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Code · REGISTER · 2006-06-05 · Environmental Protection Agency (EPA) · Rules and Regulations

Rules and Regulations. Final rule

23,375 words·~106 min read·/register/2006/06/05/06-5073

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 61 [EPA-R10-OAR-2006-0001; FRL-8177-2] Partial Approval of the Clean Air Act, Section 112(l), Delegation of Authority to the Washington State Department of Health AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is granting partial approval to Washington State Department of Health's
(WDOH)request for delegation of authority to implement and enforce the National Emission Standards for Hazardous Air Pollutants (NESHAP) for radionuclide air emission. This action is being taken under the Clean Air Act (CAA or the Act). DATES: *Effective Date:* This final rule is effective on July 5, 2006. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2006-0001. All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy during normal business hours at the Office of Air, Waste and Toxics, U.S. Environmental Protection Agency, Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. FOR FURTHER INFORMATION CONTACT: Davis Zhen,
(206)553-7660, or by e-mail at *zhen.davis@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Response to Comments III. Final Action A. What Authorities Are Excluded From This Partial Approval and Delegation? B. How Will This Partial Approval and Delegation Affect the Regulated Community? C. Where Will the Regulated Community Send Notifications and Reports? D. What Are WDOH's Reporting Obligations? E. What Is the Effect of Other State Laws Regulating Radionuclide Air Emissions? F. How Will WDOH Receive Partial Approval and Delegation of Newly Promulgated and Revised Radionuclide NESHAPs? G. How Frequently Should WDOH Update Its Partial Approval and Delegations? H. How Will This Partial Approval and Delegation Affect Indian Country? IV. Statutory and Executive Order Reviews I. Background On June 6, 2005, WDOH submitted a request for delegation of authority to implement and enforce 40 CFR part 61, subparts A, B, H, I, K, Q, R, T, and W (Radionuclide NESHAPs). WDOH's request showed that it had adopted without change or modification all of the provisions of the Radionuclide NESHAPs, as in effect on July 1, 2004. On February 22, 2006, EPA proposed a partial approval of WDOH's delegation request. The reason for EPA's decision to grant partial rather than full approval was that WDOH does not currently have express authority to recover criminal fines for knowingly making a false material statement, representation, or certificate in any form, notice or report, or knowingly rendering inadequate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii) and 40 CFR 63.91(d)(3)(i). Please refer to 71 FR 9059 (February 22, 2006) for a detailed description of our proposed partial approval and delegation. II. Response to Comments EPA provided a 30-day period for public comment on our February 22, 2006 proposal, which ended on March 24, 2006. No comments were received during the public comment period. EPA did receive a comment letter, however, on March 27, 2006, after the close of the public comment period. Although EPA is not legally obligated to respond, a summary of the commenter's concerns and EPA's response to the comments follows. A copy of the comment letter is in the docket. The commenter states that WDOH's radionuclide regulations are not consistent with and are more stringent than the Radionuclide NESHAPs. The commenter cites a 1983 EPA guidance document regarding delegation of NSPS and NESHAP standards which states that “state regulations dealing with NSPS and NESHAPS must be consistent with the Federal regulations as outlined in 40 CFR Part 60 and 61.” Good Practices Manual for Delegation of NSPS and NESHAPs, February 1983. The commenter continues that, although a state regulation is allowed to be more stringent than the corresponding federal regulation, the state regulation should be consistent. The commenter notes several ways in which it believes WDOH's radionuclide regulations are not consistent with the Radionuclide NESHAPs. First, the commenter states that the WDOH regulations have no *de minimis* exemption from the requirement to obtain a construction permit and that there is no scientific basis for permitting sources below EPA's standard of 0.1 mrem per year. EPA assumes this is a reference to the exemption in 40 CFR 61.96(b) for new construction and modifications with emissions less than 1% of the standard in 40 CFR 61.92 (referred to here as the “ *de minimis* exemption” or “ *de minimis* level”). The commenter is also concerned that WDOH has allegedly stated that it does not review or assess the economic impact of regulating sources below this *de minimis* level. Second, the commenter states that some of WDOH's exemptions are narrower than those provided in the Radionuclide NESHAPs. As an example, the commenter states that WDOH's exemption to the definition of “modification” for routine maintenance, repair and replacement applies only to abatement technology, whereas EPA's definition of modification has no such limitation. Third, the commenter states that WDOH requires notice of construction applications for accidental releases, whereas the Radionuclide NESHAPs do not. Fourth, the commenter states that WDOH has expressed concern, and even reluctance, to permit some individual sources, even though their effective doses were below the *de minimis* level individually and actual facility-wide emissions are approximately 0.3% of the Radionuclide NESHAPs facility-wide standard of 10 mrem per year because the unabated (uncontrolled) emissions of the Department of Energy's Hanford facility (DOE Hanford) are approaching the facility-wide standard of 10 mrem per year. The commenter concludes that EPA should not delegate the Radionuclide NESHAPs to WDOH unless WDOH promulgates regulations consistent with the regulations and the intent of the Radionuclide NESHAPs or documents substantial evidence other than that compiled by the EPA to reinforce their regulations. As the commenter notes and as discussed in the proposal, WDOH has, in addition, adopted other provisions as a matter of state law that regulated radionuclide emissions and that apply to sources subject to the Radionuclide NESHAPs. These requirements are additional to and more stringent than the Radionuclide NESHAPs, by, for example, eliminating exemptions that may be available under the Radionuclide NESHAPs. Section 116 of the CAA makes clear, however, that with some exceptions not relevant here, nothing in title I of the CAA precludes or denies the right of any State to adopt or enforce any standard or limitation respecting emissions of air pollutants or any requirement respecting control or abatement of air pollutant so long as it is not less stringent than a standard or limitation in effect under an applicable implementation plan or under section 111 or 112 of the CAA. EPA made clear in proposing to approve WDOH's delegation request that EPA's partial approval and delegation of the Radionuclide NESHAPs to WDOH does not extend to any additional state standards regulating radionuclide emissions. *See* 71 FR 9062 and 9063. These additional State standards are enforceable as a matter of State law, but are not enforceable under the CAA or in any way part of this delegation. III. Final Action EPA is granting partial approval to WDOH's request for partial approval and delegation of authority to implement and enforce the Radionuclide NESHAPs. Pursuant to the authority of section 112(l) of the CAA, this partial approval is based on EPA's finding that State law, regulations and agency resources meet the requirements for partial program approval and delegation of authority specified in 40 CFR 63.91 and applicable EPA guidance. Except as provided in Section III.B., EPA is delegating to WDOH authority to implement and enforce 40 CFR part 61, subparts A, B, H, I, K, Q, R, T, and W, as in effect on July 1, 2004. NESHAPs that are promulgated or revised substantively after July 1, 2004 are not delegated to WDOH. These remain the responsibility of EPA. Included as part of the delegation is the authority to approve: 1. “Minor changes to monitoring,” including the use of the specified monitoring requirements and procedures with minor changes in methodology as described in 40 CFR 61.14(g)(1)(i); 2. “Intermediate changes to monitoring;” 3. “Minor changes to recordkeeping/reporting;”; 4. “Minor changes in test methods,” including the use of a reference method with minor changes in methodology as described in 40 CFR 61.13(h)(1)(i); 5. Waiver of the requirement for emission testing because the owner or operator of a source has demonstrated by other means to WDOH's satisfaction that the source is in compliance with the standard as described in 40 CFR 61.13(h)(1)(iii). For purposes of this paragraph, the terms in quotations have the meaning assigned to them in 40 CFR 63.90. EPA is also updating the table published at 40 CFR 61.04(c)(10) showing the most recent delegation status of specific part 61 subparts that have been delegated to State and local air pollution control authorities in Region 10. A. What Authorities Are Excluded From This Partial Approval and Delegation? EPA is not delegating authorities under 40 CFR part 61 that specifically indicate they can not be delegated, that require rulemaking to implement, that affect the stringency of the standard, or where national oversight is the only way to ensure national consistency. Table 1 below identifies the specific authorities within 40 CFR part 61, subparts A, B, H, I, K, Q, R, T, and W that EPA is specifically excluding from this delegation. Table 1.—Part 61 Authorities Excluded From Partial Approval and Delegation Section Authorities 61.04(b) Waiver of recordkeeping. 61.12(d)(1) Approval of alternative means of emission limitation. 61.13(h)(1)(ii) Approval of alternatives to test methods (except as provided in 40 CFR 61.13(h)(1)(i)). 61.14(g)(1)(ii) Approval of alternatives to monitoring that do not qualify as “Minor changes to monitoring,” “Intermediate changes to monitoring,” or “Minor changes to recordkeeping/reporting” For purposes of the previous sentence, the terms in quotes are defined in 40 CFR 63.90. 61.16 Availability of information. 61.23(b) Subpart B—Radon Emissions from Underground Uranium Mines Alternative compliance demonstration to COMPLY-R (requires EPA Headquarters approval). 61.93(b)(2)(iii), (c)(2)(iii) Subpart H—Emissions of Radionuclides Other than Radon from DOE Facilities (alternatives to test methods). 61.107(b)(2)(iii), (d)(2)(iii) Subpart I—Radionuclide Emissions from Federal Facilities Other than NRC licensees and Not Covered in Subpart H (alternatives to test methods). 61.125(a) Subpart K—Radionuclide Emissions from elemental Phosphorus Plants (alternatives to test methods). 61.206(c), (d), and
(e)Subpart R—Emission from Phosphogypsum Stacks (requires Approval from Assistant Administrator of EPA Office of Air and Radiation). In addition, because WDOH does not currently have express authority to recover criminal fines for knowingly making a false material statement, representation, or certificate in any form, notice or report or knowingly rendering inadequate any required monitoring device or method, as required by 40 CFR 70.11(a)(3)(iii) and 40 CFR 63.91(d)(3)(i), EPA will continue to retain primary authority to implement and enforce these authorities. This is the basis for partial rather than full approval. B. How Will This Partial Approval and Delegation Affect Regulated Community? Generally speaking, the transfer of authority from EPA to WDOH in this delegation changes EPA's role from primary implementer and enforcer to overseer. As a result, sources in Washington subject to the delegated Radionuclide NESHAPs should direct questions and compliance issues to WDOH. For authorities that are NOT delegated (those noted in Section III.A. above), affected sources should continue to work with EPA as their primary contact and submit materials directly to EPA. In such cases, affected sources should copy WDOH on all submittals, questions, and requests. EPA will continue to have primary responsibility to implement and enforce Federal regulations that do not have current state or local agency delegations. C. Where Will the Regulated Community Send Notifications and Reports? Sources subject to the delegated NESHAPs will be required to send required notifications, reports and requests to WDOH for WDOH's action and to provide copies to EPA. For authorities that are excluded from this delegation, sources should continue to send required notifications, reports, and requests to EPA and to provide copies to WDOH. D. What Are WDOH's Reporting Obligations? WDOH must maintain a record of all approved alternatives to all monitoring, testing, recordkeeping, and reporting requirements and provide this list of alternatives to EPA at least semi-annually, or at a more frequent basis if requested by EPA. EPA may audit the WDOH-approved alternatives and disapprove any that it determines are inappropriate, after discussion with WDOH. If changes are disapproved, WDOH must notify the source that it must revert to the original applicable monitoring, testing, recordkeeping, and/or reporting requirements (either those requirements of the original section 112 requirements, the alternative requirements approved under 40 CFR part 63, subpart A, or the previously approved site-specific alternative requirements). Also, in cases where the source does not maintain the conditions which prompted the approval of the alternatives to the monitoring testing, recordkeeping, and/or reporting requirements, WDOH must require the source to revert to the original monitoring, testing, recordkeeping, and reporting requirements, or more stringent requirements, if justified. E. What Is the Effect of Other State Laws Regulating Radionuclide Air Emissions? This partial approval and delegation delegates to WDOH authority to implement and enforce 40 CFR part 61, subparts A, B, H, I, K, Q, R, T, and W, as in effect on July 1, 2004. The partial approval and delegation does not extend to any additional state standards, including other state standards regulating radionuclide air emissions. However, if both a State or local regulation and a Federal regulation apply to the same source, both must be complied with, regardless of whether the one is more stringent than the other, pursuant to the requirements of section 116 of the Clean Air Act. F. Delegation of Newly Promulgated and Revised Radionuclide NESHAPs WDOH may receive partial approval and delegation of newly promulgated or revised Radionuclide NEHAPS by the following streamlined process:
(1)WDOH will send a letter to EPA requesting delegation for such new or revised NESHAPs which WDOH has adopted by reference into Washington regulations;
(2)EPA will send a letter of response back to WDOH granting partial approval of the delegation request (or explaining why EPA cannot grant the request), and publish only EPA's approval in the **Federal Register** ;
(3)WDOH does not need to send a response back to EPA. G. How Will WDOH Receive Partial Approval and Delegation of Newly Promulgated and Revised Radionuclide NESHAPs? WDOH is not obligated to request or receive future delegations. However, EPA encourages WDOH, on an annual basis, to revise its rules to incorporate by reference newly promulgated or revised Radionuclide NESHAPs and request updated delegation. Preferably, WDOH should adopt Federal regulations effective July 1, of each year; this corresponds with the publication date of the Code of Federal Regulations (CFR). H. How Will This Partial Approval and Delegation Affect Indian Country? This partial approval and delegation to WDOH to implement and enforce the Radionuclide NESHAPs does not extend to sources or activities located in Indian country, as defined in 18 U.S.C. 1151. “Indian country” is defined under 18 U.S.C. 1151 as:
(1)All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation;
(2)all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State; and
(3)all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Under this definition, EPA treats as reservations trust lands validly set aside for the use of a Tribe, even if the trust lands have not been formally designated as a reservation. Consistent with previous Federal program approvals or delegations, EPA will continue to implement the NESHAPs in Indian country, because WDOH has not adequately demonstrated its authority over sources and activities located within the exterior boundaries of Indian reservations and other areas in Indian country. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves State law as meeting Federal requirements and imposes no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). The rule also does not have Tribal implications because it will not have a substantial direct effect on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Consistent with EPA policy, however, EPA nonetheless initiated consultation with representatives of tribal governments in the process of developing this proposal to permit them to have meaningful and timely input into its development. This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a State request to receive delegation of certain Federal standards, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing program approval and delegation submissions, EPA's role is to approve submissions provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a delegation submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA to use VCS in place of a delegation submission that otherwise satisfies the provisions of the Clean Air Act. Thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 4, 2006. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements ( *See* section 307(b)(2)). List of Subjects in 40 CFR Part 61 Environmental protection, Air pollution control, Radionuclides, Reporting, and recordkeeping requirements. Dated: May 19, 2006. L. Michael Bogert, Regional Administrator, Region 10. 40 CFR part 61 is amended to read as follows: PART 61—[AMENDED] 1. The authority citation for part 61 continues to read as follows: Authority: 42 U.S.C. 7401, 7412, 7413, 7414, 7416, 7601 and 7602. Subpart A—General Provisions 2. Section 61.04 is amended by revising the table in paragraph (c)(10) to read as follows: § 61.04 Address.
