Rules and Regulations. Final rule

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BILLING CODE 4410-10-P DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Part 563 [No. 2007-02] RIN 1550-AC06 Subordinated Debt Securities and Mandatorily Redeemable Preferred Stock AGENCY: Office of Thrift Supervision, Treasury. ACTION: Final rule. SUMMARY: This final rule updates OTS regulations that require a savings association to obtain approval (or non-objection) before it may include subordinated debt securities or mandatorily redeemable preferred stock in supplementary (tier 2) capital.

The final rule removes several unnecessary or outdated requirements and conforms certain provisions, such as maturity period requirements and purchaser restrictions, to the rules issued by the other federal banking agencies. The final rule also reconciles conflicting rules, adds appropriate statutory cross-references, and rewrites the rule in plain language. DATES: This rule is effective April 1, 2007. FOR FURTHER INFORMATION CONTACT: David W. Riley, Senior Analyst,

(202)906-6669; Capital Policy, Karen Osterloh, Special Counsel,

(202)906-6639, Regulations and Legislation Division, or Gary Jeffers, Senior Attorney,

(202)906-6457, Business Transactions Division, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: I. Discussion A savings association must obtain OTS approval (or non-objection) before it may include subordinated debt securities or mandatorily redeemable preferred stock in supplementary (tier 2) capital. OTS rules at 12 CFR 563.81 address application and notice procedures, requirements that securities must meet to be included in supplementary capital, conditions for OTS approval (or non-objection), and other requirements. On July 3, 2006, OTS proposed to update 12 CFR 563.81 to delete unnecessary or outdated requirements and conform certain provisions, such as maturity period requirements and purchaser restrictions, to the rules issued by the other federal banking agencies. In addition, OTS proposed to reconcile 12 CFR 563.81 with conflicting OTS rules, add appropriate statutory cross-references, and rewrite the rule in plain language. 1 1 71 FR 37862 (July 3, 2006). OTS received comments from two trade associations in support of the proposed rule. Both commenters observed that the proposed rule is a much-needed update to the existing provisions. They noted that the proposed rule clarifies the existing requirements, is more consistent with the rules issued by other federal banking agencies, is less burdensome than the current rule, and provides greater flexibility to savings associations. Commenters suggested only a few revisions to the proposed rule. These suggestions are discussed below. Unless otherwise noted, OTS has adopted the proposed rule without substantive change. A. Processing and Review of Applications and Notices—Final § 563.81(b) and

(d)The proposed rule amended the existing rules governing OTS processing and review of applications and notices seeking approval of, or non-objection to, the inclusion of subordinated debt securities or mandatorily redeemable preferred stock in supplementary capital. These revisions deleted outdated rules that overlapped or duplicated 12 CFR part 516 (Application Processing Guidelines), and substituted appropriate cross-references to that part. Commenters generally supported these revisions. One commenter, however, noted that proposed § 563.81(a) stated that a savings association may file its application or notice before or after it issues the covered securities, but may not include the covered securities in supplementary capital until OTS approves the application or does not object to the notice. This commenter urged OTS to establish a 30-day time limit on OTS's ability to object to a notice. The commenter argued that this change would provide a savings association with certainty that the covered securities that were the subject of a notice could be treated as tier 2 capital without further OTS action. This issue is already addressed by proposed § 563.81(d)(1), which states that OTS will review all applications and notices under 12 CFR part 516, subpart E. Under part 516, subpart E, if a savings association has appropriately filed a notice with OTS under the expedited treatment, it is permitted to engage in the proposed activity 30 days after the filing date, unless OTS takes certain specified actions before the expiration of that time period. See 12 CFR 516.200 (2006). OTS has not included the requested clarification in the final rule. B. Mandatory Prepayment of Principal—Final § 563.81(c)(3) The proposed rule at § 563.81(c)(3) restated the current rules regarding mandatory prepayment of subordinated debt. 2 Specifically, the proposed rule stated that subordinated debt securities may not provide events of default or contain other provisions that could result in a mandatory prepayment of principal, other than events of default that: 2 12 CFR 563.81(b)(3)(2006). • Relate to bankruptcy, insolvency, receivership, or similar events. • Arise from the savings association's failure to make timely payment of interest or principal. • Arise from its failure to comply with reasonable financial, operating, and maintenance covenants of a type that are customarily included in indentures for publicly offered debt securities. The proposed rule also continued to state that any acceleration of payment of principal on a subordinated debt security by a savings association that fails to meet certain capital requirements is subject to OTS prior approval. In the preamble to the proposed rule, OTS noted that all of the banking agencies allow for the mandatory prepayment or acceleration of principal upon events of default related to bankruptcy, insolvency, receivership, and similar events, 3 but there is no uniform approach with respect to prepayment or acceleration upon other events of default. 4 OTS sought public comment on whether it should make additional revisions to this section. OTS specifically asked commenters to address whether the other banking agency rules more appropriately address the events of default that may trigger mandatory prepayment or acceleration of principal. 3 12 CFR 250.166(b)(2)(FRB); and 12 CFR part 325, Appendix A, § I.A.2.(c)(2) and (d)(FDIC). *See* Comptroller's Licensing Manual, Subordinated Debt (November 2003), pp 15-16. 4 12 CFR 250.166 (FRB); 12 CFR part 325, Appendix A, § I.A.2.(d)(FDIC); and 12 CFR part 3, Appendix A, § 2(b)(4) and Comptroller's Licensing Manual, Subordinated Debt (November 2003)(OCC). One commenter addressed this subject. This commenter generally supported the proposed restatement of the current rule, which limits mandatory prepayment to specific events of default. The commenter urged OTS not to make additional revisions to this rule. The commenter noted that there is no evidence cited that these events of default have created a problem for savings associations in the past. In light of these comments, OTS has not included any further revisions to this provision. C. Indenture Requirements—Final § 563.81(c)(4) The current rules require a savings association to use an indenture for subordinated debt securities. Moreover, where the aggregate amount of subordinated debt securities that are publicly offered 5 exceeds certain thresholds in the Trust Indenture Act of 1939 (TIA), 6 the current rules require the indenture to provide for the appointment of a trustee other than the savings association or its affiliate, and for the collective enforcement of security holders' rights and remedies. 7 The proposed rule retained this provision, but updated the thresholds to reflect statutory changes to the TIA. 5 Public offering includes sales in a nonpublic offering defined in 12 CFR 563g.4. 6 15 U.S.C. 77aaa *et seq.* 7 12 CFR 563.81(d)(4)(2006). The preamble observed that the TIA requires indentures for most debt instruments, but does not require an indenture where the underlying securities are exempt from registration under the Securities Act of 1933 (Securities Act). 8 OTS indicated that it was considering exempting certain issuances from the indenture requirements and sought comment on this possible change. OTS noted, for example, that offerings made solely to accredited investors are exempt under the Securities Act. 9 OTS specifically asked whether it should exempt offerings to accredited investors that are holding companies of the issuer (or their subsidiaries) from the indenture requirement, and whether it should also exempt offerings to unaffiliated accredited investors. Both commenters urged OTS to adopt an accredited investor exemption. 8 15 U.S.C. 77ddd. 9 15 U.S.C. 77d(6). Under the Securities Act and the TIA, “accredited investors” include such entities as: Brokers or dealers registered under the Securities Exchange Act of 1934; insurance companies as defined in the Securities Act; investment companies registered under the Investment Company Act of 1940; certain employee benefit plans; directors, executive officers, or general partners of the issuer; natural persons with income or net worth in excess of specified limits; and certain trusts with assets in excess of specified limits. 10 These investors are considered to have sufficient financial and professional resources and sophistication to analyze the offering, make informed decisions, and defend and exercise their rights. 10 17 CFR 230.501(a). *See* 15 U.S.C. 77(a)(15). The final rule exempts issuances solely to accredited investors from the indenture requirement. This change will make the indenture requirement more consistent with the TIA, which recognizes the presumed sophistication of these types of investors. This position will also reduce the regulatory burden of the rules. To provide appropriate protection to non-accredited investors, the final rule requires a savings association to have an indenture in place before any debt securities, for which an exemption from the indenture requirement is claimed, are transferred to any non-accredited investor. If an issuer relies on this exemption from the indenture requirement, it must place a legend on the debt securities indicating that an indenture must be in place before the debt securities are transferred to any non-accredited investor. II. Executive Order 12866 The Director of OTS has determined that this final rule does not constitute a “significant regulatory action” for purposes of Executive Order 12866. III. Unfunded Mandates Reform Act of 1995 Today's final rule revises an existing rule to delete unnecessary, outdated, and conflicting requirements, to add appropriate statutory cross-references, and to rewrite the rule in plain language. Accordingly, OTS has determined that the final rule will not result in expenditures by state, local, or tribal governments or by the private sector of $100 million or more and that a budgetary impact statement is not required under section 202 of the Unfunded Mandates Reform Act of 1995. IV. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act

(RFA)(5 U.S.C. 601), the Director certifies that this final rule will not have a significant economic impact on a substantial number of small entities. The final rule merely revises an existing rule to delete unnecessary, outdated, and conflicting requirements, to add appropriate statutory cross-references, and to rewrite the rule in plain language. V. Paperwork Reduction Act of 1995 The information collection requirements in the existing OTS rules at 12 CFR 563.81 were previously approved under OMB control number 1550-00xx. The final continues to incorporate these requirements and does not make any substantive changes that affect the overall burden of compliance. List of Subjects in 12 CFR Part 563 Accounting, Administrative practice and procedure, Advertising, Conflict of interest, Crime, Currency, Holding companies, Investments, Mortgages, Reporting and recordkeeping requirements, Savings associations, Securities, Surety bond. Accordingly, the Office of Thrift Supervision amends 12 CFR part 563 as set forth below: PART 563—SAVINGS ASSOCIATIONS—OPERATIONS 1. The authority citation for part 563 continues to read as follows: Authority: 12 U.S.C. 375b, 1462, 1462a, 1463, 1464, 1467a, 1468, 1817, 1820, 1828, 1831o, 3806; 31 U.S.C. 5318; 42 U.S.C. 4106. 2. Revise § 563.81 to read as follows: § 563.81 Inclusion of subordinated debt securities and mandatorily redeemable preferred stock as supplementary capital.

(a)*Scope.* A savings association must comply with this section in order to include subordinated debt securities or mandatorily redeemable preferred stock (“covered securities”) in supplementary capital under 12 CFR 567.5(b). If a savings association does not include covered securities in supplementary capital, it is not required to comply with this section.

(b)*Application and notice procedures.*

(1)A savings association must file an application or notice under 12 CFR part 516, subpart A seeking OTS approval of, or non-objection to, the inclusion of covered securities in supplementary capital. The savings association may file its application or notice before or after it issues covered securities, but may not include covered securities in supplementary capital until OTS approves the application or does not object to the notice.

(2)A savings association must also comply with the securities offering rules at 12 CFR part 563g by filing an offering circular for a proposed issuance of covered securities, unless the offering qualifies for an exemption under that part.

(c)*Securities requirements.* To be included in supplementary capital, covered securities must meet the following requirements:

(1)*Form.*

(i)Each certificate evidencing a covered security must:

(A)Bear the following legend on its face, in bold type: “This security is *not* a savings account or deposit and it is *not* insured by the United States or any agency or fund of the United States;”

(B)State that the security is subordinated on liquidation, as to principal, interest, and premium, to all claims against the savings association that have the same priority as savings accounts or a higher priority;

(C)State that the security is not secured by the savings association's assets or the assets of any affiliate of the savings association, as defined in 12 CFR 583.2;

(D)State that the security is not eligible collateral for a loan by the savings association;

(E)State the prohibition on the payment of dividends or interest at 12 U.S.C. 1828(b) and, in the case of subordinated debt securities, state the prohibition on the payment of principal and interest at 12 U.S.C. 1831o(h);

(F)For subordinated debt securities, state or refer to a document stating the terms under which the savings association may prepay the obligation; and

(G)State or refer to a document stating that the savings association must obtain OTS approval before the voluntarily prepayment of principal on subordinated debt securities, the acceleration of payment of principal on subordinated debt securities, or the voluntarily redemption of mandatorily redeemable preferred stock (other than scheduled redemptions), if the savings association is undercapitalized, significantly undercapitalized, or critically undercapitalized as described in § 565.4(b) of this chapter, fails to meet the regulatory capital requirements at 12 CFR part 567, or would fail to meet any of these standards following the payment.

(ii)A savings association must include such additional statements as OTS may prescribe for certificates, purchase agreements, indentures, and other related documents. OTS will prescribe the text of these additional statements in its Application Processing Handbook.

(2)*Maturity requirements.* Covered securities must have an original weighted average maturity or original weighted average period to required redemption of at least five years.

(3)*Mandatory prepayment.* Subordinated debt securities and related documents may not provide events of default or contain other provisions that could result in a mandatory prepayment of principal, other than events of default that:

(i)Arise from the savings association's failure to make timely payment of interest or principal;

(ii)Arise from its failure to comply with reasonable financial, operating, and maintenance covenants of a type that are customarily included in indentures for publicly offered debt securities; or

(iii)Relate to bankruptcy, insolvency, receivership, or similar events.

(4)*Indenture.*

(i)Except as provided in paragraph (c)(4)(ii) of this section, a savings association must use an indenture for subordinated debt securities. If the aggregate amount of subordinated debt securities publicly offered (excluding sales in a non-public offering as defined in 12 CFR 563g.4) and sold in any consecutive 12-month or 36-month period exceeds $5,000,000 or $10,000,000 respectively (or such lesser amount that the Securities and Exchange Commission shall establish by rule or regulation under 15 U.S.C. 77ddd), the indenture must provide for the appointment of a trustee other than the savings association or an affiliate of the savings association (as defined at 12 CFR 583.2) and for collective enforcement of the security holders' rights and remedies.

(ii)A savings association is not required to use an indenture if the subordinated debt securities are sold only to accredited investors, as that term is defined in 15 U.S.C. 77d(6). A savings association must have an indenture that meets the requirements of paragraph (c)(4)(i) of this section in place before any debt securities for which an exemption from the indenture requirement is claimed, are transferred any non-accredited investor. If a savings association relies on this exemption from the indenture requirement, it must place a legend on the debt securities indicating that an indenture must be in place before the debt securities are transferred to any non-accredited investor.

(d)*OTS review.*

(1)OTS will review notices and applications under 12 CFR part 516, subpart E.

(2)In reviewing notices and applications under this section, OTS will consider whether:

(i)The issuance of the covered securities is authorized under applicable laws and regulations and is consistent with the savings association's charter and bylaws.

(ii)The savings association is at least adequately capitalized under § 565.4(b) of this chapter and meets the regulatory capital requirements at § 567.2 of this chapter.

(iii)The savings association is or will be able to service the covered securities.

(iv)The covered securities are consistent with the requirements of this section.

(v)The covered securities and related transactions sufficiently transfer risk from the Deposit Insurance Fund.

(vi)OTS has no objection to the issuance based on the savings association's overall policies, condition, and operations.

(3)OTS approval or non-objection is conditioned upon no material changes to the information disclosed in the application or notice submitted to OTS. OTS may impose such additional requirements or conditions as it may deem necessary to protect purchasers, the savings association, OTS, or the Deposit Insurance Fund.

(e)*Amendments.* If a savings association amends the covered securities or related documents following the completion of OTS review, it must obtain OTS approval or non-objection under this section before it may include the amended securities in supplementary capital.

(f)*Sale of covered securities.* The savings association must complete the sale of covered securities within one year after OTS approval or non-objection under this section. A savings association may request an extension of the offering period by filing a written request with OTS. The savings association must demonstrate good cause for the extension and file the request at least 30 days before the expiration of the offering period or any extension of the offering period.

(g)*Reports.* A savings association must file the following information with OTS within 30 days after the savings association completes the sale of covered securities includable as supplementary capital. If the savings association filed its application or notice following the completion of the sale, it must submit this information with its application or notice:

(1)A written report indicating the number of purchasers, the total dollar amount of securities sold, the net proceeds received by the savings association from the issuance, and the amount of covered securities, net of all expenses, to be included as supplementary capital;

(2)Three copies of an executed form of the securities and a copy of any related documents governing the issuance or administration of the securities; and

(3)A certification by the appropriate executive officer indicating that the savings association complied with all applicable laws and regulations in connection with the offering, issuance, and sale of the securities. Dated: November 28, 2006. By the Office of Thrift Supervision. John M. Reich, Director. [FR Doc. E7-475 Filed 1-16-07; 8:45 am] BILLING CODE 6720-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25670; Directorate Identifier 2006-NM-027-AD; Amendment 39-14868; AD 2006-26-10] RIN 2120-AA64 Airworthiness Directives; Airbus Model A300 B2 and B4 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive

(AD)for certain Airbus Model A300 B2 and B4 series airplanes. This AD requires revising the airplane flight manual

(AFM)to include procedures for resetting the trim and pitch trim levers after each landing, determining which servomotor moves the pitch trim control wheel, and doing applicable other specified actions. This AD also provides for optional terminating actions for those requirements. This AD results from a report of a sudden nose-up movement after disengagement of the autopilot in cruise. We are issuing this AD to ensure that the flightcrew is aware of the procedures for resetting the trim and pitch trim levers after each landing and to prevent failure of the servomotors of the pitch trim systems during flight. Failure of the servomotors of the pitch trim systems could result in uncommanded nose-up movement of the control surface of the pitch trim systems after disengagement of the autopilot in cruise. DATES: This AD becomes effective February 21, 2007. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of February 21, 2007. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Thomas Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone

(425)227-1622; fax

(425)227-1149. SUPPLEMENTARY INFORMATION: Examining the Docket You may examine the airworthiness directive

(AD)docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone

(800)647-5227) is located on the plaza level of the Nassif Building at the street address stated in the ADDRESSES section. Discussion The FAA issued a notice of proposed rulemaking

(NPRM)to amend 14 CFR part 39 to include an AD that would apply to certain Airbus Model A300 B2 and B4 series airplanes. That NPRM was published in the **Federal Register** on August 23, 2006 (71 FR 49385). That NPRM proposed to require revising the airplane flight manual

(f)of the NPRM be revised to include the AFM procedures specified in French airworthiness directive F-2003-291 R1, issued July 6, 2005. ASTAR notes that paragraph

(f)of the NPRM requires revising the AFM by “including the information in Airbus A300 Temporary Revision

(TR)4.03.00/04, Issue 02, dated November 18, 2003.” ASTAR states that TR 4.03.00/04 may not be considered active nor accessible from Airbus, and that the procedures are not included in its A300 United States AFM. We agree with ASTAR's request for the stated reasons. We have revised paragraphs

(f)and

(g)of this AD accordingly. Request To Incorporate by Reference Service Information in the NPRM The Modification and Replacement Parts Association (MARPA) requests that all service information referenced in the NPRM be incorporated by reference during the NPRM phase of the rulemaking. MARPA states that, when a service document is incorporated by reference, it loses its private, protected status and becomes itself a public document. MARPA contends that public laws such as ADs must be made public because operators cannot comply with ADs referencing private writings. MARPA expresses concern that failing to incorporate by reference essential service information could result in a court decision invalidating the AD. We do not agree that service information should be incorporated by reference during the NPRM phase of rulemaking. The Office of the Federal Register

(OFR)requires that service information that is necessary to do the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the service information necessary for doing the requirements of this AD. Further, we point out that while service information that is incorporated by reference does become public information, it does not lose its copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information. Request To Post Service Information on the Docket Management System

(DMS)MARPA also requests that incorporated by reference service information be posted on the DMS. MARPA states that the OFR's stated purpose of incorporating by reference service information in the **Federal Register** is brevity; to keep from expanding the **Federal Register** needlessly by publishing service information already in the hands of the affected individuals. MARPA also states that affected individuals has traditionally meant aircraft owners and operators who are generally provided service information by the manufacturer. MARPA points out that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now done by specialty shops instead of repair organizations, component servicing and repairs shops, etc. MARPA further points out that distributing service information only to aircraft owners who are possibly a financing or leasing company, may not actually reach the person responsible for doing the AD. In regard to MARPA's request that service information be made available to the public by publication in the **Federal Register,** we agree that incorporation by reference was authorized to reduce the volume of material published in the **Federal Register** and the Code of Federal Regulations. However, as specified in the Federal Register Document Drafting Handbook, the Director of the OFR decides when an agency may incorporate material by reference. As MARPA is aware, the OFR files service information for public inspection on the workday before the date of publication of the AD at its office in Washington, DC. As stated in the Federal Register Document Drafting Handbook, when service information is filed for public inspection, anyone may inspect or copy file service information during the OFR's hours of business. Further questions regarding publication of service information in the **Federal Register** or incorporation by reference should be directed to the OFR. In regard to MARPA's request to post service information on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service information on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the final rule is necessary in response to this comment. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this AD. The average labor rate per hour is $80. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost AFM revision 1 None $80 23 $1,840 Determination if pitch trim control wheel moves 1 None 80 23 1,840. Optional replacement 3 $264 504 23 11,592. Optional repetitive preventative maintenance tasks 3 None 240, per task cycle 23 5,520, per task cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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. For the reasons discussed above, I certify that this AD:

(1)Is not a “significant regulatory action” under Executive Order 12866;

(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration

(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2006-26-10 Airbus:** Amendment 39-14868. Docket No. FAA-2006-25670; Directorate Identifier 2006-NM-027-AD. Effective Date

(a)This AD becomes effective February 21, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to all Airbus Model A300 airplanes; certificated in any category; except the following airplanes:

(1)Model A300 B4-220, A300 B4-203, and A300 B2-203 airplanes in a forward facing crew cockpit certified configuration;

(2)Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes;

(3)Model A300 B4-605R and B4-622R airplanes;

(4)Model A300 F4-605R and F4-622R airplanes; and

(5)Airbus Model A300 C4-605R Variant F airplanes. Unsafe Condition

(d)This AD results from a report of a sudden nose-up movement after disengagement of the autopilot in cruise. We are issuing this AD to ensure that the flightcrew is aware of the procedures for resetting the trim and pitch trim levers after each landing and to prevent failure of the servomotors of the pitch trim systems during flight. Failure of the servomotors of the pitch trim systems could result in uncommanded nose-up movement of the control surface of the pitch trim systems after disengagement of the autopilot in cruise. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Revision of Airplane Flight Manual

(f)Within 14 days after the effective date of this AD, do the action specified in paragraph (f)(1) or (f)(2) of this AD.

(1)Revise the Normal Procedures section of the Airbus A300 Flight Manual to include the information in Airbus A300 Temporary Revision

(TR)4.03.00/04, Issue 02, dated November 18, 2003, as specified in the TR. Note 1: This may be done by inserting a copy of TR 4.03.00/04, Issue 02, in the AFM. When the TR or the statement specified in paragraph (f)(2) of this AD has been included in the general revisions of the AFM, the general revisions may be inserted in the AFM, provided the relevant information in the general revision is identical to that in the TR or paragraph (f)(2) of this AD.

