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Code · REGISTER · 2007-04-12 · U.S. Office of Special Counsel · Notices

Notices. Proposed rule

51,060 words·~232 min read·/register/2007/04/12/07-1840

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BILLING CODE 3510-22-S 72 70 Thursday, April 12, 2007 Proposed Rules OFFICE OF SPECIAL COUNSEL 5 CFR Part 1820 Freedom of Information Act; Implementation AGENCY: U.S. Office of Special Counsel. ACTION: Proposed rule. SUMMARY: The U.S. Office of Special Counsel
(OSC)proposes to revise its regulations dealing primarily with the agency's implementation of the Freedom of Information Act (FOIA). The regulation, as revised, would implement provisions of the FOIA as amended, update information in the current regulation, and contain new and expanded information about the agency's processing of FOIA requests and appeals. Included in the revised regulation, as proposed, are provisions containing updated, revised, or new information about: publicly available records and information; requirements for making FOIA requests, including updated contact information; consultations with and referrals to other agencies; responses to requests, including information about multitrack and expedited processing; requirements for appealing initial decisions on requests, including updated contact information; fees, including new and revised cost information; and business information. Finally, the regulation, as revised, would address responses to demands by courts or other authorities to an OSC employee for production of official records or testimony in legal proceedings. DATES: Comments on the proposed rule must be received by May 14, 2007. FOR FURTHER INFORMATION CONTACT: Christopher Kurt, FOIA Officer, in writing at: U.S. Office of Special Counsel, Legal Counsel and Policy Division, 1730 M Street, NW., Suite 218, Washington, DC 20036-4505; by telephone at
(202)254-3600; or by facsimile at
(202)653-5151. SUPPLEMENTARY INFORMATION: OSC proposes to revise its regulations at 5 C.F.R. Part 1820, dealing primarily with the agency's implementation of the FOIA. The regulation, as revised, would implement provisions of the FOIA, at 5 U.S.C. 552, as amended, update information in the current regulation, and contain new and expanded information about the agency's processing of FOIA requests and appeals. A description of proposed changes follows. The title of part 1820 would be changed to reflect its primary focus on the agency's implementation of the FOIA, and its coverage of responses to certain demands for production of official records and testimony. Section 1820.1 would be substantially revised and updated to: outline the scope of part 1820; make clear that the part should be read together with provisions of the FOIA; provide readers with the address for the FOIA page of OSC's web site; and describe information publicly available without a FOIA request. Section 1820.2 would be revised and enlarged to: describe requirements for FOIA requests; provide updated OSC contact information for such requests; and describe the agreement to pay fees implicit in FOIA requests, unless waived or specified otherwise. Sections 1820.3-1820.7 of the current regulation, dealing with FOIA fees, would be consolidated into a new section 1820.7, to be described later in this notice. A new section 1820.3 would address consultations with and referrals to other agencies, describing circumstances in which OSC may consult with other agencies about a FOIA request and refer records to another agency for a disclosure decision. A new section 1820.4 would deal with the timing of responses to FOIA requests, and incorporate including new regulatory provisions on multitrack and expedited processing of requests and appeals. A new section 1820.5 would describe the types of responses to FOIA requests, including adverse determinations. The current section of part 1820 dealing with appeals (1820.8), would be re-numbered as section 1820.6. The new section 1820.6 would: contain an expanded discussion of requirements for filing appeals of adverse FOIA determinations; provide updated OSC contact information for such appeals; extend the time for filing an appeal from 30 to 45 days from the date of the determination; and describe the nature of responses to appeals. A new section 1820.7, as noted before, would incorporate updated and expanded provisions on fees associated with the processing of FOIA requests, including: a provision specifying that if a fee incurred for responding to a FOIA request is $20.00 or less, no fee will be charged to the requester; revision of labor rates for search and review time for clerical and professional personnel, reflecting current costs, and addition of a labor category for managerial personnel; inclusion of the cost of retrieving records from a Federal Records Center and expanded discussion of requirements and criteria for fee waiver or fee reduction requests. A new section 1820.8 would implement the provisions of Executive Order No. 12600, and outline procedures to be followed in case OSC were to receive a FOIA request for business information. A new section 1820.9 would provide that part 1820 should not be construed as entitling any person to any service or the disclosure of any record to which such person is not entitled under the FOIA. Finally, section 1820.9 in the current regulation has been re-numbered as section 1820.10 and re-titled