(c)* * *
(10)* * * Delegation Status for Part 61 Standards—Region 10 1 Subparts 2 AK ADEC 3 ID IDEQ 4 OR ODEQ 5 LRAPA 6 WA Ecology 7 BCAA 8 NWCAA 9 ORCAA 10 PSCAA 11 SWCAA 12 SCAPCA 13 YRCAA 14 WDOH 15 A General Provisions 16 X 16 X 16 X 16 X 16 X 16 X 16 X 16 X 16 X 16 X 16 X 16 X 16 X 17 B Radon from Underground Uranium Mines X C Beryllium X X X X X X X X X X X D Beryllium Rocket Motor Firing X X X X X X X X X X X E Mercury X X X X X X X X X X X X F Vinyl Chloride X X X X X X X X X X X H Radionuclide other than Radon from Dept. of Energy Facilities X I Radionuclide from Federal Facilities other than Nuclear Regulatory Commission Licensees and not covered by Subpart H X J Equipment Leaks of Benzene X X X X X X X X X X X X K Radionuclide from Elemental Phosphorus Plants X L Benzene from Coke By-Product Recovery Plants X X X X X X X X X X X M Asbestos X X X X X X X X X N Inorganic Arsenic from Glass Manufacturing Plants X X X X X X X X X X O Inorganic Arsenic from Primary Copper Smelters X X X X X X X X X X P Inorganic Arsenic emissions from Arsenic Trioxide and Metallic Arsenic Production Facilities X X X X X X X X X X Q Radon from Dept. of Energy Facilities X R Radon from Phosphogypsum Stacks X T Radon from Disposal Uranium Mill Tailings X V Equipment Leaks (Fugitive Sources) X X X X X X X X X X X W Radon from Operating Mill Tailings X Y Benzene from Benzene Storage Vessels X X X X X X X X X X X BB Benzene from Benzene Transfer Operations X X X X X X X X X X FF Benzene Waste Operations X X X X X X X X X X X 1. Table last updated on July 5, 2006. 2. Any authority within any subpart of this part ( *i.e.* under “Delegation of Authority”) that is identified as not delegable, is not delegated. 3. Alaska Department of Environmental Conservation (01/18/1997). Note: Alaska received delegation for § 61.145 and § 61.154 of subpart M (Asbestos), along with other sections and appendices which are referenced in § 61.145, as § 61.145 applies to sources required to obtain an operating permit under Alaska's regulations. Alaska has not received delegation for subpart M for sources not required to obtain an operating permit under Alaska's regulations. 4. Idaho Department of Environmental Quality (07/01/2003). Note: Delegation of these part 61 subparts applies only to those sources in Idaho required to obtain an operating permit under title V of the Clean Air Act. 5. Oregon Department of Environmental Quality (07/01/2004). 6. Lane Regional Air Pollution Authority (07/01/2001). 7. Washington Department of Ecology (02/20/2001). Note: Delegation of part 61, subpart M, applies only to sources required to obtain an operating permit under title V of the Clean Air Act, including Hanford. (Pursuant to RCW 70.105.240, only Ecology can enforce non-radionuclide regulations at Hanford). 8. Benton Clean Air Authority (02/20/2001). Note: Delegation of part 61, subpart M, excludes Hanford, see note #7. 9. Northwest Clean Air Agency (07/01/2003). 10. Olympic Regional Clean Air Agency (07/01/2000). Note: Delegation of part 61, subpart M applies only to sources required to obtain an operating permit under title V of the Clean Air Act. 11. Puget Sound Clean Air Agency (07/01/2005). 12. Southwest Clean Air Agency (08/01/1998). 13. Spokane County Air Pollution Control Authority (02/20/2001). 14. Yakima Regional Clean Air Authority (07/01/2000). 15. Washington State Department of Health (07/01/2004). Note: WDOH is only delegated the Radionuclide NESHAPs. Other NESHAPs will be enforced by Washington State Department of Ecology and local air agencies, as applicable. 16. General Provisions Authorities which are not delegated include: §§ 61.04(b); 61.12(d)(1); 61.13(h)(1)(ii) for approval of major alternatives to test methods; § 61.14(g)(1)(ii) for approval of major alternatives to monitoring; § 61.16; § 61.53(c)(4); and any sections in the subparts pertaining to approval of alternative standards ( *i.e.* , alternative means of emission limitations), or approval of major alternatives to test methods or monitoring. For definitions of *minor, intermediate,* and *major* alternatives or changes to test methods and monitoring, see 40 CFR 63.90. 17. General Provisions Authorities which are not delegated include: waiver of recordkeeping, approval of alternative means of emission limitation, approval of alternatives to test methods, except as provided in 40 CFR 61.13(h)(1)(i), approval of alternative to monitoring that do not qualify as “Minor changes to monitoring,” “Intermediate changes to monitoring,” or “Minor changes to recordkeeping/reporting” as defined in 40 CFR 63.90, and availability of information. [FR Doc. E6-8470 Filed 6-2-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 48 CFR Parts 1532 and 1552 [FRL-8179-6] EPAAR Prescription and Clause—Simplified Acquisition Procedures Financing AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is revising the EPA Acquisition Regulation (EPAAR) Subparts 1532 and 1552 to implement a procedure for simplified acquisition procedures financing. This EPAAR revision adds a prescription and clause for contracting officers to use when approving advance or interim payments on simplified acquisitions. The prescription and clause apply to commercial item orders at or below the simplified acquisition threshold. This action revises the EPAAR, but does not impose any new requirements on Agency contractors. The procedure allows contractors to invoice for advance and interim payments in accordance with standard commercial practices when authorized by the contracting officer and identified in the clause payment schedule. DATES: This final rule is effective on June 5, 2006. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-OARM-2006-0126. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the OEI Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the OEI Docket is
(202)566-1752. FOR FURTHER INFORMATION CONTACT: Tiffany Schermerhorn, Policy, Training and Oversight Division, Office of Acquisition Management, Mail Code 3802R, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number:
(202)564-9902; fax number:
(202)565-2475; e-mail address: *schermerhorn.tiffany@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information The EPAAR additions are necessary so that contracting officers may provide simplified acquisition procedures financing that is appropriate or customary in the commercial marketplace when purchasing commercial items at or below the simplified acquisition threshold. This rule does not impose any new requirements regarding submission of invoices or vouchers since Agency contractors currently submit invoices or vouchers for payment of orders. The EPAAR changes are consistent with the Federal Acquisition Regulation. No public comments were received in response to the proposed rule published on March 13, 2006. However, a minor revision to the proposed language has been made in response to an internal agency comment. II. Statutory and Executive Order Reviews A. Executive Order 12866 It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* This rule does not impose any new information collection or other requirements on Agency contractors. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any new requirements on small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132 (Federalism) Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, or on the relationship between the Federal government and Indian tribes, as specified in Executive Order 13175. The final rule amends acquisition regulations that are administrative and procedural in nature. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045 Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environmental health or safety risk. H. Executive Order 13211 (Energy Effects) This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act of 1995 Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation. J. Submission to Congress and the General Accounting Office The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on June 5, 2006. List of Subjects in 48 CFR Parts 1532 and 1552 Government procurement. Dated: May 24, 2006. Judy S. Davis, Director, Office of Acquisition Management. For the reasons set forth in the Preamble, the Environmental Protection Agency amends Chapter 15 of Title 48 Code of Federal Regulations, parts 1532 and 1552 as set forth below: 1. The authority citation for 48 CFR parts 1532 and 1552 continues to read as follows: Authority: Section 205(c), 63 Stat. 390 as amended, 40 U.S.C. 486(c). PART 1532—CONTRACT FINANCING 2. Add 1532.003 to read as follows: 1532.003 Simplified acquisition procedures financing.
(a)*Scope.* This subpart provides for authorization of advance and interim payments on commercial item orders not exceeding the simplified acquisition threshold. Advance payments are payments that are made prior to performance. Interim payments are payments that are made during the order period according to a payment schedule.
(b)*Procedures for micropurchases.* Contracting officers may authorize advance and interim payments on orders for commercial items only at or below the micropurchase threshold.
(c)*Procedures for purchases exceeding micropurchase threshold.* Contracting officers must secure approval at one level above the contracting officer, on a case-by-case basis, for advance and interim payments on orders for commercial items exceeding the micropurchase threshold and not exceeding the simplified acquisition threshold. The contracting officer shall submit a recommendation for approval of financing terms, along with the supporting rationale for the action, to one level above the contracting officer. Remote simplified acquisition contracting officers
(SACO)without one level above contracting officers at their locations shall forward recommendations through their OAM Advisors to secure one level above approval.
(d)*Supporting rationale.* Regardless of dollar value, the contracting officer shall document the file with supporting rationale demonstrating that the purchase meets the conditions of FAR 32.202-1(b)(1),
(3)and (4).
(e)*Administration.* Regardless of dollar value, the contracting officer is responsible for ensuring that supplies or services have been delivered. The contracting officer shall document the file with evidence of receipt of supplies or services throughout the order period as appropriate to the acquisition.
