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Code · REGISTER · 2007-01-22 · Commodity Futures Trading Commission · Rules and Regulations

Rules and Regulations. Final rule

34,175 words·~155 min read·/register/2007/01/22/07-233

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

BILLING CODE 4910-13-P COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 170 RIN 3038-AC29 Membership in a Registered Futures Association AGENCY: Commodity Futures Trading Commission. ACTION: Final rule. SUMMARY: The Commodity Futures Trading Commission (“Commission” or “CFTC”) has amended its regulations to require that all persons registered with the Commission as futures commission merchants (“FCMs”), subject to an exception for certain notice-registered securities brokers or dealers (“BDs”), must become and remain members of at least one registered futures association (“RFA”).
This action is consistent with the regulatory philosophy underlying the Commodity Futures Modernization Act of 2000 (“CFMA”). DATES: *Effective Date:* February 21, 2007. FOR FURTHER INFORMATION CONTACT: Helene D. Schroeder, Special Counsel, Compliance and Registration Section, Division of Clearing and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581, telephone number:
(202)418-5450; facsimile number:
(202)418-5528; and electronic mail: *hschroeder@cftc.gov.* SUPPLEMENTARY INFORMATION: I. Background A. Commission Regulation 170.15 Commission Regulation 170.15 1 (“Regulation”) concerns membership by FCMs in an RFA. Section 17(p) of the Commodity Exchange Act (“Act” or “CEA”) requires each RFA to have a comprehensive program to audit the financial and sales practices of its members and their associated persons. 2 Section 17(q) of the Act requires each RFA to establish such programs “as soon as practicable but not later than September 30, 1985.” Currently, the National Futures Association (“NFA”) is the sole RFA under Section 17(a) of the Act, and it is also a self-regulatory organization (“SRO”). 1 17 CFR 170.15. The Commission's regulations can be accessed at *http://www.access.gpo.gov/nara/cfr/waisidx_06/17cfrvl_06.html.* 2 7 U.S.C. 21(p). The Act can be accessed at *http://www.access.gpo.gov/uscode/title7/chapter1_.html.* In adopting the Regulation, the Commission found that comprehensive and effective self-regulation and the avoidance of duplicative regulation would be enhanced by adoption of a regulation mandating membership in an RFA by each person required to be registered as an FCM. The Commission also found that the need to maintain these extensive programs for the comparatively small number of persons likely to remain subject solely to the Commission's direct regulation would be inefficient and duplicative of the self-regulatory functions for which NFA would be responsible. B. The Commodity Futures Modernization Act of 2000 In December 2000, the CFMA was enacted into law. Among other things, it revised the supervisory functions of the Commission. Specifically, the CFMA transformed the role of the CFTC from a front-line regulator, with responsibility for direct supervision of the commodity futures markets and their participants and professionals, to an oversight agency. 3 3 *See* 7 U.S.C. 5(b). C. The Proposal In light of the Commission's new oversight role and the policies and purposes of the Act, including the goals of effective self-regulation and the avoidance of duplicative regulation, on November 1, 2006, the Commission published in the **Federal Register** a proposed revision to the Regulation (“Proposal”). 4 The Proposal would require that all persons that are registered with the Commission as an FCM, subject to an exception for persons that are notice-registered as BDs, 5 and regardless of whether any such person is required to be registered as an FCM, must become and remain a member of at least one RFA. As the Commission explained in the **Federal Register** release announcing the Proposal (“Proposing Release”), the purpose of the Proposal was “to ensure that all FCMs would come under direct supervision of at least one SRO.” 6 The Commission invites interested persons to read the Proposing Release for a fuller discussion of the purpose of the amendment contained in the Proposal. 4 71 FR 64171. 5 Paragraph
(b)of the Regulation, which the Commission did not propose to amend, provides an exception for persons registered as BDs with the Securities and Exchange Commission that are notice-registered as FCMs in accordance with Commission Regulation 3.10(a)(3). 6 71 FR at 64172. D. The Comments on the Proposal The Commission received two comment letters on the Proposal. One was from NFA, which expressed support for the amendment. The other was from legal counsel representing clients who would be affected by the Proposal in the event the Commission adopted it. This latter commenter requested that, in the event the Commission adopted the Proposal, the Commission make the amendment effective 60 days after publication in the **Federal Register** . The additional 30 days was requested “in order to provide an orderly time for transition and permit sufficient time for registrants affected by the proposed amendment to determine their future course of action if the proposed amendment is approved.” In response, the Commission notes that, as an agency of the Federal Government, in adopting regulations, it is subject to the provisions of the Administrative Procedure Act. Among other things, this means that, in the absence of certain specified circumstances, the Commission may not make a substantive regulation effective earlier than 30 days before the regulation is published in the **Federal Register** . 7 Thus, the Commission typically makes its substantive regulations effective 30 days after the date on which the regulation is published in the **Federal Register** . With respect to the instant matter, the Commission believes that 30 days is sufficient time to achieve compliance with the amended regulation, given the reasons cited by the commenter. Accordingly, the Commission has determined to adopt the amendment to Regulation 170.15(a) as proposed and to make the amendment effective 30 days after publication in the **Federal Register** . 7 *See* 5 U.S.C. 553(d). II. Related Matters A. Regulatory Flexibility Act The Regulatory Flexibility Act 8 requires that agencies, in issuing regulations, consider the impact of those regulations on small businesses. The amended Regulation would affect persons that are registered as FCMs, even if they are not required to be so registered. The Commission has previously established certain definitions of “small entities” to be used by the Commission in evaluating the impact of its regulations on such entities in accordance with the Regulatory Flexibility Act. 9 The Commission previously determined that registered FCMs are not small entities for the purpose of the Regulatory Flexibility Act. 10 8 5 U.S.C. 601 *et seq.* 9 47 FR 18618 (Apr. 30, 1982). 10 *Id.* at 18619. The Commission did not receive any public comments relative to its analysis of the application of the Regulatory Flexibility Act to the Proposal. B. Cost-Benefit Analysis Section 15(a) of the Act 11 requires the Commission to consider the costs and benefits of its action before issuing a new regulation under the Act. By its terms, Section 15(a) does not require the Commission to quantify the costs and benefits of a new regulation or to determine whether the benefits of the proposed regulation outweigh its costs. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action. 11 7 U.S.C. 19(a). Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern:
(1)Protection of market participants and the public;
(2)efficiency, competitiveness, and financial integrity of futures markets;
(3)price discovery;
(4)sound risk management practices; and
(5)other public interest considerations. The Commission, in its discretion, can choose to give greater weight to any one of the five enumerated areas and determine that, notwithstanding its costs, a particular regulation is necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the Act. The Proposal contained an analysis of the Commission's consideration of these costs and benefits and solicited public comment thereon. 12 The Commission did not receive any public comments relative to its cost-benefit analysis of the Proposal. 12 71 FR at 64172-73. List of Subjects in 17 CFR Part 170 Authority delegations (Government agencies), Commodity futures, Reporting and recordkeeping requirements. For the reasons discussed in the preamble, the Commission hereby amends Chapter I of Title 17 of the Code of Federal Regulations as follows: PART 170—REGISTERED FUTURES ASSOCIATIONS 1. The authority citation for part 170 continues to read as follows: Authority: 7 U.S.C. 6p, 12a and 21, as amended by the Commodity Futures Modernization Act of 2000, Appendix E of Pub. L. 106-554, 114 Stat. 2763 (2000). 2. Section 170.15 is amended by revising paragraph
(a)to read as follows: § 170.15 Futures commission merchants.
(a)Except as provided in paragraph
(b)of this section, each person registered as a futures commission merchant must become and remain a member of at least one futures association that is registered under section 17 of the Act and that provides for the membership therein of such futures commission merchant, unless no such futures association is so registered. Issued in Washington, DC, on January 16, 2007, by the Commission. Eileen A. Donovan, Acting Secretary of the Commission. [FR Doc. E7-805 Filed 1-19-07; 8:45 am] BILLING CODE 6351-01-P PENSION BENEFIT GUARANTY CORPORATION 29 CFR Part 4011 RIN 1212-AB12 Disclosure to Participants AGENCY: Pension Benefit Guaranty Corporation. ACTION: Final rule; technical amendment. SUMMARY: Section 4011 of ERISA requires certain underfunded plans to notify participants of plan funding status and the limits on the PBGC's guarantee. The Pension Protection Act of 2006 repealed section 4011 for plan years beginning after 2006 and replaced the disclosure requirement under that section with a disclosure requirement under Title I of ERISA. This rule amends PBGC's regulation on Disclosure to Participants to reflect that statutory change. DATES: *Effective Date:* January 22, 2007. FOR FURTHER INFORMATION CONTACT: John H. Hanley, Director, Legislative and Regulatory Department; or Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and Regulatory Department, Pension Benefit Guaranty Corporation, 1200 K Street, NW., Washington DC 20005-4026; 202-326- 4024. (TTY/TDD users may call the Federal relay service toll-free at 1-800-877-8339 and ask to be connected to 202-326-4024.) SUPPLEMENTARY INFORMATION: Section 4011 of ERISA requires certain underfunded plans to give an annual notice to participants of plan funding status and the limits on the PBGC's guarantee. The PBGC's implementing regulations are at 29 CFR part 4011. On August 17, 2006, the President signed into law the Pension Protection Act of 2006, Public Law 109-280 (PPA 2006). Section 501 of PPA 2006 repealed section 4011 of ERISA for plan years beginning after 2006 and replaced the disclosure requirement under that section with a disclosure requirement under Title I of ERISA (under the jurisdiction of the Department of Labor). The PBGC is amending its regulation implementing section 4011 of ERISA to reflect that statutory change. Section 4011 continues to apply for plan years beginning on or after January 1, 1995, and before January 1, 2007. Because this rule is simply a technical amendment that conforms PBGC's regulation to the statutory change, PBGC has determined that notice and public comment on this amendment are unnecessary. Further, because the statutory change is effective for plan years beginning after 2006, PBGC finds good cause for making this amendment effective immediately. The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866. Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. *See* 5 U.S.C. 601(2). List of Subjects in 29 CFR Part 4011 Employee benefit plans, Reporting and disclosure requirements. For the reasons given above, 29 CFR part 4011 is amended as follows. PART 4011—DISCLOSURE TO PARTICIPANTS 1. The authority citation for part 4011 continues to read as follows: Authority: 29 U.S.C. 1302(b)(3), 1311. 2. Section 4011.1 is amended by adding the words “and on or before December 31, 2006,” after the words “January 1, 1995,”. Issued in Washington, DC, this 16th day of January, 2007. Vincent K. Snowbarger, Interim Director, Pension Benefit Guaranty Corporation. [FR Doc. E7-761 Filed 1-19-07; 8:45 am] BILLING CODE 7709-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD07-05-097] RIN 1625-AA09 Drawbridge Operation Regulation; Gulf Intracoastal Waterway, Anna Maria, FL AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the operating regulations governing the Cortez (SR 684) Bridge and the Anna Maria (SR 64) (Manatee Avenue West) Bridge across the Gulf Intracoastal Waterway, miles 87.4 and 89.2 in Anna Maria, Manatee County, Florida. This rule will require the drawbridges to open on signal, except during daytime hours when the bridge will be on a 30-minute schedule during the winter months and a 20-minute schedule for all other months. DATES: This rule is effective February 21, 2007. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of dockets (CGD07-05-097) and (Public Meeting CGD07-06-012) and are available for inspection or copying at Commander (dpb), Seventh Coast Guard District, 909 SE. 1st Avenue, Room 432, Miami, Florida 33131-3050 between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Michael Lieberum, Seventh Coast Guard District, Bridge Branch, telephone number 305-415-6744. SUPPLEMENTARY INFORMATION: Regulatory Information On August 16, 2005, we published a notice of proposed rulemaking
(NPRM)entitled “Drawbridge Operation Regulations; Gulf Intracoastal Waterway, Anna Maria, FL” in the **Federal Register** (70 FR 48091). We received 28 comments on the proposed rule. On January 31, 2006, we published an announcement of a public meeting entitled “Announcement of Public Meeting Regarding the Proposed Drawbridge Schedule Change for the Anna Maria and Cortez Drawbridge, Anna Maria, FL,” in the **Federal Register** (71 FR 5033). The public meeting was held on March 29, 2006 at Holmes Beach City Hall, 5801 Marina Drive, Holmes Beach, Florida. On November 8, 2006, as a result of the previous comments received, we published a supplemental notice of proposed rulemaking (SNPRM) entitled “Drawbridge Operation Regulations; Gulf Intracoastal Waterway, Anna Maria, FL” in the **Federal Register** (71 FR 65443). We received two comments on this proposed rule; one in favor of the proposed schedule and one against the new schedule. Background and Purpose The existing regulations of the Cortez (SR 684) Bridge, mile 87.4, and Anna Maria (SR 64) Bridge, mile 89.2 at Anna Maria, published in 33 CFR 117.287(d)(1) and
(2)require the draw to open on signal, except that from 7 a.m. to 6 p.m., the draw need open only on the hour, twenty minutes past the hour and forty minutes past the hour if vessels are present. On June 1, 2005, the City officials of Holmes Beach in cooperation with the cities of Anna Maria and Bradenton Beach and the Town of Longboat Key requested that the Coast Guard review the existing regulations governing the operation of the Cortez and Anna Maria (Manatee Avenue West) bridges. The review was requested by city officials because they believed the current drawbridge regulations were not meeting the needs of vehicle traffic. This rule is necessary to assist the local community in determining additional corrective action that may be needed to alleviate the severe vehicle traffic congestion on Anna Maria Island during the winter season. Discussion of Comments and Changes The Coast Guard received 45 responses to the initial Notice of Proposed Rulemaking and at the Public Meeting convened on March 29, 2006. The responses were supplied by 30 written comments and 15 oral comments and several persons provided more than one comment per letter or verbally. These responses consisted of 11 form letters in favor of the proposal, six additional comments also in favor of the proposal, seven comments against the morning and afternoon curfew hours, six comments against the nighttime closures, two comments requesting staggered hours between the two bridges rather than both opening on the same schedule, six comments requesting changes in the winter season only and nine comments against the proposed 30-minute schedules. Two comments suggested that there should be no regulations on these bridges and that the bridges should open on demand. Additionally, the Coast Guard received two responses to the supplemental notice of proposed rulemaking (SNPRM). One response was in favor of both drawbridges being placed on the same 30 minute schedule and one comment was against placing both drawbridges on the same 30 minute schedule. The Coast Guard thoroughly examined and considered all the comments and made adjustments to the final rule. These bridges will remain on the 20-minute opening schedule from 6 a.m. to 7 p.m. during the day and both will operate on the 30-minute schedule from 6 a.m. to 7 p.m. during the winter season from January 15 through May 15. The Coast Guard considered placing these bridges on a staggered schedule. However, this schedule would be impracticable as only a limited number of vessels traveling at a high rate of speed would be able to make the next scheduled bridge opening. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which may be small entities: The owners or operators of vessels needed to transit the Intracoastal Waterway in the vicinity of the Cortez and Anna Maria bridges, persons intending to drive over the bridges, and nearby business owners. The revision to the openings schedule would not have a significant impact on a substantial number of small entities. Vehicle traffic and small business owners in the area might benefit from the improved traffic flow that regularly scheduled openings will offer this area. Although bridge openings will be less frequent, vessel traffic will still be able to transit the Intracoastal Waterway in the vicinity of the Cortez and Anna Maria bridges pursuant to the revised opening schedule. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about the rule or any policy or action of the Coast Guard. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e_, of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. Revise § 117.287(d)(1) and
(2)to read as follows: § 117.287 Gulf Intracoastal Waterway. (d)(1) Cortez (SR 684) Bridge, mile 87.4. The draw shall open on signal, except that from 6 a.m. to 7 p.m., the draw need only open on the hour, 20 minutes after the hour, and 40 minutes after the hour. From January 15 to May 15, from 6 a.m. to 7 p.m., the draw need only open on the hour and half hour.
