Rules and Regulations. Temporary final rule

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BILLING CODE 4191-02-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD01-06-131] RIN 1625-AA00 Safety Zone; Cocheco River Dredging Project, Cocheco River, NH AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone around a blasting project between the Upper and Lower Narrows of the Cocheco River near Dover, NH. This safety zone is necessary to provide for the safety of persons and vessels in the maritime community from the hazards associated with a blasting project.

Entry into this zone by any vessel is prohibited unless specifically authorized by the Captain of the Port, Northern New England. DATES: This rule is effective from 8 a.m. Eastern Standard Time

(EST)on November 15, 2006 until 4 p.m. Eastern Standard Time

(EST)on December 30, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD01-06-131 and are available for inspection or copying at U.S. Coast Guard Sector Northern New England, 259 High Street, South Portland, ME 04106 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade J. B. Bleacher, Prevention Department, Sector Northern New England at

(207)742-5421. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The final details of the project were not determined until October 23, 2006 making it impossible to publish a NPRM or a final rule 30 days in advance of the desired effective dates. Further, postponing the blasting project is impractical as ice conditions in the river will increase the difficulty of completing this project on schedule. The Coast Guard finds that immediate action is needed to protect mariners against the potential hazards associated with these blasting operations. Under 5 U.S.C. 553(d)(3), the Coast Guard also finds, for the same reasons, that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Background and Purpose On November 1, 2006, Charter Environmental, Inc. began dredging operations on the Cocheco River between the Upper and Lower Narrows in order to both widen and deepen the river channel. Ledge areas in the river will be removed by drilling and blasting methods. Blasting operations are scheduled to begin November 15, 2006 and end on December 30, 2006. Charter Environmental, Inc. will notify the USCG at least 24 hours prior to any blasting operation and all blasting will be conducted only at high tide. Public notifications will be made during the effective period via marine safety information broadcasts. This regulation establishes a 100 yard safety zone around all blasting areas. Entry into this zone will be prohibited unless authorized by the Captain of the Port. Discussion of Rule This rule is effective from 8 a.m. EST on November 15, 2006 until 4 p.m. EST on December 30, 2006. This safety zone is needed to safeguard mariners from the hazards associated with blasting operations on the designated waters in the Cocheco River. During the effective period of the safety zone, vessel traffic will be restricted in various portions of the river, depending on where blasting operations are taking place. Although the safety zone will be in effect for six weeks, it will only be enforced during actual blasting times. Entry into those zones by any vessel is prohibited unless specifically authorized by the Captain of the Port, Northern New England. The Captain of the Port anticipates negligible negative impact on vessel traffic from this temporary safety zone as it will be in effect only during blasting operations. Blasting will only be scheduled for times of high tide and it is anticipated that if the occasional vessel needs to transit with high tide depths it is unlikely that blasting will prevent passage during the entire high tide cycle. Further, vessel traffic is extremely light at this time of year. It has been determined that the enhanced safety to life and property provided by this rule greatly outweighs any potential negative impacts. Public notifications will be made during the entire effective period of this safety zone via marine information broadcasts. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation is unnecessary. The effect of this rule will not be significant for the following reasons: the safety zone will be enforced only during blasting operations. Vessels will be permitted to transit and navigate in the effected waters when no blasting is taking place, minimizing any adverse impact. The blasting operations are being conducted in winter months when vessel traffic is extremely light. Additionally, extensive maritime advisories will be broadcast during the duration of the effective period. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit in the vicinity of the Upper and Lower Narrows on the Cocheco River. The safety zone will not have a significant impact on a substantial number of small entities for the reasons described under the Regulatory Evaluation section. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Lieutenant Junior Grade J. B. Bleacher, Prevention Department, Sector Northern New England at

(207)742-5421. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule 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. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T01-131 to read as follows: § 165.T01-131 Safety Zone; Cocheco River Dredging Project, Cocheco River, NH.

(a)*Location.* The following area is a safety zone: all waters in the Cocheco River, from surface to bottom, between the Upper and Lower Narrows within 100 yards of any and all blasting operations. All vessels are restricted from entering this area.

(b)*Effective Period.* This section is effective from 8 a.m. Eastern Standard Time

(EST)on November 15, 2006 until 4 p.m. EST on December 30, 2006.

(c)*Definitions.*

(1)*Designated representative* means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP).

(2)*[Reserved]*

(d)*Regulations.*

(1)In accordance with the general regulations in § 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the COTP, Northern New England or the COTP's designated representative.

(2)The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.

(3)Vessel operators desiring to enter or operate within the safety zone must contact the COTP or the COTP's designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the COTP's designated representative. Dated: November 7, 2006. Stephen P. Garrity, Captain, U.S. Coast Guard, Captain of the Port, Northern New England. [FR Doc. E6-19561 Filed 11-17-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP Honolulu 06-007] RIN 1625-AA00 Safety Zone; Kealakekua Bay, HI AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone in Kealakekua Bay on the Island of Hawaii. This zone is established at the request of the Hawaii County Civil Defense due to mudslides and falling rocks. These falling rocks present a hazard to users of Kealakekua Bay. Entry of persons or vessels into this temporary safety zone is prohibited unless authorized by the Captain of the Port (COTP). DATES: This rule is effective from 10 a.m.

(HST)on October 25, 2006 until 12 a.m.