(2)Revise the Normal Procedures section of the Airbus A300 Flight Manual to include the following operational procedure. This may be done by inserting a copy of this AD in the AFM. “APPROACH AND LANDING” PITCH TRIM —Set TRIM to 1° UP —Set both PITCH TRIM levers to OFF Note: Check pitch trim wheel and report any movement to maintenance.” Determination if Pitch Trim Control Wheel Moves

(g)Following accomplishment of the AFM revision required by paragraph

(f)of this AD: After each landing and before shutting down the engines, do the AFM procedures specified in Airbus A300 TR 4.03.00/04, Issue 02, dated November 18, 2003, or paragraph (f)(2) of this AD. Determination if Servomotor Moves

(h)Before further flight after any movement reported in accordance with paragraph

(g)of this AD, determine which servomotor moves the pitch trim control wheel, and do applicable other specified actions in accordance with Airbus A300 TR 22-001, dated April 11, 2003, to Chapter 22-23-00 of the Airbus A300 Fault Isolation Manual. Note 2: Airbus A300 TR 22-001 contains a typographical error. The TR incorrectly refers to “MM 22-23-39” as the appropriate source of service information for replacing the pitch trim actuator; the correct reference is “MM 22-23-29.” Optional Replacement of the Pitch Trim Servomotors

(i)Replace the pitch trim servomotors in the attachment area of the horizontal and vertical stabilizers with new servomotors, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-22-0119, dated May 13, 2005. Note 3: Airbus Service Bulletin A300-22-0119, dated May 13, 2005, refers to Thales Service Bulletin V1AM-22-005, Revision 01, dated July 27, 2005, as an additional source of service information for doing the replacement. Repetitive Preventative Maintenance Tasks

(j)Within 12,000 flight hours after replacing one or both servomotors in accordance with paragraph

(h)or

(i)of this AD, or within 6 months after the effective date of this AD, whichever occurs later, do the preventative maintenance task of the pitch trim servomotor(s), in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-22-0120, excluding Appendix 01, dated May 13, 2005. Repeat the preventative maintenance task thereafter at intervals not to exceed 12,000 flight hours. Note 4: Airbus Service Bulletin A300-22-0120, dated May 13, 2005, refers to Thales Service Bulletin V1AM-22-006, Revision 01, dated July 26, 2005, as an additional source of service information for doing the preventative maintenance task. Removal of AFM Revision

(k)After accomplishing the actions specified in paragraph

(i)and the initial task in paragraph

(j)of this AD, the AFM revision required by paragraph

(f)of this AD may be removed, and the requirements of paragraphs

(g)and

(h)of this AD are no longer required. No Reporting

(l)Although Airbus Service Bulletin A300-22-0120, dated May 13, 2005, specifies to submit certain information to the manufacturer, this AD does not include that requirement. Alternative Methods of Compliance (AMOCs) (m)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.

(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Related Information

(n)French airworthiness directives F-2003-291 R1, dated July 6, 2005, and F-2005-109, dated July 6, 2005, also address the subject of this AD. Material Incorporated by Reference

(o)You must use the service information in Table 1 of this AD to do the actions that are required by this AD, unless the AD specifies otherwise. If the optional replacement is done, you must use the service information in Table 2 of this AD to do the replacement. The Director of the Federal Register approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for a copy of this service information. You may review copies at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Room PL-401, Nassif Building, Washington, DC; on the Internet at *http://dms.dot.gov;* or at the National Archives and Records Administration (NARA). For information on the availability of this material at the NARA, call

(202)741-6030, or go to *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* Table 1.—Material Incorporated by Reference for Required Actions Service information Revision/issue level Date

(1)Airbus A300 Temporary Revision 22-001 to Chapter 22-23-00 of the Airbus A300 Fault Isolation Manual Original April 11, 2003.

(2)Airbus A300 Temporary Revision 4.03.00/04 to Airbus 300 Flight Manual Issue 02 November 18, 2003.

(3)Airbus Service Bulletin A300-22-0120, excluding Appendix 01 Original May 13, 2005. Table 2.—Material Incorporated by Reference for Optional Actions Service information Revision level Date Airbus Service Bulletin A300-22-0119 Original May 13, 2005. Issued in Renton, Washington, on December 21, 2006. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-399 Filed 1-16-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 948 [WV-111-FOR] West Virginia Abandoned Mine Lands Reclamation Plan AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. SUMMARY: We

(OSM)are announcing the approval of an amendment to the West Virginia Abandoned Mine Lands Reclamation

(AMLR)Plan under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The amendment makes numerous revisions throughout the State's AMLR Plan, and it is intended to update and improve the effectiveness of the West Virginia AMLR Plan. DATES: *Effective date:* January 17, 2007. FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, Charleston Field Office, Office of Surface Mining Reclamation and Enforcement, 1027 Virginia Street, East, Charleston, West Virginia 25301, Telephone:

(304)347-7158. E-mail: *chfo@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Abandoned Mine Lands Reclamation Program II. Submission of the Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Abandoned Mine Lands Reclamation Program The West Virginia AMLR Program was established by Title IV of SMCRA ( *30 U.S.C. 1201 et seq.* ) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian Tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mined lands. The West Virginia AMLR Plan was approved by OSM effective February 23, 1981. You can find additional information about the West Virginia AMLR Plan at 30 CFR 948.20, 948.25, and 948.26. II. Submission of the Amendment By letter dated June 27, 2006 (Administrative Record Number WV-1469), the West Virginia Department of Environmental Protection (WVDEP), Office of Abandoned Mine Lands and Reclamation submitted an amendment to its AMLR Plan under SMCRA (30 U.S.C. 1201 *et seq.* ). The amendment consists of numerous changes throughout the AMLR Plan, some of which concern the AML Enhancement Rule. In its submittal of the amendment, the WVDEP stated that the revision incorporates the AML Enhancement Rule at 30 CFR Parts 707 and 874, as published by OSM in the **Federal Register** on Friday, February 12, 1999 (64 FR 7470-7483). In its submittal letter, the State noted that the amendment also contains minor organizational and operational changes. Minor changes, such as organizational changes, re-numbering of sections, updating the name of departments or agencies, deletion of historical narrative, and the correction of typographical and grammatical errors, are non-substantive changes that do not affect the basis of the original approval of the West Virginia AMLR Plan. Therefore, we did not identify such non-substantive changes in our published proposed rule notice. We announced receipt of the proposed amendment in the September 18, 2006, **Federal Register** (71 FR 54601), and in the same document opened the public comment period and provided an opportunity for a public hearing on the adequacy of the proposed amendment. The public comment period closed on October 18, 2006. We did not hold a hearing or meeting, because no one requested one. We received comments from three Federal agencies and one State agency. III. OSM's Findings Following are the findings we made concerning the amendment. OSM's standard for comparison of State AMLR amendments with SMCRA and the Federal regulations is found in Directive STP-1, Appendix 11. This policy provides that “in accordance with 30 CFR 884.14(a), the proposed plan must meet all applicable requirements of the Federal statute and rules. That is, a State's statutes, rules, policy statements, procedures, and similar materials must compare, altogether, with applicable requirements of the Federal statute and rules, to ensure that the State's plan, as a whole, meets all Federal requirements.” In addition, any amendments to AMLR plans must be approved in accordance with the procedures set out in 30 CFR 884.14. A. Minor Revisions to West Virginia's AMLR Plan Provisions West Virginia proposed numerous minor organizational and operational changes, re-numbering of sections, updating the name of departments or agencies, and the correction of typographical and grammatical errors. Because the changes to these previously approved plan provisions are minor, we find that they meet the requirements of the Federal regulations and the Act and are hereby approved. B. Revisions to West Virginia's AMLR Plan Provisions That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations and the Act West Virginia proposed revisions to the following plan provisions. The State AMLR Plan revisions contain language that is the same as, or similar to, the corresponding sections of the Federal regulations and are hereby approved. B.1. Introduction B; 30 CFR 884.13(d); description of the organization. B.2. Section I; 30 CFR 884.13(a); designation by the Governor. B.3. Section I; 30 CFR 884.13(b); legal opinion by State Attorney General. B.4. Section III A; 30 CFR 884.13(c)(2); description of procedures for identifying projects. B.5. Section III B; 30 U.S.C. 1233(a) and 30 CFR 884.13(c)(2); factors considered for prioritizing reclamation projects. B.6. Section III B item 6(e); 30 CFR 707.5; Abandoned Mine Lands Reclamation Enhancement Rule, definitions. B.7. Section III item 6(e)(i); 30 CFR 874.17(a); consultation with Title V regulatory authority, with the noted exceptions that the Code of State Regulations

(CSR)38-2-3.31.a and 3.31.c have not been fully approved by OSM. B.8. Section III B item 6(e)(i)(I); 30 CFR 707.5; definition of government financed construction. B.9. Section III B item 6(e)(i)(II); 30 CFR 707.5 and 874.17(a); agency procedures for less than 50 percent government funding. B.10. Section III B item 6(e)(i)(III); 30 CFR 874.17(b); concurrence with Title V regulatory authority. B.11. Section III B item 6(e)(i)(IV); 30 CFR 874.17(c); documentation. B.12. Section III B item 6(e)(i)(V); 30 CFR 874.17(d); special requirements. B.13. Section III B item 6(e)(i)(VI); 30 CFR 874.17(e); limitation. B.14. Section III B item 8; 30 CFR 884.13(c)(2); project tracking system. B.15. Section IV item 3; 30 CFR 884.13(c)(3); coordination of reclamation among abandoned mine lands programs. B.16. Section VIII; 30 CFR 884.13(c)(7); public participation and involvement. B.17. Section IX A; 30 CFR 884.13(d)(1); organization of the designated agency. B.18. Section IX B; 30 CFR 705 and 884.13(d)(2); personnel staffing policies, including restrictions on financial interests by State employees. B.19. Section IX C; 30 CFR 884.13(d)(3); purchasing and procurement systems. B.20. Section IX D; 30 CFR 884.13(d)(4); accounting system. C. Revisions to West Virginia's AMLR Plan Provisions That Are Not the Same as the Corresponding Provisions of the Federal Regulations and the Act C.1. Section II. Purposes of the State Reclamation Program. Language is deleted and added to clarify that expenditures from the AMLR reclamation fund are selected on the basis of the priorities identified at W. Va. Code 22-2-4. The priorities identified at W. Va. Code 22-2-4(b)(1)(A) through

(F)are substantively identical to the priorities identified in SMCRA at section 403(a)(1) through (a)(5) with one exception. The priority identified at W. Va. Code 22-2-4(b)(1)(D), concerning expenditures for research and demonstration projects relating to the development of surface-mining reclamation and water quality control program methods and techniques, is not authorized by SMCRA as a priority for expenditures from the AMLR fund. This provision was formerly codified at section 403(4) of SMCRA, but it was deleted on October 24, 1992. However, we note that the State has also amended the AMLR Plan at Section III. B. concerning the prioritization of problems. Amendments to section III B and B(4) also address the AMLR Fund priority requirements. The first paragraph at section III B that is being amended references the priority requirements at W. Va. Code 22-2-4. Section III B is amended by deleting item III B.(4) concerning funding priority for research and demonstration projects relating to the development of surface mining reclamation and water quality control program methods and techniques. Therefore, it appears that expenditures for research and demonstration projects will not be considered as priority for which AMLR expenditures can be made. Taken as a whole, therefore, we understand that the West Virginia AMLR Plan will not provide expenditures from the AMLR Fund for research and development projects and, therefore, is consistent with the priorities identified in SMCRA at section 403(a). We are approving the amendments to sections II and III B. and III B. 4 with that understanding. C.2. Section III B. Item 6.(e). The existing language is deleted concerning waiving any requirement that a reclamation contractor obtain a reclamation permit to extract or remove coal if the waiver will facilitate removal of coal and the mining is incidental to the project. The deleted language was not consistent with section 528 of SMCRA concerning surface mining operations not subject to the Act, nor consistent with the definition of surface coal mining operations at 30 CFR 700.5. Section 528 provides that the following activities are not subject to the Act:

(1)The extraction of coal by a landowner for his/her own noncommercial use from land owned or leased by him/her; and

(2)the extraction of coal as an incidental part of Federal, State or local government-financed highway or other construction under regulations established by the regulatory authority. The definition of surface coal mining operations at section 701(28)(A) of SMCRA and 30 CFR 700.5 also exclude from the definition of surface coal mining operations activities that include the extraction of other minerals, where coal does not exceed 16 2/3 percent of the tonnage of minerals removed for purposes of commercial use or sale, or coal exploration subject to section 512 of SMCRA. Because the deleted language excluded reclamation projects from the definition of “surface coal mining operations” even though those projects should not have been excluded, we are approving the deletion. C.3. Section III B Item 6(g). The existing language concerning the recovery of coal from refuse piles, impoundments, or abandoned mine workings containing coal is deleted. The deleted language allowed coal removal incidental to a proposed reclamation project. The Federal regulations at 30 CFR part 707 and 30 CFR 874.17 exempt the extraction of coal which is incidental only to government-financed construction from the requirements of SMCRA and the Federal regulations, if that extraction meets specified criteria which ensure that the construction is government-financed and that the extraction of coal is incidental to it. We find that the deletion removes language that is not consistent with applicable requirements of SMCRA and the Federal regulations, and it can be approved. We must note that the removal of existing abandoned coal refuse piles within the State is also regulated pursuant to CSR 38-2-3.14. C.4. Section VI H, contractor's responsibilities regarding waste and borrow areas outside the construction limits. The State deleted four items at the end of paragraph H. concerning waste sites on private land that are used in conjunction with an abandoned mine land project. Contractor responsibilities regarding waste and borrow areas outside of construction limits continued to be specified at paragraph H

(1)through (5). We find that the deletion does not render the West Virginia AMLR Plan less effective than 30 CFR 884.13(c) concerning policies and procedures for conducting a reclamation program, or 30 CFR 884.13(c)(6) concerning policies and procedures for rights of entry and can be approved. C.5. Section IX C. Purchasing and Procurement. The existing language concerning the procedures concerning design consultant services and construction contracts is deleted and replaced with language detailing the procedures to be followed for projects greater than $250,000, projects less than $250,000, and definitions. The Plan also includes a reference to the State of West Virginia Purchasing Handbook: W. Va. Code 5G-1, 59-3-1, and 5A-3, and Legislative Rule 148 CSR 1. The Federal regulations at 43 CFR 12.76 concerning procurement, provide, at subsection 12.76(a), that when procuring property and services under a grant, a State will follow the same policies and procedures it uses for procurements from its non-Federal funds. Further, the State shall ensure that every purchase order or other contract includes any clauses required by Federal statutes and executive orders and their implementing regulations. Subsection 12.76(b) also provides that grantees and sub-grantees will use their own procurement procedures which reflect applicable State and local laws and regulations, provided that the procurements conform to applicable Federal law and standards identified in this section. Furthermore, 30 CFR 886.20 requires the State to follow administrative procedures governing accounting, payment, property and related requirements contained in 43 CFR Part 12, subpart C. The State procedures described above are from the State of West Virginia Purchasing Handbook, which, in conjunction with WVDEP's own administrative procedures have been determined to comply with Federal procurement requirements and 30 CFR Part 886. Therefore, because the State's AMLR Plan provisions remain consistent with the Federal purchasing and procurement requirements at 30 CFR 884.13(d)(3), we are approving these amendments. C.6. State Emergency Program B. Legal Opinion from State Attorney General Regarding Emergency Program Administration. In the second sentence, the citation “WV Code Section 22-3” is deleted. This citation is deleted because the West Virginia AMLR Act provisions are located at W. Va. Code 22-2. Accordingly, in the third sentence, the citation “Chapter 22-3-4(b)(1)(A)” is changed to “Chapter 22-2-4(b)(1)(A).” In the language that follows, a reference to Title “38” is deleted and a reference to Title “59” is added in its place because Title 59-1 is the State's AMLR Rule. We find that with these revisions to the West Virginia AMLR Plan, the Plan remains consistent with the Federal regulations at 30 CFR 884.13(b) concerning legal authority under State law to conduct the AMLR program. Therefore, we are approving these revisions. C.7. C. Policies and Procedures Regarding the Emergency Reclamation Program. Existing Item 6, which concerns a public meeting for a previous amendment to the AMLR Plan, is being deleted. Because the deleted language only concerns a public meeting for a previous amendment to the AMLR Plan, that language is no longer necessary. Public participation concerning the current amendment and any future revisions to the State's AMLR Plan is discussed in Section VIII. We find that the public participation provisions of the West Virginia AMLR Plan remain consistent with the Federal requirements at 30 CFR 884.13(c)(7). Therefore, we are approving this deletion. C.8. D. Item 2. Administrative and Managerial Structure. The following language is being deleted at the beginning of Item 2: Six of the positions assigned to the Emergency Group of the Abandoned Mine Lands and Reclamation Section consist of technical personnel. These positions include 5 inspectors and 2 engineers. The deleted language quoted above was inconsistent and unnecessary. The inaccuracy stems from the reference to six positions consisting of 5 inspectors and two engineers. Subsequent paragraphs continue to clarify that engineers and inspectors for the Emergency Program are located at each field office in the northern and southern part of the State. However, the exact number of these positions is not specified to provide WVDEP added flexibility to satisfy future program demands. The engineers must be mining and/or civil engineers with the technical expertise to render plans and specifications for correction of abandoned mine problems. The inspectors will monitor all day-to-day construction activities on emergency projects. These provisions are consistent with the Federal regulations at 30 CFR 884.13(d)(2) concerning personnel staffing policies. Therefore, the deletion of the quoted language is approved. C.9. The last sentence of the existing second paragraph is also being deleted. That sentence stated that “[t]hese are all newly created positions.” This deleted language is unnecessary and no longer accurate. Therefore, the deletion of that language can be approved. Additionally, the last two sentences in the existing third paragraph (the second sentence contains a reference to page 75) are being deleted. In their place, a new sentence is added which states that “This procedures ( *sic* ) is in compliance to [with] the Department of Administration, Division of Purchasing.” As discussed above under Finding C.5, the Federal regulations at 43 CFR 12.76 concerning procurement provide that when procuring property and services under a grant, a State will follow the same policies and procedures it used for procurements from its non-Federal funds. Therefore, because we find both the deletion and the new language to be consistent with the Federal requirements at 30 CFR 884.13(d)(3) regarding purchasing and procurements systems, they can be approved. C.10. Item 3. Under paragraph

(c)Immediate Follow-up, at (ii), the phrase “[a]n engineer, realty specialist, and other” is deleted and replaced with the term “[a]ppropriate personnel.” Also, language is being deleted which provides that “[t]his visit will be coordinated with the Federal Office of Surface Mining Reclamation and Enforcement.” As amended, subparagraph

(ii)reads as follows:

(ii)Appropriate personnel will be dispatched to the site as soon as possible if a valid emergency situation exists. The language concerning the requirement to coordinate the site visit with OSM is being deleted because that requirement already exists at Item 3(a)(i). Specifically, Item 3(a) provides that the investigator's tasks for investigations of potential emergency situations are as follows: at (i), “Coordinate Site visit with Office of Surface Mining as needed.” More importantly, Item 3(c)(i) requires the OSM Field Office Director to make the final determination that an emergency exists or does not exist. Therefore, we are approving the deletion. C.11. At paragraph (iv), the words “color” and “slides” are being deleted as a form of documentation of damage by realty personnel to show abandoned mine land problems and impacts, including structural damage. As revised, “photos” are required for such documentation. We find that this revision is acceptable, because it acknowledges that digital photography has largely replaced slide photography as a means of documentation. Therefore, we are approving the deletion. C.12. F. Emergency Purchases, Item 6. This item is being deleted. The deleted language reads as follows: 6. In addition to the above stated procedure, at the time of this writing an open end or bilateral contract for construction services is being assembled which may be utilized for emergency services. The following page shows the technical evaluation sheet used to assist in selecting consultants. The factors may be revised in the future to reflect different needs. The State has chosen not to implement the open end or bilateral contract for construction services and, therefore, the deleted language is not needed. We are approving the deletion, because the State's regular purchasing and procurement systems for emergency projects are consistent with 30 CFR 884.13(d)(3). C.13. G. Emergency Reclamation Activities Language is being deleted that relates to the number of emergency projects completed between 1979 and 1986. The deleted information is historical information that was useful in making decisions regarding a previous amendment to the West Virginia AMLR Plan. The revised AMLR Plan continues to provide information concerning the probable number and types of emergencies that are likely to occur in the State on an annual basis. This information is used in the development of the West Virginia Abandoned Mine Land Performance Agreement, which is negotiated between OSM and the State approximately every two years and determines which State AML activities are evaluated by OSM on an annual basis. Therefore, we are approving the deletion of the historical information, because it is no longer relevant. C.14. Water Supply Amendment; Target areas for AML assistance. Item (3). In the second paragraph, the words “and submitted to the Federal Office of Surface Mining for funding approval” are deleted from the end of the first sentence. As revised, the sentence reads as follows: “After a pool of eligible projects is determined, potential projects are selected.” However, the State Plan continues to seek OSM approval prior to initiating a project. In the last paragraph, the State AMLR Plan states that “WVDEP will request an “Authorization to Proceed”

(ATP)from OSM prior to initiating a project.” In addition, all National Environmental Policy Act

(NEPA)compliance documentation is required prior to the initiation on any new water supply project. Therefore, we are approving the deletion. C.15. Revision to West Virginia's AMLR Plan Reflecting Amendments to Title IV of the SMCRA A. Expanded Eligibility Criteria. Item (2). In the second paragraph, the citation “45 FR 14810-14819 March 6, 1980” is being deleted and replaced by the following citation: “66 FR 31250-31258, June 11, 2001.” The June 11, 2001, **Federal Register** notice contains the revised guidelines for abandoned mine land reclamation programs and projects. Therefore, we are approving the citation change. C.16. B. State Acid Mine Drainage Treatment and Abatement Program Language is being amended concerning coordination between the State and the Natural Resources Conservation Service (NRCS). The State has deleted references to the Rural Abandoned Mine Program and to the U.S. Bureau of Mines. As amended, the language is as follows: After consultation with the NRCS, the State may reclaim certain areas that are severely impacted by acid mine drainage. (This coordination will continue the already present cooperative effort between the State and the NRCS). The Bureau of Mines no longer exists and, therefore, the reference to the Bureau of Mines can be deleted. Also, consultation and coordination between the State and the NRCS in abating acid mine drainage will continue after these revisions are approved. Therefore, we are approving the amendments. IV. Summary and Disposition of Comments Public Comments We published a **Federal Register** notice on September 18, 2006, and asked for public comments on the proposed amendments to the West Virginia AMLR Plan (Administrative Record Number WV-1474). The public comment period closed on October 18, 2006. No comments were received from the public, but one State agency and three Federal agencies commented on the proposed revisions. State Agency Comments The West Virginia Division of Culture and History reviewed the West Virginia AMLR Plan to determine its effects on cultural resources, and submitted comments as required by section 106 of the National Historic Preservation Act of 1966, as amended, and its implementing regulations at 36 CFR Part 800 (Administrative Record Number WV-1478). The Division of Culture and History stated that under Subsection III.B, Prioritization of Problems, the document lists the protection of historic or cultural resources as a benefit that will be considered in reclamation projects. The Division of Culture and History reminded WVDEP that this should be an alternative that is regularly considered during the planning phases of a project. We must note that this portion of the WVAMLR Plan that the Division of Culture and History has commented on has not been revised by WVDEP. Nevertheless, this part of the Plan does contain some of the planning requirements for AML projects. Therefore, as suggested, the WVDEP is obligated to regularly consider historic or cultural resources in selecting and planning AML projects. The Division of Culture and History commented that under section VI, Reclamation of Private Land, subsection H, Contractors responsibilities regarding waste and borrow areas outside the construction limits, the document states that the contractor must observe NEPA regulations when selecting and utilizing offsite borrow and/or waste disposal areas. Because NEPA provides for the identification and protection of cultural resources, the Division of Culture and History asked that borrow and waste areas be submitted for their review. Again, we must point out that this portion of the AMLR Plan has not been revised by WVDEP. However, under the existing State AMLR Plan, contractors that use waste and borrow areas outside the construction limits must get all required clearances, including the protection of cultural resources, prior to creating any offsite disturbances at waste or borrow areas. Waste and borrow areas created by AML reclamation activities must be conducted in accordance with applicable State and Federal reclamation requirements. If possible, waste and borrow areas should be located on the reclamation project site. Offsite waste and borrow areas should be used only when no onsite area is available, and it is necessary to protect public health and safety. In addition, adverse impacts to waste and borrow areas should be minimized by disturbing the smallest possible area, protecting any historic or cultural values that may be present, and reclaiming the site upon completion of the AML project. In its final comment, the Division of Culture and History stated that it was its understanding that exploratory drilling occurs prior to its review. The Division of Culture and History went on to say, it has been its experience that this can cause damage to cultural resources that may be considered eligible for inclusion in the National Register of Historic Places. The Division of Culture and History concluded that in order to prevent future damages to cultural resources, it request the opportunity to review project plans as they relate to exploratory drilling locations. We agree that unregulated exploratory drilling can cause damage to historic and cultural resources. State and Federal reclamation requirements prohibit such unauthorized activity. Exploratory drilling can only be authorized when it is part of an approved AML project. Because all AML projects are subject to review by the Division of Culture and History, no exploratory drilling should be conducted as part of an approved State AML project that would result in damage to historic or cultural resources. Federal Agency Comments Under 30 CFR 884.14(a)(2) and 884.15(a), on September 8, 2006, we requested comments on the amendment from various other Federal agencies with an actual or potential interest in the West Virginia AMLR Plan (Administrative Record Number WV-1473). The U.S. Department of Agriculture, Natural Resources Conservation Service