(2)Anna Maria (SR 64) (Manatee Avenue West) Bridge, mile 89.2. The draw shall open on signal, except that from 6 a.m. to 7 p.m., the draw need only open on the hour, 20 minutes after the hour, and 40 minutes after the hour. From January 15 to May 15, from 6 a.m. to 7 p.m., the draw need only open on the hour and half hour. Dated: January 5, 2007. D.W. Kunkel, Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard District. [FR Doc. E7-832 Filed 1-19-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF TRANSPORTATION Saint Lawrence Seaway Development Corporation 33 CFR Part 401 [Docket No. SLSDC 2006-26397] RIN 2135-AA24 Seaway Regulations and Rules: Periodic Update, Various Categories AGENCY: Saint Lawrence Seaway Development Corporation, DOT. ACTION: Final rule. SUMMARY: The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the SLSDC is amending the joint regulations by updating the Seaway Regulations and Rules in various categories. The changes update the following sections of the Regulation and Rules: Condition of Vessels; Preclearance and Security for Tolls; Seaway Navigation; Dangerous Cargo; and, General. These amendments are necessary to take account of updated procedures and will enhance the safety of transits through the Seaway. Several of the amendments are merely editorial or for clarification of existing requirements. DATES: *Effective date:* This rule is effective February 21, 2007. *Comment date:* Any party wishing to present views on the final rule may file comments with the Corporation on or before February 21, 2007. ADDRESSES: You may submit comments [identified by DOT DMS Docket Number SLSDC 2006-26397] 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 under Regulatory Notices. *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 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Craig H. Middlebrook, Acting Chief Counsel, Saint Lawrence Seaway Development Corporation, 400 Seventh Street, SW., Washington, DC 20590,
(202)366-0091. SUPPLEMENTARY INFORMATION: The Saint Lawrence Seaway Development Corporation (SLSDC) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the SLSDC is amending the joint regulations by updating the Regulations and Rules in various categories. The changes update the following sections of the Regulations and Rules: Condition of Vessels; Preclearance and Security for Tolls; Seaway Navigation; Dangerous Cargo; and, General. These updates are necessary to take account of updated procedures which will enhance the safety of transits through the Seaway. Many of these changes are to clarify existing requirements in the regulations. Where new requirements or regulations are made, an explanation for such a change is provided below. A Notice of Proposed Rulemaking was published on December 4, 2006 (71 FR 70336). Interested parties have been afforded an opportunity to comment. While no public comments were received, the SLSDC is making a few minor editorial changes to the final rule in order to ensure consistency between the final rules published in each jurisdiction. *Regulatory Notices:* *Privacy Act:* Anyone is able to search the electronic form of all comments received into any of our 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 in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov.* The SLSDC is making one clarification to the Interpretation section of the joint Seaway regulations. Under section 401.2, “Interpretation', after the definition of Seaway station, the SLSDC is adding a reference to section 401.62, “Seaway stations” for a list and location of the specific Seaway stations. In terms of Notice and Arrival requirements for vessels transiting the Seaway pursuant to section 401.79, “Advance notice of arrival, vessels requiring inspection”, there has been some confusion regarding the location of the nearest Seaway station. Inserting a reference to the list of Seaway Stations in the definition will aid in clarifying the location to which a vessel must provide its 96 hours notice of arrival. The SLSDC is making two amendments to the joint regulations pertaining to the Condition of Vessels. Under section 401.8, “Landing booms”, the SLSDC is requiring vessels that are equipped with landing booms, but not using them, to use the Seaway's tie-up service at approach walls. This amendment clarifies which vessels are required to use the Seaway's tie-up service. Under section 401.12, “Minimum requirements—mooring lines and fairleads”, the SLSDC is providing flexibility to Seaway ship inspectors' ability to require an alternate mooring arrangement when a vessel cannot comply with the Seaway regulation due to design or other factors. Two amendments to the joint regulations regarding Preclearance and Security for Tolls are being made. The amendment to section 401.22, “Preclearance of vessels”, will provide flexibility to an officer to preclear a vessel, such as a large private yacht or “Tall Ship” that would not be able to moor at the pleasure craft docks because of its unusual design and requirements for inspection. Section 401.24, “Application for Preclearance”, is revised to eliminate the requirement that a representative of a vessel must submit 3 copies of a preclearance form since the Manager no longer issues 3 copies of the form. The SLSDC is making two amendments to the joint regulations pertaining to Seaway Navigation. Under section 401.40, “Entering a lock”, the SLSDC is renaming the section and adding language to make it clear that no vessel shall exit a lock in a manner that results in the stern passing the stop symbol on the lock wall nearest the closed gates. There have been instances in which vessels, when required to maintain position in a lock or upon entering or departing a lock, have drifted astern resulting in damage to Seaway property. This amendment requires a vessel entering, exiting or maintaining its position in a lock to adhere to firmly established Seaway procedures. Under section 401.58, “Pleasure craft scheduling”, language is added to clarify that the requirement to use the automated ticked dispensers only applies to vessels transiting Canadian locks since there are no automated ticket dispensers at the U.S. locks. The SLSDC is making several clarifying/editorial changes in the joint Seaway regulations pertaining to Dangerous Cargo. Revised language throughout the following sections: 401.68, “Explosives Permission Letter”; 401.70, “Fendering—explosive and hazardous cargo vessels”; and, 401.72, “Reporting—explosive and hazardous cargo vessels”, clarifies that the Seaway(s) issue Seaway Explosives Permission Letters rather than permits. In the regulations pertaining to general requirements, the SLSDC makes one amendment. Under section 401.93, “Access to Seaway property,” the word “swim” is removed in order to clarify that a person may not enter any Seaway canal or lock area regardless of the method of entry. Regulatory Evaluation This regulation involves a foreign affairs function of the United States and therefore Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required. Regulatory Flexibility Act Determination I certify this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels. Environmental Impact This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, *et seq.* ) because it is not a major federal action significantly affecting the quality of the human environment. Federalism The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that this rule does not have sufficient federalism implications to warrant a Federalism Assessment. Unfunded Mandates The Corporation has analyzed this rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives. Paperwork Reduction Act This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review. List of Subjects in 33 CFR Part 401 Hazardous materials transportation, Navigation (water), Penalties, Radio, Reporting and recordkeeping requirements, Vessels, Waterways. Accordingly, the Saint Lawrence Seaway Development Corporation amends 33 CFR part 401, Regulations and Rules, as follows: PART 401—SEAWAY REGULATIONS AND RULES Subpart A—Regulations 1. The authority citation for subpart A of part 401 continues to read as follows: Authority: 33 U.S.C. 983(a) and 984(a)(4), as amended; 49 CFR 1.52, unless otherwise noted. 2. In § 401.2 paragraph
(k)is revised to read as follows: § 401.2 Interpretation.
(k)*Seaway Station* means a radio station operated by the Corporation or the Manager. (Refer to 401.62. Seaway Stations for the list and location of stations). 3. In § 401.8 paragraph
(c)is revised to read as follows: § 401.8 Landing booms.
(c)Vessels not equipped with or not using landing booms must use the Seaway's tie-up service at approach walls. 4. Section 401.12 paragraph
(a)introductory text is revised to read as follows: § 401.12 Minimum requirements—mooring lines and fairleads.
(a)Unless otherwise permitted by the officer the minimum requirements in respect of mooring lines, which shall be available for securing on either side of the vessel, winches, and the location of fairleads on vessels are as follows: 5. In § 401.22 paragraph
(c)is revised to read as follows: § 401.22 Preclearance of vessels.
(c)Unless otherwise permitted by an officer a non-commercial vessel of 300 gross registered tonnage or less cannot apply for preclearance status and must transit as a pleasure craft. 6. § 401.24 is revised as follows: § 401.24 Application for preclearance. The representative of a vessel may, on a preclearance form obtained from the Manager, St. Lambert, Quebec, or downloaded from the St. Lawrence Seaway Web site at *http://www.greatlakes-seaway.com* , apply for preclearance, giving particulars of the ownership, liability insurance and physical characteristics of the vessel and guaranteeing payment of the fees that may be incurred by the vessel. 7. In § 401.40 the section heading is revised, paragraphs
(b)and
(c)are redesignated as paragraphs
(c)and (d), respectively, and a new paragraph
(b)is added to read as follows: § 401.40 Entering, Exiting or Position in Lock.
(b)No vessel shall depart a lock in such a manner that the stern passes the stop symbol on the lock wall nearest the closed gates. 8. In § 401.58 paragraph
(b)is revised to read as follows: § 401.58 Pleasure craft scheduling.
(b)Every pleasure craft seeking to transit Canadian Locks shall stop at a pleasure craft dock and arrange for transit by contacting the lock personnel using the direct-line phone and make the lockage fee payment by purchasing a ticket using the automated ticket dispensers. 9. In § 401.68, the section heading and paragraphs
(a)introductory text, (b), (c), and
(d)are revised to read as follows: § 401.68 Explosives Permission Letter.
(a)A Seaway Explosives Permission Letter is required for an explosive vessel in the following cases:
(b)When an explosive vessel is carrying quantities of explosives above the maximum mentioned in paragraph
(a)of this section, no Seaway Explosives Permission Letter shall be granted and the vessel shall not transit.
(c)A written application for a Seaway Explosives Permission Letter certifying that the cargo is packed, marked, and stowed in accordance with the Canadian Regulations respecting the Carriage of Dangerous Goods, the United States Regulations under the Dangerous Cargo Act and the International Maritime Dangerous Goods Code may be made to the Saint Lawrence Seaway Development Corporation, P.O. Box 520, Massena, New York 13662 or to the St. Lawrence Seaway Management Corporation, 202 Pitt Street, Cornwall, Ontario, K6J 3P7.
(d)A signed copy of a Seaway Explosives Permission Letter and a true copy of any certificate as to the loading of dangerous cargo shall be kept on board every explosive vessel in transit and shall be made available to any officer requiring production of such copies. 10. § 401.70 is revised to read as follows: § 401.70 Fendering—explosive and hazardous cargo vessels. All explosive vessels requiring a Seaway Explosives Permission Letter in accordance with § 401.68 and all tankers carrying cargo with a flashpoint of up to 61 °C, except those carrying such cargo in center tanks with gas free wing tanks, shall be equipped with a sufficient number of non-metallic fenders on each side to prevent any metallic part of the vessel from touching the side of a dock or lock wall. 11. In § 401.72 paragraph
(b)is revised to read as follows: § 401.72 Reporting—explosive and hazardous cargo vessels.
(b)Every explosive vessel requiring a Seaway Explosives Permission Letter shall, when reporting in, give the number of its Seaway Explosives Permission Letter. 12. In § 401.93 paragraph
(b)is revised to read as follows: § 401.93 Access to Seaway property.
(b)Except as authorized by an officer or by the Seaway Property Regulations or its successors, no person shall enter upon any land or structure of the Manager or the Corporation or in any Seaway canal or lock area. Issued at Washington, DC on January 11, 2007. Saint Lawrence Seaway Development Corporation. Collister Johnson, Jr., Administrator. [FR Doc. E7-814 Filed 1-19-07; 8:45 am] BILLING CODE 4910-61-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2003-0156; FRL-8272-2] RIN 2060-AN91 Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units: Reconsideration AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of final action on reconsideration. SUMMARY: On December 16, 2005, EPA published final rules entitled, “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Other Solid Waste Incineration Units.” Following that final action, the Administrator received a petition for reconsideration. In response to the petition, on June 28, 2006, EPA announced our reconsideration of whether SSI should be excluded from the other solid waste incineration units
(OSWI)rules and requested comment on this issue. After carefully considering all of the comments and information received through our reconsideration process, we have concluded that no additional changes are necessary to the final OSWI rules. With respect to all other issues raised by the petitioner, we deny the request for reconsideration. DATES: This final action is effective on January 22, 2007. ADDRESSES: *Docket:* EPA has established a docket for this action and the final OSWI new source performance standards
(NSPS)(40 CFR part 60, subpart EEEE) and emission guidelines (40 CFR part 60, subpart FFFF) under Docket ID No. EPA-HQ-OAR-2003-0156. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at *http://www.regulations.gov* or in hard copy at the EPA Docket Center (EPA/DC), EPA West Building, Room B102, 1301 Constitution Ave., NW., Washington, DC 20004. The Public Reading Room is located in the EPA Headquarters Library, Room 3334, and is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the EPA Docket Center is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Ms. Martha Smith, U.S. EPA, Sector Policies and Programs Division, Natural Resources and Commerce Group (E143-03), U.S. EPA, Research Triangle Park, North Carolina 27711,
(919)541-2421, e-mail *smith.martha@epa.gov.* SUPPLEMENTARY INFORMATION: *Organization of This Document.* The following outline is provided to aid in locating information in this preamble. I. General Information A. Does this notice of final action on reconsideration apply to me? B. How do I obtain a copy of this document and other related information? II. Background Information III. Actions We Are Taking A. Issue for Which Reconsideration Was Granted: Sewage Sludge Incinerators B. Remaining Issues in Petition for Reconsideration IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer Advancement Act J. Congressional Review Act I. General Information A. Does this notice of final action on reconsideration apply to me? *Regulated Entities.* This final action on reconsideration potentially affects sewage sludge incinerators (SSI). Although there is not a specific North American Industrial Classification System (NAICS) code for SSI, these units may be operated by municipalities or other entities and the following NAICS codes apply: Non-hazardous incinerators (NAICS 562213); sludge disposal sites (NAICS 562212); and sewage treatment facilities (NAICS 221320). The categories and entities regulated by the final OSWI rules are very small municipal waste combustion (VSMWC) units and institutional waste incineration
(IWI)units. The final OSWI emission guidelines and new source performance standards
(NSPS)affect the following categories of sources: Category NAICS code Examples of potentially regulated entities Any State, local, or Tribal government using a VSMWC unit as defined in the regulations 562213, 92411 Solid waste combustion units burning municipal waste collected from the general public and from residential, commercial, institutional, and industrial sources. Institutions using an IWI unit as defined in the regulations 922, 6111, 623, 7121 Correctional institutions, primary and secondary schools, camps and national parks. Any Federal government agency using an OSWI unit as defined in the regulations 928 Department of Defense (labs, military bases, munition facilities). Any college or university using an OSWI unit as defined in the regulations 6113, 6112 Universities, colleges and community colleges. Any church or convent using an OSWI unit as defined in the regulations 8131 Churches and convents. Any civic or religious organization using an OSWI unit as defined in the regulations 8134 Civic associations and fraternal associations. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that were regulated by the final OSWI rules. B. How do I obtain a copy of this document and other related information? *Docket.* The docket number for this action and the final OSWI NSPS (40 CFR part 60, subpart EEEE) and emission guidelines (40 CFR part 60, subpart FFFF) is Docket ID No. EPA-HQ-OAR-2003-0156. *World Wide Web (WWW).* In addition to being available in the docket, electronic copies of the final rule and the notice of final action on reconsideration are available on the WWW through the Technology Transfer Network Web site (TTN). Following signature, EPA posted a copy of the final rule on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. II. Background Information Section 129 of the Clean Air Act (CAA), entitled “Solid Waste Combustion,” requires EPA to develop and adopt NSPS and emission guidelines for solid waste incineration units pursuant to CAA section 111. Section 111(b) of the CAA requires EPA to establish NSPS for new sources, and CAA section 111(d) requires EPA to establish procedures for States to submit plans for implementing emission guidelines for existing sources. Congress specifically added CAA section 129 to the CAA to address concerns about emissions from solid waste combustion units. Section 129(a)(1) of the CAA identifies five categories of solid waste incineration units:
(1)Units with a capacity of greater than 250 tons per day
(tpd)combusting municipal waste;
(2)Units with a capacity equal to or less than 250 tpd combusting municipal waste;
(3)Units combusting hospital, medical, and infectious waste;
(4)Units combusting commercial or industrial waste; and
(5)Unspecified “other categories of solid waste incineration units.” EPA previously developed regulations for each of the listed categories of solid waste incineration units except for the undefined “other categories of solid waste incineration units.” On December 9, 2004 (69 FR 71472), EPA proposed NSPS and emission guidelines for OSWI units. EPA received and considered public comments and promulgated final regulations for OSWI units on December 16, 2005. Following the promulgation of the final OSWI rule, EPA received a petition for reconsideration from the Sierra Club. On June 28, 2006 (71 FR 36726), we granted reconsideration and requested comment on one issue raised by the petitioner: specifically, whether SSI should be regulated under the OSWI rules. The public comment period on the reconsideration ended on August 14, 2006. Twenty written public comments were received. The individual comment letters can be found in Docket ID No. EPA-HQ-OAR-2003-0156. III. Actions We Are Taking At this time, we are announcing our final action on reconsideration of one issue for which we asked for comment in our June 28, 2006, notice. We are also announcing our final decision on six remaining issues that were raised by petitioners. A. Issue for Which Reconsideration Was Granted: Sewage Sludge Incinerators On June 28, 2006 (71 FR 36726), we granted reconsideration of and requested comment on the SSI issue that was raised in the petition for reconsideration. Generally, the petitioner contended that SSI should be regulated as a type of OSWI under CAA section 129. The petitioner noted that the notice of proposal of the OSWI rules did not mention SSI, and claimed that there was no opportunity to comment on EPA's decision not to regulate SSI under OSWI. Moreover, the petitioner argued that EPA's rationale was advanced for the first time in the final rule and supporting documents. In our June 28, 2006, notice of reconsideration (71 FR 36726), EPA acknowledged that the OSWI proposal notice (69 FR 71472, December 9, 2004) did not specifically mention or request comment on whether SSI should be regulated under the OSWI rules. EPA did publish notices on April 24, 2000 (65 FR 23459), and June 26, 2002 (67 FR 43113), stating that it had decided not to regulate SSI as a category under CAA section 129 and, instead, had listed it as an area source category to be regulated under CAA sections 112(c)(3) and 112(k)(3). These notices, however, did not request public comment on whether SSI should be regulated under CAA section 129 or 112. We decided to grant reconsideration of this issue in the interest of ensuring full opportunity for comment. A total of 20 unique comments were received on the June 28, 2006, proposal notice including a comment by the petitioner, Sierra Club. Seventeen of the commenters wholly support EPA's proposed decision to regulate SSI under CAA section 112 rather than CAA section 129. One of the supporting commenters is a trade organization for publicly-owned treatment works, which are usually the SSI owners and operators. Sixteen member municipalities submitted separate comment letters endorsing the comments from the trade organization. Aside from the petitioner, two State agencies submitted comments that do not fully support EPA's proposal. All of the comments are addressed in the following discussion. 1. Legal and Record Basis for Decision Not to Regulate SSI Under OSWI Rules *a. EPA's Position in OSWI Final Rule.* In promulgating the final OSWI rulemaking, EPA took the position that it was not required to regulate SSI as OSWI under the terms of CAA section 129. Section 129 of the CAA provides, in relevant part: Sec. 129. Solid Waste Combustion
(a)New Source Performance Standards.—
(1)In general.—
(A)The Administrator shall establish performance standards and other requirements pursuant to section 111 and this section for each category of solid waste incineration units. Such standards shall include emissions limitations and other requirements applicable to new units and guidelines (under section 111(d) and this section) and other requirements applicable to existing units. [Subparagraphs (B)-(D) establish schedules for standards applicable to solid waste incineration units combusting municipal waste; hospital waste, medical waste, and infectious waste; and commercial and industrial waste.]
