c)(2) by reference under § 75.6 of this part). Methods 3A, 6C, and 7E in appendices introductory text, (c)(3), and (c)(4); (ii) Whenever ASTM D6784–02 A–2 and A–4 of part 60 of this chapter f. Revising paragraph (c)(8)(iii); (incorporated by reference under § 75.6 shall be conducted using calibration g. Revising Tables 1 and 2 in of this part) or Method 29 in appendix gases as defined in section 5 of paragraph (c)(8)(iv); A–8 to part 60 of this chapter is used, appendix A to this part. Otherwise, h. Removing the word ‘‘Whenever’’ paired sampling trains are required. To performance tests shall be conducted and adding in its place the word ‘‘If’’, validate a RATA run or an emission test and data reduced in accordance with and by removing the words ‘‘each hour run, the relative deviation (RD), the test methods and procedures of this of each’’ and adding in its place the calculated according to section 11.7 of part unless the Administrator: words ‘‘that hour of the’’, in paragraphs appendix K to this part, must not exceed (d)(1) introductory text, (d)(2) * * * * * 10 percent, when the average introductory text, (d)(3) introductory µ 3 concentration is greater than 1.0 g/m . 17. Section 75.31 is amended by text, and (d)(4) introductory text. If the average concentration is ≤1.0 µg/ adding a sentence to the end of i. Revising Table 3 in paragraph (e)(3); m3, the RD must not exceed 20 percent. paragraph (c)(3) to read as follows: and The RD results are also acceptable if the § 75.31 Initial missing data procedures. The revisions and additions read as absolute difference between the Hg follows: concentrations measured by the paired * * * * * trains does not exceed 0.03 µg/m3. If the (c) * * * § 75.33 Standard missing data procedures RD criterion is met, the run is valid. For (3) * * * Alternatively, where a unit for SO2, NOX, Hg, and flow rate. each valid run, average the Hg with add-on NOX emission controls can * * * * * concentrations measured by the two demonstrate that the controls are (c) * * * trains (vapor phase, only). operating properly during the hour, as (8) * * * (iii) Two additional reference provided in § 75.34(d), the owner or (iii) For the purposes of providing methods that may be used to measure operator may substitute, as applicable, substitute data under paragraph (c)(4) of Hg concentration are: Method 30A, the maximum controlled NOX emission this section, a separate, fuel-specific ‘‘Determination of Total Vapor Phase rate (MCR) or the maximum expected maximum potential concentration Mercury Emissions from Stationary NOX concentration (MEC). (MPC), maximum potential NOX Sources (Instrumental Analyzer * * * * * emission rate (MER), or maximum

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potential flow rate (MPF) value (as highest emission rate or flow rate (as combusted in the unit. The exact applicable) shall be determined for each applicable). Furthermore, for a unit with methodology used to determine each type of fuel combusted in the unit, in a add-on NOX emission controls, a fuel-specific MPC, MER, MEC, MCR or manner consistent with § 72.2 of this separate fuel-specific maximum MPF value shall be documented in the chapter and with section 2.1.2.1 or controlled NOX emission rate (MCR) or monitoring plan for the unit or stack. 2.1.4.1 of appendix A to this part. For maximum expected NO concentration X (iv) * * * co-firing, the MPC, MER or MPF value (MEC) value (as applicable) shall be shall be based on the fuel with the determined for each type of fuel

TABLE 1.—MISSING DATA PROCEDURE FOR SO2 CEMS, CO2 CEMS, MOISTURE CEMS, HG CEMS, AND DILUENT (CO2 OR O2) MONITORS FOR HEAT INPUT DETERMINATION

Trigger conditions Calculation routines

Monitor data availability Duration (N) of CEMS (percent) outage Method Lookback period (hours) 2

95 or more (90 or more for Hg) ...... N ≤ 24 ...... Average ...... HB/HA. N > 24 ...... For SO2, CO2, Hg, and H2O **, the greater of: Average ...... HB/HA. 90th percentile ...... 720 hours.* X For O2 and H2O , the lesser of: 10th percentile ...... HB/HA. 720 hours.* 90 or more, but below 95 (> 80 but < 90 for Hg) N ≤ 8 ...... Average ...... HB/HA. N > 8 ...... For SO2, CO2, Hg, and H2O **, the greater of: Average ...... HB/HA. 95th percentile ...... 720 hours.* X For O2 and H2O , the lesser of: Average ...... HB/HA. 5th Percentile ...... 720 hours.* 80 or more, but below 90 (> 70 but < 80 for Hg) N > 0 ...... For SO2, CO2, Hg, and H2O: ** Maximum value 1 ...... 720 hours.* X For O2 and H2O : Minimum value 1 ...... 720 hours.* Below 80 (Below 70 for Hg) ...... N > 0 ...... Maximum potential concentration 3 or % (for SO2, CO2, Hg, and H2O **) or Minimum potential concentration or % (for O2 None. X and H2O ). HB/HA = hour before and hour after the CEMS outage. * Quality-assured, monitor operating hours, during unit operation. May be either fuel-specific or non-fuel-specific. For units that report data only for the ozone season, include only quality assured monitor operating hours within the ozone season in the lookback period. Use data from no earlier than 3 years prior to the missing data period. 1 Where a unit with add-on SO2 or Hg emission controls can demonstrate that the controls are operating properly during the missing data pe- riod, as provided in § 75.34, the unit may use the maximum controlled concentration from the previous 720 quality-assured monitor operating hours. 2 During unit operating hours. 3 Alternatively, where a unit with add-on SO2 or Hg emission controls can demonstrate that the controls are operating properly during the miss- ing data period, as provided in § 75.34, the unit may report the greater of: (a) the maximum expected SO2 or Hg concentration or (b) 1.25 times the maximum controlled value from the previous 720 quality-assured monitor operating hours. X Use this algorithm for moisture except when Equation 19–3, 19–4 or 19–8 in Method 19 in appendix A–7 to part 60 of this chapter is used for NOX emission rate. ** Use this algorithm for moisture only when Equation 19–3, 19–4 or 19–8 in Method 19 in appendix A–7 to part 60 of this chapter is used for NOX emission rate.

TABLE 2.—LOAD-BASED MISSING DATA PROCEDURE FOR NOX-DILUENT CEMS, NOX CONCENTRATION CEMS AND FLOW RATE CEMS

Trigger conditions Calculation routines

Monitor data availability Duration (N) of CEMS outage Method Lookback period Load ranges (percent) (hours) 2

95 or more ...... N ≤ 24 ...... Average ...... 2,160 hours * ...... Yes. N > 24 ...... The greater of: Average ...... HB/HA ...... No. 90th percentile ...... 2,160 hours * ...... Yes. 90 or more, but below 95 ...... N ≤ 8 ...... Average ...... 2,160 hours * ...... Yes. N > 8 ...... The greater of: Average ...... HB/HA ...... No. 95th percentile ...... 2,160 hours * ...... Yes. 80 or more, but below 90 ...... N > 0 ...... Maximum value 1 ...... 2,160 hours * ...... Yes.

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TABLE 2.—LOAD-BASED MISSING DATA PROCEDURE FOR NOX-DILUENT CEMS, NOX CONCENTRATION CEMS AND FLOW RATE CEMS—Continued

Trigger conditions Calculation routines

Monitor data availability Duration (N) of CEMS outage Method Lookback period Load ranges (percent) (hours) 2

Below 80 ...... N > 0 ...... Maximum potential NOX None ...... No. emission rate 3; or max- imum potential NOX con- centration 3; or maximum potential flow rate. HB/HA = hour before and hour after the CEMS outage. * Quality-assured, monitor operating hours, using data at the corresponding load range (‘‘load bin’’) for each hour of the missing data period. May be either fuel-specific or non-fuel-specific. For units that report data only for the ozone season, include only quality assured monitor oper- ating hours within the ozone season in the lookback period. Use data from no earlier than three years prior to the missing data period. 1 Where a unit with add-on NOX emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may use the maximum controlled NOX concentration or emission rate from the previous 2,160 quality-assured mon- itor operating hours. Units with add-on controls that report NOX mass emissions on a year-round basis under subpart H of this part may use sep- arate ozone season and non-ozone season data pools to provide substitute data values, as described in § 75.34(a)(2). 2 During unit operating hours. 3 Alternatively, where a unit with add-on NOX emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may report the greater of: (a) the maximum expected NOX concentration (or maximum controlled NOX emission rate, as applicable); or (b) 1.25 times the maximum controlled value at the corresponding load bin, from the previous 2,160 qual- ity-assured monitor operating hours.

* * * * * (3) * * * (e) * * *

TABLE 3.—NON-LOAD-BASED MISSING DATA PROCEDURE FOR NOX-DILUENT CEMS AND NOX CONCENTRATION CEMS

Trigger conditions Calculation routines

Monitor data availability Duration (N) of CEMS (percent) outage Method Lookback period (hours) 1

95 or more ...... N ≤ 24 ...... Average ...... 2,160 hours.* N > 24 ...... 90th percentile ...... 2,160 hours.* 90 or more, but below 95 ...... N ≤ 8 ...... Average ...... 2,160 hours.* N > 8 ...... 95th percentile ...... 2,160 hours.* 80 or more, but below 90 ...... N > 0 ...... Maximum value 3 ...... 2,160 hours.* 2 Below 80, or operational bin indeterminable ...... N > 0 ...... Maximum potential NOX emission rate or max- None. 2 imum potential NOX concentration . * If operational bins are used, the lookback period is 2,160 quality-assured, monitor operating hours, and data at the corresponding operational bin are used to provide substitute data values. If operational bins are not used, the lookback period is the previous 2,160 quality-assured monitor operating hours. For units that report data only for the ozone season, include only quality-assured monitor operating hours within the ozone sea- son in the lookback period. Use data from no earlier than three years prior to the missing data period. 1 During unit operation. 2 Alternatively, where a unit with add-on NOX emission controls can demonstrate that the controls are operating properly, as provided in § 75.34, the unit may report the greater of: (a) the maximum expected NOX concentration, (or maximum controlled NOX emission rate, as appli- cable); or (b) 1.25 times the maximum controlled value at the corresponding operational bin (if applicable), from the previous 2,160 quality-as- sured monitor operating hours. 3 Where a unit with add-on NOX emission controls can demonstrate that the controls are operating properly during the missing data period, as provided in § 75.34, the unit may use the maximum controlled NOX concentration or emission rate from the previous 2,160 quality-assured mon- itor operating hours. Units with add-on controls that report NOX mass emissions on a year-round basis under subpart H of this part may use sep- arate ozone season and non-ozone season data pools to provide substitute data values, as described in § 75.34(a)(2).

* * * * * (a)(5) of this section; and §§ 75.31(c)(3), and/or NOX monitoring system(s) are 20. Section 75.34 is amended by: 75.38(c), and 75.72(c)(3),’’. not obtained. a. Revising paragraph (a) introductory The revisions and additions read as * * * * * text; follows: (3) For each missing data hour in b. In paragraph (a)(2)(ii) by removing which the percent monitor data the words ‘‘and (c)(3)’’ and adding in its § 75.34 Units with add-on emission controls. availability for SO2 or NOX, calculated place the words ‘‘, (c)(3) and (c)(5) of in accordance with § 75.32, is less than this section, and § 75.38(c),’’ (a) The owner or operator of an 90.0 percent and is greater than or equal c. Revising paragraph (a)(3); affected unit equipped with add-on SO2 to 80.0 percent; and parametric data d. Adding paragraph (a)(5); and and/or NOX emission controls shall establishes that the add-on emission e. In paragraph (d) by removing the provide substitute data in accordance controls were operating properly (i.e. words ‘‘paragraphs (a)(1) and (a)(3) of with paragraphs (a)(1), through (a)(5) of within the range of operating parameters this section,’’ and adding in its place the this section for each hour in which provided in the quality assurance/ words ‘‘paragraphs (a)(1), (a)(3) and quality-assured data from the outlet SO2

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quality control program) during the with the words ‘‘maximum controlled e. Adding paragraph (f). hour, the owner or operator may: NOX emission rate (MCR)’’ and the NOX The revisions and additions read as (i) Replace the maximum SO2 MEC shall be used instead of the NOX follows: concentration recorded in the 720 MPC. § 75.39 Missing data procedures for quality-assured monitor operating hours * * * * * sorbent trap monitoring systems. immediately preceding the missing data 20. Section 75.38 is amended by (a) If a primary sorbent trap period, with the maximum controlled revising paragraphs (a) and (c) to read as monitoring system has not been SO2 concentration recorded in the follows. certified by the applicable compliance previous 720 quality-assured monitor date specified under a State or Federal operating hours; or § 75.38 Standard missing data procedures Hg mass emission reduction program (ii) Replace the maximum NO for Hg CEMS. X that adopts the requirements of subpart concentration(s) or NOX emission rate(s) (a) Once 720 quality assured monitor I of this part, and if quality-assured Hg from the appropriate load bin(s) (based operating hours of Hg concentration concentration data from a certified on a lookback through the 2,160 quality- data have been obtained following backup Hg monitoring system, reference assured monitor operating hours initial certification, the owner or method, or approved alternative immediately preceding the missing data operator shall provide substitute data monitoring system are unavailable, the period), with the maximum controlled for Hg concentration in accordance with owner or operator shall report the NOX concentration(s) or emission rate(s) the procedures in ( 75.33(b)(1) through maximum potential Hg concentration, from the appropriate load bin(s) in the (b)(4), except that the term ‘‘Hg as defined in section 2.1.7 of appendix same 2,160 quality-assured monitor concentration’’ shall apply rather than A to this part, until the primary system operating hour lookback period. ‘‘SO2 concentration,’’ the term ‘‘Hg is certified. * * * * * concentration monitoring system’’ shall (b) For a certified sorbent trap system, (5) For each missing data hour in apply rather than ‘‘SO2 pollutant a missing data period will occur in the which the percent monitor data concentration monitor,’’ the term following circumstances, unless quality- availability for SO2 or NOX, calculated ‘‘maximum potential Hg concentration, assured Hg concentration data from a in accordance with § 75.32, is below as defined in section 2.1.7 of appendix certified backup Hg CEMS, sorbent trap 80.0 percent and parametric data A to this part’’ shall apply, rather than system, reference method, or approved establish that the add-on emission ‘‘maximum potential SO2 alternative monitoring system are controls were operating properly (i.e. concentration’’, and the percent monitor available: within the range of operating parameters data availability trigger conditions (1) A gas sample is not extracted from provided in the quality assurance/ prescribed for Hg in Table 1 of § 75.33 the stack during unit operation (e.g., quality control program),in lieu of shall apply rather than the trigger during a monitoring system malfunction reporting the maximum potential value, conditions prescribed for SO2. or when the system undergoes the owner or operator may substitute, as * * * * * maintenance); or applicable, the greater of: (c) For units with FGD systems or (2) The results of the Hg analysis for (i) The maximum expected SO2 add-on Hg emission controls, when the the paired sorbent traps are missing or concentration or 1.25 times the percent monitor data availability is less invalid (as determined using the quality maximum hourly controlled SO2 than 80.0 percent and is greater than or assurance procedures in appendix K to concentration recorded in the previous equal to 70.0 percent, and a missing this part). The missing data period 720 quality-assured monitor operating data period occurs, consistent with begins with the hour in which the hours; § 75.34(a)(3), for each missing data hour paired sorbent traps for which the Hg (ii) The maximum expected NOX in which the FGD or Hg emission analysis is missing or invalid were put concentration or 1.25 times the controls are documented to be operating into service. The missing data period maximum hourly controlled NOX properly, the owner or operator may ends at the first hour in which valid Hg concentration recorded in the previous report the maximum controlled Hg concentration data are obtained with 2,160 quality-assured monitor operating concentration recorded in the previous another pair of sorbent traps (i.e., the hours at the corresponding unit load 720 quality-assured monitor operating hour at which this pair of traps was range or operational bin; hours. In addition, when the percent placed in service), or with a certified (iii) The maximum controlled hourly monitor data availability is less than backup Hg CEMS, reference method, or NOX emission rate (MCR) or 1.25 times 70.0 percent and a missing data period approved alternative monitoring system. the maximum hourly controlled NOX occurs, consistent with § 75.34(a)(5), for (c) Initial missing data procedures. emission rate recorded in the previous each missing data hour in which the Use the missing data procedures in 2,160 quality-assured monitor operating FGD or Hg emission controls are § 75.31(b) until 720 hours of quality- hours at the corresponding unit load documented to be operating properly, assured Hg concentration data have range or operational bin; the owner or operator may report the been collected with the sorbent trap (iv) For the purposes of implementing greater of the maximum expected Hg monitoring system(s), following initial the missing data options in paragraphs concentration (MEC) or 1.25 times the certification. (a)(5)(i) through (a)(5)(iii) of this section, maximum controlled Hg concentration (d) Standard missing data procedures. the maximum expected SO2 and NOX recorded in the previous 720 quality- Once 720 quality-assured hours of data concentrations shall be determined, assured monitor operating hours. The have been obtained with the sorbent respectively, according to sections MEC shall be determined in accordance trap system(s), begin reporting the 2.1.1.2 and 2.1.2.2 of appendix A to this with section 2.1.7.1 of appendix A to percent monitor data availability in part. The MCR shall be calculated this part. accordance with § 75.32 and switch according to the basic procedure 21. Section 75.39 is amended by: from the initial missing data procedures described in section 2.1.2.1(b) of a. Revising paragraph (a); in paragraph (c) of this section to the appendix A to this part, except that the b. Revising paragraph (b); standard missing data procedures in words ‘‘maximum potential NOX c. Revising paragraph (c); § 75.38. emission rate (MER)’’ shall be replaced d. Revising paragraph (d); and * * * * *

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(f) In cases where the owner or (F) WAF no longer effective date and at the flow monitoring location (for operator elects to use a primary Hg hour (if applicable); units with flow monitors, only). Also CEMS and a certified redundant (or (G) WAF determination date; use appropriate codes to indicate the non-redundant) backup sorbent trap (H) Number of WAF test runs; material(s) of construction and the monitoring system (or vice-versa), when (I) Number of Method 1 traverse shape(s) of the stack or duct cross- both the primary and backup points in the WAF test; section(s) at the flue exit and (if monitoring systems are out-of-service (J) Number of test ports in the WAF applicable) at the flow monitor location; and quality-assured Hg concentration test; and (D) The type(s) of fuel(s) fired by each data from a temporary like-kind (K) Number of Method 1 traverse unit. Indicate the start and (if replacement analyzer, reference method, points in the reference flow RATA. applicable) end date of combustion for or approved alternative monitoring * * * * * each type of fuel, and whether the fuel system are unavailable, the previous 720 (g) Contents of the monitoring plan. is the primary, secondary, emergency, or quality-assured monitor operating hours The requirements of paragraphs (g) and startup fuel; reported in the electronic quarterly (h) of this section shall be met on and (E) The type(s) of emission controls report under § 75.64 shall be used for after January 1, 2009. Notwithstanding that are used to reduce SO2, NOX, Hg, the required missing data lookback, this requirement, the provisions of and particulate emissions from each irrespective of whether these data were paragraphs (g) and (h) of this section unit. Also provide the installation date, recorded by the Hg CEMS, the sorbent may be implemented prior to January 1, optimization date, and retirement date trap system, a temporary like-kind 2009, as follows. In 2008, the owner or (if applicable) of the emission controls, replacement analyzer, a reference operator may opt to record and report and indicate whether the controls are an method, or an approved alternative the monitoring plan information in original installation; monitoring system. paragraphs (g) and (h) of this section, in (F) Maximum hourly heat input lieu of recording and reporting the capacity of each unit; and 22. Section 75.53 is amended by: (G) A non-load based unit indicator (if information in paragraphs (e) and (f) of a. Revising paragraph (a)(1); applicable) for units that do not produce this section. Each monitoring plan shall b. Removing the phrase ‘‘(d) or (f)’’ electrical or thermal output. and adding in its place the phrase ‘‘(f) contain the information in paragraph (ii) For each monitored parameter (g)(1) of this section in electronic format or (h)’’ in the second sentence of (e.g., SO2, NOX, flow, etc.) at each paragraph (a)(2); and the information in paragraph (g)(2) monitoring location, specify the c. Adding paragraph (e)(1)(xiv); and of this section in hardcopy format. monitoring methodology and the d. Adding paragraphs (g) and (h). Electronic storage of all monitoring plan missing data approach for the The revisions and additions read as information, including the hardcopy parameter. If the unmonitored bypass follows: portions, is permissible provided that a stack approach is used for a particular paper copy of the information can be § 75.53 Monitoring plan. parameter, indicate this by means of an furnished upon request for audit appropriate code. Provide the activation (a) * * * purposes. date/hour, and deactivation date/hour (1) The provisions of paragraphs (e) (1) Electronic. (i) The facility ORISPL (if applicable) for each monitoring and (f) of this section shall be met number developed by the Department of methodology and each missing data through December 31, 2008. The owner Energy and used in the National approach. or operator shall meet the requirements Allowance Data Base (or equivalent (iii) For each required continuous of paragraphs (a), (b), (e), and (f) of this facility ID number assigned by EPA, if emission monitoring system, each fuel section through December 31, 2008, the facility does not have an ORISPL flowmeter system, each continuous except as otherwise provided in number). Also provide the following opacity monitoring system, and each paragraph (g) of this section. On and information for each unit and (as sorbent trap monitoring system (as after January 1, 2009, the owner or applicable) for each common stack and/ defined in § 72.2 of this chapter), operator shall meet the requirements of or pipe, and each multiple stack and/or identify and describe the major paragraphs (a), (b), (g), and (h) of this pipe involved in the monitoring plan: monitoring components in the section only. In addition, the provisions (A) A representation of the exhaust monitoring system (e.g., gas analyzer, in paragraphs (g) and (h) of this section configuration for the units in the flow monitor, opacity monitor, moisture that support a regulatory option monitoring plan. Provide the ID number sensor, fuel flowmeter, DAHS software, provided in another section of this part of each unit and assign a unique ID etc.). Other important components in must be followed if the regulatory number to each common stack, common the system (e.g., sample probe, PLC, option is used prior to January 1, 2009. pipe multiple stack and/or multiple data logger, etc.) may also be * * * * * pipe associated with the unit(s) represented in the monitoring plan, if (e) * * * represented in the monitoring plan. For necessary. Provide the following (1) * * * common and multiple stacks and/or specific information about each (xiv) For each unit with a flow pipes, provide the activation date and component and monitoring system: monitor installed on a rectangular stack deactivation date (if applicable) of each (A) For each required monitoring or duct, if a wall effects adjustment stack and/or pipe; system: factor (WAF) is determined and applied (B) Identification of the monitoring (1) Assign a unique, 3-character to the hourly flow rate data: system location(s) (e.g., at the unit-level, alphanumeric identification code to the (A) Stack or duct width at the test on the common stack, at each multiple system; location, ft; stack, etc.). Provide an indicator (‘‘flag’’) (2) Indicate the parameter monitored (B) Stack or duct depth at the test if the monitoring location is at a bypass by the system; location, ft; stack or in the ductwork (breeching); (3) Designate the system as a primary, (C) Wall effects adjustment factor (C) The stack exit height (ft) above redundant backup, non-redundant (WAF), to the nearest 0.0001; ground level and ground level elevation backup, data backup, or reference (D) Method of determining the WAF; above sea level, and the inside cross- method backup system, as provided in (E) WAF Effective date and hour; sectional area (ft2) at the flue exit and § 75.10(e); and

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(4) Indicate the system activation (C) Maximum expected value (if operating) level(s) and the two most date/hour and deactivation date/hour applicable) and method of calculation; frequently-used load (or operating) (as applicable). (D) Span value(s) and full-scale levels (as applicable); and (B) For each component of each measurement range(s); (F) Activation and deactivation dates monitoring system represented in the (E) Daily calibration units of measure; and hours, when the maximum hourly monitoring plan: (F) Effective date/hour, and (if gross load, boundaries of the range of (1) Assign a unique, 3-character applicable) inactivation date/hour of operation, normal load (or operating) alphanumeric identification code to the each span value; level(s) or two most frequently-used component; (G) An indication of whether dual load (or operating) levels change and are (2) Indicate the manufacturer, model spans are required; and updated. (H) The default high range value (if and serial number; (viii) For each unit for which CEMS applicable) and the maximum allowable (3) Designate the component type; are not installed: low-range value for this option. (4) For dual-span applications, (A) Maximum hourly gross load (in (vi) If the monitoring system or MW, rounded to the nearest MW, or indicate whether the analyzer excepted methodology provides for the component ID represents a high steam load in klb/hr, rounded to the use of a constant, assumed, or default nearest klb/hr, or steam load in mmBtu/ measurement scale, a low scale, or a value for a parameter under specific dual range; hr, rounded to the nearest mmBtu/hr); circumstances, then include the (B) The upper and lower boundaries (5) For gas analyzers, indicate the following information for each such moisture basis of measurement; of the range of operation (as defined in value for each parameter: section 6.5.2.1 of appendix A to this (6) Indicate the method of sample (A) Identification of the parameter; acquisition or operation, (e.g., extractive (B) Default, maximum, minimum, or part), expressed in megawatts, mmBtu/ pollutant concentration monitor or constant value, and units of measure for hr of thermal output, or thousands of lb/ thermal flow monitor); and the value; hr of steam; (7) Indicate the component activation (C) Purpose of the value; (C) Except for peaking units and units date/hour and deactivation date/hour (D) Indicator of use, i.e., during using the low mass emissions excepted (as applicable). controlled hours, uncontrolled hours, or methodology under § 75.19, identify the (iv) Explicit formulas, using the all operating hours; load level designated as normal, component and system identification (E) Type of fuel; pursuant to section 6.5.2.1 of appendix codes for the primary monitoring (F) Source of the value; A to this part, expressed in megawatts, system, and containing all constants and (G) Value effective date and hour; mmBtu/hr of thermal output, or factors required to derive the required (H) Date and hour value is no longer thousands of lb/hr of steam; mass emissions, emission rates, heat effective (if applicable); and (D) The date of the load analysis used (I) For units using the excepted input rates, etc. from the hourly data to determine the normal load level (as methodology under § 75.19, the recorded by the monitoring systems. applicable); and applicable SO emission factor. Formulas using the system and 2 (E) Activation and deactivation dates (vii) Unless otherwise specified in and hours, when the maximum hourly component ID codes for backup section 6.5.2.1 of appendix A to this monitoring systems are required only if gross load, boundaries of the range of part, for each unit or common stack on operation, or normal load level change different formulas for the same which hardware CEMS are installed: parameter are used for the primary and and are updated. (A) Maximum hourly gross load (in (ix) For each unit with a flow monitor backup monitoring systems (e.g., if the MW, rounded to the nearest MW, or installed on a rectangular stack or duct, primary system measures pollutant steam load in 1000 lb/hr (i.e., klb/hr), if a wall effects adjustment factor (WAF) concentration on a different moisture rounded to the nearest klb/hr, or is determined and applied to the hourly basis from the backup system). Provide thermal output in mmBtu/hr, rounded flow rate data: the equation number or other to the nearest mmBtu/hr), for units that (A) Stack or duct width at the test appropriate code for each emissions produce electrical or thermal output; location, ft; formula (e.g., use code F–1 if Equation (B) The upper and lower boundaries (B) Stack or duct depth at the test F–1 in appendix F to this part is used of the range of operation (as defined in location, ft; to calculate SO2 mass emissions). Also section 6.5.2.1 of appendix A to this (C) Wall effects adjustment factor identify each emissions formula with a part), expressed in megawatts, (WAF), to the nearest 0.0001; unique three character alphanumeric thousands of lb/hr of steam, mmBtu/hr (D) Method of determining the WAF; code. The formula effective start date/ of thermal output, or ft/sec (as (E) WAF Effective date and hour; hour and inactivation date/hour (as applicable); (F) WAF no longer effective date and applicable) shall be included for each (C) Except for peaking units, identify hour (if applicable); formula. The owner or operator of a unit the most frequently and second most (G) WAF determination date; for which the optional low mass frequently used load (or operating) (H) Number of WAF test runs; emissions excepted methodology in levels (i.e., low, mid, or high) in (I) Number of Method 1 traverse § 75.19 is being used is not required to accordance with section 6.5.2.1 of points in the WAF test; report such formulas. appendix A to this part, expressed in (J) Number of test ports in the WAF (v) For each parameter monitored megawatts, thousands of lb/hr of steam, test; and with CEMS, provide the following mmBtu/hr of thermal output, or ft/sec (K) Number of Method 1 traverse information: (as applicable); points in the reference flow RATA. (A) Measurement scale (high or low); (D) Except for peaking units, an (2) Hardcopy. (i) Information, (B) Maximum potential value (and indicator of whether the second most including (as applicable): Identification method of calculation). If NOX emission frequently used load (or operating) level of the test strategy; protocol for the rate in lb/mmBtu is monitored, calculate is designated as normal in section relative accuracy test audit; other and provide the maximum potential 6.5.2.1 of appendix A to this part; relevant test information; calibration gas NOX emission rate in addition to the (E) The date of the data analysis used levels (percent of span) for the maximum potential NOX concentration; to determine the normal load (or calibration error test and linearity

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check; calculations for determining (B) Type of fuel measured, maximum baseline or periodic NOX emission test; maximum potential concentration, fuel flow rate, units of measure, and and maximum expected concentration (if basis of maximum fuel flow rate (i.e., (B) Unit operating parameters related applicable), maximum potential flow upper range value or unit maximum) for to NOX formation by the unit. rate, maximum potential NOX emission each fuel flowmeter; (3) For each gas-fired unit and diesel- rate, and span; and apportionment (C) Test method used to check the fired unit or unit with a wet flue gas strategies under §§ 75.10 through 75.18. accuracy of each fuel flowmeter; pollution control system for which the (ii) Description of site locations for (D) Monitoring system identification designated representative claims an each monitoring component in the code; opacity monitoring exemption under continuous emission or opacity (E) The method used to demonstrate § 75.14, the designated representative monitoring systems, including that the unit qualifies for monthly GCV shall include in the hardcopy schematic diagrams and engineering sampling or for daily or annual fuel monitoring plan the information drawings specified in paragraphs sampling for sulfur content, as specified under § 75.14(b), (c), or (d), (e)(2)(iv) and (e)(2)(v) of this section and applicable; and demonstrating that the unit qualifies for any other documentation that (F) Activation date/hour and (if the exemption. demonstrates each monitor location applicable) inactivation date/hour for (4) For each unit using the low mass meets the appropriate siting criteria. the fuel flowmeter system; emissions excepted methodology under (iii) A data flow diagram denoting the (ii) Hardcopy. (A) A schematic § 75.19 the designated representative complete information handling path diagram identifying the relationship shall include the following additional from output signals of CEMS between the unit, all fuel supply lines, information in the monitoring plan that components to final reports. the fuel flowmeter(s), and the stack(s). accompanies the initial certification (iv) For units monitored by a The schematic diagram must depict the application: continuous emission or opacity installation location of each fuel (i) Electronic. For each low mass monitoring system, a schematic diagram flowmeter and the fuel sampling emissions unit, report the results of the identifying entire gas handling system location(s). Comprehensive and/or analysis performed to qualify as a low from boiler to stack for all affected units, separate schematic diagrams shall be mass emissions unit under § 75.19(c). using identification numbers for units, used to describe groups of units using This report will include either the monitoring systems and components, a common pipe; previous three years actual or projected and stacks corresponding to the (B) For units using the optional emissions. The following items should identification numbers provided in default SO2 emission rate for ‘‘pipeline be included: paragraphs (g)(1)(i) and (g)(1)(iii) of this natural gas’’ or ‘‘natural gas’’ in (A) Current calendar year of section. The schematic diagram must appendix D to this part, the information application; depict stack height and the height of any on the sulfur content of the gaseous fuel (B) Type of qualification; monitor locations. Comprehensive used to demonstrate compliance with (C) Years one, two, and three; and/or separate schematic diagrams either section 2.3.1.4 or 2.3.2.4 of (D) Annual and/or ozone season shall be used to describe groups of units appendix D to this part; measured, estimated or projected NOX using a common stack. (C) For units using the 720 hour test mass emissions for years one, two, and (v) For units monitored by a under 2.3.6 of Appendix D of this part three; continuous emission or opacity to determine the required sulfur (E) Annual measured, estimated or monitoring system, stack and duct sampling requirements, report the projected SO2 mass emissions (if engineering diagrams showing the procedures and results of the test; and applicable) for years one, two, and dimensions and location of fans, turning (D) For units using the 720 hour test three; and vanes, air preheaters, monitor under 2.3.5 of Appendix D of this part (F) Annual or ozone season operating components, probes, reference method to determine the appropriate fuel GCV hours for years one, two, and three. sampling ports, and other equipment sampling frequency, report the (ii) Hardcopy. (A) A schematic that affects the monitoring system procedures used and the results of the diagram identifying the relationship location, performance, or quality control test. between the unit, all fuel supply lines checks. (2) For each gas-fired peaking unit and tanks, any fuel flowmeter(s), and (h) Contents of monitoring plan for and oil-fired peaking unit for which the the stack(s). Comprehensive and/or specific situations. The following owner or operator uses the optional separate schematic diagrams shall be additional information shall be included procedures in appendix E to this part for used to describe groups of units using in the monitoring plan for the specific estimating NOX emission rate, the a common pipe; situations described: designated representative shall include (B) For units which use the long term (1) For each gas-fired unit or oil-fired in the monitoring plan: fuel flow methodology under unit for which the owner or operator (i) Electronic. Unit operating and § 75.19(c)(3), the designated uses the optional protocol in appendix capacity factor information representative must provide a diagram D to this part for estimating heat input demonstrating that the unit qualifies as of the fuel flow to each affected unit or and/or SO2 mass emissions, or for each a peaking unit, as defined in § 72.2 of group of units and describe in detail the gas-fired or oil-fired peaking unit for this chapter for the current calendar procedures used to determine the long which the owner/operator uses the year or ozone season, including: term fuel flow for a unit or group of optional protocol in appendix E to this capacity factor data for three calendar units for each fuel combusted by the part for estimating NOX emission rate years (or ozone seasons) as specified in unit or group of units; (using a fuel flowmeter), the designated the definition of peaking unit in § 72.2 (C) A statement that the unit burns representative shall include the of this chapter; the method of only gaseous fuel(s) and/or fuel oil and following additional information for qualification used; and an indication of a list of the fuels that are burned or a each fuel flowmeter system in the whether the data are actual or projected statement that the unit is projected to monitoring plan: data. burn only gaseous fuel(s) and/or fuel oil (i) Electronic. (A) Parameter (ii) Hardcopy. (A) A protocol and a list of the fuels that are projected monitored; containing methods used to perform the to be burned;

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(D) A statement that the unit meets the definition of gas-fired in § 72.2 of ‘‘rounded to the nearest 1000 lb/hr’’, in the applicability requirements in this part, the method of qualification paragraph (b)(3); § 75.19(a) and (b); and used, and an indication of whether the b. Revising Table 4a in paragraph (E) Any unit historical actual, data are actual or projected data. (c)(4)(iv); estimated and projected emissions data (6) For each monitoring location with c. Removing the word ‘‘hundredth’’ and calculated emissions data a stack flow monitor that is exempt from and adding in its place the word ‘‘tenth’’ demonstrating that the affected unit performing 3-load flow RATAs (peaking in paragraph (i)(1)(iv); and qualifies as a low mass emissions unit units, bypass stacks, or by petition) the d. Removing the words ‘‘, § 75.12(b),’’ under § 75.19(a) and 75.19(b). designated representative shall include from paragraphs (i)(2) and (j)(2). (5) For qualification as a gas-fired in the monitoring plan an indicator of The revisions read as follows: unit, as defined in § 72.2 of this part, the exemption from 3-load flow RATA designated representative shall include using the appropriate exemption code. § 75.57 General recordkeeping provisions. in the monitoring plan, in electronic 23. Section 75.57 is amended by: * * * * * format, the following: Current calendar a. Adding the phrase ‘‘, or mmBtu/hr (c) * * * year, fuel usage data for three calendar of thermal output, rounded to the (4) * * * years (or ozone seasons) as specified in nearest mmBtu/hr’’ after the phrase (iv) * * *

TABLE 4A.—CODES FOR METHOD OF EMISSIONS AND FLOW DETERMINATION

Code Hourly emissions/flow measurement or estimation method

1 ...... Certified primary emission/flow monitoring system. 2 ...... Certified backup emission/flow monitoring system. 3 ...... Approved alternative monitoring system. 4 ...... Reference method: SO2: Method 6C. Flow: Method 2 or its allowable alternatives under appendix A to part 60 of this chapter. NOX: Method 7E. CO2 or O2: Method 3A. 5 ...... For units with add-on SO2 and/or NOX emission controls: SO2 concentration or NOX emission rate estimate from Agency preapproved parametric monitoring method. 6 ...... Average of the hourly SO2 concentrations, CO2 concentrations, O2 concentrations, NOX concentrations, flow rates, moisture percentages or NOX emission rates for the hour before and the hour following a missing data period. 7 ...... Initial missing data procedures used. Either: (a) the average of the hourly SO2 concentration, CO2 concentration, O2 concentration, or moisture percentage for the hour before and the hour following a missing data period; or (b) the arithmetic average of all NOX con- centration, NOX emission rate, or flow rate values at the corresponding load range (or a higher load range), or at the corresponding operational bin (non-load-based units, only); or (c) the arithmetic average of all previous NOX concentration, NOX emission rate, or flow rate values (non-load-based units, only). 8 ...... 90th percentile hourly SO2 concentration, CO2 concentration, NOX concentration, flow rate, moisture percentage, or NOX emission rate or 10th percentile hourly O2 concentration or moisture percentage in the applicable lookback period (moisture missing data algorithm depends on which equations are used for emissions and heat input). 9 ...... 95th percentile hourly SO2 concentration, CO2 concentration, NOX concentration, flow rate, moisture percentage, or NOX emission rate or 5th percentile hourly O2 concentration or moisture percentage in the applicable lookback period (moisture missing data algorithm depends on which equations are used for emissions and heat input). 10 .... Maximum hourly SO2 concentration, CO2 concentration, NOX concentration, flow rate, moisture percentage, or NOX emission rate or minimum hourly O2 concentration or moisture percentage in the applicable lookback period (moisture missing data algorithm depends on which equations are used for emissions and heat input). 11 .... Average of hourly flow rates, NOX concentrations or NOX emission rates in corresponding load range, for the applicable lookback period. For non-load-based units, report either the average flow rate, NOX concentration or NOX emission rate in the applicable lookback pe- riod, or the average flow rate or NOX value at the corresponding operational bin (if operational bins are used). 12 .... Maximum potential concentration of SO2, maximum potential concentration of CO2, maximum potential concentration of NOX maximum potential flow rate, maximum potential NOX emission rate, maximum potential moisture percentage, minimum potential O2 concentra- tion or minimum potential moisture percentage, as determined using § 72.2 of this chapter and section 2.1 of appendix A to this part (moisture missing data algorithm depends on which equations are used for emissions and heat input). 13 .... Maximum expected concentration of SO2, maximum expected concentration of NOX, maximum expected Hg concentration, or maximum controlled NOX emission rate. (See § 75.34(a)(5)). 14 .... Diluent cap value (if the cap is replacing a CO2 measurement, use 5.0 percent for boilers and 1.0 percent for turbines; if it is replacing an O2 measurement, use 14.0 percent for boilers and 19.0 percent for turbines). 15 .... 1.25 times the maximum hourly controlled SO2 concentration, Hg concentration, NOX concentration at the corresponding load or oper- ational bin, or NOX emission rate at the corresponding load or operational bin, in the applicable lookback period (See § 75.34(a)(5)). 16 .... SO2 concentration value of 2.0 ppm during hours when only ‘‘very low sulfur fuel’’, as defined in § 72.2 of this chapter, is combusted. 17 .... Like-kind replacement non-redundant backup analyzer. 19 .... 200 percent of the MPC; default high range value. 20 .... 200 percent of the full-scale range setting (full-scale exceedance of high range). 21 .... Negative hourly CO2 concentration, SO2 concentration, NOX concentration, percent moisture, or NOX emission rate replaced with zero. 22 .... Hourly average SO2 or NOX concentration, measured by a certified monitor at the control device inlet (units with add-on emission con- trols only). 23 .... Maximum potential SO2 concentration, NOX concentration, CO2 concentration, NOX emission rate or flow rate, or minimum potential O2 concentration or moisture percentage, for an hour in which flue gases are discharged through an unmonitored bypass stack. 24 .... Maximum expected NOX concentration, or maximum controlled NOX emission rate for an hour in which flue gases are discharged down- stream of the NOX emission controls through an unmonitored bypass stack, and the add-on NOX emission controls are confirmed to be operating properly. 25 .... Maximum potential NOX emission rate (MER). (Use only when a NOX concentration full-scale exceedance occurs and the diluent monitor is unavailable.)

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TABLE 4A.—CODES FOR METHOD OF EMISSIONS AND FLOW DETERMINATION—Continued

Code Hourly emissions/flow measurement or estimation method

26 .... 1.0 mmBtu/hr substituted for Heat Input Rate for an operating hour in which the calculated Heat Input Rate is zero or negative. 32 .... Hourly Hg concentration determined from analysis of a single trap multiplied by a factor of 1.111 when one of the paired traps is invali- dated or damaged (See Appendix K, section 8). 33 .... Hourly Hg concentration determined from the trap resulting in the higher Hg concentration when the relative deviation criterion for the paired traps is not met (See Appendix K, section 8). 40 .... Fuel specific default value (or prorated default value) used for the hour. 54 .... Other quality assured methodologies approved through petition. These hours are included in missing data lookback and are treated as unavailable hours for percent monitor availability calculations. 55 .... Other substitute data approved through petition. These hours are not included in missing data lookback and are treated as unavailable hours for percent monitor availability calculations.

* * * * * (b) * * * b. Revising paragraph (a)(1)(viii); 24. Section 75.58 is amended by: (3) Except as otherwise provided in c. Removing the phrase ‘‘For the a. Revising paragraph (b)(3) § 75.34(d), for units with add-on SO2 or qualifying test for off-line calibration, introductory text; NOX emission controls following the the owner or operator shall indicate’’ b. Removing paragraphs (b)(3)(iii) and provisions of § 75.34(a)(1), (a)(2), (a)(3) and adding in its place the phrase (b)(3)(iv); or (a)(5), and for units with add-on Hg ‘‘Indication of’’, in paragraph (a)(1)(xi); c. Removing the word ‘‘and’’ from emission controls, the owner or operator d. Adding the phrase ‘‘(after January 1, paragraph (c)(1)(xii); shall record: 2009, only the component identification d. Removing the period and adding in * * * * * code is required)’’ after the word its place a semicolon and adding the (c) * * * ‘‘code’’, in paragraph (a)(2)(i); word ‘‘and’’ to the end of the paragraph, (1) * * * e. Adding the phrase ‘‘(on and after in paragraph (c)(1)(xiii); (xiv) Heat input formula ID and SO2 January 1, 2009, only the component e. Adding paragraph (c)(1)(xiv); Formula ID (required beginning January identification code is required)’’ after f. Removing the period and adding in 1, 2009). the word ‘‘code’’, in paragraph (a)(3)(i); its place a semicolon and adding the f. Adding the phrase ‘‘(only span scale word ‘‘and’’ to the end of the paragraph, * * * * * (4) * * * is required on and after January 1, in paragraph (c)(4)(x); (xi) Heat input formula ID and SO g. Adding paragraph (c)(4)(xi); 2 2009)’’ after the word ‘‘scale’’, in h. Removing the words ‘‘rounded to Formula ID (required beginning January paragraph (a)(3)(ii); the nearest hundredth for diesel fuel’’ 1, 2009). g. Adding the phrase ‘‘(on and after and adding in its place the words * * * * * January 1, 2009, only the system ‘‘rounded to either the nearest (d) * * * identification code is required)’’ after hundredth, or nearest ten-thousandth (1) * * * the word ‘‘code’’, in paragraph (a)(4)(i); for diesel fuels’’ in paragraph (c)(5)(ii); (xi) Heat input rate formula ID h. Removing the word ‘‘and’’ after the i. Removing the word ‘‘and’’ after the (required beginning January 1, 2009). semicolon at the end of paragraph semicolon in paragraph (d)(1)(ix). (2) * * * (a)(4)(vi)(L); j. Removing the period and adding in (xi) Heat input rate formula ID i. Removing the period and adding in its place a semicolon and adding the (required beginning January 1, 2009). its place a semicolon and adding the word ‘‘and’’ to the end of the paragraph, * * * * * word ‘‘and’’ at the end of paragraph in paragraph (d)(1)(x); (f) * * * (a)(4)(vi)(M); k. Adding paragraph (d)(1)(xi); (1) * * * j. Adding paragraph (a)(4)(vi)(N); l. Removing the word ‘‘and’’ after the (iii) Fuel type (pipeline natural gas, k. Removing the word ‘‘and’’ after the semicolon in paragraph (d)(2)(ix); natural gas, other gaseous fuel, residual semicolon, at the end of paragraph m. Removing the period and adding in oil, or diesel fuel). If more than one type (a)(4)(vii)(K); its place a semicolon and adding the of fuel is combusted in the hour, either: l. Removing the period and adding in word ‘‘and’’ to the end of the paragraph, (A) Indicate the fuel type which its place a semicolon and adding the in paragraph (d)(2)(x); results in the highest emission factors word ‘‘and’’ at the end of paragraph n. Adding paragraph (d)(2)(xi); for NOX (this option is in effect through (a)(4)(vii)(L); o. Revising paragraph (f)(1)(iii); December 31, 2008); or m. Adding paragraph (a)(4)(vii)(M); p. Removing the word ‘‘and’’ at the (B) Indicate the fuel type resulting in n. Revising paragraph (a)(6) end of paragraph (f)(1)(xi); the highest emission factor for each introductory text; q. Removing the period and adding in parameter (SO2, NOX emission rate, and o. Adding the phrase ‘‘(on and after its place a semicolon at the end of CO2) separately (this option is required January 1, 2009, only the component paragraph (f)(1)(xii); on and after January 1, 2009); identification code is required)’’ after r. Adding paragraphs (f)(1)(xiii) and * * * * * the word ‘‘code’’, in paragraph (a)(6)(i); (f)(1)(xiv); and (xiii) Base or peak load indicator (as s. Removing the word ‘‘Component’’ p. Removing the phrase ‘‘Cycle time applicable); and result for the entire system’’ and adding and adding in its place the word (xiv) Multiple fuel flag. ‘‘Monitoring’’, in paragraph (f)(2)(x). in its place the phrase ‘‘Total cycle The revisions and additions read as * * * * * time’’, in paragraph (a)(6)(ix); follows: 25. Section 75.59 is amended by: q. Revising the heading of reserved a. Adding the phrase ‘‘(on and after paragraph (a)(7)(viii); § 75.58 General recordkeeping provisions January 1, 2009, only the component r. Adding paragraphs (a)(7)(ix) and for specific situations. identification code is required)’’ after (a)(7)(x); * * * * * the word ‘‘code’’, in paragraph (a)(1)(i); s. Revising paragraph (a)(8);

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t. Removing and reserving paragraph oo. Removing the word ‘‘and’’ after (D) Dry gas volume metered (dscm); (a)(12)(iii); the semicolon at the end of paragraph (E) Percent isokinetic; u. Removing the number ‘‘(2)’’ from (d)(2)(iv); (F) Particulate Hg collected in the the paragraph identifier ‘‘§ 75.64(a)(2)’’ pp. Removing the period and adding front half of the sampling train, in the second sentence of paragraph in its place a semicolon at the end of corrected for the front-half blank value (a)(13); paragraph (d)(2)(v); and (µg); and v. Adding the phrase ‘‘(on and after qq. Adding paragraphs (d)(2)(vi), (G) Total vapor phase Hg collected in January 1, 2009, only the component (d)(2)(vii), (e) and (f). the back half of the sampling train, identification code is required)’’ after The revisions and additions read as corrected for the back-half blank value the word ‘‘tested’’, in paragraphs follows: (µg). (b)(1)(ii) and (b)(2)(i); (8) For each certified continuous w. Adding the phrase ‘‘(on and after § 75.59 Certification, quality, assurance, emission monitoring system, continuous and quality control record provisions. January 1, 2009, only the monitoring opacity monitoring system, excepted system identification code is required)’’ * * * * * monitoring system, or alternative after the word ‘‘code’’, in paragraph (a) * * * monitoring system, the date and (b)(4)(i)(A); (1) * * * description of each event which x. Removing the word ‘‘and’’ after the (viii) For 7-day calibration error tests, requires certification, recertification, or semicolon at the end of paragraph a test number and reason for test; certain diagnostic testing of the system (b)(4)(i)(H); * * * * * and the date and type of each test y. Removing the period and adding in (4) * * * performed. If the conditional data its place a semicolon and adding the (vi) * * * validation procedures of § 75.20(b)(3) word ‘‘and’’ at the end of paragraph (N) Test number. are to be used to validate and report (b)(4)(i)(I); (vii) * * * data prior to the completion of the z. Adding paragraph (b)(4)(i)(J); (M) An indicator (‘‘flag’’) if separate required certification, recertification, or aa. Revising paragraphs (b)(4)(ii)(A), reference ratios are calculated for each diagnostic testing, the date and hour of (b)(4)(ii)(B), and (b)(4)(ii)(F); multiple stack. the probationary calibration error test bb. Removing the word ‘‘and’’ after * * * * * the semicolon at the end of paragraph shall be reported to mark the beginning (6) For each SO2, NOX, Hg, or CO2 of conditional data validation. (b)(4)(ii)(L); pollutant concentration monitor, each cc. Removing the period and adding * * * * * component of a NOX-diluent continuous (b) * * * in its place a semicolon and adding the emission monitoring system, and each word ‘‘and’’ at the end of paragraph (4) * * * CO2 or O2 monitor used to determine (i) * * * (b)(4)(ii)(M); heat input, the owner or operator shall dd. Adding paragraph (b)(4)(ii)(N); (J) Test number. ee. Adding the phrase ‘‘(on and after record the following information for the (ii) * * * January 1, 2009, component cycle time test: (A) Completion date and hour of most identification codes shall be reported in * * * * * recent primary element inspection or addition to the monitoring system (7) * * * test number of the most recent primary identification code)’’ after the second (viii) Data elements for Methods 30A element inspection (as applicable); (on occurrence of the word ‘‘system’’ in and 30B. [Reserved] and after January 1, 2009, the test paragraphs (b)(5)(i)(B), (b)(5)(ii)(B), and (ix) For a unit with a flow monitor number of the most recent primary (b)(5)(iii)(B); installed on a rectangular stack or duct, element inspection is required in lieu of ff. Adding the phrase ‘‘This if a site-specific default or measured the completion date and hour for the requirement remains in effect through wall effects adjustment factor (WAF) is most recent primary element December 31, 2008’’ after the word used to correct the stack gas volumetric inspection); ‘‘run;’’, in paragraph (b)(5)(i)(H); flow rate data to account for velocity (B) Completion date and hour of most gg. Adding the phrase ‘‘(as decay near the stack or duct wall, the recent flow meter of transmitter applicable). This requirement remains owner or operator shall keep records of accuracy test or test number of the most in effect through December 31, 2008’’ the following for each flow RATA recent flowmeter or transmitter accuracy after the word ‘‘level’’, in paragraph performed with EPA Method 2 in test (as applicable); (on and after (b)(5)(iv)(A); appendices A–1 and A–2 to part 60 of January 1, 2009, the test number of the hh. Removing the word ‘‘and’’ after this chapter, subsequent to the WAF most recent flowmeter or transmitter the semicolon at the end of paragraph determination: accuracy test is required in lieu of the (b)(5)(iv)(G); (A) Monitoring system ID; completion date and hour for the most ii. Removing the period and adding in (B) Test number; recent flowmeter or transmitter accuracy its place a semicolon and adding the (C) Operating level; test); word ‘‘and’’ at the end of paragraph (D) RATA end date and time; * * * * * (b)(5)(iv)(H); (E) Number of Method 1 traverse (F) Average load, in megawatts, 1000 jj. Adding paragraph (b)(5)(iv)(I); points; and lb/hr of steam, or mmBtu/hr thermal kk. Removing the word ‘‘and’’ after (F) Wall effects adjustment factor output; the semicolon at the end of paragraph (WAF), to the nearest 0.0001. (d)(1)(xi); (x) For each RATA run using Method * * * * * ll. Removing the period and adding in 29 in appendix A–8 to part 60 of this (N) Monitoring system identification its place a semicolon and adding the chapter to determine Hg concentration: code. word ‘‘and’’ at the end of paragraph (A) Percent CO2 and O2 in the stack * * * * * (d)(1)(xii); gas, dry basis; (5) * * * mm. Adding paragraph (d)(1)(xiii); (B) Moisture content of the stack gas (iv) * * * nn. Removing the phrase ‘‘, multiplied (percent H2O); (I) Component identification code by 1.15, if appropriate’’ from paragraph (C) Average stack gas temperature (required on and after January 1, 2009). (d)(2)(iii); (°F); * * * * *

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(d) * * * during the test runs (if applicable); submitted no later than 7 days following (1) * * * diagrams illustrating the test and sample the actual date of shutdown or of (xiii) An indicator (‘‘flag’’) if the run point locations; a copy of the test recommencement of commercial is used to calculate the highest 3-run protocol used; calibration certificates for operation, as applicable; average NOX emission rate at any load the gas standards or standard solutions (ii) For unplanned unit shutdowns level. used in the testing; laboratory (e.g., forced outages), written (2) * * * calibrations of the source sampling notification of the actual shutdown date (vi) Indicator of whether the testing equipment; and the names of the key shall be provided no more than 7 days was done at base load, peak load or both personnel involved in the test program, after the shutdown, and written (if appropriate); and including test team members, plant notification of the planned date of (vii) The default NOX emission rate contact persons, agency representatives recommencement of commercial for peak load hours (if applicable). and test observers. operation shall be provided at least 21 * * * * * * * * * * days in advance of unit restart. If the (e) Excepted monitoring for Hg low 27. Section 75.61 is amended by: actual date of recommencement of mass emission units under § 75.81(b). a. Revising the first sentence of commercial operation differs from the For qualifying coal-fired units using the paragraph (a)(1) introductory text; expected date, written notice of the alternative low mass emission b. Revising paragraph (a)(3); actual date shall be submitted no later methodology under § 75.81(b), the c. Revising the first sentence of than 7 days following the actual date of owner or operator shall record the data paragraph (a)(5) introductory text; and recommencement of commercial elements described in § 75.59(a)(7)(vii), d. Adding paragraphs (a)(7) and (a)(8) operation. § 75.59(a)(7)(viii), or § 75.59(a)(7)(x), as The revisions and additions read as * * * * * applicable, for each run of each Hg follows: (5) * * * The owner or operator or emission test and re-test required under designated representative of an affected § 75.81(c)(1) or § 75.81(d)(4)(iii). § 75.61 Notifications. unit shall submit written notice of the (f) DAHS Verification. For each DAHS (a) * * * date of periodic relative accuracy testing (missing data and formula) verification (1) *** The owner or operator or performed under section 2.3.1 of that is required for initial certification, designated representative for an affected appendix B to this part, of periodic recertification, or for certain diagnostic unit shall submit written notification of retesting performed under section 2.2 of testing of a monitoring system, record initial certification tests and revised test appendix E to this part, of periodic the date and hour that the DAHS dates as specified in § 75.20 for retesting of low mass emissions units verification is successfully completed. continuous emission monitoring performed under § 75.19(c)(1)(iv)(D), (This requirement only applies to units systems, for the excepted Hg monitoring and of periodic retesting of Hg low mass that report monitoring plan data in methodology under § 75.81(b), for emissions units performed under accordance with § 75.53(g) and (h).) alternative monitoring systems under § 75.81(d)(4)(iii), no later than 21 days * * * * * subpart E of this part, or for excepted prior to the first scheduled day of 26. Section 75.60 is amended by monitoring systems under appendix E to testing. * * * adding paragraph (b)(8) to read as this part, except as provided in (7) Long-term cold storage and follows: paragraphs (a)(1)(iii), (a)(1)(iv) and (a)(4) recommencement of commercial of this section. * * * operation. The designated § 75.60 General provisions. * * * * * representative for an affected unit that is * * * * * (3) Unit shutdown and placed into long-term cold storage that (b) * * * recommencement of commercial is relying on the provisions in § 75.4(d) (8) Routine retest reports for Hg low operation. For an affected unit that will or § 75.64(a), either to postpone mass emissions units. If requested in be shut down on the relevant certification testing or to discontinue writing (or by electronic mail) by the compliance date specified in § 75.4 or in the submittal of quarterly reports during applicable EPA Regional Office, a State or Federal pollutant mass the period of long-term cold storage, appropriate State, and/or appropriate emissions reduction program that shall provide written notification of local air pollution control agency, the adopts the monitoring and reporting long-term cold storage status and designated representative shall submit a requirements of this part, if the owner recommencement of commercial hardcopy report for a semiannual or or operator is relying on the provisions operation as follows: annual retest required under in § 75.4(d) to postpone certification (i) Whenever an affected unit has been § 75.81(d)(4)(iii) for a Hg low mass testing, the designated representative for placed into long-term cold storage, emissions unit, within 45 days after the unit shall submit notification of unit written notification of the date and hour completing the test or within 15 days of shutdown and recommencement of that the unit was shutdown and a receiving the request, whichever is later. commercial operation as follows: statement from the designated The designated representative shall (i) For planned unit shutdowns (e.g., representative stating that the shutdown report, at a minimum, the following extended maintenance outages), written is expected to last for at least two years hardcopy information to the applicable notification of the planned shutdown from that date, in accordance with the EPA Regional Office, appropriate State, date shall be provided at least 21 days definition for long-term cold storage of and/or appropriate local air pollution prior to the applicable compliance date, a unit as provided in § 72.2 of this control agency that requested the and written notification of the planned chapter. hardcopy report: a summary of the test date of recommencement of commercial (ii) Whenever an affected unit that has results; the raw reference method data operation shall be provided at least 21 been placed into long-term cold storage for each test run; the raw data and days in advance of unit restart. If the is expected to resume operation, written results of all pretest, post-test, and post- actual shutdown date or the actual date notification shall be submitted 45 run quality-assurance checks of the of recommencement of commercial calendar days prior to the planned date reference method; the raw data and operation differs from the planned date, of recommencement of commercial results of moisture measurements made written notice of the actual date shall be operation. If the actual date of

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recommencement of commercial f. Removing and reserving paragraph unit shall electronically report the data operation differs from the expected date, (b)(2)(iii); and information in paragraphs (a), (b), written notice of the actual date shall be g. Revising paragraph (b)(2)(iv). and (c) of this section to the submitted no later than 7 days following The revisions read as follows: Administrator quarterly, beginning with the actual date of recommencement of the data from the earlier of the calendar commercial operation. § 75.63 Initial certification or recertification quarter corresponding to the date of application. (8) Certification deadline date for new provisional certification or the calendar or newly affected units. The designated (a) * * * quarter corresponding to the relevant representative of a new or newly (1) * * * deadline for initial certification in affected unit shall provide notification (ii) * * * § 75.4(a), (b), or (c). The initial quarterly of the date on which the relevant (A) To the Administrator, the report shall contain hourly data deadline for initial certification is electronic low mass emission beginning with the hour of provisional reached, either as provided in § 75.4(b) qualification information required by certification or the hour corresponding or § 75.4(c), or as specified in a State or § 75.53(f)(5)(i) or § 75.53(h)(4)(i) (as to the relevant certification deadline, applicable) and paragraph (b)(1)(i) of Federal SO2, NOX, or Hg mass emission whichever is earlier. For an affected unit reduction program that incorporates by this section; and subject to § 75.4(d) that is shutdown on reference, or otherwise adopts, the * * * * * the relevant compliance date in § 75.4(a) monitoring, recordkeeping, and (2) * * * or has been placed in long-term cold reporting requirements of subpart F, G, (iii) Notwithstanding the storage (as defined in § 72.2 of this H, or I of this part. The notification shall requirements of paragraphs (a)(2)(i) and chapter), quarterly reports are not be submitted no later than 7 calendar (a)(2)(ii) of this section, for an event for required. In such cases, the owner or days after the applicable certification which the Administrator determines operator shall submit quarterly reports deadline is reached. that only diagnostic tests (see § 75.20(b)) for the unit beginning with the data * * * * * are required rather than recertification from the quarter in which the unit testing, no hardcopy submittal is 28. Section 75.62 is amended by: recommences commercial operation required; however, the results of all a. Revising paragraph (a)(1); and (where the initial quarterly report diagnostic test(s) shall be submitted b. Removing the number ‘‘45’’ and contains hourly data beginning with the prior to or concurrent with the adding in its place the number ‘‘21’’ first hour of recommenced commercial electronic quarterly report required before the phrase ‘‘days prior’’, in operation of the unit). For units placed under § 75.64. Notwithstanding the paragraph (a)(2). into long-term cold storage during a The revisions read as follows: requirement of § 75.59(e), for DAHS reporting quarter, the exemption from (missing data and formula) verifications, submitting quarterly reports begins with § 75.62 Monitoring plan submittals. no hardcopy submittal is required; the the calendar quarter following the date (a) * * * owner or operator shall keep these test that the unit is placed into long-term (1) Electronic. Using the format results on-site in a format suitable for cold storage. For any provisionally- specified in paragraph (c) of this inspection. certified monitoring system, section, the designated representative * * * * * § 75.20(a)(3) shall apply for initial for an affected unit shall submit a (b) * * * certifications, and § 75.20(b)(5) shall complete, electronic, up-to-date (2) * * * apply for recertifications. Each monitoring plan file (except for (iv) Designated representative electronic report must be submitted to hardcopy portions identified in signature certifying the accuracy of the the Administrator within 30 days paragraph (a)(2) of this section) to the submission. following the end of each calendar Administrator as follows: no later than * * * * * quarter. Prior to January 1, 2008, each 21 days prior to the initial certification 30. Section 75.64 is amended by: electronic report shall include for each tests; at the time of each certification or a. Revising paragraph (a) introductory affected unit (or group of units using a recertification application submission; text; common stack), the information and (prior to or concurrent with) the b. Redesignate paragraph (a)(2)(xiv) as provided in paragraphs (a)(1), (a)(2), and submittal of the electronic quarterly paragraph (a)(2)(xiii); (a)(8) through (a)(15) of this section. report for a reporting quarter where an c. Revise newly designated paragraph During the time period of January 1, update of the electronic monitoring plan (a)(2)(xiii); 2008 to January 1, 2009, each electronic information is required, either under d. Removing paragraph (a)(8); report shall include, either the § 75.53(b) or elsewhere in this part. e. Redesignating paragraphs (a)(9) information provided in paragraphs * * * * * through (a)(11) as paragraphs (a)(13) (a)(1), (a)(2), and (a)(8) through (a)(15) of 29. Section 75.63 is amended by: through (a)(15), and redesignating this section or the information provided a. Removing the phrase ‘‘and a paragraphs (a)(3) through (a)(7) as in paragraphs (a)(3) through (a)(15) of hardcopy certification application form paragraphs (a)(8) through (a)(12); this section. On and after January 1, (EPA form 7610–14)’’ from paragraph f. Adding new paragraphs (a)(3) 2009, the owner or operator shall meet (a)(1)(i)(A); through (a)(7); and the requirements of paragraphs (a)(3) b. Revising paragraph (a)(1)(ii)(A); g. Removing the citation ‘‘§ 75.59’’, through (a)(15) of this section only. Each c. Adding the phrase ‘‘or and adding in its place ‘‘§ 75.58(f)(2)’’ at electronic report shall also include the § 75.53(h)(4)(ii) (as applicable)’’ after the the end of newly designated paragraph date of report generation. identifier ‘‘§ 75.53(f)(5)(ii)’’, in (a)(14). * * * * * paragraph (a)(1)(ii)(B); The revisions and additions read as (2) * * * d. Removing the phrase ‘‘and a follows: (xiii) Supplementary RATA hardcopy certification application form information required under (EPA form 7610–14)’’ after the word § 75.64 Quarterly reports. § 75.59(a)(7), except that: ‘‘section’’, in paragraph (a)(2)(i); (a) Electronic submission. The (A) The applicable data elements e. Revising paragraph (a)(2)(iii); designated representative for an affected under § 75.59(a)(7)(ii)(A) through (T)