(NRCS)responded on September 21, 2006, and stated that it had no comments (Administrative Record Number WV-1475). The U.S. Department of the Interior, National Park Service

(NPS)responded with comments (Administrative Record Number WV-1477). The NPS commented on language in section III B, concerning factors considered for reclamation project consideration. Specifically, the NPS stated that language at section III B. 3, and throughout this section of the revised AMLR Plan, appears to provide the WVDEP with the final decision making authority in the reclamation design without consideration of the landowner or adjacent land owner, whether public or private. In particular, the NPS stated, the various land management agencies may have resource protection mandates that do not coincide with reclamation decisions made by the WVDEP. Therefore, the NPS suggested, wording should be included in the revised AMLR Plan to indicate that where adverse impacts are not being mitigated through reclamation, or where the proposed reclamation appears to be adverse to a land owner or land management agency (State or Federal), a joint approval process should be implemented between the WVDEP and the affected owner or agency. We must note that section III B. 3 has not been revised by the State. However, under SMCRA at section 405(d), West Virginia was granted exclusive responsibility and authority to implement the provisions of its approved AMLR program. We believe that the West Virginia AMLR Plan appropriately addresses the NPS's concern for participation in the following ways. The AMLR Plan provides for public participation and agency review. In section VIII, the AMLR Plan provides that all proposed AML projects will include a NEPA environmental assessment. State and Federal agencies will have an opportunity to provide input concerning the NEPA document for projects which relate to their areas of expertise. In addition to listing the names of several agencies who may review the environmental assessments, the AMLR Plan provides that other agencies may be asked to comment on the environmental assessments. At section III B. 7, the Plan also requires the WVDEP to consider the acceptability of post-reclamation land uses in terms of compatibility with land uses in the surrounding area, consistent with applicable State, regional, and local use plans and laws, and the needs and desires of the community in which the project is located. The NPS commented that section III B. 6(c) provides that if the WVDEP determines that the coal or another mineral resource is or may be economical to mine, the WVDEP shall decide whether to approve or proceed with the proposed reclamation project, or to defer reclamation until it can be accomplished during the process of future mining. The NPS stated that it is concerned that this process places coal economics above reclamation needs. The NPS stated that it believes that the ranking of reclamation projects should not include any assumed value of in-place coal. While section III B. 6(c) has not been revised by the State, we disagree that this provision places coal economics above reclamation needs. Rather, this provision provides the WVDEP with the flexibility to consider, among other factors, whether coal or other mineral resource is economical to mine. The provision does not place the economic consideration above all others. While it is a factor of consideration, it is not the most important factor. For example, consideration of the economic value of the coal would not override specific benefits of reclamation such as protection of human life, health, and safety. In addition, section III.B. 6(d) provides that any decision to defer reclamation until future mining occurs may be reconsidered by the WVDEP whenever the WVDEP determines that reclamation should be accomplished sooner. The NPS commented that at section III B. 6(f), the provision provides that if the mineral estate under the area to be reclaimed contains other seams that are currently uneconomical to mine, provisions should be made allowing the coal to be mined in the future. The NPS stated that abandoned mine reclamation needs should take precedent over providing access to coal that may or may not be economic to mine at a future date. Section III B. 6(f) was not revised by the State. However, we note that this provision does not provide that reclamation must be prevented or even delayed to provide for coal removal at a later date. Rather, this provision essentially directs AMLR Program planners to prepare for that eventuality by establishing provisions to allow for any coal, which is currently uneconomical to mine, to be mined in the future. If the coal is mined in the future, a permit would be required and the site would be reclaimed after mining. Finally, the NPS stated that the revised AMLR Plan should include a provision for notification of affected land owners or land managers of the anticipated prioritization and scheduling of reclamation to be performed. This could be done, the NPS stated, through private and public announcements as is currently practiced with active mining permits. The AMLR Plan provides public participation and agency review provisions at section VIII. That section provides that prior to submission of non-emergency construction projects to OSM for the issuance of an Authorization to Proceed (ATP), the WVDEP will conduct at least one public meeting in Charleston, West Virginia, to describe the project submittal's contents. All public meetings will be announced via news releases and legal advertisements. Legal ads will be placed in newspapers with circulations in the locations of the proposed projects. Section VIII also provides that a NEPA environmental assessment document will be included for each project. The AMLR Plan provides that environmental assessments may be reviewed by the agencies listed in section VIII, and other agencies besides those listed may be asked to comment on the environmental assessments. We suggest that NPS contact the WVDEP to discuss the level of participation that NPS seeks or for those specific projects that it may be interested in receiving notification about in the future. Environmental Protection Agency

(EPA)Comments Under 30 CFR 884.14(a)(2) and 884.15(a), we also requested comments on the amendment from EPA (Administrative Record Number WV-1473). EPA responded by letter dated September 27, 2006, and stated that it had not identified any apparent inconsistencies with the Clean Water Act, Clean Air Act, or other statutes and regulations under EPA's jurisdiction (Administrative Record Number WV-1476). EPA stated that it did not have any other comments. V. OSM's Decision Based on the above findings, we are approving the AMLR Plan amendment dated June 16, 2006, as submitted by West Virginia on June 27, 2006 (Administrative Record Number WV-1469). To implement this decision, we are amending the Federal regulations at 30 CFR 948.20 and 948.25, which codify decisions concerning the West Virginia AMLR Plan amendments. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 405(d) of SMCRA requires that the State have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. VI. 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 regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempt from review by the Office of Management and Budget 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 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 or Tribal abandoned mine land reclamation plans and plan amendments because each program is drafted and promulgated by a specific State or Tribe, not by OSM. Decisions on proposed abandoned mine land reclamation plans and plan amendments submitted by a State or Tribe are based solely on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations. 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 abandoned mine land reclamation programs. 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 405(d) of SMCRA requires State abandoned mine land reclamation programs to be in compliance with the procedures, guidelines, and requirements established under 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 rule does not involve or affect Indian Tribes in any way. 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 No environmental impact statement is required for this rule because agency decisions on proposed State and Tribal abandoned mine land reclamation plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332 *et seq.* ) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)). 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, which is the subject of this rule, is based upon 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, Federal, State, or local government agencies, or geographic regions; and

(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. 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 948 Abandoned mine reclamation programs, Intergovernmental relations, Surface mining, Underground mining. Dated: December 1, 2006. H. Vann Weaver, Acting Regional Director, Appalachian Region. For the reasons set out in the preamble, 30 CFR part 948 is amended as set forth below: PART 948—West Virginia 1. The authority citation for part 948 continues to read as follows: Authority: 30 U.S.C. 1201 *et seq.* 2. Section 948.20 is amended by revising the heading and paragraph

(b)as follows: § 948.20 Approval of State abandoned mine lands reclamation plan.

(b)West Virginia Department of Environmental Protection, Office of Abandoned Mine Lands and Reclamation, 601 57th Street SE., Charleston, West Virginia 25304-2345, Telephone

(304)926-0485. 3. Section 948.25 is amended by revising the heading, and adding in the table a new entry in chronological order by “Date of final publication” to read as follows: § 948.25 Approval of West Virginia abandoned mine lands reclamation plan amendments. Original amendment submission date Date of final publication Citation/description * * * * * * * June 27, 2006 January 17, 2007 Amendment includes AML enhancement requirements and other revisions to West Virginia's AMLR Plan dated June 16, 2006. [FR Doc. E7-455 Filed 1-16-07; 8:45 am] BILLING CODE 4310-05-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, and 63 [FRL-8269-6] Delegation of Authority to the States of Iowa, Missouri and Nebraska for New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAP); and Maximum Achievable Control Technology

(MACT)Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of delegation of authority. SUMMARY: The states of Iowa, Missouri and Nebraska have submitted updated regulations for delegation of EPA authority for implementation and enforcement of NSPS, NESHAP, and MACT. The submissions cover new EPA standards and, in some instances, revisions to standards previously delegated. EPA's review of the pertinent regulations shows that they contain adequate and effective procedures for the implementation and enforcement of these Federal standards. This action informs the public of delegations to the above-mentioned agencies. DATES: This document is effective on January 17, 2007. The dates of delegation can be found in the SUPPLEMENTARY INFORMATION section of this document. ADDRESSES: Copies of documents relative to this action are available for public inspection during normal business hours at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. Effective immediately, all notifications, applications, reports, and other correspondence required pursuant to the newly delegated standards and revisions identified in this document must be submitted with respect to sources located in the jurisdictions identified in this document, to the following addresses: Iowa Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Urbandale, Iowa 50322 Missouri Department of Natural Resources, Air Pollution Control Program, PO Box 176, Jefferson City, MO 65102-0176 Nebraska Department of Environmental Quality, Air Quality Division, 1200 “N” Street, Suite 400, PO Box 98922, Lincoln, NE 68509 Duplicates of required documents must also continue to be submitted to the EPA Regional Office at the above address. FOR FURTHER INFORMATION CONTACT: Gwen Yoshimura at

(913)551-7073, or by e-mail at *yoshimura.gwen@epa.gov* . SUPPLEMENTARY INFORMATION: The supplementary information is organized in the following order: What does this action do? What is the authority for delegation? What does delegation accomplish? What has been delegated? What has not been delegated? List of Delegation Tables Table I—NSPS, 40 CFR part 60 Table II—NESHAP, 40 CFR part 61 Table III—NESHAP, 40 CFR part 63 What does this action do? The EPA is providing notice of an update to its delegable authority for implementation and enforcement of the Federal standards shown in the tables below to the states of Iowa, Missouri and Nebraska. This action updates the delegation tables previously published at 70 FR 36515 (June 24, 2005). The EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given. What is the authority for delegation? 1. Section 111(c)(1) of the Clean Air Act

(CAA)authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS are codified at 40 CFR part 60. 2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize the EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively. What does delegation accomplish? Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the concurrent authority to enforce the standards. What has been delegated? Tables I, II, and III below list the delegated standards. Each item listed in the Subpart column has two relevant dates listed in each column for each state. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through the date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation. This notice specifically addresses revisions to the columns for Iowa, Missouri, and Nebraska. What has not been delegated? 1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA. 2. In some cases, the standards themselves specify that specific provisions cannot be delegated. In such cases, a specific section of the standard details what authorities can and cannot be delegated. You should review the applicable standard in the CFR for this information. 3. In some cases, the state rules do not adopt the Federal standard in its entirety. Each state rule (available from the respective agency) should be consulted for specific information. 4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office. 5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), the EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in an EPA memorandum titled “Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies” from John Seitz, Director, Office of Air Quality Planning and Standards, dated July 10, 1998. List of Delegation Tables Table I.—Delegation of Authority—Part 60 NSPS—Region 7 Subpart Source category State of Iowa State of Kansas State of Missouri State of Nebraska A General Provisions 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 D Fossil-Fuel Fired Steam Generators for Which Construction is Commenced After August 17, 1971 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Da Electric Utility Steam Generating Units for Which Construction is Commenced After September 18, 1978 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Db Industrial-Commercial-Institutional Steam Generating Units 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Dc Small Industrial-Commercial-Institutional Steam Generating Units 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 E Incinerators 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Ea Municipal Waste Combustors for Which Construction is Commenced After December 20, 1989, and on or before September 20 1994. 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Eb Large Municipal Waste Combustors for Which Construction is Commenced after September 20, 1994, or for Which Modification or Reconstruction is Commenced After June 19, 1996. 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Ec Hospital/Medical/Infectious Waste Incinerators for Which Construction Commenced after June 20, 1996 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 F Portland Cement Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 G Nitric Acid Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 H Sulfuric Acid Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 I Hot Mix Asphalt Facilities 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 J Petroleum Refineries 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 K Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After June 11, 1973, and Prior to May 19, 1978 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Ka Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After May 18, 1978, and Prior to July 23, 1984 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Kb Volatile Organic Liquid Storage Vessels (including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 10/15/03 12/14/04 L Secondary Lead Smelters 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 M Secondary Brass and Bronze Production Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 N Basic Oxygen Process Furnaces for Which Construction is Commenced After June 11, 1973 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Na Basic Oxygen Process Steelmaking Facilities for Which Construction is Commenced After January 20, 1983 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 O Sewage Treatment Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 P Primary Copper Smelters 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Q Primary Zinc Smelters 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 R Primary Lead Smelters 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 S Primary Aluminum Reduction Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 T Phosphate Fertilizer Industry: Wet Process Phosphoric Acid Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 U Phosphate Fertilizer Industry: Superphosphoric Acid Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 V Phosphate Fertilizer Industry: Diammonium Phosphate Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 W Phosphate Fertilizer Industry: Triple Superphosphate Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 X Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage Facilities 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Y Coal Preparation Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 Z Ferroalloy Production Facilities 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 AA Steel Plants: Electric Arc Furnaces Constructed After October 21, 1974, and on or Before August 17, 1983 02/22/05 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 AAa Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed After August 17, 1983 02/22/05 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 BB Kraft Pulp Mills 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 CC Glass Manufacturing Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 DD Grain Elevators 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 EE Surface Coating of Metal Furniture 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 GG Stationary Gas Turbines 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/08/04 05/07/05 HH Lime Manufacturing Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 KK Lead-Acid Battery Manufacturing Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 LL Metallic Mineral Processing Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 MM Automobile and Light Duty Truck Surface Coating Operations 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 NN Phosphate Rock Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 PP Ammonium Sulfate Manufacture 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 QQ Graphic Arts Industry: Publication Rotogravure Printing 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 RR Pressure Sensitive Tape and Label Surface Coating Operations 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 SS Industrial Surface Coating: Large Appliances 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 TT Metal Coil Surface Coating 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 UU Asphalt Processing and Asphalt Roofing Manufacture 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 VV Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 WW Beverage Can Surface Coating Industry 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 XX Bulk Gasoline Terminals 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 AAA New Residential Wood Heaters 12/19/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 BBB Rubber Tire Manufacturing Industry 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 DDD Volatile Organic Compound

(VOC)Emissions from the Polymer Manufacturing Industry 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 FFF Flexible Vinyl and Urethane Coating and Printing 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 GGG Equipment Leaks of VOC in Petroleum Refineries 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 HHH Synthetic Fiber Production Facilities 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 III Volatile Organic Compound

(VOC)Emissions From the Synthetic Organic Chemical Manufacturing Industry (SOCMI) AIR Oxidation Unit Processes 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 JJJ Petroleum Dry Cleaners 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 KKK Equipment Leaks of VOC from Onshore Natural Gas Processing Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 LLL Onshore Natural Gas Processing: SO2 Emissions 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 NNN Volatile Organic Compound

(VOC)Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 OOO Nonmetallic Mineral Processing Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 PPP Wool Fiberglass Insulation Manufacturing Plants 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 QQQ VOC Emissions from Petroleum Refinery Wastewater Systems 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 RRR Volatile Organic Compound Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Reactor Processes 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 SSS Magnetic Tape Coating Facilities 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 TTT Industrial Surface Coating: Surface Coating of Plastic Parts for Business Machines 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 UUU Calciners and Dryers in Mineral Industries 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 VVV Polymeric Coating of Supporting Substrates Facilities 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 WWW Municipal Solid Waste Landfills 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 AAAA Small Municipal Waste Combustion Units for Which Construction is Commenced After August 30, 1999 or for Which Modification or Reconstruction is Commenced After June 6, 2001 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 CCCC Commercial and Industrial Solid Waste Incineration Units for Which Construction is Commenced After November 30, 1999 or for Which Modification or Reconstruction is Commenced on or After June 1, 2001 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 DDDD Commercial and Industrial Solid Waste Incineration Units that Commenced Construction On or Before November 30, 1999 07/01/03 12/14/04 07/01/03 12/14/04 EEEE Other Solid Waste Incineration Units for Which Construction Commenced After December 9, 2004 or Modification or Reconstruction Commenced On or After June 16, 2006 12/16/05 08/23/06 FFFF Other Solid Waste Incineration Units that Commenced Construction On or Before December 9, 2004 Table II.—Delegation of Authority—Part 61 NESHAP—Region 7 Subpart Source Category State of Iowa State of Kansas State of Missouri State of Nebraska Lincoln- Lancaster County City of Omaha A General Provisions 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 B Radon Emissions from Underground Uranium Mines 07/01/03 12/03/04 C Beryllium 12/11/03 12/15/04 7/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 D Beryllium Rocket Motor Firing 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 E Mercury 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 F Vinyl Chloride 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 J Equipment Leaks (Fugitive Emission Sources) of Benzene 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 L Benzene Emissions from Coke By-Product Recovery Plants 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 M Asbestos 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 N Inorganic Arsenic Emissions from Glass Manufacturing Plants 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 O Inorganic Arsenic Emissions From Primary Copper Smelters 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 P Inorganic Arsenic Emissions From Arsenic Trioxide and Metallic Arsenic Production Facilities 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 Q Radon Emissions From Department of Energy Facilities 07/01/03 12/03/04 R Radon Emissions From Phosphogypsum Stacks 07/01/03 12/03/04 T Radon Emissions From the Disposal of Uranium Mill Tailings 07/01/03 12/03/04 V Equipment Leaks (Fugitive Emission Sources) 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 W Radon Emissions From Operating Mill Tailings 07/01/03 12/03/04 Y Benzene Emissions From Benzene Storage Vessels 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 BB Benzene Emissions From Benzene Transfer Operations 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 FF Benzene Waste Operations 12/11/03 12/15/04 07/01/03 12/03/04 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 Table III.—Delegation of Authority—Part 63 NESHAP—Region 7 Subpart Source category State of Iowa State of Kansas State of Missouri State of Nebraska Lincoln- Lancaster County City of Omaha A General Provisions 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 B Requirements for Control Technology Determinations for Major Sources in Accordance with Clean Air Act Sections, Section 112(g) and