(f)*Clause.* The contracting officer shall insert the clause at 1552.232-74, Payments—Simplified Acquisition Procedures Financing, in solicitations and orders that will provide simplified acquisition procedures financing. PART 1552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 3. Add 1552.232-74 to read as follows: 1552.232-74 Payments—Simplified Acquisition Procedures Financing. As prescribed in 1532.003, insert the following clause in solicitations and orders that will provide simplified acquisition procedures financing. Payments—Simplified Acquisition Procedures Financing (JUN 2006) Simplified acquisition procedures financing in the form of ______ [contracting officer insert *advance* (prior to performance) and/or *interim* (according to payment schedule] payment(s)) will be provided under this commercial item order in accordance with the payment schedule below. If both advance and interim payments are to be made, the payment schedule shown below will specify the type of payment provided for each line item. The Government shall pay the contractor as follows upon the submission of invoices or vouchers approved by the project officer: ____________ [insert payment schedule]. [FR Doc. E6-8665 Filed 6-2-06; 8:45 am] BILLING CODE 6560-50-P 71 107 Monday, June 5, 2006 Proposed Rules DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Parts 1 and 41 [Docket No. PTO-C-2006-0015] RIN 0651-AB81 Revision of Patent Fees for Fiscal Year 2007 AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Proposed rule. SUMMARY: The United States Patent and Trademark Office (referred to as “we”, “us”, or “our” in this document) is proposing to adjust certain patent fee amounts to reflect fluctuations in the Consumer Price Index (CPI). Also, we are proposing to adjust, by a corresponding amount, a few patent fees that track the affected fees. The Director is authorized to adjust these fees annually by the CPI to recover the higher costs associated with doing business. We are proposing to adjust the patent fees under the Consolidated Appropriations Act, 2005 (Consolidated Appropriations Act), which revised certain patent fees, and provided for a search fee and examination fee that are separate from the filing fee, during fiscal years 2005 and 2006. Legislation has been introduced in the Congress that would extend the fee revisions in the Consolidated Appropriations Act. If, for any period during fiscal year 2007, the fee revisions in the Consolidated Appropriations Act are not in effect, then the fee adjustment would apply to the former fee amounts that were in place on October 1, 2004, to December 7, 2004, prior to the enactment of the Consolidated Appropriations Act. DATES: Comments must be submitted on or before July 5, 2006. ADDRESSES: You may submit comments, identified by RIN number 0651-AB81, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • E-mail: *Tamara.McClure@uspto.gov.* Include RIN number 0651-AB81 in the subject line of the message. • Fax:
(571)273-6500, marked to the attention of Tamara McClure. • Mail: Mail Stop 16, Director of the U.S. Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450, marked to the attention of Tamara McClure. *Instructions:* All submissions received must include the agency name and Regulatory Information Number
(RIN)for this rule making. For additional information on the rule making process, see the heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Tamara McClure by e-mail at *Tamara.McClure@uspto.gov* , by telephone at
(571)272-6345, or by fax at
(571)273-6500. SUPPLEMENTARY INFORMATION: This proposed rule would adjust our fees in accordance with the applicable provisions of title 35, United States Code, as amended by the Consolidated Appropriations Act, 2005 (Consolidated Appropriations Act) (Pub. L. 108-447). This proposed rule would also adjust, by a corresponding amount, a few patent fees (37 CFR 1.17(e), (r), (s), and (t)) that track statutory fees (either 37 CFR 1.16(a) or 1.17(m)). We are proposing to adjust the patent fees under the Consolidated Appropriations Act, which revised certain patent fees, and provided for a search fee and examination fee that are separate from the filing fee, during fiscal years 2005 and 2006. Legislation has been introduced in the Congress that would extend the fee revisions in the Consolidated Appropriations Act. If any legislation is enacted that extends the fee revisions in the Consolidated Appropriations Act, then Option 1 of this proposed rule notice would apply. If, for any period during fiscal year 2007, the fee revisions in the Consolidated Appropriations Act are not in effect, then Option 2 of this proposed rule notice would apply and the fee adjustment would apply to the former fee amounts that were in place on October 1, 2004, to December 7, 2004, prior to the enactment of the Consolidated Appropriations Act. Customers may wish to refer to our official Web site at *http://www.uspto.gov* for the most current fee amounts. Background Statutory Provisions Patent fees are authorized by 35 U.S.C. 41, 119, 120, 132(b) and 376. For fees paid under 35 U.S.C. 41(a) and
(b)and 132(b), independent inventors, small business concerns, and nonprofit organizations who meet the requirements of 35 U.S.C. 41(h)(1) are entitled to a fifty-percent reduction. Section 41(f) of title 35, United States Code, provides that fees established under 35 U.S.C. 41(a) and
(b)may be adjusted on October 1, 1992, and every year thereafter, to reflect fluctuations in the CPI over the previous twelve months. Section 41(d) of title 35, United States Code, authorizes the Director to establish fees for all other processing, services, or materials related to patents to recover the average cost of providing these services or materials, except for the fees for recording a document affecting title, for each photocopy, for each black and white copy of a patent, and for standard library service. Section 41(g) of title 35, United States Code, provides that new fee amounts established by the Director under section 41 may take effect thirty days after notice in the **Federal Register** and the *Official Gazette of the United States Patent and Trademark Office.* Fee Adjustment Level The patent statutory fees established by 35 U.S.C. 41(a) and
(b)are proposed to be adjusted on October 1, 2006, to reflect fluctuations occurring during the twelve-month period from October 1, 2005, through September 30, 2006, in the Consumer Price Index for All Urban Consumers (CPI-U). The Office of Management and Budget has advised us that in calculating these fluctuations, we should use CPI-U data as determined by the Secretary of Labor. In accordance with previous fee-setting methodology, we base this fee adjustment on the Administration's projected CPI-U for the twelve-month period ending September 30, 2006, which is 3.5 percent. Based on this projected CPI-U, patent statutory fees are proposed to be adjusted by 3.5 percent. Before the final fee amounts are published, the fee amounts may be adjusted based on actual fluctuations in the CPI-U published by the Secretary of Labor. Certain patent processing fees established under 35 U.S.C. 41(d), 119, 120, 132(b), 376, and Public Law 103-465 (the Uruguay Round Agreements Act) are proposed to be adjusted to reflect fluctuations in the CPI. The fee amounts were rounded by applying standard arithmetic rules so that the amounts rounded will be convenient to the user. Fees for other than a small entity of $100 or more were rounded to the nearest $10. Fees of less than $100 were rounded to an even number so that any comparable small entity fee will be a whole number. Procedures for Determining the Correct Fee Amount Owed The following subsections detail the procedures for determining the fees owed during the transition to the new fee schedule. Fees owed may be affected by proper use of a Certificate of Mailing or Transmission under § 1.8(a)(1), or use of “Express Mail Post Office to Addressee” under § 1.10(a). Use of a Certificate of Mailing or Transmission is not authorized for items that are specifically excluded from the provisions of § 1.8. Items for which a Certificate of Mailing or Transmission under § 1.8 are not authorized include, for example, filing of Continued Prosecution Applications
(CPAs)under § 1.53(d) and other national and international applications for patents. *See* 37 CFR 1.8(a)(2). Patent-related correspondence delivered by the “Express Mail Post Office to Addressee” service of the United States Postal Service
(USPS)is considered filed or received in our office on the date of deposit with the USPS. *See* 37 CFR 1.10(a)(1). The date of deposit with the USPS is shown by the “date-in” on the “Express Mail” mailing label or other official USPS notation. a. The Post Issuance Fee for Patents Under 35 U.S.C. 41(b) Section 41(b) of title 35, United States Code, provides for maintenance fees. Any maintenance fee amount that is paid on or after the effective date of the proposed fee adjustment would be subject to the new fees then in effect. If a Certificate of Mailing or Transmission was used, and was proper under § 1.8(a)(1), the fee required would be the lower of:
(1)The fee in effect on the date the USPTO receives the fee; or
(2)The fee in effect on the date of mailing indicated on a proper Certificate of Mailing or Transmission under § 1.8(a)(1). Patent-related correspondence delivered by the “Express Mail Post Office to Addressee” service of the USPS is considered filed or received in our office on the date of deposit with the USPS. See 37 CFR 1.10(a)(1). The date of deposit with the USPS is shown by the “date-in” on the “Express Mail” mailing label or other official USPS notation. b. The Filing Fee for Patent Applications Filed Under 35 U.S.C. 111 and 37 CFR 1.53 Section 111 of title 35, United States Code, provides for the filing of a patent application with the USPTO. If the filing fee for an application filed under 35 U.S.C. 111 is received when the application is filed, the filing fee required would be the filing fee in effect on the filing date assigned to the application. If the USPTO receives the filing fee on a date later than the filing date assigned to the application, the filing fee required would be the higher of:
(1)The filing fee in effect on the filing date assigned to the application; or
(2)The filing fee in effect on the date the USPTO receives the filing fee. The filing fee includes the basic fee, excess claims fees (if any), and the multiple dependent claim fee (if any), for claims present on filing (unless the excess or multiple dependent claims are canceled before the filing fee is paid). Of course, if the basic filing fee is received on a date later than the filing date assigned to the application filed under 35 U.S.C. 111, a surcharge as set forth in § 1.16(e) would also be required. A Certificate of Mailing or Transmission under § 1.8(a)(1) cannot be used for national (including a continued prosecution application
(CPA)under § 1.53(d)) and international patent applications. *See* 37 CFR 1.8(a)(2). Patent-related correspondence delivered by the “Express Mail Post Office to Addressee” service of the USPS is considered filed or received in our office on the date of deposit with the USPS. See 37 CFR 1.10(a)(1). The date of deposit with the USPS is shown by the “date-in” on the “Express Mail” mailing label or other official USPS notation. c. The Fees for International Patent Applications Entering the National Stage Under 35 U.S.C. 371 and 37 CFR 1.494 or 1.495 Section 371 of title 35, United States Code, provides for the national stage filing of a patent application under the Patent Cooperation Treaty. The basic national fee for an international application entering the national stage is due not later than the expiration of 20 months from the priority date in the international application (or 30 months from the priority date if the United States was elected prior to the expiration of 19 months from the priority date). The amount of the basic national fee that is required to be paid would be the basic national fee in effect on the date the full fee is received. A Certificate of Mailing or Transmission under § 1.8(a)(1) cannot be used for international patent applications. *See* 37 CFR 1.8(a)(2). Patent-related correspondence delivered by the “Express Mail Post Office to Addressee” service of the USPS is considered filed or received in our office on the date of deposit with the USPS. *See* 37 CFR 1.10(a)(1). The date of deposit with the USPS is shown by the “date-in” on the “Express Mail” mailing label or other official USPS notation. Discussion of Specific Rules Option 1 Legislation has been introduced in the Congress that would extend the fee revisions in the Consolidated Appropriations Act. If any legislation is enacted that extends the fee revisions in the Consolidated Appropriations Act, then Option 1 of this proposed rule notice would apply. To ensure clarity in the implementation of the proposed new fees, a discussion of specific sections is set forth below. 37 CFR 1.16 National Application Filing, Search, and Examination Fees Section 1.16, paragraphs
(a)through (e),
(h)through (j), (o), and
(q)through (s), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 1.17 Patent Application and Reexamination Processing Fees Section 1.17, paragraphs (a)(2) through (a)(5), (e), (l), (m), (r), and (s), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. In addition, we are proposing to adjust paragraph
(t)to track the statutory fee under paragraph (m). 37 CFR 1.18 Patent Post Allowance (Including Issue) Fees Section 1.18, paragraphs
(a)through (c), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 1.20 Post Issuance Fees Section 1.20, paragraphs (c)(3), (c)(4), and
(e)through (g), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 1.492 National Stage Fees Section 1.492, paragraphs (a), (c)(2),
(d)through (f), and (j), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 41.20 Fees Section 41.20, paragraphs (b)(1) through (b)(3), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. Option 2 Legislation has been introduced in the Congress that would extend the fee revisions in the Consolidated Appropriations Act. If, for any period during fiscal year 2007, the fee revisions in the Consolidated Appropriations Act are not in effect, then Option 2 of this proposed rule notice would apply. To ensure clarity in the implementation of the proposed new fees, a discussion of specific sections is set forth below. 37 CFR 1.16 National Application Filing Fees Section 1.16, paragraphs (a), (b), (d),
(f)through (i), and (k), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 1.17 Patent Application and Reexamination Processing Fees Section 1.17, paragraphs (a)(2) through (a)(5), (e), (m), and
(r)through (t), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 1.18 Patent Post Allowance (Including Issue) Fees Section 1.18, paragraphs
(a)through (c), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 1.20 Post Issuance Fees Section 1.20, paragraphs
(e)through (g), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 1.492 National Stage Fees Section 1.492, paragraphs (a)(1) through (a)(3), (a)(5),
(b)and (d), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. 37 CFR 41.20 Fees Section 41.20, paragraphs (b)(1) through (b)(3), if revised as proposed, would adjust fees established therein to reflect fluctuations in the CPI. Other Considerations *Paperwork Reduction Act:* This rule involves information collection requirements that are subject to review by the Office of Management and Budget
(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The collections of information involved in this proposed rule have been reviewed and previously approved by the OMB under the following control numbers: 0651-0016, 0651-0021, 0651-0031, 0651-0032, and 0651-0033. The Office is not resubmitting information collection requests to the OMB for its review and approval because the changes in this rule do not affect the information collection requirements associated with the information collections under these OMB control numbers. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. *Regulatory Flexibility Act:* For the reasons set forth herein, the Deputy General Counsel for General Law of the United States Patent and Trademark Office has certified to the Chief Counsel for Advocacy, Small Business Administration, that the proposed rule change will not have a significant economic impact on a substantial number of small entities (Regulatory Flexibility Act, 5 U.S.C. 605(b)). By statute, the USPTO's Director is expressly authorized to adjust fees annually to reflect fluctuations in the Consumer Price Index (CPI). *See* 35 U.S.C. 41(f) (certain fees “may be adjusted by the Director on October 1, 1992, and every year thereafter, to reflect any fluctuations occurring during the previous 12 months in the Consumer Price Index as determined by the Secretary of Labor”). The proposed rule increases fees to reflect the change in the CPI as authorized by 35 U.S.C. 41(f). Legislation has been introduced in the Congress that would extend the fee revisions in the Consolidated Appropriations Act, 2005 (Consolidated Appropriations Act) (Pub. L. 108-447). If the legislation is enacted, Option 1 of the proposed rule would apply. If this legislation is not enacted, the fee adjustment would apply to the former fee amounts that were in place on October 1, 2004, to December 7, 2004, prior to the enactment of the Consolidated Appropriations Act. If this legislation is not enacted, Option 2 of this proposed rule would apply. The fee increases would range from a minimum of $2 to a maximum of $130 under Option 1 of the proposed rule, and a minimum of $4 to a maximum of $120 under Option 2 of the proposed rule. Under 35 U.S.C. 41(h)(1) small entities are accorded a fifty-percent reduction in most patent fees. Consequently, the small entity fee increases would range from a minimum of $1 to a maximum of $65 under Option 1 of the proposed rule, and a minimum of $2 to a maximum of $60 under Option 2 of the proposed rule. The sole exception under this proposed rule package is the fee set forth under 37 CFR 1.17(t), which does not qualify for a small entity fee reduction. The fee increase for 37 CFR 1.17(t) would be $180 under Option 1 of the proposed rule, or $50 under Option 2 of the proposed rule. Accordingly, the proposed rule does not have a significant economic impact on a substantial number of small entities. List of Subjects 37 CFR Part 1 Administrative practice and procedure, Biologics, Courts, Freedom of information, Inventions and patents, Reporting and recordkeeping requirements, Small businesses. 37 CFR Part 41 Administrative practice and procedure, Inventions and patents, Lawyers. For the reasons set forth in the preamble, we are proposing to amend title 37 of the Code of Federal Regulations, parts 1 and 41 as set forth below. Option 1 The amendments in Option 1 would be used if legislation is enacted to extend the fee revisions in the Consolidated Appropriations Act. PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 would continue to read as follows: Authority: 35 U.S.C. 2(b)(2), unless otherwise noted. 2. Section 1.16 is proposed to be amended by revising paragraphs
(a)through (e),
(h)through (j), (o), and
(q)through
(s)to read as follows: § 1.16 National application filing, search and examination fees.