(HST)on April 18, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket COTP Honolulu 06-007 and are available for inspection or copying at Coast Guard Sector Honolulu, 433 Ala Moana Blvd, Honolulu, HI between 7 a.m. and 3:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant (Junior Grade) Quincey Adams, U.S. Coast Guard Sector Honolulu at

(808)842-2600. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. This zone is established due to reports of mudslides and falling rocks in Kealakekua Bay causing an immediate danger to the public. Publishing an NPRM and delaying the effective date would be contrary to the public safety. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . The COTP finds this good cause to be the immediate need for a safety zone to protect the public. Background and Purpose On October 15, 2006, a 6.7-magnitude earthquake occurred at 7:08 am

(HST)with an epicenter approximately 10 miles NNW of Kailua-Kona Bay on the island of Hawaii. The Hawaii County Civil Defense requested a safety zone after initial damage assessment reports of mudslides and falling rocks in Kealakekua Bay. In response, COTP Honolulu established a preliminary safety zone in Kealakekua Bay from the shore line to a line drawn from the lighthouse on Ka'awaloa Cove to the Hikiau Heiau landmark on Napo'opo'o Beach. As part of the ongoing damage assessments, the State of Hawaii has requested that the safety zone be reduced in size. The COTP will publish a final rule in the **Federal Register** to cancel this zone prior to its expiration date if future damage assessments indicate that the danger to the public from falling rocks and debris no longer exists. Discussion of Rule This temporary safety zone is effective from 10 a.m.

(HST)on October 25, 2006 until 12 a.m. on April 18, 2007 unless cancelled earlier by the Captain of the Port. It is located in the waters of Hawaii Island's Kealakekua Bay between the shore and a line drawn from the Captain Cook Monument to the Hikiau Heiau landmark on Napo'opo'o Beach, from the surface of the water to the ocean floor. The general regulations governing safety zones contained in 33 CFR 165.23 apply. Entry into, transit through or anchoring within this zone is prohibited unless authorized by the Captain of the Port or a designated representative thereof. The Captain of the Port will cause notice of the enforcement of the safety zone described in this section to be made by broadcast notice to mariners. Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce the zone. The Captain of the Port may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime security. Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232. Regulatory Evaluation This rule is not a “significant regulatory action” under § 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under § 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This expectation is based on the limited duration of the zone and the limited geographic area affected by it. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. We expect that there will be little or no impact to small entities due to the narrowly tailored scope of this safety zone. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and either preempts State law or imposes a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule 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. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards is inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, under figure 2-1, paragraph (34)(g) of the Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. An “Environmental Analysis Check List” and “Categorical Exclusion Determination (CED)” are available in the docket where indicated under ADDRESSES . List of Subjects 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add a new § 165.T14-149 to read as follows: § 165.T14-149 Safety zone; Kealakekua Bay, HI.

(a)*Location.* The following area, in U.S. navigable waters within the Honolulu Captain of the Port Zone (See 33 CFR 3.70-10), from the surface of the water to the ocean floor, is a safety zone: All waters of Kealakekua Bay from the shore to a line drawn from the Captain Cook Monument to the Hikiau Heiau landmark on Napo'opo'o Beach.

(b)*Effective dates.* This safety zone is effective from 10 a.m.

(HST)on October 25, 2006 until 12 a.m.

(HST)on April 18, 2007.

(c)*Regulations.* The general regulations governing safety zones contained in 33 CFR 165.23 apply. Entry into, transit through, or anchoring within this zone is prohibited unless authorized by the Captain of the Port or a designated representative thereof.

(d)*Enforcement.* Any Coast Guard commissioned, warrant, or petty officer, and any other Captain of the Port representative permitted by law, may enforce this temporary safety zone.

(e)*Waiver.* The Captain of the Port may waive any of the requirements of this rule for any person, vessel, or class of vessel upon finding that application of the safety zone is unnecessary or impractical for the purpose of maritime security.

(f)*Penalties.* Vessels or persons violating this rule are subject to the penalties set forth in 33 U.S.C. 1232. Dated: October 25, 2006. V.B. Atkins, Captain, U.S. Coast Guard, Captain of the Port, Honolulu. [FR Doc. E6-19557 Filed 11-17-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AM13 Phase-In of Full Concurrent Receipt of Military Retired Pay and Veterans Disability Compensation for Certain Military Retirees AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: The Department of Veterans Affairs

(VA)is amending its regulations concerning concurrent receipt of military retired pay and veterans' disability compensation. This final rule implements section 641 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136). This law permits certain veterans who are entitled to military retired pay and are receiving disability compensation for a service-connected disability (or a combination of service-connected disabilities) rated at 50 percent or higher to receive disability compensation as well as their military retired pay. The intended effect of the regulation is to clearly state who is eligible for concurrent receipt of disability compensation and military retired pay, who must waive military retired pay to receive disability compensation, and how to file such a waiver. DATES: *Effective Date:* This amendment is effective November 20, 2006. FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420,