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and under § 75.59(a)(7)(iii)(A) through (i) Descriptions of adjustments, adjustment factor is determined by (M) shall be reported for flow RATAs at corrective action, and maintenance; direct measurement; circular or rectangular stacks (or ducts) (ii) Information which is incompatible (C) The data under § 75.59(a)(7)(ii)(T) in which angular compensation for yaw with electronic reporting (e.g., field data shall be reported for all flow RATAs at and/or pitch angles is used (i.e., Method sheets, lab analyses, quality control circular stacks in which Method 2 in 2F or 2G in appendices A–1 and A–2 to plan); appendices A–1 and A–2 to part 60 of part 60 of this chapter), with or without (iii) Opacity data listed in § 75.57(f), this chapter is used and a default wall wall effects adjustments; and in § 75.59(a)(8); effects adjustment factor is applied; and (B) The applicable data elements (iv) For units with SO2 or NOX add- (D) The data under under § 75.59(a)(7)(ii)(A) through (T) on emission controls that do not elect to § 75.59(a)(7)(vii)(A) through (F) shall be and under § 75.59(a)(7)(iii)(A) through use the approved site-specific reported for all flow RATAs at (M) shall be reported for any flow RATA parametric monitoring procedures for rectangular stacks or ducts in which run at a circular stack in which Method calculation of substitute data, the Method 2 in appendices A–1 and A–2 2 in appendices A–1 and A–2 to part 60 information in § 75.58(b)(3); to part 60 of this chapter is used and a of this chapter is used and a wall effects (v) Information required by § 75.57(h) wall effects adjustment factor is applied. adjustment factor is determined by concerning the causes of any missing * * * * * direct measurement; data periods and the actions taken to (C) The data under § 75.59(a)(7)(ii)(T) cure such causes; § 75.66 [Amended] shall be reported for all flow RATAs at (vi) Hardcopy monitoring plan 31. Section 75.66 is amended by circular stacks in which Method 2 in information required by § 75.53 and removing and reserving paragraph (f). appendices A–1 and A–2 to part 60 of hardcopy test data and results required this chapter is used and a default wall by § 75.59; 32. Section 75.71 is amended by: effects adjustment factor is applied; and (vii) Records of flow monitor and a. Revising the section heading; (D) The data under § 75.59(a)(7)(ix)(A) moisture monitoring system polynomial b. In paragraph (a)(1), by removing the

through (F) shall be reported for all flow equations, coefficients, or ‘‘K’’ factors second occurrence of the phrase ‘‘CO2 RATAs at rectangular stacks or ducts in required by § 75.59(a)(5)(vi) or diluent gas monitor’’ and adding in its which Method 2 in appendices A–1 and § 75.59(a)(5)(vii); place the phrase ‘‘CO2 diluent gas A–2 to part 60 of this chapter is used (viii) Daily fuel sampling information monitoring system’’; and a wall effects adjustment factor is required by § 75.58(c)(3)(i) for units c. Removing the phrase ‘‘O2 or CO2 applied. using assumed values under appendix D diluent gas monitor’’ and adding in its (3) Facility identification information, of this part; place the phrase ‘‘O2 or CO2 monitoring system’’, in paragraph (a)(2); and including: (ix) Information required by d. Revising paragraph (e). (i) Facility/ORISPL number; §§ 75.59(b)(1)(vi), (vii), (viii), (ix), and The revision reads as follows: (ii) Calendar quarter and year for the (xiii), and (b)(2)(iii) and (iv) concerning data contained in the report; and fuel flowmeter accuracy tests and § 75.71 Specific provisions for monitoring (iii) Version of the electronic data transmitter/transducer accuracy tests; NOX and heat input for the purpose of reporting format used for the report. (x) Stratification test results required calculating NOX mass emissions. (4) In accordance with § 75.62(a)(1), if as part of the RATA supplementary * * * * * any monitoring plan information records under § 75.59(a)(7); (e) Low mass emissions units. required in § 75.53 requires an update, (xi) Data and results of RATAs that Notwithstanding the requirements of either under § 75.53(b) or elsewhere in are aborted or invalidated due to paragraphs (c) and (d) of this section, for this part, submission of the electronic problems with the reference method or an affected unit using the low mass monitoring plan update shall be operational problems with the unit and emissions (LME) unit under § 75.19 to completed prior to or concurrent with data and results of linearity checks that estimate hourly NOX emission rate, heat the submittal of the quarterly electronic are aborted or invalidated due to input and NOX mass emissions, the data report for the appropriate quarter in problems unrelated to monitor owner or operator shall calculate the which the update is required. performance; and ozone season NOX mass emissions by (5) Except for the daily calibration (xii) Supplementary RATA summing all of the estimated hourly error test data, daily interference check, information required under NOX mass emissions in the ozone and off-line calibration demonstration § 75.59(a)(7)(i) through § 75.59(a)(7)(v), season, as determined under § 75.19 information required in § 75.59(a)(1) except that: (c)(4)(ii)(A), and dividing this sum by and (2), which must always be (A) The applicable data elements 2000 lb/ton. submitted with the quarterly report, the under § 75.59(a)(7)(ii)(A) through (T) * * * * * certification, quality assurance, and and under § 75.59(a)(7)(iii)(A) through 33. Section 75.72 is amended by: quality control information required in (M) shall be reported for flow RATAs at a. Revising the section heading and § 75.59 shall either be submitted prior to circular or rectangular stacks (or ducts) the introductory text; or concurrent with the submittal of the in which angular compensation for yaw b. Revising paragraph (c)(3); and relevant quarterly electronic data report. and/or pitch angles is used (i.e., Method c. Removing and reserving paragraph (6) The information and hourly data 2F or 2G in appendices A–1 and A–2 to (f). required in §§ 75.57 through 75.59, and part 60 of this chapter), with or without The revisions read as follows: daily calibration error test data, daily wall effects adjustments; interference check, and off-line (B) The applicable data elements § 75.72 Determination of NOX mass calibration demonstration information under § 75.59(a)(7)(ii)(A) through (T) emissions for common stack and multiple required in § 75.59(a)(1) and (2). and under § 75.59(a)(7)(iii)(A) through stack configurations. (7) Notwithstanding the requirements (M) shall be reported for any flow RATA The owner or operator of an affected of paragraphs (a)(4) through (a)(6) of this run at a circular stack in which Method unit shall either: calculate hourly NOX section, the following information is 2 in appendices A–1 and A–2 to part 60 mass emissions (in lbs) by multiplying excluded from electronic reporting: of this chapter is used and a wall effects the hourly NOX emission rate (in lbs/

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mmBtu) by the hourly heat input rate documentation, the owner or operator low mass emissions excepted (in mmBtu/hr) and the unit or stack shall record parametric data to verify methodology under § 75.19 the operating time (as defined in § 72.2), or, the proper operation of the NOX add-on monitoring plan shall include the as provided in paragraph (e) of this emission controls as described in additional information in § 75.53(h)(4)(i) section, calculate hourly NOX mass § 75.34(d). Furthermore, the owner or and (h)(4)(ii), only. Prior to January 1, emissions from the hourly NOX operator shall calculate the MCR using 2008, the monitoring plan shall also concentration (in ppm) and the hourly the procedure described in section identify, in electronic format, the stack flow rate (in scfh). Only one 2.1.2.1(b) of appendix A to this part by reporting schedule for the affected unit methodology for determining NOX mass replacing the words ‘‘maximum (ozone season or quarterly), and the emissions shall be identified in the potential NOX emission rate (MER)’’ beginning and end dates for the monitoring plan for each monitoring with the words ‘‘maximum controlled reporting schedule. The monitoring plan location at any given time. The owner NOX emission rate (MCR)’’ and by using also shall include a seasonal controls or operator shall also calculate quarterly the NOX MEC in the calculations indicator, and an ozone season fuel- and cumulative year-to-date NOX mass instead of the NOX MPC. switching flag. emissions and cumulative NOX mass * * * * * * * * * * emissions for the ozone season (in tons) (f) [Reserved] (f) * * * by summing the hourly NOX mass * * * * * (1) Electronic submission. The emissions according to the procedures designated representative for an affected in section 8 of appendix F to this part. 34. Section 75.73 is amended by: a. Revising paragraph (c)(3); unit shall electronically report the data * * * * * b. Removing the number ‘‘45’’ and and information in this paragraph (f)(1) (c) * * * adding in its place the number ‘‘21’’ in and in paragraphs (f)(2) and (3) of this (3) Install, certify, operate, and paragraphs (e)(1) and (e)(2); section to the Administrator quarterly, maintain a NOX-diluent CEMS and a c. Revising paragraph (f)(1) unless the unit has been placed in long- flow monitoring system only on the introductory text; term cold storage (as defined in § 72.2 main stack. If this option is chosen, it d. Removing the phrase ‘‘paragraph of this chapter). For units placed into is not necessary to designate the exhaust (a)’’ and adding in its place the phrase long-term cold storage during a configuration as a multiple stack ‘‘paragraphs (a) and (b)’’ in paragraph reporting quarter, the exemption from configuration in the monitoring plan (f)(1)(ii) introductory text; and submitting quarterly reports begins with required under § 75.53, since only the e. Revising paragraph (f)(1)(ii)(K). the calendar quarter following the date main stack is monitored. For each unit The revisions read as follows: that the unit is placed into long-term operating hour in which the bypass cold storage. In such cases, the owner or stack is used and the emissions are § 75.73 Recordkeeping and reporting. operator shall submit quarterly reports either uncontrolled (or the add-on * * * * * for the unit beginning with the data controls are not documented to be (c) * * * from the quarter in which the unit operating properly), report NOX mass (3) Contents of the monitoring plan recommences operation (where the emissions as follows. If the unit heat for units not subject to an Acid Rain initial quarterly report contains hourly input is determined using a flow emissions limitation. Prior to January 1, data beginning with the first hour of monitor and a diluent monitor, report 2009, each monitoring plan shall recommenced operation of the unit). NOX mass emissions using the contain the information in § 75.53(e)(1) Each electronic report must be maximum potential NOX emission rate, or § 75.53(g)(1) in electronic format and submitted to the Administrator within the maximum potential flow rate, and the information in § 75.53(e)(2) or 30 days following the end of each either the maximum potential CO2 § 75.53(g)(2) in hardcopy format. On and calendar quarter. Except as otherwise concentration or the minimum potential after January 1, 2009, each monitoring provided in § 75.64(a)(4) and (a)(5), each O2 concentration (as applicable). The plan shall contain the information in electronic report shall include the maximum potential NOX emission rate § 75.53(g)(1) in electronic format and the information provided in paragraphs may be specific to the type of fuel information in § 75.53(g)(2) in hardcopy (f)(1)(i) through (1)(vi) of this section, combusted in the unit during the bypass format, only. In addition, to the extent and shall also include the date of report (see § 75.33(c)(8)). If the unit heat input applicable, prior to January 1, 2009, generation. Prior to January 1, 2009, is determined using a fuel flowmeter, in each monitoring plan shall contain the each report shall include the facility accordance with appendix D to this information in § 75.53(f)(1)(i), (f)(2)(i), information provided in paragraphs part, report NOX mass emissions as the and (f)(4) or § 75.53(h)(1)(i), and (h)(2)(i) (f)(1)(i)(A) and (B) of this section, for product of the maximum potential NOX in electronic format and the information each affected unit or group of units emission rate and the actual measured in § 75.53(f)(1)(ii) and (f)(2)(ii) or monitored at a common stack. On and hourly heat input rate. Alternatively, for § 75.53(h)(1)(ii) and (h)(2)(ii) in after January 1, 2009, only the facility a unit with NOX add-on emission hardcopy format. On and after January identification information provided in controls, for each unit operating hour in 1, 2009, each monitoring plan shall paragraph (f)(1)(i)(A) of this section is which the bypass stack is used but the contain the information in required. add-on NOX emission controls are not § 75.53(h)(1)(i), and (h)(2)(i) in * * * * * bypassed, the owner or operator may electronic format and the information in (ii) * * * report the maximum controlled NOX § 75.53(h)(1)(ii) and (h)(2)(ii) in (K) Supplementary RATA information emission rate (MCR) instead of the hardcopy format, only. For units using required under § 75.59(a)(7), except that: maximum potential NOX emission rate the low mass emissions excepted (1) The applicable data elements provided that the add-on controls are methodology under § 75.19, prior to under § 75.59(a)(7)(ii)(A) through (T) documented to be operating properly, as January 1, 2009, the monitoring plan and under § 75.59(a)(7)(iii)(A) through described in the quality assurance/ shall include the additional information (M) shall be reported for flow RATAs at quality control program for the unit, in § 75.53(f)(5)(i) and (f)(5)(ii) or circular or rectangular stacks (or ducts) required by section 1 in appendix B of § 75.53(h)(4)(i) and (h)(4)(ii). On and in which angular compensation for yaw this part. To provide the necessary after January 1, 2009, for units using the and/or pitch angles is used (i.e., Method

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2F or 2G in appendices A–1 and A–2 to n. Revising paragraph (c)(7)(iii)(L); (E) Data Validation. For second and part 60 of this chapter), with or without o. Revising paragraph (c)(8)(ii); and third quarter linearity checks performed wall effects adjustments; p. Revising paragraph (c)(11). by the applicable deadline (i.e., April 30 (2) The applicable data elements The revisions read as follows: or July 30), data validation shall be done under § 75.59(a)(7)(ii)(A) through (T) in accordance with sections 2.2.3(a), (b), and under § 75.59(a)(7)(iii)(A) through § 75.74 Annual and ozone season monitoring and reporting requirements. (c), (e), and (h) of Appendix B to this (M) shall be reported for any flow RATA part. However, if a required linearity run at a circular stack in which Method * * * * * check for the second calendar quarter is 2 in appendices A–1 and A–2 to part 60 (c) * * * not completed by April 30, or if a of this chapter is used and a wall effects (2) * * * required linearity check for the third (i) * * * adjustment factor is determined by calendar quarter is not completed by (D) If the linearity check is not direct measurement; July 30, data from the monitoring completed by April 30, data validation (3) The data under § 75.59(a)(7)(ii)(T) system (or range) shall be invalid, shall be determined in accordance with shall be reported for all flow RATAs at beginning with the first unit operating paragraph (c)(3)(ii)(E) of this section. circular stacks in which Method 2 in hour on or after May 1 or July 31, (ii) * * * appendices A–1 and A–2 to part 60 of respectively. The owner or operator this chapter is used and a default wall (F) Data Validation. For each RATA that is performed by April 30, data shall continue to invalidate all data effects adjustment factor is applied; and from the CEMS until either: (4) The data under § 75.59(a)(7)(ix)(A) validation shall be done according to sections 2.3.2(a)–(j) of appendix B to (1) The required linearity check of the through (F) shall be reported for all flow CEMS has been performed and passed; RATAs at rectangular stacks or ducts in this part. However, if a required RATA is not completed by April 30, data from or which Method 2 in appendices A–1 and (2) A probationary calibration error A–2 to part 60 of this chapter is used the monitoring system shall be invalid, beginning with the first unit operating test of the CEMS is passed in and a wall effects adjustment factor is accordance with § 75.20(b)(3)(ii). Once applied. hour on or after May 1. The owner or operator shall continue to invalidate all the probationary calibration error test * * * * * data from the CEMS until either: has been passed, the owner or operator 35. Section 75.74 is amended by: (1) The required RATA of the CEMS shall perform the required linearity a. Removing the phrase ‘‘In the time has been performed and passed; or check in accordance with the period prior to the start of the current (2) A probationary calibration error conditional data validation provisions ozone season (i.e., in the period test of the CEMS is passed in and within the 168 unit or stack extending from October 1 of the accordance with § 75.20(b)(3)(ii). Once operating hour time frame specified in previous calendar year through April 30 the probationary calibration error test § 75.20(b)(3) (subject to the restrictions of the current calendar year), the’’, and has been passed, the owner or operator in paragraph (c)(3)(xii) of this section), adding in its place the word ‘‘The’’, in shall perform the required RATA in and the term ‘‘quality assurance’’ shall paragraph (c)(2) introductory text; accordance with the conditional data apply instead of the term b. Adding the words ‘‘in the second validation provisions and within the ‘‘recertification.’’ However, in lieu of the calendar quarter no later than April 30’’ 720 unit or stack operating hour time provisions in § 75.20(b)(3)(ix), the to the end of paragraph (c)(2)(i) frame specified in § 75.20(b)(3) (subject owner or operator shall follow the introductory text; to the restrictions in paragraph applicable provisions in paragraphs c. Removing the phrase ‘‘of the current (c)(3)(xii) of this section), and the term (c)(3)(xi) and (c)(3)(xii) of this section. calendar year’’ from the first sentence, ‘‘quality assurance’’ shall apply instead (F) A pre-season linearity check and removing the last sentence of of the term ‘‘recertification.’’ However, performed and passed in April satisfies paragraph (c)(2)(i)(C); in lieu of the provisions in the linearity check requirement for the d. Revising paragraph (c)(2)(i)(D); second quarter. e. Adding the words ‘‘in the first or § 75.20(b)(3)(ix), the owner or operator shall follow the applicable provisions in (G) The third quarter linearity check second calendar quarter, but no later requirement in paragraph (c)(3)(ii)(B) of than April 30’’ to the end of the first paragraphs (c)(3)(xi) and (c)(3)(xii) of this section. this section is waived if: sentence, and by removing the second (1) Due to infrequent unit operation, sentence of paragraph (c)(2)(ii) (3) * * * (ii) For each gas monitor required by the 168 operating hour conditional data introductory text; this subpart, linearity checks shall be validation period associated with a pre- f. Removing the words ‘‘of the current season linearity check extends into the calendar year’’ from paragraph performed in the second and third calendar quarters, as follows: third quarter; and (c)(2)(ii)(E); (2) A linearity check is performed and g. Revising paragraph (c)(2)(ii)(F); (A) For the second calendar quarter, the pre-ozone season linearity check passed within that conditional data h. Removing paragraphs (c)(2)(ii)(G) validation period. and (c)(2)(ii)(H); required under paragraph (c)(2)(i) of this i. Revising paragraph (c)(3)(ii); section shall be performed by April 30. * * * * * j. Removing and reserving paragraphs (B) For the third calendar quarter, a (6) * * * (c)(3)(vi) through (viii); linearity check shall be performed and (iii) For the time periods described in k. Removing all occurrences of the passed no later than July 30. paragraphs (c)(2)(i)(C) and (c)(2)(ii)(E) of words ‘‘§ 75.31, § 75.33, or § 75.37’’ and (C) Conduct each linearity check in this section, hourly emission data and adding in their place the words accordance with the general procedures the results of all daily calibration error ‘‘§§ 75.31 through 75.37’’ in paragraphs in section 6.2 of appendix A to this part, tests and flow monitor interference (c)(3)(xi), (c)(3)(xii)(A), and (c)(3)(xii)(B); except that the data validation checks shall be recorded. The owner or l. Revising paragraph (c)(6)(iii); procedures in sections 6.2(a) through (f) operator may opt to report unit m. Removing the words ‘‘October 1 of of appendix A do not apply. operating data, daily calibration error the previous calendar year’’ and adding (D) Each linearity check shall be done test and flow monitor interference check in its place the words ‘‘January 1’’ in ‘‘hands-off,’’ as described in section results, and hourly emission data in the paragraph (c)(6)(v); 2.2.3(c) of appendix B to this part. time period from April 1 through April

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30. However, only the data recorded in 37. Section 75.81 is amended by: of this part), or Method 30B is used, the time period from May 1 through a. Removing the words ‘‘or § 75.12(b)’’ paired samples are required for each test September 30 shall be used for NOX and ‘‘or § 75.12,’’ from paragraph (a)(3); run and the runs must be long enough mass compliance determination; b. Revising paragraph (a)(4); to ensure that sufficient Hg is collected * * * * * c. Revising paragraph (c)(1); to analyze. When Method 29 in (7) * * * d. Revising paragraph (c)(2); appendix A–8 to part 60 of this chapter (iii) * * * e. Removing Eq. 1 from paragraph or the Ontario Hydro method is used, (L) In § 75.34(a)(3) and (a)(5), the (d)(1); the test results shall be based on the phrases ‘‘720 quality-assured monitor f. Revising paragraph (d)(2); vapor phase Hg collected in the back- operating hours within the ozone g. Adding paragraph (d)(4)(iv); and half of the sampling trains (i.e., the non- season’’ and ‘‘2160 quality-assured h. Revising paragraphs (d)(5) and filterable impinger catches). For each monitor operating hours within the (e)(1). Method 29 in appendix A–8 to part 60 ozone season’’ apply instead of ‘‘720 The revisions and additions read as of this chapter, Method 30B, or Ontario quality-assured monitor operating follows: Hydro method test run, the paired trains hours’’ and ‘‘2160 quality-assured § 75.81 Monitoring of Hg mass emissions must meet the relative deviation (RD) monitor operating hours’’, respectively. and heat input at the unit level. requirement specified in § 75.22(a)(7) or (8) * * * Method 30B, as applicable. If the RD (ii) For units with add-on emission * * * * * specification is met, the results of the controls, using the missing data options (a) * * * two samples shall be averaged in §§ 75.34(a)(1) through 75.34(a)(5), the (4) If heat input is required to be arithmetically. range of operating parameters for add-on reported under the applicable State or emission controls (as defined in the Federal Hg mass emission reduction (iii) If the unit is equipped with flue quality assurance/quality control program that adopts the requirements of gas desulfurization or add-on Hg program for the unit required by section this subpart, the owner or operator must emission controls, the controls must be 1 in appendix B to this part) and meet the general operating requirements operating normally during the testing, information for verifying proper for a flow monitoring system and an O2 and, for the purpose of establishing operation of the add-on emission or CO2 monitoring system to measure proper operation of the controls, the controls during missing data periods, as heat input rate. owner or operator shall record described in § 75.34(d). * * * * * parametric data or SO2 concentration * * * * * (c) * * * data in accordance with § 75.58(b)(3)(i). (11) Units may qualify to use the (1) The owner or operator must (iv) If two or more of units of the same perform Hg emission testing one year or optional NOX mass emissions type qualify as a group of identical units less before the compliance date in estimation protocol for gas-fired and oil- in accordance with § 75.19(c)(1)(iv)(B), § 75.80(b), to determine the Hg fired peaking units in appendix E to this the owner or operator may test a subset concentration (i.e., total vapor phase Hg) part on an ozone season basis. In order of these units in lieu of testing each unit in the effluent. to be allowed to use this methodology, individually. If this option is selected, (i) The testing shall be performed the unit must meet the definition of the number of units required to be using one of the Hg reference methods ‘‘peaking unit’’ in § 72.2 of this chapter, tested shall be determined from Table listed in § 75.22(a)(7), and shall consist except that the words ‘‘year’’, ‘‘calendar LM–4 in § 75.19. For the purposes of the year’’ and ‘‘calendar years’’ in that of a minimum of 3 runs at the normal unit operating load, while combusting required retests under paragraph (d)(4) definition shall be replaced by the of this section, EPA strongly words ‘‘ozone season’’, ‘‘ozone season’’, coal. The coal combusted during the recommends that (to the extent and ‘‘ozone seasons’’, respectively. In testing shall be representative of the practicable) the same subset of the units addition, in the definition of the term coal that will be combusted at the start not be tested in two successive retests, ‘‘capacity factor’’ in § 72.2 of this of the Hg mass emissions reduction and that every effort be made to ensure chapter, the word ‘‘annual’’ shall be program (preferably from the same replaced by the words ‘‘ozone season’’ source(s) of supply). that each unit in the group of identical and the number ‘‘8,760’’ shall be (ii) The minimum time per run shall units is tested in a timely manner. replaced by the number ‘‘3,672’’. be 1 hour if Method 30A is used. If (2)(i) Based on the results of the either Method 29 in appendix A–8 to emission testing, Equation 1 of this § 75.80 [Amended] part 60 of this chapter, ASTM D6784– section shall be used to provide a 36. Section 75.80(f)(1)(iii) is amended 02 (the Ontario Hydro method) conservative estimate of the annual Hg by removing the words ‘‘or § 75.12(b),’’. (incorporated by reference under § 75.6 mass emissions from the unit:

= () EN K CHg Q max Eq. 1

µ Where: CHg = The highest Hg concentration ( g/scm) operation is restricted to less than 8,760 µ E = Estimated annual Hg mass emissions from any of the test runs or 0.50 g/scm, hours per year). If the permit restricts from the affected unit, (ounces/year) whichever is greater the annual unit heat input but not the Q = Maximum potential flow rate, K = Units conversion constant, 9.978 x 10¥10 max number of annual unit operating hours, µ determined according to section 2.1.4.1 oz-scm/ g-scf of appendix A to this part, (scfh) the owner or operator may divide the N = Either 8,760 (the number of hours in a (ii) Equation 1 of this section assumes allowable annual heat input (mmBtu) by year) or the maximum number of that the unit operates at its maximum the design rated heat input capacity of operating hours per year (if less than potential flow rate, either year-round or the unit (mmBtu/hr) to determine the 8,760) allowed by the unit’s Federally- value of ‘‘N’’ in Equation 1. Also, note enforceable operating permit. for the maximum number of hours allowed by the operating permit (if unit that if the highest Hg concentration

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measured in any test run is less than paragraphs (c) and (d) of this section. If testing option is chosen, the testing 0.50 µg/scm, a default value of 0.50 µg/ the test results demonstrate that the shall be done at a combined load scm must be used in the calculations. units sharing the common stack qualify corresponding to the designated normal * * * * * as low mass emitters, the default Hg load level (low, mid, or high) for the (d) * * * concentration used for reporting Hg units sharing the common stack, in (2) Following initial certification, the mass emissions at the common stack accordance with section 6.5.2.1 of same default Hg concentration value shall either be the highest value appendix A to this part. Provided that that was used to estimate the unit’s obtained in any test run or 0.50 µg/scm, the required load level is attained and annual Hg mass emissions under whichever is greater. that all of the units sharing the stack are paragraph (c) of this section shall be (i) The initial emission testing fed from the same on-site coal supply reported for each unit operating hour, required under paragraph (c) of this during normal operation, it is not except as otherwise provided in section may be performed at the necessary for all of the units sharing the paragraph (d)(4)(iv) or (d)(6) of this common stack if the following stack to be in operation during a retest. section. The default Hg concentration conditions are met. Otherwise, testing of However, if two or more of the units value shall be updated as appropriate, the individual units (or a subset of the that share the stack are fed from according to paragraph (d)(5) of this units, if identical, as described in different on-site coal supplies (e.g., one section. paragraph (c)(1)(iv) of this section) is unit burns low-sulfur coal for required: compliance and the other combusts * * * * * (A) The testing must be done at a (4) * * * higher-sulfur coal), then either: combined load corresponding to the (iv) An additional retest is required (A) Perform the retest with all units in designated normal load level (low, mid, when there is a change in the coal rank normal operation; or or high) for the units sharing the (B) If this is not possible, due to of the primary fuel (e.g., when the common stack, in accordance with circumstances beyond the control of the primary fuel is switched from section 6.5.2.1 of appendix A to this owner or operator (e.g., a forced unit bituminous coal to lignite). Use ASTM part; outage), perform the retest with the D388–99 (incorporated by reference (B) All of the units that share the stack available units operating and assess the under § 75.6 of this part) to determine must be operating in a normal, stable test results as follows. Use the Hg the coal rank. The four principal coal manner and at typical load levels during concentration obtained in the retest for ranks are anthracitic, bituminous, the emission testing. The coal reporting purposes under this part if the subbituminous, and lignitic. The ranks combusted in each unit during the concentration is greater than or equal to of anthracite coal refuse (culm) and testing must be representative of the the value obtained in the most recent bituminous coal refuse (gob) shall be coal that will be combusted in that unit test. If the retested value is lower than anthracitic and bituminous, at the start of the Hg mass emission the Hg concentration from the previous respectively. The retest shall be reduction program (preferably from the test, continue using the higher value performed within 720 unit operating same source(s) of supply); from the previous test for reporting hours of the change. (C) If flue gas desulfurization and/or purposes and use that same higher Hg (5) The default Hg concentration used add-on Hg emission controls are used to concentration value in Equation 1 to for reporting under § 75.84 shall be reduce level the emissions exiting from determine the due date for the next updated after each required retest. This the common stack, these emission retest, as described in paragraph includes retests that are required prior controls must be operating normally (e)(1)(iii) of this section. to the compliance date in § 75.80(b). during the emission testing and, for the (iii) If testing is done at the common The updated value shall either be the purpose of establishing proper operation stack, the due date for the next highest Hg concentration measured in of the controls, the owner or operator scheduled retest shall be determined as any of the test runs or 0.50 µg/scm, shall record parametric data or SO2 follows: whichever is greater. The updated value concentration data in accordance with (A) Substitute the maximum potential shall be applied beginning with the first § 75.58(b)(3)(i); flow rate for the common stack (as unit operating hour in which Hg (D) When calculating E, the estimated defined in the monitoring plan) and the emissions data are required to be maximum potential annual Hg mass highest Hg concentration from any test reported after completion of the retest, emissions from the stack, substitute the run (or 0.50 µg/scm, if greater) into except as provided in paragraph maximum potential flow rate through Equation 1; (d)(4)(iv) of this section, where the need the common stack (as defined in the (B) If the value of E obtained from to retest is triggered by a change in the monitoring plan) and the highest Equation 1, rounded to the nearest coal rank of the primary fuel. In that concentration from any test run (or 0.50 ounce, is greater than 144 times the case, apply the updated default Hg µg/scm, if greater) into Equation 1; number of units sharing the common concentration beginning with the first (E) The calculated value of E shall be stack, but less than or equal to 464 times unit operating hour in which Hg divided by the number of units sharing the number of units sharing the stack, emissions are required to be reported the stack. If the result, when rounded to the next retest is due in two QA after the date and hour of the fuel the nearest ounce, does not exceed 464 operating quarters; switch. ounces, the units qualify to use the low (C) If the value of E obtained from * * * * * mass emission methodology; and Equation 1, rounded to the nearest (e) * * * (F) If the units qualify to use the ounce, is less than or equal to 144 times (1) The methodology may not be used methodology, the default Hg the number of units sharing the for reporting Hg mass emissions at a concentration used for reporting at the common stack, the next retest is due in common stack unless all of the units common stack shall be the highest value four QA operating quarters. using the common stack are affected obtained in any test run or 0.50 µg/scm, * * * * * units and the units’ combined potential whichever is greater; or 38. Section 75.82 is amended by: to emit does not exceed 464 ounces of (ii) The retests required under a. Adding paragraph (b)(3); Hg per year times the number of units paragraph (d)(4) of this section may also b. Removing the word ‘‘or’’ at the end sharing the stack, in accordance with be done at the common stack. If this of paragraph (c)(2);

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c. Removing the period at the end of input rate at each stack or duct (mmBtu/ and under § 75.59(a)(7)(iii)(A) through paragraph (c)(3), and adding in its place hr), according to section 5.2 of appendix (M) shall be reported for flow RATAs at the phrase ‘‘; or’’; F to this part; and circular or rectangular stacks (or ducts) d. Adding paragraph (c)(4); (ii) Calculate the hourly heat input at in which angular compensation for yaw e. Removing the word ‘‘or’’ at the end each stack or duct (in mmBtu) by and/or pitch angles is used (i.e., Method of paragraph (d)(1); multiplying the measured stack (or 2F or 2G in appendices A–1 and A–2 to f. Removing the period at the end of duct) heat input rate by the part 60 of this chapter), with or without paragraph (d)(2), and adding in its place corresponding stack (or duct) operating wall effects adjustments; the phrase ‘‘; or’’; and time; and (2) The applicable data elements g. Adding paragraph (d)(3). (iii) Determine the hourly unit heat under § 75.59(a)(7)(ii)(A) through (T) The revisions and additions read as input by summing the hourly stack (or and under § 75.59(a)(7)(iii)(A) through follows: duct) heat input values. (M) shall be reported for any flow RATA § 75.82 Monitoring of Hg mass emissions 39. Section 75.84 is amended by: run at a circular stack in which Method and heat input at common and multiple a. Removing ‘‘§ 75.53(e)(1)’’ and 2 in appendices A–1 and A–2 to part 60 stacks. ‘‘§ 75.53(e)(2)’’ and adding in their place of this chapter is used and a wall effects * * * * * ‘‘§ 75.53(g)(1)’’ and ‘‘§ 75.53(g)(2)’’, in adjustment factor is determined by (b) * * * paragraph (c)(3); direct measurement; (3) If the monitoring option in b. Removing the number ‘‘45’’ and (3) The data under § 75.59(a)(7)(ii)(T) paragraph (b)(2) of this section is adding in its place the number ‘‘21’’ in shall be reported for all flow RATAs at selected, and if heat input is required to paragraphs (e)(1) and (e)(2); circular stacks in which Method 2 in be reported under the applicable State c. Revising paragraph (f)(1) appendices A–1 and A–2 to part 60 of or Federal Hg mass emission reduction introductory text; this chapter is used and a default wall program that adopts the requirements of d. Removing ‘‘§ 75.64(a)(1)’’ and effects adjustment factor is applied; and this subpart, the owner or operator shall adding in its place ‘‘§ 75.64(a)(3)’’ in (4) The data under § 75.59(a)(7)(ix)(A) either: paragraph (f)(1)(i); through (F) shall be reported for all flow (i) Apportion the common stack heat e. Removing the phrase ‘‘paragraph RATAs at rectangular stacks or ducts in input rate to the individual units (a)’’ and adding in its place the phrase which Method 2 in appendices A–1 and according to the procedures in ‘‘paragraphs (a) and (b)’’ in paragraph A–2 to part 60 of this chapter is used § 75.16(e)(3); or (f)(1)(ii) introductory text; and and a wall effects adjustment factor is (ii) Install a flow monitoring system f. Revising paragraph (f)(1)(ii)(I). applied. and a diluent gas (O2 or CO2) monitoring The revisions read as follows: * * * * * system in the duct leading from each 40. Appendix A to Part 75 is amended affected unit to the common stack, and § 75.84 Recordkeeping and reporting. by: measure the heat input rate in each * * * * * a. Revising paragraph (c) of section duct, according to section 5.2 of (f) * * * 2.1.1.1; appendix F to this part. (1) Electronic submission. Electronic b. Revising paragraph (b)(2) of section (c) * * * quarterly reports shall be submitted, 2.1.1.5; (4) If the monitoring option in beginning with the calendar quarter c. Revising paragraph (b)(2) of section paragraph (c)(1) or (c)(2) of this section containing the compliance date in 2.1.2.5; is selected, and if heat input is required § 75.80(b), unless otherwise specified in d. Adding a new fourth sentence after to be reported under the applicable the final rule implementing a State or the third sentence of section 2.1.3; State or Federal Hg mass emission Federal Hg mass emissions reduction e. Revising paragraph (3) of section reduction program that adopts the program that adopts the requirements of 3.2; requirements of this subpart, the owner this subpart. The designated f. Removing the phrase ‘‘continuous or operator shall: representative for an affected unit shall emission monitoring system(s)’’ and (i) Use the installed flow and diluent report the data and information in this adding in its place the phrase monitors to determine the hourly heat paragraph (f)(1) and the applicable ‘‘monitoring component of a continuous input rate at each stack (mmBtu/hr), compliance certification information in emission monitoring system that is’’ in according to section 5.2 of appendix F paragraph (f)(2) of this section to the section 3.5; to this part; and Administrator quarterly, except as g. Adding the words ‘‘that meet the (ii) Calculate the hourly heat input at otherwise provided in § 75.64(a) for definition for a NIST Traceable each stack (in mmBtu) by multiplying units in long-term cold storage. Each Reference Material (NTRM) provided in the measured stack heat input rate by electronic report must be submitted to § 72.2.’’ after the word ‘‘gases’’ in the corresponding stack operating time; the Administrator within 30 days section 5.1.3; and following the end of each calendar h. Revising sections 5.1.4 and 5.1.9; (iii) Determine the hourly unit heat i. Redesignating section 6.1 as section input by summing the hourly stack heat quarter. Except as otherwise provided in § 75.64(a)(4) and (a)(5), each electronic 6.1.1 and adding a new heading for 6.1; input values. j. Adding section 6.1.2; (d) * * * report shall include the date of report k. Revising the second and third (3) If the monitoring option in generation and the following sentences and adding a new fourth paragraph (d)(1) or (d)(2) of this section information for each affected unit or sentence to section 6.2, introductory is selected, and if heat input is required group of units monitored at a common text; to be reported under the applicable stack: l. Revising section 6.2(g); State or Federal Hg mass emission * * * * * m. Adding paragraph (h) to section reduction program that adopts the (ii) * * * 6.2; requirements of this subpart, the owner (I) Supplementary RATA information n. Adding a new fourth sentence to or operator shall: required under § 75.59(a)(7), except that: section 6.3.1, introductory text; (i) Use the installed flow and diluent (1) The applicable data elements o. Revising the introductory text of monitors to determine the hourly heat under § 75.59(a)(7)(ii)(A) through (T) section 6.4;

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p. Revising paragraph (e) in section Products (High-Temperature Method); ASTM percent of the reference value at any of the 6.5; D129–00, Standard Test Method for Sulfur in three gas levels. To calculate the q. Removing the words ‘‘that uses Petroleum Products (General Bomb Method); measurement error at each level, take the CEMS to account for its emissions and ASTM D2622–98, Standard Test Method for absolute value of the difference between the Sulfur in Petroleum Products by Wavelength reference value and mean CEM response, for each unit that uses the optional fuel Dispersive X-ray Fluorescence Spectrometry, divide the result by the reference value, and flow-to-load quality assurance test in for sulfur content of solid or liquid fuels; then multiply by 100. Alternatively, the section 2.1.7 of appendix D to this part’’ ASTM D3176–89 (Reapproved 2002), results at any gas level are acceptable if the from paragraph (a) of section 6.5.2.1; Standard Practice for Ultimate Analysis of absolute value of the difference between the r. Adding the words ‘‘or mmBtu/hr’’ Coal and Coke; ASTM D240–00, Standard average monitor response and the average after the words ‘‘klb/hr of steam Test Method for Heat of Combustion of reference value, i.e., |R¥A| in Equation A–4 µ 3 production’’, and by adding the words Liquid Hydrocarbon Fuels by Bomb of this appendix, does not exceed 0.8 g/m . ‘‘or mmBtu/hr of thermal output’’ after Calorimeter; or ASTM D5865–01a, Standard The principal and alternative performance Test Method for Gross Calorific Value of Coal specifications in this section also apply to the the words ‘‘thousands of lb/hr of steam and Coke (all incorporated by reference single-level system integrity check described load’’ in paragraph (a)(1) of section under § 75.6 of this part). in section 2.6 of appendix B to this part. 6.5.2.1; * * * * * * * * * * s. Adding the words ‘‘and units using 2.1.1.5 * * * 5.1 Reference Gases the low mass emissions (LME) excepted (b) * * * methodology under § 75.19’’ after the * * * * * (2) For units with two SO2 spans and 5.1.4 EPA Protocol Gases words ‘‘(except for peaking units’’ in the ranges, if the low range is exceeded, no (a) An EPA Protocol Gas is a calibration gas second sentence in paragraph (c) of further action is required, provided that the mixture prepared and analyzed according to section 6.5.2.1; high range is available and its most recent Section 2 of the ‘‘EPA Traceability Protocol t. Adding the words ‘‘and LME units’’ calibration error test and linearity check have for Assay and Certification of Gaseous after the words ‘‘For peaking units’’ in not expired. However, if either of these Calibration Standards,’’ September 1997, quality assurance tests has expired and the EPA–600/R–97/121 or such revised the third sentence in paragraph (d)(1) of high range is not able to provide quality section 6.5.2.1; procedure as approved by the Administrator assured data at the time of the low range (EPA Traceability Protocol). u. Revising paragraph (e) of section exceedance or at any time during the 6.5.2.1; (b) An EPA Protocol Gas must have a continuation of the exceedance, report the specialty gas producer-certified uncertainty MPC as the SO concentration until the v. Revising paragraph (c) in section 2 (95-percent confidence interval) that must readings return to the low range or until the 6.5.6; not be greater than 2.0 percent of the certified high range is able to provide quality assured w. Removing all occurrences of the concentration (tag value) of the gas mixture. data (unless the reason that the high-scale words ‘‘section 3.2’’ and adding in its The uncertainty must be calculated using the range is not able to provide quality assured statistical procedures (or equivalent place the words ‘‘section 8.1.3’’ in data is because the high-scale range has been statistical techniques) that are listed in paragraph (b)(3) of section 6.5.6, exceeded; if the high-scale range is exceeded Section 2.1.8 of the EPA Traceability paragraph (a) of section 6.5.6.2, and follow the procedures in paragraph (b)(1) of Protocol. paragraph (a) of section 6.5.6.3; this section). (c) On and after January 1, 2009, a specialty x. Revising section 6.5.10; * * * * * gas producer advertising calibration gas y. Adding two sentences at the end of 2.1.2.5 * * * certification with the EPA Traceability section 7.6.1; (b) * * * Protocol or distributing calibration gases as z. Revising the terms Rref and Lavg, in (2) For units with two NOX spans and ‘‘EPA Protocol Gas’’ must participate in the paragraph (a) of section 7.7; ranges, if the low range is exceeded, no EPA Protocol Gas Verification Program aa. Revising the terms (GHR)ref and further action is required, provided that the (PGVP) described in Section 2.1.10 of the high range is available and its most recent Lavg, in paragraph (c) of section 7.7; and EPA Traceability Protocol or it cannot use bb. Removing Figure 6 and adding in calibration error test and linearity check have ‘‘EPA’’ in any form of advertising for these not expired. However, if either of these products, unless approved by the its place Figures 6a and 6b and revising quality assurance tests has expired and the A through F and adding G at the end of Administrator. A specialty gas producer not high range is not able to provide quality participating in the PGVP may not certify a appendix A. assured data at the time of the low range calibration gas as an EPA Protocol Gas, The revisions and additions read as exceedance or at any time during the unless approved by the Administrator. follows: continuation of the exceedance, report the (d) A copy of EPA–600/R–97/121 is MPC as the NOX concentration until the Appendix A to Part 75—Specifications available from the National Technical readings return to the low range or until the Information Service, 5285 Port Royal Road, and Procedures high range is able to provide quality assured Springfield, VA, 703–605–6585 or http:// * * * * * data (unless the reason that the high-scale www.ntis.gov, and from http://www.epa.gov/ range is not able to provide quality assured ttn/emc/news.html or http://www.epa.gov/ 2. Equipment Specifications data is because the high-scale range has been appcdwww/tsb/index.html. 2.1.1.1 Maximum Potential Concentration exceeded; if the high-scale range is exceeded, follow the procedures in paragraph (b)(1) of * * * * * * * * * * this section). 5.1.9 Mercury Standards (c) When performing fuel sampling to For 7-day calibration error tests of Hg determine the MPC, use ASTM Methods: * * * * * concentration monitors and for daily ASTM D3177–02 (Reapproved 2007), 2.1.3 CO2 and O2 Monitors calibration error tests of Hg monitors, either Standard Test Methods for Total Sulfur in the * * * An alternative CO2 span value below NIST-traceable elemental Hg standards (as Analysis Sample of Coal and Coke; ASTM 6.0 percent may be used if an appropriate defined in § 72.2 of this chapter) or a NIST- D4239–02, Standard Test Methods for Sulfur technical justification is included in the traceable source of oxidized Hg (as defined in the Analysis Sample of Coal and Coke hardcopy monitoring plan. in § 72.2 of this chapter) may be used. For Using High-Temperature Tube Furnace * * * * * linearity checks, NIST-traceable elemental Hg Combustion Methods; ASTM D4294–98, 3.2 * * * standards shall be used. For 3-level and Standard Test Method for Sulfur in (3) For the linearity check and the 3-level single-point system integrity checks under Petroleum and Petroleum Products by system integrity check of an Hg monitor, § 75.20(c)(1)(vi), sections 6.2(g) and 6.3.1 of Energy-Dispersive X-ray Fluorescence which are required, respectively, under this appendix, and sections 2.1.1, 2.2.1 and Spectrometry; ASTM D1552–01, Standard § 75.20(c)(1)(ii) and (c)(1)(vi), the 2.6 of appendix B to this part, a NIST- Test Method for Sulfur in Petroleum measurement error shall not exceed 10.0 traceable source of oxidized Hg shall be used.

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Alternatively, other NIST-traceable standards described in § 75.20(c)(1)(vi) and in sections Refer to Figures 6a and 6b in this appendix may be used for the required checks, subject 2.1.1, 2.2.1 and 2.6 of appendix B to this part. for example calculations of upscale and to the approval of the Administrator. (h) For Hg concentration monitors, if downscale cycle times. Report the slower of Notwithstanding these requirements, Hg moisture is added to the calibration gas the two cycle times (upscale or downscale) calibration standards that are not NIST- during the required linearity checks or as the cycle time for the analyzer. Prior to traceable may be used for the tests described system integrity checks, the moisture content January 1, 2009 for the NOX-diluent in this section until December 31, 2009. of the calibration gas must be accounted for. continuous emission monitoring system test, However, on and after January 1, 2010, only Under these circumstances, the dry basis either record and report the longer cycle time NIST-traceable calibration standards shall be concentration of the calibration gas shall be of the two component analyzers as the used for these tests. used to calculate the linearity error or system cycle time or record the cycle time for * * * * * measurement error (as applicable). each component analyzer separately (as 6.1 General Requirements * * * * * applicable). On and after January 1, 2009, record the cycle time for each component * * * * * 6.3.1 Gas Monitor 7-day Calibration Error Test analyzer separately. For time-shared systems, 6.1.2 Requirements for Air Emission perform the cycle time tests at each probe Testing Bodies * * * Also for Hg monitors, if moisture is added to the calibration gas, the added locations that will be polled within the same (a) On and after January 1, 2009, any Air 15-minute period during monitoring system Emission Testing Body (AETB) conducting moisture must be accounted for and the dry- basis concentration of the calibration gas operations. To determine the cycle time for relative accuracy test audits of CEMS and time-shared systems, at each monitoring sorbent trap monitoring systems under this shall be used to calculate the calibration error. location, report the sum of the cycle time part must conform to the requirements of observed at that monitoring location plus the ASTM D7036–04 (incorporated by reference * * * * * sum of the time required for all purge cycles under § 75.6 of this part). This section is not 6.4. Cycle Time Test (as determined by the continuous emission applicable to daily operation, daily Perform cycle time tests for each pollutant monitoring system manufacturer) at each of calibration error checks, daily flow concentration monitor and continuous the probe locations of the time-shared interference checks, quarterly linearity emission monitoring system while the unit is systems. For monitors with dual ranges, operating, according to the following checks or routine maintenance of CEMS. report the test results for each range procedures. Use a zero-level and a high-level (b) The AETB shall provide to the affected separately. Cycle time test results are calibration gas (as defined in section 5.2 of source(s) certification that the AETB operates acceptable for monitor or monitoring system this appendix) alternately. For Hg monitors, in conformance with, and that data submitted certification, recertification or diagnostic the calibration gas used for this test may to the Agency has been collected in testing if none of the cycle times exceed 15 accordance with, the requirements of ASTM either be the elemental or oxidized form of minutes. The status of emissions data from a D7036–04 (incorporated by reference under Hg. To determine the downscale cycle time, monitor prior to and during a cycle time test § 75.6 of this part). This certification may be measure the concentration of the flue gas period shall be determined as follows: provided in the form of: emissions until the response stabilizes. (1) A certificate of accreditation of relevant Record the stable emissions value. Inject a * * * * * scope issued by a recognized, national zero-level concentration calibration gas into 6.5 * * * accreditation body; or the probe tip (or injection port leading to the (e) Complete each single-load relative (2) A letter of certification signed by a calibration cell, for in situ systems with no accuracy test audit within a period of 168 member of the senior management staff of the probe). Record the time of the zero gas consecutive unit operating hours, as defined AETB. injection, using the data acquisition and in § 72.2 of this chapter (or, for CEMS (c) The AETB shall either provide a handling system (DAHS). Next, allow the installed on common stacks or bypass stacks, Qualified Individual on-site to conduct or monitor to measure the concentration of the 168 consecutive stack operating hours, as shall oversee all relative accuracy testing zero gas until the response stabilizes. Record defined in § 72.2 of this chapter). carried out by the AETB as required in ASTM the stable ending calibration gas reading. Notwithstanding this requirement, up to 336 D7036–04 (incorporated by reference under Determine the downscale cycle time as the consecutive unit or stack operating hours § 75.6 of this part). The Qualified Individual time it takes for 95.0 percent of the step may be taken to complete the RATA of a Hg shall provide the affected source(s) with change to be achieved between the stable monitoring system, when ASTM 6784–02 copies of the qualification credentials stack emissions value and the stable ending (incorporated by reference under § 75.6 of relevant to the scope of the testing zero gas reading. Then repeat the procedure, this part) or Method 29 in appendix A–8 to conducted. starting with stable stack emissions and part 60 of this chapter is used as the * * * * * injecting the high-level gas, to determine the reference method. For 2-level and 3-level 6.2 Linearity Check (General Procedures) upscale cycle time, which is the time it takes flow monitor RATAs, complete all of the * * * Notwithstanding these for 95.0 percent of the step change to be RATAs at all levels, to the extent practicable, achieved between the stable stack emissions within a period of 168 consecutive unit (or requirements, if the SO2 or NOX span value for a particular monitor range is ≤ 30 ppm, value and the stable ending high-level gas stack) operating hours; however, if this is not that range is exempted from the linearity reading. Use the following criteria to assess possible, up to 720 consecutive unit (or when a stable reading of stack emissions or check requirements of this part, for initial stack) operating hours may be taken to calibration gas concentration has been certification, recertification, and for on-going complete a multiple-load flow RATA. attained. A stable value is equivalent to a quality-assurance. For units with two * * * * * reading with a change of less than 2.0 percent measurement ranges (high and low) for a 6.5.2.1 * * * of the span value for 2 minutes, or a reading particular parameter, perform a linearity (e) The owner or operator shall report the with a change of less than 6.0 percent from check on both the low scale (except for SO upper and lower boundaries of the range of 2 the measured average concentration over 6 or NO span values ≤ 30 ppm) and the high operation for each unit (or combination of X minutes. Alternatively, the reading is scale. Note that for a NO -diluent monitoring units, for common stacks), in units of X considered stable if it changes by no more system with two NO measurement ranges, if megawatts or thousands of lb/hr or mmBtu/ X than 0.5 ppm, 0.5 µg/m3 (for Hg), or 0.2% the low NOX scale has a span value ≤ 30 ppm hr of steam production or ft/sec (as CO2 or O2 (as applicable) for two minutes. and is exempt from linearity checks, this (Owners or operators of systems which do applicable), in the electronic monitoring plan does not exempt either the diluent monitor not record data in 1-minute or 3-minute required under § 75.53. Except for peaking or the high NOX scale (if the span is > 30 intervals may petition the Administrator units and LME units, the owner or operator ppm) from linearity check requirements. under § 75.66 for alternative stabilization shall indicate, in the electronic monitoring * * * * * criteria). For monitors or monitoring systems plan, the load level (or levels) designated as (g) For Hg monitors, follow the guidelines that perform a series of operations (such as normal under this section and shall also in section 2.2.3 of this appendix in addition purge, sample, and analyze), time the indicate the two most frequently used load to the applicable procedures in section 6.2 injections of the calibration gases so they will levels. when performing the system integrity checks produce the longest possible cycle time. * * * * *

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6.5.6 * * * SO2; Methods 7, 7A, 7C, 7D or 7E in average Hg concentration measured by the (c) For Hg monitoring systems, use the appendix A–4 to part 60 of this chapter for paired traps in the calculation of ‘‘d’’. same basic approach for traverse point NOX, excluding the exceptions of Method 7E * * * * * in appendix A–4 to part 60 of this chapter selection that is used for the other gas 7.7 * * * identified in § 75.22(a)(5); and for Hg, either monitoring system RATAs, except that the (a) * * * stratification test provisions in sections 8.1.3 ASTM D6784–02 (the Ontario Hydro through 8.1.3.5 of Method 30A shall apply, Method) (incorporated by reference under Rref = Reference value of the flow-to-load rather than the provisions of sections 6.5.6.1 § 75.6 of this part), Method 29 in appendix ratio, from the most recent normal-load through 6.5.6.3 of this appendix. A–8 to part 60 of this chapter, Method 30A, flow RATA, scfh/megawatts, scfh/1000 6.5.10 Reference Methods or Method 30B When using Method 7E in lb/hr of steam, or scfh/(mmBtu/hr of The following methods are from appendix appendix A–4 to part 60 of this chapter for steam output). A to part 60 of this chapter or have been measuring NOX concentration, total NOX, * * * * * both NO and NO2, must be measured. published by ASTM, and are the reference Lavg = Average unit load during the normal- methods for performing relative accuracy test * * * * * load flow RATA, megawatts, 1000 lb/hr audits under this part: Method 1 or 1A in 7.6 Bias Test and Adjustment Factor of steam, or mmBtu/hr of thermal output. appendix A–1 to part 60 of this chapter for * * * * * * * * * * siting; Method 2 in appendices A–1 and A– 7.6.1 * * * To calculate bias for a Hg (c) * * * 2 to part 60 of this chapter or its allowable monitoring system when using the Ontario (GHR) = Reference value of the gross heat alternatives in appendix A to part 60 of this Hydro Method or Method 29 in appendix A– ref rate at the time of the most recent chapter (except for Methods 2B and 2E in 8 to part 60 of this chapter, ‘‘d’’ is, for each normal-load flow RATA, Btu/kwh, Btu/ appendix A–1 to part 60 of this chapter) for data point, the difference between the lb steam load, or Btu heat input/mmBtu stack gas velocity and volumetric flow rate; average Hg concentration value (in µg/m3) Methods 3, 3A or 3B in appendix A–2 to part from the paired Ontario Hydro or Method 29 steam output. 60 of this chapter for O2 and CO2; Method 4 in appendix A–8 to part 60 of this chapter * * * * * in appendix A–3 to part 60 of this chapter sampling trains and the concentration Lavg = Average unit load during the normal- for moisture; Methods 6, 6A or 6C in measured by the monitoring system. For load flow RATA, megawatts, 1000 lb/hr appendix A–4 to part 60 of this chapter for sorbent trap monitoring systems, use the of steam, or mmBtu/hr thermal output.

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A. To determine the upscale cycle time 41. Appendix B to Part 75 is amended Appendix B to Part 75—Quality (Figure 6a), measure the flue gas emissions by: Assurance and Quality Control until the response stabilizes. Record the a. Adding section 1.1.4; Procedures stabilized value (see section 6.4 of this b. Revising section 2.1.1; appendix for the stability criteria). 1. Quality Assurance/Quality Control c. Revising paragraph (2) of section B. Inject a high-level calibration gas into Program the port leading to the calibration cell or 2.1.1.2; * * * * * thimble (Point B). Allow the analyzer to d. Revising paragraph (2) of section 1.1.4 The requirements in section 6.1.2 of stabilize. Record the stabilized value. 2.1.5.1; appendix A to this part shall be met by any C. Determine the step change. The step e. Adding paragraph (3) to section Air Emissions Testing Body (AETB) change is equal to the difference between the 2.1.5.1; performing the semiannual/annual RATAs final stable calibration gas value (Point D) f. Adding a new fourth sentence to described in section 2.3 of this appendix and and the stabilized stack emissions value the Hg emission tests described in §§ 75.81(c) paragraph (e) of section 2.2.3; and 75.81(d)(4). (Point A). g. Revising the terms ‘‘Rh’’ and ‘‘Lh’’ in D. Take 95% of the step change value and paragraph (a) of section 2.2.5; * * * * * add the result to the stabilized stack h. Revising the terms ‘‘(GHR) ’’ and 2. Frequency of Testing emissions value (Point A). Determine the h ‘‘L ’’ in paragraph (a)(2) of section 2.2.5; time at which 95% of the step change h * * * * * 2.1.1 Calibration Error Test occurred (Point C). i. Removing the word ‘‘five’’ and Except as provided in section 2.1.1.2 of E. Calculate the upscale cycle time by adding in its place the word ‘‘twenty’’, this appendix, perform the daily calibration subtracting the time at which the calibration and by removing the word ‘‘years’’ and adding in its place the word ‘‘quarters’’, error test of each gas monitoring system gas was injected (Point B) from the time at (including moisture monitoring systems which 95% of the step change occurred in paragraph (c)(4) of section 2.3.1.3; consisting of wet- and dry-basis O2 analyzers) (Point C). In this example, upscale cycle time j. Revising paragraphs (d) and (g) of according to the procedures in section 6.3.1 = (11¥5) = 6 minutes. section 2.3.2; of appendix A to this part, and perform the F. To determine the downscale cycle time k. Revising paragraphs (a)(2) and (c) of daily calibration error test of each flow (Figure 6b) repeat the procedures above, section 2.3.3; monitoring system according to the except that a zero gas is injected when the l. Adding paragraph (d) to section procedure in section 6.3.2 of appendix A to flue gas emissions have stabilized, and 95% this part. When two measurement ranges 2.3.3; (low and high) are required for a particular of the step change in concentration is subtracted from the stabilized stack m. Revising section 2.6; parameter, perform sufficient calibration emissions value. n. Revising Figure 1; and error tests on each range to validate the data G. Compare the upscale and downscale o. Revising Figure 2. recorded on that range, according to the cycle time values. The longer of these two The revisions and additions read as criteria in section 2.1.5 of this appendix. times is the cycle time for the analyzer. follows: * * * * *

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2.1.1.2 * * * mmBtu heat input/mmBtu thermal has been selected, in which case the (2) For each monitoring system that has output. beginning and end of the out-of-control passed the off-line calibration demonstration, * * * * * period shall be determined in accordance off-line calibration error tests may be used on with § 75.20(b)(3)(vii)(A) and (B). Lh = Hourly unit load, megawatts, 1000 lb/ a limited basis to validate data, in accordance hr of steam, or mmBtu/hr thermal output; (2) This paragraph (g)(2) applies only to a with paragraph (2) in section 2.1.5.1 of this NOX pollutant concentration monitor that must be within + 10.0 percent of Lavg during appendix. the most recent normal-load flow RATA. serves both as the NOX component of a NOX * * * * * concentration monitoring system (to measure * * * * * NOX mass emissions) and as the NOX 2.1.5.1 * * * 2.3.2 * * * (2) For a monitor that has passed the off- component in a NOX-diluent monitoring (d) For single-load (or single-level) RATAs, system (to measure NO emission rate in lb/ line calibration demonstration, a X if a daily calibration error test is failed during mmBtu). If the RATA of the NO combination of on-line and off-line X a RATA test period, prior to completing the concentration monitoring system is failed, calibration error tests may be used to validate test, the RATA must be repeated. Data from then both the NO concentration monitoring data from the monitor, as follows. For a X the monitor are invalidated prospectively system and the associated NO -diluent particular unit (or stack) operating hour, data X from the hour of the failed calibration error monitoring system are considered out-of- from a monitor may be validated using a test until the hour of completion of a control, beginning with the hour of successful off-line calibration error test if: (a) subsequent successful calibration error test. completion of the failed NO concentration An on-line calibration error test has been X The subsequent RATA shall not be RATA, and continuing until the hour of passed within the previous 26 unit (or stack) commenced until the monitor has completion of subsequent hands-off RATAs operating hours; and (b) the 26 clock hour successfully passed a calibration error test in which demonstrate that both systems have data validation window for the off-line accordance with section 2.1.3 of this met the applicable relative accuracy calibration error test has not expired. If either appendix. Notwithstanding these specifications in sections 3.3.2 and 3.3.7 of of these conditions is not met, then the data requirements, when ASTM D6784–02 appendix A to this part, unless the option in from the monitor are invalid with respect to (incorporated by reference under § 75.6 of paragraph (b)(3) of this section to use the data the daily calibration error test requirement. this part) or Method 29 in appendix A–8 to validation procedures and associated Data from the monitor shall remain invalid part 60 of this chapter is used as the timelines in § 75.20(b)(3)(ii) through (b)(3)(ix) until the appropriate on-line or off-line reference method for the RATA of a Hg has been selected, in which case the calibration error test is successfully CEMS, if a calibration error test of the CEMS beginning and end of the out-of-control completed so that both conditions (a) and (b) is failed during a RATA test period, any test period shall be determined in accordance are met. run(s) completed prior to the failed with § 75.20(b)(3)(vii)(A) and (B). (3) For units with two measurement ranges calibration error test need not be repeated; (low and high) for a particular parameter, * * * * * however, the RATA may not continue until when separate analyzers are used for the low 2.3.3 RATA Grace Period a subsequent calibration error test of the Hg and high ranges, a failed or expired (a) * * * CEMS has been passed. For multiple-load (or calibration on one of the ranges does not (2) A required 3-load flow RATA has not multiple-level) flow RATAs, each load level been performed by the end of the calendar affect the quality-assured data status on the (or operating level) is treated as a separate quarter in which it is due; or other range. For a dual-range analyzer (i.e., a RATA (i.e., when a calibration error test is single analyzer with two measurement * * * * * failed prior to completing the RATA at a scales), a failed calibration error test on either (c) If, at the end of the 720 unit (or stack) particular load level (or operating level), only the low or high scale results in an out-of- operating hour grace period, the RATA has the RATA at that load level (or operating control period for the monitor. Data from the not been completed, data from the level) must be repeated; the results of any monitor remain invalid until corrective monitoring system shall be invalid, previously-passed RATA(s) at the other load actions are taken and ‘‘hands-off’’ calibration beginning with the first unit operating hour level(s) (or operating level(s)) are unaffected, error tests have been passed on both ranges. following the expiration of the grace period. unless re-linearization of the monitor is However, if the most recent calibration error Data from the CEMS remain invalid until the required to correct the problem that caused test on the high scale was passed but has hour of completion of a subsequent hands-off the calibration failure, in which case a expired, while the low scale is up-to-date on RATA. The deadline for the next test shall be subsequent 3-load (or 3-level) RATA is its calibration error test requirements (or either two QA operating quarters (if a required), except as otherwise provided in vice-versa), the expired calibration error test semiannual RATA frequency is obtained) or section 2.3.1.3(c)(5) of this appendix. does not affect the quality-assured status of four QA operating quarters (if an annual RATA frequency is obtained) after the quarter the data recorded on the other scale. * * * * * (g) Data validation for failed RATAs for a in which the RATA is completed, not to * * * * * CO pollutant concentration monitor (or an exceed eight calendar quarters. 2.2.3 * * * 2 O2 monitor used to measure CO2 emissions), * * * * * (e) * * * For a dual-range analyzer, a NOX pollutant concentration monitor, and (d) When a RATA is done during a grace ‘‘hands-off’’ linearity checks must be passed a NO -diluent monitoring system shall be period in order to satisfy a RATA on both measurement scales to end the out- X done according to paragraphs (g)(1) and (g)(2) requirement from a previous quarter, the of-control period. * * * of this section: deadline for the next RATA shall determined * * * * * (1) For a CO2 pollutant concentration as follows: 2.2.5 * * * monitor (or an O2 monitor used to measure (1) If the grace period RATA qualifies for (a) * * * CO2 emissions) which also serves as the a reduced, (i.e., annual), RATA frequency the Rh = Hourly value of the flow-to-load ratio, diluent component in a NOX-diluent deadline for the next RATA shall be set at scfh/megawatts, scfh/1000 lb/hr of monitoring system, if the CO2 (or O2) RATA three QA operating quarters after the quarter steam, or scfh/(mmBtu/hr thermal is failed, then both the CO2 (or O2) monitor in which the grace period test is completed. output). and the associated NOX-diluent system are (2) If the grace period RATA qualifies for considered out-of-control, beginning with the the standard, (i.e., semiannual), RATA * * * * * frequency the deadline for the next RATA L = Hourly unit load, megawatts, 1000 lb/ hour of completion of the failed CO2 (or O2) h monitor RATA, and continuing until the shall be set at two QA operating quarters after hr of steam, or mmBtu/hr thermal the quarter in which the grace period test is output; must be within + 10.0 percent of hour of completion of subsequent hands-off RATAs which demonstrate that both systems completed. Lavg during the most recent normal-load (3) Notwithstanding these requirements, no flow RATA. have met the applicable relative accuracy specifications in sections 3.3.2 and 3.3.3 of more than eight successive calendar quarters * * * * * appendix A to this part, unless the option in shall elapse after the quarter in which the (2) * * * paragraph (b)(3) of this section to use the data grace period test is completed, without a subsequent RATA having been conducted. (GHR)h = Hourly value of the gross heat rate, validation procedures and associated Btu/kwh, Btu/lb steam load, or 1000 timelines in § 75.20(b)(3)(ii) through (b)(3)(ix) * * * * *

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2.6 System Integrity Checks for Hg of appendix A to this part. The performance shall also be considered out of control, Monitors specifications in paragraph (3) of section 3.2 beginning with the 169th unit or stack For each Hg concentration monitoring of appendix A to this part must be met, operating hour after the last successful check, system (except for a Hg monitor that does not otherwise the monitoring system is and continuing until a subsequent system have a converter), perform a single-point considered out-of-control, from the hour of integrity check is passed. This weekly check system integrity check weekly, i.e., at least the failed check until a subsequent system is not required if the daily calibration once every 168 unit or stack operating hours, integrity check is passed. If a required system assessments in section 2.1.1 of this appendix using a NIST-traceable source of oxidized Hg. integrity check is not performed and passed are performed using a NIST-traceable source Perform this check using a mid- or high-level within 168 unit or stack operating hours of of oxidized Hg. gas concentration, as defined in section 5.2 last successful check, the monitoring system * * * * *

FIGURE 1 TO APPENDIX B OF PART 75.—QUALITY ASSURANCE TEST REQUIREMENTS

Basic QA test frequency requirements * Test Semi- Daily * Weekly Quarterly* annual * Annual

Calibration Error Test (2 pt.) ...... ✔ ...... Interference Check (flow) ...... ✔ ...... Flow-to-Load Ratio ...... ✔ ...... Leak Check (DP flow monitors) ...... ✔ ...... Linearity Check or System Integrity Check ** (3 pt.) ...... ✔ ...... Single-point System Integrity Check ** ...... ✔ ...... 1 RATA (SO2, NOX, CO2, O2, H2O) ...... ✔ ...... RATA (All Hg monitoring systems) ...... ✔ RATA (flow) 12 ...... ✔ ...... * ‘‘Daily’’ means operating days, only. ‘‘Weekly’’ means once every 168 unit or stack operating hours. ‘‘Quarterly’’ means once every QA oper- ating quarter. ‘‘Semiannual’’ means once every two QA operating quarters. ‘‘Annual’’ means once every four QA operating quarters. ** The system integrity check applies only to Hg monitors with converters. The single-point weekly system integrity check is not required if daily calibrations are performed using a NIST-traceable source of oxidized Hg. The 3-point quarterly system integrity check is not required if a linearity check is performed. 1 Conduct RATA annually (i.e., once every four QA operating quarters), if monitor meets accuracy requirements to qualify for less frequent test- ing. 2 For flow monitors installed on peaking units, bypass stacks, or units that qualify for single-level RATA testing under section 6.5.2(e) of this part, conduct all RATAs at a single, normal load (or operating level). For other flow monitors, conduct annual RATAs at two load levels (or oper- ating levels). Alternating single-load and 2-load (or single-level and 2-level) RATAs may be done if a monitor is on a semiannual frequency. A single-load (or single-level) RATA may be done in lieu of a 2-load (or 2-level) RATA if, since the last annual flow RATA, the unit has operated at one load level (or operating level) for ≥85.0 percent of the time. A 3-level RATA is required at least once every five calendar years and whenever a flow monitor is re-linearized, except for flow monitors exempted from 3-level RATA testing under section 6.5.2(b) or 6.5.2(e) of appendix A to this part.