(j)02/16/06 08/23/06 07/01/03 12/03/04 12/31/00 11/20/02 07/01/03 12/14/04 04/05/02 04/18/03 (112(g) only) D Compliance Extensions for Early Reductions of Hazardous Air Pollutants 02/16/06 08/23/06 07/01/03 12/03/04 12/31/00 09/30/02 07/01/03 12/14/04 11/21/94 07/31/01 12/29/92 04/18/03 F Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 G Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 H Organic Hazardous Air Pollutants for Equipment Leaks 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 I Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 J Polyvinyl Chloride and Copolymers Production 02/16/06 08/23/06 07/01/03 12/03/04 L Coke Oven Batteries 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 M National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 N Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/19/04 09/25/05 07/01/00 07/31/01 07/01/01 04/18/03 O Ethylene Oxide Emissions Standards for Sterilization Facilities 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 Q Industrial Process Cooling Towers 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 R Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/98 04/18/03 S Pulp and Paper Industry 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 T Halogenated Solvent Cleaning 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 U Polymers and Resins Group I 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 W Epoxy Resins Production and Non-Nylon Polyamides Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 X Secondary Lead Smelting 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 Y Marine Tank Vessel Loading Operations 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 AA/BB Phosphoric Acid/Phosphate Fertilizers 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 CC Petroleum Refineries 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/81/97 07/31/01 07/01/01 04/18/03 DD Off-Site Waste and Recovery Operations 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 EE Magnetic Tape Manufacturing Operations 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 GG Aerospace Manufacturing and Rework Facilities 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 HH Oil and Natural Gas Production Facilities 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 II Shipbuilding and Ship Repair (Surface Coating) 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 JJ Wood Furniture Manufacturing Operations 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 KK Printing and Publishing Industry 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 LL Primary Aluminum Reduction Plants 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 MM Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Along Semichemical Pulp Mills 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/01 04/18/03 OO Tanks-Level 1 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 PP Containers 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 QQ Surface Impoundments 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 RR Individual Drain Systems 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 SS Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 TT Equipment Leaks—Control Level 1 Standards 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 UU Equipment Leaks—Control Level 2 Standards 02/16/06 08/23/06 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 VV Oil-Water Separators and Organic-Water Separators 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 WW Storage Vessel (Tanks)—Control Level 2 02/16/06 08/23/06 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 XX Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste Operations 02/16/06 08/23/06 YY Generic Maximum Achievable Control Technology Standards 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 CCC Steel Pickling-HCL Process Facilities and Hydrochloric Acid Regeneration Plants 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 DDD Mineral Wool Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 EEE Hazardous Waste Combustors 12/19/05 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 GGG Pharmaceutical Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 HHH Natural Gas Transmission and Storage Facilities 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 III Flexible Polyurethane Foam Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 JJJ Polymers and Resins Group IV 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 LLL Portland Cement Manufacturing Industry 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 MMM Pesticide Active Ingredient Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 NNN Wool Fiberglass Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 OOO Manufacture of Amino/Phenolic Resins 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 PPP Polyether Polyols Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 QQQ Primary Copper Smelting 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 RRR Secondary Aluminum Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 09/03/04 09/25/05 07/01/01 04/18/03 TTT Primary Lead Smelting 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 UUU Petroleum Refineries 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 VVV Publicly Owned Treatment Works 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/01 04/18/03 XXX Ferroalloys Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 AAAA Municipal Solid Waste Landfills 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 CCCC Manufacturing of Nutritional Yeast 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 07/01/01 04/18/03 DDDD Plywood and Composite Wood Products 02/16/06 08/23/06 07/01/03 09/25/05 EEEE Organic Liquids Distribution (Non-Gasoline) 02/16/06 08/23/06 07/01/03 09/25/05 FFFF Misc. Organic Chemical Manufacturing 02/16/06 08/23/06 07/01/03 09/25/05 GGGG Solvent Extraction for Vegetable Oil Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 09/01/04 09/25/05 07/01/01 04/18/03 HHHH Wet Formed Fiberglass Mat Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 IIII Surface Coating of Automobiles and Light-Duty Trucks 02/16/06 08/23/06 07/01/03 09/25/05 JJJJ Paper and Other Web Coating 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 KKKK Surface Coating of Metal Cans 02/16/06 08/23/06 07/01/03 12/03/04 07/01/03 09/25/05 MMMM Surface Coating of Misc. Metal Parts and Products 02/16/06 08/23/06 07/01/03 09/25/05 NNNN Surface Coating of Large Appliances 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 OOOO Printing, Coating and Dyeing of Fabrics and Other Textiles 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 PPPP Surface Coating of Plastic Parts and Products 07/01/03 09/25/05 QQQQ Surface Coating of Wood Building Products 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 RRRR Surface Coating of Metal Furniture 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 SSSS Surface Coating of Metal Coil 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 TTTT Leather Finishing Operations 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 UUUU Cellulose Products Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 VVVV Boat Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 WWWW Reinforced Plastic Composites Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 XXXX Rubber Tire Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 YYYY Stationary Combustion Turbines 02/16/06 08/23/06 07/01/03 09/25/05 ZZZZ Stationary Reciprocating Internal Combustion Engines 07/01/03 09/25/05 AAAAA Lime Manufacturing Plants 07/01/03 09/25/05 BBBBB Semiconductor Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 CCCCC Coke Ovens: Pushing, Quenching, and Battery Stacks 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 DDDDD Industrial, Commercial and Institutional Boilers and Process Heaters 02/16/06 08/23/06 06/30/03 11/30/05 07/01/03 09/25/05 EEEEE Iron and Steel Foundries 02/16/06 08/23/06 07/01/03 09/25/05 FFFFF Integrated Iron and Steel Manufacturing Facilities 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 GGGGG Site Remediation 02/16/06 08/23/06 07/01/03 09/25/05 HHHHH Misc. Coating Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 07/01/03 09/25/05 IIIII Mercury Cell Chlor-Alkali Plants 02/16/06 08/23/06 07/01/03 12/03/04 JJJJJ Brick and Structural Clay Products Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 KKKKK Clay Ceramics Manufacturing 02/16/06 08/23/06 06/30/03 11/30/05 07/01/03 12/14/04 LLLLL Asphalt Processing and Asphalt Roofing Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 07/01/03 12/14/04 MMMMM Flexible Poly-urethane Foam Fabrication Operation 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 NNNNN Hydrochloric Acid Production 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 PPPPP Engine Test Cells/Stands 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 QQQQQ Friction Materials Manufacturing Facilities 02/16/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 RRRRR Taconite Iron Ore Processing 02/16/06 08/23/06 SSSSS Refractory Products Manufacturing 02/16/06 08/23/06 07/01/03 12/03/04 07/01/03 12/14/04 TTTTT Primary Magnesium Refining 02/16/06 08/23/06 Summary of This Action All sources subject to the requirements of 40 CFR parts 60, 61, and 63 are also subject to the equivalent requirements of the above-mentioned state or local agencies. This notice informs the public of delegations to the above-mentioned agencies of the above-referenced Federal regulations. Authority: This notice is issued under the authority of sections 101, 110, 112, and 301 of the CAA, as amended (42 U.S.C. 7401, 7410, 7412, and 7601). Dated: January 6, 2007. John B. Askew, Regional Administrator, Region 7. [FR Doc. E7-527 Filed 1-16-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 219 [Docket No. 2001-11213, Notice No. 10] RIN 2130-AA81 Alcohol and Drug Testing: Determination of Minimum Random Testing Rates for 2007 AGENCY: Federal Railroad Administration (FRA), DOT. ACTION: Notice of determination. SUMMARY: Using data from Management Information System annual reports, FRA has determined that the 2005 rail industry random testing positive rates were 0.73 percent for drugs and 0.17 percent for alcohol. Because the industry-wide random drug testing positive rate has remained below 1.0 percent for the last two years, the Federal Railroad Administrator (Administrator) has determined that the minimum annual random drug testing rate for the period January 1, 2007, through December 31, 2007, will remain at 25 percent of covered railroad employees. In addition, because the industry-wide random alcohol testing violation rate has remained below 0.5 percent for the last two years, the Administrator has determined that the minimum random alcohol testing rate will remain at 10 percent of covered railroad employees for the period January 1, 2007, through December 31, 2007. DATES: This notice is effective upon publication. FOR FURTHER INFORMATION CONTACT: Lamar Allen, Alcohol and Drug Program Manager, Office of Safety Enforcement, Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20005 (telephone 202 493-6313); or Kathy Schnakenberg, FRA Alcohol/Drug Program Specialist (telephone 816 561-2714). SUPPLEMENTARY INFORMATION: Administrator's Determination of 2007 Minimum Random Drug and Alcohol Testing Rates In a final rule published on December 2, 1994 (59 FR 62218), FRA announced that it will set future minimum random drug and alcohol testing rates according to the rail industry's overall positive rate, which is determined using annual railroad drug and alcohol program data taken from FRA's Management Information System. Based on this data, the Administrator publishes a **Federal Register** notice each year, announcing the minimum random drug and alcohol testing rates for the following year. *See* 49 CFR 219.602, 608. Under this performance-based system, FRA may lower the minimum random drug testing rate to 25 percent of covered railroad employees whenever the industry-wide random drug positive rate is less than 1.0 percent for two calendar years while testing at a 50 percent minimum rate. For both drugs and alcohol, FRA reserves the right to consider other factors, such as the number of positives in its post-accident testing program, before deciding whether to lower annual minimum random testing rates. If the industry-wide random drug positive rate is 1.0 percent or higher in any subsequent calendar year, FRA will return the minimum random drug testing rate to 50 percent of covered railroad employees. If the industry-wide random alcohol violation rate is less than 1.0 percent but greater than 0.5 percent, the minimum random alcohol testing rate will be 25 percent of covered railroad employees. FRA will raise the minimum random rate to 50 percent of covered railroad employees if the industry-wide random alcohol violation rate is 1.0 percent or higher in any subsequent calendar year. FRA may lower the minimum random alcohol testing rate to 10 percent of covered railroad employees whenever the industry-wide violation rate is less than 0.5 percent for two calendar years while testing at a higher rate. In this notice, FRA announces that the minimum random drug testing rate will remain at 25 percent of covered railroad employees for the period January 1, 2007, through December 31, 2007, because the industry random drug testing positive rate was below 1.0 percent for the last two years (.073 in 2005 and .094 in 2004). The minimum random alcohol testing rate will remain at 10 percent of covered railroad employees for the period January 1, 2007, through December 31, 2007, because the industry-wide violation rate for alcohol has remained below 0.5 percent for the last two years (.017 in 2005 and .018 in 2004). Railroads remain free, as always, to conduct random testing at higher rates. Issued in Washington, DC on January 9, 2007. Joseph H. Boardman, Administrator. [FR Doc. E7-470 Filed 1-16-07; 8:45 am] BILLING CODE 4910-06-P 72 10 Wednesday, January 17, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26585; Directorate Identifier 2006-NE-44-AD] RIN 2120-AA64 Airworthiness Directives; General Electric Company CF34-10E Series Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive

(AD)for General Electric Company

(GE)CF34-10E series turbofan engines. This proposed AD would require revising the combustor case published life limit and removing combustor cases from service before reaching a reduced life limit. This proposed AD results from GE's evaluation of the effects to the combustor case due to installing version 5.10 software in the full-authority digital electronic control (FADEC), and revising the combustor case published life limit. We are proposing this AD to prevent uncontained combustor case failure resulting in an in-flight engine shutdown and possible damage to the airplane. DATES: We must receive any comments on this proposed AD by March 19, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*

(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may examine the comments on this proposed AD in the AD docket on the Internet at *http://dms.dot.gov* . FOR FURTHER INFORMATION CONTACT: Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7773; fax

(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2006-26585; Directorate Identifier 2006-NE-44-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the DOT Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://dms.dot.gov* . Examining the AD Docket You may examine the docket that contains the proposal, any comments received, and any final disposition in person at the DOT Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone

(800)647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the Docket Management Facility receives them. Discussion GE released version 5.10 software for FADECs installed in CF34-10E series turbofan engines. The software was released to change the engine's High Pressure Turbine Active Clearance Control. GE has since evaluated the effects of this software version release, and discovered that combustor cases are being adversely affected. The software release causes changes to thermal gradients and greater stresses to the combustor case, reducing its life. This condition, if not corrected, could result in uncontained combustor case failure resulting in an in-flight engine shutdown and possible damage to the airplane. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. However, since none of the affected combustor cases are near or above the proposed new life limit and are not expected to be for at least two years, we do not propose to mandate immediate replacement of combustor cases. Instead, we are proposing this AD which would require: • Revising the published life limit in the Airworthiness Limitations Section of the CF34-10E Engine Manual, for combustor cases, part number (P/N) 2070M47G02 and P/N 2070M47G03, from 39,600 cycles-since-new

(CSN)to 24,600 CSN; and • Removing from service combustor cases, P/N 2070M47G02 and P/N 2070M47G03, before reaching 24,600 CSN. Costs of Compliance We estimate that this proposed AD would affect 42 CF34-10E series turbofan engines installed on airplanes of U.S. registry. This proposed combustor case removal does not impose any additional labor costs if performed at the time of scheduled engine overhaul. The financial burden to the operators (prorate) is about $140,080 per engine due to the reduction in the life limit. Based on these figures, and on the prorating for the usage of the combustor cases, we estimate the cost of the proposed AD on U.S. operators to be $5,886,720. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive: **General Electric Company:** Docket No. FAA-2006-26585; Directorate Identifier 2006-NE-44-AD. Comments Due Date

(a)The Federal Aviation Administration

(FAA)must receive comments on this airworthiness directive

(AD)action by March 19, 2007. Affected ADs

(b)None. Applicability

(c)This AD applies to General Electric Company

(GE)CF34-10E2A1, CF34-10E5, CF34-10E5A1, CF34-10E6, CF34-10E6A1, and CF34-10E7 turbofan engines. These engines are installed on, but not limited to, Embraer ERJ-190 and -195 airplanes. Unsafe Condition

(d)This AD results from GE's evaluation of the effects to the combustor case due to installing version 5.10 software in the full-authority digital electronic control (FADEC), and revising the combustor case published life limit. We are issuing this AD to prevent uncontained combustor case failure resulting in an in-flight engine shutdown and possible damage to the airplane. Compliance

(e)You are responsible for having the actions required by this AD performed within 30 days after the effective date of this AD, unless the actions have already been done.

(f)Revise the published life limit in the Airworthiness Limitations Section of the CF34-10E Engine Manual, for combustor cases, part number (P/N) 2070M47G02 and P/N 2070M47G03, from 39,600 cycles-since-new

(CSN)to 24,600 CSN.

(g)Remove from service combustor cases, P/N 2070M47G02 and P/N 2070M47G03, before reaching 24,600 CSN.

(h)The requirements of this AD have been met when the engine manual changes are made and operators have modified their continuous airworthiness maintenance plans to reflect the Engine Maintenance Program requirements specified in the GE CF34-10E Engine Manual. Alternative Methods of Compliance

(i)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information

(j)Contact Tara Chaidez, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7773, fax

(781)238-7199; e-mail: *tara.chaidez@faa.gov* for more information about this AD. Issued in Burlington, Massachusetts, on January 10, 2007. Francis A. Favara, Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-499 Filed 1-16-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 RIN 2120-AA64 [Docket No. FAA-2005-22430; Directorate Identifier 2005-NE-34-AD] Airworthiness Directives; Turbomeca Arrius 2 F Turboshaft Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive

(AD)for Turbomeca Arrius 2 F turboshaft engines. That AD currently requires removing from service certain serial number

(SN)fuel control units

(FCUs)or replacing the constant delta pressure diaphragm in those FCUs. This proposed AD would require replacing all FCUs not incorporating modification Tf 55 with FCUs that incorporate modification Tf 55. This proposed AD results from the European Aviation Safety Agency

(EASA)and Turbomeca expanding the applicability to the full population of FCUs installed on Arrius 2 F turboshaft engines. FCUs not incorporating modification Tf 55 are susceptible to having an improperly assembled constant delta pressure (delta P) diaphragm. We are proposing this AD to prevent an uncommanded engine in-flight shutdown on a single-engine helicopter, resulting in a forced autorotation landing or an accident. DATES: We must receive any comments on this proposed AD by March 19, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*

(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Turbomeca, 40220 Tarnos, France; telephone +33 05 59 74 40 00, fax +33 05 59 74 45 15, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Christopher Spinney, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7175; fax

(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2005-22430; Directorate Identifier 2005-NE-34-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://dms.dot.gov* . Examining the AD Docket You may examine the docket that contains the proposal, any comments received and any final disposition in person at the DMS Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone

(800)647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them. Discussion On September 9, 2005, the FAA issued AD 2005-19-10, Amendment 39-14275 (70 FR 54622, September 16, 2005). That AD requires removing from service certain SN FCUs or replacing the constant delta P diaphragm in those FCUs. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, notified us that an unsafe condition may exist on Turbomeca Arrius 2 F turboshaft engines. EASA advises that the Arrius 2 F engine fleet is susceptible to having an improperly assembled constant delta pressure (delta P) diaphragm (pre-modification Tf 55) in the FCU. Actions Since AD 2005-19-10 Was Issued Since AD 2005-19-10 was issued, EASA issued AD No. 2006-0237, dated August 9, 2006, which expands the applicability to the full population of FCUs installed on Arrius 2 F turboshaft engines that have not incorporated modification Tf 55. Also, Turbomeca issued Mandatory Service Bulletin No. 319 73 4055, Update No. 1, dated March 17, 2006, to introduce modification Tf 55 to all Arrius 2 F FCUs. Modification Tf 55 upgrades the FCU with a constant delta P diaphragm that cannot be improperly assembled. Bilateral Agreement Information This engine model is manufactured in France and is type certificated for operation in the United States under the provisions of Section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, EASA kept us informed of the situation described above. We have examined the findings of EASA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require replacing FCUs that do not incorporate modification Tf 55, with FCUs that do. Costs of Compliance We estimate that this proposed AD would affect 46 Arrius 2 F turboshaft engines installed on helicopters of U.S. registry. We also estimate that it would take about 3 work-hours per engine to perform the proposed FCU replacement and that the average labor rate is $80 per work-hour. Required parts would cost about $25,480 per engine. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $1,183,120. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-14275 (70 FR 54622, September 16, 2005) and by adding a new airworthiness directive, to read as follows: **Turbomeca:** Docket No. FAA-2005-22430; Directorate Identifier 2005-NE-34-AD. Comments Due Date

(a)The Federal Aviation Administration

(FAA)must receive comments on this airworthiness directive

(AD)action by March 19, 2007. Affected ADs

(b)This AD supersedes AD 2005-19-10, Amendment 39-14275. Applicability

(c)This AD applies to Turbomeca Arrius 2 F turboshaft engines with fuel control units

(FCUs)not incorporating modification Tf 55. These engines are installed on, but not limited to, Eurocopter EC120B helicopters. Unsafe Condition

(d)This AD results from the European Aviation Safety Agency

(e)You are responsible for having the actions required by this AD performed as soon as practicable after the effective date of this AD but no later than July 31, 2007, unless the actions have already been done.

(f)Replace all FCUs not incorporating modification Tf 55 with FCUs that incorporate modification Tf 55. Alternative Methods of Compliance

(g)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information

(h)Contact Christopher Spinney, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7175, fax

(781)238-7199; e-mail: *christopher.spinney@faa.gov* for more information about this AD.

(i)EASA AD No. 2006-0237, dated August 9, 2006, addresses the subject of this AD.

(j)Turbomeca Mandatory Service Bulletin, Update No. 1, dated March 17, 2006, pertains to the subject of this AD. Issued in Burlington, Massachusetts, on January 10, 2007. Francis A. Favara, Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-494 Filed 1-16-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 RIN 2120-AA64 [Docket No. FAA-2006-25896; Directorate Identifier 2006-NE-33-AD] Airworthiness Directives; General Electric Company CF34-10E Series Turbofan Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive

(AD)for General Electric Company

(GE)CF34-10E series turbofan engines. That AD currently requires removing the fuel inlet strainer from main fuel pump

(MFP)part number (P/N) 2043M12P03, installing a certain replacement flange as an interim repair, remarking the MFP to P/N 2043M12P04, and performing initial and repetitive visual inspections of the main fuel filter. This proposed AD would require removing MFPs, P/N 2043M12P03 and 2043M12P04 from service and installing an improved MFP with a different P/N. This proposed AD results from GE determining that the cause of MFP fuel strainer failure is a design problem with the strainer. We are proposing this AD to prevent engine in-flight shutdown due to MFP malfunctions. DATES: We must receive any comments on this proposed AD by March 19, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*

(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact General Electric Company via Lockheed Martin Technology Services, 10525 Chester Road, Suite C, Cincinnati, Ohio 45215, telephone

(513)672-8400, fax

(513)672-8422, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Tara Fitzgerald, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone:

(781)238-7130, fax:

(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2006-25896; Directorate Identifier 2006-NE-33-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://dms.dot.gov* . Examining the AD Docket You may examine the docket that contains the proposal, any comments received and any final disposition in person at the DMS Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone

(800)647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them. Discussion On September 21, 2006, we issued AD 2006-20-06, Amendment 39-14775 (71 FR 60663, October 16, 2006). That AD requires removing the MFP inlet strainer from the MFPs, installing a certain replacement flange as an interim repair, remarking the MFP to P/N 2043M12P04, and performing initial and repetitive visual inspections of the main fuel filter. That AD was the result of three reports of release of the tripod support legs on the MFP inlet strainer, leading to engine in-flight shutdown. That condition, if not corrected, could result in engine in-flight shutdown due to MFP malfunctions. Actions Since AD 2006-20-06 Was Issued Since AD 2006-20-06 was issued, GE determined that the cause of MFP fuel inlet strainer failure is a design problem with the strainers installed in the MFPs. GE has introduced MFP P/N 2043M12P05, which has a more robust design fuel inlet strainer. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For that reason, we are proposing this AD, which would require removing MFPs, P/N 2043M12P03 and 2043M12P04 from service and installing an improved MFP, not later than April 30, 2007. Costs of Compliance We estimate that this proposed AD would affect 50 CF34-10E series turbofan engines installed on airplanes of U.S. registry. We also estimate that it would take about 3 work-hours per engine to perform the proposed actions, and that the average labor rate is $80 per work-hour. Required parts would cost about $4,226 per engine to upgrade the MFP to a different P/N to make it serviceable. Based on these figures, we estimate the total upgrade cost of the proposed AD to U.S. operators to be $223,300. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect 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. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-14775 (71 FR 60663, October 16, 2006) and by adding a new airworthiness directive to read as follows: **General Electric Company:** Docket No. FAA-2006-25896; Directorate Identifier 2006-NE-33-AD. Comments Due Date

(a)The Federal Aviation Administration

(FAA)must receive comments on this airworthiness directive

(AD)action by March 19, 2007. Affected ADs

(b)This AD supersedes AD 2006-20-06, Amendment 39-14755. Applicability

(c)This AD applies to General Electric Company

(GE)CF34-10E2A1, -10E5, -10E5A1, -10E6, -10E6A1, and -10E7 turbofan engines, with main fuel pump

(MFP)part number (P/N) 2043M12P03 or P/N 2043M12P04, installed. These engines are installed on, but not limited to, Embraer ERJ 190-100-STD, ERJ 190-100-LR, and ERJ 190-100-IGW airplanes. Unsafe Condition

(d)This AD results from GE determining that the cause of MFP fuel strainer failure is a design problem with the strainer. We are issuing this AD to prevent engine in-flight shutdown due to MFP malfunctions. Compliance

(e)You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done. MFP Removal and Installation

(f)Not later than April 30, 2007, remove MFPs, P/N 2043M12P03 and 2043M12P04, from service and install a serviceable MFP. Definition

(g)For the purpose of this AD, a serviceable MFP is one that does not have P/N 2043M12P03 or 2043M12P04. Recommended Actions

(h)We recommend that operators avoid performing the actions in this AD on both engines installed on the same airplane at the same time, if at all possible. Alternative Methods of Compliance

(i)The Manager, Engine Certification Office, FAA, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information

(j)GE Service Bulletin No. CF34-10E S/B 73-0013, dated December 15, 2006, pertains to the subject of this AD.

