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Code · REGISTER · 2006-08-28 · Federal Motor Carrier Safety Administration (FMCSA), DOT · Rules and Regulations

Rules and Regulations. Final rule

20,479 words·~93 min read·/register/2006/08/28/06-7198

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

BILLING CODE 1505-01-D DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR parts 350, 390, and 392 [Docket No. FMCSA-2002-13015] RIN 2126-AA78 Enforcement of Operating Authority Requirements AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA or the Agency) adopts as final, with minor changes, its interim regulations as published in the **Federal Register** in August 2002.
Since that time, enforcement officials have discovered many carriers operating without the required operating authority or beyond the scope of their authority. By making minor changes to the rule, FMCSA facilitates enforcement of these regulatory requirements by the agency's employees and its State counterparts. Clarifying that operating authority means registration as required by statute assists State enforcement officers in identifying the correct violation and not confusing operating authority with other registration requirements.
DATES: *Effective Date:* September 27, 2006. *Petitions for Reconsideration* must be received by the Agency not later than September 27, 2006. FOR FURTHER INFORMATION CONTACT: David Mancl, phone
(202)493-0442, e-mail *david.mancl@dot.gov* , Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. *Docket:* For access to the docket to read background documents or comments received on the interim final regulations, including all correspondence referenced in this document, go to *http://dms.dot.gov* at any time or to 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., e.t., Monday through Friday, except Federal holidays. *Privacy Act:* Anyone may search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or of the person signing the comment, if submitted on behalf of an association, business, labor union, or other entity). You may review DOT's complete Privacy Act Statement in the **Federal Register** (65 FR 19477, April 11, 2000). This statement is also available at *http://dms.dot.gov.* SUPPLEMENTARY INFORMATION: Legal Basis for the Rulemaking Section 205 of the Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L. 106-159, 113 Stat. 1748] amended 49 U.S.C. 13902 by authorizing the Secretary of Transportation to place out of service vehicles operated by motor carriers that fail to comply with registration requirements under 49 U.S.C. 13902. Paragraph (e)(1) of section 13902 reads as follows:
(e)Penalties for failure to comply with registration requirements.—In addition to other penalties available under law, motor carriers that fail to register their operations as required by this section or that operate beyond the scope of their registrations may be subject to the following penalties:
(1)Out-of-service orders.—If, upon inspection or investigation, the Secretary determines that a motor vehicle providing transportation requiring registration under this section is operating without a registration or beyond the scope of its registration, the Secretary may order the vehicle out-of-service. Subsequent to the issuance of the out-of-service order, the Secretary shall provide an opportunity for review in accordance with section 554 of title 5, United States Code; except that such review shall occur not later than 10 days after issuance of such order. Under 49 CFR 1.73(a)(5), the Secretary's authority to carry out the functions relating to section 13902 registration requirements is delegated to the FMCSA Administrator. On August 28, 2002 (67 FR 55162), FMCSA published an interim final rule
(IFR)implementing section 205 by requiring that a vehicle providing transportation requiring registration under 49 U.S.C. 13902 be ordered out of service if determined to be operating without registration or beyond the scope of the carrier's registration. Accordingly, the IFR and this final rule are authorized by section 13902(e). Background The IFR added a new section (392.9a) to 49 CFR part 392 to prohibit a commercial motor vehicle
(CMV)providing transportation requiring registration under 49 U.S.C. 13902 from operating unless the carrier complies with the registration requirements. For example, a motor carrier fails to obtain registration pursuant to section 13902 but is later discovered hauling appliances in a CMV for a department store from one State to another. Under 49 CFR 392.9a(b), the vehicle would be placed out of service and the carrier may be subject to additional penalties under 49 U.S.C. 14901. Under 49 CFR 392.9a(c), the carrier would be entitled to a hearing to review the out-of-service order within 10 days of the issuance of the order. In addition, the IFR amended the reference to registration requirements enforced by the States in 49 CFR 350.201(t)(1) to add 49 CFR 392.9a. The IFR became effective September 27, 2002 and closed a loophole that could have been used to circumvent the Federal Motor Carrier Safety Regulations (FMCSRs). Before the issuance of the IFR, motor carriers who operated without registration would be cited for a violation during a roadside inspection and then be allowed to continue operating. The States are currently required to enforce these registration requirements as a condition for receiving Motor Carrier Safety Assistance Program (MCSAP) funds. States had until September 27, 2005 to adopt the new regulations. To date, all States have adopted 49 CFR 392.9a. The States, acting through the Commercial Vehicle Safety Alliance (CVSA), have amended or revised their enforcement tolerances (the North American Standard Out-of-Service Criteria) to include a new part for registration enforcement to ensure uniformity in implementing section 205 of MCSIA. From the September 2002 effective date through May 2004, FMCSA completed 840 enforcement reports citing violations of 49 CFR 392.9a. Out of 4,405 violations discovered, 1,315 counts were asserted in Notices of Claim. FMCSA settled 1,045 of these counts with penalties totaling $1,109,648.00. Revisions to the IFR Since implementation of the IFR, operational experience with 49 CFR 392.9a has been positive, although a few problems have been identified. Most issues that have arisen in implementing the IFR could be resolved through policy directives rather than regulatory change but a few issues are best resolved by minor revisions in the rule text. 1. The use of the word “registration” has been inconsistently interpreted by Federal and State enforcement personnel because the term is used in several different contexts at the Federal and State levels. Enforcement personnel have mistakenly cited other registration violations, such as vehicle registration and failure to submit the MCS-150, under 49 CFR 392.9a. FMCSA has revised the rule to make it easier to understand and has replaced the term “registration” with the term “operating authority” in 49 CFR 350.201(t) and 49 CFR 392.9a. The final rule amends the definitions in 49 CFR 390.5 to include the term “operating authority.” This definition clarifies that operating authority means registration required under 49 U.S.C. 13902. 2. Currently, the definition of “out-of-service order” in 49 CFR 390.5 includes references to other parts of the FMCSRs that specifically call for a driver or vehicle to be placed out of service. Adding 49 CFR 392.9a to the definition of out-of-service order in 49 CFR 390.5 updates this definition to reflect FMCSA's current out-of-service rules. 3. Since the effective date of the IFR, numerous violations of 49 CFR 392.9a have been discovered. To strengthen the quality of data FMCSA collects in the Motor Carrier Management Information System (MCMIS), it is more effective to list the two violations separately rather than listing both violations in the same paragraph. The final rule lists operating without authority as 49 CFR 392.9a(a)(1) and operating beyond the scope of authority as 49 CFR 392.9a(a)(2). This clarifies which violation is being cited in enforcement actions. Discussion of Public Comments FMCSA received 18 public comments on the IFR from 17 commenters. Commenting were seven State Police and State DOTs—Iowa DOT (Iowa), Oregon DOT (Oregon), Idaho State Police (Idaho), Georgia Department of Motor Vehicle Safety (Georgia), New York State DOT and New York Division of State Police (New York), California Highway Patrol (California), and Missouri State Highway Patrol (Missouri); four trade associations—National School Transportation Association (NSTA), Health and Personal Care Logistics Conference (H&PCLC), Pennsylvania Farm Bureau (PA Farm Bureau), and American Bus Association (ABA); one North American enforcement association—Commercial Vehicle Safety Alliance; three motor carriers—Wertz Motor Carriers (Wertz), United Parcel Service (UPS), and Adirondack Transit Lines, Inc. (Adirondack); one individual—Ken Carr; and Advocates for Highway and Auto Safety (Advocates). Of the 18 comments, four (from Iowa, Wertz, Advocates, and Adirondack) supported the IFR and the resulting enforcement actions. One comment (from CVSA) suggested that the term “out-of-service” be changed to “cease operations” in several locations. This comment was addressed separately in FMCSA's disposition of a September 4, 2003 petition submitted by CVSA. In its petition, CVSA requested amending the FMCSRs by changing the term “out-of-service” to “cease operations.” CVSA also proposed adding a definition for the term “cease operations order” to 49 CFR 390.5. FMCSA was not able to substantiate CVSA's concern regarding lack of uniform enforcement and concluded CVSA's petition did not set forth sufficient safety or enforcement concerns to warrant initiation of a rulemaking proceeding. Accordingly, the petition was denied. The other comments are discussed below together with FMCSA's responses on the issues raised. Implementation & Training Several comments concerned training materials and training sessions for employees and the databases that will be used for roadside inquiries. Another concern with implementation is the requirement that the States adopt this rule and implement it as part of their standard roadside inspection. As the Missouri State Highway Patrol stated, “This places the entire enforcement effort on the shoulders of the state MCSAP agencies, agencies that do not process registration forms nor grant operating authority.” CVSA stated that most jurisdictions do not have the legislative authority to enforce the requirements. Commenters pointed out that to avoid issuing erroneous out-of-service orders for administrative violations, enforcement personnel must base such orders on accurate and real-time registration information. Those commenters suggested that currently this information must be obtained from several databases, which are not all sufficiently accurate and consistent even if they could be made available to enforcement personnel at any time. Several States, including Idaho, Georgia, and New York, have questioned the reliability of FMCSA's database to provide quality information in a timely manner. Comments have also arisen concerning the need for training of inspectors to help them identify when a carrier is required to have operating authority. Idaho suggested that States will need time to phase in the requirements because of training issues. New York argued that FMCSA will need to provide training to States. *FMCSA Response:* In November 2002, FMCSA provided all of its field offices with procedures for enforcing the operating authority requirements during roadside inspections. FMCSA recognizes the necessity of timely and accurate data. FMCSA's Licensing and Insurance (L&I) Web site contains “real time” data that identifies the most current information available for each motor carrier. This site, which is the only Web site that must be checked to verify compliance, is accessible 24 hours a day. If officers and inspectors do not have Internet access during roadside inspections, a toll-free number (1-800-832-5660) is available from 7:15 a.m. to 4:15 p.m., e.t., Monday through Friday to access the same current information that is on the Web site. FMCSA is currently developing training materials and incorporating the requirements for operating authority into existing courses to help the roadside officer or inspector identify when operating authority is required. This training will also address which operating authority violations discovered result in placing the vehicle out of service. To ensure proper enforcement, FMCSA will continually review policies and procedures to identify the training needs necessary to fully implement and enforce this rule. FMCSA and the States currently identify out-of-service violations through the FMCSRs and the CVSA's North American Standard Out-of-Service Criteria (CVSA Criteria). The FMCSRs require compliance with all applicable requirements at all times. The FMCSRs are the real out-of-service criteria. The CVSA Criteria represent enforcement tolerances and ensure that the decision by Federal and State personnel to place a vehicle out of service is not an arbitrary action based solely on the discretion of the inspector. The use of the CVSA Criteria by State officials is covered through either a documented policy or State laws and regulations. This process will continue. To date, all States have adopted and are enforcing the provisions of the rule. Out-of-Service Orders Some commenters argued that FMCSA has inappropriately determined that out-of-service orders be mandatory for any registration violation, even administrative violations that are not based on safety concerns. Ken Carr stated, “I question the proposition that failure to register or operating beyond the scope of registration rises to that level.” Given their limited resources, States are concerned that the time enforcement personnel spend on placing these vehicles out of service could be better spent on getting hazardous vehicles off the road. As Georgia pointed out, “* * * the time spent by enforcement personnel to run down the information takes officers away from time that could be spent doing more safety inspections.” Commenters, including Oregon, H&PCLC, ABA, Missouri, and New York, also stated that operating authority violations are not an imminent hazard and CMVs should not be placed out of service during a roadside inspection. They recommend that these violations be noted on the inspection report and forwarded to the local FMCSA office. The local FMCSA office would make contact with the company and place the entire fleet out of service if the investigation confirmed the violation. Once the carrier's operation has been placed out of service, any of the carrier's vehicles discovered to be operating could be placed out of service by the roadside officer or inspector. *FMCSA Response:* Section 205 of MCSIA amended 49 U.S.C. 13902 by creating section (e), which requires the Agency to assess penalties for failure to comply with the motor carrier registration requirements under that statute. Specifically, if a motor carrier operates