(a)Basic fee for filing each application under 35 U.S.C. 111 for an original patent, except design, plant, or provisional applications:
(1)For an application filed on or after December 8, 2004: By a small entity (§ 1.27(a)) if the application is submitted in compliance with the Office electronic filing system (§ 1.27(b)(2)) $75.00 By a small entity (§ 1.27(a)) 155.00 By other than a small entity 310.00
(2)For an application filed before December 8, 2004: By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(b)Basic fee for filing each application for an original design patent:
(1)For an application filed on or after December 8, 2004: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(2)For an application filed before December 8, 2004: By a small entity (§ 1.27(a)) $180.00 By other than a small entity 360.00
(c)Basic fee for filing each application for an original plant patent:
(1)For an application filed on or after December 8, 2004: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(2)For an application filed before December 8, 2004: By a small entity (§ 1.27(a)) $285.00 By other than a small entity 570.00
(d)Basic fee for filing each provisional application: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(e)Basic fee for filing each application for the reissue of a patent:
(1)For an application filed on or after December 8, 2004: By a small entity (§ 1.27(a)) $155.00 By other than a small entity 310.00
(2)For an application filed before December 8, 2004: By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(h)In addition to the basic filing fee in an application, other than a provisional application, for filing or later presentation at any other time of each claim in independent form in excess of 3: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(i)In addition to the basic filing fee in an application, other than a provisional application, for filing or later presentation at any other time of each claim (whether dependent or independent) in excess of 20 (note that § 1.75(c) indicates how multiple dependent claims are considered for fee calculation purposes): By a small entity (§ 1.27(a)) $26.00 By other than a small entity 52.00
(j)In addition to the basic filing fee in an application, other than a provisional application, that contains, or is amended to contain, a multiple dependent claim, per application: By a small entity (§ 1.27(a)) $185.00 By other than a small entity 370.00
(o)Examination fee for each application filed under 35 U.S.C. 111 on or after December 8, 2004, for an original patent, except design, plant, or provisional applications: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(q)Examination fee for each application filed on or after December 8, 2004, for an original plant patent: By a small entity (§ 1.27(a)) $85.00 By other than a small entity 170.00
(r)Examination fee for each application filed on or after December 8, 2004, for the reissue of a patent: By a small entity (§ 1.27(a)) $310.00 By other than a small entity 620.00
(s)Application size fee for any application under 35 U.S.C. 111 filed on or after December 8, 2004, the specification and drawings of which exceed 100 sheets of paper, for each additional 50 sheets or fraction thereof (see § 1.52(f) for applications submitted in whole or in part on an electronic medium): By a small entity (§ 1.27(a)) $130.00 By other than a small entity 260.00 3. Section 1.17 is proposed to be amended by revising paragraphs (a)(2) through (a)(5), (e), (l), (m), and
(r)through
(t)to read as follows: § 1.17 Patent application and reexamination processing fees.
(a)* * *
(2)For reply within second month: By a small entity (§ 1.27(a)) $230.00 By other than a small entity 460.00
(3)For reply within third month: By a small entity (§ 1.27(a)) $525.00 By other than a small entity 1,050.00
(4)For reply within fourth month: By a small entity (§ 1.27(a)) $820.00 By other than a small entity 1,640.00
(5)For reply within fifth month: By a small entity (§ 1.27(a)) $1,115.00 By other than a small entity 2,230.00
(e)To request continued examination pursuant to § 1.114: By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(l)For filing a petition for the revival of an unavoidably abandoned application under 35 U.S.C. 111, 133, 364, or 371, for the unavoidably delayed payment of the issue fee under 35 U.S.C. 151, or for the revival of an unavoidably terminated reexamination proceeding under 35 U.S.C. 133 (§ 1.137(a)): By a small entity (§ 1.27(a)) $260.00 By other than a small entity 520.00
(m)For filing a petition for the revival of an unintentionally abandoned application, for the unintentionally delayed payment of the fee for issuing a patent, or for the revival of an unintentionally terminated reexamination proceeding under 35 U.S.C. 41(a)(7) (§ 1.137(b)): By a small entity (§ 1.27(a)) $775.00 By other than a small entity 1,550.00
(r)For entry of a submission after final rejection under § 1.129(a): By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(s)For each additional invention requested to be examined under § 1.129(b): By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(t)For the acceptance of an unintentionally delayed claim for priority under 35 U.S.C. 119, 120, 121, or 365(a) or
(c)(§§ 1.55 and 1.78) $1,550.00 4. Section 1.18 is proposed to be amended by revising paragraphs
(a)through
(c)to read as follows: § 1.18 Patent post allowance (including issue) fees.
(a)Issue fee for issuing each original patent, except a design or plant patent, or for issuing each reissue patent: By a small entity (§ 1.27(a)) $725.00 By other than a small entity 1,450.00
(b)Issue fee for issuing an original design patent: By a small entity (§ 1.27(a)) $415.00 By other than a small entity 830.00
(c)Issue fee for issuing an original plant patent: By a small entity (§ 1.27(a)) $570.00 By other than a small entity 1,140.00 5. Section 1.20 is proposed to be amended by revising paragraphs (c)(3), (c)(4), and
(e)through
(g)to read as follows: § 1.20 Post issuance fees.
(c)* * *
(3)For filing with a request for reexamination or later presentation at any other time of each claim in independent form in excess of 3 and also in excess of the number of claims in independent form in the patent under reexamination: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(4)For filing with a request for reexamination or later presentation at any other time of each claim (whether dependent or independent) in excess of 20 and also in excess of the number of claims in the patent under reexamination (note that § 1.75(c) indicates how multiple dependent claims are considered for fee calculation purposes): By a small entity (§ 1.27(a)) $26.00 By other than a small entity 52.00
(e)For maintaining an original or reissue patent, except a design or plant patent, based on an application filed on or after December 12, 1980, in force beyond four years, the fee being due by three years and six months after the original grant: By a small entity (§ 1.27(a)) $465.00 By other than a small entity 930.00
(f)For maintaining an original or reissue patent, except a design or plant patent, based on an application filed on or after December 12, 1980, in force beyond eight years, the fee being due by seven years and six months after the original grant: By a small entity (§ 1.27(a)) $1,190.00 By other than a small entity 2,380.00
(g)For maintaining an original or reissue patent, except a design or plant patent, based on an application filed on or after December 12, 1980, in force beyond twelve years, the fee being due by eleven years and six months after the original grant: By a small entity (§ 1.27(a)) $1,965.00 By other than a small entity 3,930.00 6. Section 1.492 is proposed to be amended by revising paragraphs (a), (c)(2),
(d)through (f), and
(j)to read as follows: § 1.492 National stage fees.
(a)The basic national fee for an international application entering the national stage under 35 U.S.C. 371 if the basic national fee was not paid before December 8, 2004: By a small entity (§ 1.27(a)) $155.00 By other than a small entity 310.00
(c)* * *
(2)In all situations not provided for in paragraph (c)(1) of this section: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(d)In addition to the basic national fee, for filing or on a later presentation at any other time of each claim in independent form in excess of 3: By a small entity (§ 1.27(a)) $105.00 By other than a small entity 210.00
(e)In addition to the basic national fee, for filing or on later presentation at any other time of each claim (whether dependent or independent) in excess of 20 (note that § 1.75(c) indicates how multiple dependent claims are considered for fee calculation purposes): By a small entity (§ 1.27(a)) $26.00 By other than a small entity 52.00
(f)In addition to the basic national fee, if the application contains, or is amended to contain, a multiple dependent claim, per application: By a small entity (§ 1.27(a)) $185.00 By other than a small entity 370.00
(j)Application size fee for any international application for which the basic national fee was not paid before December 8, 2004, the specification and drawings of which exceed 100 sheets of paper, for each additional 50 sheets or fraction thereof (see § 1.52(f) for applications submitted in whole or in part on an electronic medium): By a small entity (§ 1.27(a)) $130.00 By other than a small entity 260.00 PART 41—PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES 1. The authority citation for 37 CFR part 41 would continue to read as follows: Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 135, unless otherwise noted. 2. Section 41.20 is proposed to be amended by revising paragraphs (b)(1) through (b)(3) to read as follows: § 41.20 Fees.
(b)* * *
(1)For filing a notice of appeal from the examiner to the Board: By a small entity (§ 1.27(a) of this title) $260.00 By other than a small entity 520.00
(2)In addition to the fee for filing a notice of appeal, for filing a brief in support of an appeal: By a small entity (§ 1.27(a) of this title) $260.00 By other than a small entity 520.00
(3)For filing a request for an oral hearing before the Board in an appeal under 35 U.S.C. 134: By a small entity (§ 1.27(a) of this title) $520.00 By other than a small entity 1,040.00 Option 2 The amendments in Option 2 would be used if legislation is not enacted and the fee adjustments would apply to the former fee amounts that were in place prior to the enactment of the Consolidated Appropriations Act. PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 would continue to read as follows: Authority: 35 U.S.C. 2, unless otherwise noted. 2. Section 1.16 is proposed to be amended by revising paragraphs (a), (b), (d),
(f)through (i), and
(k)to read as follows: § 1.16 National application filing fees.
(a)Basic fee for filing each application for an original patent, except provisional, design, or plant applications: By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(b)In addition to the basic filing fee in an original application, except provisional applications, for filing or later presentation of each independent claim in excess of 3: By a small entity (§ 1.27(a)) $46.00 By other than a small entity 92.00
(d)In addition to the basic filing fee in an original application, except provisional applications, if the application contains, or is amended to contain, a multiple dependent claim(s), per application: By a small entity (§ 1.27(a)) $155.00 By other than a small entity 310.00
(f)Basic fee for filing each design application: By a small entity (§ 1.27(a)) $180.00 By other than a small entity 360.00
(g)Basic fee for filing each plant application, except provisional applications: By a small entity (§ 1.27(a)) $285.00 By other than a small entity 570.00
(h)Basic fee for filing each reissue application: By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(i)In addition to the basic filing fee in a reissue application, for filing or later presentation of each independent claim which is in excess of the number of independent claims in the original patent: By a small entity (§ 1.27(a)) $46.00 By other than a small entity 92.00
(k)Basic fee for filing each provisional application: By a small entity (§ 1.27(a)) $85.00 By other than a small entity 170.00 3. Section 1.17 is proposed to be amended by revising paragraphs (a)(2) through (a)(5), (e), (m), and
(r)through
(t)to read as follows: § 1.17 Patent application and reexamination processing fees.
(a)* * *
(2)For reply within second month: By a small entity (§ 1.27(a)) $220.00 By other than a small entity 440.00
(3)For reply within third month: By a small entity (§ 1.27(a)) $505.00 By other than a small entity 1,010.00
(4)For reply within fourth month: By a small entity (§ 1.27(a)) $790.00 By other than a small entity 1,580.00
(5)For reply within fifth month: By a small entity (§ 1.27(a)) $1,075.00 By other than a small entity 2,150.00
(e)To request continued examination pursuant to § 1.114: By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(m)For filing a petition for the revival of an unintentionally abandoned application, for the unintentionally delayed payment of the fee for issuing a patent, or for the revival of an unintentionally terminated reexamination proceeding under 35 U.S.C. 41(a)(7) (§ 1.137(b)): By a small entity (§ 1.27(a)) $710.00 By other than a small entity 1,420.00
(r)For entry of a submission after final rejection under § 1.129(a): By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(s)For each additional invention requested to be examined under § 1.129(b): By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(t)For the acceptance of an unintentionally delayed claim for priority under 35 U.S.C. 119, 120, 121, or 365(a) or (c): (§§ 1.55 and 1.78) $1,420.00 4. Section 1.18 is proposed to be amended by revising paragraphs
(a)through
(c)to read as follows: § 1.18 Patent post allowance (including issue) fees.
(a)Issue fee for issuing each original or reissue patent, except a design or plant patent: By a small entity (§ 1.27(a)) $710.00 By other than a small entity 1,420.00
(b)Issue fee for issuing a design patent: By a small entity (§ 1.27(a)) $255.00 By other than a small entity 510.00
(c)Issue fee for issuing a plant patent: By a small entity (§ 1.27(a)) $340.00 By other than a small entity 680.00 5. Section 1.20 is proposed to be amended by revising paragraphs
(e)through
(g)to read as follows: § 1.20 Post issuance fees.
(e)For maintaining an original or reissue patent, except a design or plant patent, based on an application filed on or after December 12, 1980, in force beyond four years; the fee is due by three years and six months after the original grant: By a small entity (§ 1.27(a)) $485.00 By other than a small entity 970.00
(f)For maintaining an original or reissue patent, except a design or plant patent, based on an application filed on or after December 12, 1980, in force beyond eight years; the fee is due by seven years and six months after the original grant: By a small entity (§ 1.27(a)) $1,115.00 By other than a small entity 2,230.00
(g)For maintaining an original or reissue patent, except a design or plant patent, based on an application filed on or after December 12, 1980, in force beyond twelve years; the fee is due by eleven years and six months after the original grant: By a small entity (§ 1.27(a)) $1,720.00 By other than a small entity 3,440.00 6. Section 1.492 is amended by revising paragraphs (a)(1) through (a)(3), (a)(5),
(b)and
(d)to read as follows: § 1.492 National stage fees.