(k)Contact Tara Fitzgerald, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone

(781)238-7138, fax

(781)238-7199; e-mail: *tara.fitzgerald@faa.gov* for more information about this AD. Issued in Burlington, Massachusetts, on January 10, 2007. Francis A. Favara, Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-498 Filed 1-16-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 888 [Docket No. 2005P-0121] Orthopedic Devices; Reclassification of Non-Invasive Bone Growth Stimulator AGENCY: Food and Drug Administration, HHS. ACTION: Notice of panel recommendation. SUMMARY: The Food and Drug Administration

(FDA)is issuing for public comment the recommendation of the Orthopaedic and Rehabilitation Devices Panel to deny a petition to reclassify the non-invasive bone growth stimulator from class III to class II. The Panel made this recommendation after reviewing the reclassification petition submitted by RS Medical Corp., as well as consideration of presentations made at the Panel meeting by the petitioner, FDA, and members of the public. FDA is also issuing for public comment its findings on the Panel's recommendation. After considering any public comments on the Panel's recommendation and FDA's findings, FDA will approve or deny the reclassification petition by order in the form of a letter to the petitioner. FDA's decision on the reclassification petition will be announced in the **Federal Register** . DATES: Submit written or electronic comments by April 17, 2007. ADDRESSES: You may submit comments, identified by Docket No. 2005P-0121, by any of the following methods: *Electronic Submissions* Submit electronic comments in the following ways: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Agency Web site: *http://www.fda.gov/dockets/ecomments* . Follow the instructions for submitting comments on the agency Web site. *Written Submissions* Submit written submissions in the following ways: • FAX: 301-827-6870. • Mail/Hand delivery/Courier [For paper, disk, or CD-ROM submissions]: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. To ensure more timely processing of comments, FDA is no longer accepting comments submitted to the agency by e-mail. FDA encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal or the agency Web site, as described in the *Electronic Submissions* portion of this paragraph. *Instructions* : All submissions received must include the agency name and Docket No. 2005P-0121 for this notice. All comments received may be posted without change to *http://www.fda.gov/ohrms/dockets/default.htm* , including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket* : For access to the docket to read background documents or comments received, go to *http://www.fda.gov/ohrms/dockets/default.htm* and insert the docket number(s), found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. FOR FURTHER INFORMATION CONTACT: Michel Janda, Center for Devices and Radiological Health (HFZ-410), Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 240-276-3600. SUPPLEMENTARY INFORMATION: I. Background (Regulatory Authorities) The Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 301 *et. seq.* ), as amended by the Medical Device Amendments of 1976 (the 1976 amendments) (Public Law 94-295), the Safe Medical Devices Act of 1990 (the SMDA) (Public Law 101-629), and the Food and Drug Administration Modernization Act of 1997 (FDAMA) (Public Law 105-115), established a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the act (21 U.S.C. 360c) established three categories (classes) of devices, depending on the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval). Under section 513 of the act, devices that were in commercial distribution before May 28, 1976 (the date of enactment of the 1976 amendments), generally referred to as preamendments devices, are classified after FDA has:

(1)Received a recommendation from a device classification panel (an FDA advisory committee);

(2)published the panel's recommendation for comment, along with a proposed regulation classifying the device; and

(3)published a final regulation classifying the device. FDA has classified most preamendments devices under these procedures. Devices that were not in commercial distribution prior to May 28, 1976, generally referred to as postamendments devices, are classified automatically by statute (section 513(f) of the act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval, unless and until the device is reclassified into class I or II or FDA issues an order finding the device to be substantially equivalent, under section 513(i) of the act, to a predicate device that does not require premarket approval. The agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the act (21 U.S.C. 360(k)) and part 807 of the regulations (21 CFR part 807). Reclassification of classified postamendments devices is governed by section 513(f)(3) of the act. This section provides that FDA may initiate the reclassification of a device classified into class III under section 513(f)(1) of the act, or the manufacturer or importer of a device may petition the Secretary of Health and Human Services (the Secretary) for the issuance of an order classifying the device in class I or class II. FDA's regulations in 21 CFR 860.134 set forth the procedures for the filing and review of a petition for reclassification of such class III devices. In order to change the classification of the device, it is necessary that the proposed new class have sufficient regulatory controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. Under section 513(f)(3)(B)(i) of the act, the Secretary may, for good cause shown, refer a petition to a device classification panel. The Panel shall make a recommendation to the Secretary respecting approval or denial of the petition. Any such recommendation shall contain

(1)A summary of the reasons for the recommendation,

(2)a summary of the data upon which the recommendation is based, and

(3)an identification of the risks to health (if any) presented by the device with respect to which the petition was filed. II. Regulatory History of the Device In accordance with section 513(f)(1) of the act, the non-invasive bone growth stimulators were automatically classified into class III because they were not introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, and have not been found substantially equivalent to a device placed in commercial distribution after May 28, 1976, which was subsequently classified or reclassified into class II or class I. Therefore, the device can not be placed in commercial distribution unless it is reclassified under section 513(f)(3), or subject to an approved premarket approval application

(PMA)under section 515 of the act (21 U.S.C. 360e). In a petition dated February 7, 2005, that was received by FDA on February 9, 2005, RS Medical Corp. requested that FDA reclassify the non-invasive bone growth stimulator from class III to class II. (Ref. 1) The petition was submitted under section 513(e) of the act but FDA is reviewing the petition under section 513(f)(3) of the act because that section contains the appropriate procedures for reclassification of postamendments devices. FDA requested additional information and the petitioner amended the petition on August 1, 2005. In accordance with the act and the regulations, FDA referred the petition as amended to an FDA Advisory Committee, the Orthopedic and Rehabilitation Devices Panel (the Panel) for its recommendations on the requested reclassification. III. Description of Device Proposed for Reclassification The Petitioner identified the device as follows: A non-invasive bone growth stimulator is a device that provides stimulation through electrical and/or magnetic fields to facilitate the healing of nonunion fractures and lumbar spinal fusions. The stimulation may be delivered through capacitive coupling

(CC)with electrodes placed directly over the treatment site or through pulsed electromagnetic fields

(PEMF)with treatment coils placed into a brace or over a cast at the treatment site. The device is intended for use:

(1)For the treatment of established nonunion fractures acquired secondary to trauma (excluding vertebrae and flat bone), and

(2)as an adjunct to the treatment of lumbar spinal fusion surgery for one or two levels. The device consists of an output waveform generator, either battery-powered or AC-powered; a user interface with visual and/or audible alarms; and electrodes or coils to deliver the stimulation. IV. Recommendations of the Panel On June 2, 2006, the Panel deliberated on information in RS Medical's petition; the presentations made by RS Medical, FDA, and members of the public; and their own experience with non-invasive bone growth stimulators (Ref. 2). The Panel voted four to two to recommend that non-invasive bone growth stimulators be retained in class III. V. Risks to Health The Panel identified the following risks to health associated with the non-invasive bone growth stimulator: A. Electric Shock A patient or health care professional could be shocked from the use and operation of the device via an AC line voltage exposure during charging, circuitry malfunction, connection/disconnection of electrodes or coils, control circuit failure, damaged channel jacks, defective electrodes/coil delivering inappropriate output, faulty lead wires, inappropriate output, poor connection between electrodes/coils and lead wires, poor solder on circuit board, reposition of electrodes/coils during treatment, and use of AC current source during treatment. B. Burn A patient or health care professional could be burned from the use and operation of the device via an AC line voltage exposure during charging, connection/disconnection of the electrodes/coils or control unit while receiving treatment, defective electrodes/coil delivering inappropriate output, incorrect electrode/coil size or alteration, inappropriate output, use of AC current source for treatment, and use of control unit and battery charger while sleeping. C. Skin Irritation and/or Allergic Reaction A patient could experience skin irritation and/or allergic reaction associated with the use and operation of the device via the use of non-biocompatible device materials and/or non-biocompatible electrode gel. D. Inconsistent or Ineffective Treatment A patient could receive inconsistent or ineffective treatment via battery deterioration, control circuit failure, defective electrode/coils, device damage from dropping or bumping, device short circuits, driver circuit failure, electromagnetic interference

(EMI)or radio frequency interference (RFI), failure to follow prescribed use, hardware failure, improper position of electrodes/coil, inappropriate output, incorrect battery/battery charger, ineffective output, low battery voltage, poor interface between electrodes/coil and patient, and switch failure. E. Adverse Interaction with Electrical Implants A patient with electrically-powered implants (such as cardiac pacemakers, cardiac defibrillators, and neuro-stimulators) could experience an adverse interaction with an implanted electrical device via EMI or RFI. F. Internal/External Fixation Devices A patient with internal or external fixation devices could receive inconsistent or ineffective treatment due to interaction of the device with the metallic fixation devices via interference with treatment field through magnetic field interaction and/or electrical inductance within metallic device. G. Biological Risks: Carcinogenicity, Genotoxicity, Mutagenicity, and Teratology A patient may experience adverse biologic affects resulting from prolonged exposure to the treatment signal via biologic interaction with the treatment signal at a cellular level. VI. Summary of Reasons for Recommendation The Panel believes that the non-invasive bone growth stimulator should be retained in class III because there is insufficient information in this petition to establish that special controls in association with general controls would provide a reasonable assurance of the safety and effectiveness of the device. VII. Summary of Data Upon Which the Panel Recommendation is Based The petitioner provided the following information: A. Reports on Non-Unions The petitioner submitted 35 articles (5 describing capacitive coupling devices and 30 describing the use of pulsed electromagnetic field devices) reporting outcomes for over 5,600 patients. According to the petitioner, these studies indicate the device's ability to promote osteogenesis in patients with an established non-union, which may include previously failed surgical attempts to establish union. B. Reports on Adjunctive Lumbar Spinal Fusion The petitioner has submitted eight articles (one utilizing capacitive coupling devices and seven utilizing pulsed electromagnetic field devices) reporting outcomes for over 1,100 patients. According to the petitioner, these studies indicate the device's ability to promote osteogenesis in patients as an adjunct to the treatment of lumbar spinal fusion for one or two levels. C. Reports on Preclinical Findings The petitioner has cited 21 articles in the petition amendment describing studies in animal models. The animal studies described in the petition amendment were designed to evaluate new signals, dose/response relationships, and the potential pathways of bone repair processes. In addition, 14 articles were presented that describe studies in cell culture systems designed to examine the mechanism(s) of action of various electrical stimuli in bone. These studies, conducted at the cellular level, were intended to investigate the sequence of events that occur as a result of electrical stimulation, the interaction of the fields at the level of the cell membrane with regard to ion channels and receptor interaction, and signal transduction; and to identify cell types that do or do not respond to electrical stimulation. The Panel recommended that the proposed special controls (Ref 1.) were sufficient to control for the risk of electric shock, burn, skin irritation, and/or allergic reaction; adverse interaction with electrical implants; adverse interaction with internal/external fixation devices; and biological risks (carcinogenicity, genotoxicity, mutagenicity and teratology). However, the Panel believed that there was insufficient evidence presented by the petitioner to control for the risk of inconsistent or ineffective treatment because there is a lack of knowledge about how waveform characteristics (e.g., pulse duration, amplitude, power, frequency) affect the clinical response to treatment. This concern was also expressed by the Panel regarding potential modifications made to the device. It is not known how a change to the device output due to device modifications may impact the clinical response to treatment. The Panel requested additional clinical data and/or special controls to control for the risk of inconsistent or ineffective treatment that may occur as the result of device modifications (Ref. 2). VIII. FDA's Findings FDA believes that certain device modifications are unlikely to adversely affect device safety and effectiveness and such changes could be adequately validated using bench-top testing. However, FDA also believes that there was not adequate evidence in the petition to establish that the petitioner's proposed special controls could be used to adequately mitigate the risk of inconsistent or ineffective treatment. Additional evidence is required to establish special controls, including preclinical test methods, to mitigate the risk of inconsistent or ineffective treatment. Because FDA has concerns about the ability of the petitioner's proposed special controls to control the risk of inconsistent and ineffective treatment, FDA is unable to conclude that general controls and the petitioner's proposed special controls would provide a reasonable assurance of safety and effectiveness for this device type. Therefore, based on the currently available information, FDA concurs with the Panel's recommendation to retain the non-invasive bone growth stimulator as a class III device. IX. Environmental Impact The agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment, nor an environmental impact statement is required. X. Analysis of Impacts FDA has examined the impacts of this notice under Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). 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 agency believes that this reclassification petition denial, if finalized, is not a significant regulatory action as defined by the Executive order. The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. If FDA accepts the Panel recommendation and denies the petition for reclassification, the regulatory status of the device will remain the same as it is now. Because this action, if finalized, will maintain the status quo, the agency certifies that the reclassification petition denial will not have a significant economic impact on a substantial number of small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $122 million, using the most current

(2005)Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this reclassification petition action to result in any 1-year expenditure that would meet or exceed this amount. XI. Federalism FDA has analyzed this action in accordance with the principles set forth in Executive Order 13132. FDA has determined that the action, if finalized, would not contain policies that would 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. Accordingly, the agency concludes that the action does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement has not been prepared. XII. Comments Interested persons may submit to the Division of Dockets Management (see ADDRESSES ) written or electronic comments regarding this notice. Submit a single copy of electronic comments or two paper copies of mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday. XIII. References The following references have been placed on display in the Division of Dockets Management (see ADDRESSES ) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. 1. Reclassification petition from RS Medical Corp., dated February 7, 2005, and amendment dated November 30, 2005. 2. Orthopedic and Rehabilitation Devices Panel Meeting Transcript, June 2, 2006. Dated: January 5, 2007. Linda S. Kahan, Deputy Director, Center for Devices and Radiological Health. [FR Doc. E7-476 Filed 1-16-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 292 RIN 1076-AE81 Gaming on Trust Lands Acquired After October 17, 1988 AGENCY: Bureau of Indian Affairs, Interior. ACTION: Proposed rule; reopening of comment period. SUMMARY: This document reopens the comment period for the proposed rule published on December 4, 2006 (71 FR 70335), which establishes procedures that an Indian tribe must follow in seeking to conduct gaming on lands acquired after October 17, 1988. DATES: Comments must be received on or before February 1, 2007. ADDRESSES: You may submit comments identified by the number 1076-AE81, by any of the following methods: • *Federal rulemaking portal* : *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax* : 202-273-3153. • *Mail* : Mr. George Skibine, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, 1849 C Street, NW., Mail Stop 3657-MIB, Washington, DC 20240. • *Hand Delivery* : Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, 1849 C Street, NW., Mail Stop 3657-MIB, Washington, DC, from 9 a.m. to 4 p.m., Monday through Friday. FOR FURTHER INFORMATION CONTACT: George Skibine, Office of Indian Gaming, Acting Deputy Assistant Secretary—Policy and Economic Development, Mail Stop 3657-MIB, 1849 C Street, NW., Washington, DC 20240; Telephone

(202)219-4066. SUPPLEMENTARY INFORMATION: On October 5, 2006 (71 FR 58769), the Bureau of Indian Affairs

(BIA)published a proposed rule to establish procedures that an Indian tribe must follow in seeking to conduct gaming on lands acquired after October 17, 1988. The Indian Gaming Regulatory Act allows Indian tribes to conduct class II and class III gaming activities on land acquired after October 17, 1988, only if the land meets certain exceptions. This proposed rule establishes a process for submitting and considering applications from Indian tribes seeking to conduct class II or class III gaming activities on lands acquired in trust after October 17, 1988. On December 4, 2006, the BIA published a notice making corrections to the proposed rule and extended the comment period until December 19, 2006. Eighteen comments were received after December 19, 2006. Several of these comments raise substantive issues that may result in modification of the proposed rule. The comment period is reopened to allow consideration of the comments received after December 19, 2006, and to allow additional time for comment on the proposed rule. Comments must be received on or before February 1, 2007. Dated: January 11, 2007. Michael D. Olsen, Principal Deputy Assistant Secretary—Indian Affairs. 1 [FR Doc. E7-511 Filed 1-16-07; 8:45 am] BILLING CODE 4310-4N-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2005-KY-0004-200609; FRL-8269-4] Approval and Promulgation of Implementation Plans; Kentucky: Performance Testing and Open Burning AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the Kentucky State Implementation Plan (SIP), submitted by the Commonwealth of Kentucky, through the Kentucky Department of Air Quality (KDAQ), on September 6, 2005. The revisions include changes to Kentucky Administrative Regulations

(KAR)Title 401, Chapters 50:045, “Performance tests,” and 63:005, “Open burning.” The changes included in the proposed SIP revisions are part of Kentucky's strategy to attain and maintain the 8-hour ozone and fine particulate (PM 2.5 ) national ambient air quality standards (NAAQS) by reducing emissions of PM 2.5 and precursors to ozone. EPA is proposing to approve Kentucky's SIP revisions pursuant to section 110 of the Clean Air Act (CAA). DATES: Written comments must be received on or before February 16, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number, “EPA-R04-OAR-2005-KY-0004,” by one of the following methods: 1. *www.regulations.gov* : Follow the on-line instructions for submitting comments. 2. E-mail: *hou.james@epa.gov* . 3. Fax: 404-562-9019. 4. Mail: “EPA-R04-OAR-2005-KY-0004,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. Hand Delivery or Courier: James Hou, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. *Instructions:* Direct your comments to Docket ID Number, “EPA-R04-OAR- 2005-KY-0004.” EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit through *www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: James Hou, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is

(404)562-8965. Mr. Hou can also be reached via electronic mail at *hou.james@epa.gov* . SUPPLEMENTARY INFORMATION: I. Summary of Proposed Action On September 6, 2005, KDAQ submitted to EPA proposed SIP revisions for review and approval into the Kentucky SIP. The proposed revisions include changes made by the Commonwealth of Kentucky to its performance test and open burning regulations, found at 401 KAR 50:045 and 401 KAR 63:005, respectively. These changes became state effective on July 13, 2005. The rule changes were made to update Kentucky's regulations on performance testing, and to establish additional requirements to reduce emissions from open burning. Kentucky's performance testing rule, 401 KAR 50:045, provides guidelines for the methodology, testing conditions, and reporting requirements necessary for sources to demonstrate compliance with air emissions limitations and standards. Corresponding federal rules on performance tests, promulgated by EPA pursuant to Part D of title I of the CAA (“Plan Requirements for Nonattainment Areas”), are found at 40 Code of Federal Regulations

(CFR)part 63. These federal rules were incorporated by reference into the Kentucky SIP on July 12, 1982 (47 FR 30059). Kentucky recently made changes to its rules such that the rule previously containing the performance test requirements, 401 KAR 50:016, is being repealed, and the performance test requirements from that rule are being placed in 401 KAR 50:045. Because 401 KAR 50:016 was not part of the Kentucky SIP, EPA is not addressing Kentucky's repeal of that rule. Rather, today's action proposes approval of 401 KAR 50:045, which now includes the performance testing provisions previously found in 401 KAR 50:016. As part of the movement of the performance test provisions to 401 KAR 50:045, Kentucky made minor, non-substantive, changes to the rule. Kentucky's performance testing rule is consistent with applicable federal law. The proposed SIP revision regarding performance testing is therefore approvable pursuant to section 110 of the CAA. Kentucky's open burning rule, 401 KAR 63:005, establishes restrictions on open burning designed to reduce emissions from such activities. This rule was first approved into the Kentucky SIP on July 12, 1982 (47 FR 30059). The rule is structured such that open burning in general is prohibited unless specified conditions are met. The conditions are described in sections 3 and 4 of 401 KAR 63:005; section 5 also includes such restrictions but applies only to open burning for fire training. Kentucky revised its open burning rule, effective July 13, 2005, in order to better control open burning of potentially hazardous household garbage. This rule is part of Kentucky's strategy to attain and maintain the 8-hour ozone and PM2.5 NAAQS by reducing emissions of PM2.5 and ozone precursors resulting from open burning. The open burning rule changes made by Kentucky are intended to protect air quality in areas where open burning is occurring. The rule changes clarify instances when open burning of household garbage is permitted and allow open burning of wood waste or clean lumber by municipal and county governments. The changes added definitions for “clean lumber,” and “land clearing,” and modified the definition of “household rubbish.” The modification made to the definition of “household rubbish” now excludes from the definition any “other hazardous waste materials.” The changes also included a new section, section 5, which specifically addresses restrictions to open burning for fire training. Among the new requirements are that substances being burned for training purposes not contain hazardous or asbestos containing materials (see, sections 5(3) and 5(4)). The changes made to section 5 are at least as stringent as the previous regulation. As a result, the SIP revision is approvable pursuant to section 110 of the CAA. II. Proposed Action EPA is proposing to approve the SIP revisions submitted by Kentucky on September 6, 2005. The revisions include changes to two state rules: 401 KAR 50:045, “Performance tests,” and 401 KAR 63:005, “Open burning.” The SIP revisions include changes to rules that are part of Kentucky's strategy to attain and maintain the NAAQS by reducing emissions of particulate matter, volatile organic compounds, nitrogen oxides, and hazardous air pollutants. 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 proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule 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 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 proposed 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 proposed action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. As a result, it does not alter the relationship or the distribution of power and responsibilities established in the CAA. 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 CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: January 3, 2007. A. Stanley Meiburg, Acting Regional Administrator, Region 4. [FR Doc. E7-531 Filed 1-16-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2006-0892; FRL-8269-3] Redesignation of Washington County, OH To Attainment for the 8-Hour Ozone Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Ohio Environmental Protection Agency (Ohio EPA) submitted a request on September 22, 2006, and supplemented it on November 17, 2006, for redesignation of Washington County, Ohio (the Ohio portion of the Parkersburg-Marietta 8-hour ozone nonattainment area) to attainment for the 8-hour ozone standard. EPA is proposing to approve the several elements of this request. First, EPA is making a determination that complete, quality-assured ambient air quality data indicate that the Parkersburg-Marietta area has attained the 8-hour ozone standard. Furthermore, preliminary monitoring data for the 2006 ozone season show that the Parkersburg-Marietta area continues to attain the NAAQS. Second, EPA is proposing to approve, as revisions to the Ohio State Implementation Plan (SIP), the State's plans for maintaining the 8-hour ozone NAAQS through 2018. Third, EPA is proposing to redesignate Washington County to attainment for the 8-hour ozone standard, based on a finding that the requirements for this redesignation have been satisfied. Fourth, EPA finds adequate and is proposing to approve the State's 2018 Motor Vehicle Emission Budgets (MVEBs) for Washington County. Region 3 will address the West Virginia portion of the Parkersburg-Marietta area (Wood County) in a separate rulemaking action. DATES: Comments must be received on or before February 16, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0892, by one of the following methods: • *http://www.regulations.gov/.* Follow the on-line instructions for submitting comments. • E-mail: *mooney.john@epa.gov.* • Fax:

(312)886-5824. • Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • Hand delivery: John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2006-0892. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Steve Marquardt, Environmental Engineer, at

(312)353-3214 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Steve Marquardt, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)353-3214, *marquardt.steve@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows: Table of Contents I. What Should I Consider as I Prepare My Comments for EPA? II. What Actions Is EPA Proposing To Take? III. What Is the Background for These Actions? IV. What Are the Criteria for Redesignation? V. Why Is EPA Proposing To Take These Actions? VI. What Is the Effect of These Actions? VII. What Is EPA's Analysis of the Requests? A. Attainment Determination and Redesignation B. Adequacy of Ohio's Motor Vehicle Emissions Budgets (MVEBs) VIII. What Actions Is EPA Taking? IX. Statutory and Executive Order Reviews I. What Should I Consider as I Prepare My Comments for EPA? When submitting comments, remember to: 1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). 2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the comment period deadline identified. II. What Actions Is EPA Proposing To Take? EPA is proposing to take several related actions. EPA is proposing to determine that the Parkersburg-Marietta nonattainment area has attained the 8-hour ozone standard. EPA is also proposing to approve Ohio's maintenance plan SIP revision for Washington County. The maintenance plan is designed to keep the Parkersburg-Marietta nonattainment area in attainment of the ozone NAAQS through 2018. EPA is proposing the Ohio portion of this area (Washington County) has met the requirements for redesignation under Section 107(d)(3)(E) of the Clean Air Act (CAA). EPA is thus proposing to approve Ohio's request to change the legal determination of Washington County from nonattainment to attainment for the 8-hour ozone National Ambient Air Quality Standard (NAAQS). Finally, EPA is announcing its action on the Adequacy Process for the newly established 2018 MVEBs for the area. The adequacy comment period for the 2018 MVEBs began on November 20, 2006, with EPA's posting of the availability of these submittals on EPA's Adequacy Web site (at *http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm* ). The adequacy comment period for these MVEBs ended on December 20, 2006. EPA did not receive any requests for these submittals or adverse comments on these submittals during the adequacy comment period. Therefore, we find adequate and are proposing to approve the State's 2018 MVEBs for transportation conformity purposes. III. What Is the Background for These Actions? On September 22, 2006, and with supplemental information on November 17, 2006, Ohio requested that EPA redesignate Washington County to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the periods of 2002 through 2004 and 2003 through 2005, indicating that the 8-hour NAAQS for ozone had been attained for the Parkersburg-Marietta area. Furthermore, preliminary monitoring data for the 2006 ozone season show that the area continues to attain the NAAQS. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the standard, and the area meets the other CAA redesignation requirements in section 107(d)(3)(E). IV. What Are the Criteria for Redesignation? Section 107(d)(3)(E) of the CAA allows for redesignation from nonattainment to attainment provided that:

(1)The Administrator determines that the area has attained the applicable NAAQS;

(2)the Administrator has fully approved the applicable implementation plan for the area under section 110(k);

(3)the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions;

(4)the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and,

(5)the state containing such area has met all requirements applicable to the area under section 110 and part D. EPA provided guidance on redesignation in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990, on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in several guidance documents. A listing of pertinent documents is provided in other redesignation actions including a September 9, 2005 notice; 70 FR 53606. V. Why Is EPA Proposing To Take These Actions? On September 22, 2006, and with supplemental information provided on November 17, 2006, Ohio requested redesignation of Washington County to attainment for the 8-hour ozone standard. EPA believes that the area has attained the standard and has met the requirements for redesignation set forth in section 107(d)(3)(E) of the CAA. VI. What Is the Effect of These Actions? Approval of the redesignation requests would change the official designation of Washington County for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Ohio SIP a plan for maintaining the 8-hour ozone NAAQS through 2018. The maintenance plans include contingency measures to remedy future violations of the 8-hour NAAQS. They also establish MVEBs for the year 2018 of 1.67 tons per day