(202)273-7211. SUPPLEMENTARY INFORMATION: On July 7, 2005, VA published in the **Federal Register** (70 FR 39213) a proposal to revise VA's rules concerning concurrent receipt of military retired pay and veterans' disability compensation. Interested persons were invited to submit written comments on or before September 6, 2005. We received comments from six members of the public. Subsequently, on January 6, 2006, Congress further amended section 1414 of title 10, United States Code, by enacting section 663 of Public Law 109-163, the National Defense Authorization Act for Fiscal Year 2006. This Notice first explains why we have made changes based on the comments to the July 7, 2005, notice of proposed rulemaking, and then explains changes necessitated by section 663 of Public Law 109-163. Comments to July 7, 2005, Notice of Proposed Rulemaking Three commenters stated support for concurrent receipt. These commenters did not suggest any changes to the proposed rule, and we make no change based on these comments. Two commenters questioned the 20-year service requirement for the program, and why those who are medically retired from the military, with less than 20 years of service, have to give up their retired pay in order to receive disability compensation. Title 10 U.S.C. 1414(b)(2) clearly precludes persons medically retired with less than 20 years of service from concurrently receiving retired pay and VA benefits. Thus, in this rulemaking, VA is simply implementing existing law passed by Congress. VA does not have authority to change the eligibility requirements provided by statute regarding the concurrent receipt of retired pay and VA benefits for retired veterans. However, we have removed the general 20-year-service requirement from proposed § 3.750(b)(1) because 10 U.S.C. 1414 contains no such requirement. Moreover, because we believe that several of the comments, as well as our own internal review during the comment period, suggest a need for some clarification as to the waivers required by 10 U.S.C. 1414 of persons retired under chapter 61 of title 10, U.S.C., we have slightly modified the structure and language of § 3.750(b)(2). Paragraph (b)(2) now clearly states that persons retired under chapter 61 must comply with any waivers required by § 3.750(c) as well as any waivers required by 38 U.S.C. 5304 and 5305, which are explicitly applicable to chapter 61 retirees under 10 U.S.C. 1414(b)(1). We also clarify in paragraph

(c)the types of waivers applicable to persons who are eligible for both retired pay and disability compensation. These changes directly implement statutory language, which is not susceptible to a different interpretation, and simply clarify the regulation previously proposed, without changing the rights and obligations governed by that regulation. One commenter stated that the amendment to 10 U.S.C. 1414 made by section 641 of Public Law 108-136 will also affect 10 U.S.C. 1408, The Uniformed Services Former Spouses Protection Act, Public Law 97-252, 96 Stat. 730 (1982)), which is administered by the Department of Defense (DoD). The commenter asserted that, in affecting section 1408, the new provisions will affect State, local or tribal governments as they independently adjudicate civil court marital separation agreements and divorce decrees, which are required to address protection of a military service person's rights. This comment is outside of the scope of the proposed regulation. The commenter suggested no changes to the regulation; the comment questioned a statute's effect on another, tangentially related statute that is outside VA's authority. Therefore, we make no change based on this comment. In paragraph (a), we changed, “For the purposes of this section,” to read, “For the purposes of this part,” because all part 3 references to military retired pay meet this definition. Also in paragraph (a), we changed “classified as military retired pay” to “classified as retired pay” to clarify that the service department need not use the specific adjective “military” in its classification. No substantive change is intended by this clarification. Changes Necessitated by Section 663 of Public Law 109-163 On January 6, 2006, section 663 of the National Defense Authorization Act for Fiscal Year 2006, Public Law 109-163, amended section 1414 of title 10, United States Code. Section 663 permits certain veterans who are eligible for military retired pay and for veterans' disability compensation for 100-percent disability based on a determination of individual unemployability to receive concurrent payment of both military retired pay and disability compensation subject to the phase-in period during the period beginning on January 1, 2004, and ending on September 30, 2009. VA adjudicates individual unemployability claims under 38 CFR 4.16. Based on this change in law, we have included veterans receiving disability compensation based on a VA determination of individual unemployability under 38 CFR 4.16 in section (b)(1), and added language to section (c)(ii) concerning the phase-in period to incorporate this provision into the rule. VA appreciates the comments submitted in response to the proposed rule. Based on the rationale stated in the proposed rule and in this document, the proposed rule is adopted as a final rule with the changes noted above. Paperwork Reduction Act This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). Regulatory Flexibility Act The Secretary hereby certifies that this final rule will 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. The reason for this certification is that this amendment would not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. 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 final rule and has concluded that it is a significant regulatory action under Executive Order 12866. 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 the 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 year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance Numbers and Titles The Catalog of Federal Domestic Assistance program numbers and titles for this rulemaking are 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Disability benefits, Pensions, Veterans. Approved: August 10, 2006. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set out in the preamble, 38 CFR part 3 is amended as set forth below: PART 3—ADJUDICATION Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation 1. The authority citation for part 3, subpart A continues to read as follows: Authority: 38 U.S.C. 501(a), unless otherwise noted. 2. Revise § 3.750 to read as follows: § 3.750 Entitlement to concurrent receipt of military retired pay and disability compensation.

(a)*Definition of military retired pay.* For the purposes of this part, military retired pay is payment received by a veteran that is classified as retired pay by the Service Department, including retainer pay, based on the recipient's service as a member of the Armed Forces or as a commissioned officer of the Public Health Service, the Coast and Geodetic Survey, the Environmental Science Services Administration, or the National Oceanic and Atmospheric Administration.

(b)*Payment of both military retired pay and disability compensation or improved pension* —(1) *Compensation.* Subject to paragraphs (b)(2) and (b)(3) of this section, a veteran who is entitled to military retired pay and disability compensation for a service-connected disability rated 50 percent or more, or a combination of service-connected disabilities rated at 50 percent or more, under the schedule for rating disabilities (38 CFR part 4, subpart B), or based on a determination of individual unemployability under 38 CFR 4.16, is entitled to receive both payments subject to the phase-in period described in paragraph

(c)of this section.