without the required authority or operates beyond the scope of its authority, the carrier would be subject to certain enforcement penalties. On August 28, 2002, FMCSA amended its regulations to require that a motor carrier subject to the registration requirements in 49 U.S.C. 13902 may not operate a CMV in interstate commerce unless it has registered with the Agency and been granted the required authority. In order to restrict commercial highway transportation to those entities having the appropriate operating authority and possessing adequate insurance, FMCSA specifically mandated placing out of service any driver and vehicle discovered to be operating without the required authority or beyond the scope of the carrier's authority. Prior to this requirement, unauthorized or improperly authorized drivers and vehicles could travel our Nation's highways unchecked. FMCSA believes this action—the placing of a vehicle out of service during a roadside inspection when the carrier operating that vehicle is operating without authority or beyond the scope of its authority—is necessary in light of the current heightened security environment. FMCSA further believes that this action ensures that all carriers are apprised of and compliant with the applicable FMCSRs, operate only within the scope of their authority, and operate safe vehicles within the United States. Given FMCSA's mission of ensuring safe transportation, it is incumbent upon the Agency to close this potential loophole. As further discussed under Rulemaking Analyses and Notices later in this rule, experience has taught FMCSA that carrier noncompliance with the operating authority requirements correlates with carrier noncompliance with the safety regulations. In response to the suggestion that FMCSA put the carrier's entire fleet out of service, 49 U.S.C. 13902(e)(1) states that if, upon inspection or investigation, the Secretary determines that a motor vehicle is found to be providing transportation without the required registration or beyond the scope of the carrier's registration, the Secretary may order the vehicle out of service. The statutory requirement at the roadside is vehicle-specific and it does not authorize FMCSA to place the carrier's entire fleet out of service. Exemptions From 49 U.S.C. 13902 Certain categories of CMV operations are exempted by 49 U.S.C. 13506 from the operating authority (registration) requirement of 49 U.S.C. 13902. NSTA requested clarification concerning the exemption at 49 U.S.C. 13506(a)(1) for “a motor vehicle transporting only school children and teachers to or from school.” NSTA noted that during the period from 1976 through 1984, the former Interstate Commerce Commission
(ICC)issued “rulings that established an interpretation of the exemption to include interstate transportation of students in school buses on trips that are directly connected with school-related activities and are sponsored and supervised by school authorities.” It requested FMCSA to support this interpretation and clarify that the exemption includes for-hire motor carriers transporting students to school-related activities across State lines. The PA Farm Bureau, while not requesting that agricultural-related commercial vehicle operations be exempted from section 13902, commented on the disproportionate burden an out-of-service order could place on certain agricultural operations, such as livestock hauling, transportation of perishable commodities, and agricultural-operation owners driving their own farm vehicles. The PA Farm Bureau requested that trucks licensed as farm vehicles under State law not be automatically placed out of service when found in violation of the registration requirement. *FMCSA Response:* In response to NSTA's request for clarification, FMCSA has not issued any interpretations contradicting those of the former ICC. FMCSA recodified, at 49 CFR 372.103, the former ICC rule implementing the exemption for motor vehicles employed solely in transporting school children and teachers to or from school. FMCSA does not require contractors providing interstate transportation of school children and teachers to or from school to obtain operating authority from the Agency. With regard to the PA Farm Bureau's comment, 49 CFR part 372, subpart A—Exemptions contains several provisions implementing 49 U.S.C. 13506. 49 CFR 372.115 includes a list of commodities that are not exempt under 49 U.S.C. 13506(a)(6). Under this statute, motor vehicles used in carrying ordinary livestock, fish, and manufactured agricultural commodities are exempt from the section 13902 operating authority requirements. Rulemaking Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures FMCSA has determined that this action is a non-significant regulatory action within the meaning of Executive Order 12866 and DOT regulatory policies and procedures (44 FR 11034, February 26, 1979). FMCSA's full Final Rule Regulatory Evaluation, explaining in detail the estimated cost impacts of the rulemaking, is in the docket. This Final Rule results in no changes to the Regulatory Evaluation of the IFR. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), requires Federal agencies to take small businesses' particular concerns into account when developing, writing, publicizing, promulgating, and enforcing regulations. FMCSA has prepared a Final Regulatory Flexibility Analysis
(FRFA)of this rule and has determined that this rule will not impose a significant economic impact on a substantial number of small entities. Using the Small Business Administration's criteria, FMCSA estimates that 75 to 80 percent of motor carriers are small. Thus, this rule could theoretically affect a large number of motor carriers. However, the rule does not impose any new requirement on these motor carriers. It merely increases the penalty for carriers operating without the required operating authority or beyond the scope of their authority. More details on our evaluation can be found in the FRFA in the docket. Executive Order 13132 (Federalism Assessment) This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999 (64 FR 43255, August 10, 1999). FMCSA has determined that this action does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. As we stated in the IFR (67 FR 55163), FMCSA administers a grant-in-aid program, MCSAP, as an incentive for State enforcement of motor carrier safety regulations. As a condition of participating in this program, States are required to adopt and enforce safety regulations compatible with the FMCSRs and the hazardous materials regulations. Section 207 of MCSIA required States, as a condition of receiving MCSAP funds, to cooperate in the enforcement of FMCSA's authority and financial responsibility requirements. In revising the agency's MCSAP regulations in March 2000 (65 FR 15102), FMCSA required the States to enforce the authority and financial responsibility requirements [49 CFR 350.201(t)]. The IFR clarified how the States are to implement their enforcement responsibilities by specifying that vehicles shall be placed out of service if discovered to be operated in violation of the authority requirements. The final rule makes no substantive changes to this requirement. The basic nature of MCSAP and the level of total funding for the program are not affected by these changes. Nothing in this document preempts any State law or regulation. Therefore, this rulemaking does not have sufficient Federalism implications to warrant consultation with State and local elected officials or their representative national organizations early in the process of developing this proposed regulation, or in the preparation of a federalism summary impact statement. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 1532) requires each agency to assess the effects of its regulatory actions on State, local, and tribal governments and the private sector. The act requires that any agency promulgating a final rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year must prepare a written statement incorporating various assessments, estimates, and descriptions that are delineated in the act. FMCSA uses a threshold value of $120.7 million, which is the value of 100 million 1995 dollars inflated to 2003 dollars. FMCSA has determined that this rulemaking will not have an impact of $120.7 million or more in 2003 dollars in any one year. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995
(PRA)(44 U.S.C. 3501 *et seq.* ), Federal agencies must determine whether requirements contained in rulemakings are subject to information collection provisions of the PRA and if they are, obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. FMCSA has determined that this regulation does not constitute an information collection within the scope or meaning of the PRA. National Environmental Policy Act The Agency analyzed this final rule for the purpose of the National Environmental Policy Act of 1969
(NEPA)[42 U.S.C. 4321 *et seq.* ] and determined under our environmental procedures Order 5610.1, published March 1, 2004 in the **Federal Register** (69 FR 9680), that this action is categorically excluded
(CE)under paragraphs 6.e, 6.f, and 6.g of the Order from further environmental documentation. These CEs relate to establishing regulations and actions taken pursuant to these regulations concerning the application for operating authority and certificates of registration, enforcement activities, and procedures that promote adoption and enforcement of State laws that are compatible with the FMCSRs. In addition, the Agency believes that the action includes no extraordinary circumstances that would have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or an environmental impact statement. We have also analyzed this proposed rule under the Clean Air Act (CAA), as amended section 176(c) [42 U.S.C. 7401 *et seq.* ], and implementing regulations promulgated by the Environmental Protection Agency. As stipulated in 40 CFR 93.153(c)(2), approval of this action is exempt from the CAA's General conformity requirement since it involves rulemaking activities. This action would not result in any emissions increase nor would it have any potential to result in emissions that are above the general conformity rule's *de minimis* emission threshold levels. Moreover, it is reasonably foreseeable that the rule would not increase total CMV mileage, change the routing of CMVs, change how CMVs operate, or change the CMV fleet-mix of motor carriers. This action merely clarifies terms and actions involved with the enforcement of operating authority. Executive Order 13045 (Protection of Children) This rule is not economically significant and does not concern an environmental risk to health or safety that would disproportionately affect children. The Agency has determined that this rule is not a “covered regulatory action” as defined under Executive Order 13045. First, this rule is not economically significant under Executive Order 12866 because FMCSA has determined that the changes in this rulemaking would not have an impact of $100 million or more in any one year. Second, the Agency has no reason to believe that the rule would result in an environmental health risk or safety risk that would disproportionately affect children. Executive Order 12630 (Taking of Private Property) This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Executive Order 12372 (Intergovernmental Review) The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program. Executive Order 13211 (Energy Supply, Distribution, or Use) We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. This action is not a significant energy action within the meaning of section 4(b) of the Executive Order because it is not economically significant and will not have a significant adverse effect on the supply, distribution, or use of energy. Executive Order 12988 (Civil Justice Reform) This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. List of Subjects 49 CFR Part 350 Grant programs—transportation, highway safety, motor carriers. 49 CFR Part 390 Highway safety, motor carriers. 49 CFR Part 392 Highway safety, motor carriers. Accordingly, FMCSA amends 49 CFR parts 350, 390, and 392 as follows: PART 350—COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM 1. The authority citation for 49 CFR part 350 continues to read as follows: Authority: 49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-31141, 31161, 31310-31311, 31502, and 49 CFR 1.73. 2. Amend 49 CFR 350.105 by adding a definition for *operating authority* in alphabetical order to read as follows: § 350.105 What definitions are used in this part? *Operating authority* means the registration required by 49 U.S.C. 13902, 49 CFR part 365, 49 CFR part 368, and 49 CFR 392.9a. 3. Amend 49 CFR 350.201 to revise paragraph
(t)to read as follows: § 350.201 What conditions must a State meet to qualify for Basic Program Funds? (t)(1) Enforce operating authority requirements under 49 U.S.C. 13902, 49 CFR part 365, 49 CFR part 368, and 49 CFR 392.9a by placing out of service a vehicle operated by a motor carrier without operating authority or beyond the scope of its operating authority.
(2)Enforce financial responsibility requirements under 49 U.S.C. 13906, 31138, 31139, and 49 CFR part 387. PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 4. The authority citation for 49 CFR part 390 continues to read as follows: Authority: 49 U.S.C. 508, 13301, 13902, 31133, 31136, 31502, 31504, and sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; sec. 217, Pub. L. 106-159, 113 Stat. 1748, 1767; and 49 CFR 1.73. 5. Add the definition of *operating authority* in alphabetical order and revise the definition of *out-of-service order* in 49 CFR 390.5 to read as follows: § 390.5 Definitions. Unless specifically defined elsewhere in this subchapter: *Operating authority* means the registration required by 49 U.S.C. 13902, 49 CFR part 365, 49 CFR part 368, and 49 CFR 392.9a. *Out-of-service order* means a declaration by an authorized enforcement officer of a Federal, State, Canadian, Mexican, or local jurisdiction that a driver, a commercial motor vehicle, or a motor carrier operation is out of service pursuant to 49 CFR 386.72, 392.5, 392.9a, 395.13, or 396.9, or compatible laws, or the North American Standard Out-of-Service Criteria. PART 392—DRIVING OF COMMERCIAL MOTOR VEHICLES 6. The authority citation for 49 CFR part 392 continues to read as follows: Authority: 49 U.S.C. 13902, 31136, 31502, and 49 CFR 1.73. 7. Revise 49 CFR 392.9a to read as follows: § 392.9a Operating authority.
(a)*Operating authority required.* A motor vehicle providing transportation requiring operating authority must not be operated—
(1)Without the required operating authority or
(2)Beyond the scope of the operating authority granted.
(b)*Penalties.* Every motor vehicle providing transportation requiring operating authority shall be ordered out of service if it is determined that the motor carrier responsible for the operation of such a vehicle is operating in violation of paragraph
(a)of this section. In addition, the motor carrier may be subject to penalties in accordance with 49 U.S.C. 14901.