to clarify the scope of that section. Procedural Determinations *Congressional Review Act:* OSC has determined that these proposed revisions are non-major under the Congressional Review Act, and will submit a report on this final rule to Congress and the Government Accountability Office pursuant to the act. *Regulatory Flexibility Act Certification (5 U.S.C. 605):* I certify that this regulation will not have a significant economic impact on a substantial number of small entities. OSC primarily handles matters involving individuals who are current or former Federal government employees, applicants for federal employment, certain state or local government employees, and representatives of these individuals. These regulations, as revised, would affect only the implementation of the Freedom of Information Act at OSC, and responses by OSC to certain demands for production of records or testimony. These proposed revisions will not cause significant additional impact. *Unfunded Mandates Reform Act (UMRA):* This proposed revision does not impose any Federal mandates on state, local, or tribal governments, or on the private sector within the meaning of the UMRA. *Paperwork Reduction Act:* This revision does no impose any new recordkeeping, reporting or other information collection requirements on the public. *Executive Order 12866 (Regulatory Planning and Review):* While not required to do so, OSC has reviewed this revision under Executive Order 12866 and anticipates that the economic impact of this revision will be insignificant. Thus, this proposed revision is not a significant regulatory action under §3(f) of Executive Order 12866, and does not require an assessment of potential costs and benefits under §6(a)(3) of the order. *Executive Order 13132 (Federalism):* This proposed revision does not have new federalism implications under Executive Order 13132. The Hatch Act, at title 5 of the U.S. Code, chapter 15, prohibits certain political activities of covered state and local government employees. OSC has jurisdiction to issue advisory opinions on political activity by those employees, and to bring enforcement action before the Merit Systems Protection Board for prohibited activity by a covered state or local government employee. These revised regulations affect only the implementation of the Freedom of Information Act at OSC, and responses by OSC to certain demands for production of records or testimony, and do not significantly change the rights of state and local government employees. *Executive Order 12988 (Civil Justice Reform):* This proposed rule meets applicable standards of §§ 3(a) and 3(b)(2) of Executive Order 12988. List of Subjects in 5 CFR Part 1820 Administrative practice and procedure, Government employees, Freedom of Information. For the reasons stated in the preamble, OSC proposes to revise 5 CFR Part 1820 to read as follows: PART 1820—FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF RECORDS OR TESTIMONY Sec. 1820.1 General provisions. 1820.2 Requirements for making FOIA requests. 1820.3 Consultations and referrals. 1820.4 Timing of responses to requests. 1820.5 Responses to requests. 1820.6 Appeals. 1820.7 Fees. 1820.8 Business information. 1820.9 Other rights and services. 1820.10 Production of official records or testimony in legal proceedings. **Authority:** 5 U.S.C. 552 and 1212(e); Executive Order No. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235. § 1820.1 General provisions. This part contains rules and procedures followed by the Office of Special Counsel
(OSC)in processing requests for records under the Freedom of Information Act (FOIA), as amended, at 5 U.S.C. 552. These rules and procedures should be read together with the FOIA, which provides additional information about access to agency records. Further information about the FOIA and access to OSC records is available on the FOIA page of OSC's web site (www.osc.gov/foia.htm). Information routinely provided to the public as part of a regular OSC activity-for example, forms, press releases issued by the public affairs officer, records published on the agency's web site (www.osc.gov), or public lists maintained at OSC headquarters offices pursuant to 5 U.S.C. 1219-may be requested and provided to the public without following this part. This part also addresses responses to demands by a court or other authority to an employee for production of official records or testimony in legal proceedings. § 1820.2 Requirements for making FOIA requests. *(a) How made and addressed.* A request for OSC records under the FOIA should be made by writing to the agency. The request should be sent by regular mail addressed to: FOIA Officer, U.S. Office of Special Counsel, 1730 M Street, NW. (Suite 218), Washington, DC 20036-4505. Such requests may also be faxed to the FOIA Officer at the number provided on the FOIA page of OSC's web site (see section 1820.1). For the quickest handling, both the request letter and envelope or any fax cover sheet should be clearly marked “FOIA Request.” Whether sent by mail or by fax, a FOIA request will not be considered to have been received by OSC until it reaches the FOIA Officer. *(b) Description of records sought.