(2)*Chapter 61 disability retirees retiring with 20 or more years of service.* Disability retired pay payable under 10 U.S.C. Chapter 61 to a veteran with 20 or more years of creditable service may be paid concurrently with disability compensation to a qualifying veteran subject to the following:

(i)Any waiver required during the phase-in period under paragraph (c)(1)(ii) of this section; and

(ii)if the veteran's disability retired pay exceeds the amount of retired pay the veteran would have received had the veteran retired based on length of service, the veteran must waive that excess amount of disability retired pay in order to receive VA disability compensation.

(3)*Chapter 61 disability retirees retiring with less than 20 years of service.* Veterans who receive disability retired pay under 10 U.S.C. Chapter 61 with less than 20 years of creditable service are not eligible for concurrent receipt.

(4)*Improved Pension.* A veteran may receive improved pension and military retired pay at the same time without having to waive military retired pay. However, in determining entitlement to improved pension, VA will treat military retired pay in the same manner as countable income from other sources.

(c)*Waiver* —(1) *When a waiver is necessary.*

(i)A waiver of military retired pay is necessary in order to receive disability compensation when a veteran is eligible for both military retired pay and disability compensation but is not eligible under paragraphs (b)(1) or (b)(2) of this section to receive both benefits at the same time.

(ii)All veterans who are eligible to receive both military retired pay and disability compensation at the same time under paragraphs (b)(1) or (b)(2) of this section, except those receiving compensation for a disability rated 100 percent, must file a waiver in order to receive the maximum allowable amount of disability compensation during the phase-in period. For veterans receiving disability compensation based on a VA determination of individual unemployability, the phase-in period ends on December 30, 2009. For all other veterans, the phase-in period ends on December 31, 2013. After the phase-in period, veterans retired under 10 U.S.C. chapter 61 who are eligible for concurrent receipt must still file a waiver under the circumstances described in paragraph (b)(2)(ii) of this section. (Authority: 10 U.S.C. 1414, 38 U.S.C. 5304, 5305)

(2)*How to file a waiver of military retired pay.* A veteran may request a waiver of military retired pay in any written, signed statement, including a VA form, which reflects a desire to waive all or some military retired pay. The statement must be submitted to VA or to the Federal agency that pays the veteran's military retired pay. VA will treat as a waiver an application for VA compensation filed by a veteran who is entitled to military retired pay.

(d)*Elections and the right to reelect either benefit.*

(1)A veteran who has filed a waiver of military retired pay under this section has elected to receive disability compensation. A veteran may reelect between benefits covered by this section at any time by submitting a written, signed statement to VA or to the Federal agency that pays the veteran's military retired pay.

(2)An election filed within 1 year from the date of notification of Department of Veterans Affairs entitlement will be considered as “timely filed” for effective date purposes. See § 3.401(e)(1). If the veteran is incompetent, the 1-year period will begin on the date that notification is sent to the next friend or fiduciary. In initial determinations, elections may be applied retroactively if the claimant was not advised of his or her right of election and its effect. (Authority: 38 U.S.C. 5304(a), 5305) [FR Doc. E6-19603 Filed 11-17-06; 8:45 am] BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [AZ-06-01; FRL-8243-8] Notice of Resolution of Notice of Deficiency for Clean Air Operating Permits Program; Maricopa County, AZ AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of resolution. SUMMARY: EPA issued a notice of deficiency on May 17, 2005, in which EPA identified problems with Maricopa County's Clean Air Act title V operating permits program and a timeframe for the County to correct these deficiencies. The Maricopa County Air Quality Department submitted corrections to its permit program in quarterly updates beginning in February 2006 and in a final submittal dated October 20, 2006. This notice announces that, based on information provided by Maricopa County Air Quality Department, EPA concludes that Maricopa County has resolved all of the issues identified in the May 17, 2005 Notice of Deficiency. As a result, EPA will not impose sanctions set forth under the mandatory sanctions provisions of the Clean Air Act. In addition, EPA will not promulgate, administer, and enforce a whole or partial operating permit program pursuant to the title V regulations of the Clean Air Act within two years after the date of the finding of deficiency. DATES: *Effective Date:* November 9, 2006. Because this Notice of Deficiency is an adjudication and not a final rule, the Administrative Procedure Act's 30-day deferral of the effective date of a rule does not apply. FOR FURTHER INFORMATION CONTACT: Anna Yen, EPA, Region 9, Air Division (AIR-3), 75 Hawthorne Street, San Francisco, CA 94105,

(415)972-3976, or *r9airpermits@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, ”we,” “us” and “our” refer to EPA. Table of Contents I. Background II. Maricopa County's Submittal and EPA's Determination III. EPA's Action IV. Administrative Requirements I. Background On May 17, 2005, EPA issued a notice of deficiency

(NOD)for the title V operating permits program in Maricopa County, Arizona. (70 FR 32243, June 2, 2005). The NOD was based upon EPA's findings that the County's title V program did not comply with the requirements of the Clean Air Act (CAA or Act) or with the implementing regulations at 40 CFR part 70. The deficiencies EPA found were in two main categories:

(1)Permit fees and

(2)permit processing. Maricopa County was required to address these deficiencies within 18 months of the effective date of the NOD, or the County would be subject to the sanctions under 40 CFR 70.10(b)(3) and section 179(b) of the Act. In addition, 40 CFR 70.10(b)(4) provides that, if the permitting authority has not corrected the deficiency within 18 months of the date of the finding of deficiency, EPA will promulgate, administer, and enforce a whole or partial program within 2 years of the date of the finding. Region 9 performed a title V program evaluation of Maricopa County Environmental Services Department (MCESD) beginning May 27, 2004. On May 18, 2005, Region 9 issued the final program evaluation report 1 to MCESD. The deficiencies identified in the NOD are a subset of the findings described in the program evaluation report. While the program evaluation report was still being finalized, Maricopa County initiated a number of changes. In November of 2004, Maricopa County created a new Air Quality Department, separate from MCESD. In addition, Maricopa County filled two key management positions in the Maricopa County Air Quality Department (MCAQD): Department Director and Permit Engineering Division Manager. In March 2005, Robert Kard was hired as the new Department Director. In April 2005, Kathlene Graf was promoted to the position of Permit Engineering Division Manager. 2 With the reorganization and new management, Maricopa County has implemented or begun to implement many improvements to its title V program, in terms of both accepted practices and formalized procedures. 1 The report titled “Maricopa County Environmental Services Department Title V Operating Permit Program Evaluation,” is available at *http://www.epa.gov/region09/air/titlevevals.html.* 2 MCAQD has nine divisions, one of which is the Permit Engineering Division. II. Maricopa County's Submittal and EPA's Determination On August 15, 2005, Maricopa County Air Quality Department (MCAQD) submitted a corrective action plan entitled “Response to EPA Notice of Deficiency & Title V Audit” to EPA. In the plan, MCAQD responded to each deficiency noted in the May 17, 2005 NOD and to each finding in EPA's title V program evaluation report by proposing a correction for each deficiency and an action to address each EPA finding. The submittal also included a timeline that showed milestones and dates for completion of each milestone. Beginning in February 2006, Maricopa County Air Quality Department (MCAQD) submitted quarterly updates to EPA to show its progress in correcting the deficiencies noted in the NOD and in addressing the findings of the title V program evaluation report. The submittals included numerous attachments, many of which were new policy documents, guidance documents, and standard operating procedures. On October 23, 2006, EPA received MCAQD's submittal, the “Response to the Notice of Deficiency,” (NOD Response), dated October 20, 2006. The NOD Response is available to view in the docket, Docket ID No. AZ-Maricopa-06-1-OPS. In the NOD Response, and the preceding quarterly updates, MCAQD explained and documented how each of the deficiencies identified in the NOD had been, or were being, addressed. The NOD Response contains documented internal organizational and operational changes within MCAQD, an interim guidance document for title V permit revisions, a copy of the revised fee rule and new delinquent fee policy, a fee demonstration, a description of the improved accounting system, a workload assessment for title V, and other supporting attachments. This notice focuses only on MCAQD's responses to correct the deficiencies identified in the NOD. Based on the information in MCAQD's NOD Response, and the preceding quarterly updates, EPA has determined that MCAQD has demonstrated that it has resolved each of the issues listed in the May 17, 2005 NOD, as discussed below. A. Permit Fees 1. Demonstration of Sufficient Fees To Cover Program Costs and That Fees Are Used Solely for Title V a. Fee Demonstration Pursuant to 42 U.S.C. 7661a(b)(3) and 40 CFR 70.9(a), a permitting authority's title V program must require that the owners or operators of part 70 sources pay annual fees, or the equivalent over some other period, that are sufficient to cover the permit program costs. 42 U.S.C. 7661a(b)(3) and 40 CFR 70.9(b) provide that a permitting authority may collect fees that cover the actual permit program costs, or may use a presumptive fee schedule, adjusted for inflation. Maricopa County's permit fee structure is a combination of an application fee, hourly-based processing fee, annual administrative fee, and annual emissions-based fee. The emissions-based fee is less than EPA's presumptive minimum, and, since other components of the permit fees are not assessed on a per-ton basis, it was difficult to determine if the aggregate of the fees met the presumptive minimum. In addition, though Maricopa County was able to account for title V revenues quite accurately, it did not have a clear accounting of its costs incurred under title V. Therefore, Maricopa County was not able to demonstrate that title V permit fees collected were sufficient to fund its title V program. To address this issue, MCAQD provided a fee demonstration to show that the aggregate of its title V fees is equivalent to a fee greater than the presumptive minimum, as allowed by 40 CFR 70.9(b)(2)(i). MCAQD charges a dollar-per-ton emissions-based fee for actual emissions of all regulated pollutants emitted during the previous calendar year. Therefore, the fee demonstration includes fiscal year 2006 (July 2005 through June 2006) title V revenue, the total reported emissions of regulated pollutants for calendar year 2005, and the resulting dollar-per-ton number, which was compared with EPA's presumptive minimum adjusted for inflation. MCAQD showed that the equivalent of the aggregate of its title V fees in fiscal year 2006 3 was greater than EPA's presumptive minimum which, adjusted for fiscal year 2006, is $39.48/ton. 4 Therefore, by 40 CFR 70.9(b)(2)(i), EPA presumes that MCAQD's fee schedule results in the collection and retention of revenues sufficient to cover the title V permit program costs. 3 Because changes and improvements were being made to MCAQD's accounting system throughout fiscal year 2006, title V program revenue and expenses may not be 100% accurate in reflecting the title V program. However, MCAQD feels it is of sufficient acuracy to show that the aggregate of its fees is substantially greater than EPA's presumptive minimum. MCAQD is in the process of completing reconciliation of fiscal year 2006 title V revenues and expenses to the extent possible, and any corrections made will be reflected in the title V reporting category being established to track the title V fund balance. 