FIGURE 2 TO APPENDIX B OF PART 75.—RELATIVE ACCURACY TEST FREQUENCY INCENTIVE SYSTEM

W Semiannual W RATA (percent) Annual

Y X X SO2 or NOX ...... 7.5%

42. Appendix D to Part 75 is amended d. Revising the terms ‘‘(GHR) base’’ and 95 (Reapproved 2000)’’, in the first by: ‘‘Lavg’’ in paragraph (c) of section sentence of section 2.2.3; a. Revising section 2.1.5.1; 2.1.7.1; h. Removing ‘‘D4057–88 ‘Standard b. Removing all ‘‘±’’ symbols from e. Revising the terms ‘‘Rh’’ and ‘‘Lh’’ in Practice for Manual Sampling of paragraph (c) of section 2.1.6.1; paragraph (a) of section 2.1.7.2; Petroleum and Petroleum Products’ (incorporated by reference under f. Revising the terms ‘‘(GHR) h’’ and c. Revising the Rbase and Lavg variable § 75.6)’’ and adding in its place, ‘‘ASTM ‘‘Lh’’ in paragraph (c) of section 2.1.7.2; definitions in paragraph (a) of section D4057–95 (Reapproved 2000), Standard 2.1.7.1; g. Removing ‘‘D4177–82 (Reapproved Practice for Manual Sampling of 1990)’’ and adding in its place ‘‘D4177– Petroleum and Petroleum Products

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(incorporated by reference under § 75.6 incorporated by reference under § 75.6 of this after the end of the calendar year allowance of this part)’’, in sections 2.2.4.1 and part). The Administrator may also approve accounting period. This requirement does not 2.2.4.2, and in paragraph (c) of section other procedures that use equipment apply to oil samples taken from the fuel 2.2.4.3; traceable to National Institute of Standards supplier’s storage container, as described in section 2.2.4.3 of this appendix. Analyze oil i. Revising sections 2.2.5, 2.2.6, and and Technology standards. Document such procedures, the equipment used, and the samples for percent sulfur content by weight 2.2.7; accuracy of the procedures in the monitoring in accordance with ASTM D129–00, j. Revising paragraphs (a)(2) and (e) of plan for the unit, and submit a petition Standard Test Method for Sulfur in section 2.3.1.4; signed by the designated representative Petroleum Products (General Bomb Method), k. Revising section 2.3.3.1.2; under § 75.66(c). If the flowmeter accuracy ASTM D1552–01, Standard Test Method for l. Revising section 2.3.4; exceeds 2.0 percent of the upper range value, Sulfur in Petroleum Products (High- m. Adding two sentences at the end of the flowmeter does not qualify for use under Temperature Method), ASTM D2622–98, section 2.3.4.1; this part. Standard Test Method for Sulfur in n. Revising paragraphs (b)(2) and (c) of * * * * * Petroleum Products by Wavelength Dispersive X-ray Fluorescence Spectrometry, section 2.3.7; 2.1.7.1 ASTM D4294–98, Standard Test Method for o. Revising section 3.2.2; and (a) * * * Sulfur in Petroleum and Petroleum Products p. Revising section 3.5.1. Where: The revisions and additions read as by Energy-Dispersive X-ray Fluorescence Rbase = Value of the fuel flow rate-to-load Spectrometry, or ASTM D5453–06, Standard follows: ratio during the baseline period; 100 Test Method for Determination of Total scfh/MWe, 100 scfh/klb per hour steam Sulfur in Light Hydrocarbons, Spark Ignition Appendix D to Part 75—Optional SO2 Emissions Data Protocol for Gas-Fired load, or 100 scfh/mmBtu per hour Engine Fuel, Diesel Engine Fuel, and Engine thermal output for gas-firing; (lb/hr)/ Oil by Ultraviolet Fluorescence (all and Oil-Fired Units. MWe, (lb/hr)/klb per hour steam load, or incorporated by reference under § 75.6 of this * * * * * (lb/hr)/mmBtu per hour thermal output part). Alternatively, the oil samples may be for oil-firing. analyzed for percent sulfur by any consensus 2. Procedure * * * * * standard method prescribed for the affected * * * * * unit under part 60 of this chapter. Lavg = Arithmetic average unit load during 2.1.5.1 Use the procedures in the the baseline period, megawatts, 1000 lb/ 2.2.6 Where the flowmeter records following standards to verify flowmeter hr of steam, or mmBtu/hr thermal volumetric flow rate rather than mass flow accuracy or design, as appropriate to the type output. rate, analyze oil samples to determine the of flowmeter: ASME MFC–3M–2004, density or specific gravity of the oil. Measurement of Fluid Flow in Pipes Using * * * * * Determine the density or specific gravity of Orifice, Nozzle, and Venturi; ASME MFC– (c) * * * the oil sample in accordance with ASTM 4M–1986 (Reaffirmed 1997), Measurement of Where: D287–92 (Reapproved 2000), Standard Test Gas Flow by Turbine Meters; American Gas (GHR)base = Baseline value of the gross heat Method for API Gravity of Crude Petroleum Association Report No. 3, Orifice Metering of rate during the baseline period, Btu/kwh, and Petroleum Products (Hydrometer Natural Gas and Other Related Hydrocarbon Btu/lb steam load, or 1000mmBtu heat Method), ASTM D1217–93 (Reapproved Fluids Part 1: General Equations and input/mmBtu thermal output. 1998), Standard Test Method for Density and Uncertainty Guidelines (October 1990 * * * * * Relative Density (Specific Gravity) of Liquids Edition), Part 2: Specification and by Bingham Pycnometer, ASTM D1481–93 L = Average (mean) unit load during the Installation Requirements (February 1991 avg (Reapproved 1997), Standard Test Method for baseline period, megawatts, 1000 lb/hr of Edition), and Part 3: Natural Gas Density and Relative Density (Specific steam, or mmBtu/hr thermal output. Applications (August 1992 edition) Gravity) of Viscous Materials by Lipkin (excluding the modified flow-calculation * * * * * Bicapillary Pycnometer, ASTM D1480–93 method in part 3); Section 8, Calibration from 2.1.7.2 (Reapproved 1997), Standard Test Method for American Gas Association Transmission (a) * * * Density and Relative Density (Specific Measurement Committee Report No. 7: Where: Gravity) of Viscous Materials by Bingham

Measurement of Gas by Turbine Meters Rh = Hourly value of the fuel flow rate-to- Pycnometer, ASTM D1298–99, Standard Test (Second Revision, April 1996); ASME–MFC– load ratio; 100 scfh/MWe, (lb/hr)/MWe, Method for Density, Relative Density 5M–1985, (Reaffirmed 1994), Measurement of 100 scfh/1000 lb/hr of steam load, (lb/ (Specific Gravity), or API Gravity of Crude Liquid Flow in Closed Conduits Using hr)/1000 lb/hr of steam load, 100 scfh/ Petroleum and Liquid Petroleum Products by Transit-Time Ultrasonic Flowmeters; ASME (mmBtu/hr of steam load), or (lb/hr)/ Hydrometer Method, or ASTM D4052–96 MFC–6M–1998, Measurement of Fluid Flow (mmBtu/hr thermal output). (Reapproved 2002), Standard Test Method for in Pipes Using Vortex Flowmeters; ASME Density and Relative Density of Liquids by MFC–7M–1987 (Reaffirmed 1992), * * * * * Digital Density Meter (all incorporated by Measurement of Gas Flow by Means of Lh = Hourly unit load, megawatts, 1000 lb/ reference under § 75.6 of this part). Critical Flow Venturi Nozzles; ISO 8316: hr of steam, or mmBtu/hr thermal Alternatively, the oil samples may be 1987(E) Measurement of Liquid Flow in output. analyzed for density or specific gravity by Closed Conduits-Method by Collection of the * * * * * any consensus standard method prescribed Liquid in a Volumetric Tank; American (c) * * * for the affected unit under part 60 of this Petroleum Institute (API) Manual of Where: chapter. Petroleum Measurement Standards, Chapter 2.2.7 Analyze oil samples to determine (GHR)h = Hourly value of the gross heat rate, 4—Proving Systems, Section 2—Pipe Provers Btu/kwh, Btu/lb steam load, or mmBtu the heat content of the fuel. Determine oil (Provers Accumulating at Least 10,000 heat input/mmBtu thermal output. heat content in accordance with ASTM Pulses), Second Edition, March 2001, and D240–00, Standard Test Method for Heat of Section 5—Master-Meter Provers, Second * * * * * Combustion of Liquid Hydrocarbon Fuels by Edition, May 2000; American Petroleum Lh = Hourly unit load, megawatts, 1000 lb/ Bomb Calorimeter, ASTM D4809–00, Institute (API) Manual of Petroleum hr of steam, or mmBtu/hr thermal Standard Test Method for Heat of Measurement Standards, Chapter 22— output. Combustion of Liquid Hydrocarbon Fuels by Testing Protocol, Section 2—Differential * * * * * Bomb Calorimeter (Precision Method), or Pressure Flow Measurement Devices, First 2.2.5 For each oil sample that is taken on- ASTM D5865–01a, Standard Test Method for Edition, August 2005; or ASME MFC–9M– site at the affected facility, split and label the Gross Calorific Value of Coal and Coke (all 1988 (Reaffirmed 2001), Measurement of sample and maintain a portion (at least 200 incorporated by reference under § 75.6 of this Liquid Flow in Closed Conduits by Weighing cc) of it throughout the calendar year and in part) or any other procedures listed in section Method, for all other flowmeter types (all all cases for not less than 90 calendar days 5.5 of appendix F of this part. Alternatively,

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the oil samples may be analyzed for heat percent methane requirement is also met. (2) For natural gas, if only one sample is content by any consensus standard method The effective date of the annual total sulfur taken, apply the results beginning at the date prescribed for the affected unit under part 60 sampling requirement is January 1, 2003. on which the sample was taken. If multiple of this chapter. * * * * * samples are taken and averaged, apply the * * * * * 2.3.3.1.2 Use one of the following results beginning at the date on which the 2.3.1.4 * * * methods when using manual sampling (as last sample used in the annual assessment (a) * * * applicable to the type of gas combusted) to was taken; (2) Historical fuel sampling data for the determine the sulfur content of the fuel: * * * * * previous 12 months, documenting the total ASTM D1072–06, Standard Test Method for (c) For monthly samples of the fuel GCV: sulfur content of the fuel and the GCV and/ Total Sulfur in Fuel Gases by Combustion (1) If the actual monthly value is to be used or percentage by volume of methane. The and Barium Chloride Titration, ASTM in the calculations and only one sample is results of all sample analyses obtained by or D4468–85 (Reapproved 2006), Standard Test taken, apply the results starting from the date provided to the owner or operator in the Method for Total Sulfur in Gaseous Fuels by on which the sample was taken. If multiple previous 12 months shall be used in the Hydrogenolysis and Rateometric Colorimetry, samples are taken and averaged, apply the demonstration, and each sample result must ASTM D5504–01, Standard Test Method for monthly average GCV value to the entire meet the definition of pipeline natural gas in Determination of Sulfur Compounds in month; or § 72.2 of this chapter, except where the Natural Gas and Gaseous Fuels by Gas (2) If an assumed value (contract maximum results of at least 100 daily (or more frequent) Chromatography and Chemiluminescence, or highest value from previous year’s total sulfur samples are provided by the fuel ASTM D6667–04, Standard Test Method for samples) is to be used in the calculations, supplier. In that case you may opt to convert Determination of Total Volatile Sulfur in apply the assumed value to all hours in each these data to monthly averages and then if, Gaseous Hydrocarbons and Liquefied month of the quarter unless a higher value is for each month, the average total sulfur Petroleum Gases by Ultraviolet Fluorescence, obtained in a monthly GCV sample (or, if content is 0.5 grains/100 scf or less, and if or ASTM D3246–96, Standard Test Method multiple samples are taken and averaged, if the GCV or percent methane requirement is for Sulfur in Petroleum Gas by Oxidative the monthly average exceeds the assumed also met, the fuel qualifies as pipeline natural Microcoulometry, (all incorporated by value). In that case, if only one monthly gas. Alternatively, the fuel qualifies as reference under § 75.6 of this part). sample is taken, use the sampled value, pipeline natural gas if ≥ 98 percent of the 100 Alternatively, the gas samples may be starting from the date on which the sample (or more) samples have a total sulfur content analyzed for percent sulfur by any consensus was taken. If multiple samples are taken and of 0.5 grains/100 scf or less and if the GCV standard method prescribed for the affected averaged, use the average value for the entire or percent methane requirement is also met; month in which the assumed value was or unit under part 60 of this chapter. exceeded. Consider the sample (or, if * * * * * * * * * * 2.3.4 Gross Calorific Values for Gaseous applicable, monthly average) results to be the (e) If a fuel qualifies as pipeline natural gas new assumed value. Continue using the new based on the specifications in a fuel contract Fuels Determine the GCV of each gaseous fuel at assumed value unless and until one of the or tariff sheet, no additional, on-going following occurs (as applicable to the sampling of the fuel’s total sulfur content is the frequency specified in this section, using one of the following methods: ASTM D1826– reporting option selected): The assumed required, provided that the contract or tariff value is superseded by a higher value from sheet is current, valid and representative of 94 (Reapproved 1998), ASTM D3588–98, ASTM D4891–89 (Reapproved 2006), GPA a subsequent monthly sample (or by a higher the fuel combusted in the unit. If the fuel monthly average); or the assumed value is qualifies as pipeline natural gas based on fuel Standard 2172–96, Calculation of Gross Heating Value, Relative Density and superseded by a new contract in which case sampling and analysis, on-going sampling of the new contract value becomes the assumed the fuel’s sulfur content is required annually Compressibility Factor for Natural Gas Mixtures from Compositional Analysis, or value at the time the fuel specified under the and whenever the fuel supply source new contract begins to be combusted in the changes. For the purposes of this paragraph GPA Standard 2261–00, Analysis for Natural Gas and Similar Gaseous Mixtures by Gas unit; or both the calendar year in which the (e), sampling ‘‘annually’’ means that at least new sampled value (or monthly average) one sample is taken in each calendar year. If Chromatography (all incorporated by reference under § 75.6 of this part). Use the exceeded the assumed value and the the results of at least 100 daily (or more subsequent calendar year have elapsed. frequent) total sulfur samples have been appropriate GCV value, as specified in provided by the fuel supplier since the last section 2.3.4.1, 2.3.4.2, or 2.3.4.3 of this * * * * * annual assessment of the fuel’s sulfur appendix, in the calculation of unit hourly 3.2.2 Convert density, specific gravity, or content, the data may be used as follows to heat input rates. Alternatively, the gas API gravity of the oil sample to density of the satisfy the annual sampling requirement for samples may be analyzed for heat content by oil sample at the sampling location’s the current year. If this option is chosen, all any consensus standard method prescribed temperature using ASTM D1250–07, of the data provided by the fuel supplier for the affected unit under part 60 of this Standard Guide for Use of the Petroleum shall be used. First, convert the data to chapter. Measurement Tables (incorporated by monthly averages. Then, if, for each month, 2.3.4.1 GCV of Pipeline Natural Gas reference under (§ 75.6 of this part). the average total sulfur content is 0.5 grains/ * * * If multiple GCV samples are taken * * * * * and analyzed in a particular month, the GCV 100 scf or less, and if the GCV or percent 3.5.1 Hourly SO2 Mass Emissions from methane requirement is also met, the fuel values from all samples shall be averaged the Combustion of all Fuels. Determine the qualifies as pipeline natural gas. arithmetically to obtain the monthly GCV. total mass emissions for each hour from the Alternatively, the fuel qualifies as pipeline Then, apply the monthly average GCV value combustion of all fuels using Equation D–12 natural gas if the analysis of the 100 (or more) as described in paragraph (c) in section 2.3.7 (On and after January 1, 2009, determine the total sulfur samples since the last annual of this appendix. total mass emission rate (in lbs/hr) for each assessment shows that ≥ 98 percent of the * * * * * hour from the combustion of all fuels by samples have a total sulfur content of 0.5 2.3.7 * * * dividing Equation D–12 by the actual unit grains/100 scf or less and if the GCV or (b) * * * operating time for the hour):

= MSOtEqSo21−− hr∑ 2 rate i ( . D-12) all− fuels

Where: SO2 rate¥I = SO2 mass emission rate for each ti = Time each gas or oil fuel was combusted MSO2-hr = Total mass of SO2 emissions from type of gas or oil fuel combusted during for the hour (fuel usage time), fraction of all fuels combusted during the hour, lb. the hour, lb/hr. an hour (in equal increments that can

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range from one hundredth to one quarter condition and obtain an arithmetic average of p. Removing the second and third of an hour, at the option of the owner or the runs for each load condition. During each sentences from the %O2w variable operator). test run on a boiler, record the boiler excess definition, and by adding a new * * * * * oxygen level at 5 minute intervals. sentence at the end of the paragraph, in 43. Appendix E to part 75 is amended * * * * * section 5.2.3; by: 2.5.2 Substitute missing NOX emission q. Removing the second and third rate data using the highest NOX emission rate a. Adding a new sentence to the end sentences from the %O2d variable of section 2.1; tabulated during the most recent set of baseline correlation tests for the same fuel or, definition, in section 5.2.4; b. Revising the seventh sentence of if applicable, combination of fuels, except as r. Revising the definition of ‘‘GCVo’’ in section 2.1.2.1; paragraph (a) of section 5.5.1; provided in sections 2.5.2.1, 2.5.2.2, 2.5.2.3, c. Revising sections 2.1.2.2 and and 2.5.2.4 of this appendix. s. Revising the definition of ‘‘GCVg’’ in 2.1.2.3; * * * * * section 5.5.2; d. Removing the phrase ‘‘(MWge or t. Revising section 5.5.3.1; steam load in 1000 lb/hr)’’ and adding 2.5.2.4 Whenever 20 full calendar quarters have elapsed following the quarter u. Revising section 5.5.3.2; in its place the phrase ‘‘(MWge or steam of the last baseline correlation test for a v. Removing the phrase ‘‘as measured load in 1000 lb/hr, or mmBtu/hr thermal particular type of fuel (or fuel mixture), by ASTM D3176–89, D1989–92, D3286– output)’’, in section 2.4.1; without a subsequent baseline correlation 91a, or D2015–91, Btu/lb’’ and adding in e. Revising section 2.5.2; and test being done for that type of fuel (or fuel its place the phrase ‘‘as measured by f. Adding section 2.5.2.4. mixture), substitute the fuel-specific NOX ASTM D3176–89 (Reapproved 2002), or The revisions and additions read as MER (as defined in § 72.2 of this chapter) for ASTM D5865–01a, Btu/lb. (incorporated follows: each hour in which that fuel (or mixture) is combusted until a new baseline correlation by reference under § 75.6 of this part).’’ Appendix E to Part 75—Optional NOX test for that fuel (or mixture) has been in the definition of the GCVc variable in Emissions Estimation Protocol for Gas- successfully completed. For fuel mixtures, Equation F–21; Fired Peaking Units and Oil-Fired report the highest of the individual MER w. Removing the word ‘‘lb/hr’’ and Peaking Units values for the components of the mixture. adding in its place the phrase ‘‘lb/hr, or * * * * * * * * * * mmBtu/hr’’ in the definition of the SF 2.1 Initial Performance Testing 44. Appendix F to Part 75 is amended variable in Equation F–21b; * * * The requirements in section 6.1.2 of by: x. Revising the heading and text of appendix A to this part shall be met by any a. Removing the second and third section 7; Air Emissions Testing Body (AETB) sentences from the introductory text of y. Adding the words ‘‘of this performing O2 and NOX concentration appendix’’ after the words ‘‘section 8.1, measurements under this appendix, either for section 2; b. Removing the phrase ‘‘method 19 in 8.2, or 8.3’’ and after the words ‘‘section units using the excepted methodology in this 8.4’’ in the introductory text for section appendix or for units using the low mass appendix A of part 60 of this chapter’’ and adding in its place the phrase 8; emissions excepted methodology in § 75.19. ‘‘Method 19 in appendix A–7 to part 60 z. Revising sections 8.1 and 8.1.1; * * * * * of this chapter’’, in the last sentence of aa. Revising section 8.2; 2.1.2.1 * * * Use a minimum of 12 bb. Adding sections 8.2.1 and 8.2.2; sample points, located according to Method section 3.1 and in the last sentence of 1 in appendix A–1 to part 60 of this chapter. cc. Revising section 8.3; section 3.2; c. Adding the phrase ‘‘, or (if dd. Revising section 8.4; and * * * * * ee. Adding section 10. 2.1.2.2 For stationary gas turbines, applicable) in the equations in Method The revisions and additions read as sample at a minimum of 12 points per run 19 in appendix A–7 to part 60 of this follows: at each load level. Locate the sample points chapter’’ after the words ‘‘of this according to Method 1 in appendix A–1 to appendix’’, in section 3.3; Appendix F to Part 75—Conversion part 60 of this chapter. For each fuel or d. Removing the second and third Procedures. consistent combination of fuels (and, sentences from section 3.3.4; optionally, for each combination of fuels), * * * * * measure the NO and O concentrations at e. Adding sections 3.3.4.1 and 3.3.4.2; 3.3.4 * * * X 2 each sampling point using methods 7E and f. Revising Table 1; 3.3.4.1 For boilers, a minimum 3A in appendices A–4 and A–2 to part 60 of g. Revising the text preceding concentration of 5.0 percent CO2 or a this chapter. For diesel or dual fuel Equation F–7a, in section 3.3.6; maximum concentration of 14.0 percent O2 reciprocating engines, select the sampling h. Revising section 3.3.6.1; may be substituted for the measured diluent site to be as close as practicable to the i. Revising section 3.3.6.2; gas concentration value for any operating exhaust of the engine. j. Revising sections 3.3.6.3 and 3.3.6.4; hour in which the hourly average CO2 2.1.2.3 Allow the unit to stabilize for a k. Adding section 3.3.6.5; concentration is < 5.0 percent CO2 or the minimum of 15 minutes (or longer if needed l. Adding the words ‘‘either measured hourly average O2 concentration is > 14.0 for the NOX and O2 readings to stabilize) percent O2. For stationary gas turbines, a directly with a CO2 monitor or prior to commencing NOX, O2, and heat input minimum concentration of 1.0 percent CO2 measurements. Determine the measurement calculated from wet-basis O2 data using or a maximum concentration of 19.0 percent system response time according to sections Equation F–14b,’’ after the words ‘‘wet O2 may be substituted for measured diluent 8.2.5 and 8.2.6 of method 7E in appendix A– basis,’’ in the first sentence of the Ch gas concentration values for any operating 4 to part 60 of this chapter. When inserting variable definition, and by removing the hour in which the hourly average CO2 the probe into the flue gas for the first second and third sentences from the Ch concentration is < 1.0 percent CO2 or the sampling point in each traverse, sample for variable definition, in section 4.1; hourly average O2 concentration is > 19.0 at least one minute plus twice the m. Revising section 4.4.1; percent O2. measurement system response time (or n. Removing the second and third 3.3.4.2 If NOX emission rate is calculated longer, if necessary to obtain a stable using either Equation 19–3 or 19–5 in reading). For all other sampling points in sentences from the %CO2w variable Method 19 in appendix A–7 to part 60 of this each traverse, sample for at least one minute definition in 5.2.1; chapter, a variant of the equation shall be plus the measurement system response time o. Removing the second and third used whenever the diluent cap is applied. (or longer, if necessary to obtain a stable sentences from the %CO2d variable The modified equations shall be designated reading). Perform three test runs at each load definition in 5.2.2; as Equations 19–3D and 19–5D, respectively.

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Equation 19–3D is structurally the same as is the diluent cap value. The numerator of 5D is simply ‘‘20.9¥%O2dc’’, where %O2dc is Equation 19–3, except that the term ‘‘%O2w’’ Equation 19–5D is the same as Equation 19– the diluent cap value. in the denominator is replaced with the term 5; however, the denominator of Equation 19– * * * * * ‘‘%O2dc × [(100¥% H2O)/100]’’, where %O2dc

1 TABLE 1.—F- AND Fc-FACTORS

-factor Fuel F-factor FC (dscf/mmBtu) (scf CO2/mmBtu)

Coal (as defined by ASTM D388–99 2): Anthracite ...... 10,100 1,970 Bituminous ...... 9,780 1,800 Subbituminous ...... 9,820 1,840 Lignite ...... 9,860 1,910 Petroleum Coke ...... 9,830 1,850 Tire Derived Fuel ...... 10,260 1,800 Oil ...... 9,190 1,420 Gas: Natural gas ...... 8,710 1,040 Propane ...... 8,710 1,190 Butane ...... 8,710 1,250 Wood: Bark ...... 9,600 1,920 Wood residue ...... 9,240 1,830 1 Determined at standard conditions: 20 °C (68 °F) and 29.92 inches of mercury. 2 Incorporated by reference under § 75.6 of this part.

* * * * * analysis of the fuel combusted using ASTM Fuels, ASTM D4891–89 (Reapproved 2006), 3.3.6 Equations F–7a and F–7b may be D3176–89 (Reapproved 2002), Standard Standard Test Method for Heating Value of used in lieu of the F or Fc factors specified Practice for Ultimate Analysis of Coal and Gases in Natural Gas Range by Stoichiometric in Section 3.3.5 of this appendix to calculate Coke, (solid fuels), ASTM D5291–02, Combustion, GPA Standard 2172–96 a site-specific dry-basis F factor (dscf/ Standard Test Methods for Instrumental Calculation of Gross Heating Value, Relative mmBtu) or a site-specific Fc factor (scf CO2/ Determination of Carbon, Hydrogen, and Density and Compressibility Factor for mmBtu), on either a dry or wet basis. At a Nitrogen in Petroleum Products and Natural Gas Mixtures from Compositional Lubricants, (liquid fuels) or computed from minimum, the site-specific F or Fc factor Analysis, GPA Standard 2261–00 Analysis must be based on 9 samples of the fuel. Fuel results using ASTM D1945–96 (Reapproved for Natural Gas and Similar Gaseous samples taken during each run of a RATA are 2001), Standard Test Method for Analysis of Mixtures by Gas Chromatography, or ASTM acceptable for this purpose. The site-specific Natural Gas by Gas Chromatography, or D1826–94 (Reapproved 1998), Standard Test ASTM D1946–90 (Reapproved 2006), F or Fc factor must be re-determined at least Method for Calorific (Heating) Value of Gases Standard Practice for Analysis of Reformed annually, and the value from the most recent in Natural Gas Range by Continuous Gas by Gas Chromatography, (gaseous fuels) determination must be used in the emission as applicable. (All of these methods are Recording Calorimeter, for gaseous fuels, as calculations. Alternatively, the previous F or incorporated by reference under § 75.6 of this applicable. (All of these methods are F value may continue to be used if it is c part.) incorporated by reference under § 75.6 of this higher than the value obtained in the most 3.3.6.2 GCV is the gross calorific value part). recent determination. The owner or operator (Btu/lb) of the fuel combusted determined by 3.3.6.3 For affected units that combust a

shall keep records of all site-specific F or Fc ASTM D5865–01a, Standard Test Method for combination of a fuel (or fuels) listed in determinations, active for at least 3 years. Gross Calorific Value of Coal and Coke, and Table 1 in section 3.3.5 of this appendix with (Calculate all F- and Fc factors at standard any fuel(s) not listed in Table 1, the F or F ° ° ASTM D240–00, Standard Test Method for c conditions of 20 C (68 F) and 29.92 inches Heat of Combustion of Liquid Hydrocarbon value is subject to the Administrator’s of mercury). Fuels by Bomb Calorimeter, or ASTM approval under § 75.66. * * * * * D4809–00, Standard Test Method for Heat of 3.3.6.4 For affected units that combust 3.3.6.1 H, C, S, N, and O are content by Combustion of Liquid Hydrocarbon Fuels by combinations of fuels listed in Table 1 in weight of hydrogen, carbon, sulfur, nitrogen, Bomb Calorimeter (Precision Method) for oil; section 3.3.5 of this appendix, prorate the F and oxygen (expressed as percent), and ASTM D3588–98, Standard Practice for or Fc factors determined by section 3.3.5 or respectively, as determined on the same basis Calculating Heat Value, Compressibility 3.3.6 of this appendix in accordance with the as the gross calorific value (GCV) by ultimate Factor, and Relative Density of Gaseous applicable formula as follows:

Where, to calculate Xi in the hardcopy portion Fi or (Fc)i = Applicable F or Fc factor for each Xi = Fraction of total heat input derived from of the monitoring plan for the unit. The fuel type determined in accordance with each type of fuel (e.g., natural gas, Xi values may be determined and Section 3.3.5 or 3.3.6 of this appendix. bituminous coal, wood). Each Xi value updated either hourly, daily, weekly, or n = Number of fuels being combusted in shall be determined from the best monthly. In all cases, the prorated F- combination. available information on the quantity of factor used in the emission calculations 3.3.6.5 As an alternative to prorating the fuel combusted and the GCV value, over shall be determined using the Xi values F or Fc factor as described in section 3.3.6.4 a specified time period. The owner or from the most recent update. of this appendix, a ‘‘worst-case’’ F or Fc factor operator shall explain the method used may be reported for any unit operating hour.

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The worst-case F or Fc factor shall be the 4. Procedure for CO2 Mass Emissions factors from section 3.3.5 of this appendix highest F or Fc value for any of the fuels * * * * * shall be used in one of the following equations (as applicable) to determine hourly combusted in the unit. 4.4.1 If the owner or operator elects to use average CO2 concentration of flue gases (in * * * * * data from an O2 monitor to calculate CO2 percent by volume) from the measured concentration, the appropriate F and FC hourly average O2 concentration:

F 20. 9 − O = 100 cd2 (Eq . F-14a) CO 2d F 20. 9

Where: F, FC = F-factor or carbon-based Fc-factor O2d = Hourly average O2 concentration CO2d = Hourly average CO2 concentration from section 3.3.5 of this appendix. during unit operation, percent by during unit operation, percent by 20.9 = Percentage of O2 in ambient air. volume, dry basis. volume, dry basis.

100 F  100 − % HO  CO = c 20. 9 2  − O  (Eq. F-14b) 2w 20. 9 F   100  2w 

Where: Mixtures from Compositional Analysis, or operator has received approval from the CO2w = Hourly average CO2 concentration GPA Standard 2261–00 Analysis for Natural Administrator under § 75.66 to use a site- during unit operation, percent by Gas and Similar Gaseous Mixtures by Gas specific default SO2 emission rate for the fuel volume, wet basis. Chromatography, Btu/100 scf (all or mixture of fuels. O2w = Hourly average O2 concentration incorporated by reference under § 75.6 of this during unit operation, percent by part). EERHIEqF= ()() (. -23 ) volume, wet basis. * * * * * h F, Fc = F-factor or carbon-based FC-factor 5.5.3.1 Perform coal sampling daily Where: from section 3.3.5 of this appendix. according to section 5.3.2.2 in Method 19 in Eh = Hourly SO2 mass emission rate, lb/hr. 20.9 = Percentage of O2 in ambient air. appendix A to part 60 of this chapter and use ER = Applicable SO2 default emission rate for %H2O = Moisture content of gas in the stack, ASTM D2234–00, Standard Practice for gaseous fuel combustion, from section percent. Collection of a Gross Sample of Coal, 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of appendix For any hour where Equation F–14a or F– (incorporated by reference under § 75.6 of D to this part, or other default SO2 14b results in a negative hourly average CO2 this part) Type I, Conditions A, B, or C and emission rate for the combustion of very value, 0.0% CO2w shall be recorded as the systematic spacing for sampling. (When low sulfur liquid or solid fuel, average CO2 value for that hour. performing coal sampling solely for the combinations of such fuels, or mixtures * * * * * purposes of the missing data procedures in of such fuels with gaseous fuel, as § 75.36, use of ASTM D2234–00 is optional, approved by the Administrator under 5. Procedures for Heat Input and coal samples may be taken weekly.) § 75.66, lb/mmBtu. * * * * * 5.5.3.2 All ASTM methods are HI = Hourly heat input rate, determined 5.2.3 * * * For any operating hour where incorporated by reference under § 75.6 of this using the procedures in section 5.2 of Equation F–17 results in an hourly heat input part. Use ASTM D2013–01, Standard Practice this appendix, mmBtu/hr. rate that is ≤ 0.0 mmBtu/hr, 1.0 mmBtu/hr for Preparing Coal Samples for Analysis, for 8. Procedures for NO Mass Emissions shall be recorded and reported as the heat preparation of a daily coal sample and X input rate for that hour. analyze each daily coal sample for gross * * * * * * * * * * calorific value using ASTM D5865–01a, 8.1 The own or operator may use the 5.5.1 (a) * * * Standard Test Method for Gross Calorific hourly NOX emission rate and the hourly heat input rate to calculate the NOX mass GCVo = Gross calorific value of oil, as Value of Coal and Coke. On-line coal analysis measured by ASTM D240–00, ASTM D5865– may also be used if the on-line analytical emissions in pounds or the NOX mass 01a, or ASTM D4809–00 for each oil sample instrument has been demonstrated to be emission rate in pounds per hour, (as under section 2.2 of appendix D to this part, equivalent to the applicable ASTM methods required by the applicable reporting format), Btu/unit mass (all incorporated by reference under §§ 75.23 and 75.66. for each unit or stack operating hour, as under (§ 75.6 of this part). follows: * * * * * 8.1.1 If both NO emission rate and heat * * * * * X 7. Procedures for SO Mass Emissions, Using input rate are monitored at the same unit or 5.5.2 * * * 2 Default SO Emission Rates and Heat Input stack level (e.g., the NOX emission rate value GCV = Gross calorific value of gaseous 2 g Measured by CEMS and the heat input rate value both represent fuel, as determined by sampling (for each The owner or operator shall use Equation all of the units exhausting to the common delivery for gaseous fuel in lots, for each stack), then (as required by the applicable daily gas sample for gaseous fuel delivered F–23 to calculate hourly SO2 mass emissions in accordance with § 75.11(e)(1) during the reporting format) either: by pipeline, for each hourly average for gas (a) Use Equation F–24 to calculate the measured hourly with a gas chromatograph, combustion of gaseous fuel, for a unit that hourly NO mass emissions (lb). or for each monthly sample of pipeline uses a flow monitor and a diluent gas X natural gas, or as verified by the contractual monitor to measure heat input, and that supplier at least once every month pipeline qualifies to use a default SO2 emission rate MERHIt= (Eq. F-24) ()NOxhh () NOx h h natural gas is combusted, as specified in under section 2.3.1.1, 2.3.2.1.1, or 2.3.6(b) of section 2.3 of appendix D to this part) using appendix D to this part. Equation F–23 may Where:

ASTM D1826–94 (Reapproved 1998), ASTM also be applied to the combustion of solid or M(NOX)h = NOX mass emissions in lbs for the D3588–98, ASTM D4891–89 (Reapproved liquid fuel that meets the definition of very hour.

2006), GPA Standard 2172–96 Calculation of low sulfur fuel in § 72.2 of this chapter, ER(NOX)h = Hourly average NOX emission rate Gross Heating Value, Relative Density and combinations of such fuels, or mixtures of for hour h, lb/mmBtu, from section 3 of Compressibility Factor for Natural Gas such fuels with gaseous fuel, if the owner or this appendix, from Method 19 in

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appendix A–7 to part 60 of this chapter, ER(NOX)h = Hourly average NOX emission rate 8.2.1 When the NOX concentration or from section 3.3 of appendix E to this for hour h, lb/mmBtu, from section 3 of monitoring system measures on a wet basis, part. (Include bias-adjusted NOX this appendix, from Method 19 in first calculate the hourly NOX mass emission emission rate values, where the bias-test appendix A–7 to part 60 of this chapter, rate (in lb/hr) during unit (or stack) procedures in appendix A to this part or from section 3.3 of appendix E to this operation, using Equation F–26a. (Include shows a bias-adjustment factor is part. (Include bias-adjusted NOX bias-adjusted flow rate or NOX concentration necessary.) emission rate values, where the bias-test values, where the bias-test procedures in HI = Hourly average heat input rate for hour h procedures in appendix A to this part appendix A to this part shows a bias- h, mmBtu/hr. (Include bias-adjusted flow rate values, where the bias-test shows a bias-adjustment factor is adjustment factor is necessary.) procedures in appendix A to this part necessary.) HIh = Hourly average heat input rate for hour = shows a bias-adjustment factor is EKCQ()NOx hw h (Eq. F-26a) necessary.) h, mmBtu/hr. (Include bias-adjusted flow h th = Monitoring location operating time for rate values, where the bias-test Where: procedures in appendix A to this part hour h, in hours or fraction of an hour E(NOX)h = NOX mass emissions rate in lb/hr. ¥7 (in equal increments that can range from shows a bias-adjustment factor is K = 1.194 x 10 for NOX, (lb/scf)/ppm. one hundredth to one quarter of an hour, necessary.) Chw = Hourly average NOX concentration at the option of the owner or operator). * * * * * during unit operation, wet basis, ppm. If the combined NOX emission rate and 8.2 Alternatively, the owner or operator Qh = Hourly average volumetric flow rate heat input are monitored for all of the during unit operation, wet basis, scfh. units in a common stack, the monitoring may use the hourly NOX concentration (as 8.2.2 When NO mass emissions are location operating time is equal to the measured by a NOX concentration monitoring X total time when any of those units was system) and the hourly stack gas volumetric determined using a dry basis NOX exhausting through the common stack; or flow rate to calculate the NOX mass emission concentration monitoring system and a wet (b) Use Equation F–24a to calculate the rate (lb/hr) for each unit or stack operating basis flow monitoring system, first calculate hourly NOX mass emission rate (lb/hr). hour, in accordance with section 8.2.1 or hourly NOX mass emission rate (in lb/hr) 8.2.2 of this appendix (as applicable). If the during unit (or stack) operation, using = hourly NOX mass emissions are to be Equation F–26b. (Include bias-adjusted flow EERHIEq()NOx () NOx h ( . F-24a) hh reported in lb, Equation F–26c in section 8.3 rate or NOX concentration values, where the Where: of this appendix shall be used to convert the bias-test procedures in appendix A to this

E(NOX)h = NOX mass emissions rate in lbs/hr hourly NOX mass emission rates to hourly part shows a bias-adjustment factor is for the hour. NOX mass emissions (lb). necessary.)

()100 − %HO = 2 () EKQ() Chd h Eq. F-26b NOXh ()100

Where: operating hour by multiplying the hourly th = Unit operating time or stack operating

E(NOX)h = NOX mass emissions rate, lb/hr. NOX mass emission rate (lb/hr) by the unit time (as defined in § 72.2 of this chapter) ¥7 K = 1.194 x 10 for NOX, (lb/scf)/ppm. operating time for the hour, as follows: for hour ‘‘h’’, in hours or fraction of an Chd = Hourly average NOX concentration hour (in equal increments that can range during unit operation, dry basis, ppm. = () from one hundredth to one quarter of an MEtEqFc() hh . -26 Qh = Hourly average volumetric flow rate NOX h during unit operation, wet basis, scfh. hour, at the option of the owner or Where: operator). %H2O = Hourly average stack moisture ( ) content during unit operation, percent by M NOX h = NOX mass emissions for the hour, 8.4 Use the following procedures to volume. lb. calculate quarterly, cumulative ozone season, 8.3 When hourly NOX mass emissions are Eh = Hourly NOX mass emission rate during and cumulative yearly NOX mass emissions, reported in pounds and are determined using unit (or stack) operation from Equation in tons: F–26a in section 8.2.1 of this appendix a NOX concentration monitoring system and (a) When hourly NOX mass emissions are a flow monitoring system, calculate NOX or Equation F–26b in section 8.2.2 of this reported in lb., use Eq. F–27. mass emissions (lb) for each unit or stack appendix (as applicable), lb/hr.

p MNO() ∑ X h = h=1 () M()NO Eq. F-27 X time period 2000

Where: M(NOX)h = NOX mass emissions in lb for the (b) When hourly NOX mass emission rate

M(NOX)time period = NOX mass emissions in tons hour. is reported in lb/hr, use Eq. F–27a. for the given time period (quarter, p = The number of hours in the given time cumulative ozone season, cumulative period (quarter, cumulative ozone year-to-date). season, cumulative year-to-date).

p ∑Et ()NOXh h = h=1 () M ()NO Eq. F-27a X time period 2000

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Where: th = Monitoring location operating time for or heat input calculations described in this

M(NOX)time period = NOX mass emissions in tons hour h, in hours or fraction of an hour appendix, and if the hourly moisture content for the given time period (quarter, (in equal increments that can range from is determined from wet- and dry-basis O2 cumulative ozone season, cumulative one hundredth to one quarter of an hour, readings, use Equation F–31 to calculate the year-to-date). at the option of the owner or operator). percent moisture, unless a ‘‘K’’ factor or other * * * * * E(NOX)h = NOX mass emission rate in lb/hr for mathematical algorithm is developed as the hour. 10. Moisture Determination From Wet and described in section 6.5.7(a) of appendix A p = The number of hours in the given time Dry O2 Readings to this part: period (quarter, cumulative ozone If a correction for the stack gas moisture season, cumulative year-to-date). content is required in any of the emissions

()OO− = 22dw× () %.HO2 100 Eq F-31 O2d

Where: Nitrogen in Laboratory Samples of Coal a. Removing the words ‘‘(see % H2O = Hourly average stack gas moisture and Coke’’ in section 2.2.2. §§ 75.11(b) and 75.12(b))’’ and adding in content, percent H2O The revisions read as follows: its place the words ‘‘(see § 75.11(b))’’ in O2d = Dry-basis hourly average oxygen section 5; concentration, percent O2 Appendix G to Part 75—Determination b. Adding a sentence to the end of O2w = Wet-basis hourly average oxygen of CO Emissions. 2 section 7.2.3; concentration, percent O2 * * * * * c. Removing the words ‘‘or § 75.12(b)’’ 45. Appendix G to Part 75 is amended 2.1.2 Determine the carbon content of and ‘‘or § 75.12,’’ from section 7.2.4; by: each fuel sample using one of the following d. Revising Table K–1 of section 8; methods: ASTM D3178–89 (Reapproved and a. Revising section 2.1.2; 2002) or ASTM D5373–02 (Reapproved 2007) e. Adding the words ‘‘or in Table K– b. Removing ‘‘D3174–89 ‘Standard for coal; ASTM D5291–02, Standard Test 1’’ following the words ‘‘§ 75.15(h)’’ in Test Method for Ash in the Analysis Methods for Instrumental Determination of the second sentence of section 11.8. Sample of Coal and Coke From Coal’’’ Carbon, Hydrogen, and Nitrogen in The revisions and additions read as and by adding in its place, ‘‘D3174–00, Petroleum Products and Lubricants, ultimate analysis of oil, or computations based upon follows: Standard Test Method for Ash in the ASTM D3238–95 (Reapproved 2000) and Analysis Sample of Coal and Coke from either ASTM D2502–92 (Reapproved 1996) or Appendix K to Part 75—Quality Coal’’ in section 2.2.1; and ASTM D2503–92 (Reapproved 1997) for oil; Assurance and Operating Procedures c. Removing ‘‘D3178–89 (1997), and computations based on ASTM D1945–96 for Sorbent Trap Monitoring Systems ‘Standard Test Methods for Carbon and (Reapproved 2001) or ASTM D1946–90 * * * * * Hydrogen in the Analysis Sample of (Reapproved 2006) for gas (all incorporated 7.2.3 * * * The sample flow rate through Coal and Coke’’’ and adding in its place by reference under § 75.6 of this part). a sorbent trap monitoring system during any ‘‘D5373–02 (Reapproved 2007), * * * * * hour (or portion of an hour) in which the unit Standard Test Methods for Instrumental 46. Appendix K to Part 75 is amended is not operating shall be zero. Determination of Carbon, Hydrogen, and by: * * * * *

TABLE K–1.—QUALITY ASSURANCE/QUALITY CONTROL CRITERIA FOR SORBENT TRAP MONITORING SYSTEMS

QA/QC test or specification Acceptance criteria Frequency Consequences if not met

Pre-test leak check ...... ≤4% of target sampling rate ...... Prior to sampling ...... Sampling shall not commence until the leak check is passed. Post-test leak check ...... ≤4% of average sampling rate ..... After sampling ...... ** See Note, below. Ratio of stack gas flow rate to sam- No more than 5% of the hourly Every hour throughout data col- ** See Note, below. ple flow rate. ratios or 5 hourly ratios (which- lection period. ever is less restrictive) may de- viate from the reference ratio by more than ± 25%. Sorbent trap section 2 break- ≤5% of Section 1 Hg mass ...... Every sample ...... ** See Note, below. through. Paired sorbent trap agreement ...... ≤10% Relative Deviation (RD) if Every sample ...... Either invalidate the data from the the average concentration is > paired traps or report the re- 1.0 µg/m3. sults from the trap with the ≤ 20% RD if the average con- higher Hg concentration. centration is ≤ 1.0 µg/m3. Results are also acceptable if ab- solute difference between con- centrations from paired traps is ≤ 0.03 µg/m3. Spike Recovery Study...... Average recovery between 85% Prior to analyzing field samples Field samples shall not be ana- and 115% for each of the 3 and prior to use of new sorbent lyzed until the percent recovery spike concentration levels. media. criteria has been met Multipoint analyzer calibration...... Each analyzer reading within ± On the day of analysis, before Recalibrate until successful. 10% of true value and r2 ≥ 0.99. analyzing any samples.

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TABLE K–1.—QUALITY ASSURANCE/QUALITY CONTROL CRITERIA FOR SORBENT TRAP MONITORING SYSTEMS—Continued

QA/QC test or specification Acceptance criteria Frequency Consequences if not met

Analysis of independent calibration Within ± 10% of true value ...... Following daily calibration, prior to Recalibrate and repeat inde- standard. analyzing field samples. pendent standard analysis until successful. Spike recovery from section 3 of 75–125% of spike amount ...... Every sample ...... ** See Note, below. sorbent trap. RATA ...... RA ≤ 20.0% or Mean difference ≤ For initial certification and annu- Data from the system are invali- 1.0 µg/dscm for low emitters. ally thereafter. dated until a RATA is passed. Gas flow meter calibration ...... Calibration factor (Y) within ± 5% At three settings prior to initial Recalibrate the meter at three ori- of average value from the most use and at least quarterly at fice settings to determine a recent 3-point calibration. one setting thereafter. For new value of Y. mass flow meters, initial cali- bration with stack gas is re- quired. Temperature sensor calibration ...... Absolute temperature measured Prior to initial use and at least Recalibrate. Sensor may not be by sensor within ± 1.5% of a quarterly thereafter. used until specification is met. reference sensor. Barometer calibration ...... Absolute pressure measured by Prior to initial use and at least Recalibrate. Instrument may not instrument within ± 10 mm Hg quarterly thereafter. be used until specification is of reading with a mercury ba- met. rometer. ** Note: If both traps fail to meet the acceptance criteria, the data from the pair of traps are invalidated. However, if only one of the paired traps fails to meet this particular acceptance criterion and the other sample meets all of the applicable QA criteria, the results of the valid trap may be used for reporting under this part, provided that the measured Hg concentration is multiplied by a factor of 1.111. When the data from both traps are invalidated and quality-assured data from a certified backup monitoring system, reference method, or approved alternative monitoring system are unavailable, missing data substitution must be used.

* * * * * [FR Doc. E7–25071 Filed 1–23–08; 8:45 am] BILLING CODE 6560–50–P

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Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the Siskiyou Mountains Salamander (Plethodon stormi) and Scott Bar Salamander (Plethodon asupak) as Threatened or Endangered; Proposed Rule

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DEPARTMENT OF THE INTERIOR Background that an emergency listing was not Section 4(b)(3)(B) of the Act (16 warranted, and that because of Fish and Wildlife Service U.S.C. 1531 et seq.) requires that, for inadequate funds for listing and critical any petition to revise the Lists of habitat designation, we would not be 50 CFR Part 17 Endangered and Threatened Wildlife able to otherwise address the petition to [FWS–R8–ES–2008–0002; 1111 FY07 and Plants that contains substantial list the Siskiyou Mountains salamander MO;ABC Code: B2] scientific and commercial information and Scott Bar salamander at that time. On June 23, 2005, we received a 60- that listing may be warranted, we make day notice of intent to sue and on Endangered and Threatened Wildlife a finding within 12 months of the date August 23, 2005, the Center for and Plants; 12-Month Finding on a of our receipt of the petition on whether Biological Diversity and four other Petition To List the Siskiyou Mountains the petitioned action is: (a) Not groups filed a Complaint for Declaratory Salamander (Plethodon stormi) and warranted, (b) warranted, or (c) and Injunctive Relief in Federal District Scott Bar Salamander (Plethodon warranted, but the immediate proposal asupak) as Threatened or Endangered Court for the District of Oregon (Center of a regulation implementing the for Biological Diversity et al. v. Norton AGENCY: Fish and Wildlife Service, petitioned action is precluded by other et al., No. 3:05–CV–1311–BR), Interior. pending proposals to determine whether challenging our failure to issue a 90-day ACTION: Notice of 12-month petition any species is threatened or endangered. finding on the petition to list the finding. Such 12-month findings are to be Siskiyou Mountains salamander and published promptly in the Federal Scott Bar salamander. On December 28, SUMMARY: We, the U.S. Fish and Register. Section 4(b)(3)(C) of the Act 2005, we reached an agreement with the Wildlife Service (Service), announce a requires that we treat a petition for plaintiffs to complete the 90-day finding 12-month finding on a petition to list which the requested action is found to by April 15, 2006, and if we determined the Siskiyou Mountains salamander be warranted but precluded as though that the petition presented substantial (Plethodon stormi) and Scott Bar resubmitted on the date of such finding, information that listing may be salamander (Plethodon asupak) as and we must make a subsequent finding warranted, to complete the 12-month threatened or endangered, under the within 12 months. finding by January 15, 2007. Endangered Species Act of 1973, as Previous Federal Actions On April 17, 2006, the Service made amended (Act). After a thorough review its 90-day finding (71 FR 23886, April of all available scientific and On June 18, 2004, we received a 25, 2006), concluding that the petition commercial information, we find that petition dated June 16, 2004, from the did not present substantial scientific or listing the Siskiyou Mountains Center for Biological Diversity, Klamath- commercial information to indicate that salamander and Scott Bar salamander is Siskiyou Wildlands Center, and Noah listing the Siskiyou Mountains not warranted. We ask the public to Greenwald, to list the Siskiyou salamander and Scott Bar salamander continue to submit to us any new Mountains salamander (Plethodon may be warranted. information concerning the status of, stormi) as a threatened or endangered On July 6, 2006, the Center for and threats to, these species. This species on behalf of themselves and five Biological Diversity and others filed suit information will help us to monitor and other organizations. The petition clearly in the United States District Court for encourage the ongoing management of identified itself as such and included the Northern District of California these species. the requisite identification information (Center for Biological Diversity et al. v. DATES: We made the finding announced for the petitioners, as required in 50 Dirk Kempthorne et al., No. C–06–4186– in this document on January 24, 2008. CFR 424.14(a). In their petition, the WHA), challenging the merits of that petitioners assert that there are three ADDRESSES: This finding is available on finding. On January 19, 2007, the separate distinct population segments the Internet at http:// District Court determined the 90-day (DPSs) of the Siskiyou Mountains www.regulations.gov and http:// finding was arbitrary and capricious, salamander, one of which consists of the www.fws.gov/yreka/. Supporting vacated and remanded the finding, and Scott Bar salamander. Alternatively, the documentation we used in preparing ordered the Service to make a new petitioners assert that the Scott Bar this finding is available for public finding by March 23, 2007. salamander is a separate species and inspection, by appointment, during A new 90-day finding was signed on request that it be considered normal business hours at the U.S. Fish March 22, 2007, and we published it in independently for listing. Since the time and Wildlife Service, Yreka Fish and the Federal Register on March 29, 2007 the petition was submitted, the Scott Wildlife Office, 1829 S. Oregon Street, (72 FR 14750). In that 90-day finding, Bar salamander (Plethodon asupak) has Yreka, CA 96097; telephone 530–842– we concluded that the petition been recognized as a species separate 5763; facsimile 530–842–4517. Please presented substantial scientific or from the Siskiyou Mountains submit any new information, materials, commercial information to indicate that salamander (Mead et al. 2005, pp. 169– comments, or questions concerning this listing the Siskiyou Mountains 171), and we have reviewed it finding to the above address or via salamander and Scott Bar salamander separately in making this finding. The electronic mail (e-mail) at may be warranted, announced the petitioners also requested the Service to [email protected]. initiation of a status review of these consider whether the Siskiyou taxa, and solicited comments and FOR FURTHER INFORMATION CONTACT: Phil Mountains salamander (and therefore information to be provided in Detrich, Field Supervisor, U.S. Fish and the Scott Bar salamander, as well) connection with the status review by Wildlife Service, Yreka Fish and warrants listing throughout a significant May 29, 2007. This notice constitutes Wildlife Office (see ADDRESSES section). portion of its range, and requested our 12-month finding regarding the If you use a telecommunications device designation of critical habitat for both petition to list these two species. for the deaf (TDD), call the Federal species concurrent with their listing. In To ensure that this finding is based on Information Relay Service (FIRS) at a July 19, 2004, letter to the petitioners, the latest information and incorporates 800–877–8339. we responded that we reviewed the the opinions of the scientific SUPPLEMENTARY INFORMATION: petition for both species and determined community, the Service entered into a

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Cooperative Agreement with the U.S. estimate of foreseeable future on our current land management practices on Geological Survey, Forest and ability to predict or extrapolate the Federal lands are not likely to occur Rangeland Ecosystem Science Center, in effects of the future threats facing these within 20 years. We note that the Corvallis, Oregon, to provide a technical species. changes in Federal land management report addressing taxonomy, biology, Our ability to predict the effects of that we can anticipate may happen in habitat associations, detectability, and future threats is limited to our the short term, including termination of effects of habitat alteration on the knowledge of the time frame of the the Survey and Manage Program and salamanders. The technical report was threats potentially facing the species Western Oregon Plan Revision, authored by Douglas DeGross and R. (e.g., timber harvest, wildfire, roads and discussed below, are unlikely to result Bruce Bury, and reviewed by species road construction, mining and rock in the sort of significant changes that experts in the U.S. Geological Survey, quarrying, disease, stochastic events, might have an important effect on the Forest and Rangeland Ecosystem and climate change) and of any conservation status of the species. If a Science Center; U.S. Forest Service conservation activities taking place to significant change were to occur, we (USFS) Pacific Northwest Research address these threats. For example, the estimate that, because of logistical and Station and Pacific Southwest Research rate of timber harvest has declined on regulatory limitations imposed on the Station; and Rogue River-Siskiyou Federal lands (which constitute over 85 rate of planning and implementing National Forest. The technical report percent of the combined ranges of both significant land management actions, (DeGross and Bury 2007), information species) during the last 30 years (USDA actual management activities could take provided by the public, and additional and USDI 1994, 2005) and we have no an additional 20 years to reach a information and data in our files information that would lead us to magnitude of effect that would provided the basis for this status review predict a dramatic increase in the rate measurably affect salamander for the Siskiyou Mountains salamander and intensity of timber harvest such that populations. Therefore, we conclude and Scott Bar salamander. In addition, large areas of habitat will be affected to that the foreseeable future for the Service staff involved in the such a great degree that these species salamanders does not extend beyond 40 development of this finding have will suffer adverse impacts. In the event years. In other words, we have sufficient several years of combined experience that the rate and intensity of timber confidence in our estimates of the surveying for and researching the harvesting were to increase threats and reaction of the two species distribution and habitat associations of dramatically, it would take some period to those threats to draw a conclusion as Siskiyou Mountains salamander. of time (depending on the actual to the likelihood of endangerment over increase of the rate and intensity, and only at most 40 years. Beyond that Foreseeable Future the impact of the harvesting at issue on period, our level of confidence is such The principal difference between an the salamanders) for the cumulative that any conclusions we drew would be ‘‘endangered’’ and a ‘‘threatened’’ impact of the timber harvesting to have too speculative on which to base current species under the Act is whether the a significant effect on the species. action. We find that this estimate of the species is currently in danger of Because the available evidence suggests foreseeable future is both reasonable extinction, or if it is likely to become so that the salamanders recover for even and appropriate because it focuses this ‘‘within the foreseeable future.’’ The Act intensive disturbances such as status review on the time frame in does not define the term foreseeable clearcutting (from 11 years (Bull et al. which current social and political future; however, we consider the 2006, p. 21) to 30 years (Welsh et al. change may affect species management, foreseeable future to be affected by the 2007b) for Siskiyou Mountains which we consider to have the most biological and demographic salamanders), the species would only likely potential for meaningful near- characteristics of the species, as well as become in danger of extinction if that term influence on the status of these our ability to predict or extrapolate the increased level and intensity of harvest species. effects of threats facing the species in lasted long enough to effect sufficient the future. Quantification of the time habitat at nearly the same time such that Species Descriptions period corresponding to the forseeable it overcame the apparent resiliency of Like others in the Family future is challenging because it the species to such disturbances. Plethodontidae (the lungless necessitates making predictions about Further, while scientists predict that the salamanders), the Siskiyou Mountains inherently dynamic political, legal, and rate of temperature change will continue salamander and Scott Bar salamander social mechanisms that influence the to increase throughout the present are completely terrestrial, medium- degree and immediacy of potential century (EPRI 2003, p. 3; Hayhoe et al. sized, slender-bodied salamanders with threats to the species. 2004, p. 12423; Cayan et al. 2006, pp. short limbs and a dorsal stripe. Both Population dynamics of the Siskiyou 11–14, 31; Maurer 2007, p. 317), the species are found in or near talus (loose Mountains salamander and Scott Bar effects of climate change on these surface rock) and fissured rock outcrops salamander are poorly known, and we species are uncertain and estimation of where moisture and humidity are high are unaware of data sufficient to support the timing of potential effects would be enough to allow respiration through estimates of longevity, generation times, speculative. their skin (Feder 1983, p. 296; or recruitment rates for these species. We do not have sufficient Nussbaum et al. 1983, pp. 73, 90, and For example, Nussbaum et al. (1983, p. demographic information on Siskiyou 102; Stebbins 2003, p. 168). Both 103) state that both sexes ‘‘are thought Mountains salamanders or Scott Bar species are endemic to the Klamath- to’’ mature at 5 to 6 years of age, but salamanders, nor on the trajectory of Siskiyou Mountains of southern Oregon provide no basis for this estimate. potential threats when combined with and northern California, where they are Likewise, estimates of population and existing regulatory mechanisms, on considered as part of a species complex genetically effective population (Ne) size which to base a precise definition of that includes and is named for the are unavailable for these species foreseeable future. Given the stability of similar Del Norte salamander (DeGross and Bury 2007, p. 9). Because Federal Land and Resource Management (Plethodon elongatus). the demographic and biological Plans and the Northwest Forest Plan Members of the Plethodon elongatus characteristics of these species are so (NWFP) since its establishment in 1994, Complex differ physically from other poorly understood, we must base our we assume that significant changes to regional members of the genus

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Plethodon. Species in the Plethodon Mountains salamanders and Del Norte Siskiyou Mountain Range) and South elongatus Complex have webbed toes, salamanders were based on Clade (populations south of the while Dunn’s salamander (P. dunni) and morphological traits and coloration Siskiyou Mountain Range crest and western red-backed salamander (P. (Highton and Brame 1965, p. 1; Brodie adjacent to the Klamath River) (Pfrender vehiculum) do not (Highton 1962, pp. 1970, pp. 503–505; Bury 1973, p. 57). and Titus 2001, pp. 5–6; DeGross 2004, 255–256). The larger number of trunk However, it is now clear that field pp. 24–44; Mahoney 2004, p. 8; Mead et vertebrae and costal grooves (vertical identification of these species based on al. 2005, pp. 163–166). A third, more creases along the side of the body), as coloration is unreliable because both divergent, group was also identified and well as the smaller number of vomerine species exhibit geographic variation in is now recognized as a separate species, teeth (teeth on the vomer bone in the coloration (Brodie 1970, p. 503; Bury the Scott Bar salamander. roof of the mouth) further distinguish 1999, pp. 9–10). Based on levels of genetic divergence the Plethodon elongatus Complex from Researchers have cited morphological between species in the Plethodon the rest of the western Plethodon differences as evidence of a taxonomic elongatus Complex, researchers species (Highton and Brame 1965, p. 1; distinction between Siskiyou Mountains estimated that the Del Norte salamander Brodie 1970, pp. 503–505; Nussbaum et salamanders and Del Norte salamanders. and Siskiyou Mountains salamander al. 1983, p. 102; Mead et al. 2005, pp. Perhaps the most convincing support for lineages diverged approximately 4 163–166). distinguishing between these forms was million years ago and that their shared The Siskiyou Mountains salamander provided by Mead et al. (2005, pp. 165– ancestral lineage diverged from that of was described in 1965, two years after 166), who found that all three species in the Scott Bar salamander between 20 it was first identified (Highton and the Plethodon elongatus Complex and 26 million years ago (Mahoney Brame 1965, p. 1). It is characterized by differed in average measurements of 2004, p. 15; Mead et al. 2005, p. 165). a modal number of 17 costal grooves male snout-vent length, forelimb length, Therefore, the Scott Bar salamander and 4 to 5.5 intercostal folds (folds of and head width; and female snout-vent lineage appears to be the basal (most skin between the costal grooves) length, forelimb length, and internarial primitive, from which others are between the toes of adpressed limbs distance. Additionally, both Siskiyou derived) lineage of the Plethodon (limbs firmly pressed against the sides Mountains salamanders and Scott Bar elongatus Complex. Given the time of the body) (Nussbaum et al. 1983, p. salamanders have a smaller modal periods during which these species 102; Leonard et al. 1993, p. 78). Adults number of costal folds and diverged, speciation within this have a light- to purplish-brown dorsum, proportionally larger forelimbs than Del complex was probably influenced by and the body is sprinkled with a Norte salamanders, contributing to their Pleistocene glaciation (Soltis et al. 1997, moderate to dense array of white to more robust appearance (Highton and pp. 369–370; Bury 1999, p. 22; DeGross yellow flecks, concentrated on the sides Brame 1965, p. 1; Mead et al. 2005, p. and Bury unpublished). and limbs and away from the light- 170). Differences between Scott Bar brown dorsal stripe (Highton and Brame Phylogenetic studies of the Plethodon salamanders and the other members of 1965, p. 1; Nussbaum et al. 1983, p. elongatus Complex have provided the Plethodon elongatus Complex are 102). Juveniles are black and have an further support for classifying Siskiyou not limited to their genetic divergence. olive-tan dorsal stripe that extends onto Mountains salamanders and Del Norte As noted above, Mead et al. (2005, pp. the tail. salamanders as closely related species 165–166) found differences in The Scott Bar salamander is more (Mahoney 2001, p. 183; Mahoney 2004, morphological measurements of all robust and has a wider head and longer pp. 155–161; Bury and Welsh 2005, p. three species. Nonetheless, questions limbs than the Del Norte salamander 842; Mead et al. 2005, p. 166). about the validity of the current and Siskiyou Mountains salamander. It Phylogenetic studies of these species classification of these species persist has fewer intercostal folds between have also shown that early studies of the (sensu Wake and Jockusch 2000, p. 117). adpressed limbs (2.5 to 3.5) than either morphology of Del Norte salamanders Further, the ranges of the Scott Bar the Del Norte salamander (5 to 6) or along the Klamath River between Happy salamander and Siskiyou Mountains Siskiyou Mountains salamander (4 to Camp and Seiad Valley, California, were salamander abut each other north of the 5.5), and the modal number of costal in fact describing Siskiyou Mountains Klamath River and south of Horse grooves (17) is one less than in the Del salamanders (Pfrender and Titus 2001, Creek, so it is possible that these species Norte salamander (18). The Scott Bar p. 15; DeGross 2004, pp. 17–18; interbreed in this area. Measurements of salamander has a longer body relative to Mahoney 2004, p. 5; Mead et al. 2005, gene flow between these species would its tail length and longer forelimbs and p. 173; Mead 2006, pp. 15–16). In fact, be helpful to further clarify the hindlimbs than the Siskiyou Mountains Bury (1973, p. 57) proposed possible taxonomy of southern populations of salamander or Del Norte salamander. intergradation between these two Siskiyou Mountains salamanders and The coloration of the Scott Bar species, and Stebbins (1985, p. 47; 2003, Scott Bar salamanders and define the salamander is similar to that of the pp. 173–174) demoted the Siskiyou interspecific boundaries for each species Siskiyou Mountains salamander and is Mountains salamander to a subspecies range (DeGross and Bury 2007, p. 4; described in Mead et al. (2005, p. 170). of Del Norte salamander. However, Wake and Jockusch 2000, p. 117). Despite the morphological differences recent research suggests that little gene The Service recognizes that questions described in Mead et al. (2005, pp. 169– flow occurs between these species about the taxonomy of the Plethodon 171), the two species are difficult to across their zone of contact in the elongatus Complex remain and that distinguish in the field. Indian Creek drainage in western research on this topic is ongoing. Siskiyou County, California (DeGross However, for the purpose of this Taxonomy 2004, p. 40; DeGross et al. unpublished). finding, we evaluated the threats to the The Siskiyou Mountains salamander Phylogenetic studies of the Siskiyou Siskiyou Mountains salamander and was first identified in 1963, adding the Mountains salamander have indicated Scott Bar salamander separately because second form to what is now referred to that this species consists of two distinct the preponderance of available evidence as the Plethodon elongatus Complex genetic lineages: North Clade currently supports recognition of these (Highton and Brame 1965, p. 1). Early (populations within the Applegate River forms as separate species. Even so, the distinctions between Siskiyou drainage and on the crest of the ecological research on these species was

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conducted prior to recognition of the activity (Feder 1983, p. 305). However, Habitat Associations Scott Bar salamander as a separate it is possible that these activities also Siskiyou Mountains salamanders and species, and since both species are occur below the surface (Welsh and Scott Bar salamanders occur on slopes members of the Family Plethodontidae, Lind 1992, p. 433). The limited surface with rocky soils or talus (loose surface their life histories and habitat activity by these species is reflected in rock) outcrops. These substrates provide associations appear to be similar. survey protocols for Siskiyou Mountains interstitial spaces into which these Therefore, for the purpose of this salamanders, which require that surveys animals can retreat from the climatic finding, we use the current literature be restricted to periods of relative extremes of the eastern Klamath describing the biological characteristics humidity above 65 percent, air Mountains. These salamanders are and ecology of the Siskiyou Mountains temperatures between 39.2 and 68 °F (4 ° occasionally found under other types of salamander for both species. to 20 C), soil temperatures between cover, such as bark, limbs, or logs, but For the purposes of this finding, we ° ° 38.3 and 64.4 F (3.5 to 18 C), and only during wet weather when moisture use the following hierarchy of moist soil conditions (Clayton et al. is high and only in close proximity to taxonomic names: 1999, p. 133). suitable rocky substrates (Nussbaum (1) Plethodon elongatus Complex: Plethodon salamanders are fully 1974, p. 13; Nussbaum et al. 1983, p. Plethodon salamanders within the terrestrial amphibians and do not need geographic region occupied by Del standing or flowing water for any stage 102). Like other plethodontids, Siskiyou Norte salamander, Siskiyou Mountains of their life cycle (Zug et al. 2001, p. Mountains salamanders and Scott Bar salamander, and Scott Bar salamander. 383). Eggs are thought to be laid in small salamanders require contact with (2) Siskiyou Mountains salamander clusters deep in moist, rocky substrates, moisture for respiration through their Complex: The three known genetic but this has not been observed by skin. Therefore, habitat characteristics entities previously classified as Siskiyou researchers. Females have clutches of 2 that influence forest microclimates, Mountains salamander, consisting of the to 18 eggs, with an average of 9 eggs per especially relative humidity and soil Scott Bar salamander, Siskiyou clutch (Nussbaum et al. 1983, pp. 21– surface moisture, are likely important to Mountains salamander North Clade, and 23). Juveniles emerge in late fall and these species. Based on these species’ Siskiyou Mountains salamander South early spring. Welsh and Lind (1992, p. similar natural histories and Clade. 432) reported that juveniles captured in physiologies (see ‘‘Biology’’ section), (3) Siskiyou Mountains salamander mid-spring were significantly larger occurrence in the same region, and (North and South Clades combined), not than would be expected if newly previous designation as one species, we including the Scott Bar salamander. hatched. These salamanders appear to assume that Siskiyou Mountains (4) Individual genetic subunits of become reproductively mature at 5 to 6 salamanders and Scott Bar salamanders Siskiyou Mountains salamander: North years and are relatively long-lived (up to have similar habitat requirements. As Clade (hereafter referred to as the 15 years) (Nussbaum et al. 1983, p. 103; noted above, nearly all of the available Applegate salamander) and South Clade Clayton and Nauman 2005, p. 139). information on these species comes (hereafter referred to as the Grider Females appear to breed every other from studies conducted on both species, salamander). year (Nussbaum 1974, p. 22). prior to recognition of Scott Bar salamander as a separate species. Biology Siskiyou Mountains and Scott Bar salamanders are ‘lie-and-wait’ predators Early observational studies of Like other members of the Family that prey on a variety of small terrestrial Siskiyou Mountains salamanders found Plethodontidae, Siskiyou Mountains invertebrates, including spiders, that these animals are highly associated and Scott Bar salamanders require pseudoscorpions, mites, ants, with talus and other rocky substrates contact with moisture for respiration collembolans, and beetles (Nussbaum et (Highton and Brame 1965, p. 1; Storm through their permeable skin (Feder al. 1983, p. 103). Seasonal changes in 1966, p. 1; Nussbaum 1974, p. 13; 1983, pp. 292–293). Desiccation is lethal diet have been reported for these species Clayton and Nauman 2005, p. 139; to Plethodon species and therefore, (Nussbaum 1974, p. 24). Predators of Mead et al. 2005, p. 118). Nussbaum surface activity by Siskiyou Mountains these species have not been identified (1974, p. 13) found that the densest and Scott Bar salamanders primarily but may include snakes, shrews, or populations were on heavily wooded, occurs at night, when the air is cool and animals that opportunistically forage in north-facing slopes that also had talus moist (Nussbaum 1974, p. 3; Nussbaum spring leaf litter and debris (e.g., deposits or fissured rock outcrops. et al. 1983, p. 103; Clayton and Nauman ground-foraging birds). Several Many of the earliest known populations 2005, p. 139; Mead et al. 2005, p. 118). researchers have hypothesized that of Siskiyou Mountains salamanders Peak periods of surface activity occur interspecific and intraspecific occurred in talus road cuts, where the during the rainy season (usually late fall competition are important factors in the underlying rock substrate was exposed and spring) (Clayton and Nauman 2005, population ecology of Siskiyou and detection of salamanders was p. 139; Mead et al. 2005, p. 118). These Mountains and Scott Bar salamanders facilitated (Nussbaum 1974, p. 13). salamanders retreat to underground (Nishikawa 1985, p. 1290; Mathis 1989, The degree to which Siskiyou refugia during the extreme climatic p. 790; Griffis and Jaeger 1998, p. 2500). Mountains salamanders and Scott Bar conditions common during summer and These species’ ranges overlap with those salamanders are associated with late- winter in the eastern Klamath of ensatina (E. eschscholtzii seral forest conditions has been the Mountains (Nussbaum 1974, p. 3). They oregonensis) and black salamanders subject of considerable uncertainty and may forage at the surface during the (Aneides flavipunctatus), and a recent debate among scientists and land summer (Nussbaum et al. 1983, p. 103) study described one site where they are managers. Understanding this debate is but probably only in sites with sympatric with Del Norte salamanders essential to understanding the Service’s relatively cool, moist microclimates. (Mead 2006, p. 8). We are not aware of finding for these species. The debate is Little is known about these species’ any information about parasites or exemplified by the salamander behavior, but many researchers assume diseases affecting these species or population at Muck-a-Muck Creek, the that they are inactive underground and information about symbiotic or type locality from which the Scott Bar that foraging and reproduction only mutualistic interactions with other salamander was described (Mead et al. occur during brief periods of surface organisms. 2005, p. 169). Biologists and researchers