(c)*Administrative Review.* Upon issuance of the out-of-service order under paragraph
(b)of this section, the driver shall comply immediately with such order. Opportunity for review shall be provided in accordance with 5 U.S.C. 554 not later than 10 days after issuance of such order. Issued on: August 21, 2006. David H. Hugel, Deputy Administrator. [FR Doc. E6-14248 Filed 8-25-06; 8:45 am] BILLING CODE 4910-EX-P 71 166 Monday, August 28, 2006 Proposed Rules DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 938 [PA-147-FOR] Pennsylvania Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Proposed rule; public comment period and opportunity for public hearing on proposed amendment. SUMMARY: We are announcing receipt of a proposed amendment to the Pennsylvania regulatory program (hereinafter, the “Pennsylvania program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Pennsylvania proposes to revise its program concerning reclamation fees, financial guarantees for bonding, money received from fees, the definition of reclamation, reclamation of bond forfeiture sites, alternate reclamation plans for bond forfeiture sites, bond forfeiture sites where reclamation is unreasonable, unnecessary or impossible, and evaluation of bond sites. The proposed amendments are intended to revise the Pennsylvania program to be consistent with the corresponding Federal regulations and to amend provisions at its own initiative. This document gives the times and locations that the Pennsylvania program and this submittal are available for your inspection, the comment period during which you may submit written comments, and the procedures that we will follow for the public hearing. DATES: We will accept written comments until 4 p.m., local time, September 27, 2006. If requested, we will hold a public hearing on September 22, 2006. We will accept requests to speak until 4 p.m., local time on September 12, 2006. ADDRESSES: You may submit comments, identified by “PA-147-FOR”, by any of the following methods: • E-mail: *grieger@osmre.gov.* Mail/Hand Delivery: George Rieger, Director, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, 415 Market Street, Room 304, Harrisburg, PA 17101; Telephone:
(717)782-4036. • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. *Instructions:* All submissions received must include the agency docket number “PA-147-FOR” for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Comment Procedures” Section in this document. You may also request to speak at a public hearing by any of the methods listed above or by contacting the individual listed under FOR FURTHER INFORMATION CONTACT . *Docket:* You may review copies of the Pennsylvania program, this submission, a listing of any scheduled public hearings, and all written comments received in response to this document at OSM's Pittsburgh Field Division Office at the address listed above during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the submission by contacting OSM's Pittsburgh Field Division's Harrisburg Office. In addition, you may receive a copy of the submission during regular business hours at the following location: Joseph P. Pizarchik, Director, Bureau of Mining and Reclamation, Pennsylvania Department of Environmental Protection, Rachel Carson State Office Building, P.O. Box 8461, Harrisburg, Pennsylvania 17105-8461, Telephone:
(717)787-5103. FOR FURTHER INFORMATION CONTACT: George Rieger, Telephone:
(717)782-4036. E-mail: *grieger@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Pennsylvania Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Procedural Determinations I. Background on the Pennsylvania Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Pennsylvania program in the July 30, 1982, **Federal Register** (47 FR 33050). You can also find later actions concerning the Pennsylvania program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 and 938.16. II. Description of the Proposed Amendment By letter dated May 23, 2006 (Administrative Record Number PA 793.11), Pennsylvania sent OSM a proposed program amendment to revise their program regulations at 25 Pa. Code. The submission includes the following:
(1)Revisions to the Pennsylvania program initiated by Pennsylvania at 25 Pa. Code 86.17(e), 86.187(a)(2) and 86.283(c);
(2)revisions intended to correct a typographical error in the State program at 25 Pa. Code 86.187(a)(1);
(3)revisions intended to satisfy five required amendments codified in the Federal regulations at 30 CFR 938.16(mm)-(qq); and
(4)revisions to address a previous OSM disapproval of language at 25 Pa. Code 86.188 (Administrative Record Number PA 793.11). The Pennsylvania Department of Environmental Protection (PADEP or Department) believes that this amendment will make its program consistent with the Federal program and satisfy the required amendments at 30 CFR 938.16(mm)-(qq). The letter described Pennsylvania's intended program changes at 25 Pa. Code 86.17(e), 86.187(a)(1), 86.187(b), 86.187(c) and 86.189(c)(2)-(c)(5), 86.188(b) and (c), 86.190(a), and 86.283(c). The full text of the proposed amendments is available for you to read at the locations listed above under ADDRESSES . On October 24, 1991, OSM published a final rule requiring the PADEP to amend its program to be no less effective than the Federal program (56 FR 55080-55087). The required amendments concern reclamation of bond forfeiture sites, alternate reclamation plans for bond forfeiture sites, bond forfeiture sites where reclamation is unreasonable, unnecessary or impossible, and evaluation of bond forfeiture sites. In response, PADEP submitted an informal amendment on March 27, 2002, with draft proposed changes intended to satisfy five required amendments codified at 30 CFR 938.16(mm)-(qq). The regulatory process in Pennsylvania was delayed until the State proposed the changes to the Mining and Reclamation Board in 2005. On March 31, 2005, Pennsylvania sent a summary of the findings for those proposed regulatory changes to OSM (Administrative Record Number PA 793.09). By letter dated April 15, 2005 (Administrative Record Number PA 793.10), we provided Pennsylvania with our comments on their draft amendments. A summary of the proposed changes are as follows. 25 Pa. Code 86.17(e) Reclamation Fees Pennsylvania has proposed a revision of this Subsection that would discontinue the collection of the Alternative Bonding System
(ABS)$100 per acre reclamation fee. Pennsylvania believes that this fee is no longer needed because the State now uses a Conventional Bonding System (CBS). Until 2001, Pennsylvania's bonding program was funded under its ABS, which included a central pool of money used for reclamation which was funded in part by a per-acre reclamation fee paid by operators of permitted sites, and supplemented by site bonds posted by those operators for each mine site. Because of growing problems with the solvency of ABS, in 2001, Pennsylvania began converting all active surface coal mining permits issued under the ABS, to a Full Cost Bonding
(FCB)program. This FCB requires a permittee to post bonds in an amount sufficient to cover the estimated costs to complete reclamation in the event of bond forfeiture. The State believes that because all of its permittees are now subject to FCB, there is no longer a basis for maintaining the per acre reclamation fee, and is therefore, proposing to delete the per-acre fee requirement. 25 Pa. Code 86.187(a)(2) Use of Monies and 25 Pa. Code 86.188 Definition of Reclamation—Eligible Sites Statement PADEP proposes to revise Section 86.187(a)(2), to include a requirement that the forfeited bond money be used “only to reclaim land and restore water supplies affected by the surface mining operation upon which liability was charged on the bond, except as provided in Section 86.190 * * *” The State also provided clarification of its policy on bond collection in a letter to OSM dated May 23, 2006 (Administrative Record No. PA 793.11). The clarification indicates that “when a bond is collected, Pennsylvania earmarks the bond, assigning it to the site for which it was forfeited. It can only be used for that site unless it is released, pursuant to Section 86.190.” Before releasing the funds, PADEP stated that it “conducts a rigorous review to assure that the bond money is not needed for the reclamation at the site for which the bond was forfeited.” 25 Pa. Code 86.283(c) Procedures (Financial Guarantees Program) Pennsylvania has proposed to remove the requirement relating to the per acre reclamation fees for remining areas for mine operators approved to participate in the financial guarantees program. The State has proposed this change for consistency with the change proposed in Section 86.17(e); PADEP believes that the removal of the $100 per acre reclamation fee, as discussed in the previous Section of this proposed amendment, will make this provision inapplicable. 25 Pa. Code 86.187(a)(1) Money Received From Fees Pennsylvania has proposed a revision of this Subsection to correct a typographical error. PADEP is deleting the reference to Section 86.17(b) and replacing that correction with a reference to Section 86.17(e). 30 CFR 938.16(mm), 25 Pa. Code 86.187(b) Reclamation of Bond Forfeiture Sites Required Amendment: Pennsylvania has proposed revisions of these Subsections to address a required amendment codified in the Federal regulations at 30 CFR 938.16(mm) (56 FR 55080-55087). The required program amendment requires that Pennsylvania delete 25 Pa. Code 86.187(b)(1), or otherwise amend its program, by requiring that alternative reclamation plans comply with all applicable performance standards in accordance with 86.189(c)(2), (c)(3) or (c)(4), whichever is appropriate to be consistent with 30 CFR 800.50. The State is proposing to revise Section 86.187(b) to make clear that an alternative reclamation plan must meet applicable performance standards identified in Section 86.189(c) and to assure that the Department will notify and consult with the landowner prior to expending funds for reclamation of a bond forfeiture site in all cases and not just when an alternative reclamation plan is being considered. 30 CFR 938.16(nn)-(oo), 25 Pa. Code 86.187(c) and 86.189(c)(2)-(c)(5) Alternate Reclamation Plans for Bond Forfeiture Sites Required Amendment: Pennsylvania has proposed revisions of these Subsections to address required amendments published in the Federal regulations at 30 CFR 938.16(nn) and
(oo)(56 FR 55080-55087). The required amendment requires that Pennsylvania amend 25 Pa. Code 86.187(c) and Section 18(c) of the Pennsylvania Surface Mining and Conservation Act or otherwise amend its program to be no less effective than the Federal regulations at 30 CFR 816.133(a) and 817.133(a). The required amendments require Pennsylvania to require that alternative postmining land use determinations for sites with forfeited bonds under the Federal interim program or under Pennsylvania's permanent program be made to ensure that all disturbed areas are restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. The State is proposing to revise Subsection 86.189(c)(5), to delete the language requiring reclamation plans for bond forfeiture sites allowing the sites to be made suitable at a minimum for agriculture, forests, recreation, wildlife or water conservation. Subsection 86.187(c) is proposed to be revised further by adding language requiring the alternate reclamation plans to provide for restoration of the disturbed land to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. Paragraphs (c)(2)-(4) of Section 86.189 are proposed to be revised to delete the reference to paragraph (5). The Federal regulations at 30 CFR 816.133(a) and 817.133(a) require that all disturbed areas be restored to uses they were capable of supporting before any mining, or to a higher or better use. Paragraph (c)(5) is being deleted to render Section 86.189 consistent with the Federal provisions. Both 30 CFR 938.16(nn) and
(oo)require that Pennsylvania amend 25 Pa. Code 86.187(b)(1) and Section 18(c) of the Pennsylvania Surface Mining and Conservation Act or otherwise amend its program to be no less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that alternative postmining land use determinations for sites with forfeited bonds under the Federal interim program or under Pennsylvania's permanent program be made to ensure that all disturbed areas are restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. 30 CFR 938.16(pp)-(qq), 25 Pa. Code 86.190(a) Bond Forfeiture Sites Where Reclamation Is Unreasonable, Unnecessary Or Impossible Required Amendment: Pennsylvania has proposed revisions of these Subsections to address required program amendments codified in the Federal regulations at 30 CFR 938.16(pp) and
(qq)(56 FR 55080-55087), which require that the State delete words “but are not limited to” from the introductory paragraph of Section 86.190(a), as well as the entire Subsection (a)(3) to be consistent with 30 CFR 800.50. Pennsylvania proposes to delete Subsection (a)(3) which allows the landowner of a bond forfeiture site to prevent reclamation. The State is also proposing to revise Subsection
(a)to delete language that allows for additional reclamation of bond forfeiture sites for reasons beyond those specifically listed in Subsection (a). 30 CFR 938.15, 25 Pa Code 86.188(b) and
(c)Evaluation of Bond Forfeiture Sites Required Amendment: Pennsylvania has proposed revisions of these Subsections to address an OSM disapproval of Section 86.188 to the extent that Subsections
(b)and
(c)would allow bond forfeiture funds posted for and needed to complete reclamation of a specific site be used for reclamation of other sites. In that disapproval, OSM stated that the provision would render the Pennsylvania program less effective than the Federal regulations at 30 CFR 800.50(b)(2). (See 56 FR 55084, October 24, 1991). In this submission, the State is proposing to revise Subsections 86.188(b) and
(c)to delete the language in paragraphs (b)(5) and (c)(3). The PADEP stated in its May 23, 2006, letter to OSM that this proposed revision will make it clear that bond forfeiture funds posted for and still needed to complete reclamation of the specific site for which the bonds were forfeited will not be used for reclamation of other sites until reclamation of the forfeited site has been completed. The PADEP also stated that the Department fully intends to maintain adequate bonding so that funds are available for the completion of reclamation should the bonds be forfeited (Administrative Record No. PA 793.11). III. Public Comment Procedures In accordance with 30 CFR 732.17(h), we are seeking your comments on whether the submission satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendments, they will become part of the Pennsylvania program. Written Comments Send your written comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We may not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see DATES ). We will make every attempt to log all comments into the administrative record, but comments delivered to an address other than the Pittsburgh Field Division identified above may not be logged in. Electronic Comments Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: PA-147-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Pittsburgh Field Division's Harrisburg Office at
(717)782-4036. Availability of Comments We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety. Public Hearing If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., local time on September 12, 2006. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. Public Meeting If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the submission, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record. IV. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget
(OMB)under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by Section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of Subsections
(a)and
(b)of that Section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each such program is drafted and promulgated by a specific State, not by OSM. Under Sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian Tribes. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* ). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State submittal that is the subject of this rule is based on counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C.804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million;
(b)Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State or local governmental agencies; and