4 September 19, 2005, Memorandum, Calculation of the Part 70 Presumptive Minimum Fee Effective from September 2005 through August 2006, from Jeff Herring, Operating Permits Group, ITPID, OAQPS, to Operating Permits Contacts EPA Regions I-X. b. Demonstration of Title V Fees Being Used Solely for the Title V Program As stated above, Maricopa County was able to account for title V revenues; however, it did not have a clear accounting of costs incurred under title V. Furthermore, Maricopa County maintained a single account for title V fees, non-title V fees, and enforcement penalties. Both title V and non-title V costs were paid from this account. Section 502(b) of the Act, 42 U.S.C. 7661a(b), and 40 CFR 70.9(a) provide that a permitting authority's title V program must ensure that all title V fees are used solely for title V permit program costs. To correct this deficiency, MCAQD started out by hiring a third party to conduct an audit of its accounting system, department-wide. MCAQD's existing accounting system was an activity-based system to an extent; i.e., it did tag certain revenues with identifiers to distinguish one program's revenue from another program's revenue. However, the system did not provide enough detail such that title V costs could be accurately identified. The audit findings led to correction of existing accounting identifiers for costs and revenues and creation of new accounting identifiers. Each title V direct revenue and cost is now tagged with one of the following two activity codes: LSPC (Large Source Permit Compliance) and LSPR (Large Source Permit Engineering Review). These codes are now reflected in MCAQD's financial, personnel, and budgeting systems for all revenues and costs. MCAQD has also defined formulas to allocate title V indirect costs (e.g., administrative, ambient monitoring, planning, modeling) to the appropriate activity codes, thus allowing for a full accounting of its title V program costs. With this new accounting system, MCAQD has been able to submit to EPA a table of title V revenues and costs, listed by activity code and by general category of revenue/cost, for fiscal year 2006. MCAQD showed that, for fiscal year 2006, its total title V revenues were more than sufficient to fund total title V costs, thus confirming the results of MCAQD's fee demonstration that used EPA's presumptive minimum as a basis for comparison. With the improvements to its accounting system, MCAQD only partially addressed the issue of demonstrating that title V permit fees are used solely for title V program costs. MCAQD realized that it still needed to address the scenario of title V revenues exceeding title V costs. Currently, all title V revenues and costs 5 are coded before being deposited into or withdrawn from the Air Quality Fee Fund. MCAQD has the ability to identify and total the revenues originating from the title V program and manually track costs against the title V revenue total. However, to facilitate tracking of title V revenues and costs, MCAQD plans to implement an automated method of tracking the title V portion of the Air Quality Fee Fund by setting up a reporting category code in the financial system, similar to the way its grant revenue and costs are tracked. This reporting code will, in effect, generate a “fund balance report” on a regular basis to provide a year-to-date total of title V revenues, a year-to-date total of title V costs, and the net balance. It will also provide inception-to-date totals and net balance. This will allow MCAQD to know immediately, upon receipt of the report, the title V balance. 5 Costs such as salaries and benefits are charged to the organizational unit to which the employee belongs or supports. These determinations are made jointly by MCAQD's Financial Administrator, the applicable program manager, and the Planning and Analysis Division Manager. Costs such as supplies, services, and capital outlays are charged in the organizational unit that will use the purchased items/services to the extent possible. The program manager determines, with assistance from MCAQD's Finance Division, the appropriate organizational unit and activity code to which the costs should be charged. All expenditures require approval by a program manager and the Financial Administrator. On a monthly basis, program managers review revenue and costs charged to their organizational unit and corresponding activity codes. Currently, Maricopa County's Department of Finance generates a fund balance report monthly for the existing funds with reporting codes (e.g., grant funds). The fund balance report is reviewed, reconciled, and certified for accuracy by MCAQD's Financial Administrator. A written response to Maricopa County's Department of Finance is required to certify/validate the information on the report. The procedure will not differ once the title V reporting code is set up in the financial system. With its accounting system improvements, MCAQD has demonstrated that it has the systematic ability to provide a detailed accounting of title V program costs separately from other program costs. In addition, the above new reporting code coupled with the existing review procedures will reinforce MCAQD's ability to show that title V funds are being used solely for title V program costs. 2. Revision of Maricopa County's Fee Rule Maricopa County's fee rule, Rule 280, prevented the permitting authority from issuing a final initial title V permit, permit revision, or renewal permit if the source did not pay the balance of fees due. Maricopa County's Rule 280 § 301.1, at the time of NOD issuance, stated, “The Control Officer shall not issue a permit or permit revision until the balance due on the itemized invoice is paid in full.” Maricopa County encountered problems with implementation of this rule when several sources refused to pay the balance of permit fees due when they were dissatisfied with certain conditions in their permits. Existing sources retain the initial application shield granted upon their submittal of a complete application; thus, these sources claimed that they could continue to operate without an operating permit. The problem was exacerbated by the fact that Maricopa County did not enforce against those sources that refused to pay fees. The first step MCAQD took in correcting this deficiency was to implement a policy directive that required permit fee payment within 30 days of the conclusion of the month in which a source was billed. While MCAQD worked on revising its Rule 280, it also created a policy document to provide a consistent process for collecting unpaid fees charged to owners, operators, applicants, and/or permittees of sources of air pollution subject to the Maricopa County Air Pollution Control Regulations. The document serves as guidance for MCAQD personnel. MCAQD completed revisions to its Rule 280 in February 2006. It added the following language to the rule: “The Control Officer may deny a permit, a permit revision, or a permit renewal in accordance with Rule 200 of these rules if the applicant does not pay fees required for billable permit actions within 90 days of the invoice date.” MCAQD also removed the $40,000 maximum fee for processing Title V permit applications, thus enabling MCAQD to recover the full cost associated with issuing a Title V permit. The Maricopa County Board of Supervisors approved revisions to the rule on July 12, 2006, and the Notice of Final Rulemaking was published in the Arizona Administrative Register on August 18, 2006. Though EPA did not include this step in the NOD as a correction to the deficiency, MCAQD also plans to formally submit the revised Rule 280 to EPA (through the State) as a revision to the title V program once all formal rulemaking documents are available (e.g., Board of Supervisor's certification, publication affidavits, Notice of Final Rulemaking). B. Permit Processing 1. Implementation Guidance Document To Ensure That Title V Permits Assure Compliance With All Applicable Requirements Pursuant to 40 CFR 70.7(a)(1)(iv), title V permits must assure compliance with all applicable requirements, including new source review