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use Muck-a-Muck as a ‘‘reference site,’’ Siskiyou Crest appeared to occupy habits, and secretive behavior make a location with reliable salamander habitat based on different detection of Siskiyou Mountains detections that can be checked prior to environmental factors (Welsh et al. salamanders and Scott Bar salamanders conducting surveys in other nearby 2007a, p. 28). The authors primarily difficult (Nussbaum 1974, p. 3; Olson et areas to confirm that current weather attributed this result to geographic al. 2007, pp. 7–8). Welsh et al. (2007a, conditions are within proper limits to differences in precipitation, p. 25) estimated that their detection conduct these surveys. However, even illumination (topographic variation in rates for these species were 20 and 28 when survey conditions are adequate, sunlight or shading), and vegetation percent on the south and north slopes salamanders may not be detected at this (Welsh et al. 2007a, pp. 19, and 28). of the Siskiyou Crest, respectively. known reference site on any given Based on these differences, they Detection rates for other Plethodon single visit. Located adjacent to a road, suggested that suitable habitat is less species are similarly low: 15 percent the site experienced hydraulic mining abundant and more patchily distributed (Bailey et al. 2004, p. 21) and 2 to 32 in the late 1800s and currently supports on the south side of the crest than on percent (Taub 1961, p. 695). Because a sparse overstory of young and early the north side (Welsh et al. 2007a, p. detection rates are low for these species, mature trees. These habitat conditions 28). Although these results differed repeated surveys and estimation of the are representative of habitat at many somewhat for salamanders on either probability of false negatives during locations occupied by apparently viable side of the Siskiyou Crest, they surveys are required to minimize or populations of Siskiyou Mountains generally indicated that sites occupied account for the probability of classifying salamanders (Bull et al. 2006, pp. 19–22; by salamanders contained attributes that occupied sites as unoccupied. The CDFG 2005, p. 24; Farber 2007a, pp. 3– likely moderate surface microclimates survey protocol developed for the 4). The regularly reported existence of for these animals (e.g., greater canopy NWFP Survey and Manage Guidelines salamander populations at sites like the closure, more leaf litter cover, more (Clayton et al. 1999, p. 141) requires Muck-a-Muck Creek site undercuts the decaying logs) or that are associated three survey visits to determine conclusion of some researchers (based with moist, cool microclimates (e.g., less presence or absence of Siskiyou on the results of a single study) that the grass cover, more sword fern cover) Mountains salamanders. Classifying species is dependent on old-growth (Ollivier et al. 2001, pp. 17–21, 26–29; occupied sites as unoccupied, or failing forest (Ollivier et al. 2001, pp. 26–29; Welsh et al. 2007a, pp. 24, 27). Both to account for the probability of doing Welsh et al. 2007a, p. 31). analyses concluded that Siskiyou so, can bias conclusions about The results of studies of habitat Mountains (and possibly Scott Bar) relationships between salamanders and relationships conducted to date are salamanders are ‘‘a mature to old- habitat characteristics. The presence or equivocal or provide limited inferences. growth-forest-associated species that absence data analyzed by Ollivier et al. Limited inferences result from either (1) exists at its biological optimum under (2001) and Welsh et al. (2007a) were lack of a random or systematic sampling conditions found primarily in later seral collected with a single-visit protocol, so design that allows inference to a larger stages of mixed conifer-hardwood these studies cannot reliably infer population, or (2) single-visit sampling forests in northwestern California and absence at sites where detections were that fails to incorporate the low and southwestern Oregon’’ (Ollivier et al. not obtained. In fact, the California variable detection rates associated with 2001, p. 42; Welsh et al. 2007a, p. 31). Department of Fish and Game (CDFG) these species. Two analyses of a single, However, the authors also state that used a more intensive survey protocol to relatively large-scale, single-visit, ‘‘[t]oday, information on the habitat resurvey 13 clear-cut or precanopy (0 to random, sampling-based study requirements of this species is 30 years-old) sites classified as suggested an association with closed- incomplete and conflicting’’ (Welsh et unoccupied by Ollivier et al. (2001) and canopy, older forest (Ollivier et al. 2001; al. 2007a, p. 16) and ‘‘[m]any of the Welsh et al. (2007a) and found Siskiyou Welsh et al. 2007a), whereas field biotic and abiotic requirements Mountains salamanders at 5 sites, Scott studies evaluating habitat attributes at necessary for long-term viability for the Bar salamanders at 2 sites, and Del known (not randomly or systematically Siskiyou Mountains salamander remain Norte salamanders at 1 site (Bull et al. selected) locations demonstrated that undetermined’’ (Welsh et al. 2007a, p. 2006, p. 25). While this finding does not the species are found in a wide range of 31). It is important to note that the appear to change the general conclusion forest structural conditions (Farber et al. results of these studies only indicate described by Ollivier et al. (2001) and 2001; Bull et al. 2006; Farber 2007a). We are not aware of any rigorous studies correlations between forest attributes Welsh et al. (2007a) that salamanders evaluating the species’ demographic and the presence of salamanders; they were more likely to be detected in responses to forest conditions. do not actually demonstrate that these closed-canopied older forest than in The most rigorous research of these species select habitat based on older- more open sites, it acts to substantially species’ habitat associations was forest characteristics (Welsh et al. weaken the inference of Ollivier et al. conducted by Ollivier et al. (2001) and 2007a, p. 31). For example, these (2001, p. 42) and Welsh et al. (2007a, p. Welsh et al. (2007a). These studies used salamanders may select habitat based on 31), that these species are ecologically the same data set and somewhat other factors (e.g., suitable dependent on conditions primarily different analytical techniques. The data microclimates) that often occur within found in mature or late-seral stage used in both analyses were collected at older forests but that can also occur in forests. 61 sites occupied by Siskiyou other areas such as deep drainages and Two other studies have examined Mountains salamanders and possibly north-facing slopes. potential relationships between habitat Scott Bar salamanders (a few sites were Our understanding of the habitat attributes and abundances of Siskiyou located within the range of what were associations of Siskiyou Mountains Mountains salamanders and Scott Bar later recognized as Scott Bar salamander and their degree of salamanders. Farber (2007a) described salamanders). These sites were ecological dependence on specific sites occupied by Scott Bar salamanders compared with sites classified as habitat conditions is hampered by the on private timber company property and unoccupied by salamanders (see below). difficulty in detecting this species adjacent National Forest land. This These studies found that salamander during surveys. Their brief, intermittent study compared salamander abundances populations on either side of the periods of surface activity, nocturnal and habitat characteristics at 26 sites

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within a relatively small area (29 acres salamanders were subsequently Studies by Farber et al. (2001), Farber (ac) (11.7 hectares (ha))) and found that detected by CDFG at over half of the (2007a), and CDFG (Bull et al. 2006) salamander abundance was only ‘absent’ sites analyzed by Welsh et al. were smaller and less rigorous than the significantly related to percent rock (2007a) does not negate the importance analyses by Ollivier et al. (2001) and cover. A large proportion of the of this study or the habitat associations Welsh et al. (2007a). However, they occupied sites (94 percent) had it describes; it does, however, limit the clearly showed that Siskiyou Mountains evidence of at least one previous strength of inference regarding the salamanders and Scott Bar salamanders manmade or natural disturbance (Farber degree to which Siskiyou Mountains occur within a wide range of habitat 2007a, p. 3). Bull et al. (2006) described salamanders may require old-growth conditions, including clear-cuts and CDFG surveys at 68 sites occupied by forest conditions. We do not consider young forest. The limited available Siskiyou Mountains or Scott Bar the field studies conducted by CDFG evidence suggests that these species are salamanders. Eighty-seven percent of (Bull et al. 2006) as providing highly associated with talus and these sites were on private timberlands, competing scientific research requiring fissured rock outcrops and are generally and the remaining sites were on Federal reconciliation with the statistical design associated with moist, cool surface lands (Bull et al. 2006, p. 24). Like of the Welsh et al. (2007a) study. The microclimates. These salamanders are Farber (2007a), CDFG found evidence of CDFG field studies do, however, likely more common in mature and old- previous disturbance at most (82 provide habitat results from a large growth forest than in other forest percent) occupied sites (Bull et al. 2006, sample of occupied salamander classes, but many salamander sites p. 24). Roughly 83 percent of the sites locations, which, in combination with occur in other habitat types. Potential occurred in forest stands with relatively similar data sets from Farber et al. differences in the size and viability of open canopies (less than 60 percent (2001), constitute a significant source of populations in open or disturbed habitat canopy closure). They also found that information on these species. and mature or old-growth habitat are salamander sites occurred within a wide A model was recently developed for discussed below under Factor A. range of environmental conditions, predicting the occurrence of Siskiyou Range and Extant Distribution including all slope aspects and nearly Mountains salamanders north of the all (16 of 18) California Wildlife Habitat Siskiyou Crest (Reilly et al. 2007). This Range model incorporated three variables Relationships tree size and canopy Currently known populations within classes (Bull et al. 2006, p. 24). These reported by Ollivier et al. (2001) and Welsh et al. (2007a) to be positively the Siskiyou Mountains salamander studies’ sampling designs preclude Complex occur within Jackson County inferences about the habitat preferences related to occupancy by Siskiyou Mountains salamanders: rocky soil and the extreme southeast portion of of other Siskiyou Mountains salamander Josephine County in southwestern populations because they were focused types, forest canopy closures above 70 percent, and conifer forest with average Oregon, and in northern Siskiyou on known salamander sites and did not County in northwestern California. In take into account the broad range of tree sizes greater than 17 inches (43 centimeters) in diameter at breast height Oregon, known populations occur in the habitat that is potentially available to Applegate Valley watershed north of the these salamander species. However, (DBH) (Reilly et al. 2007, p. 1). An additional variable modeling Siskiyou Crest. In California, the species both studies showed that Siskiyou complex occurs in the Klamath River Mountains salamanders and Scott Bar topographical variation in sunlight or shading was also incorporated (Reilly et drainage, south of the Siskiyou Crest, in salamanders occur within a relatively al. 2007, p. 2). Strategic surveys of sites the area bounded to the west by Indian wide range of forest conditions, and that were predicted by the model to be Creek and the headwaters of Grider were not extirpated by the disturbances occupied had 65 percent detection rates Creek, Kelsey Creek, and Canyon Creek; (timber harvest) that created those (34 of 52 sites were occupied), the to the south by Scott Bar Mountain; and conditions. highest ever reported for this species to the east by the headwaters of Mill To support their argument that the (Nauman and Olson 2004, p. 3). In Creek and the Horse Creek drainage. Siskiyou Mountains salamander is addition to indicating the usefulness of This range is subdivided into three areas critically imperiled by habitat loss, the presence or absence modeling as a based on genetically distinct petitioners rely heavily on statements scientific and management tool, this populations. Siskiyou Mountains made by Welsh et al. (2007a) as relatively high detection rate seems to salamander North Clade (or Applegate providing new scientific information support the associations described by Population) occupies the area north of that the salamanders are highly Ollivier et al. (2001) and Welsh et al. the Siskiyou Crest; Siskiyou Mountains associated with, and ecologically (2007a). salamander South Clade (or Grider dependent on, old-growth forest Population) occurs south of the Siskiyou conditions, and the petitioners highlight Summary of Habitat Associations Crest; and the Scott Bar salamander is an ongoing debate between Dr. Welsh Few studies of the habitat associations found in the southeastern portion of the and the CDFG (Greenwald and Curry of Siskiyou Mountains salamanders and former range of Siskiyou Mountain 2007, pp. 4–7). As discussed above, we Scott Bar salamanders have been salamander South Clade. conclude that the survey methodology conducted. These include only a single Boundary lines for the ranges of the employed by Ollivier et al. (2001) and large, systematic sample effort, from members of the Siskiyou Mountains Welsh et al. (2007a, p. 18) was which two analyses were conducted salamander Complex have been inadequate to rigorously determine (Ollivier et al. 2001 and Welsh et al. variously estimated by several authors salamander absence as required for the 2007a). These analyses found positive (DeGross 2004, p. 15; Nauman and presence-absence statistical modeling relationships between detection of Olson 2004, p. 2; 2007, p. 4) and have method used to analyze the data. The Siskiyou Mountains salamanders (and changed through time as additional single-visit sampling methodology these possibly Scott Bar salamanders) and populations were discovered and results authors employed is more appropriate habitat characteristics that likely of genetic analyses were obtained. For for comparisons of relative abundance moderate surface microclimates for the purposes of this finding, we among habitat types, which is how we them (e.g., high canopy closure, more delineated species’ ranges and interpreted their results. The fact that leaf litter cover, more decaying logs). calculated landscape statistics based on

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range boundaries proposed by Nauman ranges are intended for use in evaluating range. Many occupied locations exist and Olson (2007, p. 4) but we slightly species’ distribution across various land within watersheds that have sustained modified these boundaries based on ownership and Federal land allocations; considerable physical modification by new species locations, watershed they are not intended to represent historical mining, roadbuilding, and boundaries, and distribution of suitable precise estimates of occupied habitat. logging. As described above, the species’ habitat. Based on the locations of Our understanding of the range and ranges appear to be defined by climatic genetic samples of Scott Bar distribution of the Siskiyou Mountains conditions, soil and parent material salamanders, we estimated its range to salamander Complex is dynamic; the type, and the adjacent Del Norte incorporate the southeastern portion of known range has roughly tripled salamander (Olson et al. 2007, p. 19). the former Siskiyou Mountains between 1980 and 2007, doubling Distribution salamander’s range. However, the between 1993 and 1998 (Olson et al. uneven distribution of surveys and 2007, p. 20). Biologists familiar with the The distribution of Siskiyou small number of locations with genetic species believe that the currently known Mountains and Scott Bar salamander confirmation creates uncertainty as to range is well-defined to the east by xeric populations within their respective the actual extent of the Scott Bar conditions and unsuitable soil types, species’ ranges is poorly known. With salamander. The resulting estimated and to the west by the range of the Del the exception of systematic surveys range (136,740 ac (55,335 ha)) is Norte salamander (Olson et al. 2007, p. conducted by Ollivier et al. (2001) and considerably larger than previous 19). However, it is likely that the known Nauman and Olson (2004a and 2004b), estimates that were based on a small range will continue to be refined and the majority of surveys have been number of genetically confirmed expanded through discovery of opportunistic or conducted in support locations; some of this expansion is the additional populations to the south in of timber management planning result of confirmation of one Scott Bar the Scott River, Canyon Creek, Kelsey activities. Large areas within the salamander location in the Walker Creek Creek, and Upper Grider Creek species’ known ranges remain drainage (DeGross 2007). Several drainages, and to the north in the unsurveyed due to poor access or lack watersheds in the southern portion of Applegate River drainage. For example, of planned projects requiring surveys. the estimated range delineated by two detections of salamanders described The lack of systematic surveys may Nauman and Olson (2007, p. 4) do not as Siskiyou Mountains salamanders result in biased estimates of population have records of Siskiyou Mountains or were reported by a Survey and Manage distribution. For example, because Scott Bar salamander locations. Review Guidelines survey crew near the town of CDFG requires surveys for Siskiyou of these areas by species experts Rogue River in 2006 (DeGross 2007). If Mountains salamanders and Scott Bar (Cuenca 2007; Clayton 2007) indicated confirmed, these detections would salamanders during the Timber Harvest that surveys have not been conducted represent a range expansion of roughly Plan (THP) review process, a high there, but suitable habitat is widespread. 5 miles (mi) (8.45 kilometers (km)). proportion (40 percent) of known Scott Additional surveys and genetic analyses We were unable to find any Bar salamander locations have been are necessary to adequately delineate information suggesting that the reported on private timberlands, which the southern boundary of the Scott Bar occupied range of any member of the accounts for only 22 percent of the salamander and Siskiyou Mountains Siskiyou Mountains salamander known range of the species (see Table 1 salamander. Our estimates of species’ Complex is different from its historical below).

TABLE 1.—PROPORTION OF LAND OWNERSHIP WITHIN THE ESTIMATED RANGES OF SISKIYOU MOUNTAINS SALAMANDERS (SMS) AND SCOTT BAR SALAMANDERS (SBS)

Applegate Grider Scott Bar SMS–SBS SMS SMS salamander complex (%) (%) (%) (%)

Private Lands ...... 15 9 22 15 Federal Lands: USFS ...... 66 91 78 76 BLM ...... 19 0 0 9 Total Area (ac) ...... 248,870 174,285 136,740 559,895 Total Area (ha) ...... 100,712 70,529 55,335 226,578

Population distribution is strongly (4,047 to 6,070 ha)) consisted of suitable Siskiyou Mountains salamander was influenced by the abundance and rock substrate (USDA and USDI Species composed of suitable talus habitat. distribution of suitable talus habitat. Review Panel 2001). Based on surveys The Siskiyou Mountains salamander Using a Geographic Information System and mapping of rock habitat, Timber Complex occurs within a roughly (GIS)-based predictive model, the Products Company estimated that 500,000 ac (202,346 ha) area dominated Survey and Manage Guidelines Species approximately 18 percent of their by Federal lands (see Table 1). The Review Panel for Siskiyou Mountains surveyed lands within the range of the range of the Applegate Population salamanders estimated that roughly 30 Scott Bar salamander was composed of (North Clade) of the Siskiyou Mountains percent of the known range north of the suitable talus habitat (Farber 2006). salamander occurs within 248,870 ac Siskiyou Crest consisted of high-quality Using a similar methodology, Fruit (100,712 ha), consisting primarily (85 talus habitat (USDA and USDI Species Growers Supply Company (2007) percent) of Federal lands, and more than Review Panel 2002), but pre-disturbance estimated that 19 percent of 2,615 ac 90 percent of the 174,285 ac (70,529 ha) surveys conducted in the same area (1,058 ha) surveyed within the range of range of the Grider Population (South found that 3 to 14 percent of a given the Applegate Population of the Clade) of the Siskiyou Mountains planning area (10,000 to 15,000 ac salamander occurs on Federal lands (see

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Table 1). The Scott Bar salamander has salamanders are very low, even though reasons, the currently known numbers the smallest range, covering the species may be locally quite of Siskiyou Mountains salamanders and approximately 136,740 ac (55,335 ha), abundant (Nussbaum 1974, p. 3; Clayton Scott Bar salamanders are more and occurs on the smallest proportion of et al. 1999, p. 133). Results of surveys representative of the distribution and Federal lands (78 percent) within the within habitat known to be occupied are intensity of survey efforts than of actual complex (see Table 1). frequently negative (Clayton et al. 2004, salamander populations. Known populations appear to be well- p. 10; CDFG 2005, p. 10). Individual The numbers of known locations of distributed across their respective populations likely range in size from a Siskiyou Mountains salamanders and species’ ranges. To evaluate spatial few individuals to thousands of Scott Bar salamanders have increased distribution of salamander locations individuals (Nussbaum 1974, p. 16; steadily since the discovery of these within each species’ range at a coarse Welsh and Lind 1992, p. 96). Based on species. For example, the number of scale, we compared known locations to extrapolation of salamander densities watershed boundaries within each obtained during intensive field surveys, known locations of Scott Bar species’ range. Site locations of the Nussbaum (1974, p. 16) provided a salamanders on lands managed by Applegate Population of the Siskiyou species-wide ‘‘conservative estimate’’ of Timber Products Company increased Mountains salamander occur within 19 over 3 million Siskiyou Mountains from 8 in 1997 to 36 in 2007 (Farber of the 21 watersheds that constitute the salamanders, and opined that the actual 2007c). To describe the number and range of this group. The range of the abundance could be 10 times as high. distribution of known salamander Grider Population of the Siskiyou While the author acknowledged that a locations, we obtained location data Mountains salamander is composed of number of methodological problems from Federal and State agencies and 36 watersheds of which 23 (64 percent) may affect this estimate, it nonetheless private timber companies and combined contain known populations. The 13 suggests that the perceived rarity of this them into a single GIS layer. Because of watersheds without known salamander species may be more related to low variability in methods used by various locations are primarily situated in detectability than to actual population agencies to delineate individual Wilderness and Roadless areas where size. locations (many locations were clumped access is difficult and few surveys have Our current understanding of less than 328 ft (100 m) apart), we been conducted. Known locations of population sizes for Siskiyou Mountains evaluated the proximity of adjacent Scott Bar salamanders occupy 17 of the salamander and Scott Bar salamander is locations and retained only locations 25 watersheds within their range. Of the based primarily on the cumulative greater than 328 ft (100 m) apart, to eight watersheds without known number of occupied sites or locations minimize the inclusion of multiple locations, six are within Wilderness and that have been reported over time. records at discrete locations. The Roadless areas where suitable habitat However, these numbers may be resulting numbers are intended to exists but surveys have not been misleading for several reasons. At many represent individual populations, but conducted. locations, particularly sites detected likely still contain multiple records Nauman and Olson (2007) conducted during project surveys under Survey from large habitat patches and likely surveys at a stratified random sample of and Manage Guidelines, no attempt was differ from previous estimates based on points located on Federal lands within made to determine population size; dissimilar mapping methods. the range of the Grider Population of the detection of a single individual was Within each of the genetic subunits in Siskiyou Mountains salamander and the adequate to define an occupied site. the Siskiyou Mountains salamander Scott Bar salamander. They found Because of this, large habitat patches Complex, the number of locations with occupancy rates (presence or absence) to potentially supporting many individual individuals that have been genetically be similar at high-elevation (greater than salamanders are counted as equivalent confirmed to the species level is much 4,000 feet (ft) (1,219 meters (m)) sites to small habitat patches or detections of and low-elevation (less than 4,000 ft dispersing individuals. In addition, smaller than the overall number of (1,219 m)) sites, but relative abundance large areas of suitable habitat remain known locations. For example, the (captures per person, per hour) at low- unsurveyed, particularly in Wilderness, estimated range of the Scott Bar elevation sites was roughly twice that at Roadless Areas, and Late-successional salamander is defined on the basis of 23 high elevation. The authors conducted a Reserves where access is poor or project genetically confirmed locations from the single survey visit per site during one surveys are typically not conducted samples of Mahoney, Mead, and season, and did not evaluate the (Late-successional Reserves are a NWFP DeGross; however, the defined range of potential effect of variable detection land allocation designed to serve as the species contains 98 additional probabilities at different elevations on habitat for late-successional- and old- salamander locations previously their results, which, as noted above, growth-related species). For example, attributed to the Grider salamander. may underestimate the number of approximately 10 percent and 26 Because populations of the two species animals actually present; however, their percent of the range of the Scott Bar tend not to overlap (Mead 2006, p. 10), findings suggest that these salamanders salamander and Grider salamander, it is reasonable to conclude that all may be less abundant or less detectable respectively, is classified as ‘‘Roadless salamander detections within what is at higher elevations. Area.’’ Finally, known locations are now known to be the range of the Scott frequently spatially clumped, and no Bar salamander are Scott Bar Population Size and Trend uniform effort to distinguish between salamanders. For the purposes of this Evaluation of potential population individual populations has been finding, we used the total number of sizes for the Siskiyou Mountains undertaken. Agencies and researchers individual locations within each salamander and Scott Bar salamander is involved with these species employ species’ range, recognizing that ongoing strongly influenced by the species’ low several criteria (e.g., 164 to 492 ft (50 to genetic studies may modify the detectability and the amount and 150 m) spacing, presence of perennial boundaries of these subunits, and distribution of potentially suitable stream or area of unsuitable habitat) to therefore the number of known habitat. Because of their secretive imply separation between occupied individual sites within each genetic habits, detection rates for these locations or ‘‘populations.’’ For these subgroup.

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TABLE 2.—NUMBER OF KNOWN LOCATIONS AND PERCENT OF TOTAL KNOWN SISKIYOU MOUNTAINS SALAMANDERS (SMS) AND SCOTT BAR SALAMANDERS (SBS) ON FEDERAL AND PRIVATE LANDS

Applegate Grider Scott Bar SMS–SBS SMS SMS salamander 1 complex

Federal lands ...... 376 (85%) 74 (97%) 69 (60%) 519 (82%) Private Lands ...... 64 (14%) 2 (3%) 46 (40%) 112 (18%)

Total ...... 440 76 115 631 1 Number of known Plethodon sp. locations within the presumed range of the Scott Bar salamander.

Density their study design did not support this activities are highly restricted within Population densities for the Siskiyou type of inference. Late-successional Reserves. Congressionally Reserved Areas, such as Mountains salamander Complex are Land Management poorly known. Estimation of population Wilderness Areas, Wild and Scenic density for these salamanders is Populations of Siskiyou Mountains Rivers, and National Monuments, are hindered by low detectability and salamanders and Scott Bar salamanders incorporated into the design of the Late- highly variable environmental or habitat receive an added layer of security from successional Reserve System. Riparian conditions during surveys (Nussbaum several conservation efforts on Federal Reserves provide an area along all 1974, p. 15). Densities recorded during lands. The majority of the Siskiyou streams, wetlands, lakes, ponds, and the habitat associations study conducted Mountains salamander Complex occurs unstable areas where riparian- by Ollivier et al. (2001, p. 16) ranged within lands administered under the dependant resources receive primary from 1 to 13 animals per 527-ft2 (49-m2) provisions of the NWFP (USDA and management emphasis. Maintenance of search plot (i.e., 0.02 to 0.33 animals per USDI 1994) (see Table 1 above), which forested conditions in Riparian Reserves m2); whereas Nussbaum (1974, p. 16) was established to provide an for shading and water quality is also recorded 0.53 animals per m2 during an ecosystem-based management strategy expected to contribute to dispersal and intensive field study. Nauman and for late-successional forests and the breeding habitat for late-successional Olson (2007, p. 19) reported an average wildlife species that inhabit them species. Adaptive Management Areas of 0.01 salamanders per m2 and 2.39 (USDA and USDI 1994). The NWFP (AMAs) are established to develop and salamanders per person, per hour in consists of two primary parts that test new management approaches and California, with capture rates ranging concern salamander conservation: (1) A timber harvest methods to integrate and from 2.83 salamanders per person, per system of land-use allocations with achieve ecological and economic health, hour at lower elevations to 1.25 associated Standards and Guidelines to and other social objectives. Matrix lands salamanders per person, per hour at guide land management; and, (2) until consist of those Federal lands outside of higher elevation sites. An inventory of recently, the Survey and Manage the four other categories described all known Siskiyou Mountains Mitigation Measure Standards and above. Production of timber and other salamander sites on the Applegate Guidelines, which provided species- commodities is an important objective Ranger District in 1992 reported specific management guidance for for Matrix lands. However, forests in the abundances of salamanders ranging certain groups of species. The NWFP Matrix also provide connectivity from 0.3 to 11 salamanders per person, Record of Decision (ROD) was between Late-successional Reserves and per hour (Olson et al. 2007, p. 13). None implemented as amendments to all function as habitat for a variety of forest- of these studies was designed to existing land and resource management dwelling species. The NWFP Matrix estimate salamander density, and mark- plans for the Bureau of Land Standards and Guidelines are designed recapture studies that would permit Management (BLM) and USFS within to provide for important ecological estimation of density have not been the range of the northern spotted owl. functions such as dispersal of conducted. Lands administered by the USFS and organisms, carryover of some species BLM are divided into five primary from one stand to the next, and Population Trend categories of land management under maintenance of ecologically valuable We were unable to locate any the NWFP: Late-successional Reserves, structural components such as logs, information describing population Congressionally Reserved Areas, snags, and large trees. The Matrix also trends for the Scott Bar salamander or Riparian Reserves, Adaptive provides ecological diversity by Siskiyou Mountains salamander (or Management Areas, and Matrix. Late- providing early-successional habitat. either of its constituent populations). successional Reserves are established Within Matrix, other land use Several authors have inferred with an objective to protect and enhance allocations such as Visual Emphasis population declines based on conditions of late-successional and old- Areas, Managed Wildlife Areas, and observations of habitat modification growth forest ecosystems, which serve Retention Areas carry additional within occupied areas (Ollivier et al. as habitat for late-successional, forest- restrictions on timber harvest and to 2001, p. 5; Welsh 2005, pp. 5–7), but related species. Forest management some degree function as reserves.

TABLE 3.—FEDERAL LAND ALLOCATIONS WITHIN THE ESTIMATED RANGES OF THE SISKIYOU MOUNTAINS SALAMANDER (SMS) AND SCOTT BAR SALAMANDER (SBS)

Applegate Grider Scott Bar SMS–SBS SMS SMS salamander complex

Total area in ac (ha) ...... 248,870 174,285 136,740 559,895 (100,712 ) (70,529) (55,335 ) (226,578 )

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TABLE 3.—FEDERAL LAND ALLOCATIONS WITHIN THE ESTIMATED RANGES OF THE SISKIYOU MOUNTAINS SALAMANDER (SMS) AND SCOTT BAR SALAMANDER (SBS)—Continued

Applegate Grider Scott Bar SMS–SBS SMS SMS salamander complex

Private Lands (%) ...... 15 9 22 15 Federal Lands (%): Reserves ...... 33 73 51 50 Adaptive Management Area 1 ...... 42 0 0 19 Matrix-retention 2 ...... 1 13 19 9 Matrix-general forest 3 ...... 9 5 8 7 1 Experimental management to meet ecological, economic, and social goals. 2 Timber harvest restricted to accommodate various other management goals. 3 Timber production is a high priority.

Roughly 33 percent of the range of the higher proportion of reserved lands (USDA and USDI 2000, Appendix F; p. Applegate salamander occurs within occur at higher elevations, which are 101). Criteria for including a taxon in reserves (Late-successional Reserves, less suitable for the species. The authors Category C are: (1) There is not a high Wilderness, Riparian Reserves, and concluded that reserved land allocations concern for persistence; (2) it is likely other land allocations withdrawn from may not provide adequately for that not all known sites are necessary scheduled timber harvest), 42 percent of conservation of the species but for reasonable assurance of persistence the range within the Applegate described a number of sampling issues of the taxon; (3) the taxon is uncommon Adaptive Management Area, 9 percent (single-visit protocol, unequal sampling (as opposed to rare); and (4) pre- in Matrix, and 15 percent on private of strata) that may weaken this disturbance surveys are required until a lands (see Table 3 above). Nearly three- conclusion. population network is established. The quarters of the range of the Grider management objective for the Siskiyou Survey and Manage Mitigation Measure salamander is in reserves, and 18 Mountains salamander under Category Standards and Guidelines percent is in Matrix; however, almost C is to identify and manage high- three-fourths of the Matrix is in land-use In addition to the NWFP’s system of priority sites to provide for reasonable allocations (retention areas) where land-use allocations and management assurance of persistence. The current timber harvest is restricted (USDA 1994, standards and guidelines, specific status of the Siskiyou Mountains pp. 4–73 to 4–176). Fifty-one percent of mitigation measures were included for salamander was assigned in the March the Scott Bar salamander’s range is in about 400 rare or poorly known species. 14, 2003, Implementation of the 2002 reserves, and an additional 19 percent We refer to this broadly as the Survey Annual Species Review Memorandum occurs within retention areas (Wild and and Manage Program. The Survey and (USDA and USDI 2003). Because of their Scenic Rivers, Retention Visual Quality Manage Program contains an adaptive smaller number of known sites and Objective). Overall, only approximately management provision, establishing the patchy distribution, salamander 14 percent of the range of the Applegate Species Review Process wherein species populations south of the Siskiyou Crest salamander, 24 percent of the range of experts (‘‘taxa teams’’) evaluate and were assigned to Category A, requiring the Grider salamander, and 30 percent synthesize the latest information about pre-disturbance surveys and of the range of the Scott Bar salamander each species. Reports from the taxa management of protection buffers for all are composed of Matrix-General Forest teams are then used by the agencies to known sites. Northern populations were and private timberlands, where propose changes to management of assigned to Category D. Management intensive timber management would be these taxa, as appropriate. The Siskiyou objectives for Category D species are to expected to occur. However, because Mountains salamander was included in identify and manage high-priority sites varying levels of timber management the original list of Survey and Manage to provide for a reasonable assurance of occur within the Applegate Adaptive species under Survey Strategies 1 and 2 species persistence; pre-disturbance Management Area in the range of the (USDA and USDI 1994, pp. C–59, C–45). surveys are not required. Applegate salamander, up to about 66 Survey and Manage guidelines for these The USFS and BLM have determined percent of this species’ range is salamanders required that known to remove the Survey and Manage available for various levels of timber salamander sites be managed via Program, and in July 2007 published harvest and cannot be considered to be protection buffers (Strategy 1), and that their Record of Decision (2007 ROD) to reserve lands. surveys be conducted prior to ground- implement this decision (see ‘‘Summary Little is known about the actual disturbing activities such as timber of Factors Affecting the Species: Factor distribution of salamander populations harvest (Strategy 2). Protection buffer D’’). Therefore, at this time, the Survey among the land-use allocations standards and guidelines for Siskiyou and Manage Program has been described above. Nauman and Olson Mountains salamanders required the eliminated for project planning and new (2007) attempted to evaluate the retention of all overstory trees within a decisions. However, because of the lag occurrence of Grider salamanders and buffer of at least the height of one site- time in implementation of the 2007 Scott Bar salamanders by conducting potential tree or 100 feet horizontal ROD, most new Federal land surveys at a stratified random sample of distance, whichever is greater, management decisions issued in 2008 points in reserved and matrix land surrounding the location. As a result of will be compliant with the Survey and allocations at high (greater than 4,000 ft the 1999 Species Review Process, the Management guidance for the Siskiyou (1,219 m)) versus low (less than 4,000 ft Siskiyou Mountains salamander was Mountains salamander (West 2007); (1,219 m)) elevation. They found that reclassified as a Category C species in implementation of new projects capture rates for these species were the Final Supplemental Environmental compliant with the 2007 ROD is higher on matrix lands, likely because a Impact Statement (FSEIS) for the NWFP unlikely until 2009. We therefore view

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the Survey and Manage guidelines as individual sites. Of 316 known The Conservation Strategy was existing habitat management until after salamander locations on Federal lands, authored by four of the most published 2008. Unless the 2007 ROD is 151 (48 percent) were included in the scientific experts on this species (D. successfully challenged in court, project 110 high-priority salamander Olson, D. Clayton, H. Welsh, and R. decisions after 2008 will no longer management areas selected (some Nauman, among others), and contain protections currently provided management areas encompassed incorporates habitat modeling and risk by the Survey and Manage provisions. multiple salamander sites). Of the 110 assessment in the evaluation of species The Survey and Manage guidelines selected sites, 44 are on BLM lands and persistence and distribution within the have provided additional security for 66 are on the Rogue River-Siskiyou strategy area. The Conservation Strategy salamander populations across the vast National Forest. Each high-priority also contains provisions to support majority of the range of the Siskiyou salamander-management site is monitoring and strategic surveys to Mountains salamander. With the intended to maintain a subpopulation of address gaps in our knowledge of the removal of the Survey and Manage Siskiyou Mountains salamanders over species and its conservation. Funding Guidelines under the 2007 ROD, the long term (100 years). Because for these efforts is anticipated to come management of these species will be habitat-disturbing activities are from the USFS and BLM’s Special based on the USFS’s Special Status regulated to varying degrees across the Status Species programs. Species Program and the BLM’s entire NWFP area occupied by the Implementation and effectiveness of this Sensitive Species Program (Hughes salamanders, the scientists who Conservation Strategy will be reviewed 2007). The Special Status Species and developed the strategy anticipate that every five years by BLM, USFS, and the Sensitive Species programs are many additional populations will Service. Based on these regular reviews, anticipated to provide less stringent continue to persist in reserved lands or significant information that may protections than those in the Survey and and in Matrix where habitat is retained become available between the five-year Manage Program; however, they include for other reasons (Olson et al. 2007, p. reviews, the Conservation Strategy may provisions for development of 21). be revised to refine the plan or address Conservation Strategies and Each high-priority salamander- emerging issues. Conservation Agreements. management site was evaluated for In anticipation of the discontinuation Based on ecological and management application of one of two management of the Survey and Manage Program, information in the Annual Species strategies. The first strategy focuses on biologists from the Klamath National Reviews and strategic surveys, the taxa maintaining habitat conditions for Forest (KNF) and the Service’s Yreka team joined with additional species salamanders at the site by limiting Fish and Wildlife Office (YFWO) are experts to formalize the Survey and activities that may have adverse effects developing a Conservation Strategy to Manage Program objectives for Siskiyou Mountains salamander. In anticipation on substrate, ground cover, forest guide management of both Grider and of the eventual removal of the Survey condition, or microhabitat and Scott Bar salamander populations on and Manage Program, they developed microclimate. The second strategy lands administered by the KNF. This their management recommendations allows for greater latitude in activities at Strategy would apply to over 90 percent into a Conservation Strategy for the high-priority site by applying the of the range of the Grider salamander Siskiyou Mountains Salamanders in the existing National Fire Plan Fire DPS, and 78 percent of the Scott Bar Northern Portion of the Range (Olson et Management Recommendations to the salamander’s range. The draft KNF al. 2007). The USFS and BLM high-priority site. This two-tiered Strategy does not require surveys to be committed to implement this approach attempts to integrate the fire conducted prior to ground-disturbing Conservation Strategy in the August 16, ecology of the area, current forest activities; instead, all suitable 2007, Conservation Agreement for the conditions, fuel loads, and proximity to salamander habitat (talus substrate) is Siskiyou Mountains Salamander populated areas while providing for the assumed to be occupied and managed (Plethodon stormi) in Jackson and persistence of Applegate salamander for long-term persistence of salamander Josephine Counties of southwest Oregon populations over the long term. populations. Similar to the Conservation and in Siskiyou County of northern The Conservation Strategy contains a Strategy for Applegate salamanders California (USDA and USDI 2007; USDI rigorous risk assessment (Olson et al. (Olson et al. 2007), the draft KNF 2007b). 2007, p. 22 and Appendix 2), which Strategy balances protection of existing In accordance with management concludes that implementation of the suitable habitat with active management objectives for Category D species, the Strategy presents an extremely low risk of risks such as hazardous fuels. Small Conservation Strategy relies on long- to the species’ persistence at the range- habitat patches (less than 5 ac (2 ha)) term management of a subset of known wide scale. This conclusion is based on and locations with high likelihood of salamander sites. A panel of scientists evaluation of the comparative risk of occupancy by salamanders (lower and resource managers selected high- losses of individuals or subpopulations slopes, northerly exposures) receive priority sites and considered a number due to fuels management activities strict protective guidelines; whereas of criteria including existing Federal versus higher risk of losses if high- habitat patches on upper slopes with Standards and Guidelines for the intensity wildfires occur at untreated southerly exposures may receive fuels planning area, distribution and quality sites. Other risks posed by other forest reduction treatments that reduce canopy of habitat, known locations of management activities are ameliorated closure to a limited degree. salamanders, and potential risk factors by the protection-buffer approach As discussed below in Factor D, we such as fire hazard, road density, and adopted from current Survey and are not relying on implementation of the land ownership. To ensure the existence Manage guidance. Redundancy of Conservation Strategies in making our of well-distributed, interacting protected sites and a mix of protective determination that listing the Siskiyou subpopulations, these criteria were and restoration approaches across the Mountains salamander and Scott Bar evaluated at three spatial scales: The entire range of the Applegate salamander is not warranted. We have entire Applegate River watershed, 19 salamander also act to increase the included this discussion solely as smaller watersheds within the likelihood of persistence over the long background for the public and to Applegate River watershed, and term. acknowledge USFS and BLM efforts to

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further reduce possible threats to the wide range of forest conditions, silviculture on Siskiyou Mountains species. including in recently clear-cut sites and salamander depend primarily on the in open-canopy forest (e.g., Bull et al. intensity and scale of the disturbance. Summary of Factors Affecting the 2006, p. 24; Farber et al. 2001, p. 13; We are aware of two studies analyzing Species Farber 2007, p. 3). The conclusions of the effects of timber harvesting on Section 4 of the Act (16 U.S.C. 1533) these studies do not necessarily conflict Siskiyou Mountain salamanders. The and implementing regulations at 50 CFR since it is possible that these first was conducted in Siskiyou County, part 424 set forth procedures for adding salamanders occur within a wide range California by the USFS (D. Clayton, species to the Federal List of of habitat conditions while selectively cited in Bull et al. 2006, p. 21; Olson et Endangered and Threatened Wildlife. In using or receiving greater fitness from a al. 2007, p. 16). This study compared making this finding, we summarize subset of them, or are more easily abundances of Siskiyou Mountains below, information regarding the status detected in a subset of them. salamanders through time at a clear-cut and threats to this species in relation to Alternatively, these species may select site and an adjacent selectively cut site. the five factors in section 4(a)(1) of the habitat based on attributes that are not In the clear-cut site, the researchers Act. In making our 12-month finding, dependent on forest age or structural found 40 salamanders (10 salamanders we considered and evaluated all class. For example, they may select per person, per hour) the spring after the scientific and commercial information habitat with cool, moist microclimates, harvest, one juvenile the following year, in our files, including information which are common in mature forests but no animals in the subsequent 7 years, received during the public-comment also occur under other conditions (e.g., and one juvenile during an period that ended May 29, 2007. in deep drainages or on north-facing opportunistic survey in the tenth year. Siskiyou Mountains Salamander slopes). The paucity of rigorous In comparison, they consistently found scientific information about Siskiyou 3 to 6 salamanders per person, per hour Factor A: The Present or Threatened Mountains salamanders makes an in the selectively cut site during the Destruction, Modification, or accurate evaluation of their habitat same years sampled (Bull et al. 2006, p. Curtailment of the Species’ Habitat or associations (see Habitat Associations 21). The CDFG resurveyed the same Range section above) and sensitivities to clear-cut site in the spring and fall of the Like other plethodontids, Siskiyou timber harvesting difficult. Information eleventh year post-harvest (Bull et al. Mountains salamanders require about the effects of timber harvesting on 2006, p. 21). Single surveyors found moisture for respiration (Nussbaum et this species is currently limited to 10.6 salamanders per person, per hour al. 1983, pp. 73, and 90). This inferences based on the physiology of in the spring and 4.25 salamanders per physiological requirement limits the this species, two studies of the effects of person, per hour in the fall. This result time during which they are active at the timber harvesting on Siskiyou suggests that, while Siskiyou Mountains soil’s surface to relatively brief, rainy Mountains salamanders, and salamanders may be negatively periods in the spring and fall extrapolation of inferences from studies impacted by intensive timber (Nussbaum et al. 1983, pp. 102–103; of the effects of timber harvesting on management practices such as clear- Clayton et al. 1999, p. 133). These other species of plethodontid cutting, they are able to recover in, or salamanders engage in important salamanders. recolonize, some clear-cuts as vegetation behaviors, including foraging and recovers. As importantly, less intensive Timber harvesting may negatively breeding, during periods of surface harvest methods may have less impact affect Siskiyou Mountains salamander activity (Feder 1983, p. 296). During the on salamander abundance. However, by reducing soil moisture and remainder of the year, they retreat into inferences from both sets of surveys are rocky substrates, which provide refuge increasing soil temperature. Studies by highly limited because the surveys did from the climatic extremes of the Chen et al. (1993, pp. 233–234; 1995, not include pre-harvest data and were eastern Klamath Mountains (Nussbaum pp. 77–82; 1999, pp. 292–294) in Pacific conducted in only one pair of plots. et al. 1983, p. 102). Given their Northwest Douglas fir forests found that In a nearby area, Fruit Growers physiology and life histories, both soil and air were drier and warmer Supply Company monitored Siskiyou disturbances that reduce surface and in clear cuts and clear-cut forest edges Mountains salamanders on the Elliot Fly soil moisture, relative humidity, or than in adjacent old-growth forest. Timber Harvesting Plan. They suitable rocky substrates may negatively These results indirectly suggest that monitored salamanders on 39 plots (35 affect these species. Disturbances that clear-cutting may negatively affect these harvested and 4 controls). The possibly impact Siskiyou Mountains animals. We are not aware of any harvesting method was a selective cut, salamanders include timber harvesting, studies on the effects of other and logs were removed by helicopter, a fires, road construction, mining, and silvicultural techniques on forest method which significantly reduces the quarrying. microclimates. However, alternative amount of ground disturbance. Plots even-age harvesting techniques were surveyed prior to harvest, 1 year Effects of Timber Harvesting on Siskiyou (shelterwood and seed-tree cuts), post-harvest, and 10 years post-harvest Mountains Salamanders uneven-age harvesting (single tree and (Taylor 2007, p. 1). Estimates of relative Timber harvesting may impact group selection harvesting), and abundance (count data) in the harvested Siskiyou Mountains salamander by thinning retain more canopy cover than plots ranged from 1.8 to 2.0 captures per killing individuals or by reducing does clear-cutting and, therefore, survey compared to 2.0 to 3.2 captures habitat quality. Ollivier et al. (2001, pp. probably have lower impacts on forest per survey in unharvested controls, and 41–42) and Welsh et al. (2007a, p. 28) microclimates. The effects of timber did not significantly change during the found that Siskiyou Mountains harvesting also strongly depend on the study. These results suggest that the salamanders were associated with silvicultural prescription (e.g., the harvest did not significantly adversely characteristics found in mature forests, volume of wood removed and the size, affect the salamanders (Taylor 2007, p. such as dense canopy cover, large- volume, and distribution of retained 3). The determination of no significant diameter trees, and mossy ground cover. trees, snags, and logs) and on site- difference between treatments and Other studies have shown that Siskiyou specific factors (e.g., climate and slope control plots was likely influenced by Mountains salamanders occur within a aspect). We expect that the effects of the high variability observed within and

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between plots. All Siskiyou Mountains movements were substantially smaller Timber Harvesting Effects on Other salamander life stages were found in the than these: 22 ft (6.7 m) over 2 years Plethodontids harvested plots, likely indicating that (Lowe 2001, p. 27) and 16.7 ft (5.1 m) To support their assertion that the these populations continued to over 6 months (Karraker and Welsh Siskiyou Mountains salamander is reproduce following harvesting. 2006, p. 136). Siskiyou Mountains threatened by timber harvesting, the Although this study used a more salamanders, and in particular Scott Bar petitioners cite studies of other closely rigorous design and was larger than the salamanders, have relatively longer related species. Most studies of the nearby USFS paired-plot study, its limbs than Del Norte salamanders and closely related Del Norte salamander inferences are also limited because pre- may be capable of longer movements, indicate that this salamander is more harvest data were only collected one but their dispersal abilities are still abundant in mature forest than in other year prior to harvest and the study plots likely limited. Some researchers have forest age classes (Raphael 1988, p. 27; were not randomly selected. suggested that dispersing juvenile Welsh and Lind 1991, p. 400; Welsh and All life-history stages of Siskiyou Siskiyou Mountains salamanders Lind 1995, p. 208). In contrast, Diller Mountains salamander, including gravid readily colonize logged sites (Welsh and Wallace (1994, p. 316) did not females (carrying eggs), have been found 2005, pp. 1–2) and road cutbanks detect a relationship between forest age in open-canopy forest and recent clear- (Nussbaum 1974, p. 13). Alternatively, it and the presence of Del Norte cuts (Farber et al. 2001, p. 13; Bull et al. is possible that salamanders in 2006, p. 24; Farber 2007, p. 3). However, salamanders near the northern regenerating logged sites and road California coast. It is possible that forest little is known about relationships cutbanks are indicative of population between forest conditions and the structural characteristics (e.g., canopy persistence and recovery following cover) more strongly influence population dynamics of the Siskiyou disturbance, rather than extirpation and Mountains salamander. Welsh et al. microclimates for salamanders in the subsequent recolonization. interior of the Klamath Mountains than (2007b) analyzed relationships between Welsh and Ollivier (1995, pp. 8–9) forest age class and the age structure near the coast, where temperatures are suggested that tractor yarding of logs more moderate and moisture is less and body condition of both Siskiyou during timber harvesting may impact Mountains salamanders and Scott Bar limiting. Siskiyou Mountains salamanders by Karraker and Welsh (2006, p. 137) salamanders. All salamander age classes compacting, breaking, or realigning were found in pre-canopy (0 to 33 years) found lower abundances of Del Norte talus. If tractor yarding has these effects, salamanders in clear-cuts than in sites, but 8 of 11 individuals detected in it could reduce the interstitial spaces in those sites were juveniles or subadults. mature stands. All salamander life talus and thereby reduce habitat quality If representative of population age stages were observed in clear-cuts, for these species. Although it is structure, this observation could indicating that reproduction was reasonable to conclude that tractor indicate that pre-canopy sites function occurring in them. Abundances were yarding may disturb talus substrates, as ‘sink’ or dispersal habitat for non- similar in commercially thinned and research has not demonstrated how this reproductive individuals. Alternatively, mature stands. Welsh et al. (2007b) affects salamander populations. high proportions of juveniles could found significant positive relationships indicate high reproductive rates and In summary, rigorous research of the between forest age class and presence population recovery following logging. effects of timber harvesting on Siskiyou and abundance of Del Norte Sample sizes were too small to test these Mountains salamanders is needed, but salamanders. Adult salamanders hypotheses. Welsh et al. (2007b) also intensive timber harvesting practices, accounted for a larger proportion of found that Siskiyou Mountains such as clear-cutting and tractor individuals observed in old-growth salamanders in mature (100 to 199 yarding, appear to have negative short- (older than 200 years) and mature (100 years) sites had significantly higher term (30 years or less) effects on to 199 years) stands than they did in median body condition (ratio of body abundance, population structure, and young (31 to 99 years) stands. The mass to length) than those in young sites body condition of these species (Welsh authors suggested that higher (31 to 99 years). This could indicate that et al. 2007b). Intensive timber proportions of adult salamanders are young forest stands provide lower harvesting likely affects these indicative of greater population stability quality habitat than mature stands. salamanders by changing forest for this species. In contrast, salamanders Timber harvesting could also affect characteristics that influence at pre-canopy (0 to 33 years), young, and Siskiyou Mountains salamanders at microclimates for them, for example, by old-growth sites had higher median spatial scales larger than individual opening the forest overstory and body condition than those in mature salamander sites. The petition to list the understory canopies and reducing stands or the reference site (thought to Siskiyou Mountains salamander (Center coverage of down wood and leaf litter. be a high-quality site). The authors for Biological Diversity et al. 2004, p. 8) Despite these effects, it is also clear that speculated that the apparent asserts that timber harvesting creates the salamanders frequently persist in inconsistencies in their results were gaps in the distribution of this species intensively harvested habitats, and there related to greater competition and because it is rarely able to recolonize is no information suggesting that poorer body condition in sites with habitat after local populations are populations are permanently extirpated higher salamander abundances, but extirpated. Indirectly supporting this by timber harvest. It is unknown more research is needed to test this hypothesis, studies of the closely related whether these salamanders may be hypothesis. Biek et al. (2002, p. 137) Del Norte salamander showed that it is temporarily extirpated from severely found similar abundances of Del Norte highly sedentary and, therefore, likely to disturbed sites or simply retreat salamanders in clear-cuts and mature have limited dispersal abilities. Welsh underground during the initial period of forests in Oregon, apparently and Lind (1992, p. 427) reported that the post-disturbance recovery. Alternative contradicting the results of the studies longest movement by an individual Del silvicultural techniques, such as discussed above. Norte salamander was 119 ft (36.2 m) thinning, selective harvesting, and Evaluation of studies of the effects of over 6 months, and Lowe (2001, p. 27) helicopter yarding, appear to be less timber harvesting on plethodontids found that the longest movement was harmful to these salamanders than more outside the Plethodon elongatus 129.9 ft (39.6 m) over 2 years. Average intensive harvesting methods. Complex may improve our

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understanding of the effects of equal or exceed numbers on forested intensive timber management harvesting on Siskiyou Mountains plots by 20 to 24 years after cutting (Ash (regeneration harvests, overstory salamanders. However, these studies 1997, pp. 985–986). Knapp et al. (2003, removal) has declined sharply, from an should be cautiously considered due to pp. 754–758) used a randomized, average of 3,733 ac per year from 1988 differences in the natural histories of replicated design to quantify to 1991, to 38 ac per year from 2000 to these species. Most plethodontids plethodontid salamander populations 2006. Intensive harvest prescriptions occupy soil, surface litter, and woody on harvested timberlands of the such as clear-cutting were not used in debris in mesic environments (e.g., Appalachian Mountains in Virginia and 2001 or 2002, nor in 2004 to 2006 where it frequently rains during West Virginia. While salamander (USDA 2007b). Likewise, timber harvest summer), whereas Siskiyou Mountains abundances were lower in clear-cuts on the Rogue River National Forest salamanders occupy talus substrates, than in control plots, there were no (which comprises roughly 66 percent of which provide refuge from the differences in the proportion of gravid the range of the Applegate Population of temperature extremes and dry females or in the average number of eggs the Siskiyou Mountains salamander conditions that characterize the eastern in gravid females. Moreover, there were (Clayton 2007b) declined by 96 percent Klamath Mountains. no differences in the proportion of during the last 30 years. Annual timber Grialou et al. (2000, pp. 108–110) juvenile animals, except in one harvest during the 1980s averaged 182 found that western red-backed plethodontid species, which had a million board feet, compared with 8 salamanders in mesic forests in higher proportion of juveniles in uncut million board feet per year from 2000 to southwestern Washington occupied treatments. recent clear-cuts (2 to 4 years post- 2006 (USDA 2007c). Since 1996, only harvest) but at significantly lower Extent of Timber Harvesting Within the one timber sale has been sold and abundances than in adjacent older Range of the Siskiyou Mountains harvested on the Rogue River National stands. Body sizes of salamanders Salamander Forest’s Applegate Ranger District. (subadults and juveniles) were smaller Evaluation of the threat potentially Timber harvest, particularly intensive the year after harvesting but were posed by modification or loss of habitat harvest methods, has also declined normal by the second year. Gravid via timber harvest must be based on an dramatically on lands administered by females were captured on clear-cut plots assessment of the biological the BLM within the range of Applegate before and after harvest. Grialou et al. mechanisms involved, as well as salamander. Mean annual harvest on the (2000, p. 111) suggested that reduced quantification of the likelihood of those BLM’s Ashland Resource Area have abundances of western red-backed mechanisms occurring to an extent and declined from 2,240 ac (907 ha) per year salamanders in clear-cuts were related magnitude reasonably expected to result between 1995 and 2000, to 664 ac (269 to soil compaction, loss of woody in the threat of extinction. The extent ha) per year between 2001 and 2007 debris, and decreased leaf litter cover and magnitude of potential effects (USDI 2007a). Less than 270 ac (109 ha) associated with harvesting. Bury and caused by timber harvest are strongly per year have been harvested since 2003 Corn (1988, p. 171) reported influenced by existing land management (USDI 2007a). Intensive harvest plethodontid salamanders to be absent regulations on the majority of the methods, such as clear-cuts and in four clear-cut study sites, but their species’ ranges. Approximately 85 shelterwood harvests, have declined results were equivocal because percent of the range of the Siskiyou from 54 percent of acres harvested in detection rates were very low in all of Mountains salamander occurs on the mid-1990s, to less than 1 percent of the habitats studied. In contrast to the Federal lands managed under the NWFP the annual harvest since 2001. The above studies, Corn and Bury (1991, p. (USDA and USDI 1994) (see Table 3 implementation of the NWFP and 311) found that abundances of western above). In general the system of reserves subsequent declines in timber harvest red-backed salamanders were not and management guidelines provided levels on Federal lands, particularly significantly different in recent clear- by the NWFP provide a substantial intensive harvests thought to potentially reduction in the likelihood of cuts (less than 10 years old) and old- affect salamanders, greatly reduces the widespread habitat alteration due to growth forest. likelihood that a substantial proportion Studies of plethodontids in the mid- timber harvesting. of the salamanders’ populations will be western and eastern United States (Ash The rate and extent of timber harvest affected by logging. We anticipate that 1997, p. 985; deMaynadier and Hunter has declined dramatically on Federal 1998, pp. 344–345; Herbeck and Larsen lands within the NWFP area during the reduced levels of timber harvest will 1999, p. 626) and western Canada past 30 years (USDA and USDI 2005), continue into the foreseeable future (Dupuis et al. 1995, p. 648) indicated particularly on the Klamath National because this has been the trend for the that clear-cutting can have significant Forest, which comprises roughly 91 last 30 years and we have no substantial short-term impacts on plethodontid percent of the range of the Grider information that indicates that this salamander abundance. Dupuis et al. salamander. These reductions have been trend will be reversed in the foreseeable (1995, p. 648), Ash (1997, p. 987), and primarily due to the implementation of future. In addition, the essential goals of Herbeck and Larsen (1999, p. 626) the NWFP and other Federal land the NWFP remain in effect and we have reported that plethodontid salamanders management regulations. During the 6- no information that would lead us to were frequently absent from 2- to 5-year- year period from 2000 to 2005, the anticipate changes to the overall goals of old clear-cut stands. However, the Klamath National Forest sold and this ecosystem management strategy. impact of clear-cutting on these removed an average of 15.9 million The removal of the Survey and Manage salamanders may be temporary, as one board feet of timber annually, compared guidelines is relevant only to occupied study (Ash 1997, pp. 985–986) showed with 187.8 million board feet per year salamander sites that overlap with that salamanders returned to clear-cut during 1985 to 1990 (inclusive), and Federal forest management projects; this areas 4 to 6 years after cutting, and their 238.2 million board feet per year from comprises a very small fraction of the return was followed by rapid increases 1979 to 1984; this marks a reduction of NWFP area and will have an in their numbers. Statistical modeling of roughly 93 percent from the 1979 to insignificant effect on the overall levels salamander abundances on clear-cut 1984 period (USDA 2006a). Perhaps of timber harvest within the range of the plots indicated that salamanders would more importantly, the amount of Siskiyou Mountains salamander.