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: August 3, 2006. Michael K. Robinson, Acting Regional Director, Appalachian Region. [FR Doc. E6-14229 Filed 8-25-06; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Chapter 1 Negotiated Rulemaking Advisory Committee for Dog Management at Golden Gate National Recreation Area AGENCY: National Park Service, Department of the Interior. ACTION: Notice of meeting. SUMMARY: Notice is hereby given, in accordance with the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770, 5 U.S.C. App 1, section 10), of the fifth meeting of the Negotiated Rulemaking Advisory Committee for Dog Management at Golden Gate National Recreation Area (GGNRA). DATES: The Committee will meet on Thursday, September 21, 2006 in the Officer's Club, upper Fort Mason. The meeting will begin at 3 p.m., and is open to the public. Although the Committee may modify its agenda during the course of its work, the proposed agenda for this meeting is as follows: agenda review; approval of July 31, 2006 meeting summary; update on activities since July meeting; discuss Technical Subcommittee report; discuss potential selection/evaluation criteria; next steps; public comment; adjourn. The Committee provides for a public comment period during the meeting; written comments may also be sent to: Superintendent, GGNRA, Ft. Mason, Bldg. 201, San Francisco, CA 94123, Attn: Negotiated Rulemaking. To request a sign language interpreter, please call the park TDD line
(415)556-2766, at least a week in advance of the meeting. Please note that federal regulations prohibit pets in public buildings, with the exception of service animals. FOR FURTHER INFORMATION CONTACT: Go to the *http://www.parkplanning.nps.gov/goga* and select *Negotiated Rulemaking for Dog Management at GGNRA* or call the project information line at 415-561-4728. SUPPLEMENTARY INFORMATION: The Committee was established pursuant to the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570) to consider developing a special regulation for dogwalking at GGNRA. Dated: August 15, 2006. Bernard C. Fagan, Acting Chief, Office of Policy. [FR Doc. E6-14205 Filed 8-25-06; 8:45 am] BILLING CODE 4312-FN-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 21 RIN 2900-AM25 Vocational Rehabilitation and Employment Program—Initial Evaluations AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. SUMMARY: This document proposes to amend regulations of the Department of Veterans Affairs
(VA)concerning initial evaluations of individuals who apply for vocational rehabilitation and employment benefits. These proposed regulations are intended to reflect changes in law, VA's interpretation of applicable law and its determinations of procedures appropriate for use in the initial evaluation, to improve readability, and to make other nonsubstantive changes. DATES: Comments must be received on or before October 27, 2006. ADDRESSES: Written comments may be submitted by: mail or hand-delivery to Director, Regulations Management (00REG1), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to
(202)273-9026; or e-mail through *http://www.Regulations.gov* . Comments should indicate that they are submitted in response to “RIN 2900-AM25.” All comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call
(202)273-9515 for an appointment. FOR FURTHER INFORMATION CONTACT: Catherine Kruger, Senior Policy Analyst,
(202)273-7344, or Mark Hawkins, Vocational Rehabilitation Counselor,
(202)273-6923, Vocational Rehabilitation and Employment Service (28), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420. SUPPLEMENTARY INFORMATION: We propose to amend VA's regulations in 38 CFR Part 21, Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31, concerning initial evaluations of individuals who apply for vocational rehabilitation and employment benefits. These proposed regulations are intended to reflect changes in law regarding initial evaluations and VA's interpretation of applicable law and its determinations of procedures appropriate for use in the initial evaluation, and to improve readability. We also propose to make a nonsubstantive conforming change in 38 CFR Part 21, Subpart M—Vocational Training and Rehabilitation for Certain Children of Vietnam Veterans—Spina Bifida and Covered Birth Defects. In *Davenport* v. *Brown* , 7 Vet. App. 476 (1995), the United States Court of Appeals for Veterans Claims (then the United States Court of Veterans Appeals) set aside VA regulations that require a veteran's service-connected disability to cause the employment handicap or serious employment handicap that establishes the veteran's entitlement to vocational rehabilitation and employment benefits. The court held that the requirement of 38 CFR 21.51(c) that a veteran's service-connected disability must “materially contribute” to the veteran's employment handicap is inconsistent with 38 U.S.C. 3102. Thus, the court set aside § 21.51(c)(2), (e), (f)(1)(ii), and (f)(2) to the extent that they require a causal nexus between a veteran's service-connected disability and that veteran's employment handicap. The court found unlawful the noted provisions of § 21.51(c)(2), which require that, while a veteran's service-connected disability need not be the sole or primary cause of an employment handicap or serious employment handicap, it must “materially contribute” to the handicap. On October 9, 1996, Congress enacted the Veterans' Benefits Improvements Act of 1996 (Pub. L. 104-275), which redefined the terms “employment handicap” and “serious employment handicap” to include a requirement that an individual's vocational impairment be one “resulting in substantial part from” one or more service-connected disabilities, with respect to applications received on or after the date of enactment. To reflect the dates of applicability of these changes in legal requirements, the proposed rule would provide that for determinations made on any applications filed on or after March 30, 1995, the date of the *Davenport* v. *Brown* decision, but before October 9, 1996, the individual's service-connected disability(ies) need not contribute to the individual's overall vocational impairment or significant vocational impairment. For clarification, the table below summarizes the standards used to determine entitlement to vocational rehabilitation and employment benefits and services for applicants during these three distinct time periods. These concern entitlement determinations made for:
(1)Claims filed prior to the *Davenport* decision;
(2)Claims filed after the *Davenport* decision but prior to enactment of Public Law 104-275; and
(3)Claims filed following enactment of Public Law 104-275. Time period Standard Explanation Prior to *Davenport* decision (claims filed from April 1, 1981 (Public Law 96-466), to March 29, 1995) The individual's service-connected disability(ies) must materially contribute to the impairment of employment. The serious employment handicap determinations are based on level of service-connected disability(ies) and other criteria as provided in 38 CFR 21.52 A person found to have an employment handicap who is rated 50 percent or more service-connected is automatically found to have a serious employment handicap. Those rated less than 50 percent service-connected have to meet certain specific percent of service-connected disability(ies) and other criteria to be determined to have a serious employment handicap. After *Davenport* decision, but prior to Public Law 104-275 (claims filed from March 30, 1995, to October 8, 1996) The individual's service-connected disability(ies) need not contribute to the impairment which results in the employment handicap. The issues for determination are the existence of vocational impairment and the extent or significance of the impairment The requirements that service-connected disability(ies) contribute to the employment handicap and serious employment handicap are removed, as are the 50 percent, 30-40 percent, and 10-20 percent requirements for finding a serious employment handicap. After Public Law 104-275 (claims filed on or after October 9, 1996) The individual's service-connected disability(ies) must contribute “in substantial part” to the impairment of employability This standard was provided under Public Law 104-275. In our view, the phrase “resulting in substantial part” in the statutory definitions of “employment handicap” and “serious employment handicap” has the same meaning that “material contribution” has in current § 21.51(c)(2). We are proposing to amend the regulations to reflect the statutory language. We propose to revise §§ 21.50 through 21.52 in light of these changes in law, and for the additional reasons that we discuss in this preamble. We propose to revise current § 21.50 to make clear what constitutes an initial evaluation for vocational rehabilitation and employment benefits, who is entitled to an initial evaluation, who conducts it, what questions it seeks to answer, and how a veteran's service-connected disability(ies) must contribute to vocational impairment. The initial evaluation is central to employment handicap and serious employment handicap determinations under § 21.51 and § 21.52, respectively. We propose to further revise § 21.50 by consolidating and clarifying the factors VA develops and assesses in determining whether an individual has an employment handicap; if so, whether the individual has a serious employment handicap; and, lastly, whether the achievement of a vocational goal by the individual is currently reasonably feasible. Proposed § 21.50(c) would set forth various factors for development and assessment as part of the initial evaluation, with minor modifications to existing provisions to improve readability. We propose to remove the provisions of current § 21.50(d)(1) as unnecessary and obsolete, because that paragraph concerns determinations made prior to the initial evaluation and the determinations it refers to are no longer made by staff outside the Vocational Rehabilitation and Employment Division. Current § 21.50(d)(2) identifies who, within VA, is responsible for making initial evaluation determinations. We propose to remove these provisions from § 21.50 and to make appropriate references in § 21.51 and § 21.52, respectively, as to who is responsible for making each determination. We propose to revise § 21.51 to reflect criteria that VA develops and assesses in determining the existence of an employment handicap. Certain factors for determining that the service-connected disability(ies) “materially contribute” to the impairment to employment set forth in current § 21.51(e) would be set forth in proposed § 21.51 for determining that the service-connected disability(ies) contribute “in substantial part” to the impairment to employment, as discussed above. Current § 21.52 requires that the determination of serious employment handicap directly relate to differing levels of service-connected disability ratings. Current § 21.52 also requires a finding of serious employment handicap if an individual is found to have an employment handicap along with a neuropsychiatric service-connected disability rated at 30 percent or more or any other service-connected disability rated at 50 percent or more. Public Law 104-275 redefined the term “serious employment handicap” to make clear that the impairment to employability must meet both of the following conditions: • It must be a significant impairment of an individual's ability to prepare for, obtain or retain employment consistent with abilities, aptitudes, and interests. • It must result in substantial part from service-connected disabilities rated at 10 percent or more. We propose to revise § 21.52 to reflect the factors VA develops and assesses in making the determination of “significant impairment.” These factors differ, in part, from the factors used to develop and assess the lower level of “impairment” necessary for employment handicap in § 21.51, to ensure that an individual with a significant vocational impairment receives the rehabilitation services he or she needs. Lastly, we propose to make a nonsubstantive change in subpart M to § 21.8032(a) by removing a reference to § 21.50(b)(5) and adding, in its place, a reference to § 21.50(b)(3). Paperwork Reduction Act of 1995 This proposed rule contains no new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The Office of Management and Budget has approved collection of information provisions that are related to the provisions of proposed 38 CFR 21.50 under OMB control number 2900-0009 (entitled “Disabled Veterans Application for Vocational Rehabilitation and 38 CFR 21.30”) and has approved collection of information provisions that are related to the provisions of proposed §§ 21.50 through 21.52 under OMB control number 2900-0092 (entitled “Counseling Record—Personal Information”). Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector. Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. VA has examined the economic, legal, and policy implications of this proposed rule and has concluded that it is a significant regulatory action under Executive Order 12866 because it raises novel policy issues. Regulatory Flexibility Act The Secretary hereby certifies that this proposed regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed amendment would not directly affect any small entities. Only individuals could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for programs that would be affected by this proposed rule are 64.116, Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Birth Defects. List of Subjects in 38 CFR Part 21 Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs—education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation. Approved: May 8, 2006. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set forth in the preamble, VA proposes to amend 38 CFR part 21 (subparts A and M) as follows: PART 21—VOCATIONAL REHABILITATION AND EDUCATION Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31 1. Revise the authority citation for part 21, subpart A to read as follows: Authority: 38 U.S.C. 501(a), ch. 31, and as noted in specific sections. 2. Revise § 21.50 to read as follows: § 21.50 Initial evaluation.
(a)*Entitlement to an initial evaluation.* VA will provide an initial evaluation to an individual who:
(1)Applies for benefits under 38 U.S.C. chapter 31; and
(2)Meets the service-connected disability requirements of § 21.40. (Authority: 38 U.S.C. 3101(9), 3106)
(b)*Determinations to be made by VA during the initial evaluation.* A counseling psychologist
(CP)or vocational rehabilitation counselor
(VRC)will determine:
(1)Whether the individual has an employment handicap as determined in accordance with this section and § 21.51;
(2)Whether an individual with an employment handicap has a serious employment handicap as determined in accordance with this section and § 21.52; and
(3)Whether the achievement of a vocational goal is currently reasonably feasible as described in § 21.53. (Authority: 38 U.S.C. 3102, 3103)
(c)*Factors for assessment as part of the initial evaluation.* In making the determinations under paragraph
(b)of this section, the following factors will be developed and assessed:
(1)The handicapping effects of the individual's service-connected and nonservice-connected disability(ies) on employability and on independence in daily living;
(2)The individual's physical and mental capabilities that may affect employability and ability to function independently in daily living activities in family and community;
(3)The impact of the individual's identified vocational impairments on the individual's ability to prepare for, obtain, and keep suitable employment;
(4)The individual's abilities, aptitudes, and interests;
(5)The individual's personal history and current circumstances (including educational and training achievements, employment record, developmental and related vocationally significant factors, and family and community adjustment); and
(6)Other factors that may affect the individual's employability. (Authority: 38 U.S.C. 3106(a))
(d)*Need for cooperation in evaluation.* The individual's cooperation is essential during the initial evaluation. If the individual does not cooperate, the CP or VRC will make reasonable efforts to secure the individual's cooperation. If, despite those efforts, the individual fails to cooperate, VA will discontinue the initial evaluation. A redetermination of entitlement as described in § 21.58 will be made in the case of an individual whose program has been discontinued due to failure to cooperate. (Authority: 38 U.S.C. 3111) 3. Revise § 21.51 to read as follows: § 21.51 Determining employment handicap. For the purposes of § 21.50, an employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(a)*Vocational impairment.* The individual has a vocational impairment; that is, an impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests.