(E)Not later than 18 months after the date of enactment of the Clean Air Act Amendments of 1990, the Administrator shall publish a schedule for the promulgation of standards under section 111 and this section applicable to other categories of solid waste incineration units. In addition, CAA section 129(h)(2) provides,
(2)Other authority under this act.— Nothing in this section shall diminish the authority of the Administrator or a State to establish any other requirements applicable to solid waste incineration units under any other authority of law * * *, except that no solid waste incineration unit subject to performance standards under this section and section 111 shall be subject to standards under section 112(d) of this Act. In the final OSWI rulemaking, EPA concluded that the provisions of CAA section 129(a)(1) do not mandate that SSI be regulated as OSWI under CAA section 129. Because EPA is in the process of regulating SSI under CAA section 112, EPA relied on CAA section 129(h)(2) as part of its basis for not regulating SSI under CAA section 129 (70 FR 74874-74875, December 16, 2005). *b. Comments.* One commenter (EPA-HQ-OAR-2003-0156-0118) claims that EPA's failure to set CAA section 129 standards for SSI contravenes the CAA. The commenter contends that CAA section 129 unambiguously requires EPA to set CAA section 129 standards for *any* facility that combusts *any* solid waste, with the exception of the limited categories of facilities expressly exempt in CAA section 129(g)(1). To support its view, the commenter cites CAA section 129(a)(1)(A) and notes that CAA section 129(g)(1) defines “solid waste incineration unit” as “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public. * * *”. The commenter adds that EPA recognized that “sludge generated by publicly owned treatment works (POTWs) is a solid waste from the general public, commercial and industrial establishments” (62 FR 1869, January 14, 1997) and that EPA admitted that sewage sludge is a solid waste (Unified Agenda, 65 FR 23549-01, April 24, 2000). The commenter concludes that a plain reading of the CAA shows that SSI cannot be exempt from CAA section 129. The commenter claims that emissions from SSI are comparable to other categories of waste incinerators regulated under CAA section 129. The commenter claims that the exclusion of SSI from the OSWI rules contravenes the CAA. 1 1 The commenter also claims that the exclusion of SSI from the OSWI rules contravenes the consent decree in *Sierra Club* v. *Whitman,* No. 01-1537 (D.D.C.). Conversely, another commenter (EPA-HQ-OAR-2003-0156-0127) asserts that EPA was well within its discretion to exclude SSI from the OSWI rule. The commenter states that CAA section 129 directs EPA to regulate certain categories of incinerators enumerated in CAA section 129(a)(1)(A)-(D), but the statute does not define the categories of “other” solid waste incineration units that must be regulated under CAA section 129(a)(1)(E). Therefore, inherent in EPA's implementation of CAA section 129 is the discretion to reasonably define what constitutes the statutorily undefined “other categories” and to determine which warrant regulation under CAA section 129. The commenter argues that this conclusion is supported by the fact that the CAA provides firm timelines for the specifically identified categories of incinerators, but states that EPA must publish only a schedule for the statutorily undefined “other categories.” The commenter claims that CAA section 129 plainly does not require EPA to promulgate OSWI standards for “every” or “all” possible categories of solid waste incineration units; if that had been Congress' intent, then Congress would have provided that direction in CAA section 129(a)(1)(E) by stating that EPA should regulate “all” or “every” other category of solid waste incineration units. The commenter also contends that legislative history shows Congress was focused on municipal waste combustion units, and was also concerned about other specific large incinerators, including medical waste incinerators and industrial incinerators, but that Congress did not once mention POTW sewage sludge or SSI when discussing CAA section 129. Several municipal agencies that operate SSI (EPA-HQ-OAR-2003-0156-0112, -0113, -0114, -0115, -0116, -0117, -0119, -0120, -0121, -0123, -0124, -0125, -0128, -0130, -0131, -0133) support these comments submitted by the commenter (EPA-HQ-OAR-2003-0156-0127), and support EPA's previous decision not to regulate SSI under CAA section 129. Two commenters (EPA-HQ-OAR-2003-0156-0127, -0120) refer to CAA section 129 language that indicates the same category cannot be regulated under both CAA sections 112 and 129. The commenters state that because area source SSI are going to be regulated under CAA section 112, they cannot be regulated under CAA section 129. One of the commenters (EPA-HQ-OAR-2003-0156-0127) points out that EPA originally listed SSI as a hazardous air pollutants
(HAP)source category under CAA section 112, but in 2002 determined that the SSI category did not have any major sources of HAP. Later in 2002, EPA included SSI in a list of area source categories to be regulated under CAA section 112 (67 FR 43112, June 26, 2002). Conversely, another commenter (EPA-HQ-OAR-2003-0156-0126) recommends regulating SSI under the CAA section 129 OSWI rules. A large waste water treatment plant with 14 SSI units is located in the commenter's State. The commenter contends that these units are poorly controlled with few current applicable regulatory requirements. The commenter states that EPA has not pursued regulation of area source SSI under CAA section 112 in a timely manner. Rather than wait for potential regulations under CAA section 112, the commenter favors including SSI in the OSWI regulations. *c. Response to Comments; Legal and Record Basis for Decision Not to Regulate SSI Under OSWI Rules.* EPA has decided not to regulate SSI under the OSWI rules. We are developing regulations for SSI under CAA section 112. For several reasons, we disagree with the petitioner's comment that any incinerator burning any solid waste must be regulated under CAA section 129. 2 2 The commenter is also incorrect that excluding SSI units violates the consent decree in *Sierrall Club* v. *Whitman* , No. 01-1537 (D.D.C.). The Consent decree obligates EPA to regulate other categories of solid waste incinerators under CAA section 129(a)(1)(E), but does not identify SSI units as one of those categories. First, the CAA is ambiguous regarding what categories of solid waste incineration units must be regulated under CAA section 129(a)(1)(E). Subparagraph
(A)of CAA section 129(a)(1) provides, “The Administrator shall establish performance standards and other requirements pursuant to section 111 and this section for each category of solid waste incineration units.” Subparagraphs (B)-(D) discuss timelines for very specific categories of solid waste incinerators (e.g., large and small municipal waste combustors, commercial and industrial waste incinerators, and hospital and medical waste incinerators), while subparagraph
(E)states only that EPA must publish a schedule for promulgating standards for “other categories of solid waste incineration units.” The directive under subparagraph
(A)to regulate “each category of solid waste incineration units” should be read in conjunction with subparagraphs (B)-(E), so that the directive refers to the categories of solid waste incineration units that are identified under subparagraphs (B)-(E). Subparagraph
(E)does not unambiguously require, as implied by one commenter, that the OSWI standards must apply to every other possible type of incineration unit burning any type of solid waste. If Congress had intended such a clear directive, it could have instructed EPA to regulate “every other category” of solid waste incineration unit, instead of, simply, “other categories.” Yet Congress did not use such unambiguous language, leaving it to EPA to interpret the CAA in a reasonable manner by determining which other categories to include under subparagraph (E). Second, the position adopted by this commenter would lead to absurd results. Under the commenter's interpretation, a homeowner burning leaves in a barrel in his or her backyard must be subject to a CAA section 129 rule because the barrel is a unit combusting solid waste material. Congress cannot have intended that EPA regulate such sources under CAA section 129, with all the attendant requirements. The language of CAA section 129 suggests that Congress wanted to focus EPA's attention to specific, larger incineration units (e.g., municipal waste combustion
(MWC)units and commercial and industrial solid waste incineration (CISWI) units). Under the commenter's interpretation of CAA section 129, however, EPA would have to establish emission standards 3 for dozens of different types of small incineration units with potentially minimal emissions. As discussed in the final rule (70 FR 74875, December 16, 2005), this interpretation would result in large burdens on these sources, and Congress cannot have intended that result merely by referencing an undefined “other” category of incineration units. Thus, the instructions to EPA to promulgate standards for “other categories” of solid waste incinerators inherently include the authority for EPA to reasonably delineate those “other” categories of solid waste incineration units. 3 Under section 129(a)(1), EPA is requird to establish performance standards and other requirements for specified categories of solid waste incineration units. Third, in the proposed and final rules, we also clarified that under CAA section 129(g)(1), certain types of units are not regulated by the OSWI rules. Some of these units are specifically excluded by CAA section 129(g)(1) (e.g., hazardous waste combustion, small power production facilities, cogeneration facilities burning homogenous waste). However, as stated in the final rule, we do not agree that the facilities explicitly described in CAA section 129(g)(1) are the only types of facilities that are properly excluded from the OSWI category. That is, we do not read CAA section 129(g)(1) to establish an exclusive list of excluded sources. Fourth, our interpretation of CAA section 129(a)(1) and (g)(1) is consistent with legislative history. Congress added CAA section 129 as part of the 1990 CAA Amendments. Sen. Durenberger, one of the authors, indicated that he understood the provision to “require EPA to issue new source performance standards for municipal incinerators, for medical waste incinerators and for incinerators burning commercial and industrial waste.” S. PRT 103-38, Senate Committee on Environment and Public Works, *A Legislative History of the Clean Air Act Amendments of 1990* (“ *Legislative History* ”, vol. IV, p. 7052 (statement of Sen. Durenberger during Senate floor debate, April 3, 1990)). Similarly, Sen. Baucus, another of the authors, stated that the provision “directs EPA to establish one set of standards for municipal incinerators, another set for hospital incinerators and small [municipal] units, and another set for industrial incinerators”. *Id.* at 7054 (statement of Sen. Baucus). Similarly, the Conference Report describes CAA section 129 as “a provision to control the air emissions from municipal, hospital, and other commercial and industrial incinerators.” H. Rep. 101-952 at 341, “Clean Air Act Amendments of 1990, Conference Report to Accompany S. 1630,” *reprinted in id.* , vol. I, at 1791. The incinerators identified by these statements are included in subparagraphs (B)-(D) of CAA section 129(a)(1). These statements, and the various other statements in the legislative history of this provision, make no specific reference to any of the “other categories of solid waste incineration units” that may be covered under subparagraph (E). 4 Thus, the legislative history suggests that subparagraph
(E)should not be read, by its terms, to sweep in all other types of solid waste incinerators. Such an expansive reading would not be consistent with the authors' statements. Thus, we have discretion to determine which categories of units constitute “other categories of solid waste incineration units.” 4 That Congress did not intend for all types of incinerators to be regulated under CAA section 129 is evidenced by the fact that Congress, at the time it enacted CAA section 129, was aware of other categories of solid waste incinerators, but did not discuss those units in the context of CAA section 129. For example, the Senate Committee Report listed SSI among source categories that emit carcinogenic pollutants. S. Rep. 101-228 “Clean Air Act Amendments of 1989, Report of the Senate Committee on Environment and Public Works,” at 188, Figure III-7, *reprinted in Legislative History,* vol. V, at 8528. This statement was made as part of a discussion of regulating toxics in general under the authority of CAA section 112, and not in the context of proposed CAA section 129. Similarly, a Statement by Sen. Baucus notes that title III of the 1990 Clean Air Act Amendments covers, among other things, “sewage treatment plants incinerators.” Legislative History, vol. 1, at 1028 (statements of Sen. Baucus). This statement was made as part of discussions of regulating toxics in general title III, and not specifically in the context of proposed CAA section 129. Thus, each of these statement is consistent with regulating SSI under CAA section 112, and neither indicates congressional intent that SSi be regulated under CAA section 129. Fifth, we indicated in the final OSWI rules that units are not covered under OSWI if they are regulated under other CAA section 129 or CAA section 112 standards (e.g., small and large MWC, hospital, medical and infectious waste incinerators (HMIWI), CISWI, boilers, cement kilns). The language of CAA section 129(h) makes clear the Congressional intent for CAA regulations under CAA section 129 or CAA section 112 to be mutually exclusive (70 FR 24875, December 16, 2005). We reiterated these statements in the recent CISWI final rule amendments, including, among other things, the important policy objective of avoiding duplicative regulation (70 FR 55568, 55574-55575, September 22, 2005). We maintain that we have the discretion to determine which “other categories” of solid waste incinerator units to regulate under CAA section 129. This discretion includes the determination of which categories are best regulated under CAA section 112 rather than CAA section 129. Accordingly, we determined in the final OSWI rules that sources subject to CAA section 112 standards are not OSWI units. 5 Regulation of certain types of units under CAA section 112, rather than CAA section 129, is sensible. From a policy standpoint, regulation under CAA section 112 generally offers EPA more flexibility than regulation under CAA section 129, and thus allows EPA to tailor regulatory requirements more appropriately to the level of HAP emitted by the source. In particular, under CAA section 112(d), EPA has the flexibility to regulate the full range of HAP from area (i.e., non-major) sources based on either maximum achievable control technology
(MACT)or “generally available control technologies or management practices” (GACT), whereas CAA section 129 would require MACT regardless of the level of emissions from the source. EPA has interpreted CAA section 112(d)(5) to allow consideration of costs in determining GACT. In developing MACT standards, EPA cannot consider cost in setting the floor, which is the minimum level of control required by CAA section 112(d)(3). Thus, CAA section 112(d)(5) offers EPA flexibility to develop standards for area sources that account for some of the unique characteristics of area source categories, including the economic effects of regulation on smaller sources. 5 Absence of current regulations under CAA section 112, however, is not determinative of whether a unit is subject to the final OSWI rules. Because the SSI category is composed entirely of area sources of HAP, regulating SSI under the CAA section 112 area source program offers the advantage of this flexibility. Specifically, in proposing and promulgating regulations under CAA section 112 covering SSI, EPA will have the opportunity to evaluate cost constraints, which may be particularly important in light of the relatively small size of the units at issue here. EPA may decide, based on the circumstances of the source category, to promulgate GACT, as opposed to MACT, for SSI under CAA section 112. EPA has not yet regulated SSI and thus we cannot predict at this time what the proposed standards for this category will be, but the relevant issue here is that CAA section 112 provides important flexibilities that are absent in CAA section 129. In CAA section 112, Congress specifically recognized the need for providing such flexibilities to area sources. Moreover, regulating SSI under the CAA section 112 area source program offers the additional flexibility of determining whether to require SSI units to obtain title V permits. By comparison, were EPA to regulate SSI under CAA section 129, SSI sources would be required to obtain title V permits. The cost to small sources, such as SSI units, of the title V permit program would be relatively high, so the flexibility that CAA section 112 provides with respect to title V requirements may be useful in tailoring the overall regulatory scheme. To summarize, given the statutory provisions of CAA sections 129(a),
(g)and (h), as interpreted above, and the legislative history and policy considerations noted above, we maintain that EPA has the discretion to define which categories of combustion units should be subject to regulation under CAA section 129 and hence, to which categories of solid waste combustion units the standards for “other categories of solid waste incineration units” apply. Thus, at the outset of the rulemaking process, EPA determined what universe of sources will be subject to the regulations. As explained further in the final rule, in determining the scope of OSWI, EPA collected and analyzed data to identify potential OSWI units. EPA determined that the regulations should focus on two categories of waste combustion units: IWI units and VSMWC units. SSI are a source category that is being addressed under CAA section 112. EPA acknowledges that earlier notices indicated that SSI would be considered OSWI units (62 FR 1868, January 14, 1997; 63 FR 66087, December 1, 1998). However, as we discussed in the preamble to the final OSWI rules and the response to comment document, later notices conveyed the fact we intended to regulate SSI under CAA section 112, not under CAA section 129. As early as April 2000, EPA indicated that it no longer intended to regulate SSI under CAA section 129 (Unified Agenda, 65 FR 23459-01, April 24, 2000). In addition, EPA's intent to regulate these sources under CAA section 112 was made clear when SSI were included as an additional area source category listed pursuant to CAA sections 112(c)(3) and 112(k)(3)(B)(ii) in the June 26, 2002 **Federal Register** (67 FR 43113). As discussed previously, source categories regulated by CAA section 112 should not also be subject to a CAA section 129 regulation. In previous regulatory activities, EPA was unable to identify any SSI that were major sources. (See 67 FR 6521, February 12, 2002.) Therefore, the entire SSI source category consists of area sources, and will be addressed by the CAA sections 112(c) and 112(k) regulations. In fact, EPA is under a court-ordered schedule to promulgate standards under CAA section 112(d) for those area source categories listed by EPA pursuant to CAA sections 112(c)(3) and (k)(3)(B). *Sierra Club* v. *Johnson,* No. 1:01CV01537 (D.D.C.) Order (March 31, 2006). EPA must promulgate standards for a specified number of area source categories every 6 months between December 15, 2006 and June 15, 2009. SSI is one of the listed categories, so EPA must promulgate CAA section 112 regulations for SSI no later than June 15, 2009. We believe that CAA section 112, by virtue of offering greater flexibility in allowing consideration of cost to determine the level of control required for area sources and in applying title V requirements is a reasonable vehicle for regulation of SSI, given that the SSI category is composed of area sources. We further believe that, in light of the plan to regulate SSI under CAA section 112, regulation of SSI under CAA section 129 is unnecessary and would be duplicative. Regarding the comment from a State agency that a specific large SSI in their State is poorly controlled, a State or local agency is free to develop regulations to address a state or local air quality issue if they believe action is necessary prior to EPA's development of CAA section 112 standards for SSI. 2. Other Arguments Advanced by Commenters for Not Regulating SSI Under CAA Section 129 Two commenters (EPA-HQ-OAR-2003-0156-0127, -0122) contend that EPA has no authority to regulate SSI under CAA section 129 for the definitional reasons that, in their view,
(i)sludge from POTWs is not “solid waste” within the meaning of CAA section 129(g)(6); and