(tpd)volatile organic compounds

(VOC)and 1.76 tpd oxides of nitrogen (NO X ) for Washington County. These proposed actions pertain to the designation of Washington County for the 8-hour ozone NAAQS and to the emission controls in the County related to the attainment and maintenance of the 8-hour ozone NAAQS. If you own or operate a VOC or NO X emissions source in this County or live in this County, this proposed rule may impact or apply to you. It may also impact you if you are involved in transportation planning or implementation of emission controls in this area. VII. What Is EPA's Analysis of the Requests? A. Attainment Determination and Redesignation EPA is proposing to make a determination that the Parkersburg-Marietta area has attained the 8-hour ozone standard and that Washington County has met all other applicable section 107(d)(3)(E) redesignation criteria. The basis for EPA's determinations is as follows: 1. The Area Has Attained the 8-Hour Ozone NAAQS (Section 107(d)(3)(E)(i)) EPA is proposing to make the determination that the Parkersburg-Marietta area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and part 50, appendix I, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. For each monitor in the area, EPA computes the 3-year average of each year's fourth-highest daily maximum 8-hour average ozone concentrations. The area is attaining the standard if all monitors have average concentrations at or below 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Aerometric Information Retrieval System (AIRS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. Ohio submitted ozone monitoring data for the 2002-2004 and the 2003-2005 ozone seasons. This submittal included data from both the Ohio and West Virginia portions of Parkersburg-Marietta. The Ohio EPA and the West Virginia Department of Environmental Protection quality assured the ambient monitoring data in accordance with 40 CFR part 58.10, and recorded it in the AIRS database, thus making the data publicly available. The data meet the completeness criteria in 40 CFR 50, Appendix I, which requires a minimum completeness of 75 percent annually and 90 percent over each three year period. A summary of the monitoring data is presented in Table 1 below. Table 1.—Annual 4th High Daily Maximum 8-Hour Ozone Concentration and 3-Year Averages of 4th High Daily Maximum 8-Hour Ozone Concentrations Area Monitor 2002 4th high

(ppm)2003 4th high

(ppm)2004 4th high

(ppm)2005 4th high

(ppm)2002-2004 average

(ppm)2003-2005 average

(ppm)Parkersburg-Marietta-Vienna Washington 39-167-0004 .095 .080 .077 .088 .084 .081 Wood

(WV)54-107-1002 .095 .083 .069 .084 .082 .078 In addition, as discussed below with respect to the maintenance plans, Ohio has committed to continue operating an EPA-approved monitoring network in accordance with 40 CFR part 58. In summary, EPA finds that the data submitted by Ohio provide an adequate demonstration that the Parkersburg-Marietta area has attained the 8-hour ozone NAAQS. 2. The Area Has Met All Applicable Requirements Under Section 110 and Part D; and the Area Has a Fully Approved SIP Under Section 110(k) (Sections 107(d)(3)(E)(v) and 107(d)(3)(E)(ii)) We have determined that Ohio has met all currently applicable SIP requirements for purposes of redesignation for Washington County under Section 110 of the CAA (general SIP requirements). We have also determined that the Ohio SIP meets all SIP requirements currently applicable for purposes of redesignation under Part D of Title I of the CAA (requirements specific to Subpart 1 nonattainment areas), in accordance with section 107(d)(3)(E)(v). In addition, we have determined that the SIP is fully approved with respect to all applicable requirements for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). In making these determinations, we have ascertained what SIP requirements are applicable to the area for purposes of redesignation, and have determined that the portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. As discussed more fully below, SIPs must be fully approved only with respect to currently applicable requirements of the CAA. *a.* *Washington County has met all applicable requirements under section 110 and part D of the CAA.* The September 4, 1992 Calcagni memorandum (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) of the CAA. Under this interpretation, a state and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the state's submittal of a complete redesignation request for the area. See also the September 17, 1993 Michael Shapiro memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the state's submittal of a complete request remain applicable until a redesignation to attainment is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS). *General SIP requirements.* Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and that, among other things, it includes enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provides for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; provides for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; includes provisions for the implementation of part C, Prevention of Significant Deterioration

(PSD)and part D, New Source Review

(NSR)permit programs; includes criteria for stationary source emission control measures, monitoring, and reporting; includes provisions for air quality modeling; and provides for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants (NO X SIP Call (63 FR 57356), Clean Air Interstate Rule

(CAIR)(70 FR 25162)). However, the section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification. EPA believes that the requirements linked with a particular nonattainment area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. When the transport SIP submittal requirements are applicable to a state, they will continue to apply to the state regardless of the attainment designation of any one particular area in the state. Therefore, we believe that these requirements should not be construed to be applicable requirements for purposes of redesignation. Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures which we may consider in evaluating a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati ozone redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh ozone redesignation (66 FR 50399, October 19, 2001). As discussed above, we believe that section 110 elements which are not linked to the area's nonattainment status are not applicable for purposes of redesignation. Because there are no section 110 requirements linked to the part D requirements for 8-hour ozone nonattainment areas that have become due, as explained below, there are no Part D requirements applicable for purposes of redesignation under the 8-hour standard. *Part D Requirements.* EPA has determined that the Ohio SIP meets applicable SIP requirements under part D of the CAA, since no requirements applicable for purposes of redesignation became due for the 8-hour ozone standard prior to Ohio's submission of the redesignation request for Washington County. Under part D, an area's classification determines the requirements to which it will be subject. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Section 182 of the CAA, found in subpart 2 of part D, establishes additional specific requirements depending on the area's nonattainment classification. Parkersburg-Marietta, which includes Washington County, Ohio, was classified as a subpart 1 nonattainment area, and, therefore, subpart 2 requirements do not apply. *Part D, Subpart 1 applicable SIP requirements* . For purposes of evaluating these redesignation requests, the applicable part D, subpart 1 SIP requirements for Washington County are contained in sections 172(c)(1)-(9). No 8-hour ozone planning requirements applicable for purposes of redesignation under part D became due prior to submission of the redesignation request, and, therefore, none are applicable to the area for purposes of redesignation. Since Ohio has submitted complete ozone redesignation requests for Washington County prior to the deadline for any submissions required for purposes of redesignation, we have determined that these requirements do not apply to Washington County for purposes of redesignation. *Section 176 conformity requirements* . Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other federally-supported or funded projects (general conformity). State conformity revisions must be consistent with federal conformity regulations relating to consultation, enforcement and enforceability, which EPA promulgated pursuant to CAA requirements. EPA approved Ohio's general and transportation conformity SIPs on March 11, 1996 (61 FR 9646) and May 30, 2000 (65 FR 34395), respectively. In summary, Washington County has satisfied all applicable requirements under section 110 and part D of the CAA. *b. Washington County has a fully approved applicable SIP under section 110(k) of the CAA* . EPA has fully approved the Ohio SIP for Washington County under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. In approving a redesignation request, EPA may rely on prior SIP approvals plus any additional measures it may approve in conjunction with a redesignation action (See the September 4, 1992 John Calcagni memorandum, page 3, *Southwestern Pennsylvania Growth Alliance* v. *Browner* , 144 F.3d 984, 989-990 (6th Cir. 1998), *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001)). Since the passage of the CAA of 1970, Ohio has adopted and submitted, and EPA has fully approved, provisions addressing the various required SIP elements applicable to Washington County under the 1-hour ozone standard. No Washington County SIP provisions are currently disapproved, conditionally approved, or partially approved. 3. The Improvement in Air Quality Is Due to Permanent and Enforceable Reductions in Emissions (Section 107(d)(3)(E)(iii)) EPA finds that Ohio has demonstrated that the observed air quality improvement in the Parkersburg-Marietta area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state-adopted measures. In making this demonstration, the State has calculated the change in emissions between 2002 and 2004, one of the years the Parkersburg-Marietta area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that Ohio has implemented. *a. Permanent and enforceable controls implemented* . The following is a discussion of permanent and enforceable measures that have been implemented in the area: *NO* X *rules.* In compliance with EPA's NO X SIP call, Ohio developed rules to control NO X emissions from Electric Generating Units (EGUs), major non-EGU industrial boilers, and major cement kilns. These rules required sources to begin reducing NO X emissions in 2004. However, statewide NO X emissions actually had begun to decline before 2004, as sources phased in emission controls needed to comply with the State's NO X emission control regulations. From 2004 on, NO X emissions from EGUs in the Eastern United States have been capped at a level well below pre-2002 levels, such that EGU emissions in the Parkersburg-Marietta area and elsewhere in Ohio and West Virginia can be expected to remain well below 2002 levels. Ohio expects that NO X emissions will further decline as the State meets the requirements of EPA's Phase II NO X SIP call (69 FR 21604 (April 21, 2004)). *Federal Emission Control Measures* . Reductions in VOC and NO X emissions have occurred statewide as a result of federal emission control measures, with additional emission reductions expected to occur in the future as the State implements additional emission controls. Federal emission control measures include: Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards. In addition, in 2004, EPA issued the Clean Air Non-road Diesel Rule (69 FR 38958 (July 29, 2004)). EPA expects this rule to reduce off-road diesel emissions through 2010, with emission reductions starting in 2008. *b. Emission reductions* . Ohio is using 2002 for the inventory and included area, mobile and point source emissions. Area sources were taken from the Ohio 2002 periodic inventory submitted to EPA. These projections were made from the United States Department of Commerce Bureau of Economic Analysis growth factors, with some updated local information. Mobile source emissions were calculated from MOBILE6.2 produced emission factors. Non-road emissions were generated using the EPA's National Mobile Inventory Model

(NMIM)2002 application. Point source information was compiled from Ohio's 2002 annual emission inventory database and the 2002 EPA Clean Air Markets Acid Rain database. Based on the inventories described above, Ohio's submittal documents changes in VOC and NO X emissions from 2002 to 2004. Summaries of emissions data are shown in Tables 2 through 4. Table 2.—Washington County, Ohio and Wood County, West Virginia: Total VOC and NO X Emissions for Nonattainment Year 2002

(tpd)Washington VOC NO X Wood VOC NO X Total VOC NO X Point 2.08 94.58 1.80 2.60 3.88 97.18 Area 2.97 0.21 7.60 0.70 10.57 0.91 Nonroad 1.25 5.33 2.80 4.90 4.05 10.23 Onroad 4.40 5.66 4.70 6.10 9.10 11.76 Total 10.70 105.78 16.90 14.30 27.60 120.08 Table 3.—Washington County, Ohio and Wood County, West Virginia: Total VOC and NO X Emissions for Attainment Year 2004

(tpd)Sector VOC 2002 2004 Net change (2002-2004) NO X 2002 2004 Net change (2002-2004) Point 3.88 4.16 +0.28 97.18 74.47 −22.71 Area 10.57 10.72 +0.15 0.91 0.92 +0.01 Nonroad 4.05 3.97 −0.08 10.23 11.20 +0.97 Onroad 9.10 7.40 −1.70 11.76 10.55 −1.21 Total 27.60 26.25 −1.35 120.08 97.14 −22.94 Table 4 shows that the area reduced VOC emissions by 1.35 tpd, and NO X emissions by 22.94 tpd, between 2002 and 2004. Based on the information summarized above, Ohio has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions. 4. The Area Has a Fully Approved Maintenance Plan Pursuant to Section 175a of the CAA (Section 107(d)(3)(E)(iv)) In conjunction with its request to redesignate Washington County to attainment status, Ohio submitted SIP revisions to provide for the maintenance of the 8-hour ozone NAAQS in this area through 2018. a. What is required in a maintenance plan? Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations. The September 4, 1992 John Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum clarifies that an ozone maintenance plan should address the following items: The attainment VOC and NO X emissions inventories, a maintenance demonstration showing maintenance for the ten years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS. b. Attainment Inventory Ohio developed a baseline emissions inventory for 2004, one of the years used to demonstrate monitored attainment of the 8-hour NAAQS. The attainment level of emissions is summarized in Table 5, below. Table 5.—Washington County, Ohio and Wood County, West Virginia: Total VOC and NO X Emissions for Attainment Year 2004

(tpd)Washington VOC NO X Wood VOC NO X Total VOC NO X Point 2.06 71.87 2.10 2.60 4.16 74.47 Area 2.92 0.22 7.80 0.70 10.72 0.92 Nonroad 1.17 5.00 2.80 6.20 3.97 11.20 Onroad 3.40 4.85 4.00 5.70 7.40 10.55 Total 9.55 81.94 16.70 15.20 26.25 97.14 c. Demonstration of Maintenance Ohio submitted revisions to the 8-hour ozone SIP to include 12-year maintenance plans for Washington County, in compliance with section 175A of the CAA. Information was also provided regarding the West Virginia maintenance plan SIP revision. This demonstration shows maintenance of the 8-hour ozone standard by assuring that current and future emissions of VOC and NO X area remain at or below attainment year emission levels. A maintenance demonstration need not be based on modeling. See *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001), *Sierra Club* v. *EPA* , 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003). Ohio is using projected inventories for the years 2009 and 2018. These emission estimates are presented in Table 6. Table 6.—Washington County, Ohio and Wood County, West Virginia: Comparison of 2004-2018 VOC and NO X Emissions

(tpd)Sector VOC 2004 2009 2018 Net Change 2004-2018 NO X 2004 2009 2018 Net Change 2004-2018 Point 4.16 3.68 4.40 +0.24 74.47 17.67 24.76 −49.71 Area 10.72 10.01 10.90 +0.18 0.92 0.94 1.05 +0.13 Nonroad 3.97 3.36 2.77 −1.20 11.20 8.57 7.39 −3.81 Onroad 7.40 5.59 3.57 −3.83 10.55 7.68 3.76 −6.79 Total 26.25 22.64 21.64 −4.61 97.14 34.86 36.96 −60.18 The emission projections show that Ohio does not expect emissions in the area to exceed the level of the 2004 attainment year inventory during the maintenance period. In the area, Ohio projects that VOC and NO X emissions will decrease by 4.61 tpd and 60.18 tpd, respectively. As part of its maintenance plan, the State elected to include a “safety margin” for the area. A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan which continues to demonstrate attainment of the standard. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Ohio used 2004 as the attainment level of emissions for the area. In the maintenance plan, Ohio projected emission levels for 2018. The emissions from point, area, non-road, and mobile sources in 2004 equaled 26.25 tpd of VOC. Ohio projected VOC emissions for the year 2018 to be 21.64 tpd of VOC. The SIP submission demonstrates that the area will continue to maintain the standard. The safety margin for VOC is calculated to be the difference between these amounts or, in this case, 4.61 tpd of VOC for 2018. The safety margin, or a portion thereof, can be allocated to any of the source categories, as long as the total attainment level of emissions is maintained. d. Monitoring Network Ohio currently operates one ozone monitor in Washington County. Ohio has committed to continue operating and maintaining an approved ozone monitor network in accordance with 40 CFR part 58. West Virginia has also made a similar commitment with respect to its monitor. e. Verification of Continued Attainment Continued attainment of the ozone NAAQS in the area depends, in part, on the State's efforts toward tracking indicators of continued attainment during the maintenance period. The State's plan for verifying continued attainment of the 8-hour standard in the area consists of plans to continue ambient ozone monitoring in accordance with the requirements of 40 CFR part 58 and to consider monitoring data that West Virginia will be collecting. In addition, Ohio will periodically review and revise the VOC and NO X emissions inventories for the area, as required by the Consolidated Emissions Reporting Rule (40 CFR part 51), to track levels of emissions in the future. f. Contingency Plan The contingency plan provisions of the CAA are designed to result in prompt correction or prevention of violations of the NAAQS that might occur after redesignation of an area to attainment of the NAAQS. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the State will promptly correct a violation of the NAAQS that might occur after redesignation. The maintenance plan must identify the contingency measures to be considered for possible adoption, a schedule and procedure for adoption and implementation of the selected contingency measures, and a time limit for action by the State. The State should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the State will implement all measures with respect to control of the pollutant(s) that were included in the SIP before the redesignation of the area to attainment. See section 175A(d) of the CAA. As required by section 175A of the CAA, Ohio has adopted a contingency plan to address possible future ozone air quality issues. The contingency plan has two levels of actions/responses depending on whether a violation of the 8-hour ozone standard is only threatened (Warning Level Response) or has actually occurred or appears to be very imminent (Action Level Response). A Warning Level Response will be triggered whenever an annual (1-year) fourth-high monitored 8-hour ozone concentration of 88 ppb occurs within the ozone maintenance area (Parkersburg-Marietta area). A Warning Level Response will consist of a study to determine whether the ozone value indicates a trend toward higher ozone concentrations or whether emissions appear to be increasing. The study will evaluate whether the trend, if any, is likely to continue and, if so, the control measures necessary to reverse the trend, taking into consideration ease and timing for implementation, as well as economic and social consideration. Implementation of necessary controls in response to a Warning Level Response triggering will take place as expeditiously as possible, but in no event later than 12 months from the conclusion of the most recent ozone season. An Action Level Response will be triggered whenever a two-year average annual fourth-high monitored 8-hour ozone concentration of 85 ppb or greater occurs within the maintenance area (Parkersburg-Marietta area). A violation of the 8-hour ozone standard (three-year average fourth-high value of 85 ppb or greater) will also prompt an Action Level Response. In the event that an Action Level Response is triggered and is not due to an exceptional event, malfunction, or noncompliance with a source permit condition or rule requirement, Ohio will determine the additional emission control measures needed to assure future attainment of the ozone NAAQS. Emission control measures that can be implemented in a short time will be selected in order to be in place within 18 months from the close of the ozone season that prompted the Action Level Response. Any new emission control measure that is selected for implementation will be given a public review. If a new emission control measure is already promulgated and scheduled to be implemented at the Federal or State level and that emission control measure is determined to be sufficient to address the increase in peak ozone concentrations, additional local measures may be unnecessary. Ohio will submit to the EPA an analysis to assess whether the proposed emission control measures are adequate to reverse the increase in peak ozone concentrations and to maintain the 8-hour ozone standard in the area. The selection of emission control measures will be based on cost-effectiveness, emission reduction potential, economic and social considerations, or other factors that Ohio deems to be appropriate. Selected emission control measures will be subject to public review and the State will seek public input prior to selecting new emission control measures. The State's ozone redesignation request lists the following possible emission control measures as contingency measures in the ozone maintenance portion of the State's submittal: i. Lower Reid vapor pressure gasoline requirements; ii. Tighten RACT on existing source covered by USEPA Control Techniques Guidelines issued in response to the 1990 Clean Air Act; iii. Apply RACT to smaller existing sources; iv. One or more transportation control measures sufficient to achieve at least half a percent reduction in actual area wide VOC emissions. Transportation measures will be selected from the following, based upon the factors listed above after consultation with affected local governments; a. Trip reduction programs, including, but not limited to, employer-based transportation management plans, area wide rideshare programs, work schedule changes, and telecommuting; b. Traffic flow and transit improvements; and c. Other new or innovative transportation measures not yet in widespread use that affects state and local governments deemed appropriate. v. Alternative fuel and diesel retrofit programs for fleet vehicle operations. vi. Controls on consumer products consistent with those adopted elsewhere in the United States. vii. Require VOC and NO X emissions offsets for new and modified major sources. viii. Require VOC or NO X emission offsets for new or modified minor sources. ix. Increase the ratio of emission offsets required for new sources. x. Require VOC or NO X controls on new minor sources (less than 100 tons). g. Provisions for Future Updates of the Ozone Maintenance Plan As required by section 175A(b) of the CAA, Ohio commits to submit to the EPA updated ozone maintenance plans eight years after redesignation to cover an additional 10-year period beyond the initial 10-year maintenance period. Ohio has committed to retain the control measures for VOC and NO X emissions that were contained in the SIP before redesignation of the area to attainment, as required by section 175(A) of the CAA. EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. The maintenance plan SIP revision has met the requirements of section 175A of the CAA. B. Adequacy of Ohio's Motor Vehicle Emissions Budgets (MVEBs) 1. How Are MVEBs Developed and What Are the MVEBs for the Area? Under the CAA, states are required to submit, at various times, control strategy SIP revisions and ozone maintenance plans for ozone nonattainment areas and for areas seeking redesignation to attainment of the ozone standard. These emission control strategy SIP revisions (e.g., reasonable further progress SIP and attainment demonstration SIP revisions) and ozone maintenance plans create MVEBs based on onroad mobile source emissions for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEBs are the portions of the total allowable emissions that are allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment or maintenance. Under 40 CFR part 93, a MVEB for an area seeking a redesignation to attainment is established for the last year of the maintenance plan. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB if needed. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the SIP that addresses emissions from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS. If a transportation plan does not conform, most new transportation projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively find that the MVEBs are “adequate” for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs are used by state and federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4). EPA's process for determining adequacy of a MVEB consists of three basic steps:

(1)Providing public notification of a SIP submission;

(2)providing the public the opportunity to comment on the MVEB during a public comment period; and

(3)EPA's finding of adequacy. The process of determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was codified in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” published on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations. Conformity in the Parkersburg-Marietta area is managed by establishing and adhering to separate budgets for Washington County, Ohio and Wood County, West Virginia. This rulemaking is addressing a budget that Ohio requested for its portion of the area. A separate rulemaking will address the adequacy of West Virginia's requested budget for the West Virginia portion of the area. The Washington County maintenance plan contains new VOC and NO X MVEBs for the year 2018. The availability of the SIP submissions with these 2018 MVEBs was announced for public comment on EPA's Adequacy Web page on November 20, 2006, at: *http://www.epa.gov/otaq/stateresources/transconf/currsips.htm.* The EPA public comment period on adequacy of the 2018 MVEBs closed on December 20, 2006. No requests for these submittals or adverse comments on these submittals were received during the adequacy comment period. In a letter dated, December 28 2006, EPA informed Ohio that we had found the 2018 MVEBs to be adequate for use in transportation conformity analyses. EPA, through this rulemaking, is proposing to approve the MVEBs for use in determining transportation conformity in Washington County because the EPA has determined that the area can maintain attainment of the 8-hour ozone NAAQS for the relevant maintenance period with mobile source emissions at the levels of the MVEBs. Ohio has determined the 2009 MVEBs for Washington County to be 2.59 tpd VOC and 3.58 tpd of NO X and the 2018 MVEBs for Washington County to be 1.67 tpd for VOC and 1.76 tpd for NO X . Ohio decided to include 15 percent safety margins in the MVEBs to provide for mobile source growth not anticipated in the projected 2018 emissions. 2. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. As noted in Table 6, the Parkersburg-Marietta area VOC and NO X emissions are projected to have safety margins of 4.61 tpd for VOC and 60.18 tpd for NO X in 2018 (the difference between the attainment year, 2004, emissions and the projected 2018 emissions for all sources in the Parkersburg-Marietta 8-hour ozone nonattainment area (Washington County, Ohio and Wood County, West Virginia). Even if emissions reach the full level of the safety margin, the counties would still demonstrate maintenance since emission levels would equal those in the attainment year. VIII. What Actions Is EPA Taking? EPA is proposing to make determinations that the Parkersburg-Marietta area has attained the 8-hour ozone NAAQS and EPA is proposing to approve Ohio's maintenance plan for assuring that the area will continue to attain this standard. EPA is also proposing to find that Washington County meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA, and on this basis, EPA is proposing to approve the redesignation of Washington County from nonattainment to attainment for the 8-hour ozone standard. Finally, EPA is finding adequate and proposing to approve the 2018 VOC and NO X MVEBs submitted by Ohio in conjunction with the redesignation request. IX. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. Paperwork Reduction Act 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.* ). Regulatory Flexibility Act This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Unfunded Mandates Reform Act 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). Executive Order 13132: Federalism 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). Redesignation is an action that merely affects the status of a geographical area, does not impose any new requirements on sources, or allows a state to avoid adopting or implementing other requirements, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (65 FR 67249, November 9, 2000) requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule also does not have tribal implications, as specified in Executive Order 13175, because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands. Thus, Executive Order 13175 does not apply to this rule. Although Executive Order 13175 does not apply to this rule, EPA met with interested tribes in Michigan to discuss the redesignation process and the impact of a change in designation status of these areas on the tribes. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks 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. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” 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). National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impracticable. In reviewing program submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a program submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Act. Redesignation is an action that affects the status of a geographical area but does not impose any new requirements on sources. 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. List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen oxides, Ozone, Volatile organic compounds. 40 CFR Part 81 Air Pollution Control, Environmental protection, National parks, Wilderness areas. Dated: January 4, 2007. Bharat Mathur, Acting Regional Administrator, Region 5. [FR Doc. E7-520 Filed 1-16-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 262 [Docket No. FRA 2005-23774, Notice No. 1] RIN 2130-AB74 Implementation of Program for Capital Grants for Rail Line Relocation and Improvement Projects AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: Section 9002 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, August 10, 2005) amends chapter 201 of Title 49 of the United States Code by adding section 20154. Section 20154 authorizes—but does not appropriate—$350,000,000 per year for each of the fiscal years

(FY)2006 through 2009 for the purpose of funding a grant program to provide financial assistance for local rail line relocation and improvement projects. Section 20154 directs the Secretary of Transportation (Secretary) to issue regulations implementing this grant program, and the Secretary has delegated this responsibility to FRA. This NPRM proposes a regulation intended to carry out that statutory mandate. As of the publication of this NPRM, Congress had not appropriated any funding for the program for FY 2006 or FY 2007. DATES:

(1)*Written Comments:* Written comments must be received on or before March 5, 2007. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.