(b)*Effects of impairment not overcome.* The individual has not overcome the effects of the individual's impairment of employability through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests. This situation includes an individual who qualifies for a suitable job, but who does not obtain or keep the job for reasons beyond his or her control. (Authority: 38 U.S.C. 3102)
(c)*Contribution of the service-connected disability(ies) to the individual's overall vocational impairment.*
(1)Except as provided in paragraph (c)(3) of this section, the service-connected disability(ies) must contribute in substantial part to the individual's overall vocational impairment. This means that the disability(ies) must have an identifiable, measurable, or observable causative effect on the overall vocational impairment, but need not be the sole or primary cause of the employment handicap.
(2)When determining the individual's overall vocational impairment, the CP or VRC will consider the factors identified in § 21.50(c).
(3)For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual's service-connected disability(ies) need not contribute to the individual's overall vocational impairment. (Authority: 38 U.S.C. 3101, 3102) 4. Revise § 21.52 to read as follows: § 21.52 Determining serious employment handicap.
(a)*Requirements for determining serious employment handicap.* For each individual who is found to have an employment handicap, a CP or VRC must make a separate determination of whether the individual has a serious employment handicap. For the purposes of an initial evaluation under § 21.50, a serious employment handicap will be found to exist only if a CP or VRC determines that the individual meets each of the following conditions:
(1)*Significant vocational impairment.* The individual has a significant vocational impairment; that is, a significant impairment of the ability to prepare for, obtain, or keep employment in an occupation consistent with his or her abilities, aptitudes, and interests, considering the factors described in § 21.50 and paragraph
(b)of this section.
(2)*Effects of significant impairment not overcome.* The individual has not overcome the effects of the significant vocational impairment through employment in, or qualifying for employment in, an occupation consistent with his or her abilities, aptitudes, and interests. This includes an individual who qualifies for a suitable job, but who does not obtain or keep the job for reasons beyond his or her control. (Authority: 38 U.S.C. 3102)
(3)*Contribution of the service-connected disability(ies) to the individual's overall significant vocational impairment.*
(i)Except as provided in paragraph (a)(3)(ii) of this section, the service-connected disability(ies) must contribute in substantial part to the individual's overall significant vocational impairment. This means that the disability(ies) must have an identifiable, measurable, or observable causative effect on the overall significant vocational impairment, but need not be the sole or primary cause of the serious employment handicap. (Authority: 38 U.S.C. 3101)
(ii)For determinations made on applications for vocational rehabilitation filed on or after March 30, 1995, but before October 9, 1996, the individual's service-connected disability(ies) need not contribute to the individual's overall significant vocational impairment.
(b)*Factors for assessment during the initial evaluation, when determining whether a significant vocational impairment exists.* The combination of all restrictions and their effects on the individual define the extent of the vocational impairment and its significance. When determining whether the individual has a significant vocational impairment, VA will develop and assess the following factors and their effects:
(1)Number of disabling conditions;
(2)Severity of disabling condition(s);
(3)Existence of neuropsychiatric condition(s);
(4)Adequacy of education or training for suitable employment;
(5)Number, length, and frequency of periods of unemployment or underemployment;
(6)A pattern of reliance on government support programs, such as welfare, service-connected disability compensation, nonservice-connected disability pension, worker's compensation, or Social Security disability;
(7)Extent and complexity of services and assistance the individual needs to achieve rehabilitation;
(8)Negative attitudes toward individuals with disabilities and other evidence of restrictions on suitable employment, such as labor market conditions; discrimination based on age, race, gender, disability or other factors; alcoholism or other substance abuse; and
(9)Other factors that relate to preparing for, obtaining, or keeping employment consistent with the individual's abilities, aptitudes, and interests. (Authority: 38 U.S.C. 3102, 3106) Subpart M—Vocational Training and Rehabilitation for Certain Children of Vietnam Veterans—Spina Bifida and Covered Birth Defects 5. Revise the authority citation for part 21, subpart M to read as follows: Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and as noted in specific sections. § 21.8032 [Amended] 6. In § 21.8032, amend paragraph
(a)by removing “§§ 21.50(b)(5)” and adding, in its place, “§§ 21.50(b)(3)”. [FR Doc. E6-14079 Filed 8-25-06; 8:45 am] BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2006-0590; FRL-8213-4] Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Requests for Rescission AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing, under the Clean Air Act, approval of revisions to the applicable state implementation plan for the State of Nevada and disapproval of other revisions. These revisions involve certain regulations and statutes for which the State of Nevada is requesting rescission. EPA is also proposing approval of certain updated statutes submitted by the State of Nevada as replacements for outdated statutes in the applicable plan. The approval proposed herein is contingent upon receipt of certain public notice and hearing documentation from the State of Nevada. EPA is proposing this action under the Clean Air Act obligation to take action on State submittals of revisions to state implementation plans. The intended effect is to rescind unnecessary provisions from the applicable plan, retain necessary provisions, and approve replacement provisions for certain statutes for which rescissions are proposed for disapproval. EPA is taking comments on this proposal and plans to follow with a final action. DATES: Any comments must arrive by *September 27, 2006* . ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2006-0590, by one of the following methods: 1. Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the on-line instructions. 2. E-mail: *steckel.andrew@epa.gov* . 3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments 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 Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *www.regulations.gov* or e-mail. *www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. 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. *Docket:* The index to the docket for this action is available electronically at *www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Julie Rose, EPA Region IX,
(415)947-4126, *rose.julie@epa.gov* . SUPPLEMENTARY INFORMATION: Throughout this document, the terms “we,” “us” and “our” refer to EPA. Table of Contents I. The State's Submittal A. Which rules and statutes did the state submit for rescission? B. What is the regulatory history of the Nevada SIP? C. What is the purpose of this proposed rule? II. EPA's Evaluation and Action A. How is EPA evaluating the rules and statutes requested for rescission? B. Do the rescissions meet the evaluation criteria? C. Public Comment and Proposed Action III. Statutory and Executive Order Reviews I. The State's Submittal A. Which rules and statutes did the state submit for rescission? The State of Nevada's Department of Conservation and Natural Resources, Division of Environmental Protection
(NDEP)submitted a large revision to the applicable SIP on January 12, 2006. This 2006 SIP revision submittal supersedes the regulatory portion of the earlier SIP revision submittal dated February 16, 2005. 1 On March 26, 2006, we found that the Nevada SIP submittal dated January 12, 2006 satisfied the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. 1 The February 16, 2005 SIP submittal also includes documentation of public notice and hearing for new or amended rules. The January 12, 2006 SIP submittal was not a complete re-submittal of the earlier submittal in that it did not include this documentation. The primary purpose of this SIP revision is to clarify and harmonize the provisions approved by EPA into the applicable SIP with the current provisions adopted by the State. Because this revision incorporates so many changes from the 1970s and 1980s vintage SIP regulations, EPA has decided to review and act on the submittal in a series of separate actions. The first such action was proposed in the **Federal Register** on September 13, 2005 (70 FR 53975) and finalized on March 27, 2006 (71 FR 15040). The second such action was proposed in the **Federal Register** on June 9, 2006 (71 FR 33413). In today's action, we are taking another step in the process of acting on the State's January 12, 2006 SIP revision submittal by proposing action on the State's request for rescission of nearly 200 rules and statutes currently approved in the applicable SIP. 2 The remaining portions of the submittal will be acted on in future **Federal Register** actions. 2 Of the nearly 200 rules and statutes for which NDEP requests rescission, we are proposing action today on all but 15, including 12 that we are deferring to separate rulemakings and 3 that we plan to take no action on. The rules and statutes that we are deferring include rule 25 of general order number 3 of the Nevada Public Service Commission; article 1.60—Effective date; article 1.72—Existing facility; NAC 445.535—Kilogram-calorie; NAC 445.655 Abbreviations; article 13.1.3(3) [related to minor source BACT]; article 16.3.3.1—Opacity from kilns; NAC 445.667—Excess emissions: scheduled maintenance, testing, malfunctions; NAC 445.694—Emission discharge information; NAC 445.706(2)—Application date; payment of fees; NAC 445.715—Operation permits: revocation; and NRS 704.820 to 704.900—Construction of utility facilities: utility environmental protection act. We do not plan to take action on article 1.207—vehicle trip, article 14 (14.1 to 14.5.1.4)—supplementary control system (submitted June 14, 1974), and article 14.1—supplementary control system (submitted November 17, 1981) because they are not in the applicable SIP. B. What is the regulatory history of the Nevada SIP? Pursuant to the Clean Air Amendments of 1970, the Governor of Nevada submitted the original Nevada SIP to EPA in January 1972. EPA approved certain portions of the original SIP and disapproved other portions under CAA section 110(a). See 37 FR 10842 (May 31, 1972). For some of the disapproved portions of the original SIP, EPA promulgated substitute provisions under CAA section 110(c). 3 This original SIP included various rules, codified as articles within the Nevada Air Quality Regulations (NAQR), and various statutory provisions codified in chapter 445 of the Nevada Revised Statutes (NRS). In the early 1980's, Nevada reorganized and re-codified its air quality rules into sections within chapter 445 of the Nevada Administrative Code (NAC). Today, Nevada codifies its air quality regulations in chapter 445B of the NAC and codifies air quality statutes in chapter 445B (“Air Pollution”) of title 40 (“Public Health and Safety”) of the NRS. 3 Provisions that EPA promulgates under CAA section 110(c) in substitution of disapproved State provisions are referred to as Federal Implementation Plans (FIPs). Nevada adopted and submitted many revisions to the original set of regulations and statutes in the SIP, some of which EPA approved on February 6, 1975 at 40 FR 5508; on March 26, 1975 at 40 FR 13306; on January 9, 1978 at 43 FR 1341; on January 24, 1978 at 43 FR 3278; on August 21, 1978 at 43 FR 36932; on July 10, 1980 at 45 FR 46384; on April 14, 1981 at 46 FR 21758; on August 27, 1981 at 46 FR 43141; on March 8, 1982 at 47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 18, 1982 at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 1984 at 49 FR 11626. Since 1984, EPA has approved very few revisions to Nevada's applicable SIP despite numerous changes that have been adopted by the State Environmental Commission. As a result, the version of the rules enforceable by NDEP is often quite different from the SIP version enforceable by EPA. C. What is the purpose of this proposed rule? The purpose of this proposal is to present EPA's conclusions with respect to the State's request contained in NDEP's January 12, 2006 SIP revision submittal for rescission of nearly 200 rules and statutes in the applicable SIP. We provide our reasoning in general terms below but provide a more detailed analysis for each of the relevant rules and statutes in the technical support document