(ii)SSI are not “solid waste incineration unit[s]” within the meaning of CAA section 129(g)(1). Under CAA section 129(g)(6), “solid waste” is given the same definition as the term is given under the Solid Waste Disposal Act. EPA provided a definition in the OSWI final rule (70 FR 74921, December 16, 2005) (40 CFR 60.3078): “ *Solid waste* means any garbage, refuse, sludge from a waste treatment plant * * * But does not include solid or dissolved material in domestic sewage * * *.” The commenter appears to argue that sludge from a POTW constitutes “solid or dissolved material in domestic sewage.” In the April 2000 Unified Agenda, in which EPA announced that it would regulate SSI under CAA section 112, EPA stated that POTW-generated sewage sludge is “solid waste.” (65 FR 23459, April 24, 2000). EPA noted that statement in the OSWI final rule, in the context of explaining that EPA had a long-standing policy of regulating SSI under CAA section 112, citing the April 2000 Unified Agenda (70 FR 74880, December 16, 2005). However, because EPA has determined not to regulate SSI as OSWI under CAA section 129 for other reasons, it is not necessary to evaluate the comment that POTW-generated sewage sludge is not “solid waste.” Under CAA section 129(g)(1), a “solid waste incineration unit” is defined, in relevant part, as a “unit * * * of any facility which combusts any solid waste material from commercial or industrial establishments or the general public * * *.” Some commenters argue that POTWs are municipal sources, not the sources described in the definition of “solid waste incineration unit[s]”, and therefore do not meet that definition. 6 EPA included a statement to this effect in the April, 2000 Unified Agenda (65 FR 23459, April 24, 2000). EPA cited this statement in the OSWI final rule in the context of explaining that EPA had a long-standing policy of regulating SSI under CAA section 112. As noted above, because EPA has determined not to regulate SSI under CAA section 129 for other reasons, it was not necessary for EPA to determine in the final OSWI rule whether SSI meet the definition of “solid waste incineration unit[s],” and for the same reason, it is not necessary to respond to the comments here. 6 One commenter (EPA-HQ-OAR-2003-0156-0118) disagreed and argues that SSI do meet the definition of “solid waste incinceration units.” The commenter further states that much of the waste burned in MWC and medical waste incinerators comes from municipal sources and that these incinerators are regulated under CAA section 129. The commenter further notes that in any event, some SSI are privately owned. 3. Regulatory History One commenter (EPA-HQ-OAR-2003-0156-0118) dismisses EPA's argument that since April 2000 EPA has indicated it no longer intends to regulate SSI as incinerators under CAA section 129 but intends to regulate them as area sources of HAP under CAA section 112. The commenter says that EPA's announcement of this intent in the April 2000 semiannual regulatory agenda does not alter EPA's statutory obligation under CAA section 129. As discussed above, we have decided not to regulate SSI under the OSWI regulations. These units will be regulated under a separate CAA section 112 area source regulation currently under development. This reconsideration process cures any defects in the notice-and-comment process that the commenter believes occurred in the past. 7 7 Another commenter (EPA-HQ-OAR-2003-0156-0127) responds to one of the petitioner's claims by describing the regulatory history and concludes that EPA's decision not to regulate SSI under CAA section 129 was reached after a thorough and complete evaluation of the issues that included opportunities for comment. 4. Impacts In support of EPA's decision to not regulate SSI under the OSWI rule, several commenters discuss the benefits of incineration and argue that the costs of regulation under CAA section 129 would cause adverse impacts to communities. For example, two commenters point out several benefits provided by incineration of sewage sludge. One commenter (EPA-HQ-OAR-2003-0156-0127) states that incineration of biosolids reduces waste volume, destroys pathogens, and degrades toxic organic compounds and is, therefore, an important, safe, and effective component of biosolids management practices used by POTWs. Another commenter (EPA-HQ-OAR-2003-0156-0122) adds that incineration is a viable and important management option for POTWs. The commenter states that incineration gives a municipality greater control of their operation by reducing dependency on others to accept and use biosolids, minimizes onsite and offsite odors, requires a small land area, can be operated continuously in all weather conditions, and can also be a source of energy. According to the commenters, approximately 17 percent of biosolids generated by POTWs are incinerated, and 150 municipalities in the United States use thermal oxidation to turn biosolids into an energy source to produce some or all of the energy they need to operate, provide an extra revenue source, and help reduce energy and transportation costs. One commenter provides references and attachments to demonstrate that EPA has recognized SSI as a viable option for local community management of biosolids. The other commenter attached a brochure on bioenergy from wastewater treatment. Both commenters argue that subjecting SSI to CAA section 129 rules could eliminate SSI as a viable option. Regarding impacts of regulation under CAA section 129, one commenter (EPA-HQ-OAR-2003-0156-0127) states that including SSI in OSWI would impose substantial costs to SSI operators without corresponding benefits, and the costs that would be imposed on POTW ratepayers could eliminate SSI as a safe, viable, and cost-effective biosolids management option for many communities. The regulatory burden would be substantial without corresponding health or environmental benefits. The commenter is also concerned that limits for NO <sup>X</sup> and CO might not be simultaneously achievable. The commenter concludes that cost and regulatory burden of regulating SSI under CAA section 129 would be inconsistent with past EPA declarations that incineration is a safe and acceptable biosolids disposal practice and Congressional intent that EPA provide safe management practices for use and disposal of biosolids and not dictate preferred practices and eliminate others. Another commenter (EPA-HQ-OAR-2003-0156-0122) adds that a technology-based standard imposed by CAA section 129 would require major expenditure whether or not there are any risks to human health and the environment. A few commenters provided estimates on the cost impacts that a CAA section 129 regulation would have on their SSI. As an example, one commenter (EPA-HQ-OAR-2003-0156-0112) says that incineration is the least costly method of sewage sludge disposal for Anchorage, AK. They haul two dump truck loads of SSI ash to the regional landfill weekly, a 50-mile round trip through residential neighborhoods. If SSI were eliminated because of costly regulations, hauling sludge to the landfill would require 28 more dump truck loads per week at a cost of $90,000 per month, and would increase air pollution from the dump trucks. In another comment, a commenter (EPA-HQ-OAR-2003-0156-0123) operates a POTW that serves a population of 450,000 people and has two multiple hearth SSI. The commenter's preliminary analysis of available technologies to meet CAA section 129 OSWI regulations indicate that those technologies have not been applied to multiple-hearth incinerators, are expensive, and may not provide consistent compliance. The commenter estimates that modification of their existing furnaces could cost over $18 million, and the option of replacing the existing furnaces with new fluidized bed SSI with emission controls that meet CAA section 129 emission limits would be $35 to 40 million. The commenter investigated an alternative to incineration, and estimated the cost to convert to anaerobic digestion with dewatered sludge disposal was $50 million. For this option, a landfill or land application site to dispose of the sludge would need to be found, and 25 to 30 trucks per day would be required to haul the district's sludge, which would be intrusive to neighborhoods and generate emissions. As we have discussed earlier, we have decided not to regulate SSI under the OSWI regulations. These units will be regulated under a separate CAA section 112 area source regulation currently under development. We agree with the commenters that SSI are an important option for community management of biosolids from POTW that treat sewage sludge, and have environmental benefits. As discussed in section A.1, CAA section 112 allows EPA greater flexibility than CAA section 129 to establish emission limits that serve the overall purpose of protecting public health and the environment while avoiding unreasonable economic impacts and preserving the benefits of SSI cited by the commenters. 5. Carbon Monoxide Limits for SSI One commenter (EPA-HQ-OAR-2003-0156-0129) says the nine POTWs using SSI in their State have permits under State air rules and title V that include CO and volatile organic compound
(VOC)emission limits. The commenter believes that all incinerators should have CO limits and CO continuous emissions monitoring
(CEM)requirements because CO is a good indicator of combustion efficiency. The commenter states that current Federal Clean Water Act SSI regulations in 40 CFR part 503 have a hydrocarbon concentration limit, but do not have a CO limit. They recommend that either 40 CFR part 503 be revised to include an emission limit and CEM requirement for CO, or that SSI be subject to the OSWI rules. As we have discussed fully earlier, we have decided not to regulate SSI under the OSWI regulations. These units will be regulated under a separate CAA section 112 area source regulation currently under development. We are unable to say what the final requirements for SSI will be under these regulations. We encourage all interested parties to provide comments on the CAA section 112 area source regulations for SSI once they are proposed. 6. SSI Are Already Regulated Two commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-2003-0156-0122) say EPA's decision not to regulate SSI under CAA section 129 is reasonable because SSI are already regulated by other regulations that protect public health and the environment. The commenters explain that since 1993, POTWs have been subject to a comprehensive, risk-based program for reducing potential environmental risks of sewage sludge under Clean Water Act
(CWA)sections 405 and the implementing regulations in 40 CFR part 503. For disposal of sewage sludge by incineration, 40 CFR part 503, subpart E requires: • Management practices and general requirements • Risk-based, site-specific limits for arsenic, cadmium, chromium, lead, and nickel content in biosolids incinerated • Compliance with national emission standards for hazardous air pollutants (NESHAP) for mercury and beryllium • Emission limits for total hydrocarbon
(THC)or an alternative emission limit for CO • Monitoring, recordkeeping and reporting. The commenters note that in developing 40 CFR part 503 rules, EPA also proposed a requirement for dioxin/furan, but decided such requirements were not warranted based on a risk assessment showing risks from dioxin were less than one in one million. The commenters argue that the 40 CFR part 503 standards are protective of health and the environment, and that the biennial review process in CWA section 405 provides an ample means for EPA to identify and regulate any additional concerns under 40 CFR part 503. Another commenter (EPA-HQ-OAR-2003-0156-0114) adds that the 40 CFR part 503 regulations are risked-based and were set (using conservative assumptions) to ensure protection from cancer risks at a level of 10−5 (i.e., one in ten thousand). The commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-2003-0156-0122) state that the mercury NESHAP (40 CFR part 61, subpart E) sets mercury emission limits, testing, and monitoring requirements for sources that incinerate wastewater treatment plant sludge; and the beryllium NESHAP (40 CFR part 61, subpart C) sets limits for incinerators that process beryllium containing waste. SSI constructed or modified since June 11, 1973 are subject to the SSI NSPS (40 CFR part 60, subpart O), which contain particulate matter, opacity, operating, testing and monitoring requirements. One of the commenters (EPA-HQ-OAR-2003-0156-0127) adds that SSI are subject to title V permits if they are major sources and to State and local requirements. Under CWA section 403, POTWs also implement, through local regulatory authority, pretreatment standards that reduce harmful constituents of biosolids. The commenters (EPA-HQ-OAR-2003-0156-0127 and EPA-HQ-OAR-2003-0156-0122) contend that the combination of CWA and CAA regulations address CAA section 129 pollutants that are of concern for SSI, and that further regulation under CAA section 129 is not needed. Another commenter (EPA-HQ-OAR-2003-0156-0112) stated that their city's SSI is subject to emission limits for PM, opacity, beryllium, and mercury and is required to routinely monitor NO <sup>X</sup> and CO emissions. They believe these regulations adequately protect public health and the environment and additional regulation under CAA section 129 is not warranted. We appreciate commenters' support of our decision to not regulate SSI under the CAA section 129 OSWI regulations. We also acknowledge that various CWA and CAA regulations currently apply to SSI. These other regulations provide some additional support for our decision not to regulate under CAA section 129 because these other regulations provide protection of human health and the environment for many of the pollutants regulated by CAA section 129 regulations. In addition, as discussed earlier, we are currently in the process of developing CAA section 112 regulations for HAP emitted from the SSI source category. At the moment, we are unable to say what the final requirements for SSI will be under these regulations. Therefore, we encourage all interested parties to provide comments on the CAA section 112 area source regulations for SSI once they are proposed. B. Remaining Issues in Petition for Reconsideration We denied six issues contained in the petitioner's request for reconsideration because they failed to meet the standard for reconsideration under CAA section 307(d)(7)(B). Specifically, on these issues, the petitioner has failed to show the following: That it was impracticable to raise their objections during the comment period; or that the grounds for their objections arose after the close of the comment period; and/or that their concern is of central relevance to the outcome of the rules. We have concluded that no clarifications to the underlying rules are warranted for these six remaining issues, as described below. 1. Human Crematories The petitioner objects to the exclusion of human crematories from the OSWI rules. They contend that EPA raised new arguments regarding whether human bodies burned at crematories are solid waste during promulgation of the final OSWI rules. We do not agree with the petitioner's claim. We took comment on human crematories as OSWI in the notice of proposed rulemaking published on December 9, 2004 (69 FR 71479). In the notice of proposed rulemaking, we made clear that the human body is not considered “solid waste” and human crematories are, therefore, not considered solid waste incineration units. Comments were received regarding human bodies and their juxtaposition to the definition of solid waste used in the OSWI rules. In the notice of final rulemaking (70 FR 74881, December 16, 2005), we responded to these comments, but we did not introduce a new definition of solid waste. Rather, in the final rule, we excluded human crematories from the OSWI rules for precisely the same reason as proposed. Therefore, EPA denies the request to reconsider human crematories in the OSWI rules. 2. Incinerators in Isolated Areas of Alaska The petitioner contends that the policy arguments that EPA advanced at proposal and promulgation of the OSWI rules for exempting incinerators in isolated areas of Alaska are not valid and contravene the requirements of CAA section 129. They further claim that EPA raised new arguments during promulgation of the OSWI rules that commercial/industrial incinerators that burn only municipal-type waste are not subject to the CISWI rules, and they argue that such incinerators should be regulated. An example is an incinerator that is owned by an industrial company, is located in an oil field in Alaska, and burns only household or municipal-type waste. We deny the petitioner's request for reconsideration on this issue. We proposed and took comment on the exemption of incinerators and air curtain incinerators that are used at solid waste disposal sites operating in isolated areas of Alaska, and that are classified as Class II or Class III facilities under the Alaskan State codes (which, in turn, are authorized under the Solid Waste Disposal Act) (69 FR 71482-71483, December 9, 2004). We received comments that certain incinerators are used to dispose of household- or municipal-type waste generated at oil fields and oil pipeline pumping stations and the commenters raised the issue of whether these units would be exempt from OSWI regulations. In the preamble to the final OSWI regulations, we noted that the comments did not provide specific enough information about those incinerators. In responding to the comment, we explained that only units that would otherwise be considered VSMWC or IWI could be subject to regulation as OSWIs, and that the Alaska exemption was limited to units that would, absent such exemption, be treated as VSMWC or IWI and, thereby, be subject to regulation as OSWI. Units that would not be treated as VSMWC or IWI would not be regulated as OSWI. We then noted that although the commenters provided insufficient information about the other incinerators, the information they did provide suggests that the incinerators would not qualify as VSMWC or IWI units (70 FR 74878, December 16, 2005). Petitioners have not demonstrated any basis for why this conclusion merits reconsideration and, as a result, we deny the petition for reconsideration on this point. In the final OSWI rule, we further noted that the incinerators described by the commenters, i.e., those at oil fields and oil pipeline pumping stations, may potentially be considered CISWI units depending on the waste combusted. If they incinerate municipal-type waste, then “the final CISWI rules do not currently cover commercial/industrial-owned/operated incinerators that burn only municipal-type waste” (70 FR 74878, December 16, 2005). We added, “EPA intends to address regulation of such combustion units under future revisions to the final CISWI rules.” *Id.* Petitioners object to these statements, and state that the CISWI rules do cover these types of combustors, and further state that if the CISWI rules do not cover these types of combustors, then EPA is unlawfully deferring regulation under CISWI. 8 8 As noted above, a challenge by the Natural Resources Defense Council to this rule is pending before the D.C. Circuit. We disagree with the petitioners. Although the CISWI regulations promulgated in 2000 regulate incinerators located at commercial or industrial facilities that are used to combust industrial or commercial waste as defined in the CISWI rules, the CISWI regulations do not cover units located at commercial or industrial facilities that are used to combust more than 30 percent municipal-type wastes (e.g., food scraps, packaging, disposable eating utensils, etc.) (40 CFR 60.2020(c) and 40 CFR 60.2555(c)). Our promulgation of those regulations fulfilled our obligations to promulgate CISWI regulations. Continued review of those regulations, as we intend to do, does not amount to unlawful deferral of regulation. 3. Temporary-Use Incinerators At proposal, EPA exempted temporary-use incinerators used in disaster or emergency recovery efforts from the rule. Based on public comments, EPA narrowed the exemption to limit the potential for abuse. The petitioner contends that EPA did not provide an opportunity to comment on the revised exclusion in the final rule, and that the exclusion still exceeds EPA's authority under CAA section 129. We are denying this request because we provided adequate opportunity to comment on temporary-use incinerators used in disaster recovery in the notice of proposed rulemaking for OSWI published on December 9, 2004 (69 FR 71483). Commenters pointed out a potential for abuse in the proposed exemption, which could allow incinerators to operate indefinitely in major disaster areas without having to comply with the regulations. To address these comments, as explained in the notice of final rulemaking (70 FR 74879-74880, December 16, 2005), and the response to comments document, EPA narrowed the exemption in the final OSWI regulations to temporary use incinerators in local, State and Federally proclaimed disaster areas; and, in addition, limited the amount of time an incinerator may operate in the recovery effort without seeking approval from EPA for an extension of operating time. Thus, the revisions in the final rule are a logical outgrowth of the proposed rule. Therefore, having taken comment on the issue and responded to those comments during the rulemaking, EPA denies the request to reconsider the exemption for temporary-use incinerators used in disaster recovery in the OSWI rules. 4. Incinerators That Burn National Security Documents At proposal, EPA requested comments on whether it should provide an exclusion from the OSWI rules for incinerators that burn national security documents. At promulgation, EPA established exclusions for certain incinerators burning national security documents, and the petitioner contends that they did not have an opportunity to comment on the rationale for the exclusion. We deny the petitioner's request for reconsideration of this issue. In the notice of proposed rulemaking, we took comment on providing an exclusion for “a subclass of IWI that burn national security documents,” so that such subclass would not be regulated as an OSWI (69 FR 71478, December 9, 2004). We received comments from both the public and other government agencies for and against the need for such an exclusion. On one hand, some public commenters do not believe that there was sufficient reason to provide an exclusion for these units. On the other hand, some public commenters and government agencies presented cases where sensitive documents must be destroyed quickly and thoroughly, and noted that document shredding and chemical treatment may be unavailable or infeasible. Such is the case for field military readiness training exercises, where it would be infeasible to carry hazardous chemicals and equipment needed to destroy classified documents in the field. Moreover, the final rule does not provide an outright exclusion from OSWI for incinerators that burn national security documents (70 FR 74880-74881, December 16, 2005). However, to address the comments, we provided a narrow exemption for IWI units used solely during military training field exercises to destroy national security materials integral to the field exercises. In addition, because we realized that there may be particular instances where incineration may be the only viable method of destroying national security materials, we included provisions such that individual IWI sources could apply for this exclusion as necessary. One example arises when chemical/mechanical re-pulping is the primary method of destruction of national security documents; however, a mechanical malfunction prevents use of the system for an extended period of time. In the meantime, there are ongoing national security document destruction needs at the facility that must be met. It may be that a back-up incinerator is the only available alternative to adequately destroy the documents while repairs are being made to the re-pulping system. To operate the incinerator without meeting the requirements of the OSWI rules, the facility must apply for an exclusion for the incinerator and demonstrate that no other alternatives for destruction of the materials are presently available. The exemptions added in the final rule are a logical outgrowth from the solicitation of comment in the proposed rule. Thus, EPA denies the request to reconsider incinerators used to burn national security documents in the OSWI rules. 5. Cement Kilns The petitioner states that the proposed OSWI regulations included an exclusion for cement kilns, but this exclusion was not specifically discussed in the preamble to the proposed rule. The petitioner contends that EPA argued for the first time in the final rule that EPA does not need to set standards for cement kilns under CAA section 129 because they are already regulated under CAA section 112. The petitioner disagrees with this rationale. We note that while the cement kiln exclusion was not discussed per se in the preamble to the proposed rules, the exclusion was clearly presented in the proposed regulatory language. In fact, the petitioner provided comments on the proposed exclusion for cement kilns, to which EPA provided a response in the response to comment document supporting the final OSWI regulations. As we noted in our response, cement kilns have been regulated under a CAA section 112 regulation since 1999, which covers both major and area source cement kilns. As we discussed in both the proposal (69 FR 71475 and 71477, December 9, 2004) and promulgation preambles (70 FR 74872 and 74875, December 16, 2005), as well as the response to comment document for the OSWI rules, the language of CAA section 129(h) makes clear the Congressional intent for CAA regulations under CAA section 129 or CAA section 112 to be mutually exclusive. At proposal, in addition to submitting comments specifically on cement kilns, the petitioner also submitted comments on our general rationale that EPA has the discretion to determine which categories of incineration units should be regulated under CAA section 112 instead of CAA section 129, and that the same source category cannot be regulated under both sections of the CAA. Therefore, having received comment on the issue and responding to said comments during the rulemaking, EPA denies the request to reconsider the exclusion of cement kilns from the OSWI rules. 6. Plasma Arcs and Other Incineration Technologies The petitioner contends that EPA failed to mention plasma arcs and various other combustion technologies in the preamble to the proposed OSWI rules. The petitioner notes that EPA received comments on whether various technologies should be regulated. The petitioner argues that in the final rule, EPA seeks to “broadly exclude a wide variety of incinerators from regulation as incinerators and-in some cases-from any regulations at all” and that there was no opportunity to comment on EPA's rationale for such an exclusion. As the commenter notes, we received, and responded to, comments on this issue in the preamble to the final rules (70 FR 74876-74877, December 16, 2005). It is unrealistic to expect EPA, or the commenter, to know of every available technology that is, or could be, used to function as a VSMWC or IWI. Therefore, the OSWI rules are written such that applicability is not limited to specific combustion technologies. (Although it should be noted that IWI are limited to units without energy recovery or with only waste heat recovery.) As we explained in the preamble to the final rules and in the supporting response to comment documents, if a combustion unit meets the definition of a VSMWC or IWI in the OSWI rules, and is not subject to one of the specific exclusions provided in the OSWI rules, then it would need to meet the requirements of the OSWI rules. We do not provide specific exclusions in the final OSWI rules for particular combustion technologies, 9 as the petitioner seems to imply. Instead, our response to comments simply provides some examples from real-world applications of the technologies the commenter listed and examples of how these applications would fit into the regulatory boundaries of CAA section 129 and CAA section 112 regulations. As we pointed out in the preamble to the final OSWI rules (70 FR 74877, December 16, 2005), gasification, thermal oxidizers, catalytic cracking, etc. are typically, from what we have seen, used in industrial settings. The OSWI regulations do not apply to industrial combustion units. Furthermore, without further information on the specific design, materials combusted, and function of the other combustion technologies, we are not able to definitively say, as the petitioner requests, that the various combustion units are, or are not, subject to the final OSWI rules. Regardless of the technology, if a unit meets the definition of an IWI or VSMWC unit in the OSWI rules, and is not specifically excluded, then it would be subject to the OSWI rules. 