(2)*Public Hearing:* Requests for a public hearing must be in writing and must be submitted to the Department of Transportation Docket Management System at the address below on or before March 5, 2007. If a public hearing is requested and scheduled, FRA will announce the date, location, and additional details concerning the hearing by separate notice in the **Federal Register** . ADDRESSES: You may submit comments identified by DOT DMS Docket Number FRA 2005-23774 by any of the following methods: • *Web site: http://dms.dot.gov* . Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 am and 5 pm, Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number

(RIN)for this rulemaking. Note that all comments received will be posted without change to *http://dms.dot.gov,* including any personal information provided. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials. *Docket:* For access to the docket to read background documents or comments received, 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 am and 5 pm, Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: John A. Winkle, Transportation Industry Analyst, Office of Railroad Development, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 13, Washington, DC 20590 ( *John.Winkle@fra.dot.gov* or 202-493-6320); or Elizabeth A. Sorrells, Attorney-Advisor, Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 10, Washington, DC 20590 ( *Betty.Sorrells@fra.dot.gov* or 202-493-6057). SUPPLEMENTARY INFORMATION: I. Background Much of the economic growth of the United States can be linked directly to the expansion of rail service. As the nation moved westward, railroads expanded to provide transportation services to growing communities. No event better illustrates this point than the “golden spike” ceremonies at Promontory Point, Utah in 1869 that ushered in transcontinental rail service. Travel times between the Atlantic and Pacific coasts were dramatically reduced opening numerous new markets for both passenger and freight operations. Municipalities throughout the country knew that their economic success rested on being served by the railroad and many offered incentives to railroads for the chance to be served. As a result, many communities' land use patterns are developed around the railroad lines that became an economic artery as important as “Main Street.” By 1916, rail expansion peaked as miles of road owned 1 reached 254,251. 1 This measure is the aggregate length of roadway and excludes yard tracks and sidings, and does not reflect the fact that a mile of road may include two, three or more parallel tracks. Soon after the end of the Second World War, the railroads' competitors—the auto, truck, air, pipeline and modern barge industries—proved to be superior to the railroads in responding to many of the growing demands for speed, convenience and service quality that characterized the evolving economy of the 20th century. Mired in stifling economic over-regulation, railroads were unable to respond effectively to the competitive challenges facing them. These changes had a dramatic effect on rail's market share. From nearly 80 percent of the intercity freight market in the early 1920s, rail share fell to less than 37 percent in 1975. The decline was even more dramatic with regard to passenger service. The industry responded by cutting excess capacity, often through bankruptcy. By 1975, miles of road owned had fallen to 199,126, a 22 percent decline from 1916. The most current data from 2004 shows a further decline to 140,806 road miles or 45 percent fewer miles than was available in 1916. By the early years of the 21st century up to the present time, however, the rail industry has made a significant turnaround. Beginning with rate deregulation ushered in by the Staggers Act in 1980, and a number of other favorable changes, railroads have introduced innovative services and modern pricing practices, and, as a result, have become profitable and have recaptured market share. Between 1985 and 2004, revenue ton-miles 2 nearly doubled from 876.9 billion to 1.7 trillion. Rail's market share of intercity revenue freight is approaching 45 percent. This growth is being accommodated on a system that shrunk in response to conditions noted above. The smaller physical plant is handling greater and greater freight volumes. 2 A ton of any commodity transported one-mile. The clearest evidence of more intense use of the industry's plant is found in measuring “traffic density.” “Traffic density” is the millions of revenue ton-miles per owned mile of road. In 1985, this indicator stood at 6.02. By 2004, this figure had nearly tripled to 17.02 millions of revenue ton-miles per mile of road owned. This more intense use of rail infrastructure is especially challenging in communities that developed adjacent to or around rail lines, most built over a century ago on alignments appropriate to the times. As a result, in many places throughout the country, the rail infrastructure that was once so critical to communities now presents problems as well as benefits. For example, the tracks that run down the middle of towns separate the communities on either side. Rail yards and tracks occupy valuable real estate. Trains parked in sidings may present attractive nuisances to children and vandals, and, in the case of tank cars containing hazardous materials, may present serious security or health risks. Grade crossings may present safety risks to the cars and pedestrians that must cross the tracks. These same crossings create inconveniences when long trains block crossings for extended periods of time and sound horns as they operate through crossings in neighborhoods. In some cases, trains operate over lines at speeds that are suited for the type of track but often present safety concerns to those in the surrounding community. In some cases, rail lines have become so congested that communities experience what they perceive as almost continuous train traffic. In short, rail lines, which once brought economic prosperity and social cohesion, are now sometimes viewed as factors that decline both. 3 3 In some locations, passenger trains, both intercity and commuter, will continue to serve downtown locations. Passenger trains generally operate less often than freight trains, are shorter, and, therefore, do not create the extensive problems that freight trains do. In an effort to satisfy all constituents, state and local governments are looking for ways to eliminate the problems created by the increased demand on the infrastructure while still maintaining the benefits the railroad provides. Many times, the solution is merely to relocate the track in question to an area that is better suited for it. For example, a recently completed relocation project in Greenwood, Mississippi eliminated twelve at-grade highway-rail crossings, which greatly improved safety for motorists and eliminated blocked crossings. With that success in mind, Mississippi is currently looking to relocate two main lines that run through the heart of the Central Business District in Tupelo. Combined, these two lines cross 26 highways in the city, and all but one are at-grade crossings. One of the options the State is considering is laterally relocating the lines outside of the business district. FRA would like commenters to discuss other potential projects that could benefit from the program implemented by this regulation. In some situations, vertical relocation may be the best solution. For example, Nevada has undertaken the Reno Transportation Rail Access Project (ReTRAC), the purpose of which is to “sink” 33 feet below the ground in a trench the approximately 2.25 mile segment of main line track that runs through Reno. Both the Union Pacific Railroad Company

(UP)and Amtrak operate over this line. The project will allow for the closing of 11 grade crossings and will generally improve both highway efficiency and safety as well as the safety and efficiency of the trains that operate through Reno. Many of these relocation projects, like the ReTRAC project, are expensive, and state and local governments lack the resources to undertake them. 4 When commenting on potential projects, FRA requests that commenters discuss the estimated costs of those projects. 4 The ReTRAC project is expected to cost in excess of $260,000,000. In addition to relocation projects, many communities are eager to improve existing rail infrastructure in an effort to mitigate the perceived negative effects of rail traffic on safety in general, motor vehicle traffic flow, economic development, or the overall quality of life of the community. For example, in an effort to improve train speed and reduce the risk of derailments, rail lines that were built a century ago with sharp curves can be straightened. In addition, significant efficiencies can be gained and safety enhanced by, as examples, extending passing tracks and yard lead tracks, and adding track circuits and signal spacing changes. II. SAFETEA-LU On August 10, 2005, President George W. Bush signed SAFETEA-LU, (Pub. L. 109-59) into law. Section 9002 of SAFETEA-LU amended chapter 201 of Title 49 of the United States Code by adding a new § 20154, which establishes the basic elements of a funding program for capital grants for local rail line relocation and improvement projects. Subsection

(b)of the new § 20154 mandates that the Secretary issue “temporary regulations” to implement the capital grants program and then issue final regulations by October 1, 2006. This NPRM proposes a regulation intended to carry out that statutory mandate. In order to be eligible for a grant for an improvement construction project, the project must mitigate the adverse effects of rail traffic on safety, motor vehicle traffic flow, community quality of life, including noise mitigation, or economic development, or involve a lateral or vertical relocation of any portion of the rail line, presumably to reduce the number of grade crossings and/or serve to mitigate noise, visual issues, or other externality that negatively impacts a community. A more detailed explanation of the rule text is provided below in the Section-by-Section Analysis. Congress authorized, but did not appropriate, $350 million per year for each fiscal year 2006 through 2009. At least half of the funds awarded under this program shall be provided as grant awards of not more than $20 million each. A State or other eligible entity will be required to pay at least 10 percent of the shared costs of the project, whether in the form of a contribution of real property or tangible personal property, contribution of employee services, or previous costs spent on the project before the application was filed. The state or FRA may also seek financial contributions from private entities benefiting from the rail line relocation or improvement project. In SAFETEA-LU, Congress directed FRA to issue “temporary regulations” by April 1, 2006. Under the Administrative Procedure Act and Executive Orders governing rulemaking, FRA could comply with Congress's deadline only by issuing a direct final rule or an interim final rule by April 1, 2006. However, the FRA cannot use either a direct final rule or an interim final rule because the legal requirements for using those instruments cannot be satisfied. The case law is clear that a statutory deadline does not suffice to justify dispensing with notice and comment prior to issuing a rule on grounds that notice and comment are “impracticable, unnecessary, or contrary to the public interest” under Section 553(b)(B) of the Administrative Procedure Act. Because as of this date no funding has been appropriated for the program and no projects can be funded at this time, FRA believes the purposes of SAFETEA-LU can best be met by proceeding in lieu of an interim final rule with an NPRM, which satisfies the requirements of the Administrative Procedure Act and allows for greater public participation in the rulemaking process. III. Section-by-Section Analysis SAFETEA-LU contains very specific language regarding implementation of the rail line relocation and improvement program. In several sections, the language in this proposed regulation is reprinted directly from SAFETEA-LU. Given such an unambiguous statutory mandate, FRA has made only a few additions in this proposed regulation to include language that was not in the statute. For those sections, there is a further discussion of FRA's intent and a request for comments. This Section-by-Section Analysis does not discuss Congressional intent. Section 262.1 Purpose This section merely states that the purpose of this NPRM is to carry out the Congressional mandate in § 9002 of SAFETEA-LU by promulgating regulations which implement the grant financial assistance program for local rail relocation and improvement projects set forth in new § 20154 of Title 49 of the United States Code. Section 262.3 Definitions Act When used in this Part, “Act” means SAFETEA-LU. Administrator This definition makes clear that when the term “Administrator” is used in this Part, it refers to the Administrator of the Federal Railroad Administration. It also provides that the Administrator may delegate authority under this rule to other Federal Railroad Administration officials. Allowable costs This definition makes clear that only costs classified as “allowable” will be reimbursable under a grant awarded under this Part. Specifically, construction costs are the only costs that are reimbursable. Construction This definition sets out the types of project costs that are contemplated as being reimbursable under this Part. Only these costs will be allowable under a grant from this program. This definition closely tracks 49 U.S.C. 20154(h)(1). Subsection 20154(h)(1)(F) gave the Secretary the authority to prescribe additional costs, other than those specifically listed in § 20154(h)(1), as allowable under this Part. As the authority to promulgate this rule has been delegated to FRA by the Secretary, subsection

(6)makes clear that FRA has that authority to prescribe additional costs. In addition, subsection

(6)also makes clear that architectural and engineering costs associated with the project as well as costs incurred in compliance with applicable environmental regulations are considered construction costs, and will be allowable. Because FRA has some discretion with regard to this definition, commenters are invited to suggest additional costs that might be allowable under the regulation. FRA This definition makes clear that when the term “FRA” is used in this Part, it refers to the Federal Railroad Administration. Improvement The program established by the Act is intended to provide funds for both rail line relocation and improvement projects. This definition makes clear the types of projects that fall under the category of “improvements.” FRA considers improvements to be projects such as those that repair defective aspects of a rail system's infrastructure, projects that enhance an existing system to provide for improved operations, or new construction projects that result in better operational efficiencies. Examples include track work that increases the class of track, signal system improvements, and lengthening existing sidings or building new sidings. FRA invites comments on the definition of “improvement” as well as the types of projects that should be considered. Commenters should keep in mind, however, that any project must achieve the goals set forth in § 262.7(a)(1). Non-Federal Share This definition indicates that Non-Federal share means the portion of the allowable cost of the local rail line relocation or improvement project that is being paid for through cash or in-kind contributions by a State or other non-Federal entity. Private Entity This definition makes clear what types of entities are contemplated under § 262.13. A private entity must be a nongovernmental entity, but can be a domestic or foreign entity and can be either for-profit or not-for-profit. Project This definition makes clear that the term “project” refers only to a local rail line relocation or improvement project undertaken with funding from a grant from FRA under this Part. Quality of Life FRA is requesting comments on what factors should be considered when measuring “quality of life.” The Act requires only that the definition include first responders” emergency response time, the environment, noise levels, and other factors as determined by FRA. Thus, Congress left FRA some discretion in determining what else should be considered under this definition. FRA believes “quality of life” should include factors associated with an individual's overall enjoyment of life or a community's ability both to function and to provide services to its residents at a reasonable level. Commenters are invited to discuss specific factors that can measure these somewhat amorphous concepts, as well as any other factors that may be appropriate. Real Property This definition makes clear that “real property” refers to land, including land improvements, structures and appurtenances thereto, excluding movable machinery and equipment. Relocation This definition states what relocation consists of and provides the distinction between the two types of rail line relocations. A lateral relocation occurs when a rail line is horizontally moved from one location to another, usually away from dense urban development, grade crossings, etc., in an effort to allow trains to operate more efficiently and the community surrounding the old line to function more effectively. The typical example is moving a rail line that runs through the middle of a town or city to a location outside of the town or city. A vertical relocation occurs when a rail line remains in the same location, but the track is lifted above the ground, as with an overpass, or is sunk below ground level, as with a trench. Vertical relocations may be preferable when the community surrounding the rail line still needs the line (for example, when a busy passenger station is located on the line), but the line is causing problems because of its location at grade. Secretary This definition makes clear that “Secretary” refers to the Secretary of Transportation. State This definition is reprinted from SAFETEA-LU and can be found at 49 U.S.C. 20154(h)(3). It makes clear that, for the purposes of this Part except for § 262.17, any of the fifty States, political subdivisions of the States, and the District of Columbia is a “State” and eligible for funding from this program. The definition also makes clear, however, that for purposes of § 262.17 only, “State” does not include political subdivisions of States, but instead only the fifty States and the District of Columbia. Tangible Personal Property This definition indicates that “tangible personal property” refers to property that has physical substance and can be touched, but is not real property. Examples of tangible personal property include machinery, equipment and vehicles. Section 262.5 Allocation Requirements This section is reprinted directly from SAFETEA-LU and can be found at 49 U.S.C. 20154(d). It mandates that at least fifty percent of all grant funds awarded under this Part out of funds appropriated for a fiscal year be provided as grant awards of not more than $20,000,000 each. Designated, high-priority projects will be excluded from this allocation formula. The statute states that the $20,000,000 amount will be adjusted by the Secretary to reflect inflation for each fiscal year of the program beginning in FY 2007. Under the Secretary's delegation of rulemaking authority to FRA, however, FRA will make the annual inflationary adjustment. In making the adjustment for inflation, FRA will use guidance published by the Association of American Railroads (AAR). Specifically, FRA will use the materials and supplies component of the AAR Railroad Cost Indexes. FRA will make the adjustment each October based on the most recent edition of the Cost Indexes. Section 262.7 Eligibility This section is reprinted directly from SAFETEA-LU and can be found at 49 U.S.C. 20154(b). It sets out the eligibility criteria for projects and declares that any state (or political subdivision of a state) is eligible for a grant under this section for any construction project for the improvement of a route or structure of a rail line that either is carried out for the purpose of mitigating the adverse effects of rail traffic on safety, motor vehicle, traffic flow, community quality of life, or economic development, or involves a lateral or vertical relocation of any portion of a rail line. Lateral relocation refers to horizontally moving the rail line to another location while vertical relocation refers to either lifting the rail line above the ground or sinking it below the ground. Subpart

(b)of this section also makes clear that only costs associated with construction, as defined in this Part, will be allowable costs for purposes of this Part. Therefore, only construction costs will be eligible for reimbursement under a grant agreement administered under this Part. Section 262.9 Criteria for Selection of Rail Lines This section is reprinted almost entirely from SAFETEA-LU and, aside from subsection (f), can be found at 49 U.S.C. 20154. It sets out the criteria for FRA to use in determining which projects should be approved for grants under this Part. It mandates that the Secretary, through FRA, consider the following factors in deciding whether to award a grant to an eligible state (as defined in this Part): • The capability of the state (as defined in this part) to fund the project without Federal grant funding; • The requirement and limitation relating to allocation of grant funds provided in § 262.5 of this Part; • Equitable treatment of the various regions of the United States; • The effects of the rail line, relocated or improved as proposed, on motor vehicle and pedestrian traffic, safety, community quality of life, and area commerce; and • The effects of the rail line, relocated or improved as proposed, on the freight and rail passenger operations on the rail line. In making the determination required by the first factor of the State's capability to fund the project without Federal grant funding, FRA will look at indicators such as the existence of authorized and funded State programs for railroad improvement projects, the State's use of available highway-rail grade crossing improvement funds provided through 23 U.S.C. 130, and other indicia of credit worthiness such as bond ratings. FRA welcomes comments on these indicators as well as proposals for additional information that may be relevant in determining the State's ability to fund the project without Federal grant funding. With regard to the third factor—equitable treatment of the various regions of the United States—Congress did not indicate how the geographical boundaries of the regions should be determined. For purposes of this regulation, FRA is proposing to divide the country into the same regions that FRA's Office of Safety divides the country for enforcement purposes. FRA's regional boundaries take into account factors such as density of rail lines, frequency of rail operations, and population centers. For example, FRA's Regions 1 and 2, which encompass all of Amtrak's Northeast Corridor, contain many large cities, and have extensive freight, commuter, and intercity passenger rail operations; cover much less territory that FRA's Region 8, which encompasses the Pacific Northwest, including States such as Montana, Wyoming, and Idaho that have smaller populations, little or no commuter or intercity passenger service, and less frequent freight rail operations. A map of FRA's Regions is included as Appendix A. FRA is soliciting comments on this proposed division of the country and welcomes suggestions for alternative methods. Subsection

(f)states that FRA will consider the level of commitment of non-Federal and/or private funds when determining whether to award a grant under this program. This requirement was not listed in § 20154(c) of SAFETEA-LU, but the statute did not mandate that FRA consider only the listed factors in determining whether to award a grant to an eligible state. The listed factors are fairly comprehensive, but FRA wants to retain the flexibility to consider other factors, as well, that may not be readily apparent. Therefore, FRA added a “catch-all” factor to the criteria. Subsection

(f)allows FRA to also consider any other factors that the agency deems relevant to assessing the effectiveness and or efficiency of the grant application in achieving the goals of the national program and specifically mentions the level of financial commitment provided by non-Federal and/or private entities noted in § 20154(e)(4)(B). FRA welcomes comments on this addition and any other potential factors that the FRA may consider in determining whether to award a grant. Section 262.11 Application Process All grant applications submitted under this program must be submitted to FRA through the Internet at *http://www.grants.gov.* All Federal grant-making agencies are required to receive applications through this website. Potential applicants should note that the information below describes FRA's typical grant application requirements. However, the specific requirements for individual grants will be listed in the “Instructions” section for the particular grant for which FRA is accepting applications. The application process for funds appropriated under § 20154 will differ depending on whether the grant is non-competitive or discretionary (competitive). Non-competitive applications—usually projects designated in the appropriations statute or in the Conference Report accompanying an annual appropriation as high-priority—generally must include the following:

(1)A detailed project description;

(2)Standard Forms

(SF)424 —Application; SF 424A or C—Budget Information; SF 424B or D—Assurances; Certifications and Assurances, i.e. debarment/suspension/ineligibility, Drug-free Work Place; Lobbying, Indirect Costs; SF 3881—Payment Information; SF 1194—Authorized Signatures; and

(3)an Audit History. Potential applicants should keep in mind that these are the typical forms that FRA requests with non-competitive applicants. FRA may not require all of these for a particular application. For a discretionary (competitive) grant, applicants will be provided with certain basic information covering deadlines and addresses for submitting statements of interest, the entities eligible for funding, an estimate of the amount of funding available and the expected number of awards, and the selection criteria for evaluating statements of interest. A major responsibility of FRA's technical staff will be development of a Source Selection Plan

(SSP)to be used for evaluating applications. The SSP will be available to all applicants. All applicants should keep in mind that no funding will be available for this program unless and until Congress appropriates funding for it. SAFETEA-LU authorized, but did not appropriate, $350 million per fiscal year for each fiscal year 2006 through 2009. As of the publication date of this Part, Congress has not appropriated any funds for fiscal year 2006 or 2007. If Congress appropriates non-competitive funds for a specific project under this Program, FRA will notify the potential recipient of the appropriation. If Congress approves funding for a discretionary grant or grants, FRA will publish a Notice of Funds Availability in the **Federal Register** and eligible applicants will be able to apply for a grant through *http://www.grants.gov.* Subsection

(b)of this section mandates that, when submitting an application, a state must submit a description of the anticipated public and private benefits associated with each proposed rail line relocation or improvement project. The determination of the benefits must be developed in consultation with the owner and user of the rail line being relocated and improved or other private entity involved in the project. Since one of the factors that FRA will consider in selecting projects is the level of commitment of non-Federal and/or private funds available for the project (see proposed section 262.9(f)), applications should also identify the financial contributions or commitments the state has secured from any private entities that are expected to benefit from the proposed project. The language for this subsection is based upon SAFETEA-LU requirements and can be found at 49 U.S.C. 20154(e)(4)(A) and (B). Subsection

(c)of this section allows for a potential applicant to request a meeting with the FRA Associate Administrator for Railroad Development or his designee to discuss a project the potential applicant is considering for financial assistance under this Part. Subsection

(c)does not require that such a meeting occur, but it has been FRA's experience that pre-application meetings generally save the potential applicant both time and money, and, therefore, FRA strongly encourages potential applicants to schedule such a meeting. Section 262.13 Matching Requirements This section is reprinted entirely from SAFETEA-LU and can be found at 49 U.S.C. § 20154(e). It sets out the requirement that a State (as defined in this Part) or other non-Federal entity shall pay at least ten