* Requesters must describe the records sought in enough detail for them to be located with a reasonable amount of effort. When requesting records about an OSC case file, the case file number, name, and type (for example, prohibited personnel practice, Hatch Act, USERRA or other complaint; Hatch Act advisory opinion; or whistleblower disclosure) should be provided, if known. Whenever possible, requests should describe any particular record sought, such as the date, title or name, author, recipient, and subject matter. *(c) Agreement to pay fees.* Making a FOIA request shall be considered an agreement by the requester to pay all applicable fees chargeable under section 1820.7, up to and including the amount of $25.00, unless the requester asks for a waiver of fees. When making a request, a requester may specify a willingness to pay a greater or lesser amount. § 1820.3 Consultations and referrals. When OSC receives a FOIA request for a record in the agency's possession, it may determine that another Federal agency is better able to decide whether or not the record is exempt from disclosure under the FOIA. If so, OSC will either:
(1)respond to the request for the record after consulting with the other agency and with any other agency that has a substantial interest in the record; or
(2)refer the responsibility for responding to the request to the other agency deemed better able to determine whether to disclose it. Consultations and referrals will be handled according to the date that the FOIA request was initially received by the first agency. § 1820.4 Timing of responses to requests. *(a) In general.* OSC ordinarily will respond to FOIA requests according to their order of receipt. In determining which records are responsive to a request, OSC ordinarily will include only records in its possession as of the date on which it begins its search for them. If any other date is used, OSC will inform the requester of that date. *(b) Multitrack processing.*
(1)OSC may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request.
(2)When using multitrack processing, OSC may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the faster track(s). *(c) Expedited processing.*
(1)Requests and appeals will be taken out of order and given expedited treatment whenever OSC has established to its satisfaction that:
(i)failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii)with respect to a request made by a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity; or
(iii)records requested relate to an appeal that is pending before, or that the requester faces an imminent deadline for filing with, the Merit Systems Protection Board or other administrative tribunal or a court of law, seeking personal relief pursuant to a complaint filed by the requester with OSC, or referred to OSC pursuant to title 38 of the U.S. Code.
(2)A request for expedited processing must be made in writing and sent to OSC's FOIA Officer. Such a request will not be considered to have been received until it reaches the FOIA Officer.
(3)A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category described in paragraph (c)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. The formality of certification may be waived as a matter of OSC's administrative discretion.
(4)OSC shall decide whether to grant a request for expedited processing and notify the requester of its decision within 10 calendar days of the FOIA Officer's receipt of the request. If the request for expedited processing is granted, the request for records shall be processed as soon as practicable. If a request for expedited processing is denied, any administrative appeal of that decision shall be acted on expeditiously. *(d) Aggregated requests.* OSC may aggregate multiple requests by the same requester, or by a group of requesters acting in concert, if it reasonably believes that such requests actually constitute a single request involving unusual circumstances, as defined by the FOIA, supporting an extension of time to respond, and the requests involve clearly related matters. § 1820.5 Responses to requests. *(a) General.* Once OSC makes a determination to grant a FOIA request for records, or makes an adverse determination denying a request in any respect, it will notify the requester in writing. Adverse determinations, or denials of requests, consist of: a determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that a record is not readily reproducible in the form or format sought by the requester; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver; and a denial of a request for expedited treatment. *(b) Adverse determinations.* A notification to a requester of an adverse determination on a request shall include:
(1)a brief statement of the reason(s) for the denial of the request, including any FOIA exemption applied by OSC in denying the request; and
(2)a statement that the denial may be appealed under section 1820.6(a), with a description of the requirements of that subsection. § 1820.6 Appeals. *(a) Appeals of adverse determinations.* A requester may appeal an adverse determination denying a FOIA request in any respect to the Legal Counsel and Policy Division, U.S. Office of Special Counsel, 1730 M Street, NW. (Suite 218), Washington, DC 20036-4505. The appeal must be in writing, and sent by regular mail or by fax. The appeal must be received by the Legal Counsel and Policy Division within 45 days of the date of the letter denying the request. For the quickest possible handling, the appeal letter and envelope or any fax cover sheet should be clearly marked “FOIA Appeal.” The appeal letter may include as much or as little related information as the requester wishes, as long as it clearly identifies the OSC determination (including the assigned FOIA request number, if known) being appealed. An appeal ordinarily will not be acted on if the request becomes a matter of FOIA litigation. *(b) Responses to appeals.* The agency decision on an appeal will be made in writing. A decision affirming an adverse determination in whole or in part shall inform the requester of the provisions for judicial review of that decision. If the adverse determination is reversed or modified on appeal, in whole or in part, the requester will be notified in a written decision and the request will be reprocessed in accordance with that appeal decision. § 1820.7 Fees. *(a) In general.* OSC shall charge for processing requests under the FOIA in accordance with paragraph