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Intensive timber harvest methods 2004, pp. 933–934). Climate changes Roads and Road Construction such as clear-cutting are extremely associated with global warming are Research suggests that forest roads limited in extent on Federal lands expected to increase the frequency of may significantly restrict movements within the ranges of these salamanders, large, severe fires in this region (see and local abundances of plethodontid but where they occur they may Factor E discussion below). However, salamanders (deMaynadier and Hunter reasonably be expected to have negative fire modeling suggests that the level of 2000, pp. 63–64; Marsh et al. 2005, p. impacts on salamander populations. tree mortality would be highly variable 2006; Semlitsch et al. 2007, p. 159). The available evidence does not within the geographic ranges of these Forest roads may reduce dispersal by demonstrate that the less-intensive species (USDA 1999, pp. 2–76 and 2–82; salamanders, leading to lower gene flow harvest methods commonly employed Suzuki and Olson 2007, p. 8), resulting and reduced long-term persistence of on Federal lands have had substantial in a mosaic pattern of habitat effects. populations (Marsh et al. 2005, p. 2007). impacts to salamander populations, and Similar mosaics of effects have been Conversely, Nussbaum (1974, p. 13) we do not anticipate such impacts in the documented for large fires in other found numerous salamander locations future. However, we acknowledge that regions (e.g., Eberhart and Woodard within road cuts, and suggested that the the relationship between degree of 1987, pp. 1207–1212). In addition, the road construction provided habitat in management intensity and effects to talus outcrops inhabited by these salamanders requires further the form of newly exposed fissured salamanders may modify the behavior of investigation. rock, or at least did not render the Intensive timber harvesting practices fire (e.g., Major 2005, p. 95) by acting as adjacent habitat unsuitable. Within the on private timberlands affect only 10 minor fuel breaks and influencing the ranges of the Siskiyou Mountains percent of the Siskiyou Mountains mosaic of burned and unburned areas. salamander, roads are typically salamander’s range. The majority of The direct effects of fire on these constructed for access to timber harvest private lands within the salamander’s species are unknown but interstitial operations. While road densities are range occur as small parcels (typically spaces in deeper talus habitat likely high in some areas within the ranges of one square mile or less) in a provide underground refugia for these the salamanders (USDA 1999, pp. 2–31), checkerboard pattern surrounded by salamanders during fires (DeGross and the amount of road construction activity Federal lands. Salamander populations Bury 2007, p. 7). In addition, wildfires has declined sharply as timber harvest on private lands may be negatively typically burn during the dry summer levels have dropped. Road affected by timber harvesting but are and fall months when the salamanders decommissioning projects may have short-term localized effects to rock dispersed among populations on are not on the surface; the period of substrates, but are designed to re-create Federal lands where management is surface activity coincides with wet a natural substrate. The small area more favorable. This acts to maintain climatic conditions prohibitive to affected by road construction and the redundancy, distribution, and wildfire. connectivity among Siskiyou Mountains linear nature of habitat impacts, salamander populations within the mix The indirect effects of fire on these combined with the ability of salamander of Federal and private lands. In species are also unknown. Severe populations to occupy road cuts, suggest addition, surveys and monitoring of wildfires, by definition, remove or that forest roads do not pose a Siskiyou Mountains salamanders on significantly reduce canopy cover; significant threat to populations of private timberlands demonstrate that consume moss, duff, and forest litter; Siskiyou Mountains salamanders (Olson numerous populations of Siskiyou and may sterilize surface soil layers. et al. 2007, p. 17). We are not aware of Mountains salamanders continue to Siskiyou Mountains salamanders any other information that suggests that exist post-harvest and some exhibit occasionally use woody debris as cover the presence of roads or road evidence of normal population structure during surface activity, and canopy and construction presents a substantial (Farber et al. 2001, p. 13; Bull et al. leaf litter cover may influence habitat threat to the Siskiyou Mountains 2006, p. 24; Farber 2007, p. 3), quality for them (see Habitat salamander. indicating that extirpation of Associations section), so these habitat Mining and Rock Quarrying salamander populations on harvested changes likely affect salamanders during private timberlands is not a substantial some period of post-fire recovery. Some sites occupied by the Siskiyou Mountains salamander have evidence of threat to the species. We are unaware of any studies of the previous mining activity. It is unclear effects of prescribed burning on Wildfire whether or how salamanders in those Wildfire is thought to be a potential Siskiyou Mountains salamanders. sites may have been affected by these threat to Siskiyou Mountains Prescribed fires are usually applied in activities. Rock quarrying could pose a salamander habitat (Olson et al. 2007, the spring or fall, when moisture levels greater threat to individual populations pp. 15, 25–26). Fire suppression and minimize the risk of damage to mature because of the potentially greater logging have altered forest structure and trees and unacceptable spreading of fire. intensity of the disturbance. However, increased fuel loading in much of the Moisture levels during periods of this activity occurs within an extremely Klamath-Siskiyou region (Skinner et al. surface activity by these species are small proportion of this species’ range, 2006, pp. 178–179). Fire regimes within higher than those that are appropriate and is unlikely to have more than the ranges of the species have largely for prescribed burning, so the risk of localized effects (Olson et al. 2007, p. shifted from frequent, low-to-moderate direct mortality during prescribed fires 17). We are not aware of any or mixed-severity fires to less frequent, is likely low. Prescribed fires could information that suggests that mining or more severe fires (Agee 1993, pp. 388– temporarily reduce the quality of habitat rock quarrying presents a substantial 389; Taylor and Skinner 1998, p. 298; for these species by consuming threat to the Siskiyou Mountains USDA 1999, pp. 2–76 and 2–82; Skinner understory vegetation, down wood, salamander. et al. 2006, p. 191). However, debate litter, and duff. Conversely, the benefits exists concerning the extent to which of prescribed fires may outweigh their Summary of Factor A this effect is operating in the Klamath costs to salamanders in some areas by While intensive timber management and Siskiyou Mountains (Odion et al. reducing the risk of severe wildfires. practices such as clear-cutting appear to

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have negative impacts on the abundance Wildfires are expected to occur and Factor C: Disease or Predation of Siskiyou Mountains salamanders, this may reduce habitat quality for some Chytridiomycosis is a relatively practice is severely restricted on Federal salamander populations; however, the recently described epidermal infection lands that constitute the vast majority of effects of wildfires on salamander of amphibians caused by the chytrid the species’ range. Less intensive habitat are temporary and populations fungus Batrachochytrium dendrobatidis. harvest practices appear to have appear to recover as vegetation recovers. Chytridiomycosis has been implicated relatively minor or short-term impacts Wildfires typically burn in a mosaic in mass mortalities, population to salamander abundance, and the pattern of intensities, leaving a variety declines, and extinctions of some available evidence suggests that of habitat conditions for salamanders amphibian species, but species appear salamander populations persist in a within burned areas. to vary in their susceptibility to the broad range of forest habitat conditions In summary: disease (Daszak et al. 1999; Blaustein et and under different management (1) There is no evidence that the range al. 2005; Ouellet et al. 2005; Pearl et al. practices. of the Siskiyou Mountains salamander 2007). This disease is most likely Current management on Federal lands has changed from its historical size. under the provisions of the NWFP transmitted to amphibians by contact (2) Despite over a century of mining, with infected water or other amphibians protects salamanders via a system of road building, and intensive timber reserves and land management (Johnson and Speare 2003, p. 922). harvest, salamander populations remain Batrachochytrium dendrobatidis guidelines (see Background Information: well-distributed in a wide variety of Land Management) that dramatically requires moisture for survival (Johnson habitat conditions. and Speare 2003, p. 922) and is reduce the likelihood of large-scale (3) Results of field studies and reduction of suitable or occupied therefore more likely to pose a threat to surveys indicate that salamander aquatic amphibians than to terrestrial habitat. Until recently, the Survey and populations recover following intensive Manage guidelines also served to protect ones. However, a chytrid infection was habitat disturbances. recently found in a terrestrial occupied salamander sites from (4) On Federal lands, which constitute disturbance from management activities. salamander, the Jemez Mountains the majority of this species’ range, In the northern portion of the range, a salamander (Plethodon neomexicanus), NWFP land allocations and Standards Conservation Strategy has been living in a wet meadow (Cummer et al. and Guidelines (excepting the Survey implemented that will essentially 2005, p. 248). Infected aquatic and Manage program) and other continue the Survey and Manage amphibians appeared to be the most regulations contained in Land and Protections for Applegate salamander. likely source of transmission of the Resource Management Plans provide a However, even without Survey and disease to this individual. Bullfrogs broad range of protections for Manage or Conservation Strategy (Rana catesbeiana) infected with B. salamander habitat. protections, the available evidence does dendrobatidis were recently found in a not show that timber harvest practices (5) The rate and intensity of timber pond in Trinity County, California on Federal lands, either alone or in harvest has declined dramatically on (Bettaso and Rachwicz 2006, p. 162), so combination with other habitat Federal lands and there is no reliable it is possible that the disease occurs, or disturbing activities such as mining, information suggesting that harvest rates will soon occur, within the range of the road building or wildfire, have or intensity will increase substantially Siskiyou Mountains salamander. substantially reduced the habitat or in the foreseeable future. Nonetheless, we do not anticipate that range of this species or are likely to do (6) While more intense harvesting the Siskiyou Mountains salamander will so in the foreseeable future. may occur on private lands, these lands be exposed to this disease or that Intensive timber harvesting practices, are patchily distributed among Federal exposure would lead to transmission such as clear-cutting and shelterwood land holdings and taken together through a significant portion of its removal, are more likely to occur on constitute less than 10 percent of the range. This species is not associated private timberlands. While it is species’ range. with bodies of water, occurs in a reasonable to assume that abundance (7) Available evidence does not characteristically dry environment, is and population structure of Siskiyou indicate that other potential habitat only active above ground for brief and Mountains salamander populations on threats to salamanders, individually or intermittent periods during the year, private timberlands may be negatively in combination with timber harvest (i.e., and appears to have limited dispersal affected by timber harvesting and other wildfire, mining and rock quarrying, abilities. Given these restrictions, we habitat disturbances, these lands and road building) have resulted in, or believe that the Siskiyou Mountains constitute less than 10 percent of the are likely in the foreseeable future to salamander is unlikely to be exposed to species’ range. Other factors combine to result in, significant habitat loss that diseased water or infected aquatic greatly reduce the likelihood that would pose a threat to salamanders. amphibians and, if infected, is unlikely Siskiyou Mountains salamander Therefore, we conclude that the to transmit the disease between populations will be threatened by Siskiyou Mountains salamander is not populations. management activities on private lands: now or in the foreseeable future, The Service is not aware of any (1) The majority of private lands within threatened by destruction, modification, predators that potentially pose a threat the species’ range occur as small parcels or curtailment of its habitat or range. to the species. (typically one square mile or less) in a Therefore, we find disease or Factor B: Overutilization for checkerboard pattern surrounded by predation does not threaten now, or in Commercial, Recreational, Scientific, or Federal lands; and (2) many salamander the foreseeable future, the Siskiyou Educational Purposes populations have persisted on private Mountains salamander across its range. timberlands in spite of a history of We are not aware of any information timber harvest. We, therefore, conclude that indicates overutilization for Factor D: Inadequacy of Existing that timber harvesting and other commercial, recreational, scientific, or Regulatory Mechanisms management practices on private lands educational purposes threatens now, or To the extent that we identify do not constitute a substantial threat to in the foreseeable future, the Siskiyou possibly significant threats in the other the Siskiyou Mountains salamander. Mountains salamander across its range. factors, we consider under this factor

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whether those threats are adequately the removal of the Survey and Manage security provided by Survey and addressed by existing regulatory Program. Manage Protections for the Siskiyou mechanisms. Thus, if a threat is minor, In January 2006, the court in Mountains salamander, our evaluation listing may not be warranted even if Northwest Ecosystem Alliance v. Rey, of the potential threats to this species existing regulatory mechanisms provide 2006 U.S. Dist. Lexis 1846 (N.D. Wash.) does not indicate that the Survey and little or no protection to counter the ordered the March 2004 ROD set aside Manage Protections are key to the threat. for failure to comply with the National species’ persistence. The petitioners cite Environmental Policy Act. With this As described above in the statements in the 2004 FSEIS (USDA order, the court reinstated the 2001 and USDI 2004) indicating that loss of ‘‘Background: Land Management’’ Survey and Manage ROD, which had section, habitats occupied by Siskiyou the Survey and Manage Protections modified the original Survey and could result in gaps in the distribution Mountains salamanders receive Manage Program but maintained protection from a number of sources of Siskiyou Mountains salamander. In protections for the salamanders. At the addition, the Species Review Panel such as the NWFP and other Federal end of July 2007, the USFS and BLM land management regulations. Until (USDA and USDI 2001, p. 16) issued a new ROD (2007 ROD) to concluded that ‘‘[i]t is likely that non- recently, protections for the Siskiyou remove the Survey and Manage Mountains salamander on Federal lands protected land allocations will be Mitigation Measure Standards and required in order to ensure persistence included the Survey and Manage Guidelines portion of the Northwest Mitigation Measure Standards and for the species, both in the northern and Forest Plan. Following issuance of the southern portions of the range’’ Guidelines portion of the NWFP. On 2007 ROD, the USFS and BLM private lands in California, the species indicating that current reserves may be petitioned the court to lift or modify the inadequate. We have carefully evaluated complex receives protection pursuant to injunction against projects that relied on the California Endangered Species Act this information, and we find that these the 2004 ROD. In its November 21, conclusions are no longer consistent (CESA). The future of some of these 2007, order, the court denied the regulations (Survey and Manage with the current scientific knowledge agencies’ request (Conservation about the Siskiyou Mountains Program and State Protections) is in Northwest v. Mark E. Rey 2007 U. S. flux. salamander and Scott Bar salamander, Dist. Lexis 88541 (N. D. Wash.)), but did because: (1) The conclusions were made Federal Lands not rule on the sufficiency of the 2007 based on a much smaller number of ROD. known populations (161) than what is Survey and Manage Mitigation Measure With issuance of the 2007 ROD, the known today (631); (2) they are based on Standards and Guidelines Survey and Manage Program has been a single unpublished habitat- eliminated for new project planning and associations study by Ollivier et al. Siskiyou Mountains salamanders and decisions. However, because of the lag (2001); and (3) they assumed extirpation their habitat have received an additional time in implementation of the 2007 of populations that experience any layer of security from the Survey and ROD, most new Federal land degree of timber harvesting. As Manage Mitigation Measure Standards management decisions issued in 2008 described previously under ‘‘Summary and Guidelines (Survey and Manage will be compliant with the former of Factors Affecting the Species: Factor Program) under the NWFP (USDA and Survey and Management guidance for A,’’ the best available evidence indicates USDI 1994). The Survey and Manage the Siskiyou Mountains salamander that Siskiyou salamanders persist in Program provided specific guidance for (West 2007); implementation of new areas affected by timber harvest, and in management of both genetic subunits of projects compliant with the 2007 ROD particular, in areas subject to the less the Siskiyou Mountains salamander. is unlikely until 2009. Although judicial Management guidance for Applegate challenge to the removal of the Survey intensive harvesting methods employed salamander populations included and Manage Program in the 2007 ROD on the vast majority of Federal lands identification of high-priority sites that is very likely, we assume for purposes that make up the species range and will be managed to provide a reasonable of this finding that the Survey and there is little evidence to support the assurance of long-term species Manage Program will not remain in speculation that the rate and intensity of persistence. In the southern portion of effect in the future. timber harvest on Federal lands will the range (Grider and Scott Bar Assuming the removal of the Survey increase in the foreseeable future, with salamanders), protections included the and Manage Program, management of or without the Survey and Manage requirement of surveys prior to land this species will be based on the USFS’s protections. management activities, and restrictions Special Status Species Program and the Conservation Strategies of habitat-altering activities such as BLM’s Sensitive Species Program timber harvesting at occupied sites (see (Hughes 2007). The Special Status Conservation Strategy for the Siskiyou ‘‘Background: Land Management’’). The Species and Sensitive Species programs Mountains Salamander—Northern USFS and BLM decided to remove the are anticipated to provide less stringent Portion of the Range Survey and Manage Program from the protections than those in the Survey and As discussed in detail above under NWFP, and published their ROD Manage Program; however, they include the Species Information: Land entitled ‘‘To Remove or Modify the provisions for development of Management section, in anticipation of Survey and Manage Mitigation conservation strategies and the eventual removal of the Survey and Measures Standards and Guidelines in Conservation Agreements, which, as Manage Program, a team of researchers Forest Service and Bureau of Land discussed previously under ‘‘Land and biologists from USFS Pacific Management Planning Documents Management,’’ has already occurred Northwest Research Station and the Within the Range of the Northern with regard to the Applegate Service formalized the existing Survey Spotted Owl’’ in March 2004 (March salamander, and is under development and Manage Category D objectives for 2004 ROD). The FSEIS for the March for the Grider salamander and Scott Bar the Siskiyou Mountains salamander in 2004 ROD identified potential salamander. the northern portion of its range mitigation measures, including sensitive It is important to note that, while the (Applegate salamander) in a species programs, for species affected by Service recognizes the added layer of Conservation Strategy (Olson et al.

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2007). The USFS and BLM committed to intensive disturbance, and, as described factors A through E of Section 4(a)(1) of implement this Conservation Strategy in above under Factor A, there is little the Act, now or in the foreseeable the August 16, 2007, Conservation evidence to suggest that substantial future, substantial enough to warrant its Agreement for the Siskiyou Mountains losses of populations will occur as a listing under the Act. Therefore, Salamander (Plethodon stormi) in result of foreseeable forest management although implementation of the Jackson and Josephine Counties of activities. The Conservation Strategy Conservation Strategy may be beneficial southwest Oregon and in Siskiyou was authored by four of the most- for the Siskiyou salamander, we did not County of northern California (USDA published scientific experts on this rely on it in making our determination and USDI 2007; Olson et al. 2007). species (D. Olson, D. Clayton, H. Welsh, that the species does not warrant listing. However, because of the limited nature and R. Nauman, among others), and of the threats addressed by the incorporates habitat modeling and risk Western Oregon Plan Revisions conservation Strategy, we did not rely assessment in the evaluation of species on it in determining whether listing the persistence and distribution within the The WOPR are a proposal by the BLM Siskiyou Mountains salamander is strategy area. The petitioners present no to revise six resource management plans warranted. information or analysis to support their (RMPs) that cover all BLM-administered The petitioners (Greenwald and Curry contention that the expert team lands in western Oregon. In August 2007, p. 9) questioned whether the BLM somehow erred in the development of 2003, the American Forest Resource will adhere to the Conservation the Conservation Strategy. Council, the Association of Oregon and Agreement because it is not The petitioners assert that the California Counties, and the Secretaries incorporated into the proposed Western Conservation Strategy is unlikely to be of Interior and Agriculture entered into Oregon Plan Revision (WOPR) Draft effective because it contains a settlement agreement requiring the Environmental Impact Statement (DEIS), management recommendations that BLM to revise its RMPs to meet the a proposal to modify the NWFP land appear to lack regulatory force mandated requirements of the Oregon allocations and standards and (Greenwald and Curry 2007, p. 10) and and California Railroad and Coos Bay guidelines on BLM lands in Oregon, further claim that the Conservation Wagon Road Grant Lands Act of 1937. which could potentially increase timber Strategy does not meet the standards of In accordance with this agreement, the harvest levels on BLM lands within the the Service’s Policy for Evaluating BLM is proposing to revise existing range of the salamanders. Because we Conservation Efforts (PECE) (68 FR RMPs to replace the NWFP land-use did not rely on the Conservation 15100; March 28, 2003) (Greenwald and allocations and management direction. Strategy in reaching our determination, Curry 2007, p. 11). In response to the In its August 16, 2007, DEIS for the the petitioners’ concern is not relevant. petitioners’ first concern, we have no Revision of the Western Oregon RMPs, In any case, the timing of development basis to conclude that the Federal the BLM describes three action and release of the WOPR DEIS parties to the Conservation Agreement alternatives designed to meet the precluded inclusion of the then- will fail to comply with their own purpose and need of the plan revisions, unsigned Conservation Agreement; the management guidance, and note that the and a no-action alternative. Each of the BLM has subsequently provided a letter Service will be a participant in the 5- action alternatives includes a range of to the Service clarifying the BLM’s year reviews described in the Strategy management strategies; however, none commitment to implement the under Adaptive Management (Olson et of the action alternatives propose to Conservation Strategy regardless of the al. 2007, p. 39–40). As described under retain NWFP late-successional reserves, eventual outcome of the WOPR proposal ‘‘Background: Land Management,’’ the and all action alternatives would result (USDI 2007b). Conservation Strategy for the Siskiyou The petitioners also question the Mountains Salamander, Northern in a reduction in riparian reserve areas. ability of the Conservation Agreement to Portion of the Range is simply the While these proposed revisions have conserve the Siskiyou Mountains formalization of existing Survey and the potential to increase timber salamander because it protects only Manage guidance for northern harvesting within the range of the roughly half of the currently known populations of Siskiyou Mountains Siskiyou Mountains salamander, we salamander locations and allows salamanders; guidance deemed cannot at this time predict which management of fire risk at 48 locations adequate by the petitioners (Center for alternative, including the no action (Greenwald and Curry 2007, pp. 10–11). Biological Diversity et al. 2003, p. 17) alternative, will be selected or evaluate Petitioners apparently assume that only and the Survey and Manage taxa team the potential effects to the 11 percent of the selected high-priority sites will experts. the range of the Siskiyou Mountains receive any degree of protection, In response to petitioners’ reliance on salamander that occurs on lands management guidelines designed to PECE, we emphasize that application of administered by BLM in Oregon. reduce fire risk at 48 sites will harm the PECE is inappropriate here. The populations, and significant losses of Service may rely on conservation efforts While the potential effects of possible Applegate salamander populations not that meet the standards of PECE in RMP changes on the small percentage of specifically protected by the strategy are making listing determinations. In other Siskiyou Mountains salamander’s range likely. Although we did not rely on the words, a conservation effort relied on that occurs on BLM lands are unknown, Conservation Strategy in reaching our consistent with PECE can be dispositive NWFP land-use allocations and conclusion, we note that the available as to the Service’s ultimate finding on management direction provides information does not support these the status of a species. The policy substantial protection for the Siskiyou assumptions. It is unlikely that a high therefore requires a high level of Mountains salamander and its habitat. If proportion of the non-network sites are certainty that conservation efforts will existing Federal management for the at risk because of other protections in be implemented and will be effective to Siskiyou Mountains salamander is place. For example, many of the 289 ameliorate threats that would otherwise modified in the future, the Service can Siskiyou Mountain salamander warrant listing of a species. Even in the consider any such changes in the locations not selected for the population absence of the Conservation Strategy, context of the degree and immediacy of network fall within NWFP reserves and we do not consider the threats to the potential threats to the Siskiyou other areas not likely to experience Siskiyou Mountains salamander under Mountains salamander at that time.

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State Regulations believes that the lack of regulatory regulatory mechanisms rather than In California, the Siskiyou Mountains protections on a small proportion of the speculate about future changes to those salamander is listed as a threatened species’ range in Oregon does not pose mechanisms. With the exception of the species and receives substantial a threat to the species in the foreseeable Survey and Manage guidelines, which protection pursuant to CESA. On private future. have been eliminated for future projects timberlands, this protection includes a Summary of Factor D on Federal lands, we assume that the requirement for pre-project surveys and NWFP and other land management The adequacy of existing regulatory prohibitions on timber harvest in regulations will continue as existing mechanisms to protect Siskiyou established buffers around occupied regulatory mechanisms that provide Mountains salamander populations suitable habitat. In May 2005, CDFG adequate conservation of Siskiyou must be evaluated in light of the degree Mountains salamanders. If Federal or submitted a petition to the California of threat potentially posed by the Fish and Game Commission to delist the State regulatory mechanisms are actions being regulated. As described modified or eliminated in the future, the Siskiyou Mountains salamander above under Factor A, Siskiyou throughout its entire range in California. Service can consider that information Mountains salamander populations may when evaluating the adequacy of then In August 2005, CDFG amended the find optimum habitat conditions in petition by removing that portion of the existing regulatory mechanisms to mature forest, but also occupy a wide protect the Siskiyou Mountains Siskiyou Mountains salamander’s range range of forest conditions and have been that is now known to be occupied by the salamander in the context of the degree shown to persist and recover following and immediacy of potential threats to recently described Scott Bar disturbances such as timber harvesting salamander. The private lands affected the Siskiyou Mountains salamander at and fire. Although not specifically that time. by the amended petition consititute aimed at conservation of Siskiyou In light of the ability for Siskiyou only 9 percent of the known range of the Mountains salamanders, land Mountains salamander populations to Siskiyou Mountains salamander in management guidance such as the persist in managed landscapes, we find California. The final determination on NWFP and other regulations provide whether to delist the Siskiyou protection of salamander habitat on that existing Federal regulatory Mountains salamander was scheduled Federal lands which constitute the vast mechanisms such as the NWFP and to be made at the Fish and Game majority of the species’ range. Although other provisions of Federal Land and Commission’s January 31, 2007, we have determined that the species Resource Management Plans, in meeting; however, that decision has does not warrant listing even in the combination with the Federal Special been postponed pending completion of absence of any reduction in threat Status Species programs, offer adequate environmental documents. Because of resulting from implementation of the protection for the Siskiyou Mountains controversy surrounding the proposed Conservation Strategy for the Siskiyou salamander and its habitat over the vast delisting, it is uncertain whether the Mountains salamander (Plethodon majority of its range, and conclude that existing regulatory protections will be stormi) in the Northern Portion of the this species is not now, or in the removed in the foreseeable future. If Range (Olson et al. 2007), that foreseeable future, threatened by existing State regulations are modified Conservation Strategy may provide an inadequate regulatory mechanisms. in the future, the Service can consider added layer of security to the Northern Factor E: Other Natural or Manmade such changes in the context of the Clade of Siskiyou Mountains Factors Affecting the Continued degree and immediacy of potential salamander populations. Existence of the Species threats to the Siskiyou Mountains Current California regulations provide salamander at that time. However, substantial protection for the Siskiyou Other natural or manmade factors that because of the small proportion of the Mountains salamander on the small may affect the persistence of the species’ range that occurs on private percentage of the species’ range in Siskiyou Mountains salamander within lands in California, combined with California that occurs on private lands. all or a significant portion of its range evidence that Siskiyou Mountains The California Fish and Game are climate changes associated with salamander populations persist in Commission is currently evaluating a global warming and stochastic events, disturbed habitats, we find that removal petition to delist the Siskiyou which are rare, chance events, such as of CESA protections would not pose a Mountains salamander, but has not epidemics and large, severe wildfires. substantial threat to the species. reached a decision regarding this action. Climate Change No specific regulatory mechanisms to However, we find that the removal of protect the Siskiyou Mountains CESA protections would not pose a There is considerable uncertainty salamander exist on the approximately substantial threat to the species, because associated with projecting future seven percent of the species’ range that of the small proportion of the species’ climate changes. This uncertainty is occurs on private lands in Oregon. range that occurs on private lands in partly due to uncertainties about future However, most of these lands occur as California, combined with evidence that emissions of greenhouse gases and to small (one square mile or less) parcels Siskiyou Mountains salamander differences among climate models and distributed in a checkerboard pattern or populations persist in disturbed simulations (Stainforth et al. 2005, pp. as isolated parcels within Federal lands habitats. Oregon does not provide 403–406; Duffy et al. 2006, p. 874). We where management is more favorable for regulatory protections for the Siskiyou are not aware of any climate change salamanders and serves to maintain Mountains salamander on private lands. simulations for the Klamath-Siskiyou redundancy, distribution, and However, private lands in Oregon region, but the results of numerous connectivity among Siskiyou Mountains comprise only seven percent of the climate change simulations for salamander populations. In addition, Siskiyou Mountains salamander’s entire California and the Pacific Northwest research indicates that populations of range (both clades) and are scattered have been published (see below). Siskiyou Mountains salamander persist among Federal lands that compose the Together, these simulations describe a following timber harvesting and recover vast majority of the species’ range. range of plausible outcomes from as vegetation is re-established (see Under Section 4(a)(1)(D) the Service increased emissions of greenhouse Factor A). Therefore, the Service must evaluate the adequacy of existing gases.

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All studies we reviewed predicted increase in annual precipitation (Cayan greenhouse gases will cause large-scale continued increases in average surface et al. 2006, p. 17; Maurer 2007, p. 317). replacement of evergreen conifer forest temperatures in California and the Warming temperatures are consistently (e.g., Douglas fir-white fir) with mixed Pacific Northwest in response to projected to increase the proportion of evergreen forest (e.g., Douglas-fir- increased emissions of greenhouse gases precipitation that falls as rain rather tanoak) in the Klamath-Siskiyou region. (Leung and Ghan 1999, p. 2031; Snyder than as snow in California and the This redistribution of vegetation types is et al. 2002, p. 1; EPRI 2003, p. 95; Pacific Northwest (Leung and Ghan predicted to occur under conditions Hayhoe et al. 2004, p. 12422; Cayan et 1999, p. 2041; Snyder et al. 2002, p. 3; created by two contrasting climate al. 2006, p. 11; Duffy et al. 2006, p. 873; Hayhoe et al. 2004, p. 12425; Cayan et change models (Lenihan et al. 2003a, Maurer 2007, p. 317; Salathe´ et al. al. 2006, p. 31; Maurer 2007, p. 319). pp. 23–25). Because Siskiyou Mountains submitted, pp. 8–9). The magnitude of Earlier and more rapid snowmelt and salamanders already occur within projected increases in annual average decreases in the proportion of mixed evergreen forest, we do not temperature varied widely among precipitation that falls as snow are anticipate a direct negative effect to the studies, depending on the models and expected to cause declines in spring species from this potential change. emissions scenarios used, from 3 to 10.4 snowpacks (Hayhoe et al. 2004, p. However, the species may shift its range degrees Farenheit (°F) (1.5 to 5.8 degrees 12422; Cayan et al. 2006, p. 31; Maurer to higher elevations, following Celsius (°C)), by the year 2100 (EPRI 2007, p. 309). Declines in spring elevational changes in climate and 2003, p. 3; Hayhoe et al. 2004, p. 12423; snowpacks have already occurred in vegetation. Numerous indirect effects of Cayan et al. 2006, pp. 11–14; Maurer some areas and are correlated with community composition shifts on the 2007, p. 317). Simulations consistently global warming trends (Mote 2003, pp. Siskiyou Mountains salamander could project more pronounced temperature 1–4). Some areas will experience occur, but the net effect of these shifts increases in California during the increased cloud cover as surface is currently impossible to predict owing summer months than during other times temperatures continue to increase to the lack of information about this of the year, 3.9 to 14.9 °F (2.2 to 8.3 °C) (Croke et al. 1999, pp. 2128–2134). One species’ ecology. by 2100 (Hayhoe et al. 2004, p. 12422; model projected a greater increase in Despite variability in climate change Cayan et al. 2006, p. 14; Maurer 2007, low cloud cover during spring in the simulations, consistent projections for p. 317). Some simulations projected Pacific Northwest, especially near the warmer summers, reduced spring more rapid temperature increases at coast (Salathe´ et al. submitted, pp. 14– snowpacks, and earlier and more rapid higher elevations than at lower ones 16). snowmelt suggest that forests in (Leung and Ghan 1999, p. 2047; Salathe´ Lower proportions of snow versus California and the Pacific Northwest et al. submitted, pp. 10–12). Most rain and earlier and faster snowmelt will experience longer fire seasons and researchers attributed this difference to could enable the Siskiyou Mountains more frequent, extensive, and severe a snow-albedo feedback effect; this salamanders to become surface active fires in the future (Flannigan et al. 2000, occurs when increased surface earlier in the spring. We currently do pp. 221–229; Lenihan et al. 2003a, p. 18; temperatures cause earlier and faster not know whether or how a shift in the Whitlock et al. 2003, pp. 13–14; snow melt, which, in turn, allows more timing of surface activity might affect McKenzie et al. 2004, pp. 897–898). absorption of heat by the ground and the viability of these species. Little is However, inconsistent predictions for further increases in surface known about the physiological precipitation, including increased cloud temperatures. sensitivities of the Siskiyou Mountains cover and rainfall, make this outcome Increased average surface salamanders to temperature, but an uncertain. temperatures could cause soils used by increase in spring cloud cover could The Siskiyou Mountains salamander Siskiyou Mountains salamanders to directly benefit them by moderating has experienced other large changes to become warmer, and possibly drier, daily temperature ranges during their global and regional climates during its during the dry season. If this occurs, it periods of surface activity. Superficially, history. For example, global could negatively affect these species increased precipitation might also temperatures during the Pliocene warm because they are associated with cool, directly benefit the species, while period (5 to 3 million years ago) were moist soil conditions (see Habitat decreased precipitation might approximately 5.4 °F (3 °C) higher than Associations above). However, we negatively affect it. For example, today (Ravelo et al. 2004, p. 263). More expect that the Siskiyou Mountains changes to the timing and amount of recently, several large changes to salamanders will be somewhat buffered precipitation could alter the length or climate, fire regimes, and vegetation from changes to soil surface conditions frequency of the species’ periods of occurred in the Klamath-Siskiyou region because they are primarily active below surface activity or the size or location of during the Holocene (approximately ground during the dry season. its geographic range. Changes to cloud 12,000 years to present day) (e.g., Mohr Salamanders at shallow sites may be cover or the amounts, timing, and form et al. 2000). Little is known about how more negatively affected by drying and of precipitation could also have the Siskiyou Mountains salamander heating of the soil surface than those at complex indirect effects on the species; responded to prehistoric climate deeper sites since they will be less able for example, through influences on changes or how those responses might to respond to changing soil vegetation, disturbance regimes, inform us about the impacts of future microclimates with vertical movements. competitors, predators, or prey. changes. Increased surface temperatures could Evaluation of the potential effects of Stochastic Events have unpredictable indirect effects on changes to precipitation on the Siskiyou these species: For example, through Mountains salamander should become Siskiyou Mountains salamanders have effects on vegetation, disturbance more meaningful as emissions relatively small geographic ranges and regimes, competitors, predators, or prey. scenarios, climate change models, and limited dispersal abilities. Analyses of Reviews of a large number and variety our knowledge of these species continue the fossil record and of currently of climate change simulations found to improve. threatened species suggest that species that projected changes to precipitation Vegetation modeling by Lenihan et al. with these characteristics are at a higher in California were highly variable but (2003a, pp. 1–41; 2003b, pp. 1667–1681) risk of extinction than are mobile, clustered around no change or a slight projected that increased emissions of widely distributed species (Jablonksi

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1986; Manne et al. 1999; Dynesius and the species in some areas (see Factor A arranged for researchers to initiate field Jansson 2000; Jones et al. 2003; Payne above). studies to assess the distribution of and Finnegan 2007). Stochastic (rare, genetic entities within the salamander Summary of Factor E chance) events such as epidemics or complex, and demographic response of large, severe fires can threaten the Uncertainty is associated with these species to forest structure. persistence of species with restricted predicting future climate changes, but The petitioners’ primary argument for ranges because a single event can occur simulations have consistently projected listing the Siskiyou Mountains within all or a large portion of their continued increases in average surface salamander is founded on a chain of ranges. Species that are relatively temperatures, reduced spring inferences, which may be simplified sedentary are probably less able than snowpacks, and a lower proportion of into the following: (1) The salamanders mobile animals to escape stochastic precipitation falling as snow during this are highly dependent on old growth events and their effects, or to recolonize century. Given its physiology, this forest conditions; (2) disturbances such parts of their range where they have species may be strongly affected, as timber harvesting that modify forest been extirpated. Some researchers have positively or negatively, by changes to structure will extirpate populations; (3) suggested that the Siskiyou Mountains precipitation patterns. However, the extent and magnitude of such salamander is rare and patchily projections of future patterns of disturbances are sufficient to threaten distributed, which could further precipitation are highly variable for the species with extinction in the increase the species’ risks of extinction. northern California and southern immediate future; (4) therefore, highly However, the evidence cited above Oregon, precluding any reliable restrictive regulatory mechanisms are suggests that this salamander is in fact prediction of future effects on critical to prevent extirpation of well distributed within its range, that it salamander populations. populations by timber harvesting or The Siskiyou Mountains salamander likely occurs at high densities in some wildfire; and, finally, (5) existing has a relatively small geographic range, areas, and that it persists in areas that regulatory mechanisms are inadequate restricted habitat associations, and have experienced disturbances (see to ameliorate the perceived threats to limited dispersal abilities, which could Range and Distribution, and Factor A). the species. We find that there is little make it more vulnerable to stochastic evidence to support any of the five Epidemics and large, severe fires are events such as large, severe fires than above-mentioned assertions. two kinds of stochastic events that species without these characteristics. The available information indicates could negatively affect populations of Large, severe fires are also expected to that, while habitat conditions associated the Siskiyou Mountains salamander. increase in frequency in the Klamath- with dense mature forests may be However, these events are unlikely to Siskiyou region due to global warming optimal for the Siskiyou Mountains threaten the persistence of the species and other anthropogenic factors. salamander, populations occupy a wide across its range. The only lethal disease However, the high variability of wildfire range of habitats that provide the we are aware of that could behave as an effects at landscape scales, coupled with requisite elements of shading, moisture, epidemic in populations of this the apparent ability of the species to and cover. Salamander populations are salamander is chytridiomycosis persist and eventually recover following found in a wide variety of forest (Batrachochytrium dendrobatidis), but habitat disturbance (see Factor A above), conditions, including areas with this species does not appear likely to indicates that the Siskiyou Mountains evidence of past disturbances. Local contract this disease and the Siskiyou salamander has a high likelihood of abundance and fitness of populations Mountains salamander’s life history persistence in the foreseeable future. In may be negatively affected by more makes it unlikely that this disease addition, land management agencies intensive timber harvesting and would spread as an epidemic (see Factor within the ranges of the salamanders are wildfires, but salamander populations C above). The Siskiyou Mountains actively conducting fuels management appear to persist and recover as salamander is probably more likely to treatments to reduce the likelihood of vegetation is re-established following experience large, severe wildfires than wide-scale catastrophic fire. The future such intense disturbances, and these epidemics in the foreseeable future. effectiveness of these treatments is intensive timber harvest practices such Wildfires can occur over large areas unknown, but evidence suggests that at as clear-cutting are severely restricted relative to the range of the Siskiyou least local reductions in fire severity on the Federal lands that constitute the Mountains salamander. For example, will be achieved. Therefore, we majority of the species’ range. Less- 499,965 ac (202,329 ha) burned during conclude that the Siskiyou Mountains intensive harvest practices appear to the 2002 Biscuit Fire in southwestern salamander is not now, or in the have relatively minor or short-term Oregon and northwestern California, foreseeable future, threatened by the impacts on salamander abundance, and largely outside of the range of the individual or cumulative effects of there are many known populations on salamanders. Approximately 44 percent climate change, or stochastic events managed timberlands. There is no of the area (219,985 ac (89,025 ha)) was such as epidemics or large, severe reliable evidence that indicates loss of severely burned (USDA and USDI 2004). wildfires across its range. populations or curtailment of the In comparison, the species range of the species’ ranges has occurred. Siskiyou Mountains salamander is Finding Federal lands managed under the 423,155 ac (171,241 ha). However, We have carefully assessed the best provisions of the NWFP comprise the Siskiyou Mountains salamanders appear scientific and commercial information majority of the Siskiyou Mountains to be relatively resilient to disturbances available regarding threats faced by the salamander’s range. The NWFP acts to (see Factor A above), having evolved in Siskiyou Mountains salamander. We protect salamanders and their habitat a region where large wildfires are have reviewed the petition, information via a system of reserves and land characteristic. Further, past fire available in our files, and all management guidelines that behavior and modeling of future fire information submitted to us following dramatically reduce the likelihood of behavior suggest that large, severe fires our 90-day petition finding (72 FR large-scale reduction of suitable habitat. in this region will have a mosaic of 14750; March 29, 2007). We also Additional land allocations and effects, leaving unburned and lightly consulted with recognized salamander management guidance in Federal land burned patches of suitable habitat for experts and Federal land managers, and management planning documents

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(retention areas, Roadless Areas) and the salamanders does not support the Service and the National Marine Federal agencies’ Special Status Species contention that climate change poses a Fisheries Service (now the National programs provide additional layers of substantial threat to Siskiyou Mountains Oceanic and Atmospheric security against any long-term threats salamanders. Although most of the Administration—Fisheries), published a posed by timber harvesting or other land available models predict increases in Policy Regarding the Recognition of management activities. average temperatures, models were Distinct Vertebrate Population Segments Private lands comprise only about 10 inconsistent with regard to future in the Federal Register (DPS Policy) on percent of the species’ range, and precipitation; increases in annual February 7, 1996, (61 FR 4722). Under receive a relatively greater amount of precipitation and cloud cover are a the DPS policy, three factors are timber harvesting. Currently, the plausible outcome and could act to considered in the decision concerning Siskiyou Mountains salamander is listed ameliorate any negative impacts caused the establishment and classification of a under CESA and receives substantial by increased temperatures. It is not possible DPS. These are applied protection on private lands in currently possible to forecast the similarly for additions to the list of California; however, the future of these specific effects of future climate on endangered and threatened species. protections is uncertain. Regardless of salamander populations. These factors are (1) the discreteness of the eventual CESA status of the species Our evaluation of the threats to the a population in relation to the in California, habitat impacts on private Siskiyou Mountains salamander leads remainder of the species to which it land are not expected to pose a us to the conclusion that several factors belongs, (2) the significance of the substantial threat to the Siskiyou act cumulatively to assure the continued population segment to the species to Mountains salamander, because: (1) existence of well-distributed, viable which it belongs, and (3) the population Private lands constitute a small minority populations of this species into the segment’s conservation status in relation of the species’ range; (2) private lands foreseeable future. These are: (1) to the Act’s standards for listing, exist in a checkerboard pattern of small Populations are demonstrated to persist delisting, or reclassification (i.e., is the (less than one square mile) parcels in a wide variety of habitat conditions; population segment endangered or interspersed among Federal lands where (2) populations appear to be somewhat threatened?). management is more favorable and resilient to habitat disturbances such as therefore, acts to maintain redundancy, timber harvesting and fire; (3) to the Discreteness distribution, and connectivity among extent that habitat disturbances have Citing the Services’ DPS policy (61 FR populations within the mix of Federal negative effects to salamander 4722) and the best available and private lands; (3) salamander populations, 90 percent of the species’ information, the June 2006 petition populations appear to persist and range is protected from substantial suggests that the Siskiyou Mountains recover following timber harvesting; and negative impacts by existing Federal salamander can be separated into two (4) many salamander populations are land management regulations such as discrete populations based on known to occur on private timberlands the NWFP and other regulations that reproductive isolation. Under the DPS despite a long history of timber provide protection for their habitat; (4) policy, a population segment of a harvesting. private timberlands constitute only 10 vertebrate taxon may be considered Wildfires are expected to occur and percent of the species’ range, and discrete if it satisfies either one of the may reduce habitat quality for some currently support numerous salamander following conditions: salamander populations; however, the populations; and (5) the 516 currently (1) It is markedly separated from other effects of wildfire on salamander habitat known locations of this species are well- populations of the same taxon as a are temporary and populations appear distributed spatially and large areas of consequence of physical, physiological, to recover as vegetation recovers. suitable habitat have yet to be surveyed. ecological, or behavioral factors. Wildfires in the Klamath-Siskiyou Therefore, we do not find that the Quantitative measures of genetic or region typically burn in a mosaic Siskiyou Mountains salamander is in morphological discontinuity may pattern of intensities, leaving a variety danger of extinction (endangered) now, provide evidence of this separation. of habitat conditions for salamanders nor is it likely to become endangered (2) It is delimited by international within burned areas. We also note that within the foreseeable future governmental boundaries within which Federal Federal land management (threatened) across its range. Therefore, differences in control of exploitation, agencies are actively planning and listing the species range-wide as management of habitat, conservation conducting fuels reduction treatments to threatened or endangered under the Act status,or regulatory mechanisms exist reduce the threat of large, stand- is not warranted at this time. that are significant in light of section replacing wildfires within the range of 4(a)(1)(D) of the Act. the Siskiyou Mountains salamander. Distinct Population Segment Phylogenetic studies of the Siskiyou Within its relatively small range, As stated above, the Siskiyou Mountains salamander demonstrate that populations of Siskiyou Mountains Mountains salamander can be separated this species consists of two distinct salamanders are well distributed, and into two clades, the Applegate genetic lineages: the Applegate abundance within populations can be salamander and the Grider salamander salamander (populations within the high. There are 516 known locations for and, therefore, may be considered as Applegate River drainage and north of this species, and large areas supporting two distinct population segments the Siskiyou Crest) and the Grider suitable habitat have not been surveyed. (DPSs), if indeed, they meet the criteria salamander (populations south of the These population characteristics, to be defined as such. Section 2(16) of Siskiyou Crest and adjacent to the combined with the species’ apparent the Act defines ‘‘species’’ to include Klamath River) (Pfrender and Titus ability to persist and recover following ‘‘any species or subspecies of fish and 2001, pp. 5–6; DeGross 2004, pp. 24–44; habitat disturbance, indicate that the wildlife or plants, and any distinct Mahoney 2004, p. 8; Mead et al. 2005, Siskiyou Mountains salamander is vertebrate population segment of fish or pp. 163–166). Mead et al. (2005, p. 168) resilient to stochastic events such as wildlife that interbreeds when mature’’ describe these lineages as ‘‘a major large wildfires. Our evaluation of (16 U.S.C. 1532 (16)). To interpret and phylogenetic subdivision within P. climate change modeling for the implement the DPS provisions of the stormi.’’ Mead et al. (2005, p. 168) geographic area inhabited by the Act and Congressional guidance, the estimated an average of 2.22 percent

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mitochondrial DNA sequence (1) Persistence of the discrete Conclusion of Distinct Population divergence between the Applegate and population segment in an ecological Segment Review Grider salamanders, compared with 11.5 setting unusual or unique to the taxon; Based on the best scientific and percent and 11.68 percent sequence (2) Evidence that loss of the discrete commercial information available, as divergence between Scott Bar population segment would result in a described above, we find that under our salamander and the Applegate and significant gap in the range of a taxon; DPS policy, the Applegate and Grider Grider salamanders, respectively. An (3) Evidence that the discrete salamander groups of the Siskiyou additional genetic distinction between population segment represents the only Mountains salamander are discrete and the two lineages is the almost complete surviving natural occurrence of a taxon each are significant to the overall lack of genetic variation within and that may be more abundant elsewhere as species. Because the Applegate and among Applegate populations, likely the an introduced population outside its Grider salamanders are both discrete result of range expansion and genetic historic range; or and significant, they warrant bottleneck as individuals dispersed into (4) Evidence that the discrete recognition as separate DPSs under the the southern reaches of the Applegate population segment differs markedly Act. watershed (Pfrender and Titus 2001, pp. from other populations of the species in Since we have identified the 5–6). its genetic characteristics. Applegate and Grider salamanders as The geographic ranges occupied by A population segment needs to satisfy two separate, valid DPSs, we will the Applegate and Grider salamanders only one of these criteria to be evaluate each DPS with regard to its are separated by the Siskiyou Crest, a considered significant. Furthermore, the potential for listing as threatened or high-elevation ridge system unlikely to list of criteria is not exhaustive; other endangered using the five listing factors permit population connectivity between criteria may be used as appropriate. enumerated in Section 4(a) of the Act. the groups. Analyses of mitochondrial Our evaluation of the Applegate The ranges and population DNA indicate that, while the ancestral salamander DPS follows. distribution of the Applegate and Grider lineage of the Applegate salamander salamanders suggest that the loss of Applegate Salamander Distinct originated south of the Siskiyou Crest, either group would result in a Population Segment the two groups diverged over four significant gap in the range of the million years ago (DeGross and Bury As described above, Section 4 of the Siskiyou Mountains salamander. The Act (16 U.S.C. 1533) and implementing 2007, p. 3), further supporting the estimated ranges of the Applegate and conclusion that the Siskiyou Crest regulations (50 CFR part 424) describe Grider salamanders constitute about 59 procedures for adding species to the constitutes an effective barrier between percent and 41 percent, respectively, of the groups. Federal Lists of Endangered and the overall range of the Siskiyou Threatened Wildlife and Plants. Under The Applegate and Grider Mountains salamander. Loss of such a section 4(a), we may list a species on the salamanders are markedly separated as substantial portion of the species’ range, basis of any of five factors: (A) The a consequence of physical (geographic) coupled with the dispersal barrier posed present or threatened destruction, features, and as a consequence exhibit by the Siskiyou Crest, would be modification, or curtailment of its genetic divergence as well. We, significant to the distribution of the habitat or range; (B) overutilization for therefore, conclude that the two groups species. An additional consideration is commercial, recreational, scientific, or are discrete under our DPS policy. the metapopulation-level redundancy educational purposes; (C) disease or that the two groups provide each other. Significance predation; (D) the inadequacy of Climatic conditions and fire regimes existing regulatory mechanisms; or (E) If a population segment is considered differ on either side of the Siskiyou other natural or manmade factors discrete under one or more of the Crest, and the elevation of the Crest affecting its continued existence. conditions described in our DPS policy, itself serves as a barrier to wildfires. An endangered species is defined by its biological and ecological significance Large-scale disturbances such as the Act, with exception, as ‘‘any species will be considered in light of catastrophic wildfire may therefore act which is in danger of extinction Congressional guidance that the independently on either clade; allowing throughout all or a significant portion of authority to list DPSs be used the continued persistence of the species its range.’’ A threatened species is ‘‘sparingly’’ while encouraging the in the event of substantial losses of one defined as ‘‘any species which is likely conservation of genetic diversity. In group. to become an endangered species within making this determination, we consider The uneven distribution of genetic the foreseeable future throughout all or available scientific evidence of the variation across the range of the a significant portion of its range.’’ A discrete population segment’s Siskiyou Mountains salamander places species is defined by the Act to include importance to the taxon to which it a disproportionate significance on each ‘‘any subspecies of fish or wildlife or belongs. Since precise circumstances are group for the maintenance of genetic plants, and any distinct population likely to vary considerably from case to diversity in the species. The Applegate segment of any species of vertebrate fish case, the DPS policy does not describe salamander exhibits a strikingly low or wildlife which interbreeds when all the classes of information that might level of genetic variation, and is mature.’’ be used in determining the biological divergent from the more variable Grider and ecological importance of a discrete salamander (Pfrender and Titus 2001, Factor A: The Present or Threatened population. However, the DPS policy pp. 5–6; Mead et al. 2005, pp. 166–169). Destruction, Modification, or does provide four possible reasons why Loss of either genetically distinct group Curtailment of the Species’ Habitat or a discrete population may be significant. would pose a substantial reduction in Range As specified in the DPS policy (61 FR genetic diversity of Siskiyou Mountains Our understanding of the habitat 4722), this consideration of the salamander. Therefore, we consider the associations of the Applegate population segment’s significance may Applegate and Grider salamanders salamander DPS, and the potential include, but is not limited to, the significant to the taxon as a whole under effects of habitat perturbations such as following: our DPS policy. timber harvest and fire on this

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salamander, is based primarily on of the range of this DPS. Approximately percent of the range of the Applegate research conducted across the range of 85 percent of the range of the Applegate salamander DPS. Approximately 12 the entire Siskiyou Mountains salamander DPS consists of Federal percent of the DPS range occurs on salamander Complex. The available lands managed under the provisions of private timberlands in Oregon; 3 percent information indicates that the members the NWFP; 66 percent is administered lies in California. The majority of of the Complex have similar by the USFS and 19 percent by the private lands within the range of the physiological and behavioral BLM. Roughly 33 percent of the range Applegate salamander DPS occur as characteristics, and consequently occurs within reserves (Late- small parcels (typically one square mile similar habitat associations. This successional Reserves, Wilderness, or less) in a checkerboard pattern conclusion is supported by Welsh et al. Riparian Reserves) withdrawn from surrounded by Federal lands, or as (2007a, p. 31), who state that the genetic scheduled timber harvesting; 42 percent small isolated parcels. Populations of subunits of Siskiyou Mountains of the range is in the Applegate the Applegate salamander DPS on salamander ‘‘do little if anything to alter Adaptive Management Area; and 9 private lands may be affected by timber their basic eco-physiological limits (e.g., percent is in Matrix. Of the three harvesting but are dispersed among Spotila 1972; Feder 1983) and members within the Siskiyou populations on Federal lands where consequent similar environmental Mountains salamander Complex, the management is more favorable. Since requirements imposed by the Applegate salamander DPS has the the distribution of private lands occurs plethodontid life form.’’ We recognize lowest proportion of its range protected within a larger matrix of Federal lands, that the range of the Applegate in reserves. this acts to disperse any negative salamander DPS is roughly 60 percent of The rate and intensity of timber impacts of timber harvesting on the area occupied by the entire Siskiyou harvesting has declined substantially on Applegate salamander DPS populations Mountains salamander, and that the Federal lands within the range of the and maintains redundancy, distribution, relative magnitude of effects caused by Applegate salamander DPS during the and connectivity among salamander habitat perturbations may be different at past 20 years. Annual timber harvesting populations. Therefore, no one area this smaller spatial scale. We have on the Rogue River National Forest, within the range of the Applegate incorporated these differences of scale which comprises 66 percent of the DPS salamander DPS has significantly into our analysis. Given this caveat, we range, declined from an average of 182 greater threats from timber harvesting believe that the potential effects of million board feet during the 1980s to on private lands. timber harvesting, fire, and other habitat 8 million board feet per year from 2000 Wildfire perturbations on the Applegate to 2006, a decrease of 96 percent (USDA salamander DPS are the same as those 2007c). The Applegate Ranger District, Based on the best scientific and described previously for the Siskiyou which comprises roughly 66 percent of commercial information available, we Mountains salamander. To avoid the DPS range, has completed only one believe the potential effects of wildfire redundancy, these effects are timber sale since 1996 (Clayton 2007b). on the Applegate salamander DPS are summarized below; further detail and Similarly, the rate of timber harvest has similar to those described previously for citations may be found in the Factor A declined substantially on BLM lands the Siskiyou Mountains salamander. analysis for the Siskiyou Mountains within the range of the Applegate When they occur, wildfires typically salamander. salamander DPS. Mean annual harvest burn in a range of intensities, resulting on the BLM Ashland Resource Area in a mosaic of habitat effects. Intense, Effects of Timber Harvesting on the declined from 2,240 ac (907 ha) per year stand-replacing fire likely reduces Applegate Salamander DPS between 1995 and 2000, to 664 ac (269 habitat quality for this DPS by reducing Rigorous research of the effects of ha) per year between 2001 and 2007; overstory cover and consuming moss, timber harvesting on these salamanders less than 270 ac (109 ha) per year have duff and forest floor litter, thereby is lacking, but the available evidence been harvested since 2003 (USDI modifying suitable microclimate habitat. suggests that intensive timber harvest 2007a). The intensity of timber harvest However, as shown for the effects of practices such as clear-cutting have a practices on Federal lands has declined intensive timber harvesting, Siskiyou short-term (30 years) negative impact on dramatically as well. For example, on Mountains salamander populations abundance, age structure, and body the BLM’s Ashland Resource Area, appear to persist and recover as condition of this DPS. However, it is intensive harvest methods such as clear- vegetation is re-established after severe also clear that the salamanders cutting have declined from 54 percent of habitat disturbances. The degree to frequently persist in intensively acres harvested in the mid-1990s, to less which wildfires affect the viability of harvested areas, and that populations than one percent of annual harvest since salamander populations is unknown, recover as vegetation is re-established 2001 (USDI 2007a). The likelihood that but it is likely that large-scale intense (Welsh et al. 2007b). There is no a substantial proportion of the wildfires may negatively affect some information indicating that populations Applegate salamander DPS will be populations. are extirpated in intensively harvested affected by intensive timber harvesting The potential threat posed by wildfire sites. Alternative timber harvesting is greatly reduced by the long-term to the Applegate salamander DPS was methods such as thinning and declining trend in the rate and intensity evaluated by Olson et al. (2007, p. 25, helicopter yarding have not been shown of timber harvesting. The BLM’s Appendix 2 p. 5). The authors combined to have negative effects on populations proposal to increase timber harvest a habitat suitability model (Reilly et al. of this DPS. levels by revising their RMPs has an 2007) with spatial data on various risk uncertain outcome, and we see no factors such as wildfire hazard and Extent and Magnitude of Timber reason to forecast a significant increase NWFP land use allocations into a GIS Harvesting Effects on the Applegate in timber harvest levels in the and developed a range-wide map Salamander DPS foreseeable future. depicting risk to persistence of The extent and magnitude of potential Intensive timber harvesting practices salamander populations. Extensive areas effects caused by timber harvesting are such as clear-cutting and shelterwood of highly suitable habitat and lower fire strongly limited by existing land removal are more prevalent on private hazard were predicted on north-facing management regulations on the majority timberlands, which comprise only 15 slopes, such as the north slope of the

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Siskiyou Crest (Olson et al. 2007, Summary of Factor A land-use regulations, and along with Appendix 2 p. 8). While intensive timber management rock quarrying and road construction While there is uncertainty concerning practices such as clear-cutting appear to constitute a tiny fraction of the DPS’s the potential population-level effects of have short-term negative effects on habitat. Therefore, we conclude that the wildfire on the Applegate salamander abundance of Applegate salamanders, Applegate salamander DPS is not now, DPS, we expect that wildfires will occur this practice is severely restricted on or in the foreseeable future, threatened and may reduce habitat quality for some Federal lands, which constitute the by destruction, modification, or salamander populations. However, the majority of the DPS’s range. Less- curtailment of its habitat across its effects of wildfire are unlikely to result intensive harvest practices appear to range. in widespread loss of population have relatively minor or short-term Factor B: Overutilization for viability because: (1) Fires typically impacts to salamander abundance, and Commercial, Recreational, Scientific, or burn in a mosaic of effects, leaving a the available evidence suggests that Educational Purposes variety of habitat conditions for salamander populations persist in a salamanders occupying burned areas; broad range of forest habitat conditions We are not aware of any information and (2) these salamanders persist in and under different management that indicates overutilization for disturbed areas and recover as practices. commercial, recreational, scientific, or vegetation recovers, allowing for Current management on Federal lands educational purposes threatens the persistence and recovery of local under the provisions of the NWFP Applegate salamander DPS, now or in salamander populations. In addition, protects salamander habitat via a system the foreseeable future, across its range. land management agencies within the of reserves and management guidelines Factor C: Disease or Predation range of this DPS are actively that dramatically reduce the likelihood conducting fuels management of large-scale reduction of suitable or Chytridiomycosis is a relatively treatments to reduce the likelihood of occupied habitat; additional Federal recently described epidermal infection wide-scale catastrophic fire. The future land management direction and the of amphibians caused by the chytrid effectiveness of these treatments is Special Status Species programs provide fungus Batrachochytrium dendrobatidis. unknown, but evidence suggests that at additional security to salamander This fungus requires moisture for least local reductions in fire severity populations on non-reserved Federal survival (Johnson and Speare 2003, p. will be achieved. lands. Management practices on private 922) and is therefore more likely to pose timberlands may negatively affect some a threat to aquatic amphibians than to Direct Disturbance: Roads and Road populations of the Applegate terrestrial ones. As described for the Construction, Mining, and Rock salamander DPS; however, due to the Siskiyou Mountains salamander, we do Quarrying patchy distribution of private lands not anticipate that the Applegate within the larger matrix of Federal salamander DPS will be exposed to this As described under Factor A for the lands, and the ability of these disease or that exposure would lead to Siskiyou Mountains salamander, salamanders to persist in managed transmission through significant activities that physically alter the talus habitats, we conclude that habitat portions of its range. Salamanders substrates occupied by the Applegate modifications on this small portion of composing this DPS are not associated salamander DPS have the potential to the Applegate salamander DPS’s range with bodies of water, occur in a reduce habitat quality or remove habitat. do not constitute a substantial threat to characteristically dry environment, are In addition, some research suggests that the DPS. only active above ground for brief and forest roads may pose a barrier to these Wildfires are expected to occur and intermittent periods during the year, salamanders, reducing dispersal and may reduce habitat quality for some and appear to have limited dispersal connectivity among populations. We salamander populations; however, the abilities. Given these circumstances, we find that, while it may reasonably be effects of wildfires on salamander believe that the Applegate salamander expected that crushing or removal of habitat are temporary and populations DPS is unlikely to be exposed to talus habitat during road construction, appear to recover as vegetation recovers. diseased water or infected aquatic mining, or rock quarrying could Wildfires typically burn in a mosaic amphibians and, if infected, negatively affect Applegate salamander pattern of intensities, leaving a variety salamanders are unlikely to transmit the populations, these activities affect only of habitat conditions for salamanders disease between populations. a very small area of the DPS’s range. within burned areas. In addition, The Service is not aware of any Further, numerous records exist of the Federal land management agencies are predators that potentially pose a threat salamanders occupying road cuts and planning and conducting fuels to the species. We, therefore, conclude sites with historical mining activity, and reduction treatments to reduce the that the Applegate salamander DPS is the rate of road construction, which is threat of stand-replacing wildfires not now, or in the foreseeable future, typically associated with access for within the range of the Applegate threatened by disease or predation timber harvesting, has declined salamander. across its range. significantly as timber harvest levels Although relatively undisturbed have decreased. There is little potential mature forests may provide optimum Factor D: Inadequacy of Existing for a substantial portion of Applegate habitat for Applegate salamanders; these Regulatory Mechanisms salamander DPS populations to be salamanders have been shown to exist Federal Lands affected by direct disturbance from road in a range of habitat conditions that construction, mining, or rock quarrying. have experienced timber harvesting, Federal lands managed under the For these reasons, we conclude that wildfire, and other disturbances such as provisions of the NWFP comprise the road construction, mining and rock mining and quarrying, and evidence majority of the Applegate salamander’s quarrying do not pose a substantial suggest that populations persist and range. The NWFP acts to protect threat to this DPS; a conclusion echoed recover following habitat disturbance. salamanders and their habitat via a by species experts (Olson et al. 2007, p. Intense disturbances such as clear- system of reserves and land 17). cutting are highly limited by current management guidelines that

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dramatically reduce the likelihood of Factor D for Siskiyou Mountains Less intensive harvest practices appear large-scale reduction of suitable habitat. salamander). The WOPR proposal to have little effect on populations. affects only Federal lands administered Therefore, we find that the lack of Northwest Forest Plan Survey and by the BLM, which constitute regulatory protections on state lands, a Manage Mitigation Measure Standards approximately 19 percent of the range of limited proportion of the range of the and Guidelines the Applegate salamander DPS. The Applegate salamander DPS, does not The provisions and current status of WOPR DEIS is currently in the public pose a threat to this genetic subunit in the Survey and Manage Program are review period, and we cannot at this the foreseeable future. described under Factor D for the time predict which alternative, Summary of Factor D Siskiyou Mountains salamander. The including the no-action alternative, will Survey and Manage Program contains be selected or evaluate the potential Existing Federal regulations currently specific guidance for the Applegate effects to Applegate salamander provide substantial protection on salamander DPS, requiring the populations on BLM lands. Federal lands for the Applegate identification of high-priority sites that While the potential effects of possible salamander DPS through the NWFP will be managed to provide a reasonable RMP changes on the 19 percent of land use categories and management assurance of species persistence. While Applegate salamander DPS’ range that provisions. For the purposes of this the Survey and Manage Program occurs on BLM lands are unknown, finding, we assume that the NWFP’s currently provides protection for the NWFP land-use allocations and Survey and Manage Program, which Applegate salamander DPS on Federal management direction provides provides additional protection for the lands, we assume for purposes of this substantial protection for the DPS and Applegate salamander DPS, is finding that the Survey and its habitat. If existing Federal eliminated for future projects on Federal Management Program is eliminated for management for the Applegate lands within the range of the DPS. future projects on Federal lands and salamander DPS is modified in the Regulatory protection for this DPS will management of the Applegate future, the Service can consider any consist of the Standards and Guidelines salamander DPS will be conducted such changes in the context of the of the NWFP, other Federal land under the USFS’s Special Status Species degree and immediacy of potential management regulations, and the Program and the BLM’s Sensitive threats to the DPS at that time. Special status Species programs, which Species Program. While these programs will continue to provide adequate Private Lands and State Regulations do not specify protections for the protection for the DPS across the 85 Applegate salamander DPS, they Approximately 12 percent of the percent of its range that occurs on contain provisions for development of range of the Applegate salamander DPS Federal lands. While the petitioners Conservation Strategies that provide a occurs on private lands located in have cited the proposed WOPR as reasonable assurance of species Oregon, and 3 percent occurs on private posing a significant reduction to these persistence. lands located in California. In Oregon, protections (Greenwald and Curry 2007, no regulatory mechanisms exist to p. 7), we cannot at this time speculate Conservation Agreements protect this DPS on private lands. In about what impact, if any, the proposal, The final Conservation Strategy for California, the Siskiyou Mountains if finalized in the future by BLM, may the Siskiyou Mountains Salamander, salamander (both Applegate and Grider have on salamander populations or their Northern Portion of the Range (Olson et populations) is listed as a threatened habitat. al. 2007), is currently being species and receives substantial We find that the current Federal implemented by the USFS and BLM on protections pursuant to CESA. These regulations and land management Federal lands occupied by the protections include the requirement of planning guidelines and the Special Applegate salamander DPS. The surveys prior to project implementation status Species programs provide Conservation Strategy was authored by and prohibitions on timber harvest in substantial protection for the DPS across four of the most-published scientific established buffers around occupied the vast majority of its range. The lack experts on this species (D. Olson, D. suitable habitat. There is some of regulatory mechanisms to protect the Clayton, H. Welsh, and R. Nauman, uncertainty concerning the future of Applegate salamander DPS on private among others), and incorporates habitat CESA protections for Applegate lands in Oregon does not pose a modeling and risk assessment in the salamander DPS populations on the substantial threat because: (1) Private evaluation of species persistence and small fraction of the DPS’s range that lands comprise a small portion of the distribution within the strategy area. occurs in California (see Factor D for DPS’s range and are distributed in small The Conservation Strategy is described Siskiyou Mountains salamander). parcels interspersed among Federal in detail in the Background section and Regardless of the future status of lands where management is more under Factor D for the Siskiyou protections for the Siskiyou Mountains favorable and therefore, acts to maintain Mountains salamander, which is salamander under CESA, those redundancy, distribution, and incorporated by reference here. protections only apply to 3 percent of connectivity among populations within However, because of the limited nature the Applegate salamander DPS’s range, the mix of Federal and private lands; of the threats addressed by the and the potential removal of these and (2) salamander populations have Conservation Strategy, we did not rely protections will not pose a significant been shown to persist in managed on it in determining whether listing the threat to this DPS. landscapes. While there is some Applegate salamander is warranted. As described under Factor A, we find uncertainty concerning the future of that there is little evidence to suggest CESA protections for Applegate Western Oregon Plan Revisions that members of the Applegate salamander DPS populations in The BLM’s proposed changes to its salamander DPS are extirpated by California, the potential removal of existing Resource Management Plans timber harvesting and other habitat CESA protections will not pose a through the WOPR contain provisions disturbances. Research indicates that significant threat to the DPS due to the that have the potential to increase populations of these salamanders persist very small percentage of the DPS’s range timber harvesting within the range of following intensive timber harvest and that occurs in the state and the the Applegate salamander DPS (see recover as vegetation is re-established. interspersed pattern of private and state

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lands. We, therefore, conclude that the experienced disturbances. These traits Finding Applegate salamander DPS is not now, act to decrease the potential We assessed the best available or in the foreseeable future, threatened vulnerability conferred on this DPS by scientific and commercial information by inadequate existing regulatory its small range. While it may be regarding threats faced by the Applegate mechanisms across its range. reasonably expected that negative salamander DPS. We have reviewed the Factor E: Other Natural or Manmade effects to abundance or population petition, information available in our Factors Affecting the Continued structure may follow severe files, and information submitted to us Existence of the Species disturbances (as described under Factor following our 90-day petition finding A for the Siskiyou Mountains Other natural or manmade factors that (72 FR 14750; March 29, 2007). We also salamander), there is no evidence that could potentially affect the persistence consulted with recognized salamander of the Applegate salamander DPS within they result in significant losses of experts and Federal land managers, and all or significant portion of its range are populations. arranged for researchers to initiate field climate changes associated with global A large wildfire that affects the studies to assess the distribution of warming and stochastic events, which majority of the range of the Applegate genetic entities within the salamander are rare, chance events, such as salamander DPS is a plausible complex, and demographic response of epidemics and large, severe wildfires. description of a significant stochastic these species to forest structure. We find little support for the event. For example, 499,965 ac (202,329 Climate Change petitioners’ claim that the Applegate ha) burned during the 2002 Biscuit Fire salamander DPS is threatened by habitat The similarities in physiology, in southwestern Oregon and ecology, and habitat associations destruction caused by timber harvesting northwestern California. Approximately and wildfire, and that existing between the Applegate salamander DPS 44 percent of the area (219,985 ac and other members of the Siskiyou regulatory mechanisms are inadequate (89,025 ha)) was severely burned (USDA Mountains salamander Complex, to protect the DPS. While the available and USDI 2004). In comparison, the combined with the large scales at which information suggests that Applegate climate change studies are conducted, species range of the Applegate salamanders may be positively lead us to conclude that our analysis of salamander DPS is 248,870 ac (100,712 associated with older forest conditions, the potential effects of climate change ha). Although there is evidence that fire the majority of studies and available under Factor E for the Siskiyou size and intensity may have increased in field data show the species occupying a Mountains salamander applies to the the Klamath-Siskiyou region, large fires wide range of forest conditions, Applegate DPS as well. Given its with mixed severity are characteristic of including previously harvested areas. physiology, this species may be strongly the natural disturbance regime (Odion et Recent research indicates that even in affected by changes to precipitation al. 2004, p. 933; Agee 1993, pp. 388– severely disturbed habitats, the patterns. Although most of the available 389) within which these salamanders salamanders persist and populations climate models predict increases in have evolved. The mosaic pattern of fire recover as vegetation is re-established average temperatures, models were effects, combined with the salamanders’ over time. Less intensive disturbances inconsistent with regard to future ability to remain protected underground such as forest thinning and mixed- precipitation; increases in annual and persist during postfire vegetation effects wildfire appear to have minor or precipitation and cloud cover are a recovery, indicates that the threat posed short-term impacts on salamander plausible outcome and could act to by this stochastic event is unlikely to abundance. There is no reliable ameliorate negative impacts caused by result in large-scale extirpation of evidence that indicates loss of increased temperatures. We are unable populations. populations or curtailment of this DPS’s to predict the potential effects of future range has occurred. climate change on the Applegate Summary of Factor E We acknowledge that intensive timber harvesting practices such as clear- salamander DPS at this time. Because of the uncertain nature of cutting may have short-term negative Stochastic Events climate change predictions, particularly impacts on abundance and population Like other members of the Siskiyou predictions of future precipitation structure of Applegate salamanders. The Mountains salamander Complex, the patterns, we are unable to evaluate the extent and magnitude of such practices, Applegate salamander DPS occupies a potential for climate change to impact however, are severely limited by a relatively small geographic range Applegate salamander DPS populations number of regulatory mechanisms and (248,870 ac (100,712 ha)) and exhibits in the future. We find that, although other factors operating within the limited dispersal abilities. These traits stochastic events such as large wildfires salamanders’ range, as evidenced by the act to increase a species’ vulnerability to may occur within a large portion of this steep decline in timber harvest levels on stochastic (rare, chance) events such as salamanders’ restricted range, Applegate Federal lands that constitute 85 percent epidemics or large, severe fires because salamanders appear to persist following of the DPS’s range. Over the past 20 a single event can occur within all or a wildfires and other disturbances, to years, timber harvest levels, particularly large portion of the range, and recover as vegetation is re-established of intensive harvest methods, on Federal individuals may be unable to escape the following disturbance, and have lands within the range of the Applegate disturbance or recolonize habitat adequate numbers of well-distributed salamander have declined by over 90 following extirpation. However, as populations throughout their range to percent. Levels of timber harvesting are described in the ‘‘Range and allow for persistence and viability of higher on private lands, which Distribution’’ section and Factor A for this DPS. We, therefore, conclude that constitute only 15 percent of the DPS’s the Siskiyou Mountains salamander, the Applegate salamander DPS is not range and occur as small parcels current research suggests that Applegate now, or in the foreseeable future, interspersed among Federal lands. Due salamanders are in fact well-distributed threatened by the individual or to the small proportion of the range within their range, that they occur at cumulative effects of climate change or consisting of private lands, coupled high densities in some areas, and that stochastic events such as epidemics or with the ability of Applegate they persist in areas that have large, severe wildfires. salamanders to persist in managed