(NSR)requirements. Maricopa County issues combined preconstruction/operating permits, with the intention of meeting both the NSR requirements in its State Implementation Plan

(SIP)and the part 70 requirements in its title V program. Maricopa County, at times, implemented its title V rule, Rule 210, without proper consideration of the requirements of its NSR SIP Rule 20, resulting in the submittal to EPA of title V permits that did not contain all applicable requirements. MCAQD has been working continuously over the past year, and communicating regularly with EPA, on an implementation guidance document. It has also given industry an opportunity to comment. MCAQD submitted a final implementation guidance document entitled “Interim Guidance Document for Title V Permit Revisions” in the NOD Response. The guidance document explains how title V sources and MCAQD will ensure that changes or modifications to an emissions unit or operation at a title V source will comply with both the preconstruction provisions in the NSR SIP and the permitting procedures in the current Rule 210. Before making changes subject to the NSR SIP, title V sources must obtain preconstruction approval from the County. By laying out procedures for determining the appropriate processing track for title V permit revisions and using flowcharts to step through the gatekeepers, the guidance document provides guidance not only for distinguishing between a significant revision and a minor revision under the title V program, but also for determining whether preconstruction approval is required pursuant to its SIP Rule 20. The guidance document also suggests that a title V source use an attached checklist to document how it proceeded through the flowcharts to reach a determination of the type of permit it would need. MCAQD plans to accomplish the following implementation steps by November 17, 2006:

(1)Distribute a copy of the guidance document to all current title V permit holders;

(2)Include the guidance document with all title V permit application forms provided to applicants;

(3)Publish the guidance document with printed and on-line versions of Rule 210, to be distributed by the County; and

(4)Provide training to title V permit staff on the administration of this guidance. MCAQD plans to revise its rules when it makes the changes necessary for NSR Reform. MCAQD states that it must wait for the Arizona Department of Environmental Quality to make the changes to the State rules before it can proceed. The Interim Guidance Document will be effective only until the time MCAQD completes its NSR rulemaking to codify the principles spelled out in the guidance document. 2. Written Procedures on Processing of Permit Revisions EPA noted two deficiencies related to Maricopa County's processing of permit revisions:

(a)Maricopa County did not take adequate steps to ensure that significant permit revisions were not incorrectly processed as minor permit revisions; and

(b)Maricopa County typically did not issue a separate revised permit document or technical support document when processing its minor permit revisions. Instead, it signed the application for the minor permit revision and allowed it to serve as the final minor permit revision. MCAQD's implementation guidance document entitled “Interim Guidance Document for Title V Permit Revisions,” which was part of the NOD Response, provides a procedure for determining the appropriate processing track for title V permit revisions. One of MCAQD's objectives with this guidance document is to facilitate its own efforts to ensure that significant permit revisions are not incorrectly processed as minor revisions under the title V program. Regarding the deficiency involving minor permit revisions, MCAQD has changed its practices to ensure that a minor permit revision, and not just a signed application, is issued. Furthermore, MCAQD has implemented a new procedure which requires that all title V permit revisions be signed by the Permitting Division Manager and Department Director, unless MCAQD formalizes delegation of the authority to a management level official. 3. Adequate Administering of Fees To Provide Sufficient Staffing Section 502(b) of the Act, 42 U.S.C. 7661a(b), and 40 CFR 70.4 provide that a permitting authority must have adequate personnel to ensure that the permitting authority can carry out implementation of its title V program. In the NOD, EPA identified the deficiency that Maricopa County was not adequately staffing its title V program. MCAQD's strategy for hiring and retaining adequate staffing for successful implementation of its title V program included the following elements, not necessarily in this order:

(1)Conduct a countywide market study to evaluate current job descriptions, career ladders, and salaries, for an “environmental engineering specialist” position;

(2)implement salary increases based on the market study results;

(3)perform a workload assessment to estimate the number of permitting staff needed;

(4)recruit for the additional permitting staff positions; and

(5)address career development (e.g., review job classifications, implement a formal training program for staff, provide mentorship to staff). Maricopa County has a history of high staff turnover within the Permit Engineering Division. As will be described in further detail below, EPA, in its title V program evaluation report, listed poor compensation as one of the contributing factors to low morale at Maricopa County. To address this issue, Maricopa County's general human resources department conducted a market study countywide to evaluate current job descriptions, career ladders, and salaries, for an “environmental engineering specialist.” Based on the results of the study, salary increases were approved and became effective December 5, 2005. MCAQD also analyzed its workload to determine the number of additional staffpersons it would need in the Permit Engineering Division. As part of the NOD Response, MCAQD submitted a title V-specific workload assessment for fiscal year 2006 in which MCAQD estimated that it would need a total of eight title V engineers. MCAQD projected a need for three contract engineers to complete its backlog of work. On March 1, 2006, the Board of Supervisors approved MCAQD's request for an additional four full-time employees