(a)* * *
(1)Where an international preliminary examination fee as set forth in § 1.482 has been paid on the international application to the United States Patent and Trademark Office: By a small entity (§ 1.27(a)) $390.00 By other than a small entity 780.00
(2)Where no international preliminary examination fee as set forth in § 1.482 has been paid to the United States Patent and Trademark Office, but an international search fee as set forth in § 1.445(a)(2) has been paid on the international application to the United States Patent and Trademark Office as an International Searching Authority: By a small entity (§ 1.27(a)) $410.00 By other than a small entity 820.00
(3)Where no international preliminary examination fee as set forth in § 1.482 has been paid and no international search fee as set forth in § 1.445(a)(2) has been paid on the international application to the United States Patent and Trademark Office: By a small entity (§ 1.27(a)) $575.00 By other than a small entity 1,150.00
(4)* * *
(5)Where a search report on the international application has been prepared by the European Patent Office or the Japan Patent Office: By a small entity (§ 1.27(a)) $490.00 By other than a small entity 980.00
(b)In addition to the basic national fee, for filing or later presentation of each independent claim in excess of 3: By a small entity (§ 1.27(a)) $46.00 By other than a small entity 92.00
(d)In addition to the basic national fee, if the application contains, or is amended to contain, a multiple dependent claim(s), per application: By a small entity (§ 1.27(a)) $155.00 By other than a small entity 310.00 PART 41—PRACTICE BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES 1. The authority citation for 37 CFR part 41 would continue to read as follows: Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 135, unless otherwise noted. 2. Section 41.20 is proposed to be amended by revising paragraphs (b)(1) through (b)(3) to read as follows: § 41.20 Fees.
(b)*Appeal Fees.*
(1)For filing a notice of appeal from the examiner to the Board: By a small entity (§ 1.27(a) of this title) $175.00 By other than a small entity 350.00
(2)In addition to the fee for filing a notice of appeal, for filing a brief in support of an appeal: By a small entity (§ 1.27(a) of this title) $175.00 By other than a small entity 350.00
(3)For filing a request for an oral hearing before the Board in an appeal under 35 U.S.C. 134: By a small entity (§ 1.27(a) of this title) $155.00 By other than a small entity 310.00 Dated: May 30, 2006. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E6-8682 Filed 6-2-06; 8:45 am] BILLING CODE 3510-16-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2006-0467; FRL-8179-8] Approval and Promulgation of Implementation Plans; State of Missouri AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On November 3, 2005, Missouri submitted a plan to control emissions of nitrogen oxides (NO <sup>X</sup> ) for the eastern one-third of the state. The plan consists of three rules, a budget demonstration, and supporting documentation. The plan will contribute to attainment and maintenance of the 8-hour ozone standard in several downwind areas. Missouri's plan, which focuses on large electric generating units, large industrial boilers, large stationary internal combustion engines, and large cement kilns, was developed to meet the requirements of EPA's April 21, 2004, Phase II NO <sup>X</sup> State Implementation Plan
(SIP)Call. EPA is proposing to approve the plan as a SIP revision fulfilling the NO <sup>X</sup> SIP Call requirements. The initial period for compliance under the plan will begin in 2007, and the emission monitoring and reporting requirements for sources holding allowances under the plan began on May 1, 2006. DATES: Comments must be received on or before July 5, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-OAR-2006-0467, by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. E-mail: *jay.michael@epa.gov* . 3. Mail: Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. 4. Hand Delivery or Courier. Deliver your comments to: Michael Jay, Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. *Instructions:* Direct your comments to Docket ID No. EPA-R07-OAR-2006-0467. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket.* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas. EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. FOR FURTHER INFORMATION CONTACT: Michael Jay at
(913)551-7460 or by e-mail at *jay.michael@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. I. Background A. What Is EPA's NO <sup>X</sup> SIP Call? B. What Was Our Response to Court Decisions on the NO <sup>X</sup> SIP Call That Affected Missouri? C. What Requirements Must Missouri Meet? D. What Is EPA's NO <sup>X</sup> Budget Trading Program? E. How Does the NO <sup>X</sup> SIP Call Rule Relate to the Existing Statewide NO <sup>X</sup> Rule? F. How Does the NO <sup>X</sup> SIP Call Rule Relate to the Clean Air Interstate Rule? II. Summary of State Submittal A. When Did Missouri Develop and Submit the NO <sup>X</sup> Emission Control Plan to EPA? B. What Are the Basic Components of the State's Plan? C. What Do the Rules Require? 1. What Are the Requirements of the EGU and Non-EGU Rule? 2. What Are the Requirements of the Cement Kiln Rule? 3. What Are the Requirements of the Large Stationary Internal Combustion Engine Rule? D. How Does Missouri Address Its NO <sup>X</sup> SIP Call Budget? 1. What NO <sup>X</sup> Budget Did EPA Determine for the State? 2. What Changes Did the State Request to the NO <sup>X</sup> Budget and Are Those Changes Approvable? 3. How Does Missouri Demonstrate That It Is Meeting the Budget? E. What Guidance Did EPA Use To Evaluate Missouri's NO <sup>X</sup> Control Program? III. Proposed Action IV. Statutory and Executive Order Reviews I. Background A. What Is EPA's NO X SIP Call? By notice dated October 27, 1998 (63 FR 57356), we took final action to prohibit specified amounts of emissions of one of the main precursors of groundlevel ozone, NO <sup>X</sup> , in order to reduce ozone transport across state boundaries in the eastern half of the United States. Based on extensive air quality modeling and analyses, we found that sources in 22 states and the District of Columbia
(DC)emit NO <sup>X</sup> in amounts that significantly contribute to nonattainment of the 1-hour and 8-hour ozone national ambient air quality standards (NAAQS) in downwind states. We set forth requirements for each of the affected upwind states to submit SIP revisions prohibiting those amounts of NO <sup>X</sup> emissions during the five-month period from May 1 through September 30 which significantly contribute to downwind air quality problems. We established statewide NO <sup>X</sup> emissions budgets for the affected states. The budgets were calculated by assuming the emissions reductions that would be achieved by applying available, highly cost-effective controls to source categories of NO <sup>X</sup> , *i.e.* , the amounts of reductions determined by EPA for large, fossil-fuel-fired electric generating units (EGUs), large, fossil-fuel-fired industrial boilers, combustion turbines, and combined cycle systems (non-EGUs), large stationary internal combustion
(IC)engines, and cement kilns. States have the flexibility to adopt the appropriate mix of controls for their state to meet the NO <sup>X</sup> emissions reductions requirements of the NO <sup>X</sup> SIP Call. A number of parties, including certain states as well as industry and labor groups, challenged our NO <sup>X</sup> SIP Call rule. B. What Was Our Response to Court Decisions on the NO X SIP Call That Affected Missouri? On March 3, 2000, the Court of Appeals for the District of Columbia Circuit issued its decision on the NO <sup>X</sup> SIP Call, ruling in our favor on the issues that affected the rulemaking as a whole, but ruling against us on several issues. *Michigan* v. *EPA* , 213 F.3d 663 (DC Cir. 2000). One of the adverse rulings affected our original decision to include the entire state of Missouri in the NO <sup>X</sup> SIP Call. Specifically, the Court remanded and vacated the inclusion of Missouri in light of the Ozone Transport Assessment Group
(OTAG)conclusions that emissions from the coarse grid portions of the modeling did not merit controls. Because the NO <sup>X</sup> SIP Call was vacated with respect to Missouri, we advised Missouri that it need not submit a NO <sup>X</sup> SIP Call revision until the remanded issue was addressed in a future rulemaking. In response to the Court's decision that vacated our inclusion of the entire state of Missouri, we issued the February 22, 2002, proposed rule to include only fine grid parts of Missouri in the NO <sup>X</sup> SIP Call. We explained that the Court in *Michigan* did not call into question our “proposition that the fine grid portion of each State should be considered to make a significant contribution downwind.” (67 FR 8413) We further explained that “because of difficulties and uncertainties with accurately dividing emissions between fine and coarse grid of individual counties for the purpose of setting overall NO <sup>X</sup> emissions budgets, we believe that the calculation of the emissions budgets should be based on all counties which are wholly contained within the fine grid.” (67 FR 8415) On April 21, 2004, we finalized our responses to the Court's decision in a final rulemaking, “Interstate Ozone Transport: Response to Court Decisions on the NO <sup>X</sup> SIP Call, NO <sup>X</sup> SIP Call Technical Amendments, and Section 126 Rules,” also referred to as the “Phase II of the NO <sup>X</sup> SIP Call” (69 FR 21604). This rulemaking made a number of revisions to the 1998 rule. Most relevant to this proposal, it finalized our earlier proposal to include the fine grid portions of Missouri as contributing significantly to downwind nonattainment. Accordingly, consistent with the Court's finding in *Michigan* , the NO <sup>X</sup> emissions budget was revised to include only the fine grid portion of the state, which constitutes approximately the eastern one-third of Missouri. The counties that are included in the calculation of the revised budget are listed in Table 1. The SIP due date was one year from the Phase II rulemaking. The requirement for compliance with the NO <sup>X</sup> SIP Call is May 1, 2007. Table 1.—Fine Grid Counties In Missouri Bollinger Co. Butler Co. Cape Girardeau Co. Carter Co. Clark Co. Crawford Co. Dent Co. Dunklin Co. Franklin Co. Gasconade Co. Iron Co. Jefferson Co. Lewis Co. Lincoln Co. Madison Co. Marion Co. Mississippi Co. Montgomery Co. New Madrid Co. Oregon Co. Pemiscot Co. Perry Co. Pike Co. Ralls Co. Reynolds Co. Ripley Co. St. Charles Co. St. Genevieve Co. St. Francois Co. St. Louis Co. St. Louis City Scott Co. Shannon Co. Stoddard Co. Warren Co. Washington Co. Wayne Co. C. What Requirements Must Missouri Meet? The NO <sup>X</sup> SIP Call requires that states revise their SIPs to assure that sources in the state reduce their NO <sup>X</sup> emissions sufficiently to eliminate the amounts of NO <sup>X</sup> emissions that contribute significantly to ozone nonattainment, or that interfere with maintenance, downwind. After prohibiting these significant contributions of NO <sup>X</sup> , the remaining amounts emitted by sources in the state will not “significantly contribute to nonattainment, or interfere with maintenance by,” a downwind state under Clean Air Act
(CAA)section 110(a)(2)(D)(i)(I), as determined under the NO <sup>X</sup> SIP Call. To determine the “significant amount”, we projected the total amount of NO <sup>X</sup> emissions that large EGUs, large non-EGUs, large IC engines, and cement kilns in each covered state would emit, in light of expected growth, in 2007 taking into account other measures required under the CAA. We then projected the total amount of NO <sup>X</sup> emissions that each of those states would emit in 2007 if each such state applied recommended highly cost-effective measures to these source categories. The difference between the two projections represents the “significant amount” of NO <sup>X</sup> emissions that the State's SIP must prohibit under the NO <sup>X</sup> SIP Call. 1 Missouri must demonstrate that its SIP includes sufficient measures to eliminate those emissions. The total amount of NO <sup>X</sup> emissions from all NO <sup>X</sup> sources remaining after the state prohibits the significant amount represents the emissions budget for the state. 1 For the fine grid portion of Missouri, the difference for large non-EGUs between projected emissions without highly cost effective reductions and projected emissions with highly cost effective reductions (as proposed in this action) is 88 tons ( *i.e.* , 147 tons−59 tons). The NO <sup>X</sup> SIP Call provided states the flexibility to decide which source categories to regulate in order to meet the emissions budget. In order to provide assistance to the states, we suggested imposing a variety of control strategies that provide for a highly cost effective means for states to meet their NO <sup>X</sup> emissions budgets. These strategies include imposing NO <sup>X</sup> emissions caps and providing for an allowance trading program for large EGUs and large non-EGUs, as well as emission reduction requirements for cement kilns and large IC engines. EPA explained that, in order for a state to participate in the EPA-administered trading program, the state rule would have to include at least the “core” group of sources specified in the model trading rule, *i.e.* , large EGUs and large non-EGUs. While a state could develop a trading program that did not include the core applicability provisions of the model trading rule, EPA would not administer such a trading program for the state. *See* 63 FR 57461. D. What Is EPA's NO X Budget Trading Program? EPA's model NO <sup>X</sup> budget trading rule for SIPs, 40 CFR Part 96, Subparts A through I, sets forth a NO <sup>X</sup> allowance trading program for large EGUs and large non-EGUs. A state can voluntarily choose to adopt EPA's model rule in order to allow sources within its borders to participate in regional allowance trading as a way to achieve the required emission reductions. The October 27, 1998, **Federal Register** document contains a full description of the EPA's model NO <sup>X</sup> budget trading program ( *See* 63 FR 57514-57538 and 40 CFR part 96, subparts A through I). In general, allowance trading uses market forces to reduce the overall cost of compliance for pollution sources in the program, while maintaining emission reductions and environmental benefits. One type of market-based program is an emissions budget trading program, commonly referred to as a “cap and trade” program. A cap and trade program first sets an aggregate cap, or maximum limit, on emissions for all covered sources for a specified control period. Sources covered by the program then receive authorizations to emit in the form of emission allowances, with the total amount of allowances limited by the cap. Each source can design its own compliance strategy to meet the overall reduction requirement, including sale or purchase of allowances, installation of pollution controls, or implementation of efficiency measures, among other options. Individual control requirements are not specified under a cap and trade program, but each emissions source must surrender allowances equal to its actual emissions in order to comply. Sources must also completely and accurately measure and report all emissions in a timely manner to guarantee that the overall cap is not exceeded. E. How Does the NO X SIP Call Rule Relate to the Existing Statewide NO X Rule? The current statewide NO <sup>X</sup> rule, as amended in the SIP on September 19, 2005 (70 FR 54840), is designed to achieve emissions reductions to improve the air quality in the St. Louis ozone nonattainment area. This rule requires emissions reductions in the eastern one-third of the state and lesser reductions in the remainder of the state for large EGUs. While we approved this rule because it helped address the ozone nonattainment issue in St. Louis, we did not find that this rule addressed the significant transport of NO <sup>X</sup> to other areas that we have identified in the NO <sup>X</sup> SIP Call. The SIP-approved statewide NO <sup>X</sup> rule achieves less emissions reductions and overall is less stringent than the requirements of the NO <sup>X</sup> SIP Call. The additional rules and budget demonstration adopted by Missouri and being proposed for EPA approval today as a revision to the SIP are necessary to meet the additional requirements set forth by the NO <sup>X</sup> SIP Call. F. How Does the NO X SIP Call Rule Relate to the Clean Air Interstate Rule? Like the NO <sup>X</sup> SIP Call, the Clean Air Interstate Rule