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landscapes, we conclude that habitat have not been surveyed. These Mountains salamander, and that the management activities on private lands population characteristics, combined relative magnitude of effects caused by do not pose a substantial threat to this with the species’ apparent ability to habitat perturbations may be greater at DPS. persist and recover following habitat this smaller spatial scale. We have There are a number of existing disturbance, indicates that Applegate incorporated these differences of scale regulatory mechanisms that provide salamanders are resilient to stochastic into our analysis. Given this caveat, we protection for Applegate salamanders events such as wildfire. Our evaluation believe that the potential effects of and their habitats. The system of land of climate change modeling for the timber harvesting, fire, and other habitat use allocations and Standards and geographic area inhabited by the perturbations on the Grider salamander Guidelines of the NWFP act to limit the salamanders does not support the DPS are similar to those described amount and intensity of land contention that climate change poses a previously for the Siskiyou Mountains management activities on Federal lands, threat to Applegate salamanders. While salamander. To avoid redundancy, these as evidenced by the dramatic decline in increases in average daily temperatures effects are summarized below; details timber harvest levels observed since the are reliably predicted for the Klamath- and citations may be found in the Factor NWFP was implemented. The Survey Siskiyou region, predictions regarding A analysis for Siskiyou Mountains and Manage Mitigation Measure timing and amount of precipitation are salamander. Standards and Guidelines are one aspect inconsistent, precluding any meaningful of the NWFP that has provided Effects of Timber Harvesting on the evaluation of future effects to these Grider Salamander DPS protection specifically to occupied salamanders. It is not currently possible salamander locations. However, we to forecast the specific effects of future Although rigorous research of the anticipate the elimination of the Survey climate on salamander populations. effects of timber harvesting on Grider and Manage Guidelines within the range Our evaluation of the five listing salamanders is lacking, the available of the Applegate salamander DPS. factors does not support the contention evidence suggests that intensive timber Federal land management agencies have that there are threats of sufficient harvest practices such as clear-cutting implemented a Conservation Strategy imminence, intensity, or magnitude as have a short-term (30 years) negative founded on the Survey and Management to cause substantial threats to the DPS, impact on abundance, age structure, and guidelines for this DPS, to help provide losses of population distribution, or body condition of these salamanders. for well-distributed, viable populations viability of the Applegate salamander However, it is also clear that the of Applegate salamanders over the long DPS. Therefore, we do not find that the salamanders frequently persist in term. The Conservation Strategy uses an Applegate salamander DPS is in danger intensively harvested areas, and that approach similar to that required by the of extinction (endangered), nor is it populations recover as vegetation is re- Survey and Manage Program for this likely to become endangered within the established. Alternative timber DPS (i.e., identification of a network of foreseeable future (threatened) harvesting methods such as thinning and helicopter yarding have not been high-priority salamander populations throughout its range. Therefore listing shown to have negative effects on for protection and management). the Applegate salamander DPS as populations of this DPS. However, because of the limited nature threatened or endangered under the Act of the threats addressed by the is not warranted at this time. Extent and Magnitude of Timber Conservation Strategy, we did not rely Harvesting Effects on the Grider Grider Salamander Distinct Population on it in determining whether listing the Salamander DPS Applegate salamander DPS is Segment warranted. The extent and magnitude of potential Factor A: The Present or Threatened effects caused by timber harvesting are The BLM’s proposal to revise WOPR Destruction, Modification, or on 19 percent of the Applegate strongly limited by existing land Curtailment of the Species’ Habitat or management regulations on the majority salamander DPS’s range is in draft form Range and undergoing public review. We of the range of this DPS. Approximately cannot reliably predict the outcome of Our current knowledge of the habitat 91 percent of the range of the Grider this process or what effect, if any, any associations of the Grider salamander salamander DPS consists of Federal future changes to the WOPR might DPS, and the potential effects of habitat lands managed by the Klamath National eventually have on salamanders or their perturbations such as timber harvest Forest (KNF) under the provisions of the habitat. The NWFP land-use allocations, and fire on this salamander, are based NWFP. Approximately 73 percent of the other federal land management, and the primarily on research conducted across range occurs within reserves (Late- special Status Species programs the range of the entire Siskiyou successional Reserves, Wilderness, constitute existing regulatory Mountains salamander Complex. The Riparian Reserves) withdrawn from mechanisms that currently provide members of the complex have similar scheduled timber harvesting; an substantial protection for the Applegate physiological and behavioral additional 13 percent of the range is DPS and it habitat on Federal lands and characteristics, and consequently within Matrix-retention areas where are anticipated to continue to provide similar habitat associations. This timber harvest is restricted. Less than 5 such protection in the foreseeable conclusion is supported by Welsh et al. percent of the Grider salamanders’ range future. Should regulatory protections (2007a, p. 31), who state that the genetic lies within the Matrix-General Forest change in the future, the Service can subunits of Siskiyou Mountains land allocation where intensive timber consider such changes in the context of salamander ‘‘do little if anything to alter harvesting is anticipated to occur. the degree and immediacy of potential their basic eco-physiological limits (e.g., Primarily as a result of threats to the Siskiyou Mountains Spotila 1972; Feder 1983) and implementation of the NWFP, the rate salamander at that time. consequent similar environmental and intensity of timber harvesting has Populations of Applegate salamanders requirements imposed by the declined substantially on Federal lands are well distributed, and abundance plethodontid life form.’’ We recognize within the range of the Grider within populations can be high. There that the range of the Grider salamander salamander DPS. During the period from are 440 known locations for this DPS, DPS is roughly 40 percent of the area 1979 to 1984, the KNF sold and and many areas supporting suitable occupied by the entire Siskiyou removed an average of 238.2 million

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board feet of timber per year; harvest region are characterized by mixed- impacts to salamander abundance, and levels declined to 187.8 million board severity fires that burn in a range of the available evidence suggests that feet per year during 1985 to 1990, and intensities, resulting in a mosaic of salamander populations persist in a fell to 15.9 million board feet annually habitat effects. Fire effects are frequently broad range of forest habitat conditions between 2000 and 2005; a decrease of moderated on lower slopes with and under different management roughly 93 percent (USDA 2006a). The northerly exposures and topographic practices. proportion of intensive timber conditions frequently associated with The system of NWFP reserves and management practices such as clear- salamander locations. management guidelines in effect on cutting and overstory removal has Direct Disturbance: Roads and Road Federal lands, in combination with declined even more abruptly; from an Construction, Mining, and Rock other Federal land management annual average of 3,733 ac (1,511 ha) Quarrying direction and the Special Status Species per year from 1988 to 1991 to roughly programs, provide substantial protection 38 ac (15.4 ha) per year during 2000 to We assume that the effects of for Grider salamander habitat, 2006 (USDA 2007b). We conclude that activities that physically alter the talus dramatically reducing the likelihood of the land management regulations substrates occupied by Grider large-scale reduction of suitable or responsible for this long-term declining salamanders are similar to those occupied habitat due to timber trend in the rate and intensity of timber described under Factor A for the harvesting. Even without Survey and harvesting greatly reduces the Siskiyou Mountains salamander. Manage protections, the available likelihood that a substantial proportion Although research to evaluate evidence does not show that timber of the Grider salamander DPS will be salamander response to physical harvest practices on Federal lands, negatively affected by intensive timber disturbance is lacking, it is reasonable to either alone or in combination with harvesting. assume that these activities likely other habitat disturbing activities such Less than 10 percent of the Grider reduce habitat quality or remove habitat. as mining, road building or wildfire, salamander’s range consists of private In addition, some research suggests that have reduced the habitat or range of this forest roads may pose a barrier to these timberlands where intensive timber species or are likely to do so in the salamanders, reducing dispersal and harvesting practices such as clear- foreseeable future. connectivity among populations. We cutting and shelterwood removal are Management practices on private find that, while it may reasonably be likely to occur. Virtually all of these timberlands may negatively affect some expected that crushing or removal of lands are in California; only about 1 populations of the Grider salamander percent occurs in Oregon. The majority talus habitat during road construction, DPS; however, due to the patchy of private lands within the range of the mining, or rock quarrying could distribution of private lands within the Grider salamander DPS occur as small negatively affect Grider salamander larger matrix of Federal lands, and the parcels (typically one square mile or populations, these activities affect a ability of these salamanders to persist in less) in a checkerboard pattern very small area of the DPS range. For managed habitats, we conclude that surrounded by Federal lands. this reason, Olson et al. (2007, p. 17) habitat modifications on this small Salamander populations on private conclude that these disturbances do not portion of the Grider salamander DPS’s lands may be affected by timber pose a primary threat to the species. range do not constitute a substantial harvesting but are dispersed among Numerous records exist of the threat to the DPS. populations on Federal lands where salamanders occupying road cuts and management is more favorable and sites with historical mining activity, Wildfires are a naturally occurring serves to effectively reduce the impacts suggesting that these disturbances do disturbance factor in the Klamath- of intensive private land timber harvest not eliminate populations. The rate of Siskiyou region, and are expected to practices and maintain redundancy, road construction, which is typically influence the abundance and distribution, and connectivity among associated with access for timber distribution of salamander habitats. Grider DPS populations. harvesting, has declined significantly as However, the effects of most wildfires timber harvest levels have dropped. on salamander habitat are temporary Wildfire Surface mining rarely occurs within the and populations appear to recover as We assume that the potential effects range of the DPS, and rock quarrying vegetation recovers. Wildfires typically of wildfire on the Grider salamander consists of a small number of sites burn in a mosaic pattern of intensities, DPS are similar to those described encompassing an insignificant leaving a variety of habitat conditions under Factor A for the Siskiyou proportion of the range (less than 100 ac for salamanders within burned areas. Mountains salamander. It is likely that (40.5 ha)). Grider salamander populations have intense, stand-replacing fires reduce been shown to exist in a range of habitat habitat quality for this salamander by Summary of Factor A conditions that have experienced timber reducing overstory cover and We find that, while the abundance harvesting, wildfire, and other consuming moss, duff and forest floor and population structure of Grider disturbances, and there is little evidence litter; affecting the microclimate salamanders appear to suffer short-term to suggest that populations are conditions. However, Siskiyou negative effects from intensive timber extirpated followed the land Mountains salamanders appear to be management practices such as clear- management activities such as thinning behaviorally adapted to dry-season fires cutting, these practices are severely and salvage harvesting typically because they are underground during restricted on Federal lands, which employed on KNF lands. Intense summer and fall when most wildfires constitute over 90 percent of the DPS’s disturbances such as clear-cutting are occur. While it is likely that large-scale range. Less than five percent of the highly limited by current land-use intense wildfires may negatively impact Grider salamander’s range lies within regulations, and along with rock some populations, at least in the short the Matrix-General Forest land quarrying and road construction term, populations appear to persist and allocation where intensive timber constitute a tiny fraction of the DPS’s recover as vegetation is re-established harvesting is anticipated to occur. Less habitat. Therefore, we conclude that the after severe habitat disturbances. Fire intensive harvest practices appear to Grider salamander DPS is not now, or in regimes within the Klamath-Siskiyou have relatively minor or short-term the foreseeable future, threatened by

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destruction, modification, or purposes of this finding, we assume that The Grider salamander DPS also curtailment across its range. NWFP’s Survey and Manage Program is receives protection on private lands in eliminated for future projects on Federal California under CESA. The uncertainty Factor B: Overutilization for lands within the range of the DPS. of future CESA protections for Grider Commercial, Recreational, Scientific, or salamander populations on private Educational Purposes Given the high proportion of KNF lands in reserved land allocations (86 lands does not pose a substantial threat We are not aware of any information percent), the low rate of timber harvest, to the DPS because: (1) Private lands that indicates overutilization for and the low intensity of harvest comprise a small portion of the DPS’s commercial, recreational, scientific, or practices typically employed by the range and generally consist of small educational purposes threatens, now or KNF, we conclude that the removal of parcels interspersed among Federal in the foreseeable future, the Grider Survey and Manage guidelines does not lands; and (2) salamander populations salamander DPS across its range. pose a substantial threat to the species. have been shown to persist in managed landscapes. We therefore conclude that Factor C: Disease or Predation Management of the Grider salamander DPS will be conducted under the the Grider salamander DPS is not now, Chytridiomycosis is a relatively USFS’s Sensitive Species Program, or in the foreseeable future, threatened recently described epidermal infection which does not specify protections, but by inadequate existing regulatory of amphibians caused by the chytrid contains provisions for development of mechanisms. fungus Batrachochytrium dendrobatidis. conservation strategies that are Factor E: Other Natural or Manmade This fungus requires moisture for anticipated to provide an additional Factors Affecting the Continued survival (Johnson and Speare 2003, p. layer of security for the DPS. Existence of the Species 922) and is therefore more likely to pose a threat to aquatic amphibians than to Private Lands and State Regulations Other natural or manmade factors that may affect the persistence of the Grider terrestrial ones. As described for the The Siskiyou Mountains salamander Siskiyou Mountains salamander, we do salamander DPS within all or significant is listed as a threatened species in portion of its range are climate changes not anticipate that the Grider California and receives substantial salamander DPS will be exposed to this associated with global warming and protections pursuant to CESA. These stochastic events, which are rare, disease or that exposure would lead to protections include the requirement of transmission through significant chance events, such as epidemics and surveys prior to project implementation large, severe wildfires. portions of its range. This DPS is not and prohibitions on timber harvest in associated with bodies of water, occurs established buffers around occupied Climate Change in a characteristically dry environment, suitable habitat (see Factor D for Because the physiology, ecology, and is only active above ground for brief and Siskiyou Mountains salamander). The intermittent periods during the year, habitat associations of the Grider future of CESA protections for Grider salamander DPS are similar to other and appears to have limited dispersal salamander populations on private abilities. Given these restrictions, we members of the Siskiyou Mountains timberlands is uncertain. However, any salamander Complex, we conclude that believe that the Grider salamander DPS future changes in the status of CESA is unlikely to be exposed to diseased our analysis of the potential effects of protections for the Grider salamander climate change and stochastic events water or infected aquatic amphibians DPS would affect only nine percent of and, if infected, these salamanders are under Factor E for the Siskiyou the range of the Grider salamander DPS, Mountains salamander applies to the unlikely to transmit the disease between and this area consists of small parcels populations. Grider salamander DPS as well. Most of interspersed among Federal lands. This, the climate change models available for The Service is not aware of any combined with evidence that Grider predators that potentially pose a threat the Pacific Northwest predicted salamander populations persist in increases in average temperatures; to the species. We therefore conclude disturbed habitats, suggests that the that the Grider salamander DPS is not however, models were inconsistent with removal of CESA protections will not regard to future precipitation. Some now, or in the foreseeable future, pose a substantial threat to the species. threatened by disease or predation models predicted significant increases across its range. Summary of Factor D in annual precipitation and cloud cover, which could act to ameliorate any Factor D: Inadequacy of Existing The Grider salamander DPS receives negative impacts caused by increased Regulatory Mechanisms substantial protection based on the land temperatures. Given the inconsistency allocations and Standards and Federal Lands of climate change predictions available Guidelines of the NWFP and KNF Land to us, we are unable to predict the Existing Federal regulations currently and Resource Management Plan. Future potential effects of future climate provide substantial protection on protection of the Grider salamander DPS change on the Grider salamander DPS at Federal lands for the Grider salamander will also occur through the USFS this time. DPS through the NWFP land use Sensitive Species Program. The high allocations and their management proportion the DPS’s range within Stochastic Events provisions. The NWFP management reserved land allocations, combined The relatively small geographic range provisions and current status of the with the overall low rate and intensity (174,285 ac (70,529 ha)) and limited Survey and Manage Program are of timber harvest on Federal lands leads dispersal abilities of the Grider described under Factor D for the us to conclude that elimination of the salamander DPS may increase its Siskiyou Mountains salamander. The Survey and Manage guidelines does not vulnerability to stochastic (rare, chance) Survey and Manage Program contains pose a substantial threat to this DPS. We events such as epidemics or large, specific guidance for the Grider find that the combination of Federal severe fires because a single event can salamander DPS, requiring surveys of regulations and land management occur within all or a large portion of the potentially suitable talus habitat and planning guidelines provide adequate range, and individuals may be unable to restricting management activities at existing regulatory mechanisms across escape the disturbance or recolonize occupied salamander locations. For the vast majority of the DPS’s range. habitat following extirpation. The

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petitioners claim that these salamanders and have adequate numbers of well- salamander have declined by over 93 are rare, patchily distributed, and easily distributed populations throughout their percent. Levels of timber harvesting are extirpated by disturbances, making range to allow for persistence and higher on private lands, which them highly vulnerable to extinction viability of this DPS. We therefore constitute only nine percent of the (Greenwald and Curry 2007, p. 1). conclude that the Grider salamander DPS’s range and occur as small parcels However, as described under ‘‘Range DPS is not now, or in the foreseeable interspersed among Federal lands. Due and Distribution’’ and Factor A for the future, threatened by the individual or to the small proportion of the DPS’s Siskiyou Mountains salamander, current cumulative effects of climate change or range that consists of private lands, the research suggests that Grider stochastic events such as epidemics or scattered small size of private land salamanders are in fact well-distributed large, severe wildfires. parcels, and the ability of Grider within their range, that they occur at salamanders to persist in managed Finding high densities in some areas, and that landscapes, we conclude that they persist in areas that have We assessed the best available management activities on private lands experienced disturbances. These traits scientific and commercial information do not pose a substantial threat to this act to decrease the potential regarding threats faced by the Grider DPS. vulnerability conferred on this DPS by salamander DPS. We have reviewed the There are a number of existing its small range. While it may be petition, information available in our regulatory mechanisms that provide reasonably expected that negative files, and information submitted to us protection for the Grider salamanders effects to abundance or population following our 90-day petition finding and its habitat. The system of land use structure may follow severe (72 FR 14750; March 29, 2007). We also allocations under the NWFP act to limit disturbances (as described under Factor consulted with recognized salamander the amount and intensity of land A for the Siskiyou Mountains experts and Federal land managers, and management activities on Federal lands, salamander), there is no evidence that arranged for researchers to initiate field as evidenced by the dramatic decline in they result in significant losses of studies to assess the distribution of timber harvest levels observed since the populations. genetic entities within the salamander NWFP was implemented. The Survey A large wildfire that affects the complex, and demographic response of and Manage Mitigation Measure majority of the range of the Grider these species to forest structure. Standards and Guidelines are one aspect salamander DPS is a plausible We find little support for the of the NWFP that, in the past, has description of a significant stochastic petitioners’ claim that the Grider provided protection specifically to event. For example, 499,965 ac (202,329 salamander DPS is threatened by habitat occupied salamander locations. While ha) burned during the 2002 Biscuit Fire destruction caused by timber harvesting the Survey and Manage Program has in southwestern Oregon and and wildfire, and that existing been eliminated for future projects on northwestern California. Approximately regulatory mechanisms are inadequate Federal lands, we find that existing land 44 percent of the area (219,985 ac to protect the DPS from this habitat loss. management regulations are adequate (89,025 ha)) was severely burned (USDA While the available information suggests given the low degree of threat posed by and USDI 2004). In comparison, the that Grider salamanders may be land management activities. species range of the Grider salamander positively associated with older forest Populations of Grider salamanders are is 174,285 ac (70,529 ha). Although conditions, the majority of studies and well distributed, and abundance within there is evidence that fire size and available field data show the species populations can be high. There are 76 intensity may have increased in the occupying a wide range of forest known locations for this DPS, and many Klamath-Siskiyou region, large fires conditions, including previously areas supporting suitable habitat have with mixed severity are characteristic of harvested areas. Recent research not been surveyed. These population the natural disturbance regime (Odion et indicates that even in severely disturbed characteristics, combined with the al. 2004, p. 933; Agee 1993, pp. 388– habitats, the salamanders persist and species’ apparent ability to persist and 389) within which these salamanders populations recover as vegetation is re- recover following habitat disturbance, have evolved. The mosaic pattern of fire established over time. Less intensive indicates that Grider salamanders are effects, combined with the salamanders’ disturbances such as forest thinning and resilient to stochastic events such as ability to remain protected underground mixed-effects wildfire appear to have wildfire. Our evaluation of climate and persist during postfire vegetation minor or short-term impacts on change modeling for the geographic area recovery, indicates that the threat posed salamander abundance. There is no inhabited by the salamanders does not by this stochastic event is unlikely to reliable evidence that indicates that loss support the contention that climate result in large-scale extirpation of of populations or curtailment of this change poses a threat to Grider populations. DPS’s range has occurred. salamanders. While increases in average We acknowledge that intensive timber daily temperatures are reliably Summary of Factor E harvesting practices such as clear- predicted for the Klamath-Siskiyou Because of the uncertain nature of cutting may have short-term negative region, predictions regarding timing and climate change predictions, particularly impacts on abundance and population amount of precipitation are predictions of future precipitation structure of Grider salamanders. The inconsistent, precluding any meaningful patterns, we are unable to evaluate the extent and magnitude of such practices, evaluation of future effects to these potential for climate change to impact however, are severely limited by a salamanders. It is not currently possible Grider salamander populations in the number of regulatory mechanisms and to forecast the specific effects of future foreseeable future. We find that, other factors operating within the climate on salamander populations. although stochastic events such as large salamanders’ range, as evidenced by the Our evaluation of the five listing wildfires may occur within a large steep decline in timber harvest levels on factors does not support the contention portion of this salamanders’ restricted Federal lands that constitute 91 percent that there are threats of sufficient range, Grider salamanders appear to of the DPS’ range. Over the past 20 imminence, intensity, or magnitude as persist following wildfires and other years, timber harvest levels, particularly to cause substantial losses of population disturbances, to recover as vegetation is of intensive harvest methods, on Federal distribution or viability of the Grider re-established following disturbance, lands within the range of the Grider salamander DPS. Therefore, we do not

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find that the Grider salamander DPS is persist in disturbed sites and their percent between 1984 and 2005, from an in danger of extinction (endangered), populations recover as vegetation is re- average of 238.2 million board feet of nor is it likely to become endangered established and habitat conditions timber per year in 1979 to 1984, to 15.9 within the foreseeable future improve (Welsh et al. 2007b). million board feet annually between (threatened) throughout its range. Roughly 40 percent of known Scott 2000 and 2005 (USDA 2006a). The Therefore listing the Grider salamander Bar salamander locations occur on proportion of intensive timber DPS as threatened or endangered under private timberlands where intensive management practices such as clear- the Act is not warranted at this time. timber management has been conducted cutting and overstory removal has also for decades. Farber (2007a, p. 3) declined sharply, from an annual Scott Bar Salamander evaluated population structure and average of 3,733 ac (1,511 ha) per year Summary of Factors Affecting the habitat characteristics at all Scott Bar from 1988 to 1991, to roughly 38 ac Species salamander sites known to be occupied (15.4 ha) per year during 2000 to 2006 on and adjacent to Timber Products Factor A: The Present or Threatened (USDA 2007b). We conclude that the Company (TPC) lands. Ninety-four Destruction, Modification, or land management regulations percent of the sites exhibited evidence Curtailment of the Species’ Habitat or responsible for this long-term declining of at least one habitat disturbance such Range trend in the rate and intensity of timber as roads, logging activity, wildfire, and harvesting greatly reduces the The Service believes that the potential mining; 53 percent had evidence of likelihood that a substantial proportion effects of habitat perturbations such as recent or historic timber harvest. None of the Scott Bar salamander will be timber harvest and fire on the Scott Bar of the salamander sites were in old- affected by intensive timber harvesting. salamander are the same as those growth or late-seral habitat; all were in Private timberlands comprise 22 previously described for the entire relatively young forests and over 50 percent of the range of the Scott Bar Siskiyou Mountains salamander percent occurred in stands with open salamander. State of California Complex. This conclusion is based on: canopies. At 26 sites on TPC lands regulations under the California (1) Our understanding of the behavior, where a minimum of two surveys were Endangered Species Act currently physiology, and habitat associations of conducted, 96 percent supported adult protect Scott Bar salamanders on private the Scott Bar salamander based salamanders, and 65 percent exhibited lands by requiring surveys and primarily on research conducted across all life stages (adults, subadults, and prohibiting habitat modification at the range of the entire Siskiyou juveniles); gravid females were detected occupied sites, timber harvesting, and Mountains salamander Complex; and (2) at 54 percent of sites. While these other habitat disturbances. available information which indicates results cannot be inferred to the entire Private timberlands within the range that members of the complex have species’ range, they clearly suggest that of the Scott Bar salamander occur as similar physiological and behavioral Scott Bar salamander populations small (one square mile) parcels characteristics, and consequently persist and appear to be viable within distributed in a checkerboard pattern similar habitat associations (Welsh et al. the range of habitat conditions found on surrounded by KNF lands. This pattern 2007a, p. 31). Because the range of the managed timberlands. acts to maintain the distribution of, and Scott Bar salamander is roughly 32 connectivity among, salamander percent of the area occupied by the Extent and Magnitude of Timber populations at larger spatial scales, Siskiyou Mountains salamander, the Harvesting Effects on the Scott Bar subsequently reducing the overall relative magnitude of effects caused by Salamander impact of habitat losses on private habitat perturbations may be greater at Existing land management regulations lands. Salamander populations this smaller spatial scale. Despite place substantial limits on the extent occupying the private portions of this differences in scale, we believe that the and magnitude of potential effects landscape pattern may experience potential effects of timber harvesting, caused by timber harvesting on fluctuations in the amount or quality of fire, and other habitat perturbations on populations of Scott Bar salamanders. habitat through time but likely receive the Scott Bar salamander are the same Approximately 78 percent of the Scott demographic support from adjacent as those described previously for the Bar salamanders’ range consists of populations on Federal lands where Siskiyou Mountains salamander. To Federal lands managed by the KNF management is more favorable. avoid redundancy, these effects are under the provisions of the NWFP. Although the rate and intensity of summarized below; further detail and Approximately 51 percent of the range timber harvest is greater on privately citations may be found in the Factor A occurs within reserves (Late- owned timberlands within the range of analysis for Siskiyou Mountains successional Reserves, Wilderness, and the Scott Bar salamander, not all private salamander. Riparian Reserves) withdrawn from lands are expected to receive intensive scheduled timber harvesting; an treatments. Timber Products Company, Effects of Timber Harvesting on the additional 19 percent of the range is the primary industrial landowner Scott Bar Salamander within Matrix-Retention areas where within the species’ range, estimates that Our evaluation of recent research timber harvest is restricted. Only about roughly 31 percent of the company’s results and survey information indicates eight percent of the Scott Bar land base within the range of the Scott that, while abundance of Scott Bar salamanders’ range lies within the Bar salamander in Siskiyou County salamanders may be greater at sites with Matrix-General Forest land allocation consists of land unsuitable for harvest dense, mature forest cover, this species where intensive timber harvesting is (e.g., montane hardwoods, watercourse also occupies a wide range of forest age anticipated to occur. protection zones, rock outcrops). On the and density conditions. Intensive timber The rate and intensity of timber remaining 69 percent, 31 percent of harvesting practices such as clear- harvesting has declined substantially on projected timber harvest prescriptions cutting likely have negative effects on Federal lands within the range of the consist of less-intensive harvest habitat quality and subsequent Scott Bar salamander, primarily due to prescriptions such as thinning and abundance and population structure of NWFP provisions. The amount of timber selection, and 69 percent are more salamanders. However, recent research sold and removed on the Klamath intensive treatments such as clear-cut, suggests that Scott Bar salamanders National Forest declined by roughly 93 shelterwood removal, and seed tree

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harvest (Farber 2007c); suggesting that substrates occupied by the Scott Bar occupied Scott Bar salamander about 50 percent of TPC lands are salamander have the potential to reduce locations. Known salamander locations anticipated to receive intensive habitat quality or remove habitat. While on private timberlands occur in a harvesting. Of the 25 Scott Bar some of these activities such as rock variety of habitat conditions, including salamander locations currently known quarrying may completely remove previously harvested areas and naturally on TPC lands, 4 (16 percent) occur in habitat, evidence suggests that open sites, demonstrating that riparian areas where timber harvest is salamander populations continue to populations persist in these managed restricted by State regulations, and 7 (28 occupy areas that show evidence of landscapes. The dispersed pattern of percent) are located in previously previous mining and road construction. private land parcels among Federal harvested areas where additional timber In particular, numerous Scott Bar lands acts to maintain well-distributed harvesting is not anticipated over the salamander locations occur in road cuts populations, and may allow next 20 to 30 years (Farber 2007b, pp. where rock substrate has been exposed. demographic support between adjacent 1–2). This information, combined with Although the ease of accessing and populations. data indicating that salamander surveying such sites may influence the Wildfires are a naturally-occurring populations persist within managed probability of detecting salamanders, disturbance factor in the Klamath- timberlands, further suggests that even the frequent presence of salamanders in Siskiyou region, and are expected to in the absence of State protections for road cuts suggests that this species can influence the quality, abundance and this species, intensive timber harvest persist in or recolonize disturbed distribution of Scott Bar salamander would not be expected to impact a substrates. Despite these potential habitat. However, the effects of most majority of populations within the 22 effects, road construction and rock wildfires on salamander habitat appear percent of the species’ range that occurs quarrying are extremely limited in to be temporary and populations recover on private lands or pose a substantial spatial extent, affecting a very small as vegetation is re-established on burned threat to the species. fraction of the salamander’s range, and areas. Wildfires typically burn in a are not considered a substantial threat to mosaic pattern of intensities, leaving a Wildfire these salamanders (Olson et al. 2007, p. variety of habitat conditions for Based on the best scientific 17). salamanders within burned areas. information available, we believe the In summary, Scott Bar salamander potential effects of wildfire on the Scott Summary of Factor A populations have been shown to exist in Bar salamander are similar to those The abundance and population a range of habitat conditions that have described previously for the Siskiyou structure of Scott Bar salamanders experienced timber harvesting, wildfire, Mountains salamander. Fire regimes appear to exhibit short-term negative and other disturbances, and there is within the Klamath-Siskiyou region are effects from intensive timber evidence suggesting that populations characterized by mixed-severity fires management practices such as clear- persist and recover following habitat that burn in a range of intensities, cutting, but these practices are severely disturbances. Current land-use resulting in a mosaic of habitat effects restricted on Federal lands, which regulations, including State regulations at both fine and landscape-level spatial constitute 78 percent of the species’ protecting the Scott Bar salamander on scales. Fire effects are frequently range. Less intensive harvest practices private timberlands, strongly limit moderated on lower slopes with appear to have relatively minor or short- intense disturbances such as clear- northerly exposures, topographic term impacts to salamander abundance, cutting, rock quarrying, and road conditions frequently associated with and the available evidence suggests that construction. Therefore, we conclude salamander locations. Intense, stand- salamander populations persist in a that the Scott Bar salamander is not replacing fires likely reduce habitat broad range of forest habitat conditions now, or in the foreseeable future, quality for these salamanders by and under different management threatened by destruction, modification, reducing overstory cover and practices. or curtailment across its range. consuming moss, duff, and forest floor Scott Bar salamander populations litter, thereby modifying the receive substantial protection from the Factor B: Overutilization for microclimate conditions. It is likely that system of NWFP reserves and Commercial, Recreational, Scientific, or large-scale intense wildfires may management guidelines in effect on Educational Purposes negatively affect some populations, at Federal lands, in combination with We are not aware of any information least in the short term, but the degree to other land management direction (e.g. that indicates overutilization for which more typical mixed-severity Roadless Areas, retention areas) and the commercial, recreational, scientific, or wildfires affect the viability of Special Status Species programs, educational purposes threatens the Scott salamander populations is unknown. dramatically reducing the likelihood of Bar salamander, now or in the However, Scott Bar salamanders appear substantial negative impacts to suitable foreseeable future, across its range. to be behaviorally adapted to dry-season or occupied habitat due to timber Factor C: Disease or Predation fires because they are underground harvesting. Even without Survey and during summer and fall when most Manage protections, the available Chytridiomycosis is a relatively wildfires occur. Populations appear to evidence does not show that timber recently described epidermal infection persist and recover as vegetation is re- harvest practices on Federal lands, of amphibians caused by the chytrid established after severe habitat either alone or in combination with fungus Batrachochytrium dendrobatidis. disturbances (Bull et al. 2006, p. 24; other habitat disturbing activities such This fungus requires moisture for Welsh et al. 2007b). as mining, road building or wildfire, survival (Johnson and Speare 2003, p. have reduced the habitat or range of this 922) and is therefore more likely to pose Direct Disturbance: Roads and Road species or are likely to do so in the a threat to aquatic amphibians than to Construction, Mining, and Rock foreseeable future. terrestrial ones. As described for the Quarrying Although timber harvest levels on Siskiyou Mountains salamander, we do As described under Factor A for the private timberlands are greater than on not anticipate that the Scott Bar Siskiyou Mountains salamander, Federal lands, current State regulations salamander will be exposed to this activities that physically alter the talus restrict management activities at disease or that exposure would lead to

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transmission through significant harvest is anticipated to occur (8 Service believes that regardless of the portions of its range. This species is not percent), combined with the low degree California Fish and Game Commission’s associated with bodies of water, occurs and immediacy of potential threats to decision on whether to delist the in a characteristically dry environment, the Scott Bar salamander, lead us to Siskiyou Mountains salamander, current is only active above ground for brief and conclude that existing regulatory State protections for the Scott Bar intermittent periods during the year, mechanisms are adequate to maintain salamander will remain in effect until a and appears to have limited dispersal the viability of the Scott Bar salamander formal rule-making process to remove abilities. Given these restrictions, we on Federal lands throughout the species’ these protections is undertaken. To our believe that the Scott Bar salamander is range. knowledge, there is no formal process currently underway to remove unlikely to be exposed to diseased water Private Lands and State Regulations or infected aquatic amphibians and, if protections for the Scott Bar infected, is unlikely to transmit the In July 2005, CDFG described the salamander. disease between populations. Scott Bar salamander as a ‘‘newly We recognize the uncertainty The Service is not aware of any discovered species from what was part surrounding the future of State predators that potentially pose a threat of the range of Plethodon stormi’’ (CDFG protections for Scott Bar salamanders on to the species. We therefore conclude 2005, p. 31). Based on this change of private lands and have evaluated the that the Scott Bar salamander is not taxonomic status, CDFG took the threat potentially posed by timber now, or in the foreseeable future, position that the Siskiyou Mountains harvesting on private lands if threatened by disease or predation salamander populations now recognized protections were absent. As described across its range. as Scott Bar salamanders were no longer under Factor A, we find that there is protected under CESA. That position little evidence to suggest that timber Factor D: Inadequacy of Existing was successfully challenged by three harvesting on private lands threatens Regulatory Mechanisms environmental organizations in state Scott Bar salamander populations Federal Lands court (Environmental Protection because: (1) Numerous populations are Information Center v. California currently known to occur in a variety of Existing Federal regulations currently Department of Fish and Game, (No. managed habitat conditions on private provide substantial protection on CPF–06–506585)). The court concluded timberlands; (2) research indicates that Federal lands for the Scott Bar that, ‘‘[b]y virtue of its having been populations of these salamanders persist salamander through the NWFP land use accorded protection as a subgroup of a following intensive timber harvest and allocations and their management listed, protected species, the Scott Bar recover as vegetation is re-established, requirements. The provisions and salamander’s protection under the and less intensive harvest practices current status of the Survey and Manage California Endangered Species Act appear to have minor or short-term Program are described under Factor D cannot be withdrawn by the California effects on salamander abundance; and for the Siskiyou Mountains salamander. Department of Fish and Game without (3) private lands constitute only 22 The KNF extended Survey and Manage action first being taken by the California percent of the species’ range, and are Program guidance to the Scott Bar Fish and Game Commission.’’ On distributed in a dispersed pattern among salamander, since this species cannot be October 3, 2006, the California Fish and Federal lands where conditions are easily distinguished from the Siskiyou Game Commission received a petition to more favorable and thus acts to Mountains salamander in the field list the Scott Bar salamander under maintain the distribution of, and (USDA 2006b, p. 2). CESA. The Commission rejected the connectivity among, salamander The Survey and Manage Program petition due to the protections already populations at larger spatial scales and requires surveys of potentially suitable provided the species under CESA. reduce the impacts of intensive timber talus habitat and restricting The Scott Bar salamander is harvest on adjacent private lands. management activities at occupied Scott recognized by the Commission as Therefore, we find that in the event that Bar salamander sites. For purposes of protected under CESA as a sub-group or State protections for the Scott Bar this finding, we assume that NWFP’s sub-population of the listed Siskiyou salamander are removed, the lack of Survey and Manage Program is Mountains salamander (Cal. Code Regs. regulatory protections on private lands eliminated for future projects on Federal tit. 14, § 670.5, subd. (b)(3)(A).). would not pose a substantial threat to lands within the range of the Scott Bar However, the California Office of this species in the foreseeable future. salamander. Administrative Law recently rejected for Given the high proportion of the procedural reasons a formal effort by the Summary of Factor D species range in reserved land Commission to recognize the protected The Scott Bar salamander receives allocations (70 percent), the low rate of status of the Scott Bar salamander under substantial protection based on the land timber harvest, and the low intensity of CESA in State regulations (Cal. Reg. allocations and Standards and harvest practices typically employed by Notice Register 2007, No. 28–Z, p. Guidelines of the NWFP and KNF Land the KNF, we conclude that the removal 1191). The Scott Bar salamander, and Resource Management Plan. Future of Survey and Manage guidelines will therefore, is not specifically listed under protection of the Scott Bar salamander not constitute a substantial threat to the CESA, but retains the same protections will likely also occur through the USFS species. Management of the Scott Bar afforded the Siskiyou Mountains Sensitive Species Program. The high salamander will be conducted under the salamander. The Service is not aware of proportion the species’ range within USFS’s Sensitive Species Program, any other formal action by the reserved land allocations, combined which does not specify protections for Commission to recognize the protected with the overall low rate and intensity the Scott Bar salamander but contains status of Scott Bar salamander under of timber harvest on Federal lands leads provisions for development of CESA. us to conclude that elimination of the conservation strategies that are The CDFG petition to delist the Survey and Manage guidelines does not anticipated to provide an additional Siskiyou Mountains salamander does pose a substantial threat to this species. layer of security for the species. not include the historic portion of this We find that the combination of Federal The low proportion of KNF lands in species’ range known to be occupied by regulations and land management land allocations where intensive timber the Scott Bar salamander. Therefore, the planning guidelines provide adequate

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existing regulatory mechanisms across These traits may increase its patterns, precludes a meaningful the vast majority of the species’ range. vulnerability to stochastic (rare, chance) evaluation of potential impacts to Scott The Scott Bar salamander also events such as epidemics or large, Bar salamander populations resulting receives protection on private lands in severe fires because a single event can from future climate conditions. We find California under CESA. While there occur within all or a large portion of the that, although stochastic events such as presently is no effort underway to range, and individuals may be unable to large wildfires may occur within a large remove State protections for the Scott escape the disturbance or recolonize portion of this salamanders’ restricted Bar salamander, the continued habitat following extirpation. The range, Scott Bar salamanders appear to protection of the species under CESA petitioners claim that these salamanders persist following wildfires and other for the foreseeable future is not certain. are rare, patchily distributed, and easily disturbances, to recover as vegetation is However, we find that the uncertain extirpated by disturbances, making re-established following disturbance, future of CESA protections for Scott Bar them highly vulnerable to extinction and have adequate numbers of well- salamander populations on private (Greenwald and Curry 2007, p. 1). distributed populations throughout their lands does not pose a substantial threat However, current research suggests that range to allow for persistence and because: (1) Private lands comprise a Scott Bar salamanders are in fact well- viability of this species. We therefore small portion of the species’ range and distributed within their range, that they conclude that the Scott Bar salamander are distributed in small parcels occur at high densities in some areas, is not now, or in the foreseeable future, interspersed among Federal lands; and and that populations persist in managed threatened by the individual or (2) salamander populations have been landscapes (see ‘‘Range and cumulative effects of climate change or shown to persist in managed Distribution’’ and Factor A for the stochastic events such as epidemics or landscapes. We therefore conclude that Siskiyou Mountains salamander). These large, severe wildfires. the Scott Bar salamander is not now, or traits act to decrease the potential Finding in the foreseeable future, threatened by vulnerability conferred on this species inadequate regulatory mechanisms. by its small range. Severe disturbances We assessed the best available such as clear-cutting or intense wildfires scientific and commercial information Factor E: Other Natural or Manmade may result in negative effects to regarding threats faced by the Scott Bar Factors Affecting the Continued abundance or population structure of salamander. We have reviewed the Existence of the Species this species (as described under Factor petition, information available in our Other natural or manmade factors that A for the Siskiyou Mountains files, and information submitted to us may affect the persistence of the Scott salamander), but there is no evidence following our 90-day petition finding Bar salamander across its range are that they result in significant losses of (72 FR 14750; March 29, 2007). We also climate changes associated with global populations, and populations appear to consulted with recognized salamander warming and stochastic events, which recover over time. experts, and Federal and private land are rare, chance events such as Although there is evidence that fire managers, and arranged for researchers epidemics and large, severe wildfires. size and intensity may have increased in to initiate field studies to assess the the Klamath-Siskiyou region, large fires distribution of genetic entities within Climate Change with mixed severity are characteristic of the salamander complex and The similarities in physiology, the natural disturbance regime (Odion et demographic response of these species ecology, and habitat associations al. 2004, p. 933; Agee 1993, pp. 388– to forest structure and management between the Scott Bar salamander and 389) within which these salamanders practices. other members of the Siskiyou have evolved. However, a large wildfire We find little support for the Mountains salamander Complex, that affects the majority of the range of petitioners’ claim that the Scott Bar combined with the large scales at which the Scott Bar salamander is a plausible salamander is threatened by habitat climate change studies are conducted, description of a significant stochastic destruction caused by timber harvesting lead us to conclude that our analysis of event. Large fires such as the 2002 and wildfire, and that existing the potential effects of climate change Biscuit Fire in southern Oregon may regulatory mechanisms are inadequate under Factor E for the Siskiyou encompass an area similar to or larger to protect the species. While the Mountains salamander applies to the than the range of this species. This does available information suggests that Scott Scott Bar salamander as well. Given its not, however, demonstrate that a fire of Bar salamanders may be positively physiology, this species may be strongly this magnitude is likely to threaten the associated with older forest conditions, affected by changes to precipitation Scott Bar salamander in the foreseeable the majority of studies and available patterns. Although most of the available future. The diverse topography and field data show the species occupying a climate models predict increases in patchy distribution of habitats within wide range of forest conditions, average temperatures, models were the salamanders’ range suggests that a including previously harvested areas. inconsistent with regard to future large fire would be unlikely to have Recent research indicates that these precipitation; increases in annual homogeneous effects at a large scale. salamanders persist and populations precipitation and cloud cover are a The resulting mosaic pattern of fire recover as vegetation is re-established in plausible outcome and could act to effects, combined with the salamanders’ intensively disturbed habitats. Less- ameliorate any negative impacts caused ability to remain protected underground intensive disturbances such as forest by increased temperatures. We are and persist during postfire vegetation thinning and mixed-effects wildfire unable to predict the potential effects of recovery, indicates that the threat posed appear to have minor or short-term future climate change on the Scott Bar by such a stochastic event would be impacts on salamander abundance. salamander at this time. unlikely to result in large-scale There is no reliable evidence that extirpation of populations. indicates loss of populations or Stochastic Events curtailment of this species’ range has The Scott Bar salamander is an Summary of Factor E occurred. endemic species with a relatively small The uncertain nature of climate We acknowledge that the abundance geographic range (136,740 ac (55,335 change predictions, particularly and population structure of Scott Bar ha)) and limited dispersal abilities. predictions of future precipitation salamander populations may be

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negatively affected by intensive timber that there are threats of sufficient range of the species and it contributes harvesting practices such as clear- imminence, intensity, or magnitude as substantially to the representation, cutting. The extent and magnitude of to cause substantial losses of population resiliency, or redundancy of the species. such practices, however, are severely distribution or viability of the Scott Bar The contribution must be at a level such limited by a number of regulatory salamander. Therefore, we do not find that its loss would result in a decrease mechanisms and other factors operating that the Scott Bar salamander is in in the ability to conserve the species. within the salamanders’ range, as danger of extinction (endangered), nor is We acknowledge that the Ninth evidenced by the steep decline in timber it likely to become endangered within Circuit Court of Appeals decision in harvest levels on Federal lands that the foreseeable future (threatened) Defenders of Wildlife v. Norton, 258 constitute 78 percent of the species’ across its range. Therefore, listing the F.3d 1136 (2001) can be interpreted to range. Although levels of timber species as threatened or endangered require that in determining whether a harvesting are higher on private under the Act is not warranted at this species is threatened or endangered timberlands, such lands constitute only time. throughout a significant portion of its 22 percent of the species’ range and Under the Services’ DPS policy, (61 range, the Service should consider occur as small parcels interspersed FR 4722, February 7, 1996) three whether lost historical range (as among Federal lands. The small elements are considered in the decision opposed to current range) constitutes a proportion of the range consisting of concerning the establishment and significant portion of the range of the private lands, coupled with the ability classification of a possible DPS. These species at issue. While this is not our of Scott Bar salamanders to persist in are applied similarly for additions to the interpretation of the case or the statute, managed landscapes, leads us to Lists of Endangered and Threatened we conclude that there are no such areas conclude that forest management Wildlife and Plants. These elements for the Siskiyou Mountains salamander, activities on Federal or private lands do include: (1) The discreteness of a the Applegate DPS of the Siskiyou not pose a substantial threat to this population in relation to the remainder salamander, the Grider DPS of the species. of the species to which it belongs; (2) Siskiyou salamander, or the Scott Bar Several complementary regulatory the significance of the population salamander. As we discussed in detail mechanisms provide protection for segment to the species to which it in our assessment of threats to each Scott Bar salamanders and their belongs; and (3) the population species, there is no evidence of range habitats. On Federal lands constituting segment’s conservation status in relation contraction for any of the species. We 78 percent of the species’ range, the to the Act’s standards for listing, have no evidence to suggest that the NWFP’s system of land use allocations delisting, or reclassification (i.e., is the occupied range of any member of the and management guidelines impose population segment endangered or Siskiyou Mountains salamander substantial limitations on the amount threatened). We are not aware of any Complex is different from its historical and intensity of land management information that would lead us to range. activities, as evidenced by the dramatic conclude that the Scott Bar salamander In determining whether a species is decline in timber harvest levels is comprised of population segments threatened or endangered in a observed since the NWFP was that are either discrete or significant. significant portion of its range, we first implemented. For this reason, the Therefore, we have not analyzed the identify any portions of the range of the elimination of the Survey and Manage Scott Bar salamander under the species that warrant further Program, which has provided protection Services’ DPS policy. consideration. The range of a species specifically to occupied salamander can theoretically be divided into Significant Portion of the Range locations, does not pose a substantial portions in an infinite number of ways. Analysis threat to the species. However, there is no purpose to As a species, the Scott Bar salamander Having determined that the Siskiyou analyzing portions of the range that are exhibits several characteristics that, Mountains salamander, the Applegate not reasonably likely to be significant when combined, suggest that Scott Bar salamander DPS of Siskiyou Mountains and threatened or endangered. To salamanders are resilient to stochastic salamander, the Grider DPS of Siskiyou identify only those portions that warrant events such as large wildfires. Mountains salamander, and the Scott further consideration, we determine Populations of Scott Bar salamanders Bar salamander do not meet the whether there is substantial information are distributed among several definition of a threatened or endangered indicating that (i) The portions may be watersheds, and abundance within species, we must next consider whether significant and (ii) the species may be in populations can be high. There are 115 there are any significant portions of danger of extinction there or likely to known locations within the estimated their ranges where the species or DPS is become so within the foreseeable future. range of this species, and the majority in danger of extinction or is likely to In practice, a key part of this analysis is of suitable habitat has not been become endangered in the foreseeable whether the threats are geographically surveyed. These population future. concentrated in some way. If the threats characteristics, combined with the On March 16, 2007, a formal opinion to the species are essentially uniform species’ apparent ability to persist and was issued by the Solicitor of the throughout its range, no portion is likely recover following habitat disturbance, Department of the Interior, ‘‘The to warrant further consideration. acts to reduce any potential threat posed Meaning of ‘In Danger of Extinction Moreover, if any concentration of by stochastic events. Our evaluation of Throughout All or a Significant Portion threats applies only to portions of the climate change modeling for the of Its Range’’’ (USDI 2007c). We have range that are unimportant to the geographic area inhabited by the summarized our interpretation of that conservation of the species, such salamanders does not support the opinion and the underlying statutory portions will not warrant further contention that future climate poses a language below. A portion of a species’ consideration. threat to Scott Bar salamanders, because range (in this case, ‘‘species’’ refers to If we identify any portions that it is not currently possible to forecast the Siskiyou Mountains salamander, the warrant further consideration, we then future precipitation regimes. Scott Bar salamander, and both Siskiyou determine whether in fact the species is Our evaluation of the five listing Mountains salamander DPSs) is threatened or endangered in any factors does not support the contention significant if it is part of the current significant portion of its range.

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Depending on the biology of the species, its location on the margin of the species’ private lands within the range of the its range, and the threats it faces, it may habitat requirements. species occur as small parcels in a ‘‘checkerboard’’ pattern with Federal be more efficient for the Service to Siskiyou Mountains Salamander address the significance question first, lands or as isolated parcels, reducing or the status question first. Thus, if the The Applegate and Grider DPSs the potential for threats to be Service determines that a portion of the together constitute the entirety of the concentrated in a geographic portion of range is not significant, the Service need range of the Siskiyou Mountains the larger range. For these reasons, we not determine whether the species is salamander. We have previously find that there are no portions of the threatened or endangered there. If the determined, however, that neither DPS Applegate salamander DPS’s range that Service determines that the species is is threatened or endangered across its warrant further consideration as range. Therefore, according to the not threatened or endangered in a significant portions of the range. formal opinion on significant portion of portion of its range, the Service need not We do not find that the Applegate the range (USDOI 2007), we should then determine if that portion is significant. salamander DPS is in danger of evaluate whether any significant portion extinction (endangered) now, nor is it If the Service determines that both a of the range of a DPS may warrant likely to become endangered within the portion of the range of a species is listing. foreseeable future (threatened) significant and the species is threatened throughout all or a significant portion of or endangered there, the Service will Applegate Salamander DPS of Siskiyou Mountains Salamander its range. Therefore, listing the specify that portion of the range as Applegate salamander DPS as threatened or endangered pursuant to To determine whether the Applegate threatened or endangered under the Act section 4(c)(1) of the Act. salamander DPS is threatened in a is not warranted at this time. The terms ‘‘resiliency,’’ significant portion of its range, we first Grider Salamander DPS of Siskiyou ‘‘redundancy,’’ and ‘‘representation’’ are addressed whether any portions of the Mountains Salamander intended to be indicators of the range of the Applegate salamander DPS conservation value of portions of the warrant further consideration. Our Applying the process described above range. Resiliency of a species allows the analysis indicates that the conservation for determining whether a species is species to recover from periodic status of the species is essentially the threatened in a significant portion of its disturbance. A species will likely be same throughout its range; there is no range, we also addressed whether any more resilient if large populations exist area within the range of the Applegate portions of the range of the Grider salamander DPS where potential threats in high-quality habitat that is salamander DPS warrant further to this species are significantly distributed throughout the range of the consideration. Our evaluation of the concentrated or are substantially greater species in such a way as to capture the distribution of Grider salamander DPS than in other portions of the range. And, environmental variability found within populations and potential threats as we explained in detail in our analysis the range of the species. In addition, the indicates that the conservation status of of the status of the species, none of the the species is essentially the same portion may contribute to resiliency for threats faced by the species, alone or in throughout its range; there is no area other reasons—for instance, it may combination, are sufficient to place it in within the range of the Grider contain an important concentration of danger of extinction now (endangered) salamander DPS where potential threats certain types of habitat that are or in the foreseeable future (threatened). to this species are significantly necessary for the species to carry out its We found no evidence that concentrated or are substantially greater life-history functions, such as breeding, populations of Applegate salamander than in other portions of the range. And, feeding, migration, dispersal, or DPS are concentrated in any geographic as we explained in detail in our analysis wintering. Redundancy of populations portion of the range that would increase of the status of the species, none of the may be needed to provide a margin of the vulnerability of this DPS to a threats faced by the species, alone or in safety for the species to withstand particular threat. The 440 known combination, are sufficient to place it in catastrophic events. This does not mean Applegate salamander locations and danger of extinction now (endangered) that any portion that provides suitable habitat are widely distributed or in the foreseeable future (threatened). redundancy is a significant portion of across the DPS’s range, and large areas We found no evidence that the range of a species. The idea is to of suitable habitat remain unsurveyed. populations of this DPS are conserve enough areas of the range such We have analyzed the threats to the concentrated in any geographic portion that random perturbations in the system Applegate salamander DPS and have of the range that would increase the act on only a few populations. determined that they are not vulnerability of this DPS to a particular Therefore, each area must be examined concentrated within any geographic threat. The 76 known Grider salamander based on whether that area provides an portion of the range, and no significant locations and suitable habitat are widely increment of redundancy is important to areas within the DPS’s range have been distributed across the DPS’s range, and the conservation of the species. determined to face any greater threats. large areas of suitable habitat remain Adequate representation ensures that Potential threats to the DPS on Federal unsurveyed. the species’ adaptive capabilities are lands are addressed by existing land use We have analyzed the threats to the conserved. Specifically, the portion regulations such as the NWFP, in Grider salamander DPS and have should be evaluated to see how it combination with the Special Status determined that they are not contributes to the genetic diversity of Species program, such that no areas face concentrated within any geographic the species. The loss of genetically significant threats which are not being portion of the range, and no significant based diversity may substantially managed. We find that private areas within the DPS’s range have been reduce the ability of the species to timberlands do not constitute a determined to face any greater threats. respond and adapt to future significant proportion of the Applegate Potential threats to the DPS on Federal environmental changes. A peripheral salamander DPS’s range because (1) lands are addressed by existing land use population may contribute meaningfully Private lands constitute a minor regulations such as the NWFP, such that to representation if there is evidence proportion (15 percent) of the range of no areas face significant threats which that it provides genetic diversity due to the Applegate salamander, and (2) are not being managed. We find that

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private timberlands do not constitute a Existing land use regulations, such as agencies may in the future play an significant proportion of the Grider the NWFP, provide protection for the important role in the conservation of the salamander DPS’s range because (1) Scott Bar salamander on Federal lands species by acting as a hedge against Private lands constitute a minor while CESA provides substantial uncertainty associated with future land proportion (9 percent) of the range of protection for the salamander on private management policies and our the Grider salamander DPS, and (2) lands in California. Further, even if the understanding of the ecology of these private lands within the range of the CESA protections on private lands were species. This finding represents our DPS occur as small parcels in a eliminated, the threats facing the Scott evaluation of the best currently ‘‘checkerboard’’ pattern with Federal Bar salamander would not significantly available scientific information on the lands or as isolated parcels, reducing increase because the private lands are poorly known species, the environment the potential for threats to be not concentrated in a particular they inhabit, and land management concentrated in a geographic portion of geographical area, but rather occur in a practices that may affect them, but we the larger range. Based on the reasons ‘‘checkerboard’’ pattern interspersed recognize the dynamic nature of our described above, we find that there are with Federal lands. This pattern of knowledge and land management no portions of the Grider salamander landownership serves to reduce the policy. Through our participation in the DPS’s range that warrant further potential impacts on the salamander of development, implementation, and consideration as significant portions of timber harvest and other habitat monitoring of these Conservation the range. disturbing activities on the relatively Strategies, as well as in ongoing field We do not find that the Grider small portion (22 percent) of the species research of the species’ habitat salamander DPS is in danger of range that occurs on private lands, and relationships, the Service will play a extinction (endangered) now, nor is it to maintain redundancy, distribution, direct role in the future management likely to become endangered within the and connectivity among Scott Bar and status of these salamanders. foreseeable future (threatened) salamander populations. For these We will continue to assess the status throughout all or a significant portion of reasons, we conclude that there are no of both clades of the Siskiyou its range. Therefore, listing the Grider portions of the Scott Bar salamander’s Mountains salamander and Scott Bar salamander DPS as threatened or range that warrant further consideration salamander by working with the USFS, endangered under the Act is not as significant portions of the range. BLM, and other parties to the existing warranted at this time. We do not find that the Scott Bar Conservation Strategy; research salamander is in danger of extinction scientists; and other individuals or Scott Bar Salamander (endangered) now, nor is it likely to groups interested in contributing to the become endangered within the conservation of these species. Through To determine whether the Scott Bar foreseeable future (threatened) our participation in regular reviews of salamander is threatened in a significant throughout all or a significant portion of the Conservation Strategy for the portion of its range, we first addressed its range. Therefore, listing the species Siskiyou Mountains salamander, whether any portions of the range of the as threatened or endangered under the Northern Portion of the Range, we will Scott Bar salamander warrant further Act is not warranted at this time. monitor its effectiveness in eliminating consideration. Our evaluation of the We make this finding at a time when and reducing threats to the Applegate distribution of Scott Bar salamander Federal conservation efforts focused salamander over the foreseeable future. populations and potential threats specifically on Applegate, Grider, and We are continuing our involvement in indicates that the conservation status of Scott Bar salamanders are in flux. Given the evaluation of habitat associations the species is essentially the same the very recent discontinuation of the and effects of forest management on the throughout its range; there is no area Survey and Manage Program and the Grider and Scott Bar salamanders. In within the range of the Scott Bar fact that Survey and Manage guidelines 2005, the Service’s Yreka Fish and salamander where potential threats to are still applicable to ongoing Federal Wildlife Office (YFWO), in cooperation this species are significantly projects for at least another year, Federal with the USFS Redwood Sciences concentrated or are substantially greater agencies have had little time to develop Laboratory and Humboldt State than in other portions of the range. And, and implement conservation strategies University, initiated research into the as we explained in detail in our analysis under their Special Status Species comparative abundance, population of the status of the species, none of the Programs. The Conservation Strategy for structure, and body condition of 60 threats faced by the species, alone or in the Siskiyou Mountains Salamander, Grider and Scott Bar salamander combination, are sufficient to place it in Northern Portion of the Range (Olson et populations across a gradient of habitat danger of extinction now (endangered) al. 2007) covers the entire range of the conditions. or in the foreseeable future (threatened). Applegate salamander; the KNF is We request that you submit any new We found no evidence that currently finalizing a Conservation information concerning the status of, or populations of Scott Bar salamanders Strategy for the Grider salamander and threats to, these species to our Yreka are concentrated in any geographic Scott Bar salamander. Both of these Fish and Wildlife Office (see ADDRESSES portion of the range that would increase conservation strategies are modeled section) whenever it becomes available. the vulnerability of this species to a closely after the existing Survey and New information will help us monitor particular threat. The 115 known Scott Manage guidance for the salamanders, these species and encourage their Bar salamander locations and suitable but neither was evaluated as an existing conservation. If an emergency situation habitat are widely distributed across the conservation effort under PECE, or develops for these or any other species, species’ range, and large areas of considered in our evaluation of threats we will act to provide immediate suitable habitat remain unsurveyed. The to the species. Despite the fact that we protection. higher numbers of salamander locations did not rely on these existing and on private lands is the result of potential conservation efforts in our References Cited mandatory surveys, and does not determination that the Siskiyou A complete list of all references cited suggest the presence of larger or more Mountains salamander group does not herein is available, upon request, from concentrated populations on private warrant protection under the Act, we the Yreka Fish and Wildlife Office (see lands. note that these efforts by Federal ADDRESSES section).

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Author Authority Dated: January 14, 2008. Kenneth Stansell, The primary authors of this notice are The authority for this action is section Acting Director, U.S. Fish and Wildlife the staff of the Yreka Fish and Wildlife 4 of the Endangered Species Act of Service. Office (see ADDRESSES). 1973, as amended (16 U.S.C. 1531 et [FR Doc. E8–918 Filed 1–23–08; 8:45 am] seq.). BILLING CODE 4310–55–P

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Part IV

Environmental Protection Agency 40 CFR Parts 51 and 93

Transportation Conformity Rule Amendments To Implement Provisions Contained in the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU); Final Rule

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ENVIRONMENTAL PROTECTION that are not related to SAFETEA–LU, Traverwood Road, Ann Arbor, MI AGENCY such as allowing the Department of 48105, e-mail address: Transportation (DOT) to make [email protected], telephone number: 40 CFR Parts 51 and 93 categorical hot-spot findings for (734) 214–4858, fax number: (734) 214– [EPA–HQ–OAR–2006–0612; FRL–8516–6] appropriate projects in carbon 4052, or Rudy Kapichak, State Measures monoxide nonattainment and and Conformity Group, Transportation RIN 2060–AN82 maintenance areas. and Regional Programs Division, Environmental Protection Agency, 2000 Transportation Conformity Rule EPA has consulted with DOT, and Traverwood Road, Ann Arbor, MI Amendments To Implement Provisions they concur with this final rule. 48105, e-mail address: Contained in the 2005 Safe, DATES: Effective Date: This final rule is [email protected], telephone Accountable, Flexible, Efficient effective on February 25, 2008. number: (734) 214–4574, fax number: Transportation Equity Act: A Legacy ADDRESSES: EPA has established a (734) 214–4052. for Users (SAFETEA–LU) docket for this action under Docket ID No. EPA–HQ–OAR–2006–0612. All SUPPLEMENTARY INFORMATION: The AGENCY: Environmental Protection documents in the docket are listed on contents of this preamble are listed in Agency (EPA). the www.regulations.gov Web site. the following outline: ACTION: Final rule. Although listed in the index, some I. General Information SUMMARY: In this action, EPA is information is not publicly available, II. Background amending the transportation conformity e.g., confidential business information III. Frequency of Conformity Determinations rule to finalize provisions that were (CBI) or other information whose IV. Deadline for Conformity Determinations proposed on May 2, 2007. The Clean Air disclosure is restricted by statute. When a New Budget Is Established Certain other material, such as V. Lapse Grace Period Act requires federally supported VI. Timeframes for Conformity transportation plans, transportation copyrighted material, is not placed on the Internet and will be publicly Determinations improvement programs, and projects to VII. Conformity SIPs be consistent with (‘‘conform to’’) the available only in hard copy form. VIII. Transportation Control Measure purpose of the state air quality Publicly available docket materials are Substitutions and Additions implementation plan. Most of these available either electronically through IX. Categorical Hot-Spot Findings for Projects amendments are necessary to make the www.regulations.gov or in hard copy at in Carbon Monoxide Nonattainment and rule consistent with Clean Air Act the Air Docket, EPA/DC, EPA West Maintenance Areas section 176(c) as amended by Building, Room 3334, 1301 Constitution X. Removal of Regulation 40 CFR 93.109(e)(2)(v) SAFETEA–LU on August 10, 2005 (Pub. Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to XI. Miscellaneous Revisions L. 109–59), including changes to the XII. Statutory and Executive Order Reviews regulations to reflect that the Clean Air 4:30 p.m., Monday through Friday, Act now provides more time for state excluding legal holidays. The telephone I. General Information number for the Public Reading Room is and local governments to meet A. Does This Action Apply to Me? conformity requirements, provides a (202) 566–1744, and the telephone one-year grace period before the number for the Air Docket is (202) 566– Entities potentially regulated by the consequences of not meeting certain 1742. conformity rule are those that adopt, conformity requirements apply, allows FOR FURTHER INFORMATION CONTACT: approve, or fund transportation plans, the option of shortening the timeframe Laura Berry, State Measures and programs, or projects under title 23 of conformity determinations, and Conformity Group, Transportation and U.S.C. or title 49 U.S.C. Regulated streamlines other provisions. This final Regional Programs Division, categories and entities affected by rule also includes minor amendments Environmental Protection Agency, 2000 today’s action include:

Category Examples of regulated entities

Local government ...... Local transportation and air quality agencies, including metropolitan planning organizations (MPOs). State government ...... State transportation and air quality agencies. Federal government ...... Department of Transportation (Federal Highway Administration (FHWA) and Federal Transit Administra- tion (FTA)).