(TSD)that has been prepared for this proposed rulemaking. II. EPA's Evaluation and Action A. How is EPA evaluating the rules and statutes requested for rescission? Under CAA section 110(k)(2), EPA is obligated to take action on submittals by States of SIPs and SIP revisions. CAA section 110(k)(3) authorizes EPA to approve or disapprove, in whole or in severable part, such submittals. EPA has reviewed the regulations and statutes submitted on January 12, 2006 by NDEP for rescission for compliance with the CAA requirements for SIPs in general set forth in CAA section 110(a)(2) and 40 CFR part 51 and also for compliance with CAA requirements for SIP revisions in CAA sections 110(l) and 193. 4 We have also applied the principles set forth in a policy memorandum from Johnnie L. Pearson, Chief Regional Activities Section, U.S. EPA Office of Air Quality Planning and Standards, dated February 12, 1990, and entitled, “Review of State Regulation Recodifications.” As described below, EPA is proposing approval and disapproval of portions of the State's rescission request and approval of certain replacement provisions. 4 CAA section 110(l) prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. CAA section 193 prohibits modifications in control requirements that were in effect before the CAA of 1990 in any nonattainment area unless the modification ensures equivalent or greater emission reductions of the nonattainment pollutant. B. Do the rescissions meet the evaluation criteria? We are proposing to approve most of the rules for which NDEP has requested rescission (see Table 1), but are proposing disapproval for rescission requests related to certain rules and statutes (see Table 2), and are proposing to approve submitted replacement provisions (see Table 3) for certain provisions for which we believe the State's rescission request should be disapproved. Table 1 lists all of the SIP (or FIP) provisions for which the State's rescission request is proposed for approval along with the related submittal and approval dates. The vast majority of the provisions in table 1 represent defined terms that, although approved by EPA and therefore made part of the applicable SIP, are not relied upon by any rule or statute in the existing applicable SIP nor in any rule or statute in the submitted SIP revision and thus are unnecessary and appropriate for rescission. We are also proposing approval of the rescission request with respect to certain other rules and statutes (and one FIP) that we have found to be unnecessary because they are not needed generally in a SIP under CAA section 110(a)(2) or under 40 CFR part 51 or because there are other federally enforceable provisions that would provide equivalent or greater control. Neither NDEP's February 16, 2005 nor January 12, 2006 SIP submittal contained documentation of notice and public hearing for repeal or rescission of these provisions as required under CAA section 110(l) for all SIP revisions. Thus, we are making our proposed approval of these rescissions contingent upon receipt of this documentation from NDEP. The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 1. Table 1.—SIP Provisions for Which the State's Rescission Request Is Proposed for Approval SIP (or FIP) provision Title Submittal date Approval date NAC 445.440 Aluminum equivalent 10/26/82 03/27/84 NAC 445.442 Anode bake plant 10/26/82 03/27/84 NAC 445.443 Asphalt concrete plant 10/26/82 03/27/84 NAC 445.446 Barite dryer 10/26/82 03/27/84 NAC 445.451 Basic oxygen process furnace 10/26/82 03/27/84 NAC 445.453 Bituminous coal 10/26/82 03/27/84 NAC 445.454 Blast furnace 10/26/82 03/27/84 NAC 445.455 Blowing tap 10/26/82 03/27/84 NAC 445.456 Brass or bronze 10/26/82 03/27/84 NAC 445.459 Calcium carbide 10/26/82 03/27/84 NAC 445.460 Calcium silicon 10/26/82 03/27/84 NAC 445.461 Capture system 10/26/82 03/27/84 NAC 445.462 Charge chrome 10/26/82 03/27/84 NAC 445.463 Charge period 10/26/82 03/27/84 NAC 445.465 Coal preparation plant 10/26/82 03/27/84 NAC 445.466 Coal processing and conveying equipment 10/26/82 03/27/84 NAC 445.467 Coal refuse 10/26/82 03/27/84 NAC 445.468 Coal storage system 10/26/82 03/27/84 NAC 445.469 Coke burn-off 10/26/82 03/27/84 NAC 445.474 Commercial fuel oil 10/26/82 03/27/84 NAC 445.475 Complex source 10/26/82 03/27/84 NAC 445.476 Condensate 10/26/82 03/27/84 NAC 445.477 Confidential information 10/26/82 03/27/84 NAC 445.481 Control device 10/26/82 03/27/84 NAC 445.483 Copper converter 10/26/82 03/27/84 NAC 445.484 Custody transfer 10/26/82 03/27/84 NAC 445.485 Cyclonic flow 10/26/82 03/27/84 NAC 445.487 Diesel fuel 10/26/82 03/27/84 NAC 445.489 Direct shell evacuation system 10/26/82 03/27/84 NAC 445.490 Drilling and production facility 10/26/82 03/27/84 NAC 445.491 Dross reverberatory furnace 10/26/82 03/27/84 NAC 445.493 Dust handling equipment 10/26/82 03/27/84 NAC 445.494 Dusts 10/26/82 03/27/84 NAC 445.495 Electric arc furnace 10/26/82 03/27/84 NAC 445.496 Electric furnace 10/26/82 03/27/84 NAC 445.497 Electric smelting furnace 10/26/82 03/27/84 NAC 445.498 Electric submerged arc furnace 10/26/82 03/27/84 NAC 445.502 Equivalent P <sup>2</sup> O <sup>5</sup> feed 10/26/82 03/27/84 NAC 445.503 Equivalent P <sup>2</sup> O <sup>5</sup> stored 10/26/82 03/27/84 NAC 445.509 Ferrochrome silicon 10/26/82 03/27/84 NAC 445.510 Ferromanganese silicon 10/26/82 03/27/84 NAC 445.511 Ferrosilicon 10/26/82 03/27/84 NAC 445.514 Fossil fuel-fired steam generating unit 10/26/82 03/27/84 NAC 445.515 Fresh granular triple superphosphate 10/26/82 03/27/84 NAC 445.518 Fuel gas 10/26/82 03/27/84 NAC 445.519 Fuel gas combustion device 10/26/82 03/27/84 NAC 445.522 Furnace charge 10/26/82 03/27/84 NAC 445.523 Furnace cycle 10/26/82 03/27/84 NAC 445.524 Furnace power input 10/26/82 03/27/84 NAC 445.526 Granular diammonium phosphate plant 10/26/82 03/27/84 NAC 445.527 Granular triple super-phosphate storage facility 10/26/82 03/27/84 NAC 445.528 Heat time 10/26/82 03/27/84 NAC 445.529 High-carbon ferrochrome 10/26/82 03/27/84 NAC 445.530 High level of volatile impurities 10/26/82 03/27/84 NAC 445.531 High terrain 10/26/82 03/27/84 NAC 445.532 Hydrocarbon 10/26/82 03/27/84 NAC 445.534 Isokinetic sampling 10/26/82 03/27/84 NAC 445.539 Low terrain 10/26/82 03/27/84 NAC 445.543 Meltdown and refining 10/26/82 03/27/84 NAC 445.544 Meltdown and refining period 10/26/82 03/27/84 NAC 445.546 Molybdenum 10/26/82 03/27/84 NAC 445.547 Molybdenum processing plant 10/26/82 03/27/84 NAC 445.551 Nitric acid production unit 10/26/82 03/27/84 NAC 445.554 Nuisance 10/26/82 03/27/84 NAC 445.566 Petroleum liquids 10/26/82 03/27/84 NAC 445.567 Petroleum refinery 10/26/82 03/27/84 NAC 445.568 Pneumatic coal-cleaning equipment 10/26/82 03/27/84 NAC 445.572 Potroom 10/26/82 03/27/84 NAC 445.573 Potroom group 10/26/82 03/27/84 NAC 445.576 Primary aluminum reduction plant 10/26/82 03/27/84 NAC 445.577 Primary control system 10/26/82 03/27/84 NAC 445.578 Primary copper smelter 10/26/82 03/27/84 NAC 445.579 Primary lead smelter 10/26/82 03/27/84 NAC 445.580 Primary zinc smelter 10/26/82 03/27/84 NAC 445.582 Process gas 10/26/82 03/27/84 NAC 445.583 Process upset gas 10/26/82 03/27/84 NAC 445.586 Product change 10/26/82 03/27/84 NAC 445.587 Proportional sampling 10/26/82 03/27/84 NAC 445.591 Refinery process unit 10/26/82 03/27/84 NAC 445.593 Reid vapor pressure 10/26/82 03/27/84 NAC 445.594 Reverberatory furnace 10/26/82 03/27/84 NAC 445.595 Reverberatory smelting furnace 10/26/82 03/27/84 NAC 445.596 Ringelmann chart 10/26/82 03/27/84 NAC 445.598 Roof monitor 10/26/82 03/27/84 NAC 445.600 Run-of-pile triple superphosphate 10/26/82 03/27/84 NAC 445.602 Secondary control system 10/26/82 03/27/84 NAC 445.603 Secondary lead smelter 10/26/82 03/27/84 NAC 445.604 Shop 10/26/82 03/27/84 NAC 445.605 Shop opacity 10/26/82 03/27/84 NAC 445.608 Silicomanganese 10/26/82 03/27/84 NAC 445.609 Silicomanganese zirconium 10/26/82 03/27/84 NAC 445.610 Silicon metal 10/26/82 03/27/84 NAC 445.611 Silvery iron 10/26/82 03/27/84 NAC 445.614 Sinter bed 10/26/82 03/27/84 NAC 445.615 Sintering machine 10/26/82 03/27/84 NAC 445.616 Sintering machine discharge end 10/26/82 03/27/84 NAC 445.617 Six-minute period 10/26/82 03/27/84 NAC 445.619 Smelting 10/26/82 03/27/84 NAC 445.620 Smelting furnace 10/26/82 03/27/84 NAC 445.626 Standard ferromanganese 10/26/82 03/27/84 NAC 445.629 Steel production cycle 10/26/82 03/27/84 NAC 445.631 Storage vessel 10/26/82 03/27/84 NAC 445.632 Structure, building, facility or installation 10/26/82 03/27/84 NAC 445.634 Sulfuric acid plant 10/26/82 03/27/84 NAC 445.635 Sulfuric acid production unit 10/26/82 03/27/84 NAC 445.636 Superphosphoric acid plant 10/26/82 03/27/84 NAC 445.637 Tapping 10/26/82 03/27/84 NAC 445.638 Tapping period 10/26/82 03/27/84 NAC 445.639 Tapping station 10/26/82 03/27/84 NAC 445.640 Thermal dryer 10/26/82 03/27/84 NAC 445.641 Thermit process 10/26/82 03/27/84 NAC 445.642 Total fluorides 10/26/82 03/27/84 NAC 445.643 Total smelter charge 10/26/82 03/27/84 NAC 445.644 Transfer and loading system 10/26/82 03/27/84 NAC 445.645 Triple superphosphate plant 10/26/82 03/27/84 NAC 445.646 True vapor pressure 10/26/82 03/27/84 NAC 445.648 Vapor recovery system 10/26/82 03/27/84 NAC 445.652 Weak nitric acid 10/26/82 03/27/84 NAC 445.654 Wet-process phosphoric acid plant 10/26/82 03/27/84 Article 2.7.4 Confidential Information 12/10/76 08/21/78 Articles 2.10.1 and 2.10.1.1 Appeal procedures 01/28/72 05/31/72 Articles 2.10.1.2, 2.10.2 and 2.10.3 Appeal procedures 10/31/75 01/09/78 Article 3.3.4 Stop orders 01/28/72 05/31/72 Article 4.3.4 Emissions from any mobile equipment 01/28/72 05/31/72 Article 7.2.5 Basic Refractory 11/05/80 06/18/82 Article 7.2.9 Sierra Chemical Co 11/05/80 06/18/82 Article 8.1 Primary Non-Ferrous Smelters 06/14/74 02/06/75 Articles 8.1.1, 8.1.2, & 8.1.4 Primary Non-Ferrous Smelters 10/31/75 01/09/78 Article 8.3.4 Basic 11/05/80 06/18/82 Article 16.3.1.2 Regulations controlling cement (Applying to Portland cement plants) 12/29/78 06/18/82 Articles 16.3.2, 16.3.2.1, & 16.3.2.2 Standard of particulate matter for clinker cooler (Applying to Portland cement plants) 12/29/78 06/18/82 Article 16.15 Primary lead smelters 12/29/78 06/18/82 Articles 16.15.1 to 16.15.1.2 Standard for Particulate Matter (Applying to primary lead smelters) 12/29/78 06/18/82 Articles 16.15.2 to 16.15.2.2 Standard for Opacity (Applying to primary lead smelters) 12/29/78 06/18/82 Articles 16.15.3 to 16.15.3.2 Standard for Sulfur (Applying to primary lead smelters) 12/29/78 06/18/82 Article 16.15.4 Monitoring Operations (Applying to primary lead smelters) 12/29/78 06/18/82 NAC 445.662 Confidential Information 10/26/82 03/27/84 NAC 445.695 Schedules for compliance 10/26/82 03/27/84 NAC 445.698 Appeal of director's decision: Application forms 10/26/82 03/27/84 NAC 445.700 Violations: Manner of paying fines 10/26/82 03/27/84 NAC 445.723 Existing copper smelters 10/26/82 03/27/84 NAC 445.815 Molybdenum processing plants 09/14/83 03/27/84 NAC 445.816(2) (a), (b), (c), (e), (f), (g), (h), and
(i)Processing Plants for Precious Metals 09/14/83 03/27/84 NAC 445.844 Odors 10/26/82 03/27/84 NRS 445.401 Declaration of public policy 12/29/78 07/10/80 Section 13(15) and
(19)of Senate Bill No. 275 [State commission of environmental protection—review recommendations of hearing board and delegation] 01/28/72 05/31/72 NRS 445.466 Commission regulations: Notice and hearing 12/29/78 07/10/80 NRS 445.497 Notice of regulatory action: Requirement; method; contents of notice 12/29/78 07/10/80 40 CFR 52.1475(c), (d), and
(e)Control strategy and regulations: Sulfur oxides N.A. 02/06/75 Table 2 lists the rules and statutes for which the State's rescission request is proposed for disapproval along with the related submittal and approval dates. Generally, we believe that retention of these provisions is appropriate to satisfy certain specific requirements for SIPs under CAA section 110(a)(2) or that retention is appropriate because the State has not provided sufficient documentation to show that rescission would not interfere with continued attainment of the national ambient air quality standards (NAAQS) as required under CAA section 110(l). The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 2. Table 2.—SIP Provisions for Which the State's Rescission Request Is Proposed for Disapproval SIP provision Title Submittal date Approval date NAC 445.436 Air contaminant 10/26/82 03/27/84 NAC 445.570 Portland cement plant 10/26/82 03/27/84 Article 1.171 Single source 12/10/76 08/21/78 NAC 445.630 Stop order 10/26/82 03/27/84 NAC 445.660 Severability 10/26/82 03/27/84 NAC 445.663 Concealment of emissions prohibited 10/26/82 03/27/84 NAC 445.665 Hazardous emissions: Order for reduction or discontinuance 10/26/82 03/27/84 NAC 445.696 Notice of violations; appearance before commission 10/26/82 03/27/84 NAC 445.697 Stop Orders 10/26/82 03/27/84 NAC 445.764 Reduction of employees' pay because of use of system prohibited 10/26/82 03/27/84 NAC 445.816(3),
(4)&