(10)percent of the shared costs of a project that is funded in part by a grant awarded under this Part. The ten percent may be in cash or in the form of the following in-kind contributions: • Real property or tangible personal property, whether provided by the State (as defined by this Part) or a person for the State; • The services of employees of the State or other non-Federal entity, calculated on the basis of costs incurred by the State or other non-Federal entity for the pay and benefits of the employees, but excluding overhead and general administrative costs; • A payment of any costs that were incurred for the project before the filing of an application for a grant for the project under this section, and any in-kind contributions that were made for the project before the filing of the application, if and to the extent that the costs were incurred or in-kind contributions were made to comply with a provision of a statute required to be satisfied in order to carry out the project. Finally, this section states that FRA will consider the feasibility of seeking financial contributions or commitments from private entities involved with the project in proportion to the anticipated public and private benefits that accrue to such entities from the project. FRA invites comments and suggestions from commenters on how FRA can best accomplish this requirement. Since project sponsors are most directly involved and familiar with the details of the proposed projects and are required to submit a description of the anticipated public and private benefits associated with each rail line relocation or improvement project as a part of the application process, the requirement to seek financial contributions or commitments from private entities might best be accomplished by the project sponsors in assembling the overall financial package to complete the project. This could then be one of the factors to be evaluated by the FRA in deciding whether to proceed with a project or in selecting one project over another should there be more than one project competing for any available funding. Section 262.15 Environmental Assessment This section clearly states to all grantees that, in order for FRA to award funding for any project, the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* )

(NEPA)and related laws, regulations and orders must be complied with. NEPA mandates that before any “major” Federal action can take place, the Federal entity performing the action must complete an appropriate environmental review. The use of Federal funds in a project triggers the NEPA process. Thus, because FRA will be providing Federal funds to grantees for local rail line relocation and improvement projects, a completed NEPA review will be required before the agency decides to approve any project. A State may be requested to provide environmental information and/or fund the NEPA review, either directly (if the entity administering the grant is a State agency with statewide jurisdiction) or through a third party contract. FRA's NEPA compliance will be governed by FRA's “Procedures for Considering Environmental Impacts” (65 FR 28545) and the NEPA regulations of the Council on Environmental Quality (40 CFR part 1500). This section also notes several of the other environmental and historic preservation statutes that must be considered during the NEPA review. This is not, however, a comprehensive list of all environmental and historic preservation statutes and implementing regulations that must be considered, but instead merely illustrative of the issues that a State may be required to address in the environmental review. Section 261.17 Combining Grant Awards This section is reprinted entirely from SAFETEA-LU and can be found at 49 U.S.C. 20154(f). It allows for two or more States, but not political subdivisions of States, pursuant to an agreement entered into by the States, to combine any part of the amounts provided through grants for a project under this Part, provided the project will benefit each State and the agreement is not a violation of a law of any of the States. SAFETEA-LU specifically excludes political subdivisions of States from taking advantage of this section, but does not exclude the District of Columbia. Section 261.19 Closeout Procedures The “grant closeout” is the process by which the FRA and grantee perform final actions that document completion of work, administrative requirements, and financial requirements of the grant agreement. FRA, the grantee, and any other involved parties, such as an auditor, need to fulfill these requirements promptly in order to avoid unnecessary delays in grant closeout. FRA will notify the grantee in writing 30 days before the end of the grant period regarding what final reports are due, the dates by which they must be received, and where they must be submitted. The grantee will be required to submit the reports within 90 days after the expiration or termination of the grant. Copies of any required forms and instructions for their completion will be included with the notification. The financial, performance, and other reports required as a condition of the grant will generally include the following: • Final performance or progress report; • Financial Status Report (SF-269) or Outlay Report and Request for Reimbursement for Construction Programs (SF-271); • Final Request for Payment; • Federally-Owned Property Report. A grantee must submit an inventory of all Federally-owned property (as opposed to property acquired with grant funds) for which it is accountable and request disposition instructions from FRA if the property is no longer needed. Upon receipt of this information, FRA will determine whether any additional funds are due the grantee or whether the grantee needs to refund any funds. FRA will also determine final costs and, if necessary, make upward or downward adjustments to any allowable costs within 90 days after receipt of reports and make prompt payment to the grantee for any unreimbursed allowable costs. If the grantee has received more funds than the total allowable costs, the grantee must immediately refund to FRA any balance of unencumbered cash advanced that is not authorized to be retained for use on other grants. FRA will notify the grantee in writing that the grant has been closed out. The grant agreement will in most cases be ready to be closed out before receipt of the single audit report that covers the period of the grant performance. Therefore, the grant will be closed administratively without formal audit. The grant may be reopened later to resolve subsequent audit findings. The closeout of a grant does not affect FRA's right to disallow costs and recover funds on the basis of a later audit or other review and the grantee's obligation to return any funds due as a result of later refunds, corrections, or other transactions. IV. Regulatory Impact A. Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures FRA has determined preliminarily that this action represents a “significant regulatory action” within the meaning of DOT's Regulatory Policies and Procedures (44 FR 11034, February 26, 1979) and Executive Order 12866. This determination is based on a finding that the rule may have an annual effect on the economy of $100 million or more because Congress has authorized the appropriation of $350,000,000 per year for fiscal years 2006 through 2009. However, no funds to implement the program were appropriated for fiscal year 2006 and no funds were requested in the Administration's Fiscal Year 2007 budget request. The NPRM was reviewed by the Office of Management and Budget under E.O. 12866. This section summarizes the estimated economic impact of the proposed rule. As mandated by section 9002 of SAFETEA-LU, this rulemaking proposes establishment of the basic elements of a funding program for capital grants for local rail line relocation and improvement projects. This regulation would affect only those entities that voluntarily elected to apply for the capital grants under section 9002 and were selected to receive a grant under the program. It would not impose any direct involuntary un-reimbursed costs on non-participants. Prospective applicants will normally have available the information needed to prepare applications for funding so these costs would be minimal. FRA has undertaken a preliminary evaluation of the economic impact of this proposed regulatory action. However, because the number, nature, and size of projects to be assisted would not be known until funds are appropriated and specific applications are received, this analysis is by necessity an estimate. Since the actual projects have yet to be identified, it is also not possible at this stage to ascertain the appropriate benefit/cost ratios. The only costs imposed on the participants (States and political subdivisions) are the costs associated with completing an application and providing the required minimum ten percent non-Federal funding match. FRA has also concluded that the local rail line relocation and improvement projects capital grants program could generate both direct and indirect benefits, providing economic, safety and environmental benefits. Of the $350 million authorized to be appropriated annually, fifty percent of all grant funds awarded are reserved for projects of no more than $20 million each, adjusted for inflation. Lacking specifics about individual projects, it is difficult to estimate whether the benefits are anticipated to surpass the combined potential direct costs to the Federal Government (potentially $350 million annually) and to the entities that elect to participate in the program. The statutory criteria for evaluating applications do not require a cost/benefit analysis for each project but instead focus on the capability of the state to fund the project without Federal grant funding, the effects of the relocated or improved rail line on traffic, safety, quality of life, area commerce, and freight and passenger operations on the line. Because of the voluntary nature of participation in the program, this regulatory action is not anticipated to impose any non-reimbursed costs upon non-participants (relocation assistance is an eligible program cost which would mitigate impacts to non-participants). The FRA requests comments, information, and data from the public and potential users concerning the economic impact of implementing this rule and the local rail line relocation and improvement projects capital grants program. This rule is not anticipated to adversely affect, in a material way, any sector of the economy. This rulemaking sets forth eligibility and selection criteria for project proposals in the local rail line relocation and improvement projects capital grants program, which will result in only minimal cost to program applicants. In addition, this proposed rule would not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. B. Regulatory Flexibility Act The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C. 601-612) requires a review of rules to assess their impact on small entities. FRA is not able to certify that this proposed rule would not have a significant impact on a substantial number of small entities and seeks comments from the public. For government entities, the definition of small entities is based on population served. As defined by the Small Business Administration (SBA), this term means governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than fifty thousand. States are not included in the definition of small entity set forth in 5 U.S.C. 601, but political subdivisions of states may well fall into this category. Given FRA's lack of knowledge about specific projects, applicants or applications that might be filed if Congress appropriated funds for the program, it is not possible to determine the number of small government entities that may be involved in applications under the local rail line relocation and improvement projects capital grants program or the impacts to those entities from the program. FRA has not conducted a regulatory flexibility assessment of this proposed rule's impact on small entities. FRA views it as unlikely that a small entity such as a local government would be disproportionately impacted by the proposed rule. The capital grants for rail line relocation program could certainly provide benefits to small entities, such as local governments (political subdivisions of a State). The funds being made available through this program could provide economic, safety, and environmental benefits. Moreover, participation in the local rail line relocation and improvement projects capital grants program is voluntary. The statute requires a State or other non-Federal entity to provide at least ten percent of the shared cost of a project funded under this program. To the extent a small entity was providing that non-Federal share, the impact would be calculated by the small entity in deciding whether to file the application under the program. At the same time, small governmental entities, limited by Section 9002 to political subdivisions of a State, would likely benefit from the economic opportunities resulting from infrastructure improvements to existing rail lines that connect small governmental entities to the national railroad system. As discussed in greater detail in the background section of this NPRM, rail infrastructure that was once critical to many communities can now present problems as well as benefits. To the extent the program can be used by a local government to address an existing problem, it could provide a substantial benefit to the community. The cost to governmental entities of applying for the program would be minimal since applicants will normally have available most of the information needed to prepare applications for a grant under Section 9002. Written public comments that will clarify the number of affected small entities and what the impacts will be for the affected small entities are requested. FRA especially encourages political subdivisions that may be considered to be small entities to participate in the comment process and submit written comments to the docket. Small entities, other than political subdivisions of states, are not eligible to apply for relocation or improvement funds, though on a voluntary basis a non-governmental small entity could agree to supply the non-Federal match. The statute also requires the Secretary to consider the feasibility of seeking financial contributions or commitments from private entities involved with a project in proportion to the expected benefits that accrue to such private entities. Project beneficiaries could include small entities; however, without details about specific projects, it is not possible to realistically estimate whether impacts to non-governmental small entities in these circumstances is likely. FRA invites public comment on this component of the analysis, as well. C. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) addresses the collection of information by the Federal government from individuals, small businesses and State and local governments and seeks to minimize the burdens such information collection requirements might impose. A collection of information includes providing answers to identical questions posed to, or identical reporting or record-keeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States. This Notice of Proposed Rulemaking contains information requirements that would apply to States or political subdivisions of States that file applications for Federal funding for local rail line relocation and improvement projects. The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget

(OMB)under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 *et seq.* The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows: CFR section—49 CFR Respondent universe Total annual responses Average time per response Total annual burden hours Total annual burden cost 262.11—Application Process 50 States 7 applications 580 hours 4,060 $0 (Cost incl. in RIA). —Requests for Meeting with FRA 50 States 5 requests 30 minutes 3 $120. —Meeting Discussions 50 States 5 meetings 2 hours 10 $700. 262.15—Environmental Assessment 50 States 7 documents 200 hours 1,400 $0 (Cost incl. in RIA). 262.19—Close-Out Procedures 50 States 7 document sets 6 hours 42 $1,680. —Inspection of All Construction Report 50 States 7 reports 80 hours 560 $39,200. All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), the FRA solicits comments concerning: whether these information collection requirements are necessary for FRA to properly perform its functions, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collecting information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202-493-6292. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail Stop 21, Washington, DC 20590. Comments may also be submitted via e-mail to Mr. Brogan at the following address: *robert.brogan@fra.dot.gov.* OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the **Federal Register** . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the **Federal Register** . D. Environmental Impact FRA has evaluated these regulations in accordance with its procedures for ensuring full consideration of the potential environmental impacts of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* )

(NEPA)and related directives ( *see* FRA Policy Statement on Procedures for Considering Environmental Impacts, 64 FR 28545). FRA has concluded that the issuance of this NPRM, which establishes regulations governing the awarding of grants for local rail line relocation and improvement projects, does not have a potential impact on the environment and does not constitute a major Federal action requiring an environmental assessment or environmental impact statement. Because all projects undertaken with grants administered under this section will involve Federal funding, appropriate NEPA analyses, including studies of any potential environmental justice issues, will be necessary prior to the award of any grant. E. Federalism Implications FRA has analyzed this NPRM in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications. *See* 64 FR 42355. This NPRM will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. This NPRM will not have federalism implications that impose any direct compliance costs on State and local governments. There will be costs associated with the submission of applications, but they are discretionary and will only be incurred should a State or local government wish to apply for funding. Otherwise, this NPRM directs how Federal funds will go to the States, and thus, there are no federalism implications. F. Unfunded Mandate Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. There are no “regulatory actions” contemplated within the meaning of the Unfunded Mandate Reform Act of 1995. Furthermore, this grant program is not an “unfunded mandate,” in that there will be no money until Congress specifically appropriates it. The only requirements in this NPRM for funding other than grant funds provided to State and local governments is the ten percent matching requirement, which may include costs associated with NEPA compliance. That requirement, however, is specifically set forth in § 9002 of SAFETEA-LU and FRA need not assess its effect. This NPRM, therefore, will not result in the expenditure by State, local, or tribal governments, in the aggregate, of $100,000,000 or more in any one year, and thus preparation of such a statement is not required. G. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” See 66 FR 28355 (May 22, 2001). Under the Executive Order a “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and

(ii)is likely to have a significant adverse effect on the supply, distribution, or use of energy; or

(2)that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this NPRM in accordance with Executive Order 13211. FRA has determined that this NPRM is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this NPRM is not a “significant energy action” within the meaning of the Executive Order. H. Privacy Act Statement Anyone is able to search the electronic form of all comments received into any of DOT's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc). You may review DOT's complete Privacy Act Statement published in the **Federal Register** on April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit *http://dms.dot.gov.* V. The Proposed Rule For the reasons discussed in the preamble, the Federal Railroad Administration proposes to add part 262 to Title 49, Code of Federal Regulations, as follows: PART 262—PROGRAM FOR CAPITAL GRANTS FOR RAIL LINE RELOCATION AND IMPROVEMENT PROJECTS Table of Contents for Proposed Part 262 Sec. 262.1 Purpose. 262.3 Definitions. 262.5 Allocation requirements. 262.7 Eligibility. 262.9 Criteria for selection of rail lines. 262.11 Application process. 262.13 Matching requirements. 262.15 Environmental assessment. 262.17 Combining grant awards. 262.19 Close-out procedures. Authority: 49 U.S.C. 20154 and 49 CFR 1.49. § 262.1 Purpose. The purpose of this part is to carry out the statutory mandate set forth in § 9002 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (Pub. L. 109-59) that the Secretary of Transportation promulgate regulations implementing new § 20154 of Title 49 of the United States Code, which establishes a capital grants program to provide financial assistance for local rail line relocation and improvement projects. § 262.3 Definitions. *Act* means the Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy for Users (Pub. L. 109-59). *Administrator* means the Federal Railroad Administrator, or his or her delegate. *Allowable costs* means those project costs for which Federal funding may be expended under this part. Only construction and construction-related costs will be allowable. *Construction* means supervising, inspecting, demolition, actually building, and incurring all costs incidental to building a project described in § 262.9 of this part, including bond costs and other costs related to the issuance of bonds or other debt financing instruments and costs incurred by the Grantee in performing project related audits, and includes:

(1)Locating, surveying, and mapping;

(2)Track and related structure installation, restoration, and rehabilitation;

(3)Acquisition of rights-of-way;

(4)Relocation assistance, acquisition of replacement housing sites, and acquisition and rehabilitation, relocation, and construction of replacement housing;

(5)Elimination of obstacles and relocation of utilities; and

(6)Any other activities as defined by FRA, including architectural and engineering costs, and costs associated with compliance with the National Environmental Policy Act, National Historic Preservation Act, and related statutes, regulations, and orders. *FRA* means the Federal Railroad Administration. *Improvement* means repair or enhancement to existing rail infrastructure, or construction of new rail infrastructure, that results in improvements to the efficiency of the rail system and the safety of those affected by the system. *Non-Federal share* means the portion of the allowable cost of the local rail line relocation or improvement project that is being paid for through cash or in-kind contributions by a state or other non-Federal entity. *Private Entity* means any domestic or foreign nongovernmental for-profit or not-for-profit organization. *Project* means the local rail line relocation or improvement for which a grant is requested under this section. *Quality of Life* means the level of social, environmental and economic satisfaction and well being a community experiences, and includes factors such first responders’ emergency response time, the environment, grade crossing safety, and noise levels. *Real Property* means land, including land improvements, structures and appurtenances thereto, excluding movable machinery and equipment. *Relocation* means moving a rail line vertically or laterally to a new location. Vertical relocation refers to raising above the current ground level or sinking below the current ground level a rail line. Lateral relocation refers to moving a rail line horizontally to a new location. *Secretary* means the Secretary of Transportation. *State* except as used in § 262.17, means any of the fifty United States, a political subdivision of a State, and the District of Columbia. In § 262.17, *State* means any of the fifty United States and the District of Columbia. *Tangible personal property* means property, other than real property, that has a physical existence and an intrinsic value, including machinery, equipment and vehicles. § 262.5 Allocation requirements. At least fifty percent of all grant funds awarded under this section out of funds appropriated for a fiscal year shall be provided as grant awards of not more than $20,000,000 each. Designated, high-priority projects will be excluded from this allocation formula. FRA will adjust the $20,000,000 amount to reflect real inflation for fiscal years beginning after fiscal year 2006 based on the materials and supplies component from the all-inclusive index of the AAR Railroad Cost Indexes. § 262.7 Eligibility.

(a)A state is eligible for a grant from FRA under this section for any construction project for the improvement of the route or structure of a rail line that either:

(1)Is carried out for the purpose of mitigating the adverse effects of rail traffic on safety, motor vehicle traffic flow, community quality of life, or economic development; or

(2)Involves a lateral or vertical relocation of any portion of the rail line.

(b)Only costs associated with construction will be considered allowable costs. § 262.9 Criteria for Selection of Rail Lines. FRA will consider the following factors in determining whether to award a grant to an eligible State under this part:

(a)The capability of the State to fund the rail line relocation project without Federal grant funding;

(b)The requirement and limitation relating to allocation of grant funds provided in § 262.7;

(c)Equitable treatment of various regions of the United States;

(d)The effects of the rail line, relocated or improved as proposed, on motor vehicle and pedestrian traffic, safety, community quality of life, and area commerce;

(e)The effects of the rail line, relocated as proposed, on the freight rail and passenger rail operations on the line;

(f)Any other factors FRA determines to be relevant to assessing the effectiveness and or efficiency of the grant application in achieving the goals of the national program, including the level of commitment of non-Federal and/or private funds to a project. § 262.11 Application process.

(a)All grant applications for opportunities funded under this section must be submitted to FRA through *www.grants.gov.* Opportunities to apply will be posted by FRA on *www.grants.gov* only after funds have been appropriated for Capital Grants for Rail Line Relocation Projects. The electronic posting will contain all of the information needed to apply for the grant, including required supporting documentation.

(b)In addition to the information required with an individual application, a State must submit a description of the anticipated public and private benefits associated with each rail line relocation or improvement project described in § 262.7(a)(1) and (2). The determination of such benefits shall be developed in consultation with the owner and user of the rail line being relocated or improved or other private entity involved in the project. The State should also identify any financial contributions or commitments it has secured from private entities that are expected to benefit from the proposed project.

(c)Potential applicants may request a meeting with the FRA Associate Administrator for Railroad Development or his designee to discuss the nature of the project being considered. § 262.13 Matching requirements.

(a)A State or other non-Federal entity shall pay at least ten percent of the construction costs of a project that is funded in part by the grant awarded under this section.

(b)The non-Federal share required by sub-part

(a)of this section may be paid in cash or in-kind. In-kind contributions that are permitted to be counted under this section are as follows:

(1)A contribution of real property or tangible personal property (whether provided by the State or a person for the State) needed for the project;

(2)A contribution of the services of employees of the State or other non-Federal entity or allowable costs, calculated on the basis of costs incurred by the State or other non-Federal entity for the pay and benefits of the employees, but excluding overhead and general administrative costs;

(3)A payment of any allowable costs that were incurred for the project before the filing of an application for a grant for the project under this section, and any in-kind contributions that were made for the project before the filing of the application; if and to the extent that the costs were incurred or in-kind contributions were made, as the case may be, to comply with a provision of a statute required to be satisfied in order to carry out the project.

(c)In determining whether to approve an application, FRA will consider the feasibility of seeking financial contributions or commitments from private entities involved with the project in proportion to the expected benefits determined under § 262.11(b) of this Part that accrue to such entities from the project. § 262.15 Environmental assessment. The provision of grant funds by FRA under this Part is subject to a variety of environmental and historic preservation statutes and implementing regulations including, but not limited to, the National Environmental Policy Act

(NEPA)(42 U.S.C. 4332 *et seq.* ), Section 4(f) of the Department of Transportation Act (49 U.S.C. 303(c)), the National Historic Preservation Act (16 U.S.C. 470(f)), and the Endangered Species Act (16 U.S.C. 1531). Appropriate environmental and historic documentation must be completed and approved by the Administrator prior to a decision by FRA to approve a project for construction. FRA's “Procedures for Considering Environmental Impacts” (65 FR 28545 (May 26, 1999)) or any replacement environmental review procedures that FRA may later issue and the NEPA regulation of the Council on Environmental Quality (40 CFR Part 1500) will govern FRA's compliance with applicable environmental and historic preservation review requirements. Applicants will be expected to fund costs associated with FRA NEPA compliance. Those costs will be considered allowable costs should FRA and the state enter into a grant agreement. § 262.17 Combining grant awards. Two or more States, but not political subdivisions of States, may, pursuant to an agreement entered into by the States, combine any part of the amounts provided through grants for a project under this section provided:

(a)The project will benefit each of the States entering into the agreement; and

(b)The agreement is not a violation of the law of any such State. § 262.19 Close-out procedures.

(a)Thirty days before the end of the grant period, FRA will notify the state that the period of performance for the grant is about to expire and that close-out procedures will be initiated.

(b)Within 90 days after the expiration or termination of the grant, the state must submit to FRA any or all of the following information, depending on the terms of the grant:

(1)Final performance or progress report;

(2)Financial Status Report (SF-269) or Outlay Report and Request for Reimbursement for Construction Programs (SF-271);

(3)Final Request for Payment (SF-270);

(4)Patent disclosure (if applicable);

(5)Federally-owned Property Report (if applicable)

(c)If the project is completed, within 90 days after the expiration or termination of the grant, the State shall complete a full inspection of all construction work completed under the grant and submit a report to FRA. If the project is not completed, the State shall submit a report detailing why the project was not completed.

(d)FRA will review all closeout information submitted, and adjust payments as necessary. If FRA determines that the State is owed additional funds, FRA will promptly make payment to the State for any unreimbursed allowable costs. If the State has received more funds than the total allowable costs, the State must immediately refund to the FRA any balance of unencumbered cash advanced that is not authorized to be retained for use on other grants.

(e)FRA will notify the State in writing that the grant has been closed out. Issued in Washington, DC, on December 19, 2006. Joseph H. Boardman, Federal Railroad Administrator. BILLING CODE 4910-06-P EP17JA07.001 [FR Doc. 07-45 Filed 1-16-07; 8:45 am]

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