(CAIR)rulemaking is based on the “good neighbor” provision of CAA 110(a)(2)(D), which requires states to develop SIP provisions assuring that emissions from their sources do not contribute significantly to downwind nonattainment, or interfere with maintenance, of the NAAQS (70 FR 25162). However, this rulemaking focuses exclusively on interstate transport of NO <sup>X</sup> and its impact on downwind ozone nonattainment and addresses only NO <sup>X</sup> SIP Call requirements. Also, the NO <sup>X</sup> SIP Call only affects those counties lying in the eastern one-third of the state that are listed in Table 1. In contrast, the CAIR regulates NO <sup>X</sup> and sulfur dioxide (SO <sup>2</sup> ), as precursors of PM <sup>2.5</sup> , in addition to regulating NO <sup>X</sup> as a precursor of ozone, and affects the entire state of Missouri. Due to the persistent nature of PM <sup>2.5</sup> pollution throughout the entire year, the CAIR also differs from the NO <sup>X</sup> SIP Call in that it contains an annual control period for NO <sup>X</sup> and SO <sup>2</sup> in addition to an ozone season control period for NO <sup>X</sup> . The rules also contain different compliance dates. For Missouri, the NO <sup>X</sup> SIP Call compliance date is May 1, 2007, and for CAIR the first compliance date is January 1, 2009, for the NO <sup>X</sup> ozone season program requirements, and January 1, 2010, for the CAIR SO <sup>2</sup> annual program requirements. It should also be noted that the CAIR NO <sup>X</sup> ozone season trading program, while similar to the NO <sup>X</sup> SIP Call trading program, is different and that Missouri would need to adopt the CAIR provisions to participate in that program. II. Summary of State Submittal A. When Did Missouri Develop and Submit the NO X Emission Control Plan to EPA? In response to the Federal NO <sup>X</sup> SIP Call Rulemaking in October 1998, the Missouri Department of Natural Resources
(MDNR)began the rulemaking process by drafting rules to meet the NO <sup>X</sup> SIP Call reduction requirements. The MDNR subsequently abandoned its 18-month state rulemaking process when it was notified by EPA that, as a result of the *Michigan* decision, the state was not required to submit a SIP. The MDNR had to restart this process in April 2004 when the Phase II rule was published. The Missouri Air Conservation Commission adopted three rules and a NO <sup>X</sup> budget demonstration on May 26, 2005, and June 30, 2005, respectively, after considering comments at public hearing. The rules were published in the state rules publication on October 13, 2005, and became effective on October 30, 2005. The MDNR submitted the three separate rules, the budget demonstration and supporting documentation to EPA as a SIP package on August 2, 2005. A complete SIP package, with the necessary documentation, was submitted to EPA on November 3, 2005. On November 18, 2005, EPA sent a letter to MDNR deeming the Missouri SIP submittal technically and administratively complete. B. What Are the Basic Components of the State's Plan? The main components of Missouri's plan include three NO <sup>X</sup> rules and a budget demonstration with supporting materials. The rules include: 10 CSR 10-6.360, pertaining to large EGUs and large fossil-fuel-fired industrial boilers (industrial boilers), 10 CSR 10-6.380 for cement kilns, and 10 CSR 10-6.390 for large stationary internal combustion engines. The purpose of these rules is to prohibit NO <sup>X</sup> emissions as identified in the NO <sup>X</sup> SIP Call that significantly contribute to downwind ozone nonattainment. In the NO <sup>X</sup> SIP Call the required emissions reductions were determined based on the implementation of available, highly cost-effective controls for selected source categories. Therefore, Missouri has developed and adopted three rules generally covering the source categories ( *i.e.* , large EGUs, large industrial boilers, cement kilns, and large stationary IC engines) for which EPA found that cost- effective controls were available. 2 EPA has reviewed the three rules and has found that, in light of the discussion below concerning the applicability provisions of Missouri's trading rule, Missouri's rules will achieve the emission reduction requirements of the NO <sup>X</sup> SIP Call and thus eliminate Missouri's significant contribution to downwind 8-hour ozone nonattainment. A more detailed description of each rule follows under II(C). The purpose of the budget demonstration is to provide an accounting mechanism for ensuring that Missouri has adopted control measures that prohibit the significant amounts of NO <sup>X</sup> emissions targeted by CAA section 110(a)(2)(D)(i)(I). A more detailed discussion of the demonstration is provided below under II(D). As part of the supporting materials to the budget demonstration, Missouri also provided baseline test data from the cement kiln industry in support of its cement kiln rule. 2 Although in the NO <sup>X</sup> SIP Call, EPA found generally that highly cost effective reductions were achievable at large industrial boilers, combustion turbines, and combined cycle systems, the fine grid portion of Missouri does not include existing large combustion turbines and combined cycle systems. The language of the applicability provisions for non-EGUs in Missouri's trading rule expressly covers only large non-EGUs that are industrial boilers. C. What Do the Rules Require? 1. What Are the Requirements of the EGU and Non-EGU Rule? Missouri adopted 10 CSR 10-6.360 “Control of NO <sup>X</sup> Emissions from Electric Generating Units and Non-Electric Generating Boilers.” The rule effectively adopts the essential elements of EPA's NO <sup>X</sup> Budget Trading model rule set forth in the October 1998 **Federal Register** document and described in I(D) above for applicable sources found in the eastern one-third of the state covered by the NO <sup>X</sup> SIP Call. The Missouri rule affects large EGUs (in general, fossil-fuel fired boilers, combustion turbines, and combined cycle systems that serve a generator with a nameplate capacity greater than 25 megawatts
(MWe)producing electricity for sale) and large industrial boilers (generally, industrial fossil-fuel fired boilers with a maximum design heat input greater than 250 million British thermal units per hour (mmBtu/hr)). 3 3 It should be noted that EPA interprets “nameplate capacity” to be the amount, specified by the manufacturer of the generator, as of initial installation and interprets “maximum design heat input” to be the amount, specified by the manufacturer of the unit, as of initial installation based on the physical design and physical characteristics of the equipment. Consequently, nameplate capacity and maximum design heat input are determined on a one-time basis and are not changed by subsequent modification of the generator or unit respectively. The emissions cap on large EGUs for the eastern one-third of Missouri, as described in the Phase II notice, is set at 13,400 tons per ozone season, and was based on a baseline heat input (mmBtu/hr) and emissions rate of 0.15 NO <sup>X</sup> lbs/mmBtu. The EGU emissions budget is equivalent to the number of allowances that the state has authority to distribute. One percent of this budget, 134 tons, has been included in an “energy efficiency and renewable generation projects set-aside.” The purpose of this set-aside is to provide an incentive to save or generate electricity through the implementation of projects that reduce the consumption of fossil-fuel. The rule contains a list of large EGUs and the number of remaining allowances that will be provided for each unit during the control periods beginning in the year 2007. The level of reduction for large industrial boilers was based on emissions decreases from uncontrolled levels. In accordance with the NO <sup>X</sup> SIP Call, Missouri based the number of NO <sup>X</sup> allowances for each unit on a 60 percent reduction from each unit's estimated 2007 levels of emissions, which were adjusted for projected growth for large industrial boilers. Missouri identified three existing units in the eastern one-third of the state as meeting the applicability requirement for large industrial boilers and, based on reductions from their uncontrolled emissions adjusted for projected growth, established 59 tons as the large industrial boiler portion of the trading budget. The rule specifically allocates allowances to these three large industrial boilers. The NO <sup>X</sup> trading budget for Missouri is the sum of the large EGU budget (13,400) and the large industrial boiler budget
(59)and totals 13,459 tons. Under 10 CSR 10-6.360, Missouri allocates NO <sup>X</sup> allowances to both its large EGUs and large industrial boilers. Each NO <sup>X</sup> allowance permits a unit to emit one ton of NO <sup>X</sup> during the ozone season control period. NO <sup>X</sup> allowances may be bought or sold. Unused NO <sup>X</sup> allowances may also be banked for future use, with certain limitations. Missouri's rule requires each large EGU and large industrial boiler to hold allowances to cover its emissions after each control period. For each ton of NO <sup>X</sup> emitted in a control period, EPA will remove one allowance from the unit's NO <sup>X</sup> Allowance Tracking System account after the end of the control period. Once the allowance has been used for compliance, no unit can use the allowance again. Monitoring requirements specify that owners and operators will be required to continuously monitor their NO <sup>X</sup> emissions by using systems that meet the requirements of 40 CFR part 75, subpart H. The monitoring requirements also include quarterly emission reporting. The compliance supplement pool
(CSP)is a pool of allowances that can be used in the beginning of the program to provide certain NO <sup>X</sup> Budget units additional compliance flexibility. The CSP was created to address concerns raised by commenters on the NO <sup>X</sup> SIP Call proposal regarding electric reliability during the initial years of the program. Missouri may distribute its 5,630 ton allowance pool based on early reductions, a demonstrated need, or both. A unit making an application to the CSP based on early reductions must demonstrate that reductions were made beyond all applicable requirements sometime during the ozone seasons of 2002 through 2006. Missouri's CSP may be used to account for emissions during the 2007 and 2008 control periods. 2. What Are the Requirements of the Cement Kiln Rule? Missouri adopted 10 CSR 10-6.380, “Control of NO <sup>X</sup> Emissions from Portland Cement Kilns.” The rule effectively adopts the NO <sup>X</sup> SIP Call's recommended approach of obtaining a 30 percent reduction from uncontrolled levels from large Portland cement kilns found in the NO <sup>X</sup> SIP Call region of the eastern one-third of the state. The rule applies only to kilns with process rates of at least the following: Long dry kilns—12 tons per hour (TPH). Long wet kilns—10 TPH. Preheater kilns—16 TPH. Precalciner and preheater/precalciner kilns—22 TPH. In the NO <sup>X</sup> SIP Call, EPA cited its peer reviewed analysis, “EPA's Alternative Control Techniques (ACT)” (EPA-453/R-94-004, March 1994) as demonstrating that cost-effective controls in the form of low-NO <sup>X</sup> burners and mid-kiln firing are available to the cement kiln industry and can achieve a 30 percent reduction from uncontrolled levels of emissions. Consistent with EPA's approach in the NO <sup>X</sup> SIP Call, Missouri's rule provides that compliance can be achieved by the installation and operation of low-NO <sup>X</sup> burners or mid-kiln firing or by alternative measures that are all designed to achieve the 30 percent cost-effective reduction. 3. What Are the Requirements of the Large Stationary Internal Combustion Rule? Missouri adopted 10 CSR 10-6.390, “Control of NO <sup>X</sup> Emissions from Large Stationary Internal Combustion Engines.” The rule effectively adopts the NO <sup>X</sup> SIP Call's recommended approach of the establishment of emissions levels that obtain an 82 percent reduction from large natural gas-fired stationary IC engines and a 90 percent reduction from large diesel and dual fuel stationary IC engines found in the NO <sup>X</sup> SIP Call region of the eastern third of the state. Missouri determined that there are no eligible units that meet the applicability criteria of “large” by being rated equal to or greater than the applicable brake horsepower and emitting more than one ton per day of NO <sup>X</sup> . This finding differed from the initial inventory review that EPA conducted that identified one eligible unit. A more detailed discussion of this and other proposed changes to the inventory is provided under II(D)(2), “What changes did the State request to the NO <sup>X</sup> budget and are those changes approvable?”. D. How Does Missouri Address Its NO X SIP Call Budget? 1. What NO <sup>X</sup> Budget Did EPA Determine for the State? Missouri's budget for the NO <sup>X</sup> SIP Call was contained in the Phase II rulemaking in April 2004. The purpose of providing a budget was to offer the states a choice of which mix of measures to adopt in order to meet the aggregate amount of required NO <sup>X</sup> emissions reduction identified by EPA as being available for removal by highly cost-effective measures. EPA based all state budgets on its determination of which measures are highly cost-effective for upwind states to implement. However, the states have flexibility to control other source categories outside of EPA's recommended approach of controlling large EGUs, large non-EGUs, cement kilns, and large IC engines that were utilized to determine the size of the 2007 ozone-season budgets. Based on EPA's approach the NO <sup>X</sup> SIP Call 2007 budget for the eastern one-third of Missouri is 61,406 tons per ozone season and represents the sum of EGU, Non-EGU Point, Area, Off-Road and Mobile source emissions. 