(5)Processing Plants for Precious Metals 09/14/83 03/27/84 NRS 445.451* State environmental commission: Creation; composition; chairman; quorum; salary, expenses of members; disqualification of members; technical support 12/29/78 07/10/80 NRS 445.456* Department designated as state air pollution control agency 12/29/78 07/10/80 NRS 445.473* Department powers and duties 12/29/78 07/10/80 NRS 445.476* Power of department representatives to enter and inspect premises 12/29/78 07/10/80 NRS 445.498* Appeals to commission; Notice of appeal 12/29/78 07/10/80 NRS 445.499* Appeals to commission; Hearings 12/29/78 07/10/80 NRS 445.501* Appeals to commission: Appealable matters; commission action; rules for appeals 12/29/78 07/10/80 NRS 445.526* Violations: Notice and order by director; hearing; alternative procedures 09/10/75 01/24/78 NRS 445.529* Violations: Injunctive relief 12/29/78 07/10/80 NRS 445.576* Confidential information: Definitions; limitations on use; penalty for unlawful disclosure or use 09/10/75 01/24/78 NRS 445.581* Power of department officers to inspect, search premises; search warrants 12/29/78 07/10/80 NRS 445.596* Private rights and remedies not affected 12/29/78 07/10/80 NRS 445.598* Provisions for transition in administration 12/29/78 07/10/80 NRS 445.601* Civil penalties; fines not bar to injunctive relief, other remedies; disposition of fines 12/29/78 07/10/80 Note: Asterisk (*) indicates applicable SIP provisions for which replacement provisions are being proposed for approval herein (see table 3, below). Table 3 lists the submitted provisions for which EPA is proposing approval and that, upon final approval, will supersede corresponding outdated provisions in the applicable SIP. In its January 12, 2006 SIP revision submittal, NDEP requests EPA to approve new statutory provisions to replace any outdated State statutory provisions for which EPA determines that the rescission request should not be approved. As noted above, we are proposing to disapprove requests for rescission of certain statutory provisions, and thus, consistent with the State's request, we are proposing approval of 14 specific statutory provisions, submitted by NDEP in appendix III-E of the January 12, 2006 SIP revision submittal, to replace the corresponding statutory provisions in the applicable SIP (see table 3, below). In general, we find that the current statutory provisions listed in table 3 essentially mirror the corresponding outdated provisions in the applicable SIP and thus would not relax any existing requirement. 5 5 Because the current statutory provisions essentially mirror the outdated provisions, we view our proposed approval of the current statutory provisions as a re-codification and, as such, we are not taking action to remedy pre-existing deficiencies in the applicable SIP. We note, however, that one of the provisions, NRS 445B.200 (“Creation and composition; chairman; quorum; compensation of members and employees; disqualification; technical support”), does not meet the related SIP requirements (CAA section 110(a)(2)(E)(ii) and CAA section 128) and could be the subject of some future EPA rulemaking, such as one under CAA section 110(k)(5). The TSD provides more details concerning our proposal and rationale with respect to each of the items listed in table 3. Table 3.—Submitted Provisions Which Are Proposed for Approval as Replacements for Outdated Provisions in the Applicable SIP Submitted provisions Title Submittal date NRS 445B.200 Creation and composition; chairman; quorum; compensation of members and employees; disqualification; technical support 01/12/06 NRS 445B.205 Department designated as state air pollution control agency 01/12/06 NRS 445B.230 Powers and duties of department 01/12/06 NRS 445B.240 Power of representatives of department to enter and inspect premises 01/12/06 NRS 445B.340 Appeals to commission: notice of appeal 01/12/06 NRS 445B.350 Appeals to commission: hearings 01/12/06 NRS 445B.360 Appeals to commission: appealable matters; action by commission; regulations 01/12/06 NRS 445B.450 Notice and order by director; hearing; alternative procedures 01/12/06 NRS 445B.460 Injunctive relief 01/12/06 NRS 445B.570 Confidentiality and use of information obtained by department; penalty 01/12/06 NRS 445B.580 Officer of department may inspect or search premises; search warrant 01/12/06 NRS 445B.600 Private rights and remedies not affected 01/12/06 NRS 445B.610 Provisions for transition in administration 01/12/06 NRS 445B.640 Levy and disposition of administrative fines; additional remedies available; penalty 01/12/06 C. Public Comment and Proposed Action Under CAA section 110(k)(3), EPA is proposing approval of most of the State of Nevada's requests to rescind nearly 200 rules and statutes from the applicable SIP but is proposing disapproval of some of those requests. EPA is also proposing approval of certain statutory provisions submitted by the State of Nevada as replacements for outdated provisions in the applicable SIP. The approval proposed herein is contingent upon receipt of certain public notice and hearing documentation from the State of Nevada. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will rescind the rules and statutes shown in table 1, above, from the applicable SIP (contingent upon receipt of public notice and hearing documentation), retain certain rules and statutes in the applicable SIP (shown in table 2, above), and approve certain replacement provisions (shown in table 3, above). III. 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 action merely proposes to approve or disapprove a State request for rescission and to approve certain replacement provisions 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 or disapprove a State request for rescission and to approve certain replacement provisions 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, Intergovernmental relations, Lead, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Authority: 42 U.S.C. 7401 *et seq.* Dated: August 16, 2006. Jane Diamond, Acting Regional Administrator, Region IX. [FR Doc. E6-14214 Filed 8-25-06; 8:45 am] BILLING CODE 6560-50-P 71 166 Monday, August 28, 2006 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request August 23, 2006. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@­OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Animal Plant and Health Inspection Service *Title:* Recognizing the Animal Disease Status of Regions in the European Union. *OMB Control Number:* 0579-0218. *Summary of Collection:* Regulations under which the Animal Plant and Health Inspection Service (APHIS) conducts disease prevention activities are contained in Title 9, Chapter 1, Subchapter D, Parts 91 through 99, of the Code of Federal Regulations. These regulations govern the importation of animals, birds, and poultry products, and animal germplasm. Under these regulations, certain regions of the European Union are allowed to import into the United States live breeding swine, pork, and pork products and swine semen. The specific regions are Greece, Austria, Belgium, France, Netherlands, Portugal, and Spain and designated sub-region in Germany and Italy. APHIS has determined that these items, imported from these specific regions in accordance with its other import requirements, will pose a low risk of introducing classical swine fever into the United States. *Need and Use of the Information:* APHIS will collect information concerning the origin and history of the items destined for importation into the United States. APHIS will also collect information to ensure that swine, pork and pork products, and swine semen pose a negligible risk of introducing exotic swine diseases into the United States. If the information is not collected it would cripple APHIS ability to ensure that swine, pork and pork products, and swine semen pose a minimal risk of introducing classical swine fever and other exotic animal disease into the United States. *Description of Respondents:* Business or other for profit; State, Local and Tribal Government. *Number of Respondents:* 30. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 300. Ruth Brown, Departmental Information Collection Clearance Officer. [FR Doc. E6-14212 Filed 8-25-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2006-0136] Secretary's Advisory Committee on Foreign Animal and Poultry Diseases; Meeting AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of meeting. SUMMARY: Pursuant to the Federal Advisory Committee Act (5 U.S.C. App. II), we are giving notice of a meeting of the Secretary's Advisory Committee on Foreign Animal and Poultry Diseases. DATES: The meeting sessions will be held from 8:30 a.m. to 5 p.m. on September 12 and 13, 2006. ADDRESSES: The meeting will be held in Room 2A04 (Training Room 1) and Room 2A06 (Training Room 2) at the USDA Center at Riverside, 4700 River Road, Riverdale, MD. FOR FURTHER INFORMATION CONTACT: Dr. Mark Teachman, Acting Director, Interagency Coordination, Emergency Management, VS, APHIS, 4700 River Road Unit 41, Riverdale, MD 20737-1231;
(301)734-8073. SUPPLEMENTARY INFORMATION: The Secretary's Advisory Committee on Foreign Animal and Poultry Diseases (the Committee) advises the Secretary of Agriculture on actions necessary to prevent the introduction of foreign diseases of livestock and poultry into the United States. In addition, the Committee advises the Secretary on contingency planning and on maintaining a state of preparedness to deal with these diseases, if introduced. The meeting will focus on the U.S. animal health emergency management system and the foreign animal disease situation worldwide and its relevance to the United States. The meeting will be open to the public. However, due to time constraints, the public will not be allowed to participate in the Committee's discussions. You may obtain an agenda for the meeting by contacting Dr. Mark Teachman at the address listed under FOR FURTHER INFORMATION CONTACT . You may file written statements on meeting topics with the Committee before or after the meeting by sending them to Dr. Mark Teachman at the address listed under FOR FURTHER INFORMATION CONTACT . You may also file written comments at the time of the meeting. Please refer to Docket No. APHIS-2006-0136 when submitting your comments. Parking and Security Procedures Please note that a fee of $2.25 is required to enter the parking lot at the USDA Center. The machine accepts $1 bills and quarters. Upon entering the building, visitors should inform security personnel that they are attending the Advisory Committee Meeting on Foreign Animal and Poultry Diseases, and contact the APHIS Veterinary Services Emergency Management office at
(301)734-8073 from the lobby telephone to be ushered to the meeting. Photo identification is required. Visitor badges must be worn at all times while inside the building. Done in Washington, DC, this 23rd day of August 2006. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-14220 Filed 8-25-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Forest Service Iyouktug Timber Sales, Hoonah Ranger District, Tongass National Forest AGENCY: Forest Service, USDA. ACTION: Notice of Intent to Prepare an Environmental Impact Statement. SUMMARY: The Department of Agriculture, Forest Service will prepare an Environmental Impact Statement
(EIS)on a proposal to harvest timber in the Iyouktug valley on Chicagof Island, Hoonah Ranger District of the Tongass National Forest. The Proposed Action is to harvest an estimated 57 million board feet
(MMBF)of timber from approximately 4,430 acres of forested land through various small sales, and one or more larger sales, offered over a 10-year period. Approximately 5 miles of National Forest System road would be constructed, and 12 miles of temporary road would be constructed; temporary road would be closed after timber management activities have been completed. The Proposed Action would include harvest of approximately 2,050 acres and construction of approximately 3 miles of National Forest System road and 6 miles of temporary road in inventoried roadless areas. The existing Long Island log transfer facility will be used as needed. In order to meet Tongass Land and Resource Management Plan (Forest Plan) criteria for old growth reserves, a non-significant Forest Plan amendment to change the boundaries of the small old-growth habitat reserves
(OGRs)will be part of the Proposed Action. DATES: Opportunities for comment are available throughout the analysis process. Those interested in receiving a scoping package should contact us at the address below. Comments concerning this stage of the project will be most helpful if received by October 2, 2006. Additional opportunities for comment will be provided after release of the Draft EIS, which is expected to be published September 2007. A 45-day comment period will begin the date the Environmental Protection Agency
(EPA)publishes the Notice of Availability in the **Federal Register.** The final environmental impact statement and decision are expected December 2007. ADDRESSES: Send or hand deliver written comments to: IDT Leader, Sitka Ranger District, Tongass National Forest, Attn: Iyouktug Timber Sales EIS, 204 Siginaka Way, Sitka, AK 99835. Send written e-mail comments to: *comments-alaska-tongass-hoonah@fs.fed.us* with “Iyouktug EIS” in the subject line. In all correspondence, include your name, address, and organization name if you are commenting as a representative of an organization. FOR FURTHER INFORMATION CONTACT: Chris Budke, Acting District Ranger, Hoonah Ranger District, P.O. Box 135, Hoonah, AK 99829, phone
(907)945-3631 or Hans von Rekowski, Team Leader, Sitka Ranger District, 204 Siginaka Way, Sitka, AK 99835, phone
(907)747-4217. SUPPLEMENTARY INFORMATION: This EIS will tier to the EIS for the 1997 Tongass Land and Resource Management Plan (Forest Plan) that provides overall guidance, goals, objectives, standards, guidelines, and management area direction to achieve the desired condition for the project area. The project area is administered by the Hoonah Ranger District of the Tongass National Forest, Hoonah, Alaska and occurs in Value Comparison Units