This table is not intended to be particular entity, consult the persons at the official public docket. See exhaustive, but rather provides a guide listed in the preceding FOR FURTHER ADDRESSES section for its location. INFORMATION CONTACT section. for readers regarding entities likely to be 2. Electronic Access affected by this final rule. This table B. How Can I Get Copies of This You may access this Federal Register lists the types of entities of which EPA Document? is aware that potentially could be document electronically through EPA’s regulated by the transportation 1. Docket Transportation Conformity Web site at conformity rule. Other types of entities http://www.epa.gov/otaq/ EPA has established an official public stateresources/transconf/index.htm. not listed in the table could also be docket for this action under Docket ID You may also access this document regulated. To determine whether your No. EPA–HQ–OAR–2006–0612. You can electronically under the Federal organization is regulated by this action, get a paper copy of this Federal Register Register listings at http://www.epa.gov/ you should carefully examine the document, as well as the documents fedrgstr/. applicability requirements in 40 CFR specifically referenced in this action, An electronic version of the official 93.102. If you have questions regarding any public comments received, and public docket is available through the applicability of this action to a other information related to this action www.regulations.gov. You may use

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www.regulations.gov to view public violations, worsen existing violations, or conformity regulations. EPA has comments, access the index listing of delay timely attainment of the relevant consulted with DOT on the the contents of the official public national ambient air quality standards development of this final rule, and DOT docket, and access those documents in (NAAQS or ‘‘standards’’). concurs with its content. the public docket that are available EPA’s transportation conformity rule EPA received comments on the electronically. Once in the system, establishes the criteria and procedures proposed rule from 16 different entities, select ‘‘search,’’ then key in the for determining whether transportation though some commenters submitted appropriate docket identification activities conform to the SIP. EPA first comments jointly. Commenters number. promulgated the transportation included state DOTs, MPOs, state and Certain types of information are not conformity rule on November 24, 1993 local air quality agencies, government placed in the electronic public docket. (58 FR 62188), and subsequently associations, and industry associations. Information claimed as CBI and other published several other amendments. The majority of commenters information for which disclosure is See EPA’s Web site at http:// supported EPA’s proposal in general, restricted by statute is not available for www.epa.gov/otaq/stateresources/ and specific provisions in particular, public viewing in the electronic public transconf/index.htm for further which are discussed below. EPA is docket. EPA’s policy is that copyrighted information. addressing these and other comments in material is not placed in the electronic the relevant sections of the preamble B. Why Are We Issuing This Final Rule? public docket but is available only in and in the responses to comments printed, paper form in the official public On August 10, 2005, the Safe, document, which can be found in the docket. Accountable, Flexible, Efficient public docket for this final rule. To the extent feasible, publicly Transportation Equity Act: A Legacy for available docket materials will be made Users (SAFETEA–LU) was signed into III. Frequency of Conformity available in the electronic public law (Pub. L. 109–59). SAFETEA–LU Determinations docket. When a document is selected section 6011 amended Clear Air Act A. Description of Final Rule from the index list in EPA Dockets, the section 176(c) by: system will identify whether the • EPA is changing § 93.104(b)(3) to Changing the required frequency of require that the MPO and DOT document is available for viewing in the transportation conformity electronic public docket. Although not determine conformity of a determinations from three years to four transportation plan at least every four all docket materials may be available years; electronically, you may still access any • years, and § 93.104(c)(3) to require that Providing two years to determine the MPO and DOT determine of the publicly available docket conformity after new SIP motor vehicle materials through the docket facility conformity of a transportation emissions budgets are either found improvement program (TIP) at least identified in Section I.B.1. above. EPA adequate, approved or promulgated; intends to work towards providing • every four years. The pre-existing Adding a one-year grace period regulations required these electronic access in the future to all of before the consequences of a conformity the publicly available docket materials determinations to be made at least every lapse apply; three years. through the electronic public docket. • Providing an option for reducing For additional information about the the time period addressed by conformity B. Rationale and Response to Comments electronic public docket, visit the EPA determinations; These changes to § 93.104 are needed Docket Center homepage at http:// • Streamlining requirements for www.epa.gov/epahome/dockets.htm. to make the conformity regulation conformity SIPs; and consistent with the law. In SAFETEA– • II. Background Providing procedures for areas to LU, Congress amended Clean Air Act use in substituting or adding A. What Is Transportation Conformity? section 176(c)(4)(D)(ii) to require that transportation control measures (TCMs) conformity be determined with a Transportation conformity is required to approved SIPs. frequency of four years, unless the MPO under Clean Air Act section 176(c) (42 SAFETEA–LU section 6011(g) requires decides to update its transportation plan U.S.C. 7506(c)) to ensure that federally that EPA revise the transportation or TIP more frequently, or the MPO is supported highway and transit project conformity rule as necessary to address required to determine conformity in activities are consistent with (‘‘conform the new statutory provisions. This final response to a trigger (see Section IV.). to’’) the purpose of the state air quality rule addresses the relevant changes that The Clean Air Act previously required implementation plan (SIP). Conformity SAFETEA–LU made to the Clean Air transportation plan and TIP conformity currently applies to areas that are Act. to be determined every three years. designated nonattainment and those This final rule replaces the joint EPA– These Clean Air Act provisions have redesignated to attainment after 1990 DOT interim guidance issued February been in effect as of August 10, 2005. (‘‘maintenance areas’’ with plans 14, 2006, which provided guidance to Several commenters voiced support developed under Clean Air Act section areas subject to transportation for this change because it is consistent 175A) for the following transportation- conformity on implementing the with the Clean Air Act, as amended by related criteria pollutants: Ozone, changes to the Clean Air Act made by SAFETEA–LU. One commenter noted 1 particulate matter (PM2.5 and PM10), SAFETEA–LU.2 This final rule is that this change will be helpful carbon monoxide (CO), and nitrogen consistent with the February 2006 particularly to small communities. One dioxide (NO2). Conformity to the guidance. commenter opposed the proposal purpose of the SIP means that DOT is our federal partner in because the commenter believes that transportation activities will not cause implementing the transportation having more frequent conformity or contribute to new air quality determinations may be important in 2 Note that the TCM portion of the February 14, areas with significant on-road mobile 1 40 CFR 93.102(b)(1) defines PM2.5 and PM10 as 2006, guidance is not covered in today’s final rule, particles with an aerodynamic diameter less than or but in an updated guidance document that will be source emissions. equal to a nominal 2.5 and 10 micrometers, available on EPA’s Web site at http://www.epa.gov/ As already stated, and as other respectively. otaq/stateresources/transconf/policy.htm. commenters noted, this change is

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necessary to make the regulation these areas. However, MPOs can this language to allow a project to consistent with the law. Furthermore, voluntarily update their transportation proceed during a freeze if it was EPA believes that despite this change in plans and TIPs more frequently. included in the conforming TIP in order the required frequency of conformity Consequently, conformity may still need to account for the transition to new determinations, the transportation to be determined more frequently than SAFETEA–LU transportation planning conformity program still achieves its every four years, because an updated or requirements. EPA believed the purpose in ensuring transportation amended transportation plan or TIP still proposed language would be useful actions conform to the SIP. must conform before it is adopted, during the transition to SAFETEA–LU’s Transportation plans and TIPs must still regardless of the last time a conformity planning requirements. We believed conform before they are adopted. determination was done. Further that when the rule became final, some Several commenters suggested that discussion of the implementation of the MPOs would still have three-year TIPs EPA also change ‘‘three years’’ to ‘‘four SAFETEA–LU statewide and prior to developing four-year TIPs for years’’ in § 93.104(d) of the conformity metropolitan transportation planning SAFETEA–LU. See the preamble to the rule. This provision describes the requirements can be found in DOT’s May 2, 2007, proposed rule (72 FR circumstances when a conformity February 14, 2007, final rulemaking on 24475) for EPA’s full rationale. Several determination for a project is needed, metropolitan and statewide commenters supported the language we one of which is when more than three transportation planning (72 FR 7224). had proposed, because it accounted for years have elapsed since the most recent Today’s change to the required the transition to SAFETEA–LU’s major step to advance the project. frequency of transportation plan and planning requirements. EPA received no Commenters requested that three years TIP conformity determinations does not comments opposing it. be changed to four years to be consistent change other details for implementing However, the transition period ended with SAFETEA–LU provisions of conformity and planning frequency on July 1, 2007. While some areas may determining conformity on TIPs and requirements. Both the transportation still have three-year TIPs today, these transportation plans every four years. planning update clock and the will all be replaced over time by four- EPA is not changing § 93.104(d) in conformity update clock continue to be this rulemaking. First, this change was year TIPs. EPA believes the better reset on the date of the FHWA and FTA update to § 93.120(a)(2) is simply to not proposed, as it was not required by conformity determination for the the Clean Air Act as amended by change the instances of ‘‘three years’’ to respective transportation plan and/or ‘‘four years,’’ as it is more clear and SAFETEA–LU. SAFETEA–LU aligned TIP. For more information, see DOT’s transportation plan, TIP, and the more consistent with the prior May 25, 2001, guidance, available on regulatory language. If EPA disapproves frequency of transportation plan and EPA’s Web site at http://www.epa.gov/ TIP conformity determinations to create a SIP without a protective finding in an otaq/stateresources/transconf/ area that still has a three-year TIP, only efficiencies in the overall planning policy.htm and on DOT’s Web site at process, rather than to allow more time projects from the first three years of the http://www.fhwa.dot.gov/environment/ conforming transportation plan and TIP when project phases are delayed. conformity/planup_m.htm. Second, the conformity rule requires could proceed, because the regulation that a new conformity determination be D. Related Change: Consequences of a states that projects must be in both the done for a project if more than three Control Strategy SIP Disapproval conforming transportation plan and TIP years have elapsed since a major step (except during the lapse grace period, has occurred to be consistent with the 1. Description of Final Rule discussed in Section V.E., below). regulations under the National EPA is revising § 93.120(a)(2) to allow Today’s final rule at § 93.120(a)(2) is Environmental Policy Act (NEPA), projects in the first four years of the consistent with the proposed rule for rather than with the frequency of conforming transportation plan and TIP, this section. Though the proposed conformity determinations for rather than the first three years of the language had eliminated the reference to transportation plans and TIPs. The conforming transportation plan and TIP, a conforming transportation plan, EPA NEPA regulations require reevaluation to proceed after final EPA disapproval did not intend to change other rule of NEPA documents for projects which of a control strategy SIP without a requirements. In fact, EPA stated so in have not had major action for three protective finding, i.e., when a the preamble to the May 2, 2007, years. Please refer to ‘‘H. Time Limit on conformity freeze occurs. In this section proposed rule: Project-Level Determinations’’ in the of the regulation, EPA is changing the However, this proposed general language is preamble of the November 24, 1993, two instances of ‘‘three years’’ to ‘‘four not intended to change other rule conformity rule (58 FR 62200) for more years,’’ similar to the changes made in requirements. Although EPA’s change to explanation of this point. §§ 93.104(b)(3) and (c)(3), the other § 93.120(a)(2) would no longer include the sections of the rule affected by the phrase ‘‘conforming transportation plan,’’ the C. Overlap With Transportation change in the required frequency of requirements of § 93.114 continue to apply. Planning Frequency Requirements conformity determinations. Though the Specifically, there must still be a currently In addition to changing the required final regulation at § 93.120(a)(2) differs conforming transportation plan in place to approve projects during a conformity freeze frequency of conformity determinations from the language that was proposed, it from at least every three years to every (except as noted in Section V.E., below). (72 is the same in substance as the proposed FR 24475) four years, SAFETEA–LU also changed rule. the required frequency for updating While it is the same in substance as transportation plans and TIPs for 2. Rationale and Response to Comments the proposed rule language, the change transportation planning purposes. Prior EPA is making this change to be to § 93.120(a)(2) in today’s final rule is to SAFETEA–LU, transportation plans consistent with the general more clear, because it continues to state in nonattainment and maintenance implementation of SAFETEA–LU, explicitly that a project must be in both areas had to be updated every three which requires transportation plans and the conforming transportation plan as years and TIPs updated every two years; TIPs to be updated every four years and well as conforming TIP. Note that now both transportation plans and TIPs requires TIPs to cover a period of four Section V.E. discusses the exception to must be updated every four years in years. EPA had proposed to generalize this requirement during the lapse grace

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period, which is also included in V. Lapse Grace Period plan and TIP at the time of project today’s final rule for § 93.120(a)(2). approval, except during the lapse grace A. Description of the Final Rule period, when a non-exempt project must IV. Deadline for Conformity EPA is adding a one-year grace period come from the most recent conforming Determinations When a New Budget Is before a conformity lapse occurs when transportation plan and TIP. (A project Established an area misses an applicable deadline. must also meet DOT’s planning and A. Description of the Final Rule The applicable deadlines are those that other requirements to receive Federal result from: funding or approval. See Section V.C. • EPA is revising § 93.104(e), which The requirements to determine below for further discussion.) requires a new transportation plan and conformity of a transportation plan and • Section 93.115 requires that non- TIP conformity determination to be TIP every four years under exempt FHWA/FTA projects come from made after actions that establish a new §§ 93.104(b)(3) and 93.104(c)(3) (see a conforming transportation plan and motor vehicle emissions budget for Section III.), and TIP, except during the lapse grace • conformity, also known as ‘‘triggers.’’ The requirement to determine period, when a project could come from The revision gives MPOs and DOT two conformity within two years of a trigger the most recent conforming plan and years, increased from 18 months, to under § 93.104(e) (see Section IV.). TIP. (A project must also meet DOT’s determine conformity of a EPA notes that the regulatory changes planning and other requirements to transportation plan and TIP when a new discussed in Section V. of this preamble receive federal funding or approval. See budget is established. An MPO and DOT do not impact isolated rural Section V.C. below for further must make a conformity determination nonattainment or maintenance areas, discussion.) within two years of the effective date of: because these areas do not include an • Similarly, § 93.121 requires that • EPA’s finding that a motor vehicle MPO with a transportation plan or TIP regionally significant non-Federal emissions budget(s) (‘‘budget(s)’’) in a conformity determination that would projects either come from the currently submitted SIP is adequate (40 CFR lapse. Isolated rural areas continue to be conforming transportation plan and TIP, 93.104(e)(1)); covered by the requirements in 40 CFR or the regional emissions analysis that • EPA’s approval of a SIP, if the 93.109(l). supports such a transportation plan and budget(s) from that SIP have not yet To provide the rules to allow projects TIP, except during the lapse grace 3 been used in a conformity to meet conformity requirements period, when such projects could be determination (40 CFR 93.104(e)(2)); during the lapse grace period, EPA is approved if they are from the most and adding a new provision to the recent conforming transportation plan regulation, § 93.104(f). • EPA’s promulgation of a Federal and TIP, or the regional emissions • New § 93.104(f)(1) allows non- analysis that supported the most recent implementation plan (FIP) with a exempt FHWA/FTA projects to be found budget(s) (40 CFR 93.104(e)(3)). conforming transportation plan and TIP. to conform during the lapse grace period Note that the lapse grace period only B. Rationale and Response to Comments if they are included in the currently applies to transportation conformity, conforming transportation plan and TIP. and not to DOT’s transportation • This change makes the conformity New § 93.104(f)(2) allows non- planning requirements. DOT and EPA regulation consistent with the current exempt FHWA/FTA projects to be found agree that planning requirements still law. In SAFETEA–LU, Congress to conform during the lapse grace period must be met during the lapse grace amended the Clean Air Act to give if they were included in the most recent period in order for DOT to fund or MPOs and DOT two years before conforming transportation plan and TIP. approve a project as discussed further in conformity must be determined in However, even though § 93.104(f)(2) C. of this section. response to one of the conformity allows a project to be found to conform triggers above. Several commenters when the transportation plan and TIP B. Rationale and Response to Comments generally supported this change, noting have expired, a project must also meet These changes are necessary to make that it is necessary to be consistent with DOT’s planning and other requirements the conformity regulation consistent the current law. This Clean Air Act to receive federal funding or approval. with the amended law and the provision has been in effect as of August Today’s rulemaking does not change intentions of Congress. In SAFETEA– 10, 2005. how exempt projects and traffic signal LU, Congress amended the Clean Air The regulation’s description of events synchronization projects are addressed Act to provide a one-year grace period that trigger a new conformity under the transportation conformity before the consequences of a conformity determination have not been changed rule. These projects are able to proceed lapse apply in section 176(c)(9) and because they were already consistent during the lapse grace period, and for added a definition of ‘‘lapse’’ in section with the amendments made to the Clean that matter during a conformity lapse, 176(c)(10). The changes to the law have Air Act in SAFETEA–LU, for the because exempt projects and traffic been in effect as of August 10, 2005. See reasons described in the preamble to the signal synchronization projects do not the preamble to the May 2, 2007, May 2, 2007, proposed rule (72 FR require project-level conformity proposed rule (72 FR 24476–8) for 24475–24476). EPA also notes that no determinations per 40 CFR 93.126 and EPA’s full rationale supporting this change is necessary for the point at 93.128, respectively. provision of the final rule. which the two-year clocks begin. The In addition, EPA is revising §§ 93.114, Six of the seven commenters who two-year clocks begin on the effective 93.115, and 93.121 by including a commented on the lapse grace period date of EPA’s adequacy finding or the reference to § 93.104(f) to account for supported EPA’s proposal. These the lapse grace period: effective date of EPA’s SIP approval or • commenters generally believe that FIP promulgation action. (For more Section 93.114 requires that there EPA’s proposal to incorporate the lapse details regarding the triggers, see be a currently conforming transportation grace period into the conformity rule is Section III. of the August 6, 2002, final consistent with the Clean Air Act as 3 By the phrase ‘‘meet conformity requirements,’’ rule at 67 FR 50810 and Section XIX. of EPA means that FHWA/FTA projects can be found amended by SAFETEA–LU. One the July 1, 2004, final rule, at 69 FR to conform, and non-Federal projects can be commenter stated that the lapse grace 40050). approved. period allows time and flexibility for

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areas to comply with Clean Air Act have been considered in the conformity FHWA/FTA projects. In order to requirements. Another commenter who determination for this TIP, eliminating advance projects, a new STIP/TIP would supported the lapse grace period the possibility of unanticipated have to be developed that contains only specifically agreed with EPA’s emissions increases. projects that are consistent with the interpretation that Congress meant to transportation plan. A conformity C. How Does the Grace Period Work In allow conformity requirements to be determination would have to be made satisfied for projects during the lapse Practice? for the new TIP unless it includes only grace period, even if there is no The one-year conformity lapse grace exempt projects, traffic signal conforming transportation plan and TIP period begins when the conformity synchronization projects, or TCMs in an at the time. This commenter opined that determination required for a approved SIP. For example, if a new TIP any other interpretation renders Clean transportation plan or TIP is not made included a non-exempt project from Air Act section 176(c)(9) meaningless. by the applicable deadline. As described later years of the transportation plan, Two commenters requested that EPA above, during the grace period, a project the new TIP would require a conformity clarify the commenters’ interpretation may meet conformity requirements as determination. (However, the that the lapse grace period applies to long as it was included in either the determination could rely on the projects not from a conforming currently conforming transportation previous regional emissions analysis as transportation plan and TIP as long as plan and TIP or the most recent long as the requirements of 40 CFR the requirements of 40 CFR 93.115(b)(2) conforming transportation plan and TIP 93.122(g) are met.) are addressed. EPA disagrees with the and other project-level conformity Scenario 3: If both the transportation commenters’ interpretation; merely requirements are met. plan and the STIP/TIP have expired, meeting § 93.115(b)(2) and nothing more An FHWA/FTA project must also FHWA/FTA will not authorize projects would not be sufficient for a project to meet DOT’s planning requirements to under the planning regulations. proceed during the lapse grace period. receive federal funding or approval. Regardless of the scenario, in addition To be found to conform during the lapse Specifically, 23 U.S.C. 134(j)(3) and 49 to transportation planning requirements, grace period, a project must be from a U.S.C. 5303(j)(3) require a TIP to be in project-level conformity requirements conforming transportation plan and TIP place and 23 U.S.C. 135(g)(4) and 49 must also be met during the lapse grace (§ 93.104(f)(1)), or from the most recent U.S.C. 5304(g)(4) require a statewide TIP period including any required hot-spot conforming transportation plan and TIP (STIP) to be in place for DOT to analysis. Refer to the Table 1 in 40 CFR (§ 93.104(f)(2)). authorize transportation projects. The 93.109 for the conformity criteria and Section 93.115(b) describes the STIP contains all of the metropolitan procedures that apply to projects. circumstances under which a project is area TIPs in the state. considered to be from a conforming Three specific scenarios are presented D. Newly Designated Nonattainment transportation plan. Paragraph (b)(2) below to show how expiration of the Areas provides that if a project is not transportation plan and/or STIP/TIP at The lapse grace period provision in specifically identified in the the time of the missed deadline affects Clean Air Act section 176(c)(9) does not transportation plan, it can be considered the ability to advance FHWA/FTA apply to the deadline for newly to be ‘‘from’’ the plan as long as it ‘‘is projects during the conformity lapse designated nonattainment areas to make consistent with the policies and purpose grace period.4 the initial transportation plan/TIP of the transportation plan and will not Scenario 1: If the transportation plan conformity determination within 12 interfere with other projects specifically has expired, but the STIP/TIP are still in months of the effective date of the included in the transportation plan.’’ effect, FHWA/FTA can continue to nonattainment designation. The lapse A project that meets only the authorize and take action on projects in grace period in Clean Air Act section requirements of § 93.115(b)(2) can be the STIP/TIP throughout the duration of 176(c)(9) applies prior to when a lapse considered to be from a conforming the grace period or the duration of the occurs, and Clean Air Act section transportation plan. But to proceed STIP/TIP, whichever is shorter. The TIP 176(c)(10) and 40 CFR 93.101 define the during the lapse grace period, it must and affected portion of the STIP cannot term ‘‘lapse’’ to mean that the also be from a conforming or most be amended once the transportation conformity determination for a recent conforming TIP as well, as plan expires. Prior to transportation transportation plan or TIP has expired. required by Clean Air Act sections plan expiration, an MPO and state Therefore, the lapse grace period does 176(c)(2)(D) and (c)(2)(C)(i). should ensure that the STIP/TIP include not apply unless an area has already had The one commenter who opposed the desired projects from the a conforming transportation plan and EPA’s proposal for the lapse grace transportation plan to continue to TIP that has expired; it does not apply period thought that it was counter to operate during the conformity lapse to a newly designated area that has not EPA’s mission to protect public health. grace period.5 yet made its initial conformity The commenter stated that on-road Scenario 2: If the transportation plan determination for a transportation plan mobile source emissions are important is still in effect, but the STIP/TIP have and TIP for a new pollutant or air and thought that the lapse grace period expired, FHWA/FTA cannot authorize quality standard. would increase these emissions. In Although the lapse grace period does response, first EPA notes that Congress 4 These scenarios are consistent with those not apply to newly designated areas, added the lapse grace period in its highlighted in EPA and DOT’s joint February 14, these areas already have similar existing amendments to the Clean Air Act, and 2006, interim guidance, which is superceded by flexibility because Clean Air Act section EPA is simply revising the regulations today’s final rule. 5 For example, an MPO may want to amend its 176(c)(6) and 40 CFR 93.102(d) give to make them consistent with the TIP before the transportation plan expires to allow newly designated areas one year before current law. Second, a project cannot projects from the fifth year of the transportation conformity applies, starting from the actually proceed to completion unless plan to proceed during the lapse grace period. The effective date of final nonattainment there is a valid, i.e., currently conformity determination for such an amended TIP 6 would have to be made before the lapse grace designation. conforming, TIP that also meets period begins, but the determination could rely on transportation planning requirements. the previous regional emissions analysis as long as 6 This one-year grace period for newly designated Therefore, the project’s emissions would the requirements of 40 CFR 93.122(g) are met. areas most recently applied to the areas designated

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Although the statutory and regulatory If a freeze becomes a lapse because plan unless an election is made to definitions of lapse do not apply to two years transpire from the effective shorten the timeframe. newly designated areas, once date of EPA’s disapproval of the SIP Today EPA is finalizing several conformity applies, the identical (when highway sanctions are applied), changes in the regulatory language to restrictions of a conformity lapse will the area cannot use the lapse grace provide the rules for shortening the exist for any newly designated period. A lapse that occurs because two conformity timeframe, and most of these nonattainment area that does not have a years have transpired since EPA’s changes are found in § 93.106(d). This conforming transportation plan and TIP disapproval of a SIP is not a lapse that section discusses these changes and is in place one year after the effective date results from missing an applicable organized as follows: • of EPA’s designation. EPA and DOT will deadline to determine conformity. Thus, Metropolitan areas that do not have continue to use the term ‘‘lapse’’ the lapse grace period would not apply an adequate or approved second informally to describe these situations. by its own terms when sanctions are maintenance plan (Section VI.B.). applied. • Metropolitan areas with adequate or E. Conformity Freezes approved second maintenance plans VI. Timeframes for Conformity (Section VI.C.). EPA also notes the interaction of Determinations • conformity lapse grace periods and How elections are made in conformity freezes. A conformity freeze A. Overview metropolitan areas to either shorten the conformity timeframe, or revert to the occurs if EPA disapproves a control Through SAFETEA–LU, Congress original conformity timeframe once the strategy SIP without a protective finding added new paragraph (7) to Clean Air timeframe has been shortened (Section for the budgets in that SIP (see Act section 176(c) to allow areas to elect 7 VI.D.). § 93.120(a)(2)). During a freeze, some to shorten the period of time addressed • Isolated rural areas (Section VI.E.). projects can be advanced, but the area by their transportation plan/TIP • Conformity implementation in all cannot adopt a new transportation plan conformity determinations, or areas under a shortened conformity or TIP until a new SIP is submitted with ‘‘timeframe.’’ Prior to this change, every timeframe, including which years must budgets that EPA approves or finds conformity determination for a be analyzed (Section VI.F.). adequate. If conformity of a transportation plan and TIP has had to transportation plan and TIP has not cover the entire timeframe of the B. Timeframe Covered by Conformity been determined using a new control transportation plan. Transportation Determinations in Metropolitan Areas strategy SIP with budgets that EPA plans cover a period of 20 years or Without Second Maintenance Plans approves or finds adequate within two longer. Because of the requirement to 1. Description of Final Rule years of EPA’s SIP disapproval, highway determine conformity of the entire sanctions apply (under Clean Air Act transportation plan, the last year of the Transportation plan and TIP section 179(b)(1)) and the freeze transportation plan has had to be conformity determinations must cover becomes a lapse. analyzed in all transportation plan or the timeframe of the transportation plan, TIP conformity determinations, as well unless an MPO elects to shorten the The lapse grace period would apply timeframe. This requirement is found in as other earlier years in the timeframe during a freeze only if the transportation § 93.106(d)(1). In areas without an plan/TIP expire before highway of the transportation plan. Under the amended Clean Air Act, an adequate or approved second sanctions apply. The lapse grace period maintenance plan (i.e., a maintenance would apply in this case because the MPO continues to demonstrate conformity for the entire timeframe of plan addressing Clean Air Act section grace period applies when an area 175A(b)), the Clean Air Act requires that misses an applicable deadline to the transportation plan unless the MPO elects to shorten the conformity a shortened conformity determination determine conformity for the must extend through the latest of the transportation plan and TIP. The timeframe. An election to shorten the conformity timeframe could be made following years: transportation plan and TIP would • The first 10-year period of the remain in a freeze even once the lapse only after consulting with the state and 8 transportation plan; grace period begins, and would remain local air quality agencies and soliciting • The latest year for which the SIP (or frozen until either a conformity public comment and considering such FIP) applicable to the area establishes a determination is made to new adequate comments. If an MPO makes this motor vehicle emission budget; or or approved SIP budgets as described election, the conformity determination • The year after the completion date above, or highway sanctions apply. does not have to cover the entire length of a regionally significant project if the An area that is in a conformity freeze of the transportation plan, but in some project is included in the TIP, or the and subsequently enters the lapse grace cases an informational analysis is also project requires approval before the period would lapse at the end of the required. subsequent conformity determination. grace period (one year after the missed This provision giving areas the option These requirements are found in deadline), or when highway sanctions to shorten their conformity timeframe EPA’s regulation at § 93.106(d)(2)(i). The apply, whichever comes first. As took effect on August 10, 2005, when final language in § 93.106(d)(2)(i) is described above, however, a project SAFETEA–LU became law. Note, consistent with the proposed language, must also meet DOT’s planning and however, that transportation plan/TIP although minor clarifications have been other requirements to receive Federal conformity determinations must cover made in response to comments. funding or approval during the lapse the entire length of the transportation Specifically, the regulation at grace period. § 93.106(d)(2)(i) states, ‘‘The shortened 8 The amendment to the Clean Air Act that allows areas to shorten the timeframe of conformity timeframe of the conformity for the 8-hour ozone and PM2.5 standards. All of determinations, Clean Air Act section 176(c)(7), determination must extend at least to these metropolitan areas have at this point requires the MPO to consult with ‘‘the air pollution the latest of the following years.’’ The determined transportation plan/TIP conformity. control agency.’’ For the reasons explained in the proposed wording was, ‘‘The shortened 7 Such disapprovals occur infrequently; EPA has May 2, 2007, proposed rule (72 FR 24479 and only disapproved SIPs without a protective finding 27780), EPA is using the equivalent term ‘‘state and timeframe of the conformity in three instances since the 1997 conformity rule local air quality agencies’’ in this preamble and determination must be the longest of the was promulgated. final rule. following.’’

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The final regulation at (iii) The year after the completion date of second maintenance plan results § 93.106(d)(2)(i)(B) is also slightly a regionally significant project if the project directly from the Clean Air Act as different than proposed, but the same in is included in the transportation amended by SAFETEA–LU. Clean Air improvement program or the project requires substance as the proposed rule. This approval before the subsequent conformity Act section 176(c)(7)(C) specifically says provision now reads, ‘‘The latest year determination. that in areas with a second maintenance for which an adequate or approved plan, a shortened conformity timeframe motor vehicle emissions budget(s) is EPA received several comments in is ‘‘required to extend only through the established in a submitted or applicable support of the flexibility to shorten the last year of the implementation plan implementation plan’’ rather than the timeframe of the conformity required under section 175(A)(b)’’ [sic] proposed wording, ‘‘The latest year in determination. rather than the longest of the three EPA is clarifying the language in the submitted or applicable periods established in Clean Air Act § 93.106(d)(2)(i) and § 93.106(d)(2)(i)(B) implementation plan that contains an section 176(c)(7)(A). from the proposal based on the adequate or approved motor vehicle Several commenters specifically suggestion of three commenters, emissions budget(s).’’ noted their support for this provision. although the meaning is the same as in However, one commenter suggested that Note that an MPO that has shortened the proposal. As a result, the final rule the proposed language for its conformity timeframe does not clarifies that the shortened timeframe § 93.106(d)(2)(i) should be revised to be choose which of these three timeframes must extend through the latest year of consistent with the fact that the Clean it prefers to examine in the conformity the three periods. EPA modified some of Air Act as amended by SAFETEA–LU determination; it must examine the the commenters’ suggested language to allows areas with adequate or approved longest of them. Such an MPO would be consistent with the statute. have to determine which timeframe is The same commenters also suggested second 10-year maintenance plans to the longest for each conformity we change the language in determine conformity through only the determination, as the longest timeframe § 93.106(d)(2)(i)(B) to refer to the latest last year of the maintenance plan. EPA’s could change from determination to year for which a budget is established, proposed regulation was consistent with determination, because for example new rather than the latest year that the statutory provision for areas with budgets have been established or new ‘‘contains’’ a budget. EPA has taken this adequate or approved second regionally significant projects have been suggestion because this language maintenance plans, and the final rule is added to the TIP since the previous likewise improves clarity. as well. EPA believes this commenter conformity determination. may have misread the organization of C. Timeframe of Conformity this section, as we covered areas 2. Rationale and Response to Comments Determinations in Metropolitan Areas without second maintenance plans in With Second Maintenance Plans These provisions to allow MPOs to § 93.106(d)(2), and areas with second shorten the timeframe covered by a 1. Description of Final Rule maintenance plans in § 93.106(d)(3). conformity determination are necessary In areas that have an adequate or D. Process for Elections to make the conformity regulation approved maintenance plan under 1. Description of Final Rule consistent with the law. In SAFETEA– Clean Air Act section 175A(b), LU, Congress amended the Clean Air transportation plan and TIP conformity First, before an MPO elects to shorten Act by adding section 176(c)(7), which determinations must cover the the conformity timeframe, it has to allows MPOs to elect to shorten the timeframe of the transportation plan consult with state and local air quality timeframe of conformity determinations. unless an MPO elects to shorten the planning agencies, solicit public EPA’s regulation at § 93.106(d)(1) timeframe. This requirement is found in comment, and consider those requires that conformity determinations § 93.106(d)(1). Section 175A(b) of the comments. These requirements are cover the timeframe of the Clean Air Act is the provision that found in § 93.106(d)(2). Consultation transportation plan unless the MPO describes the submission of a with the state and local air agencies makes an election to shorten the maintenance plan that covers the would occur early in the decision- timeframe. The Clean Air Act section second ten years of the maintenance making process. 176(c)(7)(A) specifically states, ‘‘Each period. If an MPO with an adequate or Second, once an MPO makes an conformity determination * * * shall approved second maintenance plan election to shorten the period of time require a demonstration of conformity elects to shorten the timeframe, addressed in its transportation plan/TIP for the period ending on either the final transportation plan and TIP conformity conformity determinations, the election year of the transportation plan, or at the determinations would cover the period remains in effect until the MPO elects election of the metropolitan planning of time through the end of the otherwise. An MPO would make its organization, * * *’’ a shorter maintenance period, that is, the period election only once for a pollutant or timeframe. of time covered through the second pollutants and any relevant precursors, EPA’s regulation at § 93.106(d)(2)(i), maintenance plan. This period of time unless it chooses to elect otherwise in which requires that a shortened is in contrast to the longest of the three the future. An MPO that has elected to timeframe must cover the longest of the periods discussed in Section VI.B. for shorten the timeframe of conformity three periods specified, also comes areas that do not have an adequate or determinations that wants to revert to directly from the Clean Air Act. approved second maintenance plan. The analyzing the full timeframe of the Specifically, section 176(c)(7)(A) states regulatory language for shortening the transportation plan must consult with that a shortened conformity timeframe in areas with second the state and local air quality agencies, determination must cover: maintenance plans is found in solicit public comments, and consider such comments before doing so. These The longest of the following periods: § 93.106(d)(3). provisions are found in § 93.106(d)(4). (i) The first 10-year period of any such 2. Rationale and Response to Comments transportation plan. EPA believes that consultation with (ii) The latest year in the implementation This rule provision for shortening the the state and local air quality agencies plan applicable to the area that contains a conformity timeframe in metropolitan on shortening the timeframe would motor vehicle emissions budget. areas with an adequate or approved typically occur in the context of the

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normal interagency consultation only to consultation with the air agency using procedures developed to meet process. EPA believes that for this or agencies and does not require their existing conformity requirements. consultation to be meaningful, it needs concurrence. Consultation with the state and local air to occur at an early stage in the A definition of ‘‘air pollution control quality planning agencies must already decision-making process. Therefore, agency’’ has been added at Clean Air occur on the conformity determination consultation should occur when the Act section 176(c)(7)(E), which EPA within the interagency consultation MPO begins to consider shortening the interprets to mean the relevant state and process. Similarly, the MPO must timeframe. For example, it may be local air quality agencies that have already seek public comment on the appropriate to discuss an election to regularly participated in the conformity conformity determination, according to shorten the conformity timeframe in the consultation process, as discussed in the the requirements in 40 CFR 93.105(e). preliminary stages of developing the preamble to the May 2, 2007, proposed By relying on these existing regional emissions analysis. rule (72 FR 24480). consultation procedures, the MPO could MPOs should follow their normal EPA’s regulation states that once an avoid the additional resource costs process for public participation election to shorten the timeframe is associated with running another regarding conformity actions when made, it would remain in effect until the interagency consultation process or full electing to shorten their conformity MPO elects otherwise, because that public comment process for electing to timeframe. MPOs are not required to statement is specifically included in the revert to the full conformity timeframe. revise their public participation/ statute. Clean Air Act section Two trade associations supported involvement procedures required by 23 176(c)(7)(D) states, ‘‘Any election by a Option A, and stated that their members U.S.C. 134(i)(5) to address public metropolitan planning organization appreciate the opportunity to comment consultation on shortening the area’s under this paragraph shall continue to on significant decisions made by MPOs conformity timeframe. be in effect until the metropolitan that have the potential to impact MPOs are encouraged to make their planning organization elects otherwise.’’ transportation projects or an area’s elections prior to the start of the public Changing previous elections. EPA ability to move forward with its comment period for their next requested comment on two options for transportation plans. These commenters conformity determination. Making the the process that MPOs must follow if thought that the public comment period election prior to the start of the public they have shortened the conformity should occur early in the conformity comment period for the next conformity timeframe and want to revert back to process so that conformity timing would determination ensures that the public determining conformity for the full not be negatively impacted. EPA will understand that future conformity length of the transportation plan. Option appreciates these comments and determinations will address a shorter A would have required MPOs to consult supports the ability of the public to period of time. Doing so will also allow with state and local air agencies and comment on decisions within the the MPO to develop its next conformity solicit and consider public comment transportation conformity process that determination in a more efficient before reverting back to determining affect them. manner and avoid running analyses for conformity for the full length of the A couple of commenters supported additional years, as described in the transportation plan; Option B would Option B, allowing an MPO to revert to following paragraph. have allowed MPOs to revert to the full a full-plan conformity timeframe However, there may be instances timeframe without additional without additional consultation or when an MPO will want to take public consultation or public comment. solicitation of public comment. comments on the election to shorten the EPA is finalizing Option A. As Commenters opined that consultation conformity timeframe at the same time explained in the proposal, Clean Air Act and public comment are already that it is taking public comment on a section 176(c)(7)(D) states that a required by 40 CFR 93.105, and those conformity determination. In those shortened timeframe remains in effect requirements already ensure that state cases, the conformity information unless an MPO ‘‘elects otherwise.’’ An and local air agencies will be consulted presented to the public should include ‘‘election’’ to shorten the timeframe before any decisions are made. While both a regional emissions analysis under section 176(c)(7) requires MPOs can use these existing reflecting the election of a shorter consultation with the state and local air consultation and public comment timeframe and a regional emissions quality agencies, solicitation of public provisions when reverting to the full analysis that reflects the full length of comment and consideration of any transportation plan length timeframe, the transportation plan. EPA comments received. EPA’s EPA is finalizing Option A so that MPOs recommends that both a shortened and interpretation is that an election to will specifically solicit comment on the a full-length analysis be included so that revert to determining conformity for the length of the conformity timeframe the MPO can complete its conformity entire length of the transportation plan within these existing processes. determination according to its desired is an election under this section and Other commenters offered an schedule, even if it receives negative therefore also includes consultation alternative option of using the public comment about shortening the with the state and local air pollution established interagency consultation timeframe and decides not to do so. control agencies, solicitation of public process to decide if a new public comment, and consideration of those comment period should be required 2. Rationale and Response to Comments comments. Since the Clean Air Act uses before an area elects to revert back to General process. Clean Air Act the same term—‘‘election’’—in both determining conformity for the entire section 176(c)(7)(A) and (C) are the subsections, it is reasonable to conclude timeframe of the transportation plan. sections of the statute that allow that the same process should be The commenters suggested that this elections to shorten the conformity followed for both actions. option would allow areas the flexibility timeframe. Both of these sections allow However, we expect the resource to decide if a new public comment such elections to be made only ‘‘after burden of this requirement to be period is needed, while minimizing consultation with the air pollution minimal. MPOs can limit the additional resource costs. control agency and solicitation of public burden of consultation with state and EPA did not finalize these comments and consideration of such local air agencies and solicitation and commenters’ suggestion because it comments.’’ The Clean Air Act refers consideration of public comment by would have required MPOs to consult

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with a more extensive set of agencies to E. Isolated Rural Nonattainment and commenter noted that extending this return to the full conformity timeframe Maintenance Areas flexibility to isolated rural areas will have no impact on project-level than required by the statute when 1. Description of Final Rule shortening the timeframe in the first requirements in these areas. place. When an MPO elects to shorten Isolated rural nonattainment and EPA proposed two options for the the timeframe, the Clean Air Act maintenance areas do not have MPOs entity that would make the election in requires consultation with the state and and are not required to prepare isolated rural areas: Either the state DOT local air agencies. Under the transportation plans or TIPs (40 CFR or the project sponsor, and solicited commenters’ suggestion, before electing 93.101). Projects in these areas are input on whether there are any other to revert to the full timeframe, MPOs generally included in the long-range alternatives. Six commenters supported would have to consult not only with statewide transportation plan and the the state DOT option, and two statewide TIP. Isolated rural areas are supported the project sponsor option; state and local air agencies, but also 9 EPA, DOT, and state and other local not ‘‘donut areas.’’ no alternative entities were suggested. The final rule gives isolated rural transportation agencies (e.g., transit EPA believes that assigning the ability nonattainment and maintenance areas agencies), because the interagency to elect to shorten the conformity the flexibility to shorten the conformity consultation process includes all of timeframe to the state DOT makes the timeframe in the same manner as most sense. First, the state DOT these agencies. This additional metropolitan areas. The requirements prepares the statewide transportation consultation is beyond what is required for shortening the conformity timeframe plan and the statewide TIP and by this section of the statute. in isolated rural areas are identical to therefore in this regard, the state DOT As stated above, the existing the requirements in metropolitan areas, serves a function in an isolated rural interagency consultation process can be except the entity that would make the used to fulfill the requirement for election to shorten the timeframe in an area that is similar to an MPO. Two consultation with state and local air isolated rural area is the state DOT, commenters that supported the state quality agencies, because the MPO will rather than the MPO. The rule DOT option cited this reason as well. be meeting with or speaking to accomplishes this result by including a Also, the state DOT may be better able to coordinate the consultation necessary representatives of these agencies in the sentence in § 93.109(l)(2)(i) that says, to make an election with the state and context of the interagency consultation ‘‘When the requirements of § 93.106(d) local air quality planning agencies and process. However, EPA believes that apply to isolated rural areas, references with the public than any other entity in consulting with the relevant air agencies to ‘‘MPO’’ should be taken to mean the an isolated rural area. One commenter within the existing interagency state department of transportation.’’ noted that given the consultation and consultation process is different, and 2. Rationale and Response to Comments public participation requirements less burdensome, than consulting with associated with preparing transportation every agency involved in the EPA believes it is appropriate to planning documents, the state DOT interagency process. Second, the statute extend this flexibility to isolated rural would be in the best position to satisfy does not separate the interagency areas to be consistent with how the conformity rule has been implemented similar requirements for electing to consultation and public comment shorten the timeframe. processes as suggested by the in isolated rural areas. The Clean Air Act amendment made by SAFETEA-LU Though the state DOT is typically the commenters. The Clean Air Act section allowing areas to shorten their project sponsor who prepares the 176(c)(7) requires both consultation and conformity timeframes does not prohibit conformity determination, several public involvement whenever a its use in isolated rural areas. In general, commenters were concerned about the timeframe is shortened, rather than most aspects of the conformity possibility of there being more than one consultation without public regulation apply consistently to project sponsor in an area. Commenters involvement. Rather than having metropolitan and isolated rural areas. noted that there may be multiple small agencies decide if the public would Where there are differences, the entity project sponsors in an area, which benefit by commenting, EPA believes differences have given isolated rural could possibly lead to conflicts. A the better interpretation of Congress’ areas additional flexibility. See the couple of commenters thought that the intent is to offer the public the preamble to the May 2, 2007, proposed project sponsor option could result in opportunity to comment in all cases. rule (72 FR 24482) for EPA’s full confusion, inconsistent decisions in a Placement in regulatory text. EPA is discussion of why EPA concludes it is state, and unpredictability. placing the requirements for state and appropriate to give isolated rural areas The two commenters that supported local air quality agency consultation and the flexibility to shorten their the project sponsor option thought that public comment for shortening the conformity timeframe. project sponsors would be more closely conformity timeframe in § 93.106 Seven commenters supported attuned to local concerns. However, because this type of consultation would allowing isolated rural areas to shorten these commenters recognized that if only occur when the MPO is the timeframe of conformity there were multiple project sponsors, considering electing to shorten the determinations, and none opposed it. conflicts could arise, and recommended timeframe. Furthermore, placing these Commenters generally agreed with that in those cases, the state DOT should requirements in § 93.106, rather than in EPA’s rationale that Congress did not have the ability to shorten the 40 CFR 93.105, assures that no states prohibit extending the flexibility to timeframe. In considering these with approved conformity SIPs have to isolated rural areas, and that these areas comments, EPA solicited input from amend them to add this provision. (See are treated much like MPOs throughout EPA and DOT field offices, and Section VII. for more information about the rest of the conformity rule. One concluded that in all recent cases, the the requirements for conformity SIPs.) state DOT is in fact the project sponsor EPA received no comments about this 9 Donut areas are defined as ‘‘geographic areas for all FHWA/FTA projects in isolated outside a metropolitan planning area boundary, but placement. See the preamble to the May inside the boundary of a nonattainment or rural areas. These areas are different 2, 2007, proposed rule (72 FR 24481) for maintenance area that contains any part of a than donut areas where county agencies EPA’s full rationale. metropolitan area(s)...’’ (40 CFR 93.101). sometimes are the project sponsor.

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Finally, EPA believes it appropriate to timeframe. These regional emissions While the final rule requires only an name the state DOT as the entity with analyses must be done in a manner estimate of regional emissions for the the ability to shorten the timeframe in consistent with how the budget test is transportation system that would exist an isolated rural area for specificity, performed and all relevant requirements in the last year of the transportation because the state DOT is already relied of the transportation conformity plan, EPA encourages MPOs and state upon in the conformity rule and regulation (e.g., 40 CFR 93.110, 93.111, DOTs to present this informational guidance for isolated rural area and 93.122). However, these analyses analysis in context so that it is truly conformity requirements. would be for informational purposes informative for members of the public or only, and emissions would not have to state and local air agencies who are F. Specific Analysis Requirements meet the budgets in these years. reviewing it. One possible way of doing Under a Shortened Timeframe Documentation of any informational so is to present a summary table of all 1. Description of Final Rule analysis should clearly state that its of the years for which an analysis was purpose is informational only, and that run, including both the years analyzed EPA is including most of the conformity is not required to be in the conformity determination and the necessary regulatory language for demonstrated for the last year of the last year analyzed for informational shortening the conformity timeframe transportation plan or any year where purposes only. Another possible method within § 93.106, and is also updating the budgets were exceeded in a previous would be to present a comparison with §§ 93.118 and 93.119. Note that these regional emissions analysis if that year the emissions level from the baseline provisions apply to both metropolitan is later than the shortened conformity year (e.g., 2002), as is done for the and isolated rural areas. timeframe. There is no similar baseline year test under 40 CFR 93.119. • First, § 93.106 is being renamed as requirement for information-only Furthermore, it would also be ‘‘Content of transportation plans and analyses in areas with an adequate or acceptable for an area to complete the timeframe of conformity approved second maintenance plan build/no-build test as well, if desired. determination.’’ budget, for the reasons described below. Documentation of any informational • Second, § 93.106(a)(1) is being Areas that use the interim emissions analysis should clearly state that its amended to update the horizon years tests. In areas that do not have budgets purpose is informational only, and that that apply when an area shortens the and use the interim emissions tests, the conformity is not required to be conformity timeframe. (Section requirements for analysis years in areas demonstrated for the last year of the 93.106(a)(1) only applies to serious, that shorten their conformity timeframe transportation plan. severe or extreme ozone and serious CO are similar to the requirements in nonattainment areas with urbanized § 93.119 that have applied and still 2. Rationale and Response to Comments populations greater than 200,000.) General. EPA has made these changes • apply under a full transportation plan- Third, EPA is updating §§ 93.118 length conformity determination. Under to the conformity regulation because and 93.119 to indicate that particular a shortened timeframe, instead of SAFETEA–LU has amended the Clean years must be analyzed only if they are analyzing the last year of the Air Act to allow MPOs to shorten their in the conformity timeframe and to transportation plan, the analysis would conformity timeframes. EPA is include the requirements for any needed be done for the last year of the implementing the specific requirements informational analyses. shortened timeframe. of the new Clean Air Act provision in Areas that use the budget test. In areas The conformity determination must today’s regulatory changes. These that have budgets that choose to shorten be accompanied by a regional emissions changes for required analysis years for the timeframe, the requirements for analysis for the last year of the conformity determinations with demonstrating consistency with transportation plan in areas that use the shortened timeframes are generally budgets, and analyzing specific years, interim emissions tests. This regional consistent with what has been current are similar to requirements that have emissions analysis would be for practice when conformity is determined existed, and still exist, for areas that informational purposes only, and must for the full length of the transportation determine conformity for the full length be done in a manner consistent with all plan. of the transportation plan. Under a relevant requirements of the Given that the statute did not specify shortened timeframe, consistency with, transportation conformity regulation the years that must be analyzed in a and an analysis for, the attainment year (e.g., 40 CFR 93.110, 93.111, and conformity determination with a is necessary only if the attainment year 93.122). Note that there is no shortened timeframe, EPA reasonably is both within the timeframe of the requirement for an informational concluded that the existing conformity transportation plan and conformity regional emissions analysis for years requirements should apply. Therefore, determination. In addition, under a where the interim tests were not met in in areas that use the budget test, a shortened timeframe, instead of a previous regional analysis, as there is shortened conformity determination analyzing the last year of the for areas that use the budget test that do would have to include the attainment transportation plan for the conformity not have adequate or approved second year if it is in the timeframe of the determination, the analysis must be maintenance plans. conformity determination, similar to the done for the last year of the shortened EPA proposed three options for the existing requirement to include the timeframe. informational analysis for the last year attainment year if it is in the timeframe In areas that do not have an adequate of the transportation plan in areas that of the transportation plan. In areas that or approved second maintenance plan use the interim emissions tests: To use the interim emissions test, a budget, the conformity determination compare estimated emissions to the shortened conformity determination must also be accompanied by a regional interim emissions test(s) used in the would include an analysis year no more emissions analysis for the last year of conformity determination (Option X), to than five years into the future, just as the transportation plan, as well as for compare estimated emissions to either full-length conformity determinations any year where the budgets were interim emissions test (Option Y), or do. exceeded in a previous regional just to estimate emissions without In addition, regardless of the test used emissions analysis if that year is later comparing them to either test (Option under a shortened timeframe, the last than the shortened conformity Z). EPA is finalizing Option Z. year of the conformity determination

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would need to be analyzed. This timeframe. Areas subject to the interim confusing to stakeholders if a test is not requirement is similar to the existing emissions tests for a given pollutant or met for the informational analysis. One one to analyze the last year of the precursor do not have budgets for that of these commenters thought that EPA transportation plan. Likewise, under a pollutant or precursor. Therefore, there should allow for the presentation of shortened timeframe, analysis years will not be any years for which a prior these results at the discretion of the would be no more than ten years apart, analysis shows the budget will be MPO and state DOT after interagency just as under a full-length conformity exceeded, and as such there is no consultation. This commenter thought determination. No comments were statutory requirement for these areas to that states and MPOs understand the received on these general provisions. perform an informational regional local context for transportation Areas that use the budget test. If the emissions analysis for any year other conformity and are best suited for conformity timeframe is shortened in an than the last year of the transportation determining what information should be area that does not have an adequate or plan. presented for the last year of the approved second maintenance plan, EPA requested comment on three transportation plan under a shortened EPA’s regulation requires that the options for what an information-only timeframe. conformity determination be regional emissions analysis would As described above, EPA is finalizing accompanied by an informational consist of in an area that uses the Option Z to be consistent with the analysis. The rule language for the interim emissions test. Option X would statute, which does not require that the regional emissions analysis for the last have required that emissions be interim emissions tests be performed for year of the transportation plan, and for compared to the same interim emissions informational purposes. Under the final any year where the budgets were test (i.e., build/no-build and/or the rule, MPOs and state DOTs have the exceeded in a previous regional baseline year test(s)) as is used in the discretion in presenting the results of emissions analysis if that year is later conformity determination. Option Y the informational analysis for the last than the shortened conformity would have required that emissions be timeframe, is also based in the new year of the transportation plan, and EPA compared to either interim emissions encourages them to provide useful statutory language. Clean Air Act test. Option Z, which we finalized, section 176(c)(7)(B) requires that the information to other involved agencies requires simply the estimate of and the public. See Section F.1. above conformity determination ‘‘be emissions in the last year of the accompanied by a regional emissions for additional suggestions on how to transportation plan with no comparison present such analyses to the public. analysis’’ for these years. Absent a to either interim emissions test. definition for ‘‘regional emissions The statutory language is ambiguous Areas with second maintenance plans analysis’’ in the statute, EPA assumes regarding the information-only regional that shorten their conformity timeframe. that the phrase has its usual meaning in emissions analysis prior to the No information-only analyses is the context of transportation conformity. establishment of SIP budgets. Section required in areas with an adequate or Therefore, these analyses need to be 176(c)(7)(B) states that the regional approved second maintenance plan, done in a manner consistent with all the emissions analysis that accompanies the given Clean Air Act section 176(c)(7)(C). general requirements of the conformity conformity determination must be The statute labels this section, which regulations for such analyses. performed for the last year of the applies to areas that have an adequate This same statutory language is the transportation plan, but does not specify or approved second maintenance plan, reason that these analyses do not need that the interim emissions tests be as ‘‘Exception.’’ EPA interprets section to meet the required conformity tests. conducted. The Congressional report 176(c)(7)(C) to mean that areas with The statutory language makes it clear language for this section states, adequate or approved second that these emissions analyses only ‘‘Generating this information will be maintenance plans that shorten their ‘‘accompany’’ the conformity helpful in ensuring that conformity is conformity timeframe do not have to determination, and thus are not part of maintained,’’ 10 but does not include comply with the requirements of Clean the conformity determination. any direction on how this goal should Air Act section 176(c)(7)(A) or (B), and Therefore, EPA concludes that be met in those areas that use the section 176(c)(7)(C) itself does not conformity need not be demonstrated interim emissions tests. require any informational analyses. with respect to these analyses. Five commenters provided opinions Therefore, areas with a second Areas that use the interim emissions on these options. One commenter maintenance plan that shorten their tests. In areas that use the interim preferred Option X (i.e., to use the same conformity timeframe do not have to emissions tests, an informational test(s) as in the conformity perform a regional emissions analysis analysis is required only for the last year determination) because it involves use for the last year of their transportation of the transportation plan. In contrast, of similar information to that presented plans, or for a year shown to exceed areas that use budgets also must do an elsewhere in the determination. This budgets by a prior analysis, as required informational analysis for any years that commenter thought that presenting the by Clean Air Act section 176(c)(7)(B) for exceeded the budgets in a prior analysis. estimate of emissions in context of the other areas that have shortened their Such years would be years that interim emissions tests is helpful in timeframe. EPA received no comments extended beyond the shortened informing state and local agencies and on this particular point. timeframe of prior conformity the public about future emissions determinations, which were analyzed VII. Conformity SIPs trends, and is consistent with the intent for informational purposes only. This of Congress. A. Description of Final Rule result is because Clean Air Act section The remaining four commenters EPA is changing 40 CFR 51.390 to 176(c)(7)(B) states that these preferred Option Z. Some of these streamline the requirements for state information-only regional emissions commenters thought that comparisons conformity SIPs. A conformity SIP is analyses are to be done ‘‘for the last year to the interim emissions tests could be of the transportation plan and for any different from a control strategy SIP or year shown to exceed emissions budgets 10 Joint Explanatory Statement of the Committee maintenance plan, as a conformity SIP by a prior analysis, if such year extends of Conference, ‘‘Section 6011, Transportation only includes state conformity beyond’’ the end of the shortened Conformity,’’ p. 1059. procedures and not motor vehicle

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emissions budgets or air quality and procedures for consultation, this section more user-friendly, and the demonstrations. enforcement, and enforceability. changes do not affect the substance of EPA is finalizing requirements for Subparagraph (D)(i) in Clean Air Act the pre-existing regulatory states to submit conformity SIPs that section 176(c)(4) requires EPA to write requirements. address only the following sections of regulations that address consultation C. How Does the Final Rule Impact the pre-existing federal rule. These three procedures to be undertaken by MPOs States? sections that need to be tailored to a and DOT with state and local air quality state’s individual circumstances: agencies and state DOTs before making 1. Areas That Have Never Submitted a • 40 CFR 93.105, which addresses conformity determinations. EPA’s Conformity SIP consultation procedures; regulations governing consultation are States that have never submitted a • 40 CFR 93.122(a)(4)(ii), which states found at 40 CFR 93.105. Therefore, in conformity SIP are required to address that conformity SIPs must require that effect the statute now requires states to only the three provisions noted above in written commitments to control address and tailor only the three their conformity SIPs according to any measures be obtained prior to a sections of the conformity rule noted existing conformity SIP deadline (see D. conformity determination if the control above in their conformity SIPs. of this section below). EPA believes that the new conformity measures are not included in an MPO’s 2. Areas That Have Submitted a transportation plan and TIP, and that SIP requirements will reduce the Conformity SIP That Was Never such commitments be fulfilled; and administrative burden for state and local Approved • 40 CFR 93.125(c), which states that agencies significantly, because the new conformity SIPs must require that requirements will result in fewer In some cases, states have submitted written commitments to mitigation required conformity SIP revisions in conformity SIPs to EPA for approval, measures be obtained prior to a project- most areas. Four commenters supported but EPA has not yet acted on them. level conformity determination, and that these changes. Three commenters These states can write their EPA project sponsors comply with such specifically agreed that these changes Regional Office and request that EPA commitments. streamline the conformity SIP process approve only the three provisions that are required to be included in their SIPs Prior to SAFETEA–LU, states were and preclude the need for a state to and that EPA take no action on the required to address these provisions as update its conformity SIP each time the remainder of the submission. States can well as all other federal conformity rule federal rule is revised. These also leave the full conformity SIP provisions in their conformity SIPs. The commenters requested that EPA urge pending before EPA for rulemaking rule had previously required states’ states to include only the three required action. However, if EPA approves the conformity SIPs to include most of the sections in their conformity SIPs to full SIP, states could not apply any sections of the federal rule verbatim. minimize the possibility of having to revise the SIP when the federal rule is subsequent changes that EPA makes to In addition, EPA is also deleting the the federal rule without first revising requirement for states to submit updated. EPA agrees with this point. However, the fourth commenter also their state conformity SIP and obtaining conformity SIPs to DOT. States must EPA’s approval. continue to submit conformity SIPs to requested that states still be able to EPA. EPA is also reorganizing the incorporate the rest of the transportation 3. Areas With Approved Conformity conformity SIP regulatory language to conformity rule by reference. This SIPs improve clarity and readability. The option is further discussed in Section States with EPA-approved conformity regulatory language in § 51.390 is re- D.2 below. SIPs that decide to eliminate the ordered to more naturally fall into three EPA is removing the requirement for provisions that are no longer mandatory topics: Purpose and applicability, states to submit conformity SIPs to DOT would need to revise the SIP to conformity implementation plan to be consistent with SAFETEA–LU’s eliminate those provisions. EPA would content, and timing and approvals. The changes. In revising the Clean Air Act’s have to approve the changes to a state’s language retains existing requirements previous conformity SIP requirements, conformity SIP through the Federal with appropriate modifications based on Congress did not retain the previous Register rulemaking process. Such a SIP the new Clean Air Act amendment from requirement that ‘‘each State shall revision should not be controversial SAFETEA–LU. submit to the Administrator and the because the provisions are no longer Secretary of Transportation * * * a B. Rationale and Response to Comments required by the Clean Air Act as revision to its implementation plan amended by SAFETEA–LU. In addition, EPA is primarily changing § 51.390 to ***.’’ The new statutory language in their elimination from a state’s make the transportation conformity Clean Air Act section 176(c)(4)(E) does conformity SIP would not change regulation consistent with the law, not include this previous requirement, conformity’s implementation in practice which has been in effect since August and therefore, we are removing this because the federal conformity rule 10, 2005. In SAFETEA–LU, Congress requirement to reduce state and local air applies for any provision not addressed amended the Clean Air Act so that states agency processing of their conformity in a state’s conformity SIP. States are are no longer required to adopt much of SIPs. However, EPA does not believe encouraged to work with their EPA the federal transportation conformity that this proposal will substantively Regional Office as early in the process rule into their SIPs. Instead, Clean Air change DOT’s involvement in as possible to ensure the SIP submission Act section 176(c)(4)(e) now requires conformity SIP development. This does meets all requirements and is fully states to include in their conformity not change the existing conformity approvable. SIPs: rule’s requirement that EPA provide DOT with a 30-day comment period on 4. Areas That Submit a Partial Criteria and procedures for consultation Conformity SIP required by subparagraph (D)(i), and conformity SIP revisions. enforcement and enforceability (pursuant to The re-organizational changes to A state may choose to submit a section 93.125(c) and 93.122(a)(4)(ii) of title § 51.390 are for clarity and readability conformity SIP that addresses only one 40, Code of Federal Regulations) in and not related to changes in the law. or two of the three required sections of accordance with the Administrator’s criteria EPA is making these changes to make the federal rule. In this situation, EPA

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could approve the submitted section(s) the streamlining flexibilities provided Regional Administrators to further if it sufficiently addresses the for by the Clean Air Act, as amended by delegate these responsibilities to the requirement it is intended to fulfill. SAFETEA–LU. EPA is updating our regional air division directors, but no However, the Clean Air Act as amended previous guidance on conformity SIPs. further. by SAFETEA–LU requires states to The guidance will be available on EPA’s IX. Categorical Hot-Spot Findings for address all three sections in their Web site at: http://www.epa.gov/otaq/ conformity SIP, so a state that addresses stateresources/transconf/policy.htm. Projects in Carbon Monoxide only one or two of the requirements State and local agencies that need to Nonattainment and Maintenance Areas would still have an outstanding prepare a conformity SIP should review A. Background requirement. this guidance and consult with the Since the initial conformity rule was appropriate EPA Regional Office. D. When Are Conformity SIPs Due? promulgated in 1993, a hot-spot analysis SAFETEA–LU did not create any new VIII. Transportation Control Measure has been required for all project-level deadlines for conformity SIPs. Any Substitutions and Additions conformity determinations in CO nonattainment or maintenance area that SAFETEA–LU section 6011(d) nonattainment and maintenance areas has missed earlier deadlines to submit amended the Clean Air Act by adding a (40 CFR 93.116 and 93.123(a)). A CO conformity SIP revisions (e.g., after new section 176(c)(8) that establishes hot-spot analysis is an estimation of previous conformity rulemakings, or specific criteria and procedures for likely future localized pollutant new nonattainment designations) replacing TCMs in an approved SIP concentrations and a comparison of continues to be subject to these previous with new TCMs and adding TCMs to an those concentrations to the CO national deadlines, but only in regard to the approved SIP. ambient air quality standards three provisions now required by the EPA is revising the definition of a (‘‘standards’’) (40 CFR 93.101). A hot- Clean Air Act. Two scenarios are TCM in § 93.101 to clarify that TCMs as spot analysis assesses air quality described below. defined for conformity purposes also impacts on a scale smaller than the include any TCMs that are incorporated entire nonattainment or maintenance 1. Areas With Conformity SIPs That into the SIP through this new TCM area, such as a congested roadway Address Only the Three Required substitution and addition process. intersection. Provisions However, EPA has determined that no A CO hot-spot analysis must show Once a state has an approved additional revision of the transportation that a non-exempt FHWA/FTA project conformity SIP that addresses only the conformity regulations is necessary to does not cause any new violations of the three sections that the Clean Air Act implement the TCM substitution and CO standards or increase the frequency now requires, the state would need to addition provision. EPA did not receive or severity of existing violations (40 CFR revise its conformity SIP only if EPA any comments on this portion of the 93.116(a)). Until a CO attainment revises one of these sections of the proposed rulemaking. demonstration or maintenance plan is conformity rule, or the state chooses to EPA concluded no implementing approved, non-exempt FHWA/FTA revise one of these three provisions. regulations are necessary for the reasons projects must also eliminate or reduce Any future changes to the federal explained in the preamble to the May 2, the severity and number of localized CO conformity rules beyond these three 2007 proposed rule (72 FR 24485–6). violations in the area substantially provisions would apply in any state that EPA is updating our previous affected by the project (40 CFR has only these three provisions in its guidance on TCM substitutions and 93.116(b). These existing requirements approved conformity SIP, and these additions. The guidance will be remain unchanged by today’s final rule. changes would not need to be adopted available on EPA’s Web site at: http:// The type of CO hot-spot analysis into the state’s SIP. www.epa.gov/otaq/stateresources/ varies depending on the type of project transconf/policy.htm. This guidance is involved. Section 93.123(a)(1) requires 2. Areas That Choose To Either Retain consistent with the TCM substitution quantitative hot-spot analyses for or Submit Additional Sections of the and additions portion (Section 5) of the projects of most concern; section Conformity Rule EPA–DOT February 2006 Interim 93.123(a)(2) requires either a A state with a previously approved Guidance for implementing SAFETEA– quantitative or qualitative hot-spot conformity SIP may decide to retain all LU. State and local agencies considering analysis for all other projects. These or some of the federal rule in its SIP or TCM substitutions or additions should existing requirements also remain a state without an approved conformity review this guidance and consult with unchanged by today’s final rule. SIP could choose to submit for EPA the appropriate EPA Regional Office. Hot-spot analyses are also required for approval all or some of the other Clean Air Act section 176(c)(8) certain projects in PM2.5 and PM10 sections of the federal rule. As noted requires that the EPA Administrator nonattainment and maintenance areas. above, one of the commenters expressly consult and concur on TCM The conformity rule allows DOT, in asked that EPA retain this option substitutions and additions. However, consultation with EPA, to make a presumably so its state could avoid as has been done with most other ‘‘categorical hot-spot finding’’ in PM2.5 revising its conformity SIP. In such a responsibilities related to the approval and PM10 nonattainment and case, the state should be aware that the of SIP revisions, the Administrator has maintenance areas if there is conformity determinations in the state delegated this authority to the Regional appropriate modeling that shows that a continue to be governed by the state’s Administrators. On September 29, 2006, particular category of highway or transit approved conformity SIP. Such a state the EPA Administrator signed a projects will meet applicable Clean Air would need to revise its conformity SIP delegation of authority (Delegation of Act conformity requirements without when EPA makes changes to the federal Authority 7–158: Transportation Control further analysis (40 CFR 93.123(b)(3)). If rule in order to have those changes Measure Substitutions and Additions) DOT makes such a finding, then no apply in the state. As stated earlier, EPA providing EPA Regional Administrators further hot-spot analysis to meet 40 CFR strongly encourages states to only with the authority to consult and concur 93.116(a) is needed for any project that include the three required provisions in on TCM substitutions and additions. fits the category addressed by the a conformity SIP to take advantage of The delegation of authority allows the finding. A project sponsor would simply

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reference a categorical hot-spot finding a categorical hot-spot finding is also still Clean Air Act section 176(c)(3)(B)(ii) in the project-level conformity subject to existing public involvement requires projects in these CO areas to determination to meet hot-spot analysis requirements, during which also ‘‘eliminate or reduce the severity requirements. See EPA’s March 10, commenters could address all and number of violations of the carbon 2006, final rule for further information appropriate issues relating to the monoxide standards in the area (71 FR 12502–12506) on categorical hot- categorical findings used in the substantially affected by the project.’’ spot findings in PM2.5 or PM10 areas. conformity determination. See D. of this This criterion is stipulated by 40 CFR section for further information on how 93.109(f)(1) and 93.116(b) for FHWA/ B. Description of Final Rule EPA and DOT will implement this new FTA projects in these CO areas. EPA EPA is extending the categorical hot- provision. believes that this criterion is more spot finding provision that applies in appropriately met by evaluating the C. Rationale and Response to Comments PM areas to CO nonattainment and unique circumstances of an individual maintenance areas in today’s final rule. EPA believes it is both appropriate project, rather than based on a broader This provision allows DOT, in and in compliance with the Clean Air analysis of a category of projects. Since consultation with EPA, to make Act for DOT to be able to make most CO areas already have approved categorical hot-spot findings for categorical hot-spot findings where attainment demonstrations or appropriate cases in CO nonattainment modeling shows that such projects will maintenance plans, there should be and maintenance areas if appropriate not cause or contribute to new or limited practical impact of this aspect of modeling shows that a type of highway worsened air quality violations. As long today’s proposal. or transit project does not cause or as modeling shows that all potential Six commenters supported this contribute to a new or worsened local projects in a category meet the current provision. These commenters agreed air quality violation of the CO conformity rule’s hot-spot requirements that allowing DOT to make categorical standards, as required under 40 CFR (40 CFR 93.116(a))—either through an hot-spot findings, in consultation with 93.116(a).11 The regulatory text for this analysis of a category of projects or a EPA, provides an opportunity to provision is found in § 93.123(a)(3). hot-spot analysis for a single project— streamline hot-spot analyses in all CO Any DOT categorical hot-spot finding then certain Clean Air Act conformity areas for certain projects. would have to be supported by a requirements are met. Additionally, commenters thought credible quantitative modeling Clean Air Act section 176(c)(1)(B) is these categorical hot-spot findings demonstration showing that all the statutory criterion that must be met would be consistent with the practice in potential projects in a category satisfy by all projects in CO nonattainment and many states already, and would reduce statutory requirements without further maintenance areas that are subject to resource burdens while still ensuring hot-spot analysis. Such modeling would transportation conformity. Section that projects meet Clean Air Act need to be derived in consultation with 176(c)(1)(B) states that federally- requirements. EPA, and consistent with EPA’s existing supported transportation projects must Some commenters thought that CO quantitative hot-spot modeling not ‘‘cause or contribute to any new allowing DOT to make categorical hot- requirements, as described in 40 CFR violation of any standard in any area; spot findings in CO areas would offer 93.123(a), and approved emissions increase the frequency or severity of any flexibility in satisfying the intent of the model requirements in 40 CFR 93.111. existing violation of any standard in any Clean Air Act. A commenter recognized Modeling used to support a categorical area; or delay timely attainment of any that categorical hot-spot findings would hot-spot finding could consider the standard or any required interim have to be supported by credible emissions produced from a category of emission reductions or other milestones quantitative modeling, and the scenarios projects based on potential project sizes, in any area.’’ modeled by DOT to make categorical configurations, and levels of service. EPA has not amended the existing CO findings would be derived through Modeling could also consider the hot-spot requirements in 40 CFR consultation and participation by EPA. emissions produced by a category of 93.116(a) that ensure areas meet Clean EPA notes that the commenter’s projects and the resulting impact on air Air Act section 176(c)(1)(B) understanding is correct; see Section quality under different circumstances. requirements. Today’s provision for IX.D. below for further description of The new provision does not affect the DOT to make categorical hot-spot how modeling would be developed. requirement for conformity findings simply allows future While six commenters supported determinations to be completed for all information to be taken into account in allowing DOT to make categorical hot- non-exempt projects in CO areas. The an expedited manner, so that further CO spot findings for projects in CO areas, modeling on which a categorical finding hot-spot analyses are not performed on one commenter was concerned that the is based would serve to fulfill the hot- an individual basis for projects where it provision to allow U.S. DOT to make spot analysis requirements for is determined to be unnecessary to meet categorical hot-spot findings would be a qualifying projects. The modeled certain statutory requirements. Making requirement, rather than an option. This scenarios used by DOT to make hot-spot findings for certain projects on provision is an optional flexibility and categorical hot-spot findings would be a category basis may reduce the resource not a requirement. Once DOT has made derived through consultation and burden for state, regional and local a finding for a category of projects, a participation by EPA. agencies, and provide greater certainty sponsor of a project in that category can Existing interagency consultation and stability to the transportation choose whether to rely on DOT’s procedures for project-level conformity planning process, while still ensuring modeling, or do its own project-level determinations also must be followed that all projects meet Clean Air Act analysis. In other words, a project (40 CFR 93.105). Any project-level requirements. sponsor can always decide to do its own conformity determination that relies on As noted above, CO categorical hot- project-level analysis, even for a project spot findings under today’s final rule that belongs to a category that DOT has 11 As discussed further below, categorical hot- could not be used to meet an additional already analyzed. spot findings under the proposal could not be used to meet 40 CFR 93.116(b) requirements in the hot-spot requirement for CO areas This same commenter thought that limited number of CO areas without approved without approved attainment this provision is unnecessary. The attainment demonstrations or maintenance plans. demonstrations or maintenance plans. commenter thought that the similar