2. What Changes Did the State Request to the NO <sup>X</sup> Budget and Are Those Changes Approvable? The State has proposed changes to the inventory that affect the budget demonstration. In its demonstration the state provides documentation that due to errors in the NO <sup>X</sup> SIP Call emissions inventory, EPA inadvertently misidentified applicable units that led to a miscalculation in the final emissions budget. EPA is proposing to approve the necessary changes to correct the inventory and to provide clarification on which sources are affected. All modifications to the inventory and supporting information are provided for by Missouri as part of its budget demonstration document found in the docket for this rulemaking. The category of large industrial boilers has a number of corrections. In EPA's inventory two units were incorrectly classified as industrial boilers, and three units were wrongly identified as having a maximum design heat input exceeding 250 mmBtu/hr. Doe Run-Buick Resource Recovery Center (emission point 36) and River Cement Company (emission point 94) are process heating devices, and EPA agrees that they do not meet the criteria of the source type that EPA considered when identifying highly cost-effective controls for non-EGUs (including industrial boilers). Boilers at Ashley Street Station units 2 through 4 do not meet the size requirement of having a maximum design heat input exceeding 250 mmBtu/hr. These units have a maximum design heat input, as reported to the MDNR by the St. Louis Local Agency, of 108, 101, and 101 mmBtu/hr., respectively. Therefore, these units are not subject to the state's large industrial boiler rule described previously in this document. The large industrial boiler portion of Missouri's trading budget has been reduced to reflect the exclusion of these units from the category of large industrial boilers. 4 4 In addition, Missouri believes that the projected uncontrolled emissions for large EGUs (including large industrial boilers) in the fine grid portion of the state, and thus the projected controlled emissions for such units, are lower than the amounts originally stated by EPA in the NO <sup>X</sup> SIP Call. Missouri requests that the lower amounts be used. Under these circumstances, EPA proposes that these lower amounts be used and that the large non-EGU portion of the trading budget be 59 tons, rather than the larger amount originally stated by EPA. Missouri has requested and EPA proposes to approve modifications to the cement kiln inventory. One of these modifications includes the addition of Lone Star Industries, Inc., now referred to as Buzzi Unicem Cape. This facility was in operation during the 1995 and 1996 time frame and meets the applicability requirements of the state's rule. Also, EPA proposes to approve the state's request to remove emission point 30 at Continental Cement Company from the list of controlled units. EPA inadvertently included emission point 30 as a cement kiln. Continental Cement Company only has one kiln at this facility, and that kiln is correctly reported as emission point 32. For budget demonstration purposes, Missouri continues to include emission point 30 in the inventory as an uncontrolled unit. The state also has requested and EPA proposes to approve the modification of the base year emissions that were used to derive the 2007 budgeted emissions for the cement kiln class. This modification is necessary in order to correctly reflect a level of uncontrolled emissions in the base year inventory that were used to determine the reduction targets in 2007. The final EPA base year inventory contained actual emissions that were representative of controlled emissions for each kiln. Therefore, after applying growth estimates, the resulting application of a 30 percent cost-effective reduction created an overly strict emissions budget for the cement kiln class. In order to make the necessary correction, the state has submitted and EPA proposes to accept the use of the stack test data, throughput information, and related emissions calculations supplied by each individual kiln that were used to calculate the uncontrolled cement kiln emissions for 2007 provided for in the state's revised budget. Missouri has requested and EPA proposes to approve a correction to a unit (emission point 002) that was misidentified as a large IC engine in the EPA inventory. In the NO <sup>X</sup> SIP Call, EPA attempted to identify large IC units as those that emitted on average greater than one ton per ozone season day. EPA identified DePaul Health Center in St. Louis as a large source based on data in the EPA inventory that indicated emissions of 335 tons per ozone season in the year 1995. However, emissions inventory information provided by the state shows that the actual emissions in 1995 from this unit were less than one ton per ozone season. This facility has not emitted more than 25 tons of NO <sup>X</sup> in any year from 1994 to 2004. Because this unit emits less than one ton per ozone season day, EPA agrees that this source should be reclassified from an affected large source to a non-affected source in the inventory and that this source is not subject to the state's IC engine rule. 3. How Does Missouri Demonstrate That It Is Meeting the Budget? As explained above and in more detail in the NO <sup>X</sup> SIP Call, the NO <sup>X</sup> SIP Call requires that states revise their SIPs to assure that sources in the state reduce their NO <sup>X</sup> emissions sufficiently to eliminate the amounts of NO <sup>X</sup> emissions that contribute significantly to ozone nonattainment, or that interfere with maintenance, downwind. The amount of NO <sup>X</sup> emissions reductions required is the amount of emissions reductions that would be achieved by applying available, highly cost-effective controls to large EGUs, large non-EGUs, large stationary IC engines, and cement kilns. However, EPA structured the rule to give the upwind states a choice of which mix of measures to adopt in order to eliminate the significant amount of NO <sup>X</sup> emissions. To this end, EPA developed an emissions budget that was based on the aforementioned application of highly cost-effective controls. The emissions budget represents the amount of NO <sup>X</sup> emissions remaining after the state prohibits the significant amount. To demonstrate compliance with the NO <sup>X</sup> SIP Call, a state must adopt and implement control measures that are projected to achieve the emissions reductions that would be equal to or greater than those predicted to be achieved by EPA's recommended approach. Missouri has provided a full budget demonstration that accounts for all of the inventory modifications EPA proposes to approve today. All of the necessary changes described above led to a change in the overall emissions budget. The new budget represents the predicted emissions in 2007 that are reflective of the state's adoption of cost-effective measures recommended by EPA. EPA proposes to accept a new budget of 60,235 tons of NO <sup>X</sup> per ozone season for the NO <sup>X</sup> SIP Call affected area of the eastern one-third of Missouri. Table II provides a breakdown of each NO <sup>X</sup> category after all corrections have been made. With the exception of the trading portion of the budget that includes large EGUs and large non-EGUs, the remainder of the source categories are not required to remain within the mass emission caps described herein. Rather, the NO <sup>X</sup> SIP Call budgets are an accounting mechanism for ensuring that the upwind states have adopted and implemented control measures that prohibit the significant amount of NO <sup>X</sup> emissions targeted under CAA 110(a)(2)(D)(i)(I) as implemented by the NO <sup>X</sup> SIP Call. Table II.—Corrected NO <sup>X</sup> Budget for Missouri Source category 2007 budget emissions
(tpos)Large EGUs (>25 MW) 13,400 Other EGUs 5 241 Other non-EGUs 5,903 Large non-EGUs (including large industrial boilers) (>250 MMBtu) 59 Cement Kilns 7,483 Area 2,199 On-Road Mobile 21,318 Off-Road Mobile 9,632 Total 60,235 As elaborated below with regard to large EGUs and large non-EGUs, EPA believes that Missouri has demonstrated compliance with the budget demonstration, and thus the NO <sup>X</sup> SIP Call, by adopting control measures that are modeled after EPA's recommended approach for controlling large EGUs, large non-EGUs, large IC engines, and cement kilns, and that implementation of these rules will achieve the emissions reductions necessary to eliminate the “significant contribution” to downwind ozone nonattainment identified under CAA 110(a)(2)(D)(i)(I) as implemented by the NO <sup>X</sup> SIP Call. 5 The summary table in Missouri's budget demonstration excluded the emissions figure for small EGUs, which was included in Missouri's supporting documentation. EPA proposes to include this figure and to make a parallel increase in the total budget figure for Missouri. As discussed above, under EPA's model trading program for large EGUs and large non-EGUs, the size criteria for determining the applicability of the trading program are based on a generator's “nameplate capacity” for EGUs and a unit's “maximum design heat input” for non-EGUs (such as industrial boilers), which parameters are determined on a one-time basis as of initial installation by the manufacturer. The owner of one of the large industrial boilers has informally, apart from this rulemaking, raised an issue with respect to whether sources could be “derated” by physically restricting heat input, in order to be exempt from the Missouri rule as it relates to that source category. For the reasons stated above, and because this source category is included in the budget demonstration, EPA does not believe that sources may be “derated” to avoid applicability of the rule. Exempting large industrial boilers from the rule would require a revision to the rule and a revision to the budget demonstration. If large non-EGUs ( *e.g.* , large industrial boilers) were able to “derate” themselves out of the trading program and did so, then the Missouri state plan would not be achieving emissions reductions from the “derating” units and would have to instead get, from other NO <sup>X</sup> sources in the fine grid portion of the state, the reductions projected to be achieved by these units. EPA also notes the NO <sup>X</sup> SIP Call requires that, to the extent a state chooses to participate in the NO <sup>X</sup> Budget Trading Program administered by EPA, the applicability provisions of the state's trading rule must cover at least the “core” source categories set forth in the applicability provisions of the model trading rule, *i.e.* , large EGUs and large non-EGUs. Missouri's trading rule does not expressly cover the entire category of large non-EGUs and instead addresses only large industrial boilers, which are the only existing large non-EGUs in the state. In order for Missouri to participate in the EPA-administered trading program, the applicability provisions of Missouri's rule should apply to all large non-EGUs, and not just large industrial boilers. For several reasons, EPA is proposing to approve Missouri's rule despite the omission. First, Missouri recognizes this deficiency and has informed EPA that the state intended that the trading rule cover all large non-EGUs and will act to ensure that this intent is realized. Missouri stated that, while there are no existing large industrial combustion turbines or large industrial combined cycle systems in Missouri, it will revise the applicability of its trading rule to cover explicitly all large non-EGUs. Missouri also stated that in the meantime the state will ensure, through its permitting process, that any future large fossil-fuel-fired industrial combustion turbines and large fossil-fuel-fired industrial combined cycle systems will be subject to the requirements of Missouri's trading rule. Second, EPA also considered that Missouri's program will end after the 2008 ozone season because the CAIR provides that, when EPA begins to administer the CAIR NO <sup>X</sup> ozone season trading program in 2009, EPA will no longer administer the NO <sup>X</sup> Budget Trading Program. Because of the lead time necessary to permit and construct a new large industrial combustion turbine or combined cycle system, EPA believes that it is unlikely that there will be any such new units before 2009. Under these circumstances and in light of Missouri's statements, EPA is proposing to approve Missouri's rule. Finally, EPA notes that, after EPA stops administering the NO <sup>X</sup> Budget Trading Program, Missouri will need to revise its SIP to demonstrate that it is adopting control measures that will achieve the reductions attributed in Missouri's current trading rule to large industrial boilers (or in a revised Missouri trading rule to large non-EGUs). Under CAIR and the CAIR Federal Implementation Plan (FIP), one available option will be for Missouri to include, in the CAIR NO <sup>X</sup> ozone season trading program, all large non-EGUs covered by the trading program under the NO <sup>X</sup> SIP Call. If Missouri takes this option of expanding the applicability of the CAIR NO <sup>X</sup> ozone season trading program to include any large non-EGUs in the fine grid portion of Missouri, EPA expects that Missouri will include in the CAIR program all existing and new large non-EGUs (not just existing and new large industrial boilers) in that portion of the state. This will have the practical effect of ensuring that any new large industrial combustion turbines and combined cycle systems in the fine grid portion of Missouri will be subject to Missouri's large non-EGU cap consistent with the NO <sup>X</sup> SIP Call. In addition, if Missouri chooses not to take this option for achieving the NO <sup>X</sup> SIP Call emission reductions currently attributed to large industrial boilers, EPA expects that Missouri will adopt other control measures that will achieve these reductions consistent with NO <sup>X</sup> SIP Call requirements. E. What Guidance Did EPA Use To Evaluate Missouri's NO X Control Program? EPA evaluated Missouri's NO <sup>X</sup> SIP Call submittal using the documents in EPA's “NO <sup>X</sup> SIP Call Checklist” (the checklist), issued on April 9, 1999. The checklist reflects the requirements of the NO <sup>X</sup> SIP Call set forth in 40 CFR 51.121 and 51.122. The checklist outlines the criteria for determining the completeness and approvability of Missouri's submittal. As noted in the checklist, the key elements of an approvable submittal under the NO <sup>X</sup> SIP Call are: A budget demonstration; enforceable measures for control; legal authority to implement and enforce the control measures; compliance dates and schedules; monitoring, recordkeeping, and emissions reporting; and elements that apply to states that choose to adopt an emissions trading rule in response to the NO <sup>X</sup> SIP Call. The checklist can be found in the docket. As described above, the final NO <sup>X</sup> SIP Call rule included a model trading program ( *See* 40 CFR part 96). EPA used the model rule to evaluate rule 10 CSR 10-6.360. Additionally, EPA used the October 1998 final NO <sup>X</sup> SIP Call rulemaking notice and subsequent technical amendments, the October 1998 proposed Federal Implementation Plan, and the Phase II NO <sup>X</sup> SIP Call rulemaking notice of April 2004 to evaluate the state's submittal. The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, EPA believes that the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. III. Proposed Action EPA has reviewed Missouri's November 3, 2005, SIP submittal using the NO <sup>X</sup> SIP Call rulemaking notices and checklist. EPA has reviewed Missouri's control measures and projected reductions and believes they are approvable. Therefore, EPA is proposing to approve Missouri's rules 10 CSR 10-6.360, 10 CSR 10-6.380, 10 CSR 10-6.390 and Missouri's budget demonstration and SIP narrative at this time. EPA's proposed approval is premised on Missouri's commitment to include any large industrial combustion turbines and large industrial combined cycle systems in the Missouri trading rule. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: May 23, 2006. Betty J. Berry, Acting Regional Administrator, Region 7. [FR Doc. E6-8661 Filed 6-2-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Transit Administration 49 CFR Part 655 [Docket No. FTA-2006-24592] RIN 2132-AA86 Controlled Substances and Alcohol Misuse Testing AGENCY: Federal Transit Administration (FTA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: The Federal Transit Administration