(VCU)2080, 2090, and 2100 as designated by the Forest Plan. The project area includes approximately 40,650 acres. The Iyouktug project area is located northwest of Iyoukeen Peninsula on the northeastern part of Chichagof Island about 12 air miles east-southeast of Hoonah, Alaska, 30 air miles west of Juneau, Alaska, and 15 air miles northeast of Tenakee Springs. The project area lies north of Freshwater Bay, west of False Bay and Chatham Strait, and south of Icy Strait, along National Forest System Road #8530; it lies within the Iyouktug and Suntaheen Creek valleys and includes Whitestone Harbor. The project area is in Townships 43-44 South, and Ranges 62-64 East, Copper River Meridian. Purpose and Need The purpose and need for the Iyouktug Timber Sales project is to:
(1)Maintain and promote wood production from suitable timber lands, providing a supply of wood to meet society's needs;
(2)Seek to provide a stable supply of timber from the Tongass National Forest which meets the annual planning-cycle market demand, while managing these lands for sustained long-term yields, consistent with sound multiple-use and sustained-yield objectives;
(3)Seek to provide a long-term, stable supply of timber for local sawmills and timber operators; and
(4)Provide a diversity of opportunities for resource uses that contribute to the local and regional economies of Southeast Alaska to support a wide range of natural resource employment opportunities within Southeast Alaska's communities. The Iyouktug Timber Sales Proposed Action is consistent with the 1997 Tongass Forest Plan. Proposed Action The Proposed Action for the Iyouktug project area is to harvest an estimated 57 million board feet
(MMBF)of timber from approximately 4,430 acres of forested land while meeting Forest Plan standards. The timber would be offered through various small sales, and one or more large sales over a 10-year period following the Record of Decision (ROD). It is anticipated that 1 to 5 MMBF (averaging 3 MMBF) of timber harvested through ground-based logging systems would be offered annually as small sales. The large sale(s) would be composed primarily of units harvested through helicopter logging. The larger timber sale(s) would be offered concurrently with the small sales. Timber harvest would occur on an estimated 4,430 acres of the 9,290 acres within the entire timber unit pool. Some areas in the timber unit pool are not being considered for timber harvest in this Proposed Action; however, when other alternatives are developed, we may propose harvest in some of the other units in the pool. The Proposed Action includes approximately 2,680 acres of helicopter and 1,750 acres of ground-based shovel and cable yarding systems. Areas suitable for ground-based logging would be harvested either even-aged (clearcut) or uneven-aged (group or single tree selection) harvest prescriptions depending on terrain, tree species, economics, or environmental concerns. Helicopter would be uneven-aged harvest with no more than 40% of the harvest-unit volume removed. All timber harvest will use silvicultural prescriptions suited to meet the standards and guidelines of the Tongass Forest Plan. The Proposed Action includes construction of approximately 5 miles of National Forest System road and 12 miles of temporary road; it would also include reconstruction of 3 miles of existing road. The existing Long Island Log Transfer Facility
(LTF)will be utilized for these sales, if needed. Harvest activities are proposed to occur only on land allocated to the Timber Production Land Use Designation (LUD); the other LUDs in the project area are Scenic Viewshed and Old-growth Habitat. The Iyouktug project area includes two small old-growth habitat reserves
(OGRs)and a portion of a large OGR as designated in the Forest Plan. The small OGRs are located in Value Comparison Units
(VCUs)2080, 2090, and 2100; the portion of the large OGR is a VCU 2100. To meet Forest Plan criteria for old-growth reserves, changes to the small OGR boundaries will be proposed as part of this project. A non-significant Forest Plan amendment will be required to address these changes. Harvest is proposed in unroaded areas including parts of three inventoried roadless areas. Approximately 25,590 acres of the Iyouktug project area are in three inventoried roadless areas; the Proposed Action would include harvest of approximately 2,050 acres and construction of approximately 3 miles of National Forest System road and 6 miles of temporary road in inventoried roadless areas. Preliminary Issues Tentative issues identified for analysis in this EIS relate to the location and design of small Old-Growth Habitat Reserves and connectivity, subsistence use, economics, and timber harvest in roadless areas. Resource concerns that will be considered and discussed in the analysis include heritage resources, fisheries, karst features, steep slopes, threatened, endangered, and sensitive species, scenery, and the potential for cumulative watershed impacts in the project area. Public Participation Public participation has been an integral component of the analysis process and will continue to be especially important at several points during the analysis. This Notice of intent
(NOI)and the project scoping letter initiate the scoping process that guides the development of the Environmental Impact Statement. The Forest Service will be seeking information, comments and suggestions from Tribal Governments, Federal, State, and local agencies, as well as individuals and organizations that may be interested in, or affected by, the Proposed Action. This process will determine the scope of the project and significant issues to be analyzed in depth in the Environmental Impact Statement. A scoping letter has recently been mailed to interested people and organizations; the scoping letter is available upon request. The letter briefly describes the project and project area, the purpose and need for the project, the Proposed Action, and invites public comment. An open house meeting will be held in Hoonah, Alaska on September 6, 2006, at the Hoonah Ranger District Office. The meeting will be announced in local newspapers and on local radio stations. Through the scoping process the Interdisciplinary Planning Team will review comments received during the scoping period to determine which issues are significant and within the scope of this project. The team will develop a range of alternatives to address the significant issues. One of these will be the “No Action” alternative, in which no additional timber harvest or road construction is proposed. Other alternatives will consider various levels and locations of timber harvest in response to issues and non-timber objectives. The team will then prepare a Draft Environmental Impact Statement
(DEIS)that will display the alternatives and the direct, indirect, and cumulative effects of each alternative. Non-significant issues or those issues that have been covered by a previous environmental review will be discussed briefly and documented in the EIS or project planning record. The DEIS is expected to be filed with the Environmental Protection Agency
(EPA)by September 2007. The comment period on the DEIS will be 45 days from the date the EPA publishes the Notice of Availability in the **Federal Register** . In addition to commenting on the Proposed Action and the DEIS when it is released, agencies and other interested persons or groups are invited to write to or speak with Forest Service officials at any time during the planning process. Subsistence hearings, as provided for in Title VIII, section 810 of the Alaska National Interest Lands Conservation Act (ANILCA), will be conducted during the comment period on the Draft Environmental Impact Statement. The Forest Service believes that at this early scoping stage, it is important to inform reviewers of several court rulings related to public participation in the environmental review process. First, reviewers of draft environmental impact statements must structure their participation in the environmental review of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC, 435 U.S. 519, 553 (1978).* Also, environmental objections that could be raised at the Draft Environmental Impact Statement stage but that are not raised until after completion of the Final Environmental Impact Statement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel* , 803 F. 2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris* , 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this Proposed Action participate by the close of the 45-day comment period so that comments and objections are made available to the Forest Service at a time during which the agency can meaningfully consider them and respond to them in the Final Environmental Impact Statement. To assist the Forest Service in identifying and considering issues and concerns on the Proposed Action, comments on the Draft Environmental Impact Statement should be as specific as possible. It is also helpful if comments refer to specific pages or chapters of the draft statement. Comments may also address the adequacy of the DEIS or the merits of the alternatives formulated and discussed in the statement. Reviewers may wish to refer to the Council on Environmental Quality regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. Comments submitted anonymously will be accepted and considered; however, those who submit anonymous comments will not have standing to appeal the subsequent decision under 36 CFR part 215. Additionally, pursuant to 7 CFR 1.27(d), any person may request that the agency withhold a submission from the public record by showing how the Freedom of Information Act
(FOIA)permits such confidentiality. Persons requesting such confidentiality should be aware that, under the FOIA, confidentiality may be granted in only very limited circumstances, such as to protect trade secrets. The Forest Service will inform persons requesting confidentiality of the agency's decision regarding their request, and where the request is denied, the agency will return the submission and notify the requester that the comments may be resubmitted with or without the name and address within seven days. Permits or Licenses Required The permits listed below are required to implement the project, if the Long Island LTF is used. These permits are current and are held by Huna Totem Corporation. The Forest Service has a cost-share agreement with the Huna Totem Corporation to utilize the LTF under the following permits: 1. U.S. Army Corps of Engineers —Approval of discharge of dredged or fill material into the waters of the United States under Section 404 of the Clean Water Act; —Approval of the construction of structures or work in navigable waters of the United States under section 10 of the Rivers and Harbors Act of 1899; 2. U.S. Environmental Protection Agency —Storm water discharge permit/National Pollutant Discharge Elimination System review under section 402 of the Clean Water Act (402); —Review Spill Prevention Control and Countermeasure Plan; 3. State of Alaska, Department of Environmental Conservation —Certification of Compliance with Alaska Water Quality Standards (401 Certification); —Solid Waste Disposal Permit; 4. State of Alaska, Department of Natural Resources
(DNR)—Authorization for occupancy and use of tidelands and submerged lands. In addition to the above permits, the Forest Service is required to obtain concurrence from the State of Alaska, Office of Project Management & Permitting (in the Department of Natural Resources) on a coastal zone consistency determination to proceed with the Proposed Action. Responsible Official The Forest Supervisor, Tongass National Forest, Federal Building, 648 Mission Street, Ketchikan, Alaska 99901, is the responsible official. Nature of the Decision To Be Made The responsible official will decide whether or not to authorize timber harvest within the Iyouktug project area, and if so, how this timber would be harvested. The responsible official would also determine the location of OGR boundaries. The Responsible Official will consider the comments, responses, and disclosure of environmental consequences displayed in the FEIS, and applicable laws, regulations, and policies in making a decision. The Responsible Official will state the decision and the rationale for the decision in the Record of Decision (ROD). (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: August 21, 2006. Forrest Cole, Forest Supervisor. [FR Doc. 06-7198 Filed 8-25-06; 8:45 am]
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U.S. Code
48 references not yet in our index
  • Pub. L. 106-159
  • 113 Stat. 1748
  • 49 CFR 1.73(a)(5)
  • 49 CFR 392
  • 49 CFR 392.9
  • 49 CFR 350.201(t)(1)
  • 49 CFR 350.201(t)
  • 49 CFR 390.5
  • 49 CFR 372.103
  • 49 CFR 372
  • 49 CFR 372.115
  • 5 USC 601-612
  • Pub. L. 104-121
  • 110 Stat. 857
  • Pub. L. 104-4
  • 40 CFR 93.153(c)(2)
  • 49 CFR 350
  • 49 CFR 390
  • 49 CFR 1.73
  • 49 CFR 350.105
  • 49 CFR 365
  • 49 CFR 368
  • 49 CFR 350.201
  • 49 CFR 387
  • Pub. L. 104-88
  • 109 Stat. 803
  • 49 USC 701
  • Pub. L. 103-311
  • 108 Stat. 1673
  • 49 CFR 386.72
  • 30 CFR 938
  • Pub. L. 92-463
  • 5 USC 561-570
  • 38 CFR 21
  • Pub. L. 104-275
  • Pub. L. 96-466
  • 44 USC 3501-3521
  • 40 CFR 52
  • 40 CFR 51
  • 40 CFR 52.1475(c)
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U.S.C.§ 1532
U.S.C.§ 3501
U.S.C.§ 4321
U.S.C.§ 7401
SCOTUS435 U.S. 519
F. App'x803 F.2d 1016
F. Supp.490 F. Supp. 1334
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