9 The petitioner also implies that EPA's determination that plasma arcs are non-combustion is factually incorrect. From our understanding of the plasma arc process, organic materials are gasified in reactions at high temperature with steam to produce a synthesis gas that can be used as a fuel while inorganic constituents are simultaneously melted into a vitrified solid product that resists leaching. Unlike combustion processes that generate heat, the plasma arc melting and gasification process absorbs heat and requires an outside heat source. See “Environmental Technology Verification Report for the Plasma Enhanced Melter”, CERF/IIEC Report #40633, May 2002 for more details on plasma arc technology. In conclusion, having taken comment on this issue and have responded to said comments during the rulemaking process, we deny the request to reconsider setting standards specific to plasma arcs and other combustion technologies in the OSWI rules. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose any new information collection burden. We are not proposing any new paperwork as part of this action. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing OSWI rules (40 CFR part 60, subparts EEEE and FFFF) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0563 and EPA ICR No. 2163.02 for subpart EEEE, and OMB control number 2060-0562 and EPA ICR No. 2164.02 for subpart FFFF. A copy of the OMB approved Information Collection Requests (ICR), may be obtained from Susan Auby, Collection Strategies Division, U.S. EPA (2822T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail at *auby.susan@epa.gov* , or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of the final rules on small entities, small entity is defined as follows: 1. A small business that is an ultimate parent entity in the regulated industry that has a gross annual revenue less than $6.0 million (this varies by industry category, ranging up to $10.5 million for North American Industrial Classification System (NAICS) code 562213 (very small municipal waste combustors)), based on Small Business Administration's size standards; 2. A small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or 3. A small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impact of this notice of final action on reconsideration on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not propose any changes to the final OSWI rules and will not impose any requirements on small entities. EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this reconsideration notice. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act
(UMRA)of 1995, Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under CAA section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, CAA section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of CAA section 205 do not apply when they are inconsistent with applicable law. Moreover, CAA section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if EPA publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, EPA must have developed, under CAA section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA's regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this notice of final action on reconsideration does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. We are not revising the final OSWI rule. Thus, this notice of final action on reconsideration is not subject to the requirements of CAA section 202 and 205 of the UMRA. In addition, EPA has determined that the notice of final action on reconsideration contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, the notice of final action on reconsideration is not subject to the requirements of CAA section 203 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on 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 notice of final action on reconsideration does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The notice of final action on reconsideration will not impose direct compliance costs on State or local governments, and will not preempt State law. Thus, Executive Order 13132 does not apply to this notice of final action on reconsideration. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This notice of final action on reconsideration does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments, 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 in Executive Order 13175. Thus, Executive Order 13175 does not apply to this notice of final action on reconsideration. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives EPA considered. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under CAA section 5-501 of the Executive Order has the potential to influence the regulation. This notice of final action on reconsideration is not subject to Executive Order 13045 because it is not economically significant, and the original OSWI rules are based on technology performance and not on health and safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use This notice of final action on reconsideration is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act As noted in the notice of reconsideration and request for public comment, CAA section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA directs EPA to provide Congress, through OMB, with explanations when EPA does not use available and applicable voluntary consensus standards. This notice of final action on reconsideration does not involve technical standards. EPA's compliance with CAA section 12(d) of the NTTAA has been addressed in the preamble of the underlying final OSWI rules (70 FR 74891, December 16, 2005). J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA submitted a report containing the final rules and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the final rules in the **Federal Register** on December 16, 2005. The final rules are not “major rules” as defined by 5 U.S.C. 804(2). The final emission guidelines were effective on February 14, 2006. The final NSPS were effective on June 16, 2006. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the U.S. prior to publication of the rule in the **Federal Register** . List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations. Dated: January 16, 2007. Stephen L. Johnson, Administrator. [FR Doc. E7-820 Filed 1-19-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Chapter 2 RIN 0750-AF56 Defense Federal Acquisition Regulation Supplement; Emergency Acquisitions (DFARS Case 2006-D036) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Interim rule with request for comments. SUMMARY: DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to provide a single reference to DoD-unique acquisition flexibilities that may be used to facilitate and expedite acquisitions of supplies and services during emergency situations. DATES: *Effective date:* January 22, 2007. *Comment date:* Comments on the interim rule should be submitted in writing to the address shown below on or before March 23, 2007, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2006-D036, using any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • E-mail: *dfars@osd.mil.* Include DFARS Case 2006-D036 in the subject line of the message. • Fax:
(703)602-0350. • Mail: Defense Acquisition Regulations System, Attn: Mr. Gary Delaney, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. ○ Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402. Comments received generally will be posted without change to *http://www.regulations.gov* , including any personal information provided. FOR FURTHER INFORMATION CONTACT: Mr. Gary Delaney,
(703)602-0131. SUPPLEMENTARY INFORMATION: A. Background Item II of Federal Acquisition Circular 2005-11, published at 71 FR 38247 on July 5, 2006, added Part 18 to the Federal Acquisition Regulation (FAR). FAR Part 18 provides a single reference to Governmentwide acquisition flexibilities that may be used to facilitate and expedite acquisitions of supplies and services during emergency situations. This interim DFARS rule adds a new Part 218 to provide a single reference to the additional acquisition flexibilities available to DoD. Consistent with the FAR, the flexibilities in DFARS Part 218 are divided into two subparts. The first subpart, entitled “Available Acquisition Flexibilities” identifies the DoD flexibilities that may be used anytime and do not require an emergency declaration. The second subpart, entitled “Emergency Acquisition Flexibilities” identifies the DoD flexibilities that may be used only after an emergency declaration or designation has been made by the appropriate official. The second subpart is further divided into three sections: Contingency operation; Defense or recovery from certain attacks; and Incidents of national significance, emergency declaration, or major disaster declaration. DoD would like to hear the views of interested parties on the sufficiency of these provisions. In particular, DoD is interested in receiving input as to whether the provisions sufficiently clarify the existing DFARS flexibilities that can be used in emergency situations or whether more detailed, comprehensive coverage is needed. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , because the rule is a compilation of existing authorities, and makes no change to DoD contracting policy. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2006-D036. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* D. Determination to Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This action is necessary to improve DoD's ability to expedite acquisitions of supplies and services during emergency situations. Comments received in response to this interim rule will be considered in the formation of the final rule. List of Subjects in 48 CFR Chapter 2 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR Chapter 2 is amended as follows: 1. The authority citation for 48 CFR Chapter 2 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. 2. 48 CFR part 218 is added to read as follows: PART 218—EMERGENCY ACQUISITIONS Subpart 218.1—Available Acquisition Flexibilities Sec. 218.170 Additional acquisition flexibilities. Subpart 218.2—Emergency Acquisition Flexibilities 218.201 Contingency operation. 218.202 Defense or recovery from certain attacks. 218.203 Incidents of national significance, emergency declaration, or major disaster declaration. Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. Subpart 218.1—Available Acquisition Flexibilities 218.170 Additional acquisition flexibilities. Additional acquisition flexibilities available to DoD are as follows:
(a)*Circumstances permitting other than full and open competition.* Use of the authority at FAR 6.302-2, Unusual and compelling urgency, may be appropriate under certain circumstances. See PGI 206.302-2.
(b)*Use of advance Military Interdepartmental Purchase Request (MIPR).* For urgent requirements, the advance MIPR may be transmitted electronically. See PGI 208.7004-3.
(c)*Use of the Governmentwide commercial purchase card.* Governmentwide commercial purchase cards do not have to be used for purchases valued at or below the micro-purchase threshold if the place of performance is entirely outside the United States. See 213.270(c)(1).
(d)*Master agreement for repair and alteration of vessels.* The contracting officer, without soliciting offers, may issue a written job order for emergency work to a contractor that has previously executed a master agreement, when delay would endanger a vessel, its cargo or stores, or when military necessity requires immediate work on a vessel. See 217.7103-4, 252.217-7010, and PGI 217.7103-4.
(e)*Spare parts breakout program.* An urgent immediate buy need not be delayed if an evaluation of the additional information cannot be completed in time to meet the required delivery date. See PGI 217.7506, paragraph 1-105(e).
(f)*Storage and disposal of toxic and hazardous materials.* Under certain emergency situations, exceptions apply with regard to the prohibition on storage or disposal of non-DoD-owned toxic or hazardous materials on DoD installations. See 223.7102(a)(3) and (7).
(g)*Authorization Acts, Appropriations Acts, and other statutory restrictions on foreign acquisition.* Acquisitions in the following categories are not subject to the restrictions of 225.7002, Restrictions on food, clothing, fabrics, specialty metals, and hand or measuring tools:
(1)Acquisitions at or below the simplified acquisition threshold;
(2)Acquisitions outside the United States in support of combat operations;
(3)Acquisitions of perishable foods by or for activities located outside the United States for personnel of those activities;
(4)Acquisitions of food, specialty metals, or hand or measuring tools in support of contingency operations, or for which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR 6.302-2;
(5)Emergency acquisitions by activities located outside the United States for personnel of those activities; and
(6)Acquisitions by vessels in foreign waters. See 225.7002-2.
(h)*Rights in technical data.* The agency head may notify a person asserting a restriction that urgent or compelling circumstances (e.g., emergency repair or overhaul) do not permit the Government to continue to respect the asserted restriction. See 227.7102-2; 227.7103-5; 227.7103-13; 227.7104; 227.7203-13; 252.227-7013; 252.227-7014; 252.227-7015; 252.227-7018; and 252.227-7037.
(i)*Tax exemption in Spain.* If copies of a contract are not available and duty-free import of equipment or materials is urgent, the contracting officer may send the Joint United States Military Group copies of the Letter of Intent or a similar document indicating the pending award. See PGI 229.7001.
(j)*Electronic submission and processing of payment requests.* Contractors do not have to submit payment requests in electronic form for awards made to foreign vendors for work performed outside the United States or for purchases to support unusual or compelling needs of the type described in FAR 6.302-2. See 232.7002(a)(2) and (5).
(k)*Mortuary services.* In an epidemic or other emergency, the contracting activity may obtain services beyond the capacity of the contractor's facilities from other sources. See 237.7003(b) and 252.237-7003. Subpart 218.2—Emergency Acquisition Flexibilities 218.201 Contingency operation.
(1)*Selection, appointment, and termination of appointment.* Contracting officer qualification requirements pertaining to a baccalaureate degree and 24 semester credit hours of business related courses do not apply to DoD employees or members of the armed forces who are in a contingency contracting force. See 201.603-2(2).
(2)*Policy for unique item identification.* Contractors will not be required to provide DoD unique item identification if the items, as determined by the head of the agency, are to be used to support a contingency operation. See 211.274-2(b).
(3)*Use of the Governmentwide commercial purchase card.* Governmentwide commercial purchase cards do not have to be used for purchases valued at or below the micro-purchase threshold if the purchase or payment is for an overseas transaction by a contracting officer in support of a contingency operation, or for training exercises in preparation for overseas contingency, humanitarian, or peacekeeping operations. See 213.270(c)(3) and (5).
(4)*Governmentwide commercial purchase card.* A contracting office supporting a contingency operation or a humanitarian or peacekeeping operation may use the Governmentwide commercial purchase card to make a purchase that exceeds the micro-purchase threshold but does not exceed the simplified acquisition threshold if certain conditions are met. See 213.301(3).
(5)*Imprest funds and third party drafts.* Imprest funds are authorized for use without further approval for overseas transactions at or below the micro-purchase threshold in support of a contingency operation or a humanitarian or peacekeeping operation. See 213.305-3(d)(iii)(A).
(6)*Standard Form
(SF)44, Purchase Order-Invoice-Voucher.* SF 44s may be used for purchases not exceeding the simplified acquisition threshold for overseas transactions by contracting officers in support of a contingency operation or a humanitarian or peacekeeping operation. See 213.306(a)(1)(B).
(7)*Undefinitized contract actions.* The head of the agency may waive certain limitations for undefinitized contract actions if the head of the agency determines that the waiver is necessary to support a contingency operation or a humanitarian or peacekeeping operation. See 217.7404-5(b).
(8)*Prohibited sources.* DoD personnel are authorized to make emergency acquisitions in direct support of U.S. or allied forces deployed in military contingency, humanitarian, or peacekeeping operations in a country or region subject to economic sanctions administered by the Department of the Treasury, Office of Foreign Assets Control. See 225.701-70.
(9)*Authorization Acts, Appropriations Acts, and other statutory restrictions on foreign acquisition.* Acquisitions in the following categories are not subject to the restrictions of 225.7002, Restrictions on food, clothing, fabrics, specialty metals, and hand or measuring tools:
(1)Acquisitions at or below the simplified acquisition threshold;
(2)Acquisitions outside the United States in support of combat operations;
(3)Acquisitions of perishable foods by or for activities located outside the United States for personnel of those activities;
(4)Acquisitions of food, specialty metals, or hand or measuring tools in support of contingency operations, or for which the use of other than competitive procedures has been approved on the basis of unusual and compelling urgency in accordance with FAR 6.302-2;
(5)Emergency acquisitions by activities located outside the United States for personnel of those activities; and
(6)Acquisitions by vessels in foreign waters. See 225.7002-2.
(10)*Electronic submission and processing of payment requests.* Contractors do not have to submit payment requests in electronic form for contracts awarded by deployed contracting officers in the course of military operations, including contingency operations or humanitarian or peacekeeping operations. See 232.7002(a)(4). 218.202 Defense or recovery from certain attacks. *Policy for unique item identification.* Contractors will not be required to provide DoD unique item identification if the items, as determined by the head of the agency, are to be used to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack. See 211.274-2(b). 218.203 Incidents of national significance, emergency declaration, or major disaster declaration.
(1)*Establishing or maintaining alternative sources.* PGI contains a sample format for Determination and Findings citing the authority of FAR 6.202(a), regarding exclusion of a particular source in order to establish or maintain an alternative source or sources. Alternate 2 of the sample format addresses having a supplier available for furnishing supplies or services in case of a national emergency. See PGI 206.202.
(2)*Electronic submission and processing of payment requests.* Contractors do not have to submit payment requests in electronic form for contracts awarded by contracting officers in the conduct of emergency operations, such as responses to natural disasters or national or civil emergencies. See 232.7002(a)(4). [FR Doc. E7-730 Filed 1-19-07; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 244, 246, and 252 RIN 0750-AF12 Defense Federal Acquisition Regulation Supplement; Notification Requirements for Critical Safety Items (DFARS Case 2004-D008) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Final rule. SUMMARY: DoD has issued a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to add policy regarding notification of potential safety issues under DoD contracts. The rule contains a contract clause requiring contractors to promptly notify the Government of any nonconformance or deficiency that could impact item safety. DATES: *Effective Date:* January 22, 2007. FOR FURTHER INFORMATION CONTACT: Mr. Mark Gomersall, Defense Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. Telephone
(703)602-0302; facsimile
(703)602-0350. Please cite DFARS Case 2004-D008. SUPPLEMENTARY INFORMATION: A. Background This final rule contains a new contract clause requiring contractors to notify the Government of any nonconformance or deficiency that could impact the safety of items acquired by or serviced for the Government. The rule is a result of Section 8143 of the Fiscal Year 2004 DoD Appropriations Act (Pub. L. 108-87), which required examination of appropriate standards and procedures to ensure timely notification to the Government and contractors regarding safety issues, including defective parts. DoD published a proposed rule at 70 FR 44077 on August 1, 2005. Thirteen respondents submitted comments on the proposed rule. A discussion of the comments is provided below. 1. *Comment:* One respondent recommended amending the clause prescription at DFARS 246.371(a)(2) and
(3)to change the term “system” to “critical safety system.” *DoD Response:* The term “system” relates to an assemblage of subsystems, assemblies, and components that comprise an end item. Adding “critical safety” to the term “system” is unnecessary and would be confusing where major or less-than-major systems are not described in terms such as “critical safety.” 2. *Comment:* Five respondents suggested requiring the use of the Government-Industry Data Exchange Program (GIDEP) as the method for notification of safety issues and for reporting all types of technical data and reliability information. *DoD Response:* The primary objective of this DFARS rule is to ensure that contractors who have delivered defective products with potential safety implications notify affected contracting offices quickly, using whatever method the contractor determines to be most expeditious. GIDEP may not be the most efficient or effective notification approach in many situations. 3. *Comment:* One respondent suggested DoD include integrated environmental safety and occupational health issues in the coverage. *DoD Response:* Environmental safety and occupational health issues were not included in the mandate that resulted in the issuance of this DFARS rule (Section 8143 of the Fiscal Year 2004 DoD Appropriations Act (Pub. L. 108-87)). 4. *Comment:* One respondent recommended that the DFARS rule include a timeframe for reaction by the Government after notification. *DoD Response:* The intent of the DFARS rule is to ensure timely notification of potential safety defects. The time required by the Government to respond to and effectively investigate each incident will depend upon the circumstances of the situation. 5. *Comment:* One respondent requested a more specific definition of “safety” in the rule. *DoD Response:* DoD has reexamined all references to safety in the DFARS rule and has determined that the term is adequately explained in its context each time it is used. 6. *Comment:* Five respondents submitted comments regarding timeframes for notification of potential safety defects. One respondent indicated that the requirement for notifying the procuring contracting officer
(PCO)and the administrative contracting officer