(FTA)proposes to eliminate duplicative requirements for safety-sensitive employees of some public
(mass)transportation systems, who are subject to the alcohol and controlled substances (D&A) testing requirements of both FTA and the United States Coast Guard (USCG), or FTA and the Federal Motor Carriers Safety Administration (FMCSA). Recipients could concurrently comply with FTA's D&A testing program as they comply with the testing requirements of the USCG or FMCSA. However, FTA's post-accident and reasonable suspicion testing requirements would continue to apply when accidents occur while performing public
(mass)transportation activities. DATES: Comments must be received on or before August 4, 2006. Late filed comments will be considered to the extent practicable. ADDRESSES: *Written Comments:* Submit written comments to the Docket Management System, U.S. Department of Transportation, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. You may submit comments identified by the docket number (FTA-2006-24592) by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the online instructions for submitting comments. • Web Site: *http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • Fax: 1-202-493-2478. • Hand Delivery: To the Docket Management System, Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number
(RIN)for this notice. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. FOR FURTHER INFORMATION CONTACT: For program issues, Gerald Powers, Office of Safety and Security,
(202)366-1080 (telephone);
(202)366-7951 (fax); or *Gerald.Powers@dot.gov* (e-mail). For legal issues, Bruce Walker, Office of the Chief Counsel,
(202)366-4011 (telephone);
(202)366-3809 (fax); or *Bruce.Walker@dot.gov* (e-mail). SUPPLEMENTARY INFORMATION: I. Background Authority for This Proposal Section 3030 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005), provides the Secretary of the Department of Transportation
(DOT)discretion to determine whether a public transportation provider is adequately covered for drug and alcohol (D&A) testing purposes, by the D&A alcohol testing requirements of the USCG or another DOT agency. Previous Action by FMSCA and FTA FMCSA published a **Federal Register** notice on August 17, 2001 which eliminated duplicative D&A testing requirements for holders of Commercial Drivers Licenses
(CDLs)who provide public transportation services. These motor carrier operators are subject to FMCSA regulations; however, because they receive Federal funding for public transportation activities, they are also subject to FTA's D&A regulation. FMSCA stated that its testing requirements do not apply to transit employers who are required to comply with FTA testing requirements ( *see* 49 CFR 382.103(d)). However, FMCSA made a policy determination that CDL holders would remain subject to its rule for specific violations; hence, the potential for duplicative oversight may continue to exist. Subsequently, FTA undertook administrative steps to eliminate duplicative testing requirements for ferry operators by revising its policy for these operators with its **Federal Register** notice dated April 22, 2002. Before the notice, ferry operators receiving Federal transit funds were required to comply with the testing requirements of both FTA and USCG. FTA consulted with the USCG and both agencies agreed that ferries were primarily regulated by the USCG. FTA determined that for safety purposes, it was sufficient for these operators to comply with USCG's D&A testing requirements. However, because the USCG does not require random alcohol testing, it was determined the operators would remain subject to FTA's random alcohol testing requirements. FTA now proposes to adopt a regulatory provision that parallels FMCSA's rule for motor carrier operators who receive Federal transmit funding and to codify its previously published policy guidance for ferry operators. FTA seeks comments on this proposed rule which would allow safety-sensitive employers to concurrently comply with FTA testing requirements when they comply with FMCSA or USCG D&A requirements. II. Overview and General Discussion of the Proposed Rule A. This notice of proposed rulemaking
(NPRM)would provide regulatory relief to public transportation providers by eliminating duplicative testing requirements. The NPRM proposes to amend the applicability section of the FTA's D&A regulation at 49 CFR 655.3 by revising the introductory text of paragraph
(a)and adding new paragraphs (c), (d), and (e). Specifically, FTA proposes that a private or nonprofit motor-carrier employer, with employees who perform safety-sensitive functions regulated by both FTA and FMCSA, may determine whether or not a majority (more than 50 percent) of these employees are regulated by FMSCA. If so, the employer may opt to comply with the FMSCA testing requirements only for that class of employees. However, for safety purposes, FTA's post-accident requirements, section 655.44, would apply when an accident, as defined in section 655.4 occurs in the performance of public
(mass)transportation activities. In exercising this option, an employer would also have discretion in determining the timeframe and the manner in which the employees' safety-sensitive functions are apportioned (i.e., daily, monthly, or annually). For audit purposes this determination would be made annually, at the beginning of the calendar year, and remain applicable throughout that calendar year. We note that FMSCA testing regulations do not apply to transit maintenance employees. Therefore, maintenance workers servicing transit vehicles would remain subject to 49 CFR part 655. B. The USCG has primary oversight over maritime operations, including ferryboats, whereas FTA's regulatory oversight stems from the fact that it provides Federal transit funding to a limited number of ferry operations. Therefore, FTA proposes as ferry operators comply with the D&A testing requirements of the USCG, they be deemed in concurrent compliance with FTA's D&A regulation. USCG and FTA testing requirements are substantially similar. FTA believes that the USCG regulatory scheme sufficiently addresses transit safety concerns; therefore, it would be prudent for ferry operators to comply with only one set of Federal testing requirements. However, since USCG regulations do not require random alcohol testing, for safety purposes, ferry operators would remain subject to FTA's random alcohol testing requirements at 49 CFR 655.45. FTA remains responsible for ensuring compliance for recipients of public
(mass)transportation. Therefore, to facilitate oversight, the administrative requirements of subpart G, H, and I of 49 CFR part 655 would continue to apply to ferry operators and motor carrier operators receiving Federal public
(mass)transportation funds. E.O. 12866, Regulatory Planning and Review Under Executive Order 12866, 58 FR 51735, October 4, 1993, the Department of Transportation
(DOT)must examine whether this proposed rule is a “significant regulatory action.” A significant regulatory action is subject to Office of Management and Budget
(OMB)review and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $120 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)creates a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This proposed rule provides administrative relief from current regulatory alcohol misuse and controlled substance testing requirements for public transportation providers; therefore, FTA believes this proposed rule is a nonsignificant regulatory action under section 3(f) of Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget. This proposed rule is not expected to impose any new compliance costs. The only entities affected by this proposed rule are those public transportation providers that are currently subject to the alcohol misuse and controlled substance testing regimen. These requirements, if adopted will relieve these entities of duplicative Federal testing requirements. There would be no significant changes to the existing program with the publication of this rulemaking. Further, this discretionary rulemaking is provided for under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: a Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005). Regulatory Flexibility Act Section 603 of the Regulatory Flexibility Act requires a Federal agency to conduct an initial regulatory flexibility analysis describing impacts to small entities when developing a Notice of Proposed Rulemaking in accordance with 5 U.S.C. 553. Currently, approximately 3000 employers are subject to FTA D&A testing requirements. Of this number, a small percentage is also subject to the D&A testing requirements of FMSCA or the USCG. This proposed rule would have the effect of eliminating the administrative burden on those few employers who are subject to multiple testing requirements by permitting them to comply with the testing requirements of only one Federal agency. The lessening of this administrative burden on these affected entities will result in no significant economic impact to these employers. This proposed rule will not impose any additional costs on small entities that are subject to alcohol misuse and controlled substance testing requirements. As noted above, certain public transportation providers who may be subject to the testing requirements of more than one DOT agency or the USCG will be provided statutory relief by complying with the testing requirements of only one Federal agency. FTA certifies that no further analysis is necessary because the proposed rule will not have a significant economic impact on a substantial number of small entities. FTA invites public comment on this analysis. Paperwork Reduction Act This proposed rule does not contain a collection of information that is subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Under the provisions of the Paperwork Reduction Act, FTA may not conduct or sponsor, and a person is not required to respond to or may not be penalized for failing to comply with, a collection of information unless it displays a currently valid OMB control number. Executive Order 13132, Federalism Executive Order 13132 sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have Federalism implications, that is, regulations that have substantial direct effects on the States, or on the distribution of power and responsibilities among the various levels of government. Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action. FTA has reviewed this proposed rule under the threshold criteria of Executive Order 13132 on Federalism and certifies that the rule would not have Federalism implications as defined by the Executive Order. The rule provides for relief from duplicative Federal alcohol misuse and controlled substance testing requirements for certain public transportation providers. The rule would not significantly affect the rights, roles, and responsibilities of States, and would involve no preemption of State law, nor would it limit State policymaking discretion. Unfunded Mandates Reform Act The proposed rule would not be an unfunded Federal mandate within the meaning of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and any enforceable duties that FTA would impose are a condition of Federal assistance or a duty arising from participation in a voluntary Federal program. List of Subjects in 49 CFR Part 655 Alcohol testing, Drug testing, Grant programs—Transportation, Mass transportation, Reporting and recordkeeping requirements, Safety, transit, and transportation. For the reasons set forth in the preamble, the Federal Transit Administration proposes to amend part 655 of title 49 of the Code of Federal Regulations as follows: PART 655—PREVENTION OF ALCOHOL MISUSE AND PROHIBITED DRUG USE IN TRANSIT OPERATIONS 1. The authority citation for part 655 continues to read as follows: Authority: 49 U.S.C. 5331 (as amended); 49 CFR 1.51. 2. Amend § 655.3 to revise the introductory text of paragraph
(a)and to add paragraphs (c),
(d)and
(e)to read as follows: § 655.3 Applicability.
(a)Except as specifically excluded in paragraphs (b), (c), and
(d)of this section, this part applies to:
(b)* * *
(c)A recipient operating a ferry regulated by the United States Coast Guard
(USCG)and receiving Federal funding for public
(mass)transportation activities shall follow 46 CFR parts 4 and 16, 33 CFR part 95. However, section 655.45 of this part is applicable for random alcohol testing.
(d)A private or nonprofit employer with safety-sensitive employees, per both this part and 49 CFR part 382, may annually determine whether or not a majority (more than 50 percent) of these employees are regulated by part 382. If so, the employer may comply with the drug and alcohol testing requirements of part 382 for that calendar year. However, reasonable suspicion and post-accident testing per this part (§§ 655.43 and 655.44) remain applicable for operators when performing public
(mass)transportation activities. In addition, the provisions of this part remain applicable for those safety-sensitive employees who perform maintenance on vehicles or equipment used for public
(mass)transportation service.
(e)A recipient's failure to comply with the alcohol misuse and controlled substances testing requirements of the USCG or the Federal Motor Carrier Safety Administration, as described in paragraphs
(c)and
(d)above, may result in a finding of noncompliance by FTA.
(1)A finding of noncompliance may cause a recipient to become ineligible for Federal public transportation funding.
(2)Subpart G of this part is applicable to a covered employee:
(i)With a verified positive drug test result,
(ii)who has a confirmed alcohol test result of 0.04 or greater, or
(iii)who refuses to submit to a test.
(3)Recipients remain subject to subparts H and I of this part. Issued on: May 30, 2006. Sandra K. Bushue, Deputy Administrator. [FR Doc. 06-5073 Filed 6-2-06; 8:45 am]
Connectionstraces to 43
Traces to 43 documents
CFR
27 references not yet in our index
  • 40 CFR 61
  • 40 CFR 70.11(a)(3)(iii)
  • 40 CFR 60
  • 40 CFR 63
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 63 Stat. 390
  • 40 USC 486(c)
  • Pub. L. 108-447
  • Pub. L. 103-465
  • 37 CFR 1.494
  • 37 CFR 1
  • 37 CFR 41
  • 40 CFR 52
  • 213 F.3d 663
  • 40 CFR 96
  • 40 CFR 75
  • 40 CFR 51
  • 49 CFR 655
  • Pub. L. 109-59
  • 49 CFR 382.103(d)
  • 49 CFR 655.3
  • 49 CFR 655.45
  • 44 USC 3501-3520
  • 49 CFR 1.51
  • 33 CFR 95
  • 49 CFR 382
Citation graph
cites case law
Rules and Regulations
Final rule
C.F.R.§ 63.91
C.F.R.§ 61.96
C.F.R.§ 61.92
C.F.R.§ 61.14
C.F.R.§ 61.13
C.F.R.§ 63.90
C.F.R.§ 61.04
U.S.C.§ 1151
Fed. Reg.Notices
F. App'x213 F.3d 663
Cite40 CFR 61
Cite40 CFR 70.11(a)(3)(iii)
Cites 70 · showing 12Cited by 0 across 0 sources
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