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provision that applies in PM areas was would primarily involve EPA and DOT anticipated that this provision would be created because of uncertainties headquarters offices rather than field used infrequently but that there would regarding PM and because interagency offices. Such coordination at the be some cases where using the interim consultation is needed to determine headquarters level will ensure national emissions test(s) would be more which projects are ‘‘projects of air consistency in applying § 93.123(a)(3) appropriate to meet Clean Air Act quality concern’’ and what constitutes a and (b)(3). requirements. Because of the court’s ‘‘significant number of diesel vehicles.’’ In the March 2006 final rule (71 FR decision on this provision, 8-hour ozone This commenter also opined that the 12505), EPA and DOT described the areas can no longer rely on PM provision for categorical hot-spot general process for categorical hot-spot § 93.109(e)(2)(v) to use an interim analyses was developed because there findings to be as follows: emissions test(s) instead of using 1-hour • are not acceptable modeling tools for FHWA and/or FTA, as applicable, ozone budget(s). Areas must now use all PM2.5 or PM10. In contrast, the would develop modeling, analyses, and relevant existing 1-hour ozone budgets commenter explained that the documentation to support the in future conformity determinations parameters used to identify the need for categorical hot-spot finding. This would until 8-hour ozone emissions budgets a CO hot-spot analysis are clearly stated be done with early and comprehensive are found adequate or are approved for under § 93.123(a), and the technology consultation and participation with a given analysis year. EPA received one for CO hot-spot analyses is accepted by EPA. • comment agreeing that the removal is EPA and FHWA. FHWA and/or FTA would provide consistent with the court ruling. EPA disagrees with the commenter EPA an opportunity to review and The court’s decision has minimal and believes it is useful to have a comment on the complete categorical impact since most 8-hour ozone areas provision for categorical hot-spot hot-spot finding documentation. Any are already either using their 1-hour or analyses in CO areas. This provision comments would need to be resolved in 8-hour ozone SIP budgets. EPA, in will be useful because all non-exempt a manner acceptable to EPA prior to cooperation with DOT, has already projects in CO areas that belong to a issuance of the categorical hot-spot provided assistance to the limited category for which DOT has made a hot- finding. Consultation with EPA on issue number of areas affected by the recent spot finding will have a hot-spot resolution would be documented. court decision. analysis available for use in future • FHWA and/or FTA would make the conformity determinations. As noted final categorical hot-spot finding in a XI. Miscellaneous Revisions memorandum or letter, which would be above, project sponsors have discretion A. Minor Revision to § 93.102(b)(4) on whether they want to model each posted on EPA’s and DOT’s respective project even if DOT has already made a conformity Web sites. EPA is making a minor revision to categorical hot-spot finding for projects Subsequently, transportation projects § 93.102(b)(4), which addresses the of that type. that meet the criteria set forth in the period of time that transportation This same commenter also stated that categorical hot-spot finding would conformity applies in maintenance interagency consultation on CO analyses reference that finding in their project- areas. This is the period of time during simply adds a layer of costly and level conformity determination, which which the requirements of the inefficient bureaucracy that is would be subject to interagency conformity rule apply in an area, and unnecessary to complete the analysis. consultation and the public not the timeframe any one conformity EPA disagrees with the commenter on involvement requirements of the determination examines, as discussed in this point as well. No additional layer National Environmental Policy Act Section VI., ‘‘Timeframes for Conformity of bureaucracy will be added to project- (NEPA) process and the conformity rule Determinations.’’ level conformity determinations in CO (40 CFR 93.105(e)). The existing Section 93.102(b)(4) had previously areas as a result of this provision. EPA consultation and public involvement stated that conformity applied in and DOT’s coordination on modeling for processes would be used to consider the ‘‘maintenance areas for 20 years from categorical hot-spot findings will occur categorical hot-spot finding for a the date EPA approves the area’s request separately from any particular project’s particular project. under section 107(d) of the CAA for conformity determination. X. Removal of Regulation 40 CFR redesignation to attainment, unless the 93.109(e)(2)(v) applicable implementation plan D. General Implementation for specifies that the provisions of this Categorical Hot-Spot Findings A. Description of Final Rule subpart shall apply for more than 20 EPA and DOT will implement the CO EPA is removing a provision of the years.’’ We are clarifying this section to categorical hot-spot finding provision transportation conformity rule that was ensure that conformity would apply in similar to the implementation of PM2.5 vacated by the U.S. Court of Appeals for maintenance areas through the last year and PM10 categorical hot-spot findings, the District of Columbia Circuit of their approved Clean Air Act section as described in the March 10, 2006, final (Environmental Defense v. EPA, et al., 175A(b) maintenance plan (i.e., the rule. A project-level conformity D.C. Cir. No. 04–1291) on October 20, area’s second 10-year maintenance determination continues to be required 2006. This provision, 40 CFR plan), unless the applicable for all non-exempt FHWA/FTA projects 93.109(e)(2)(v), allowed 8-hour ozone implementation plan specifies that in CO areas. Modeling used to support areas to use the interim emissions test(s) conformity would continue to apply a categorical hot-spot finding would be for conformity instead of 1-hour ozone beyond the end of that maintenance based on appropriate motor vehicle SIP budgets where the interim plan. We received two comments that emissions factor models, dispersion emissions test(s) was determined to be supported this clarification. models, and EPA’s existing more appropriate to meet Clean Air Act EPA is only clarifying § 93.102(b)(4) requirements for quantitative CO hot- requirements. The court vacated this because the previous regulation may spot modeling as specified in 40 CFR provision and remanded it to EPA. have been read to not account for the 93.123(a)(1) (40 CFR part 51, Appendix situation where a maintenance area W (Guideline on Air Quality Models)). B. Rationale and Response to Comments submits a second maintenance plan that Categorical hot-spot findings and As discussed in the July 1, 2004, establishes a budget for a year more than modeling to support such findings preamble (69 FR 40025), EPA 20 years beyond the date of EPA’s

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approval of the area’s redesignation PM2.5 implementation strategy. We ‘‘transportation improvement program request and first maintenance plan. received two comments that supported (TIP)’’ to reflect the definitions in For example, suppose an area’s these corrections. This change will not SAFETEA–LU sections 3005(a) and redesignation request and first impact current conformity practice. 6001(a). Pursuant to SAFETEA–LU, the maintenance plan are approved in 2006 term ‘‘MPO’’ now refers to the policy and the maintenance plan establishes C. Revisions to ‘‘Table 2—Exempt board for the organization that is budgets for 2016. This area submits a Projects’’ in § 93.126 designated under 23 U.S.C. 134(d) and second maintenance plan that extends EPA is making several minor 49 U.S.C. 5303(d). EPA is revising the through 2030 and establishes budgets clarifications to ‘‘Table 2—Exempt definitions of these terms in § 93.101 to for that year. Under the previous Projects’’ in § 93.126, under the category be consistent with the new statutory regulatory language, conformity applied of ‘‘Safety.’’ Specifically, EPA is definitions. These changes have no in this area ‘‘for 20 years from the date updating the following terms: practical impact in conformity EPA approves’’ the area’s redesignation • ‘‘Hazard elimination program’’ is implementation. to maintenance, i.e., until 2026, despite now ‘‘Projects that correct, improve, or EPA received three comments the fact that the area would have eliminate a hazardous location or supporting the revisions to the budgets for 2030. This result would feature;’’ definitions of MPO and TIP because have been inconsistent with the Clean • ‘‘Safety improvement program’’ is these changes make the transportation Air Act, which requires that now ‘‘Highway Safety Improvement conformity regulation consistent with transportation activities conform to the Program implementation;’’ and SAFETEA–LU. SIP. EPA’s clarification that conformity • ‘‘Pavement marking demonstration’’ E. Minor Clarifications for Hot-Spot applies through the last year of the is now ‘‘Pavement marking.’’ Analyses approved second maintenance plan EPA is updating these terms to make ensures that conformity applies them consistent with the terms in 23 EPA is incorporating two minor throughout the time period covered by U.S.C. 148, which has been amended by clarifications to the conformity rule’s the SIP budgets. In this example, SAFETEA–LU section 1401. These hot-spot analysis provisions. These conformity would apply until 2030. revisions to Table 2 of the conformity changes do not substantively change This revision will not change the regulation do not change the types of current requirements but should implementation of conformity safety projects that are exempt from improve understanding and requirements in maintenance areas. The transportation conformity requirements. implementation of the conformity rule, Clean Air Act requires that maintenance These revisions would only update the in light of other rule changes. Three plans cover a period of 20 years from terminology to be consistent with the commenters supported these changes the year that EPA approves the area’s changes made by SAFETEA–LU to 23 related to hot-spot analyses. redesignation request. With this change U.S.C. 148. For more details see Section First, EPA is making minor changes to in the regulation, conformity would XI. C. ‘‘Revisions to ‘Table 2—Exempt §§ 93.109(l)(2)(i) and 93.116(a) to ensure continue to apply in maintenance areas Projects’ in § 93.126’’ in the May 2, that CO, PM10, and PM2.5 hot-spot for at least 20 years beyond the date of 2007, notice of proposed rulemaking (72 analyses will continue to consider a EPA’s redesignation of an area to FR 24488). project’s air quality impact over the maintenance. This clarification is We received five comments on this entire timeframe of the transportation consistent with EPA’s intention as portion of the proposal. Several of the plan or long-range statewide expressed in the preamble to the 1993 commenters indicated that they support transportation plan, as appropriate. final transportation conformity rule, the changes to the list of exempt Specifically, EPA’s minor change to which stated, ‘‘If the maintenance plan projects. § 93.116(a) ensures that hot-spot establishes emissions budgets for more One commenter asked if EPA had analyses cover the timeframe of the than twenty years, the area would be considered revising the list of exempt transportation plan in metropolitan and required to show conformity to that projects in 40 CFR 93.126 to further donut nonattainment and maintenance maintenance plan for more than twenty clarify the types of projects that are areas. The addition to § 93.109(l)(2)(i) years’’ (58 FR 62206). exempt or non-exempt under ensures that hot-spot analyses in ‘‘Transportation Enhancement isolated rural areas examine a project’s B. Technical Corrections to Activities.’’ FHWA’s guidance on air quality impact over the timeframe of §§ 93.102(b)(2)(v) and 93.119(f)(10) activities that may be funded with the long-range statewide transportation EPA is making corrections to Transportation Enhancement Activities plan. §§ 93.102(b)(2)(v) and 93.119(f)(10) to is available on DOT’s Web site at: As discussed in Section VI., today’s change ‘‘sulfur oxides’’ to ‘‘sulfur http://www.fhwa.dot.gov/environment/ final rule allows MPOs to elect to dioxide’’ and ‘‘SOX’’ to ‘‘SO2.’’ In the te/guidance.htm#eligible. After shorten the timeframe addressed by May 6, 2005, transportation conformity reviewing this guidance, we have transportation plan and TIP conformity final rule (70 FR 24279), EPA finalized concluded that 40 CFR 93.126 is correct determinations, and allows state DOTs requirements for PM2.5 precursors. In and additional changes are not required. to elect to shorten the timeframe that final rulemaking, we included Some commenters recommended addressed by regional emissions ‘‘sulfur oxides’’ as one of the precursors additions to the list of exempt projects analyses in isolated rural areas. The and referred to sulfur oxides as SOX. in § 93.126. Given that we did not minor changes to §§ 93.116(a) and Since that rulemaking was finalized, propose and request public comment on 93.109(l)(2)(i) ensure that project-level EPA has finalized the PM2.5 these additional changes to the list of hot-spot analyses examine the implementation rule (72 FR 20586) and exempt projects, these comments are appropriate time period, even if the indicated that sulfur dioxide (SO2) outside the scope of today’s rulemaking. timeframe of the long-range would be regulated as a PM2.5 precursor transportation plan or TIP conformity rather than all sulfur oxides. We are D. Definitions determination or regional emissions making these corrections to the Today’s final rule revises the analysis is shortened. The Clean Air Act transportation conformity rule in order definitions of ‘‘metropolitan planning provisions that allow an election to to make it consistent with EPA’s broader organization (MPO)’’ and shorten the timeframe covered by

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conformity determinations apply only to substantive requirements for when a to’’) the purpose of the SIP. Conformity transportation plan and TIP conformity conformity determination is required for to the purpose of the SIP means that determinations, or regional emissions transportation plan changes. In transportation activities will not cause analyses in isolated rural areas, and do addition, the minor wording change to or contribute to new air quality not apply to hot-spot analyses. § 93.105(c)(1)(v) does not necessitate a violations, worsen existing violations, or Second, today’s final rule conformity SIP revision. Three delay timely attainment of the relevant incorporates a technical clarification to commenters supported the changes. air quality standards. Transportation § 93.123(b)(1)(i) to address some conformity applies under EPA’s confusion in the field since our March G. Minor Revision to Reference for conformity regulations at 40 CFR parts 10, 2006, final rule (71 FR 12468). Public Consultation Provision 51.390 and 93 to areas that are Section 93.123(b)(1)(i) requires PM2.5 or EPA is updating a reference in designated nonattainment and those PM10 hot-spot analyses to be completed § 93.105(e) of the conformity rule to be redesignated to attainment after 1990 for ‘‘New highway projects that have a consistent with DOT’s transportation (‘‘maintenance areas’’ with SIPs significant number of diesel vehicles, planning regulations. Section 93.105(e) developed under Clean Air Act section and expanded projects that have a describes the procedures for consulting 175A) for transportation-source criteria significant increase in the number of with the general public on conformity pollutants. The Clean Air Act gives EPA diesel vehicles.’’ The prior wording was determinations. This provision now the statutory authority to establish the ‘‘New or expanded highway projects refers to 23 CFR 450.316(a) of DOT’s criteria and procedures for determining that have a significant number of or transportation planning regulations, whether transportation activities significant increase in diesel vehicles.’’ which describes how public conform to the SIP. Since the March 2006 final rule was involvement occurs during the This action does not impose any new promulgated, EPA and DOT have development of transportation plans information collection burden or any received several questions regarding and TIPs. In its February 14, 2007, final new information collection what types of new and expanded rule (72 FR 7224), DOT reorganized 23 requirements. The Office of highway projects are covered by CFR 450.316 to reflect the new Management and Budget has previously § 93.123(b)(1)(i). For example, some SAFETEA–LU statute. DOT moved the approved the information collection state and local transportation agencies public consultation procedures that EPA requirements under the provisions of have asked how the current rule’s has historically relied upon in the the Paperwork Reduction Act, 44 U.S.C. reference to a ‘‘significant increase in conformity rule from 23 CFR 450.316(b) 3501 et seq. The information collection diesel vehicles’’ applies to new highway to 23 CFR 450.316(a). Today’s final rule requirements of EPA’s existing projects. Although EPA and DOT have reflects this change in DOT’s transportation conformity rule and the 12 answered these and other questions, transportation planning regulations. revisions in today’s action are addressed clarifying this provision of the Three commenters supported this by two information collection requests conformity rule will assist planners as change. (ICRs). Requirements for carbon they implement the rule in the future. This revision does not change the monoxide, PM10, nitrogen dioxide, and The technical clarification in today’s substantive requirements for the public 1-hour ozone nonattainment and final rule does not change the type of consultation requirements for maintenance areas are covered under new or expanded highway projects that conformity determinations. In addition, the DOT ICR entitled, ‘‘Metropolitan would require PM2.5 or PM10 hot-spot today’s change does not cause states to and Statewide Transportation analyses for transportation conformity revise their conformity SIPs, since the Planning,’’ with the OMB control purposes; we are simply clarifying the revision involves an administrative number of 2132–0529. Requirements provision through a grammatical change to one reference in DOT’s related to PM2.5 and 8-hour ozone change. regulations. EPA has not required nonattainment and maintenance areas F. Minor Revision for Terms Used To conformity SIP revisions for similar are covered by the EPA ICR entitled, Describe Transportation Plan Revisions reference changes in the past; the public ‘‘Transportation Conformity Determinations for Federally Funded EPA is finalizing a minor revision to participation requirements in existing approved conformity SIPs can be and Approved Transportation Plans, how §§ 93.104(b)(2) and 93.105(c)(1)(v) Programs and Projects Under the New 8- describe transportation plan changes implemented as intended even if they do not reflect the most current citation hour Ozone and PM2.5 National that require conformity determinations, Ambient Air Quality Standards,’’ with in DOT’s regulations. but are not comprehensive OMB control number 2060–0561, EPA transportation plan updates. EPA is XII. Statutory and Executive Order ICR number 2130.02. EPA is currently changing references for transportation Reviews revising its ICR to cover all plan ‘‘revision(s)’’ to be transportation transportation conformity burden (EPA A. Executive Order 12866: Regulatory plan ‘‘amendment(s),’’ to be consistent ICR No. 2130.03, OMB Control No. Planning and Review with the revised planning definitions in 2060–0561), and this ICR will DOT’s February 14, 2007, final This action is not a ‘‘significant incorporate the efficiencies in today’s transportation planning regulations (72 regulatory action’’ under the terms of final rule. FR 7224). Today’s changes provide Executive Order (EO) 12866 (58 FR Burden means the total time, effort, or consistency between how mid-cycle 51735, October 4, 1993) and is therefore financial resources expended by persons transportation plan and TIP changes are not subject to review under the EO. to generate, maintain, retain, or disclose currently described in the conformity or provide information to or for a federal B. Paperwork Reduction Act rule. The revision does not change the agency. This includes the time needed Transportation conformity to review instructions; develop, acquire, 12 For additional information about PM2.5 and determinations are required under Clean install and utilize technology and PM10 hot-spot analysis requirements, including Air Act section 176(c) (42 U.S.C. systems for the purposes of collecting, regulations, guidance, and Q and As, see EPA’s and DOT’s Web sites at: http://www.epa.gov/otaq/ 7506(c)) to ensure that federally validating, verifying, processing, stateresources/transconf/index.htm and http:// supported highway and transit project maintaining, disclosing, and providing www.fhwa.dot.gov/environment/conform.htm. activities are consistent with (‘‘conform information; adjust the existing ways to

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comply with any previously applicable analysis, for proposed and final rules might significantly or uniquely affect instructions and requirements; train with ‘‘federal mandates’’ that may result small governments. This rule will not personnel to be able to respond to a in expenditures by state, local, and significantly or uniquely impact small collection of information; search data tribal governments, in the aggregate, or governments because it directly affects sources; complete and review the by the private sector, of $100 million or federal agencies and metropolitan collection of information; and transmit more in any one year. Before planning organizations that, by or otherwise disclose the information. promulgating an EPA rule for which a definition, are designated under federal An agency may not collect written statement is needed, section 205 transportation laws only for information, and a person is not of the UMRA generally requires EPA to metropolitan areas with a population of required to respond to an agency’s identify and consider a reasonable at least 50,000. Additionally, this rule request for information unless it has a number of regulatory alternatives and explains how to implement Clean Air currently valid OMB control number. adopt the least costly, most cost- Act requirements, as such it merely The OMB control numbers for EPA’s effective or least burdensome alternative implements already established law that regulations in 40 CFR are listed in 40 that achieves the objectives of the rule. imposes conformity requirements and CFR part 9. The provisions of section 205 do not does not itself impose requirements. apply when they are inconsistent with C. Regulatory Flexibility Act E. Executive Order 13132: Federalism applicable law. Moreover, section 205 The Regulatory Flexibility Act (RFA) allows EPA to adopt an alternative other Executive Order 13132, entitled generally requires an Agency to prepare than the least costly, most cost-effective ‘‘Federalism’’ (64 FR 43255, August 10, a regulatory flexibility analysis of rules or least burdensome alternative if the 1999), requires EPA to develop an subject to notice and comment Administrator publishes with the final accountable process to ensure rulemaking requirements under the rule an explanation why that alternative ‘‘meaningful and timely input by State Administrative Procedure Act or any was not adopted. Before EPA establishes and local officials in the development of other statute unless the Agency certifies any regulatory requirements that may regulatory policies that have federalism that the rule will not have a significant significantly or uniquely affect small implications.’’ ‘‘Policies that have economic impact on a substantial governments, including tribal federalism implications’’ is defined in number of small entities. Small entities governments, it must have developed the Executive Order to include include small businesses, small not-for- under section 203 of the UMRA a small regulations that have ‘‘substantial direct profit organizations and small government agency plan. The plan must effects on the States, on the relationship government jurisdictions. provide for notifying potentially between the national government and For purposes of assessing the impacts affected small governments, enabling the States, or on the distribution of of today’s final rule on small entities, officials of affected small governments power and responsibilities among the small entity is defined as: (1) A small to have meaningful and timely input in various levels of government.’’ business as defined by the Small the development of EPA regulatory This rule does not have federalism Business Administration’s (SBA) proposals with significant federal implications. It will not have substantial regulations at 13 CFR 121.201; (2) a intergovernmental mandates, and direct effects on states, on the small governmental jurisdiction that is a informing, educating, and advising relationship between the national government of a city, county, town, small governments on compliance with government and states, or on the school district or special district with a the regulatory requirements. distribution of power and population of less than 50,000; and (3) EPA has determined that this rule responsibilities among the various a small organization that is any not-for- itself does not contain a federal mandate levels of government, as specified in profit enterprise that is independently that may result in expenditures of $100 Executive Order 13132. The Clean Air owned and operated and is not million or more by state, local, and Act requires conformity to apply in dominant in its field. tribal governments, in the aggregate, or certain nonattainment and maintenance After considering the economic the private sector in any one year. The areas as a matter of law, and this rule impacts of today’s final rule on small primary purpose of this rule is to amend merely establishes and revises entities, I certify that this action will not the conformity rule to be consistent procedures for transportation planning have a significant economic impact on with Clean Air Act section 176(c) as entities in subject areas to follow in a substantial number of small entities. amended by SAFETEA–LU. The Clean meeting their existing statutory This regulation directly affects federal Air Act amendments made by obligations. Thus, Executive Order agencies and metropolitan planning SAFETEA–LU were intended to reduce 13132 does not apply to this rule. organizations that, by definition, are the burden of demonstrating conformity F. Executive Order 13175: Consultation designated under federal transportation in designated nonattainment and and Coordination With Indian Tribal laws only for metropolitan areas with a maintenance areas subject to conformity Governments population of at least 50,000. These requirements. Thus, although this rule organizations do not constitute small explains how to implement these Clean Executive Order 13175: ‘‘Consultation entities within the meaning of the Air Act amendments, it merely and Coordination with Indian Tribal Regulatory Flexibility Act. implements already established law that Governments’’ (65 FR 67249, November imposes conformity requirements and 6, 2000) requires EPA to develop an D. Unfunded Mandates Reform Act does not itself impose requirements that accountable process to ensure Title II of the Unfunded Mandates may result in expenditures of $100 ‘‘meaningful and timely input by tribal Reform Act of 1995 (UMRA), Public million or more in any year. Thus, officials in the development of Law 104–4, establishes requirements for today’s rule is not subject to the regulatory policies that have tribal federal agencies to assess the effects of requirements of sections 202 and 205 of implications.’’ ‘‘Policies that have tribal their regulatory actions on state, local, the UMRA and EPA has not prepared a implications’’ is defined in the and tribal governments and the private statement with respect to budgetary Executive Order to include regulations sector. Under section 202 of the UMRA, impacts. that have ‘‘substantial direct effects on EPA generally must prepare a written EPA has determined that this rule one or more Indian tribes, on the statement, including a cost-benefit contains no regulatory requirements that relationship between the federal

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government and the Indian tribes, or on I. National Technology Transfer and PART 51—[AMENDED] the distribution of power and Advancement Act I responsibilities between the federal 1. The authority citation for part 51 government and Indian tribes.’’ Section 12(d) of the National continues to read as follows: Technology Transfer and Advancement Today’s amendments to the Authority: 23 U.S.C. 101; 42 U.S.C. 7401– Act of 1995 (‘‘NTTAA’’), Public Law No. 7671q. conformity rule do not significantly or 104–113, section 12(d) (15 U.S.C. 272 uniquely affect the communities of note) directs EPA to use voluntary Subpart T—[Amended] Indian tribal governments, as the Clean consensus standards in its regulatory Air Act requires transportation I 2. An authority citation for subpart T activities unless to do so would be of part 51 is added to read as follows: conformity to apply in any area that is inconsistent with applicable law or designated nonattainment or otherwise impractical. Voluntary Authority: 42 U.S.C. 7401–7671q. maintenance by EPA. This rule amends consensus standards are technical I 3. Section 51.390 is revised to read as the conformity rule to be consistent standards (e.g., material specifications, follows: with Clean Air Act section 176(c) as test methods, sampling procedures, and § 51.390 Implementation plan revision. amended by SAFETEA–LU. The Clean business practices) that are developed or Air Act amendments made by (a) Purpose and applicability. The adopted by voluntary consensus federal conformity rules under part 93, SAFETEA–LU affect nonattainment and standards bodies. The NTTAA directs maintenance areas subject to conformity subpart A, of this chapter, in addition to EPA to provide Congress, through OMB, any existing applicable state requirements. This rule does not have explanations when the Agency decides tribal implcations, as specified in requirements, establish the conformity not to use available and applicable criteria and procedures necessary to Executive Order 13175. Accordingly, voluntary consensus standards. Executive Order 13175 does not apply meet the requirements of Clean Air Act This action does not involve technical section 176(c) until such time as EPA to this rule. standards. Therefore, EPA did not approves the conformity G. Executive Order 13045: Protection of consider the use of any voluntary implementation plan revision required Children From Environmental Health consensus standards. by this subpart. A state with an area and Safety Risks subject to this subpart and part 93, J. Congressional Review Act subpart A, of this chapter must submit Executive Order 13045: ‘‘Protection of The Congressional Review Act, 5 to EPA a revision to its implementation Children from Environmental Health U.S.C. 801 et seq., as added by the Small plan which contains criteria and Risks and Safety Risks’’ (62 FR 19885, Business Regulatory Enforcement procedures for DOT, MPOs and other April 23, 1997) applies to any rule that: Fairness Act of 1996, generally provides state or local agencies to assess the (1) Is determined to be ‘‘economically that before a rule may take effect, the conformity of transportation plans, significant’’ as defined under Executive agency promulgating the rule must programs, and projects, consistent with Order 12866, and (2) concerns an submit a rule report, which includes a this subpart and part 93, subpart A, of environmental health or safety risk that copy of the rule, to each House of the this chapter. The federal conformity EPA has reason to believe may have a Congress and to the Comptroller General regulations contained in part 93, subpart disproportionate effect on children. If of the United States. EPA will submit a A, of this chapter would continue to the regulatory action meets both criteria, report containing this rule and other apply for the portion of the the Agency must evaluate the required information to the U.S. Senate, requirements that the state did not environmental health or safety effects of the U.S. House of Representatives, and include in its conformity the planned rule on children, and the Comptroller General of the United implementation plan and the portion, if explain why the planned regulation is States prior to publication of the rule in any, of the state’s conformity provisions preferable to other potentially effective the Federal Register. A major rule that is not approved by EPA. In and reasonably feasible alternatives cannot take effect until 60 days after it addition, any previously applicable considered by the Agency. is published in the Federal Register. implementation plan conformity This rule is not subject to Executive This action is not a ‘‘major rule’’ as requirements remain enforceable until the state submits a revision to its Order 13045 because the Agency does defined by 5 U.S.C. 804(2). This rule applicable implementation plan to not have reason to believe the will be effective February 25, 2008. specifically remove them and that environmental health or safety risks List of Subjects in 40 CFR Parts 51 and revision is approved by EPA. addressed by this action present a 93 (b) Conformity implementation plan disproportionate risk to children. content. To satisfy the requirements of Environmental protection, H. Executive Order 13211: Actions That Clean Air Act section 176(c)(4)(E), the Administrative practice and procedure, Significantly Affect Energy Supply, implementation plan revision required Air pollution control, Carbon monoxide, Distribution or Use by this section must include the Highways and roads, Intergovernmental following three requirements of part 93, This rule is not subject to Executive relations, Mass transportation, Nitrogen subpart A, of this chapter: §§ 93.105, Order 13211, ‘‘Action Concerning Dioxide, Ozone, Particulate matter, 93.122(a)(4)(ii), and 93.125(c). A state Regulations That Significantly Affect Transportation, Volatile organic may elect to include any other Energy Supply, Distribution, or Use’’ (66 compounds. provisions of part 93, subpart A. If the FR 28355; May 22, 2001) because it will Dated: January 9, 2008. provisions of the following sections of not have a significant adverse effect on Stephen L. Johnson, part 93, subpart A, of this chapter are the supply, distribution, or use of Administrator. included, such provisions must be energy. Further, we have determined included in verbatim form, except that this rule is not likely to have any I For the reasons set out in the insofar as needed to clarify or to give significant adverse effects on energy preamble, 40 CFR parts 51 and 93 are effect to a stated intent in the revision supply. amended as follows: to establish criteria and procedures

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more stringent than the requirements I b. Revising the first sentence of the plan and the amendment taken as a stated in this chapter: §§ 93.101, 93.102, definition for ‘‘Transportation control whole. 93.103, 93.104, 93.106, 93.109, 93.110, measure (TCM)’’. (3) The MPO and DOT must 93.111, 93.112, 93.113, 93.114, 93.115, The revisions read as follows: determine the conformity of the 93.116, 93.117, 93.118, 93.119, 93.120, transportation plan (including a new § 93.101 Definitions. 93.121, 93.126, and 93.127. A state’s regional emissions analysis) no less conformity provisions may contain * * * * * frequently than every four years. If more criteria and procedures more stringent Metropolitan planning organization than four years elapse after DOT’s than the requirements described in this (MPO) means the policy board of an conformity determination without the subpart and part 93, subpart A, of this organization created as a result of the MPO and DOT determining conformity chapter only if the state’s conformity designation process in 23 U.S.C. 134(d). of the transportation plan, a 12-month provisions apply equally to non-federal * * * * * grace period will be implemented as as well as federal entities. Transportation control measure described in paragraph (f) of this (c) Timing and approval. A state must (TCM) is any measure that is specifically section. At the end of this 12-month submit this revision to EPA by identified and committed to in the grace period, the existing conformity November 25, 1994 or within 12 months applicable implementation plan, determination will lapse. of an area’s redesignation from including a substitute or additional (c) * * * attainment to nonattainment, if the state TCM that is incorporated into the (3) The MPO and DOT must has not previously submitted such a applicable SIP through the process determine the conformity of the TIP revision. The state must also revise its established in CAA section 176(c)(8), (including a new regional emissions conformity implementation plan within that is either one of the types listed in analysis) no less frequently than every 12 months of the date of publication of CAA section 108, or any other measure four years. If more than four years any final amendments to §§ 93.105, for the purpose of reducing emissions or elapse after DOT’s conformity 93.122(a)(4)(ii), and 93.125(c), as concentrations of air pollutants from determination without the MPO and appropriate. Any other portions of part transportation sources by reducing DOT determining conformity of the TIP, 93, subpart A, of this chapter that the vehicle use or changing traffic flow or a 12-month grace period will be state has included in its conformity congestion conditions. * * * implemented as described in paragraph implementation plan and EPA has Transportation improvement program (f) of this section. At the end of this 12- approved must be revised in the state’s (TIP) means a transportation month grace period, the existing implementation plan and submitted to improvement program developed by a conformity determination will lapse. EPA within 12 months of the date of metropolitan planning organization (e) Triggers for transportation plan publication of any final amendments to under 23 U.S.C. 134(j). and TIP conformity determinations. such sections. EPA will provide DOT * * * * * Conformity of existing transportation with a 30-day comment period before plans and TIPs must be redetermined taking action to approve or disapprove § 93.102 [Amended] within two years of the following, or the submission. In order for EPA to I 6. Section 93.102 is amended as after a 12-month grace period (as approve the implementation plan follows: described in paragraph (f) of this revision submitted to EPA under this I a. In paragraph (b)(2)(v), by removing section) the existing conformity subpart, the plan revision must address ‘‘sulfur oxides (SOX)’’ and adding in its determination will lapse, and no new and give full legal effect to the following place ‘‘sulfur dioxide (SO2)’’; and project-level conformity determinations three requirements of part 93, subpart A: I b. In paragraph (b)(4), removing ‘‘for may be made until conformity of the §§ 93.105, 93.122(a)(4)(ii), and 20 years from the date EPA approves the transportation plan and TIP has been 93.125(c). Any other provisions that are area’s request under section 107(d) of determined by the MPO and DOT: incorporated into the conformity the CAA for redesignation to * * * * * implementation plan must also be done attainment’’ and adding in its place (f) Lapse grace period. During the 12- in a manner that gives them full legal ‘‘through the last year of a maintenance month grace period referenced in effect. Following EPA approval of the area’s approved CAA section 175A(b) paragraphs (b)(3), (c)(3), and (e) of this state conformity provisions (or a portion maintenance plan’’. section, a project may be found to thereof) in a revision to the state’s I 7. Section 93.104 is amended as conform according to the requirements conformity implementation plan, follows: of this part if: conformity determinations will be I a. By revising paragraphs (b)(2), (b)(3), (1) The project is included in the governed by the approved (or approved and (c)(3); currently conforming transportation I portion of the) state criteria and b. By revising paragraph (e) plan and TIP (or regional emissions procedures as well as any applicable introductory text; and I analysis); or portions of the federal conformity rules c. By adding paragraph (f). (2) the project is included in the most that are not addressed by the approved § 93.104 Frequency of conformity recent conforming transportation plan conformity SIP. determinations. and TIP (or regional emissions analysis). PART 93—[AMENDED] * * * * * § 93.105 [Amended] (b) * * * I I 4. The authority citation for part 93 (2) All transportation plan 8. Section 93.105 is amended by continues to read as follows: amendments must be found to conform removing ‘‘revisions or’’ in paragraph before the transportation plan (c)(1)(v), and by removing the reference Authority: 42 U.S.C. 7401–7671q. amendments are approved by the MPO ‘‘23 CFR 450.316(b)’’ in paragraph (e) I 5. Section 93.101 is amended by: or accepted by DOT, unless the and adding in its place ‘‘23 CFR I a. Revising the definitions for amendment merely adds or deletes 450.316(a)’’. ‘‘Metropolitan planning organization exempt projects listed in § 93.126 or I 9. Section 93.106 is amended as (MPO)’’ and ‘‘Transportation § 93.127. The conformity determination follows: improvement program (TIP)’’; and must be based on the transportation I a. By revising the section heading;

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I b. By revising paragraphs (a)(1)(iii) (3) For areas that have an adequate or I 12. Section 93.115 is amended by and (iv); approved CAA section 175A(b) revising the section heading and adding I c. By adding new paragraph (a)(v); maintenance plan, the MPO may elect to a new paragraph (e) to read as follows: I d. By redesignating paragraph (d) as shorten the timeframe of the conformity paragraph (e); and determination to extend through the last § 93.115 Criteria and procedures: Projects from a transportation plan and TIP. I e. By adding new paragraph (d). year of such maintenance plan after consultation with state and local air * * * * * § 93.106 Content of transportation plans quality agencies, solicitation of public (e) Notwithstanding the requirements and timeframe of conformity of paragraphs (a), (b), and (c) of this determinations. comments, and consideration of such section, a project must meet the (a) * * * comments. (4) Any election made by an MPO requirements of § 93.104(f) during the (1) * * * 12-month lapse grace period. (iii) The attainment year must be a under paragraphs (d)(2) or (d)(3) of this I horizon year if it is in the timeframe of section shall continue in effect until the 13. Section 93.116(a) is amended in the transportation plan and conformity MPO elects otherwise, after consultation the fourth sentence by removing ‘‘(or determination; with state and local air quality agencies, regional emissions analysis)’’. (iv) The last year of the transportation solicitation of public comments, and I 14. Section 93.118 is amended as plan’s forecast period must be a horizon consideration of such comments. follows: year; and * * * * * I a. By revising paragraph (b) (v) If the timeframe of the conformity introductory text; determination has been shortened under § 93.109 [Amended] I b. By revising the first sentence in paragraph (d) of this section, the last I 10. Section 93.109 is amended as paragraph (d)(2); and year of the timeframe of the conformity follows: I c. By adding new paragraph (d)(3). determination must be a horizon year. I a. By revising the introductory text of § 93.118 Criteria and procedures: Motor * * * * * paragraph (e)(2); vehicle emissions budget. (d) Timeframe of conformity I b. By removing paragraph (e)(2)(v); * * * * * determination. and (b) Consistency with the motor (1) Unless an election is made under I c. By revising paragraph (l)(2)(i): vehicle emissions budget(s) must be paragraph (d)(2) or (d)(3) of this section, demonstrated for each year for which the timeframe of the conformity § 93.109 Criteria and procedures for the applicable (and/or submitted) determination must be through the last determining conformity of transportation implementation plan specifically year of the transportation plan’s forecast plans, programs, and projects: General. establishes motor vehicle emissions period. * * * * * budget(s), for the attainment year (if it (2) For areas that do not have an (e) * * * is within the timeframe of the adequate or approved CAA section (2) Prior to paragraph (e)(1) of this 175A(b) maintenance plan, the MPO transportation plan and conformity section applying, the following test(s) determination), for the last year of the may elect to shorten the timeframe of must be satisfied: the transportation plan and TIP timeframe of the conformity * * * * * determination (as described under conformity determination, after (1) * * * consultation with state and local air § 93.106(d)), and for any intermediate (2) * * * quality agencies, solicitation of public years within the timeframe of the comments, and consideration of such (i) When the requirements of conformity determination as necessary comments. §§ 93.106(d), 93.116, 93.118, and 93.119 so that the years for which consistency (i) The shortened timeframe of the apply to isolated rural nonattainment is demonstrated are no more than ten conformity determination must extend and maintenance areas, references to years apart, as follows: at least to the latest of the following ‘‘transportation plan’’ or ‘‘TIP’’ should * * * * * years: be taken to mean those projects in the (d) * * * (A) The tenth year of the statewide transportation plan or (2) The regional emissions analysis transportation plan; statewide TIP which are in the rural may be performed for any years in the (B) The latest year for which an nonattainment or maintenance area. timeframe of the conformity adequate or approved motor vehicle When the requirements of § 93.106(d) determination (as described under emissions budget(s) is established in the apply to isolated rural nonattainment § 93.106(d)) provided they are not more submitted or applicable implementation and maintenance areas, references to than ten years apart and provided the plan; or ‘‘MPO’’ should be taken to mean the analysis is performed for the attainment (C) The year after the completion date state department of transportation. year (if it is in the timeframe of the of a regionally significant project if the I 11. Section 93.114 is amended by transportation plan and conformity project is included in the TIP or the revising the introductory text to read as determination) and the last year of the project requires approval before the follows: timeframe of the conformity subsequent conformity determination. determination. * * * (ii) The conformity determination § 93.114 Criteria and procedures: (3) When the timeframe of the must be accompanied by a regional Currently conforming transportation plan conformity determination is shortened and TIP. emissions analysis (for informational under § 93.106(d)(2), the conformity purposes only) for the last year of the There must be a currently conforming determination must be accompanied by transportation plan and for any year transportation plan and currently a regional emissions analysis (for shown to exceed motor vehicle conforming TIP at the time of project informational purposes only) for the last emissions budgets in a prior regional approval, or a project must meet the year of the transportation plan, and for emissions analysis, if such a year requirements in § 93.104(f) during the any year shown to exceed motor vehicle extends beyond the timeframe of the 12-month lapse grace period. emissions budgets in a prior regional conformity determination. * * * * * emissions analysis (if such a year

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extends beyond the timeframe of the project not in the first four years of the I 18. Section 93.123 is amended by conformity determination). currently conforming transportation adding paragraph (a)(3) and revising * * * * * plan and TIP or that meets the paragraph (b)(1)(i) to read as follows: I 15. Section 93.119 is amended as requirements of § 93.104(f) during the 12-month lapse grace period may be § 93.123 Procedures for determining follows: localized CO, PM10, and PM2.5 I a. In paragraph (f)(10), by removing found to conform until another control concentrations (hot-spot analysis). ‘‘SOX’’ and adding ‘‘SO2’’ in its place; strategy implementation plan revision I b. By revising the last sentence in fulfilling the same CAA requirements is (a) * * * paragraph (g)(1); and submitted, EPA finds its motor vehicle (3) DOT, in consultation with EPA, I c. By adding new paragraph (g)(3). emissions budget(s) adequate pursuant may also choose to make a categorical to § 93.118 or approves the submission, hot-spot finding that (93.116(a) is met § 93.119 Criteria and procedures: Interim and conformity to the implementation without further hot-spot analysis for any emissions in areas without motor vehicle project described in paragraphs (a)(1) emissions budgets. plan revision is determined. * * * * * and (a)(2) of this section based on * * * * * appropriate modeling. DOT, in I (g) * * * 17. Section 93.121 is amended by consultation with EPA, may also (1) * * * The last year of the revising paragraphs (a)(1) and (2) to read consider the current air quality timeframe of the conformity as follows: circumstances of a given CO determination (as described under nonattainment or maintenance area in § 93.106(d)) must also be an analysis § 93.121 Requirements for adoption or approval of projects by other recipients of categorical hot-spot findings for year. funds designated under title 23 U.S.C. or applicable FHWA or FTA projects. * * * * * the Federal Transit Laws. (b) * * * (3) When the timeframe of the (a) * * * (1) * * * conformity determination is shortened under § 93.106(d)(2), the conformity (1) The project comes from the (i) New highway projects that have a determination must be accompanied by currently conforming transportation significant number of diesel vehicles, a regional emissions analysis (for plan and TIP (or meets the requirements and expanded highway projects that informational purposes only) for the last of § 93.104(f) during the 12-month lapse have a significant increase in the year of the transportation plan. grace period), and the project’s design number of diesel vehicles; concept and scope have not changed * * * * * * * * * * significantly from those that were I 16. Section 93.120 is amended by included in the regional emissions § 93.126 [Amended] revising paragraph (a)(2) to read as analysis for that transportation plan and I follows: 19. Table 2 in § 93.126 is amended TIP; under the heading ‘‘Safety’’ as follows: (2) The project is included in the § 93.120 Consequences of control strategy I a. By removing the entry ‘‘Hazard regional emissions analysis for the implementation plan failures. elimination program’’ and adding in its currently conforming transportation (a) * * * place ‘‘Projects that correct, improve, or plan and TIP conformity determination (2) If EPA disapproves a submitted eliminate a hazardous location or (or meets the requirements of § 93.104(f) control strategy implementation plan feature’’; during the 12-month lapse grace revision without making a protective I period), even if the project is not strictly b. By removing the entry ‘‘Safety finding, only projects in the first four improvement program’’ and adding in years of the currently conforming included in the transportation plan or TIP for the purpose of MPO project its place ‘‘Highway Safety Improvement transportation plan and TIP or that meet Program implementation’’; and the requirements of § 93.104(f) during selection or endorsement, and the I c. By removing the entry ‘‘Pavement the 12-month lapse grace period may be project’s design concept and scope have marking demonstration’’ and adding in found to conform. This means that not changed significantly from those its place ‘‘Pavement marking’’. beginning on the effective date of a that were included in the regional disapproval without a protective emissions analysis; or [FR Doc. E8–597 Filed 1–23–08; 8:45 am] finding, no transportation plan, TIP, or * * * * * BILLING CODE 6560–50–P

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Part V

The President Executive Order 13455—Establishing the President’s Advisory Council on Financial Literacy

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Federal Register Presidential Documents Vol. 73, No. 16

Thursday, January 24, 2008

Title 3— Executive Order 13455 of January 22, 2008

The President Establishing the President’s Advisory Council on Financial Literacy

By the authority vested in me as President by the Constitution and the laws of the United States of America and to promote and enhance financial literacy among the American people, it is hereby ordered as follows: Section 1. Policy. To help keep America competitive and assist the American people in understanding and addressing financial matters, it is the policy of the Federal Government to encourage financial literacy among the Amer- ican people. Sec. 2. Establishment of the Council. There is established within the Depart- ment of the Treasury the President’s Advisory Council on Financial Literacy (Council). Sec. 3. Membership and Operation of the Council. (a) The Council shall consist of 19 members appointed by the President from among individuals not employed by the Federal Government, consistent with subsection (b) of this section. (b) In selecting individuals for appointment to the Council, appropriate consideration should be given to selection of individuals with backgrounds as providers of, consumers of, promoters of access to, and educators with respect to financial education and financial services. Each individual member of the Council will serve as a representative of his or her industry, trade group, public interest group, or other organization or group. The composition of the Council will reflect the views of diverse stakeholders. (c) The President shall designate a Chair and a Vice Chair from among the members of the Council. (d) Subject to the direction of the Secretary of the Treasury (Secretary), the Chair shall convene and preside at meetings of the Council, determine its agenda, direct its work, and, as appropriate to deal with particular subject matters, establish and direct the work of subgroups of the Council that shall consist exclusively of members of the Council. (e) The Vice Chair shall perform: (i) the duties of the Chair when the position of Chair is vacant; and (ii) such other functions as the Chair may from time to time assign. Sec. 4. Functions of the Council. To assist in implementing the policy set forth in section 1 of this order, the Council shall: (a) obtain information and advice concerning financial literacy as appropriate in the course of its work from: (i) officers and employees of executive departments and agencies (including members of the Financial Literacy and Education Commission), unless otherwise directed by the head of the department or agency; (ii) State, local, territorial, and tribal officials; (iii) providers of, consumers of, promoters of access to, and educators with respect to financial services; (iv) experts on matters relating to the policy set forth in section 1; and (v) such other individuals as the Secretary may direct;

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(b) advise the President and the Secretary consistent with this order on means to implement effectively the policy set forth in section 1, including by providing advice on means to: (i) improve financial education efforts for youth in school and for adults in the workplace; (ii) promote effective access to financial services, especially for those without access to such services; (iii) establish effective measures of national financial literacy; (iv) conduct research on financial knowledge, including the collection of data on the extent of financial knowledge of individuals; and (v) strengthen and coordinate public and private sector financial education programs; and (c) periodically report to the President, through the Secretary, on: (i) the status of financial literacy in the United States; (ii) progress made in implementing the policy set forth in section 1 of this order; and (iii) recommendations on means to further implement the policy set forth in section 1 of this order, including with respect to the matters set forth in subsection (b)(i) through (v) of this section. Sec. 5. Administration of the Council. (a) To the extent permitted by law, the Department of the Treasury shall provide funding and administrative support for the Council, as determined by the Secretary, to implement this order. (b) The heads of executive departments and agencies shall provide, as appro- priate and to the extent permitted by law, such assistance and information to the Council as the Secretary may request to implement this order. (c) Members of the Council: (i) shall serve without any compensation for their work on the Council; and (ii) while engaged in the work of the Council, may be allowed travel expenses, including per diem in lieu of subsistence, as authorized by law for persons serving intermittently in the Government (5 U.S.C. 5701– 5707), consistent with the availability of funds. (d) The Secretary shall designate an officer or employee of the United States within the Department of the Treasury to serve as an Executive Director to supervise the administrative support for the Council. Sec. 6. Termination of the Council. Unless extended by the President, the Council shall terminate 2 years from the date of this order. Sec. 7. General Provisions. (a) Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (Act), may apply to the Council, any functions of the President under the Act, except for those in section 6 of the Act, shall be performed by the Secretary in accordance with the guidelines issued by the Administrator of General Services. (b) Nothing in this order shall be construed to impair or otherwise affect: (i) authority granted by law to a department or agency or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or legislative proposals. (c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

THE WHITE HOUSE, January 22, 2008.

[FR Doc. 08–325 Filed 1–23–08; 8:57 am] Billing code 3195–01–P

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Reader Aids Federal Register Vol. 73, No. 16 Thursday, January 24, 2008

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JANUARY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 30...... 3812 Presidential Documents 3 CFR 40...... 3812 Executive orders and proclamations 741–6000 Proclamations: 50...... 3812 The United States Government Manual 741–6000 7746 (See 8214)...... 1439 70...... 3812 7747 (See 8214)...... 1439 Other Services 72...... 3812 8097 (See 8214)...... 1439 73...... 2435 Electronic and on-line services (voice) 741–6020 8214...... 1439 430...... 3653 Privacy Act Compilation 741–6064 8215...... 3375 Public Laws Update Service (numbers, dates, etc.) 741–6043 8216...... 3855 12 CFR TTY for the deaf-and-hard-of-hearing 741–6086 Executive Orders: 229...... 1267 12947 (See Notice of 303...... 2143 ELECTRONIC RESEARCH Jan. 18, 2008)...... 3859 308...... 2143 13420 (Superseded by 309...... 2143 World Wide Web 13454) ...... 1481 558...... 17 Full text of the daily Federal Register, CFR and other publications 13454...... 1481 563...... 17 is located at: http://www.gpoaccess.gov/nara/index.html 13455...... 4445 564...... 17 Administrative Orders: 567...... 17 Federal Register information and research tools, including Public Presidential 574...... 17 Inspection List, indexes, and links to GPO Access are located at: Determinations: Proposed Rules: l http://www.archives.gov/federal register No. 2008-6 of 226...... 1672 E-mail December 12, 360...... 2364 2007 ...... 3849 361...... 420 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is No. 2008-7 of an open e-mail service that provides subscribers with a digital 13 CFR December 14, form of the Federal Register Table of Contents. The digital form 2007 ...... 3851 101...... 1962 of the Federal Register Table of Contents includes HTML and Memorandums: PDF links to the full text of each document. 14 CFR Memorandum of Dec. To join or leave, go to http://listserv.access.gpo.gov and select 17, 2007 ...... 1813 23 ...... 19, 389, 3385 Online mailing list archives, FEDREGTOC-L, Join or leave the list 25...... 27 (or change settings); then follow the instructions. 5 CFR 39 ...... 29, 394, 395, 397, 400, PENS (Public Law Electronic Notification Service) is an e-mail 531...... 1493 1044, 1046, 1048, 1052, service that notifies subscribers of recently enacted laws. 1201...... 2143 1055, 1269, 1815, 1816, 1964, 1968, 2793, 2795, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Proposed Rules: 293...... 3410 2797, 2799, 2801, 2803, and select Join or leave the list (or change settings); then follow 3615, 3618, 3620, 3621, the instructions. 532...... 3220 591...... 772 3623, 3625, 3863, 4051, FEDREGTOC-L and PENS are mailing lists only. We cannot 4053, 4055, 4057, 4059, respond to specific inquiries. 6 CFR 4061, 4063, 4066 71 ...... 1271, 3625, 4069, 4070, Reference questions. Send questions and comments about the Proposed Rules: 4071 Federal Register system to: [email protected] 19...... 2187 97 ...... 4071, 4073, 4075 The Federal Register staff cannot interpret specific documents or 7 CFR Proposed Rules: regulations. 3...... 1 21...... 3655 987...... 3377 23 ...... 3881, 3882, 3884 FEDERAL REGISTER PAGES AND DATE, JANUARY 39...73, 75, 77, 80, 84, 87, 830, Proposed Rules: 833, 1556, 1558, 1842, 457...... 3411 1–388...... 2 1844, 1846, 1848, 2190, 389–810...... 3 9 CFR 2192, 2195, 2197, 2200, 811–1042...... 4 2204, 2206, 3417, 3419, 1043–1266...... 7 93...... 3379 3422, 3425, 3428, 3656, 94...... 1043, 3379 1267–1492...... 8 3885, 3887, 3889, 3891, 95...... 3379 1493–1814...... 9 4121, 4123, 4125, 4127, Proposed Rules: 1815–1960...... 10 4129 2...... 413 71...... 3430, 3431 1961–2142...... 11 3...... 413 2143–2410...... 14 15 CFR 2411–2792...... 15 10 CFR 700...... 32 2793–3180...... 16 72...... 17 730...... 32 3181–3376...... 17 609...... 1961 740...... 32 3377–3614...... 18 707...... 3861 743...... 32 3615–3860...... 22 Proposed Rules: 744...... 32 3861–4050...... 23 Ch. I ...... 826 745...... 32 4051–4448...... 24 20...... 3221, 3812 746...... 32

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748...... 32 22 CFR 686...... 1300 409...... 2568 750...... 32 410...... 2431, 2568 22...... 3867 36 CFR 752...... 32 51...... 3867, 4077 411...... 2568 754...... 32 13...... 3181 413...... 2568 774...... 32 23 CFR Proposed Rules: 414 ...... 404, 2431, 2433, 2568 7...... 2436 415...... 2568 17 CFR Proposed Rules: 634...... 268 294...... 1135 418...... 2568 210...... 934, 986 655...... 268 1190...... 2308 423...... 2568 228...... 934 1191...... 2308 424...... 2431, 2568 229...... 934 24 CFR 1193...... 4132 482...... 2568 484...... 2431, 2568 230...... 934, 986 200...... 1430 1194...... 4132 485...... 2568 239...... 934, 986 206...... 1434 1195...... 2309 240...... 934 488...... 3405 291...... 1974 37 CFR 249...... 934, 986 970...... 3867 Proposed Rules: 260...... 934 382...... 4080 422...... 1301 269...... 934 25 CFR Proposed Rules: 423...... 1301 201...... 3898 441...... 3546 18 CFR Proposed Rules: 502...... 3223 38 CFR 43 CFR 11...... 3626 542...... 3224 37...... 2984 543...... 3224 3...... 1075 Proposed Rules: 38...... 38 546...... 3223 21...... 1076, 2421 46...... 126 40...... 1770 547...... 3224 Proposed Rules: 44 CFR 260...... 1014 4...... 428, 432 284...... 38, 1014 26 CFR 64...... 2816 385...... 1014 39 CFR 1...... 2416, 3868 65 ...... 2818, 2822, 2827 806...... 1272 301...... 1058 20...... 2156 67...... 2830, 2835 808...... 1272 602...... 3868 Proposed Rules: Proposed Rules: Proposed Rules: 67 ...... 2859, 2868, 2873, 2880, Proposed Rules: 111...... 1158 284...... 1116, 4131 1 ...... 421, 1131, 1850, 1851, 4144, 4156 40 CFR 206...... 2187 19 CFR 2436, 3441, 4131 301...... 1131, 1851 50...... 1497 45 CFR 351...... 3634 51...... 4420 Proposed Rules: 28 CFR 52 ...... 48, 1282, 1819, 2156, 1304...... 1285 1306...... 1285 4...... 90, 1299 0...... 1493 2159, 2162, 2163, 2428, 12...... 90, 1299 27...... 1493 3187, 3190, 3192, 3389, Proposed Rules: 18...... 90, 1299 3396, 4105, 4109 1355...... 2082 19...... 2843 29 CFR 60...... 3568 47 CFR 101...... 90, 1299 1601...... 3387 62...... 3194 103...... 90, 1299 4022...... 2420 63 ...... 226, 1738, 1916, 3568 0...... 813 113...... 90, 1299 4044...... 2420 72...... 4312 64...... 1297, 3197 122...... 90, 1299 75...... 4312 73...... 3202, 4113 Proposed Rules: 123...... 90, 1299 76...... 1080, 3652 1910...... 1299 81 ...... 2162, 2163, 3396 141...... 90, 1299 1926...... 3893 85...... 3568 Proposed Rules: 143...... 1299 90...... 3568 Ch. I ...... 546 144...... 2843 30 CFR 93...... 4420 25...... 2437 149...... 90, 1299 180 ...51, 52, 1503, 1508, 1512, 27...... 2437 Proposed Rules: 192...... 90, 1299 1517, 1976, 2809, 2812 61...... 1306 916...... 3894 260...... 57 69...... 1306 931...... 1983 20 CFR 261...... 57 73 ...... 1576, 1577, 2211 404...... 1970, 2411 31 CFR 271...... 1077 76...... 1195 405...... 2411 1048...... 3568 416...... 1970, 2411 1...... 1817 1065...... 3568 48 CFR 103...... 1975 1068...... 3568 Ch. 8 ...... 2712 Proposed Rules: 21 CFR Proposed Rules: 25...... 3409 201...... 402 210...... 1560 50...... 836, 1568 204...... 1822, 4113 208...... 402 32 CFR 51...... 1402 207 ...... 1823, 1826, 4114 209...... 402 52 ...... 125, 836, 1162, 1175, 209...... 1823, 1826 510...... 4077 Proposed Rules: 1570, 1851, 1853, 2209, 212 ...... 1822, 4114, 4115 520...... 2808, 4077 1701...... 113 2210, 2436, 3224, 3225, 217...... 1826 522...... 2808 3226, 3446, 3447, 4133 222...... 4115 33 CFR 526...... 811, 3181 62...... 3900 225...... 4113, 4115 558...... 811 117 ...... 41, 1273, 1274, 1495 63...... 4136 232...... 4116 1271...... 3387 137...... 2146 81 ...... 1162, 1175, 3447 234...... 1823, 4117 Proposed Rules: 165 ...... 43, 1274, 1276, 1280, 93...... 1402 235...... 1823, 4117 314...... 2848 3650, 4078 704...... 2854 237...... 1826 601...... 2848 Proposed Rules: 720...... 2854 239...... 1828 606...... 1983 117...... 1565 721...... 2854 244...... 4113 610...... 1983 165...... 1133 723...... 2854 246...... 1826 630...... 1983 252 .....1822, 1823, 1828, 1830, 640...... 1983 34 CFR 41 CFR 4115, 4116 660...... 1983 462...... 2306 102-72...... 2166 1516...... 1978 814...... 2848 Proposed Rules: 102-84...... 2167 1533...... 1978 820...... 1983 674...... 1300 1552...... 1978 1270...... 1983 682...... 1300 42 CFR Proposed Rules: 1309...... 3432 685...... 1300 72...... 3874 252...... 1853

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49 CFR 571...... 3901 600...... 406 Proposed Rules: 172...... 1089 574...... 4157 622...... 406, 3218 17 ...... 1312, 1855, 3228, 4380 563...... 2168 648 ...... 411, 820, 2184 224...... 1986 604...... 2326 50 CFR 679 ...... 823, 1554, 1555, 1831, 300...... 140 Proposed Rules: 17...... 1525, 3146 3218, 3879 622...... 439 192...... 1307 229...... 4118 648...... 441

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REMINDERS HEALTH AND HUMAN COMMODITY FUTURES Appeals board; revisions to The items in this list were SERVICES DEPARTMENT TRADING COMMISSION procedures and hearings; editorially compiled as an aid Food and Drug Commodity Exchange Act: comments due by 1-28- to Federal Register users. Administration Federal speculative position 08; published 12-28-07 Inclusion or exclusion from Oral Dosage Form New limits; risk management [FR 07-06221] this list has no legal Animal Drugs; Clindamycin; exemption; comments due Medicare: significance. published 1-24-08 by 1-28-08; published 11- Hospital Outpatient LIBRARY OF CONGRESS 27-07 [FR E7-22992] Prospective Payment System and CY 2008 Copyright Royalty Board, ENERGY DEPARTMENT payment rates, etc.; RULES GOING INTO Library of Congress Energy Efficiency and comments due by 1-28- EFFECT JANUARY 24, Preexisting Subscription and Renewable Energy Office 2008 08; published 11-27-07 Satellite Digital Audio Radio Consumer products; energy [FR 07-05507] Services; Determination of conservation program: Rates and Terms; published HEALTH AND HUMAN DEFENSE DEPARTMENT Energy conservation 1-24-08 SERVICES DEPARTMENT Defense Acquisition standards— Food and Drug Regulations System Dishwashers, Administration COMMENTS DUE NEXT Defense Federal Acquisition dehumidifiers, electric Food for human consumption: WEEK Regulation Supplement: and gas kitchen ranges Food labeling— and ovens and Closeout of Contract Files Reference values and AGRICULTURE commercial clothes (DFARS Case 2006- mandatory nutrients; DEPARTMENT washers; comments due D045); published 1-24-08 revision; comments due Agricultural Marketing by 1-29-08; published Combating Trafficking in 11-15-07 [FR E7-22040] by 1-31-08; published Persons; published 1-24- Service 11-2-07 [FR 07-05440] 08 National Organic Program: ENVIRONMENTAL PROTECTION AGENCY HEALTH AND HUMAN Commercial Item Allowed and prohibited SERVICES DEPARTMENT Air programs; approval and Determinations; published substances; national list; Administrative regulations: Sunset Review; comments promulgation; State plans 1-24-08 Appeals board; revisions to due by 1-28-08; published for designated facilities and Payment Withholding— procedures and hearings; 12-28-07 [FR E7-25270] pollutants: Deletion of Duplicative comments due by 1-28- Text (DFARS Case 2007- COMMERCE DEPARTMENT Nevada; comments due by 08; published 12-28-07 D010); published 1-24-08 National Oceanic and 1-28-08; published 12-13- [FR 07-06221] 07 [FR E7-24167] Research and Development Atmospheric Administration HEALTH AND HUMAN Air Quality Implementation Contract Type Fishery conservation and SERVICES DEPARTMENT Determination (DFARS management: Plans; Approval and Promulgation; Various Inspector General Office, Case 2006-D053); Northeastern United States States: Health and Human Services published 1-24-08 fisheries— Department California; comments due by Technical Amendments; Atlantic bluefish; 2-1-08; published 1-2-08 Administrative regulations: published 1-24-08 comments due by 1-28- [FR E7-25100] Appeals board; revisions to Trade Agreements—New 08; published 12-27-07 procedures and hearings; Thresholds; published 1- [FR E7-25080] Air quality implementation plans; approval and comments due by 1-28- 24-08 Atlantic mackerel, squid, 08; published 12-28-07 and butterfish; promulgation; various ENVIRONMENTAL States: [FR 07-06221] PROTECTION AGENCY comments due by 1-28- Illinois; comments due by 1- HOMELAND SECURITY 08; published 12-28-07 DEPARTMENT Air quality implementation [FR E7-25251] 30-08; published 12-31-07 plans; approval and Federal Emergency Atlantic sea scallop; [FR E7-25405] promulgation; various Air quality planning purposes; Management Agency States: comments due by 1-29- 08; published 11-30-07 designation of areas: Flood elevation determinations: Connecticut; published 1-24- [FR E7-23266] Texas; comments due by 1- Alabama and Oklahoma; 08 Atlantic sea scallop; 30-08; published 12-31-07 comments due by 1-31- Approval and Promulgation of comments due by 1-31- [FR E7-25402] 08; published 11-2-07 [FR E7-21595] Implementation Plans: 08; published 12-17-07 Pesticides; tolerances in food, New York; Clean Air [FR E7-24254] animal feeds, and raw Connecticut; comments due by 1-31-08; published 11- Interstate Rule; published Bivalve molluscan shellfish agricultural commodities: 2-07 [FR E7-21607] 1-24-08 and whole or roe-on Acetamiprid; comments due Revisions to the Continuous scallops; comments due by 1-28-08; published 11- Oklahoma; correction; Emissions Monitoring Rule by 1-30-08; published 28-07 [FR E7-23055] comments due by 1-31- for the Acid Rain Program, 12-31-07 [FR E7-25255] 08; published 11-30-07 FEDERAL DEPOSIT [FR E7-23215] NOx Budget Trading International fisheries INSURANCE CORPORATION Program, Clean Air regulations: Various States; comments Practice and procedure: due by 1-30-08; published Interstate Rule, and the Pacific halibut— Annual independent audits 11-1-07 [FR E7-21540] Clean Air Me; published 1- Guided sport charter 24-08 and reporting INTERIOR DEPARTMENT vessel fishery; requirements; comments FEDERAL Minerals Management comments due by 1-30- due by 1-31-08; published COMMUNICATIONS Service 08; published 12-31-07 11-2-07 [FR E7-21168] COMMISSION [FR E7-25407] Outer Continental Shelf; oil, HEALTH AND HUMAN Ancillary or Supplementary Pacific Halibut Fisheries; gas, and sulphur operations: SERVICES DEPARTMENT Use of Digital Television Catch Sharing Plan; Pipelines and pipeline Capacity by Noncommercial comments due by 2-1-08; Centers for Medicare & rights-of-way; comments Licensees; published 1-24- published 1-2-08 [FR E7- Medicaid Services due by 1-31-08; published 08 25535] Administrative regulations: 10-3-07 [FR 07-04831]

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JUSTICE DEPARTMENT Boeing Model 737-600, TREASURY DEPARTMENT H.R. 660/P.L. 110–177 Drug Enforcement -700, -700C, -800 and Alcohol and Tobacco Tax Court Security Improvement Administration -900 Series Airplanes; and Trade Bureau Act of 2007 (Jan. 7, 2008; Schedules of controlled comments due by 1-28- 121 Stat. 2534) substances: 08; published 1-2-08 [FR Alcoholic beverages: H.R. 3690/P.L. 110–178 U.S. Official Order Form E7-25477] Wines, distilled spirits, and (DEA Form-222); new Airworthiness directives: malt beverages; labeling U.S. Capitol Police and single-sheet format; Library of Congress Police Air Tractor, Inc.; comments and advertising— comments due by 1-28- Merger Implementation Act of 08; published 11-27-07 due by 1-29-08; published Alcohol content statement; 2007 (Jan. 7, 2008; 121 Stat. [FR E7-22984] 11-30-07 [FR E7-23229] comments due by 1-27- 2546) 08; published 9-20-07 JUSTICE DEPARTMENT Boeing; comments due by [FR E7-18510] S. 863/P.L. 110–179 Executive Office for 1-31-08; published 12-17- Emergency and Disaster Immigration Review 07 [FR E7-24329] Assistance Fraud Penalty Immigration: Airworthiness Directives: LIST OF PUBLIC LAWS Enhancement Act of 2007 Aliens; voluntary departure Construcciones (Jan. 7, 2008; 121 Stat. 2556) review; comments due by Aeronauticas, S.A., 1-29-08; published 11-30- (CASA) Model C-212 This is a continuing list of H.R. 2640/P.L. 110–180 07 [FR E7-23289] Airplanes; comments due public bills from the current NICS Improvement LABOR DEPARTMENT by 2-1-08; published 1-2- session of Congress which Amendments Act of 2007 Occupational Safety and 08 [FR E7-25481] have become Federal laws. It (Jan. 8, 2008; 121 Stat. 2559) may be used in conjunction Health Administration Airworthiness directives: Last List January 7, 2008 Construction safety and health with ‘‘PLUS’’ (Public Laws standards: Eclipse Aviation Corp.; Update Service) on 202–741– Confined spaces; exposure comments due by 1-28- 6043. This list is also hazards; comments due 08; published 11-27-07 available online at http:// Public Laws Electronic by 1-28-08; published 11- [FR E7-23024] www.archives.gov/federal- Notification Service 28-07 [FR E7-21893] Class D airspace; comments register/laws.html. (PENS) due by 2-1-08; published NUCLEAR REGULATORY The text of laws is not COMMISSION 12-18-07 [FR 07-06065] published in the Federal PENS is a free electronic mail Spent nuclear fuel and high- Class E airspace; comments Register but may be ordered notification service of newly level radioactive waste; due by 1-28-08; published in ‘‘slip law’’ (individual enacted public laws. To independent storage; 12-13-07 [FR 07-06018] pamphlet) form from the subscribe, go to http:// licensing requirements: TRANSPORTATION Superintendent of Documents, listserv.gsa.gov/archives/ Approved spent fuel storage DEPARTMENT U.S. Government Printing publaws-l.html casks; list; comments due Office, Washington, DC 20402 by 1-30-08; published 12- Saint Lawrence Seaway Development Corporation (phone, 202–512–1808). The Note: This service is strictly 31-07 [FR E7-25414] text will also be made for E-mail notification of new TRANSPORTATION Seaway regulations and rules: available on the Internet from laws. The text of laws is not DEPARTMENT Miscellaneous amendments; GPO Access at http:// available through this service. Federal Aviation comments due by 1-30- www.gpoaccess.gov/plaws/ PENS cannot respond to Administration 08; published 12-31-07 index.html. Some laws may specific inquiries sent to this Airworthiness Directives [FR E7-25340] not yet be available. address.

VerDate Aug 31 2005 22:58 Jan 23, 2008 Jkt 214001 PO 00000 Frm 00005 Fmt 4712 Sfmt 4711 E:\FR\FM\24JACU.LOC 24JACU rwilkins on PROD1PC63 with NOTICES