(ACO)within 72 hours of potential safety issues may cause over-reporting, because the contractor will have insufficient time to investigate the situation internally. The respondent requested flexibility regarding notification but did not provide a proposed timeframe for notification. Another respondent questioned whether 72 hours would be realistic but provided no recommended time frame. Other respondents recommended notification periods of 3 business days; 5 business days; and 10-30 working days. *DoD Response:* DoD concurs in lengthening the written notification period to 5 working days, but does not concur in making the initial reporting period for a potential safety defect flexible. The initial notification of 72 hours is intended to ensure that the customer is aware of potential safety issues in delivered products, has a basic understanding of the circumstances, and has a point of contact to begin addressing a mutually acceptable plan of action. Because of the potential safety implications, the initial notification is a matter of urgency. The 5-day written notification period is consistent with similar requirements in the civil sector. The Federal Aviation Administration regulations at 14 CFR 21.3(e) require reporting of aviation failures, malfunctions, or defects within 24 hours after it has been determined that the failure, malfunction, or defect has occurred. Similarly, federal regulations governing motor vehicles at 49 CFR 573.6(b) require submission of a report not more than 5 working days after a safety-related defect or noncompliance has been determined to exist. 7. *Comment:* One respondent expressed concern that the DFARS rule does not indicate what information has to be communicated or the distribution or communication method. *DoD Response:* Paragraph
(c)of the contract clause specifically describes the communication and information requirements. 8. *Comment:* One respondent stated that the definition of “replenishment part” in 246.101 is satisfactory, but the phrase “purchased after provisioning” in the definition needs to be clarified or deleted. The phrase, as currently written, can cause confusion on whether initial provisioning orders are covered. *DoD Response:* DoD has amended the rule to remove the references to provisioning. The rule applies to all repairable and consumable parts identified as critical safety items. 9. *Comment:* One respondent recommended limiting notification to truly significant threats to safety from malfunctioning systems or subsystems. *DoD Response:* Defining “truly significant threats to safety” would be difficult and could result in inconsistent application. Also, “build-to-print” manufacturers produce many critical safety items and may not have knowledge of an item's ultimate application or failure consequences. 10. *Comment:* One respondent expressed concern that a contracting officer might not know whether an item was a critical safety item and might include the notification requirement when it is unnecessary. *DoD Response:* The contract clause specifies that the notification requirement for parts applies to those items identified as critical safety items. The contracting officer will receive input from technical/requirements personnel as to which items fall into that category, and will identify those items in the contract. 11. *Comment:* One respondent was concerned that the contracting officer may not know whether a system, subsystem, assembly, or subassembly is “integral to a system,” as stated in DFARS 246.371, and may unnecessarily impose the notification requirement. *DoD Response:* The pertinent aspect of the rule is that notification be provided when there is a nonconformance or deficiency that may result in a safety impact for a system or its constituent components. A contracting officer or contractor involved with systems, subsystems, assemblies, or subassemblies will know the application of the product and whether it is integral to a system. The phrase “integral to a system” is used in FAR Part 34 in conjunction with items of supply that may be replaced during the service life of a system. 12. *Comment:* One respondent expressed confusion as to whether the notification requirement applies to repair, maintenance, logistics support, or overhaul services contracts where a system, subsystem, assembly, or subassembly is integral to a system and failure or malfunction poses a safety risk; or only to repairs that are integral to the overall system regardless of effects on subsystems, assemblies, and subassemblies. *DoD Response:* Within the context of the DFARS rule, “integral to a system” means items of supply within a system that may be replaced during the service life of a system. 13. *Comment:* One respondent suggested moving the definition of “critical safety item” from the contract clause to 246.101. *DoD Response:* The definition is appropriately placed within the contract clause, where the term is used. 14. *Comment:* One respondent stated that the notification requirement in paragraph (b)(2) of the contract clause was more expansive than the definition in 246.101, because it included the phrase “or parts.” The respondent also questioned whether the notification requirement applied to parts or software bugs that had no effect on the safety of the item as a whole. *DoD Response:* The final rule excludes the definition of “replenishment part” from 246.101, and clarifies, in 246.371(a), that the contract clause applies to the acquisition of repairable or consumable parts identified as critical safety items. Paragraph
(b)of the contract clause specifies that the notification requirement applies to all nonconformances for parts identified as critical safety items; and all nonconformances or deficiencies that may result in a safety impact for systems, or subsystems, assemblies, subassemblies, or parts integral to a system. 15. *Comment:* One respondent expressed concern that the DFARS clause permitted subcontractors to bypass the prime or higher-tier subcontractor and directly notify the PCO and the ACO. The respondent was concerned that this did not allow the prime or higher-tier subcontractor to independently evaluate the information and assess its credibility, accuracy, or impact. *DoD Response:* Paragraph (f)(2)(i) of the contract clause specifically requires the subcontractor to notify the prime or higher-tier subcontractor. Paragraph (f)(2)(ii) of the clause requires the subcontractor to also notify the ACO and the PCO if the subcontractor is aware of the ACO and the PCO for the contract. Nothing in the clause precludes the prime contractor or higher-tier subcontractor from independently evaluating the information provided by the subcontractor. 16. *Comment:* Two respondents expressed concern regarding the flow-down requirements of the contract clause. One respondent expressed concern about flow-down to commercial item subcontractors and to any subcontractors whose work does not involve critical safety items. Another respondent recommended that flow-down be limited to only the acquisition of replacement or replenishment spares. *DoD Response:* The final rule clarifies that the clause applies to contracts and subcontracts for both commercial and non-commercial items. This includes contracts and subcontracts for parts identified as critical safety items; systems and subsystems, assemblies and subassemblies integral to a system; and repair, maintenance, logistics support, or overhaul services for systems and subsystems, assemblies, subassemblies, and parts integral to a system. 17. *Comment:* One respondent stated that the Government should supply and maintain a comprehensive list of critical safety items that is accessible to contractors. *DoD Response:* The parts that the Government has designated as critical safety items will be identified in the applicable contracts. 18. *Comment:* Two respondents recommended clarification of the term “technical nonconformance”. *DoD Response:* DoD agrees that the term “technical nonconformance” could cause confusion and, therefore, has replaced this term with “nonconformance” in paragraph (b)(1) of the contract clause. 19. *Comment:* Two respondents stated that the term “safety impact” in the contract clause is not tangible or properly defined. *DoD Response:* The definition is consistent with MIL-STD-882D, Standard Practice for System Safety, Appendix A, for critical mishap severity categorization and mishap risk impact. 20. *Comment:* One respondent recommended clarification that contractor notification is required only for parts sold to the Government and does not include parts scrapped by the contractor. *DoD Response:* Paragraph
(b)of the contract clause specifies that the notification requirement applies to items acquired by or serviced for the Government under the contract. 21. *Comment:* Three respondents requested clarification of the term “credible information” as used in the contract clause. *DoD Response:* DoD has added a definition of “credible information” to the contract clause, based upon a recommended definition provided by one of the respondents. 22. *Comment:* One respondent recommended that, instead of all critical safety items being subject to the reporting requirements of the contract clause, the reporting be limited to those situations resulting in safety impacts. *DoD Response:* A significant percentage of critical safety items purchased by DoD are provided by small businesses that may not know the end item application of the components they are supplying, nor the failure modes and effects of the items. Many of these small businesses may be unaware of whether a nonconformance would have a safety impact. Therefore, the recommended change was not adopted. 23. *Comment:* One respondent stated that the definition of “critical safety item” does not indicate the level of damage sufficient to constitute “serious” damage, and that it is unclear what level of risk of personal injury would be “unacceptable.” The respondent recommended that the language established for “safety impact” be used in the definition of “critical safety item” to preclude ambiguity. *DoD Response:* DoD has revised the definition of “critical safety item” in the contract clause to replace the potentially ambiguous language with a reference to the definition of “safety impact” within the contract clause. 24. *Comment:* Two respondents expressed concern with the definition of “safety impact” and associated dollar thresholds for property damage. One respondent stated that “safety impact” should focus on risk of injury or loss of life instead of property damage. The respondent suggested deleting “loss of a weapon system; or property damage exceeding $200,000” from the definition of “safety impact” or, alternatively, replacing “$200,000” with “$1,000,000” to reflect realistic thresholds. Another respondent recommended that the definition of “safety impact” be revised for consistency with the MIL-STD-882 Risk Hazard Matrix, rather than the arbitrary property damage value of $200,000. *DoD Response:* DoD does not agree that notification requirements should apply only to risk of injury or loss of life situations. However, the monetary value specified in the rule has been revised to $1,000,000 for consistency with MIL-STD-882D, Appendix A, Table A-I. 25. *Comment:* One respondent stated that the assertion in paragraph
(e)of the contract clause, that notification of safety issues will neither be an admission of responsibility nor a release of liability, would not adequately protect contractors from potential law suits. The respondent suggested that the clause include language that would reimburse the contractor for liabilities and expenses incidental to such liabilities to third persons not compensated by insurance or otherwise without regard to and as an exception to any limitation of cost or the limitation of funds clause in the contract. *DoD Response:* DoD cannot establish a clause that grants Government indemnification for liabilities to third parties arising from compliance with the clause. Absent express statutory authority, the Government may not enter into an agreement to hold harmless or indemnify where the amount of the Government's liability is indefinite, indeterminable, or potentially unlimited. 26. *Comment:* One respondent stated that the rule does not adequately define “critical safety items” and suggests that the probability of failure be incorporated in the definition. *DoD Response:* The definition of “critical safety item” is based on public law and existing DoD policies. Further, probability of failure assumes a part will be manufactured as specified. The DFARS rule addresses notification when a delivered item is nonconforming or defective; thus, probability of failure may not be meaningful. 27. *Comment:* One respondent recommended that the requirement for notification of safety defects be limited to aviation products. *DoD Response:* DoD does not agree that the notification requirement should be limited to the aviation community. While the initial focus of critical safety items resulted from Section 802 of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108-136), Section 8143 of the Fiscal Year 2004 DoD Appropriations Act (Public Law 108-87) required DoD to examine appropriate standards and procedures for timely notification regarding safety issues, including defective parts. It is essential that the Government be notified of all potential safety defects, regardless of product line. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , because the rule applies only in situations where nonconformances or deficiencies could impact item safety. The occurrence of such situations is expected to be limited. C. Paperwork Reduction Act This final rule contains a new information collection requirement. The Office of Management and Budget has approved the information collection for use through December 31, 2009, under Control Number 0704-0441. List of Subjects in 48 CFR Parts 212, 244, 246, and 252 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 212, 244, 246, and 252 are amended as follows: 1. The authority citation for 48 CFR parts 212, 244, 246, and 252 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. PART 212—ACQUISITION OF COMMERCIAL ITEMS 2. Section 212.301 is amended by adding paragraph (f)(xii) to read as follows: 212.301 Solicitation provisions and contract clauses for the acquisition of commercial items.
(f)* * *
(xii)Use the clause at 252.246-7003, Notification of Potential Safety Issues, as prescribed in 246.371. PART 244—SUBCONTRACTING POLICIES AND PROCEDURES 3. Section 244.403 is revised to read as follows: 244.403 Contract clause. Use the clause at 252.244-7000, Subcontracts for Commercial Items and Commercial Components (DoD Contracts), in solicitations and contracts for supplies or services other than commercial items, that contain any of the following clauses:
(1)252.225-7014 Preference for Domestic Specialty Metals, Alternate I.
(2)252.246-7003 Notification of Potential Safety Issues.
(3)252.247-7023 Transportation of Supplies by Sea.
(4)252.247-7024 Notification of Transportation of Supplies by Sea. PART 246—QUALITY ASSURANCE 4. Section 246.371 is added to read as follows: 246.371 Notification of potential safety issues.
(a)Use the clause at 252.246-7003, Notification of Potential Safety Issues, in solicitations and contracts for the acquisition of—
(1)Repairable or consumable parts identified as critical safety items;
(2)Systems and subsystems, assemblies, and subassemblies integral to a system; or
(3)Repair, maintenance, logistics support, or overhaul services for systems and subsystems, assemblies, subassemblies, and parts integral to a system.
(b)Follow the procedures at PGI 246.371 for the handling of notifications received under the clause at 252.246-7003. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 5. Section 252.244-7000 is revised to read as follows: 252.244-7000 Subcontracts for Commercial Items and Commercial Components (DoD Contracts). As prescribed in 244.403, use the following clause: Subcontracts for Commercial Items and Commercial Components (DOD Contracts) (JAN 2007) In addition to the clauses listed in paragraph
(c)of the Subcontracts for Commercial Items clause of this contract (Federal Acquisition Regulation 52.244-6), the Contractor shall include the terms of the following clauses, if applicable, in subcontracts for commercial items or commercial components, awarded at any tier under this contract:
(a)252.225-7014 Preference for Domestic Specialty Metals, Alternate I (10 U.S.C. 2241 note).
(b)252.246-7003 Notification of Potential Safety Issues.
(c)252.247-7023 Transportation of Supplies by Sea (10 U.S.C. 2631).
(d)252.247-7024 Notification of Transportation of Supplies by Sea (10 U.S.C. 2631). (End of clause) 6. Section 252.246-7003 is added to read as follows: 252.246-7003 Notification of Potential Safety Issues. As prescribed in 246.371(a), use the following clause: Notification of Potential Safety Issues (JAN 2007)
(a)*Definitions.* As used in this clause— *Credible information* means information that, considering its source and the surrounding circumstances, supports a reasonable belief that an event has occurred or will occur. *Critical safety item* means a part, subassembly, assembly, subsystem, installation equipment, or support equipment for a system that contains a characteristic, any failure, malfunction, or absence of which could have a safety impact. *Safety impact* means the occurrence of death, permanent total disability, permanent partial disability, or injury or occupational illness requiring hospitalization; loss of a weapon system; or property damage exceeding $1,000,000. *Subcontractor* means any supplier, distributor, vendor, or firm that furnishes supplies or services to or for the Contractor or another subcontractor under this contract.
(b)The Contractor shall provide notification, in accordance with paragraph
(c)of this clause, of—
(1)All nonconformances for parts identified as critical safety items acquired by the Government under this contract; and
(2)All nonconformances or deficiencies that may result in a safety impact for systems, or subsystems, assemblies, subassemblies, or parts integral to a system, acquired by or serviced for the Government under this contract.
(c)The Contractor—
(1)Shall notify the Administrative Contracting Officer
(ACO)and the Procuring Contracting Officer
(PCO)as soon as practicable, but not later than 72 hours, after discovering or acquiring credible information concerning nonconformances and deficiencies described in paragraph
(b)of this clause; and
(2)Shall provide a written notification to the ACO and the PCO within 5 working days that includes—
(i)A summary of the defect or nonconformance;
(ii)A chronology of pertinent events;
(iii)The identification of potentially affected items to the extent known at the time of notification;
(iv)A point of contact to coordinate problem analysis and resolution; and
(v)Any other relevant information.
(d)The Contractor—
(1)Is responsible for the notification of potential safety issues occurring with regard to an item furnished by any subcontractor; and
(2)Shall facilitate direct communication between the Government and the subcontractor as necessary.
(e)Notification of safety issues under this clause shall be considered neither an admission of responsibility nor a release of liability for the defect or its consequences. This clause does not affect any right of the Government or the Contractor established elsewhere in this contract. (f)(1) The Contractor shall include the substance of this clause, including this paragraph (f), in subcontracts for—
(i)Parts identified as critical safety items;
(ii)Systems and subsystems, assemblies, and subassemblies integral to a system; or
(iii)Repair, maintenance, logistics support, or overhaul services for systems and subsystems, assemblies, subassemblies, and parts integral to a system.
(2)For those subcontracts described in paragraph (f)(1) of this clause, the Contractor shall require the subcontractor to provide the notification required by paragraph
(c)of this clause to—
(i)The Contractor or higher-tier subcontractor; and
(ii)The ACO and the PCO, if the subcontractor is aware of the ACO and the PCO for the contract. (End of clause) [FR Doc. E7-733 Filed 1-19-07; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 225 and 252 RIN 0750-AF54 Defense Federal Acquisition Regulation Supplement; Berry Amendment Restrictions—Clothing Materials and Components Covered (DFARS Case 2006-D031) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Interim rule with request for comments. SUMMARY: DoD has issued an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement Section 833(b) of the National Defense Authorization Act for Fiscal Year 2006. Section 833(b) expands the foreign source restrictions applicable to the acquisition of clothing to also include clothing materials and components, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. DATES: *Effective date:* January 22, 2007. *Comment date:* Comments on the interim rule should be submitted in writing to the address shown below on or before March 23, 2007, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2006-D031, using any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • E-mail: *dfars@osd.mil.* Include DFARS Case 2006-D031 in the subject line of the message. • Fax:
(703)602-0350. • Mail: Defense Acquisition Regulations System, Attn: Ms. Amy Williams, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. • Hand Delivery/Courier: Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402. Comments received generally will be posted without change to *http://www.regulations.gov* , including any personal information provided. FOR FURTHER INFORMATION CONTACT: Ms. Amy Williams,
(703)602-0328. SUPPLEMENTARY INFORMATION: A. Background This interim rule amends DFARS 225.7002-1 and the corresponding contract clause at 252.225-7012 to implement Section 833(b) of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). Section 833(b) amended 10 U.S.C. 2533a (the Berry Amendment) to expand the foreign source restrictions applicable to the acquisition of clothing to also include clothing materials and components, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. The rule also includes examples of items subject to the restrictions. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows: The objective of the rule is to provide for the acquisition of clothing, and clothing materials and components, from domestic sources in accordance with statutory requirements. The legal basis for the rule is 10 U.S.C. 2533a (the Berry Amendment), as amended by Section 833(b) of the National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-163). The rule will apply to entities interested in receiving DoD contracts or subcontracts for the acquisition of clothing. Based on data generated from the DD Form 350, Individual Contracting Action Report, DoD awarded 6,072 contract actions relating to the acquisition of clothing items during fiscal year 2005. These actions had a total dollar value of $1.868 billion and involved 1,110 contractors. Of these actions, 4,087 totaling $.81 billion involved 906 contractors that were small business concerns. This rule may have a positive impact on small businesses that manufacture clothing materials and components, by reducing foreign competition. However, the rule could have a negative impact on small businesses that have been using foreign components in the manufacture of clothing products. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2006-D031. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* D. Determination To Issue an Interim Rule A determination has been made under the authority of the Secretary of Defense that urgent and compelling reasons exist to publish an interim rule prior to affording the public an opportunity to comment. This interim rule implements Section 833(b) of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163). Section 833(b) expands the foreign source restrictions applicable to the acquisition of clothing, to also include clothing materials and components, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. Section 833(b) became effective upon enactment on January 6, 2006. Comments received in response to this interim rule will be considered in the formation of the final rule. List of Subjects in 48 CFR Parts 225 and 252 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, 48 CFR parts 225 and 252 are amended as follows: 1. The authority citation for 48 CFR parts 225 and 252 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. PART 225—FOREIGN ACQUISITION 2. Section 225.7002-1 is amended by revising paragraph (a)(2) to read as follows: 225.7002-1 Restrictions.