(FTEs)for the title V group of the MCAQD Permit Engineering Division. In addition, the Board of Supervisors approved three contract engineering positions, each with a one-year contract, for title V work. If MCAQD is able to fill the four FTE positions, the resulting total number of title V engineers will be eight, which is consistent with MCAQD's latest workload assessment. MCAQD is actively recruiting to fill the four open title V engineer positions, as well as the three contract engineer positions. EPA noted in its title V program evaluation report that poor compensation and lack of opportunity for career development contributed to low morale at Maricopa County. 6 So as part of its strategy to retain existing staff, Maricopa County focused on these two main issues. As noted earlier, Maricopa County addressed the first issue of poor compensation through a market study and resulting salary increases. To address the second issue of career development, MCAQD has begun to develop or has already completed the following actions EPA recommended in the title V program evaluation report: a review of the job classifications that would apply to title V engineers, implementation of a training program for staff, creation of standard operating procedures (SOPs), and providing mentorship to staff. 6 See Finding 7.6 of EPA's program evaluation report. Regarding job classifications, MCAQD has streamlined the number of “environmental engineering specialist”

(EES)job classifications from three to two and changed the definition of each classification in an effort to clarify the criteria for salary increases and promotions. MCAQD has placed more of an emphasis on number of years of experience as well as having a professional engineering (P.E.) license. For example, MCAQD decided to eliminate the former EES Intern classification which required no experience; instead, the current first-level EES classification requires at least two years of experience, and the second-level EES classification requires a P.E. license. In addition, as evidenced by the implementation of salary increases on December 5, 2005, the range of salaries for each of the current EES classifications is higher than that for any of the former EES classifications. In fact, the range of salaries for the current second-level EES classification is even higher than that for the former EES Supervisor classification. 7 7 According to MCAQD Human Resources, the average salary increase for the MCAQD Permit Engineering Division per employee ranged from 0.21% to 21%. MCAQD has a contingency plan in place until the open title V engineering positions can be filled. MCAQD's fee rule allows MCAQD to bill a source for the cost of obtaining consultants for expedited permit processing. Because MCAQD has an approved consultant list, the entire process from sending requests for proposals

(RFP)to selecting a bidder takes only about 30 to 60 days, which is substantially faster than the standard RFP process. Since 2005, one permitting action has been completed by a consultant through this expedited process. Currently, there are three consulting firms under contract, each one working on a different permitting action. MCAQD estimates that the work performed by the consultants for these four projects (the one completed and the three still in progress) would be equivalent to the work performed by 3 FTEs. MCAQD plans to continue to use consultants as necessary. MCAQD submitted to EPA a strategy to hire and retain adequate staff to successfully implement its title V program. Included in the submittal was an updated workload assessment specific to title V tasks. MCAQD also described a contingency plan if it was unable to fill open title V engineering positions. MCAQD has followed through on implementation of its strategy and, though it has not completed all steps, we are confident that MCAQD will continue its efforts until it is able to fill all open title V positions. III. EPA's Action EPA is notifying the public that, based on the information provided by MCAQD, internal operational changes within MCAQD, and a Maricopa County rule change, EPA has determined that Maricopa County has resolved each of the deficiencies identified by EPA in the NOD for Maricopa County's title V operating permits program, 70 FR 32243 (June 2, 2005). Therefore, based on the rationale set forth above, EPA is not invoking sanctions pursuant to section 179(b) of the Act, nor administering any portion of the County's operating permits program, pursuant to 40 CFR 70.10(b)(4). IV. Administrative Requirements Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of today's action must be filed in the United States Court of Appeals for the appropriate circuit by January 19, 2007. List of Subjects in 40 CFR Part 70 Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements. Dated: November 9, 2006. Wayne Nastri, Regional Administrator, Region 9. [FR Doc. E6-19555 Filed 11-17-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 80 Regulation of Fuels and Fuel Additives CFR Correction In Title 40 of the Code of Federal Regulations, parts 72 to 80, revised as of July 1, 2006, on page 695, § 80.75 is corrected by reinstating paragraph (a)(2) to read as follows: § 80.75 Reporting requirements.

(a)* * *

(2)The following information shall be included in each quarterly report for each batch of reformulated gasoline or RBOB which is included under paragraph (a)(1) of this section:

(i)The batch number;

(ii)The date of production;

(iii)The volume of the batch;

(iv)The grade of gasoline produced (i.e., premium, mid-grade, or regular);

(v)For any refiner or importer:

(A)Each designation of the gasoline, pursuant to § 80.65; and

(B)The properties, pursuant to §§ 80.65 and 80.66;

(vi)For any importer, the PADD in which the import facility is located;

(vii)[Reserved]

(viii)In the case of any previously certified gasoline used in a refinery operation under the terms of § 80.65(i), the following information relative to the previously certified gasoline when received at the refinery:

(A)Identification of the previously certified gasoline as such;

(B)The batch number assigned by the receiving refinery;

(C)The date of receipt; and

(D)The volume, properties and designation of the batch. [FR Doc. 06-55529 Filed 11-17-06; 8:45 am]

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