(a)* * *
(2)Clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. Clothing includes items such as outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges, and insignia. For additional guidance and examples, see PGI 225.7002-1(a)(2). PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.212-7001 [Amended] 3. Section 252.212-7001 is amended as follows: a. By revising the clause date to read “(JAN 2007)”; and b. In paragraph (b)(5) by removing “JUN 2004” and adding in its place “JAN 2007”. 4. Section 252.225-7012 is amended by revising the clause date and paragraph (b)(2) to read as follows: 252.225-7012 Preference for Certain Domestic Commodities. Preference for Certain Domestic Commodities (JAN 2007)
(b)* * *
(2)Clothing and the materials and components thereof, other than sensors, electronics, or other items added to, and not normally associated with, clothing and the materials and components thereof. Clothing includes items such as outerwear, headwear, underwear, nightwear, footwear, hosiery, handwear, belts, badges, and insignia. [FR Doc. E7-731 Filed 1-19-07; 8:45 am] BILLING CODE 5001-08-P 71 13 Monday, January 22, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 985 [Docket Nos. AMS-FV-06-0188; FV07-985-1 PR] Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Salable Quantities and Allotment Percentages for the 2007-2008 Marketing Year AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule. SUMMARY: This rule would establish the quantity of spearmint oil produced in the Far West, by class that handlers may purchase from, or handle for, producers during the 2007-2008 marketing year, which begins on June 1, 2007. This rule invites comments on the establishment of salable quantities and allotment percentages for Class 1 (Scotch) spearmint oil of 886,667 pounds and 45 percent, respectively, and for Class 3 (Native) spearmint oil of 1,062,336 pounds and 48 percent, respectively. The Spearmint Oil Administrative Committee (Committee), the agency responsible for local administration of the marketing order for spearmint oil produced in the Far West, recommended these limitations for the purpose of avoiding extreme fluctuations in supplies and prices to help maintain stability in the spearmint oil market. DATES: Comments must be received by February 21, 2007. ADDRESSES: Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:
(202)720-8938; E-mail: *moab.docketclerk@usda.gov* ; or Internet: *http://www.regulations.gov.* All comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Susan M. Hiller, Marketing Specialist and Gary D. Olson, Regional Manager, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(503)326-2724; Fax:
(503)326-7440; or E-mail: *Susan.Hiller@usda.gov* or *GaryD.Olson@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” This order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture
(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This proposed rule would establish the quantity of spearmint oil produced in the Far West, by class, which may be purchased from or handled for producers by handlers during the 2007-2008 marketing year, which begins on June 1, 2007. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. Pursuant to authority in §§ 985.50, 985.51, and 985.52 of the order, the Committee, with all eight members present, met on October 4, 2006, and recommended salable quantities and allotment percentages for both classes of oil for the 2007-2008 marketing year. The Committee unanimously recommended the establishment of a salable quantity and allotment percentage for Scotch spearmint oil of 886,667 pounds and 45 percent, respectively. For Native spearmint oil, the Committee unanimously recommended the establishment of a salable quantity and allotment percentage of 1,062,336 pounds and 48 percent, respectively. This rule would limit the amount of spearmint oil that handlers may purchase from, or handle for, producers during the 2007-2008 marketing year, which begins on June 1, 2007. Salable quantities and allotment percentages have been placed into effect each season since the order's inception in 1980. The U.S. production of Scotch spearmint oil is concentrated in the Far West, which includes Washington, Idaho, and Oregon and a portion of Nevada and Utah. Scotch spearmint oil is also produced in the Midwest states of Indiana, Michigan, and Wisconsin, as well as in the States of Montana, South Dakota, North Dakota, and Minnesota. The production area covered by the marketing order currently accounts for approximately 71 percent of the annual U.S. sales of Scotch spearmint oil. When the order became effective in 1980, the Far West had 72 percent of the world's sales of Scotch spearmint oil. While the Far West is still the leading producer of Scotch spearmint oil, its share of world sales is now estimated to be about 43 percent. This loss in world sales for the Far West region is directly attributed to the increase in global production. Other factors that have played a significant role include the overall quality of the imported oil and technological advances that allow for more blending of lower quality oils. Such factors have provided the Committee with challenges in accurately predicting trade demand for Scotch oil. This, in turn, has made it difficult to balance available supplies with demand and to achieve the Committee's overall goal of stabilizing producer and market prices. The marketing order has continued to contribute to price and general market stabilization for Far West producers. The Committee, as well as spearmint oil producers and handlers attending the October 4, 2006, meeting, estimated that the 2006-2007 producer price of Scotch oil would be $13.00 to $14.00 per pound. However, there is very little forward contracting being done at the present time. This producer price is approaching the cost of production for most producers as indicated in a study from the Washington State University Cooperative Extension Service (WSU), which estimates production costs to be between $13.50 and $15.00 per pound. However, this study was completed in 2001 and fuel costs alone have doubled in price. This low level of producer returns has caused an overall reduction in acreage. When the order became effective in 1980, the Far West region had 9,702 acres of Scotch spearmint. The Committee estimates that the 2005-2006 acreage of Scotch spearmint was about 6,132 acres. Based on the reduced Scotch spearmint acreage, the Committee estimates that production for the 2005-2006 marketing season will be about 764,420 pounds. The Committee recommended the 2007-2008 Scotch spearmint oil salable quantity (886,667 pounds) and allotment percentage (45 percent) utilizing sales estimates for 2007-2008 Scotch spearmint oil as provided by several of the industry's handlers, as well as historical and current Scotch spearmint oil sales levels. The Committee is estimating that about 875,000 pounds of Scotch spearmint oil, on average, may be sold during the 2007-2008 marketing year. When considered in conjunction with the estimated carry-in of 18,029 pounds of oil on June 1, 2007, the recommended salable quantity of 886,667 pounds results in a total available supply of Scotch spearmint oil next year of about 904,696 pounds. The recommendation for the 2007-2008 Scotch spearmint oil volume regulation is consistent with the Committee's stated intent of keeping adequate supplies available at all times, while attempting to stabilize prices at a level adequate to sustain the producers. Furthermore, the recommendation takes into consideration the industry's desire to compete with less expensive oil produced outside the regulated area. Although Native spearmint oil producers are facing market conditions similar to those affecting the Scotch spearmint oil market, the market share is quite different. Over 90 percent of the U.S. production of Native spearmint is produced within the Far West production area. Also, most of the world's supply of Native spearmint is produced in the United States. The supply and demand characteristics of the current Native spearmint oil market, combined with the stabilizing impact of the marketing order, have kept the price relatively steady. The average price for the five year period ending in 2005 is $9.38, which is $0.34 lower than the average price for the ten year period (1996-2005) of $9.72. The Committee considers these levels too low for the majority of producers to maintain viability. The WSU study referenced earlier indicates that the cost of producing Native spearmint oil ranges from $10.26 to $10.92 per pound. Similar to Scotch, the low level of producer returns has also caused an overall reduction in Native spearmint acreage. When the order became effective in 1980, the Far West region had 12,153 acres of Native spearmint. The Committee estimates that the 2005-2006 acreage of Native spearmint was about 7,528 acres. Based on the reduced Native spearmint acreage, the Committee estimates that production for the 2005-2006 marketing season will be about 1,004,900 pounds. The Committee recommended the 2007-2008 Native spearmint oil salable quantity (1,062,336 pounds) and allotment percentage (48 percent) utilizing sales estimates for 2007-2008 Native oil as provided by several of the industry's handlers, as well as historical and current Native spearmint oil sales levels. The Committee is estimating that about 1,141,667 pounds of Native spearmint oil, on average, may be sold during the 2007-2008 marketing year. When considered in conjunction with the estimated carry-in of 119,057 pounds of oil on June 1, 2007, the recommended salable quantity of 1,062,336 pounds results in a total available supply of Native spearmint oil next year of about 1,181,393 pounds. The Committee's method of calculating the Native spearmint oil salable quantity and allotment percentage continues to primarily utilize information on price and available supply as they are affected by the estimated trade demand. The Committee's stated intent is to make adequate supplies available to meet market needs and improve producer prices. The Committee believes that the order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year to year. According to the National Agricultural Statistics Service, for example, the average price paid for both classes of spearmint oil ranged from $4.00 per pound to $11.10 per pound during the period between 1968 and 1980. Prices since the order's inception, the period from 1980 to 2005, have generally stabilized at an average price of $9.84 per pound for Native spearmint oil and $12.72 per pound for Scotch spearmint oil. The Committee based its recommendation for the proposed salable quantity and allotment percentage for each class of spearmint oil for the 2007-2008 marketing year on the information discussed above, as well as the data outlined below.
(1)Class 1 (Scotch) Spearmint Oil
(A)Estimated carry-in on June 1, 2007—18,029 pounds. This figure is the difference between the revised 2006-2007 marketing year total available supply of 818,029 pounds and the estimated 2006-2007 marketing year trade demand of 800,000 pounds.
(B)Estimated trade demand for the 2007-2008 marketing year—875,000 pounds. This figure is based on input from producers at five Scotch spearmint oil production area meetings held in September 2006, as well as estimates provided by handlers and other meeting participants at the October 4, 2006, meeting. The average estimated trade demand provided at the five production area meetings was 880,000 pounds, whereas the estimated handler trade demand ranged from 850,000 to 900,000 pounds. The average of sales over the last five years was 754,269 pounds.
(C)Salable quantity required from the 2007-2008 marketing year production—856,971 pounds. This figure is the difference between the estimated 2007-2008 marketing year trade demand (875,000 pounds) and the estimated carry-in on June 1, 2007 (18,029 pounds).
(D)Total estimated allotment base for the 2007-2008 marketing year—1,970,370 pounds. This figure represents a one percent increase over the revised 2006-2007 total allotment base. This figure is generally revised each year on June 1 due to producer base being lost due to the bona fide effort production provisions of § 985.53(e). The revision is usually minimal.
(E)Computed allotment percentage—43.5 percent. This percentage is computed by dividing the required salable quantity by the total estimated allotment base.
(F)Recommended allotment percentage—45 percent. This recommendation is based on the Committee's determination that the computed 43.5 percent would not adequately supply the potential 2007-2008 market.
(G)The Committee's recommended salable quantity—886,667 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.
(H)Estimated available supply for the 2007-2008 marketing year—904,696 pounds. This figure is the sum of the 2007-2008 recommended salable quantity (886,667 pounds) and the estimated carry-in on June 1, 2007 (18,029 pounds).
(2)Class 3 (Native) Spearmint Oil
(A)Estimated carry-in on June 1, 2007—119,057 pounds. The Committee's estimated carry-in reflects anticipated increases to the salable quantity and allotment percentage that may be needed to meet demand in 2006-2007.
(B)Estimated trade demand for the 2007-2008 marketing year—1,141,667 pounds. This figure is based on input from producers at the six Native spearmint oil production area meetings held in September 2006, as well as estimates provided by handlers and other meeting participants at the October 4, 2006, meeting. The average estimated trade demand provided at the six production area meetings was 1,141,667 pounds, whereas the average handler estimate was 1,183,000 pounds.
(C)Salable quantity required from the 2007-2008 marketing year production—1,022,610 pounds. This figure is the difference between the estimated 2007-2008 marketing year trade demand (1,141,667 pounds) and the estimated carry-in on June 1, 2007 (119,057 pounds).
(D)Total estimated allotment base for the 2007-2008 marketing year—2,213,200 pounds. This figure represents a one percent increase over the revised 2006-2007 total allotment base. This figure is generally revised each year on June 1 due to producer base being lost due to the bona fide effort production provisions of § 985.53(e). The revision is usually minimal.
(E)Computed allotment percentage—46.2 percent. This percentage is computed by dividing the required salable quantity by the total estimated allotment base.
(F)Recommended allotment percentage—48 percent. This is the Committee's recommendation based on the computed allotment percentage, the average of the computed allotment percentage figures from the six production area meetings (46.4 percent), and input from producers and handlers at the October 4, 2006, meeting.
(G)The Committee's recommended salable quantity—1,062,336 pounds. This figure is the product of the recommended allotment percentage and the total estimated allotment base.
(H)Estimated available supply for the 2007-2008 marketing year—1,181,393 pounds. This figure is the sum of the 2007-2008 recommended salable quantity (1,062,336 pounds) and the estimated carry-in on June 1, 2007 (119,057 pounds). The salable quantity is the total quantity of each class of spearmint oil, which handlers may purchase from, or handle on behalf of producers during a marketing year. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's allotment base for the applicable class of spearmint oil. The Committee's recommended Scotch and Native spearmint oil salable quantities and allotment percentages of 886,667 pounds and 45 percent, and 1,062,336 pounds and 48 percent, respectively, are based on the Committee's goal of maintaining market stability by avoiding extreme fluctuations in supplies and prices, and the anticipated supply and trade demand during the 2007-2008 marketing year. The proposed salable quantities are not expected to cause a shortage of spearmint oil supplies. Any unanticipated or additional market demand for spearmint oil, which may develop during the marketing year, can be satisfied by an increase in the salable quantities. Both Scotch and Native spearmint oil producers who produce more than their annual allotments during the 2007-2008 marketing year may transfer such excess spearmint oil to a producer with spearmint oil production less than his or her annual allotment or put it into the reserve pool until November 1, 2007. This proposed regulation, if adopted, would be similar to regulations issued in prior seasons. Costs to producers and handlers resulting from this rule are expected to be offset by the benefits derived from a stable market and improved returns. In conjunction with the issuance of this proposed rule, USDA has reviewed the Committee's marketing policy statement for the 2007-2008 marketing year. The Committee's marketing policy statement, a requirement whenever the Committee recommends volume regulations, fully meets the intent of § 985.50 of the order. During its discussion of potential 2007-2008 salable quantities and allotment percentages, the Committee considered:
(1)The estimated quantity of salable oil of each class held by producers and handlers;
(2)the estimated demand for each class of oil;
(3)the prospective production of each class of oil;
(4)the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year;
(5)the quantity of reserve oil, by class, in storage;
(6)producer prices of oil, including prices for each class of oil; and
(7)general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with the USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed. The establishment of these salable quantities and allotment percentages would allow for anticipated market needs. In determining anticipated market needs, consideration by the Committee was given to historical sales, as well as changes and trends in production and demand. This rule also provides producers with information on the amount of spearmint oil that should be produced for the 2007-2008 season in order to meet anticipated market demand. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are eight spearmint oil handlers subject to regulation under the order, and approximately 58 producers of Scotch spearmint oil and approximately 90 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Based on the SBA's definition of small entities, the Committee estimates that 2 of the 8 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 19 of the 58 Scotch spearmint oil producers and 21 of the 90 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities. The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. A typical spearmint oil-producing operation has enough acreage for rotation such that the total acreage required to produce the crop is about one-third spearmint and two-thirds rotational crops. Thus, the typical spearmint oil producer has to have considerably more acreage than is planted to spearmint during any given season. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil-producing farms fall into the SBA category of large businesses. Small spearmint oil producers generally are not as extensively diversified as larger ones and as such are more at risk from market fluctuations. Such small producers generally need to market their entire annual allotment and do not have the luxury of having other crops to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because income from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation. This proposed rule would establish the quantity of spearmint oil produced in the Far West, by class, that handlers may purchase from, or handle for, producers during the 2007-2008 marketing year. The Committee recommended this rule to help maintain stability in the spearmint oil market by avoiding extreme fluctuations in supplies and prices. Establishing quantities to be purchased or handled during the marketing year through volume regulations allows producers to plan their spearmint planting and harvesting to meet expected market needs. The provisions of §§ 985.50, 985.51, and 985.52 of the order authorize this rule. Instability in the spearmint oil sub-sector of the mint industry is much more likely to originate on the supply side than the demand side. Fluctuations in yield and acreage planted from season-to-season tend to be larger than fluctuations in the amount purchased by buyers. Demand for spearmint oil tends to be relatively stable from year-to-year. The demand for spearmint oil is expected to grow slowly for the foreseeable future because the demand for consumer products that use spearmint oil will likely expand slowly, in line with population growth. Demand for spearmint oil at the farm level is derived from retail demand for spearmint-flavored products such as chewing gum, toothpaste, and mouthwash. The manufacturers of these products are by far the largest users of mint oil. However, spearmint flavoring is generally a very minor component of the products in which it is used, so changes in the raw product price have no impact on retail prices for those goods. Spearmint oil production tends to be cyclical. Years of large production, with demand remaining reasonably stable, have led to periods in which large producer stocks of unsold spearmint oil have depressed producer prices for a number of years. Shortages and high prices may follow in subsequent years, as producers respond to price signals by cutting back production. The significant variability is illustrated by the fact that the coefficient of variation (a standard measure of variability; “CV”) of Far West spearmint oil production from 1980 through 2003 was about 0.24. The CV for spearmint oil grower prices was about 0.14, well below the CV for production. This provides an indication of the price stabilizing impact of the marketing order. Production in the shortest marketing year was about 49 percent of the 26-year average (1.842 million pounds from 1980 through 2005) and the largest crop was approximately 167 percent of the 26-year average. A key consequence is that in years of oversupply and low prices the season average producer price of spearmint oil is below the average cost of production (as measured by the Washington State University Cooperative Extension Service.) The wide fluctuations in supply and prices that result from this cycle, which was even more pronounced before the creation of the marketing order, can create liquidity problems for some producers. The marketing order was designed to reduce the price impacts of the cyclical swings in production. However, producers have been less able to weather these cycles in recent years because of the decline in prices of many of the alternative crops they grow. As noted earlier, almost all spearmint oil producers diversify by growing other crops. In an effort to stabilize prices, the spearmint oil industry uses the volume control mechanisms authorized under the order. This authority allows the Committee to recommend a salable quantity and allotment percentage for each class of oil for the upcoming marketing year. The salable quantity for each class of oil is the total volume of oil that producers may sell during the marketing year. The allotment percentage for each class of spearmint oil is derived by dividing the salable quantity by the total allotment base. Each producer is then issued an annual allotment certificate, in pounds, for the applicable class of oil, which is calculated by multiplying the producer's allotment base by the applicable allotment percentage. This is the amount of oil for the applicable class that the producer can sell. By November 1 of each year, the Committee identifies any oil that individual producers have produced above the volume specified on their annual allotment certificates. This excess oil is placed in a reserve pool administered by the Committee. There is a reserve pool for each class of oil that may not be sold during the current marketing year unless USDA approves a Committee recommendation to make a portion of the pool available. However, limited quantities of reserve oil are typically sold to fill deficiencies. A deficiency occurs when on-farm production is less than a producer's allotment. In that case, a producer's own reserve oil can be sold to fill that deficiency. Excess production (higher than the producer's allotment) can be sold to fill other producers' deficiencies. All of this needs to take place by November 1. In any given year, the total available supply of spearmint oil is composed of current production plus carry-over stocks from the previous crop. The Committee seeks to maintain market stability by balancing supply and demand, and to close the marketing year with an appropriate level of carryout. If the industry has production in excess of the salable quantity, then the reserve pool absorbs the surplus quantity of spearmint oil, which goes unsold during that year, unless the oil is needed for unanticipated sales. Under its provisions, the order may attempt to stabilize prices by
(1)Limiting supply and establishing reserves in high production years, thus minimizing the price-depressing effect that excess producer stocks have on unsold spearmint oil, and
(2)ensuring that stocks are available in short supply years when prices would otherwise increase dramatically. The reserve pool stocks grown in large production years are drawn down in short crop years. An econometric model was used to assess the impact that volume control has on the prices producers receive for their commodity. Without volume control, spearmint oil markets would likely be over-supplied, resulting in low producer prices and a large volume of oil stored and carried over to the next crop year. The model estimates how much lower producer prices would likely be in the absence of volume controls. The Committee estimated the trade demand for the 2007-2008 marketing year for both classes of oil at 2,016,667 pounds, and that the expected combined carry-in will be 137,086 pounds. This results in a combined salable quantity needed of 1,879,581 pounds. Therefore, with volume control, sales by producers for the 2007-2008 marketing year would be limited to 1,949,003 pounds (the recommended salable quantity for both classes of spearmint oil). The recommended salable percentages, upon which 2007-2008 producer allotments are based, are 45 percent for Scotch and 48 percent for Native. Without volume controls, producers would not be limited to these allotment levels, and could produce and sell additional spearmint. The econometric model estimated a $1.40 decline in the season average producer price per pound (from both classes of spearmint oil) resulting from the higher quantities that would be produced and marketed without volume control. The Far West producer price for both classes of spearmint oil was $10.20 for 2005, which is below the average of $10.83 for the period of 1980 through 2005, based on National Agricultural Statistics Service data. The surplus situation for the spearmint oil market that would exist without volume controls in 2007-2008 also would likely dampen prospects for improved producer prices in future years because of the buildup in stocks. The use of volume controls allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume controls is believed to have little or no effect on consumer prices of products containing spearmint oil and will not result in fewer retail sales of such products. The Committee discussed alternatives to the recommendations contained in this rule for both classes of spearmint oil. The Committee discussed and rejected the idea of recommending that there not be any volume regulation for both classes of spearmint oil because of the severe price-depressing effects that would occur without volume control. The Committee considered various alternative levels of volume control for Scotch spearmint oil, including increasing the percentage to a less restrictive level, or decreasing the percentage. After considerable discussion the Committee unanimously determined that 886,667 pounds and 45 percent would be the most effective salable quantity and allotment percentage, respectively, for the 2007-2008 marketing year. The Committee also considered various alternative levels of volume control for Native spearmint oil. After considerable discussion the Committee unanimously determined that 1,062,336 pounds and 48 percent would be the most effective salable quantity and allotment percentage, respectively, for the 2007-2008 marketing year. As noted earlier, the Committee's recommendation to establish salable quantities and allotment percentages for both classes of spearmint oil was made after careful consideration of all available information, including:
(1)The estimated quantity of salable oil of each class held by producers and handlers;
(2)the estimated demand for each class of oil;
(3)the prospective production of each class of oil;
(4)the total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year;
(5)the quantity of reserve oil, by class, in storage;
(6)producer prices of oil, including prices for each class of oil; and
(7)general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Based on its review, the Committee believes that the salable quantity and allotment percentage levels recommended would achieve the objectives sought. Without any regulations in effect, the Committee believes the industry would return to the pronounced cyclical price patterns that occurred prior to the order, and that prices in 2007-2008 would decline substantially below current levels. As stated earlier, the Committee believes that the order has contributed extensively to the stabilization of producer prices, which prior to 1980 experienced wide fluctuations from year-to-year. National Agricultural Statistics Service records show that the average price paid for both classes of spearmint oil ranged from $4.00 per pound to $11.10 per pound during the period between 1968 and 1980. Prices have been consistently more stable since the marketing order's inception in 1980, with an average price for the period from 1980 to 2005 of $12.72 per pound for Scotch spearmint oil and $9.84 per pound for Native spearmint oil. During the period of 1998 through 2005, however, large production and carry-in inventories have contributed to prices below the 26-year average, despite the Committee's efforts to balance available supplies with demand. Prices have ranged from $8.00 to $11.00 per pound for Scotch spearmint oil and between $9.10 and $10.00 per pound for Native spearmint oil. The 2005 Native price exceeded the 26-year average by $0.16. Producers stated, however, that fuel cost increases more than offset the price increase. According to the Committee, the recommended salable quantities and allotment percentages are expected to achieve the goals of market and price stability. As previously stated, annual salable quantities and allotment percentages have been issued for both classes of spearmint oil since the order's inception. Reporting and recordkeeping requirements have remained the same for each year of regulation. These requirements have been approved by the Office of Management and Budget under OMB Control No. 0581-0065. Accordingly, this rule would not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil producers and handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. In addition, the Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the October 4, 2006, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. A 30-day comment period is provided to allow interested persons the opportunity to respond to this proposal. This comment period is deemed appropriate so that a final determination can be made prior to June 1, 2007, the beginning of the 2007-2008 marketing year. All written comments timely received will be considered before a final determination is made on this matter. List of Subjects in 7 CFR Part 985 Marketing agreements, Oils and fats, Reporting and recordkeeping requirements, Spearmint oil. For the reasons set forth in the preamble, 7 CFR Part 985 is proposed to be amended as follows: PART 985—MARKETING ORDER REGULATING THE HANDLING OF SPEARMINT OIL PRODUCED IN THE FAR WEST 1. The authority citation for 7 CFR part 985 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. A new § 985.226 is added to read as follows: [Note: This section will not appear in the Code of Federal Regulations.] § 985.226 Salable quantities and allotment percentages—2007-2008 marketing year. The salable quantity and allotment percentage for each class of spearmint oil during the marketing year beginning on June 1, 2007, shall be as follows:
(a)Class 1 (Scotch) oil—a salable quantity of 886,667 pounds and an allotment percentage of 45 percent.
(b)Class 3 (Native) oil—a salable quantity of 1,062,336 pounds and an allotment percentage of 48 percent. Dated: January 16, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-764 Filed 1-19-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 239 and 252 RIN 0750-AF52 Defense Federal Acquisition Regulation Supplement; Information Assurance Contractor Training and Certification (DFARS Case 2006-D023) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule with request for comments. SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to address training requirements that apply to contractor personnel who perform information assurance functions for DoD. The rule provides that contractor personnel accessing information systems must meet applicable training and certification requirements. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before March 23, 2007, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2006-D023, using any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: dfars@osd.mil.* Include DFARS Case 2006-D023 in the subject line of the message. • *Fax:*
(703)602-0350. • *Mail:* Defense Acquisition Regulations System, Attn: Ms. Felisha Hitt, OUSD(AT&L)DPAP(DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. • *Hand Delivery/Courier:* Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402. Comments received generally will be posted without change to *http://www.regulations.gov,* including any personal information provided. FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt,
(703)602-0310. SUPPLEMENTARY INFORMATION: A. Background This proposed rule implements requirements of the Federal Information Security Management Act of 2002 (44 U.S.C. 3541); DoD Directive 8570.1, Information Assurance Training, Certification, and Workforce Management; and DoD Manual 8570.01-M, Information Assurance Workforce Improvement Program. The rule contains a clause for use in contracts involving contractor performance of information assurance functions. The clause requires the contractor to ensure that personnel accessing information systems are properly trained and certified. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. The analysis is summarized as follows: DoD is proposing amendments to the DFARS to implement DoD Directive 8570.1, Information Assurance Training, Certification, and Workforce Management, and DoD Manual 8570.01-M, Information Assurance Workforce Improvement Program, with regard to DoD contractor personnel. The DoD directive and manual are based on the provisions of the Federal Information Security Management Act of 2002, which requires proper training and oversight of personnel with information security responsibilities. The objective of the proposed rule is to ensure that contractor personnel who have access to DoD information systems are properly trained and managed. The legal basis for the rule is 44 U.S.C. 3541. The proposed rule will apply to entities that perform information assurance functions for DoD. Approximately 83 small business concerns fall into this category annually. Contractors performing information assurance functions will be required to ensure that personnel accessing information systems have the proper and current information assurance certification to perform information assurance functions, in accordance with DoD 8570.01-M. No special skills are required for this compliance requirement. The proposed rule does not duplicate, overlap, or conflict with any other relevant Federal rules. A copy of the analysis may be obtained from the point of contact specified herein. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2006-D023. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Parts 239 and 252 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, DoD proposes to amend 48 CFR parts 239 and 252 as follows: 1. The authority citation for 48 CFR parts 239 and 252 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. PART 239—ACQUISITION OF INFORMATION TECHNOLOGY 2. Section 239.7102-1 is amended by adding paragraphs (a)(7) and
(8)to read as follows: 239.7102-1 General.
(a)* * *
(7)DoD Directive 8570.1, Information Assurance Training, Certification, and Workforce Management; and
(8)DoD 8570.01-M, Information Assurance Workforce Improvement Program. 3. Section 239.7102-3 is added to read as follows: 239.7102-3 Information assurance contractor training and certification.
(a)For acquisitions that include information assurance functional services for DoD information systems, or that require any appropriately cleared contractor personnel to access a DoD information system to perform contract duties, the requiring activity is responsible for providing to the contracting officer—
(1)A list of information assurance functional responsibilities for DoD information systems by category (e.g., technical or management) and level (e.g., computing environment, network environment, or enclave); and
(2)The information assurance training, certification, certification maintenance, and continuing education or sustainment training required for the information assurance functional responsibilities.
(b)After contract award, the requiring activity is responsible for ensuring that the certifications and certification status of all contractor personnel performing information assurance functions as described in DoD 8570.01-M, Information Assurance Workforce Improvement Program, are in compliance with the manual and are identified, documented, and tracked. See PGI 239.7102-3 for guidance on documenting and tracking certifications.
(c)The responsibilities specified in paragraphs
(a)and
(b)of this section apply to all DoD information assurance duties supported by a contractor, whether performed full-time or part-time as additional or embedded duties, and when using a DoD contract, or a contract or agreement administered by another agency (e.g., under an interagency agreement). 4. Section 239.7103 is revised to read as follows: 239.7103 Contract clauses.
(a)Use the clause at 252.239-7000, Protection Against Compromising Emanations, in solicitations and contracts involving information technology that requires protection against compromising emanations.
(b)Use the clause at 252.239-7XXX, Information Assurance Contractor Training and Certification, in solicitations and contracts involving contractor performance of information assurance functions as described in DoD 8570.01-M. PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.239-7000 [Amended] 5. Section 252.239-7000 is amended in the introductory text by removing “239.7103” and adding in its place “239.7103(a)”. 6. Section 252.239-7XXX is added to read as follows: 252.239-7XXX Information Assurance Contractor Training and Certification. As prescribed in 239.7103(b), use the following clause: Information Assurance Contractor Training and Certification (XXX 2007)
(a)The Contractor shall ensure that personnel accessing information systems have the proper and current information assurance certification to perform information assurance functions in accordance with DoD 8570.01-M, Information Assurance Workforce Improvement Program. The Contractor shall meet the applicable information assurance certification requirements, including—
(1)DoD-approved information assurance workforce certifications appropriate for each category and level as listed in the current version of DoD 8570.01-M; and
(2)Appropriate operating system certification for information assurance technical positions as required by DoD 8570.01-M.
(b)Upon request by the Government, the Contractor shall provide documentation supporting the information assurance certification status of personnel performing information assurance functions.
(c)Contractor personnel who do not have proper and current certifications shall be denied access to DoD information systems for the purpose of performing information assurance functions. (End of clause) [FR Doc. E7-732 Filed 1-19-07; 8:45 am] BILLING CODE 5001-08-P DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 252 RIN 0750-AF58 Defense Federal Acquisition Regulation Supplement; Taxpayer Identification Numbers (DFARS Case 2006-D037) AGENCY: Defense Acquisition Regulations System, Department of Defense (DoD). ACTION: Proposed rule with request for comments. SUMMARY: DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to address requirements for validation of Taxpayer Identification Numbers as part of the Central Contractor Registration process. The proposed changes are consistent with changes made to the Federal Acquisition Regulation. DATES: Comments on the proposed rule should be submitted in writing to the address shown below on or before March 23, 2007, to be considered in the formation of the final rule. ADDRESSES: You may submit comments, identified by DFARS Case 2006-D037, using any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *E-mail: dfars@osd.mil.* Include DFARS Case 2006-D037 in the subject line of the message. • *Fax:*
(703)602-0350. • *Mail:* Defense Acquisition Regulations System, Attn: Ms. Felisha Hitt, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense Pentagon, Washington, DC 20301-3062. • *Hand Delivery/Courier:* Defense Acquisition Regulations System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 22202-3402. Comments received generally will be posted without change to *http://www.regulations.gov,* including any personal information provided. FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt,
(703)602-0310. SUPPLEMENTARY INFORMATION: A. Background DFARS 252.204-7004 contains a substitute paragraph for use with the clause at FAR 52.204-7, Central Contractor Registration, to address DoD-unique requirements relating to contractor registration in the Central Contractor Registration
(CCR)database. Item I of Federal Acquisition Circular 2005-10, published at 71 FR 36923 on June 28, 2006, amended the clause at FAR 52.204-7 to include requirements for the Government to validate a contractor's Taxpayer Identification Number (TIN), and for the contractor to consent to this validation, as part of the CCR registration process. This proposed rule amends DFARS 252.204-7004 to address TIN validation, for consistency with the changes made to FAR 52.204-7. This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. B. Regulatory Flexibility Act DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, *et seq.* , because the rule relates to an administrative requirement for TIN validation, which is performed by the Government. Contractors need only provide consent for TIN validation as part of the CCR registration process. Therefore, DoD has not performed an initial regulatory flexibility analysis. DoD invites comments from small businesses and other interested parties. DoD also will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should be submitted separately and should cite DFARS Case 2006-D037. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply, because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, *et seq.* List of Subjects in 48 CFR Part 252 Government procurement. Michele P. Peterson, Editor, Defense Acquisition Regulations System. Therefore, DoD proposes to amend 48 CFR Part 252 as follows: PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 1. The authority citation for 48 CFR Part 252 continues to read as follows: Authority: 41 U.S.C. 421 and 48 CFR Chapter 1. 2. Section 252.204-7004 is amended as follows: a. By revising the section heading, clause title, and clause date; and b. In paragraph (a), by revising the definition of “Registered in the CCR database” to read as follows: 252.204-7004 Alternate A, Central Contractor Registration. Alternate A, Central Contractor Registration (XXX 2007)
(a)* * * “Registered in the CCR database” means that—
(1)The Contractor has entered all mandatory information, including the DUNS number or the DUNS+4 number, into the CCR database;
(2)The Contractor's CAGE code is in the CCR database; and
(3)The Government has validated all mandatory data fields, to include validation of the Taxpayer Identification Number
(TIN)with the Internal Revenue Service, and has marked the records “Active.” The Contractor will be required to provide consent for TIN validation to the Government as part of the CCR registration process. [FR Doc. E7-736 Filed 1-19-07; 8:45 am] BILLING CODE 5001-08-P 72 13 Monday, January 22, 2007 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request January 17, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8958. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. *Animal and Plant Health Inspection Service* *Title:* Classical Swine Fever Status of Chile. *OMB Control Number:* 0579-0235. *Summary of Collection:* Veterinary Services, a program within USDA's Animal and Plant Health Inspection Service (APHIS) is responsible for carrying out this disease prevention mission. The agency regulates the importation of animals and animal products into the U.S. to guard against the introduction of exotic animal diseases such as classical swine fever. The regulations under which APHIS conducts these disease prevention activities are contained in Title 9, Chapter 1, Subchapter D, and Part 91 through 99 of the Code of Federal Regulations. These regulations place certain restrictions on the importation of swine, pork and pork products in order to prevent an incursion of classical swine fever or other exotic swine diseases into the U.S. *Need and Use of the Information:* Swine, pork, and pork products from specified regions must be accompanied by a certificate issued by a salaried veterinary officer of the Government of Chile. The certificate must identify both the exporting region and the region of origin as a region designated in Sections 94.9 and 94.10 (Title 9, Code of Federal Regulations) as free of classical swine fever at the time the swine, pork, or pork products were in the region. *Description of Respondents:* Business or other for-profit; State, Local or Tribal Government. *Number of Respondents:* 10. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 50. Ruth Brown, Departmental Information Collection Clearance Officer. [FR Doc. E7-803 Filed 1-19-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Agricultural Research Service Notice of Intent To Grant Exclusive License AGENCY: Agricultural Research Service, USDA. ACTION: Notice of intent. SUMMARY: Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to Natural Industries, Inc. of Houston, Texas, an exclusive license to U.S. Patent Application Serial No. 10/678,023, “Chromobacterium Subtsugae Sp. Nov. and Use for Control of Insect Pests”, filed on October 1, 2003. DATES: Comments must be received within thirty
(30)days of the date of publication of this Notice in the **Federal Register** . ADDRESSES: Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Room 4-1174, Beltsville, Maryland 20705-5131. FOR FURTHER INFORMATION CONTACT: June Blalock of the Office of Technology Transfer at the Beltsville address given above: telephone: 301-504-5989. SUPPLEMENTARY INFORMATION: The Federal Government's intellectual property rights to this invention are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license this invention as Natural Industries, Inc. of Houston, Texas has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty
(30)days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7. Richard J. Brenner, Assistant Administrator. [FR Doc. E7-676 Filed 1-19-07; 8:45 am] BILLING CODE 3410-03-P DEPARTMENT OF AGRICULTURE Forest Service Meeting of the Land Between The Lakes Advisory Board AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: The Land Between The Lakes Advisory Board will hold a meeting on Thursday, February 8, 2007. Notice of this meeting is given under the Federal Advisory Committee Act, 5 U.S.C. app.2. The meeting agenda includes the following:
(1)Welcome/Introductions
(2)Background from Previous Meeting
(3)Discussions on Prioritizing Strategies for Environmental Education
(4)Discussion on Potential Environmental Education Action Items
(5)FS Feedback on Proposed Strategic Plan for Environmental Education
(6)Board Discussion on Public Comments Received
(7)LBL Updates The meeting is open to the public. Written comments are invited and may be mailed to: William P. Lisowsky, Area Supervisor, Land Between The Lakes, 100 Van Morgan Drive, Golden Pond, Kentucky 42211. Written comments must be received at Land Between The Lakes by February 1, 2007, in order for copies to be provided to the members at the meeting. Board members will review written comments received, and at their request, oral clarification may be requested at a future meeting. DATES: The meeting will be held on February 8, 2007, 9 a.m. to 3:15 p.m., CST. ADDRESSES: The meeting will be held at the Land Between The Lakes Administrative Building, Golden Pond, Kentucky, and will be open to the public. FOR FURTHER INFORMATION CONTACT: Sharon Byers, Advisory Board Liaison, Land Between The Lakes, 100 Van Morgan Drive, Golden Pond, Kentucky 42211, 270-924-2002. SUPPLEMENTARY INFORMATION: None. Dated: January 16, 2007. William P. Lisowsky, Area Supervisor, Land Between The Lakes. [FR Doc. E7-776 Filed 1-19-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF COMMERCE Bureau of Industry and Security Transportation and Related Equipment Technical Advisory Committee; Notice of Open Meeting The Transportation and Related Equipment Technical Advisory Committee will meet on February 7, 2007, 9:30 a.m., in the Herbert C. Hoover Building, Room 6087B, 14th Street between Pennsylvania & Constitution Avenues, NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration with respect to technical questions that affect the level of export controls applicable to transportation and related equipment or technology. Agenda 1. Welcome and Introductions. 2. Regulatory Overview. 3. Missile Technology Control Regime. 4. Wassenaar Experts Group Meeting. 5. Report on Status of Composite Materials Working Group. 6. Report by AIA on Export Control Reform Proposals. 7. Presentation of Papers and Comments by Public. 8. Follow-up on Open Action Items. 9. Closing Comments. The meeting will be open to the public and a limited number of seats will be available. Reservations are not accepted. To the extent time permits, members of the public may present oral statements to the Committee. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to Committee members, the Committee suggests that presenters forward the public presentation materials to Yvette Springer at *Yspringer@bis.doc.gov.* FOR MORE INFORMATION CONTACT: Ms. Springer on
(202)482-2813. Dated: January 17, 2007. Yvette Springer, Committee Liaison Officer. [FR Doc. 07-233 Filed 1-19-07; 8:45 am]
Connectionstraces to 34
Traces to 34 documents
34 references not yet in our index
  • 17 CFR 170
  • Pub. L. 106-554
  • 114 Stat. 2763
  • 29 CFR 4011
  • Pub. L. 109-280
  • 33 CFR 117
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • Pub. L. 102-587
  • 106 Stat. 5039
  • 33 CFR 401
  • 49 USC 4321
  • Pub. L. 104-4
  • 109 Stat. 48
  • 49 CFR 1.52
  • 40 CFR 60
  • 40 CFR 503
  • 40 CFR 61
  • 40 CFR 9
  • Pub. L. 104-113
  • 41 USC 421
  • 48 CFR 218
  • Pub. L. 108-87
  • 49 CFR 573.6(b)
  • Pub. L. 108-136
  • Pub. L. 109-163
  • 7 CFR 985
  • 7 USC 601-674
  • 44 USC 3541
  • 48 CFR 252
  • Pub. L. 104-13
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cites case law
Rules and Regulations
Final rule
C.F.R.§ 170.15
U.S.C.§ 21
U.S.C.§ 5
U.S.C.§ 553
U.S.C.§ 601
U.S.C.§ 19
U.S.C.§ 6p
Fed. Reg.Notices
U.S.C.§ 1302
Cite17 CFR 170
Pub. L.Pub. L. 106-554
Stat.114 Stat. 2763
Cites 68 · showing 12Cited by 0 across 0 sources
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