(c)of this section, except where fees are limited under paragraph
(d)of this section or where a waiver or reduction of fees is granted under paragraph
(k)of this section. OSC may collect all applicable fees before sending copies of requested records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States. *(b) Definitions.* For purposes of this section:
(1)“'Commercial use' request” means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests, which can include furthering those interests through litigation. OSC shall determine, whenever reasonably possible, the use to which a requester will put the requested records. When it appears that the requester will put the records to a commercial use, either because of the nature of the request itself or because OSC has reasonable cause to doubt a requester's stated use, OSC shall provide the requester with a reasonable opportunity to submit further clarification.
(2)“Direct costs” means those expenses that OSC incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating equipment. Direct costs do not include overhead expenses such as the costs of space, and heating or lighting the facility in which the records are kept.
(3)“Duplication” means the process of making of a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, microform, audiovisual materials, or electronic records (for example, on digital data storage discs), among others.
(4)“Educational institution” means a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.
(5)“Non-commercial scientific institution” means an institution that is not operated on a “commercial” basis, as that term is referenced in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.
(6)“Representative of the news media” or “news media requester” means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be the clearest proof, but OSC may also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for a commercial use. However, a request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.
(7)“Review” means the process of examining a record located in response to a request in order to determine whether any portion of the record is exempt from disclosure. It includes processing any record for disclosure - for example, doing all that is necessary to redact it and otherwise prepare it for disclosure. Review time also includes time spent obtaining and considering any formal objection to disclosure made by a business submitter under section 1820.8(f). It does not include time spent resolving general legal or policy issues about the application of exemptions. Review costs are properly charged in connection with commercial use requests even if a record ultimately is not disclosed.
(8)“Search” means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records when undertaken, and reasonable efforts to locate and retrieve information from records maintained in electronic form or format, to the extent that such efforts would not significantly interfere with the operation of an automatic information system. *(c) Fees.* In responding to FOIA requests, OSC shall charge the following fees unless a waiver or reduction of fees has been granted under paragraph
(k)of this section:
(1)Search.
(i)Search fees will be charged for all requests - other than requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media - subject to the limitations of paragraph
(d)of this section. OSC may charge for time spent searching even if it fails to locate responsive records, or records located after a search are determined to be exempt from disclosure.
(ii)For each quarter hour spent by clerical personnel in searching for and retrieving a requested record, the fee will be $5.50. Where a search and retrieval cannot be performed entirely by clerical personnel - for example, where the identification of records within the scope of a request requires the use of professional personnel - the fee will be $9.00 for each quarter hour of search time spent by professional personnel. Where the time of managerial personnel is required, the fee will be $17.50 for each quarter hour of time spent by those personnel.
(iii)For electronic searches of records, requesters will be charged the direct costs of conducting the search, including the costs of operator/programmer staff time apportionable to the search.
(iv)For requests requiring the retrieval of records from any Federal Records Center, additional costs may be charged in accordance with the applicable billing schedule established by the National Archives and Records Administration.
(2)Duplication. Duplication fees will be charged to all requesters, subject to the limitations of paragraph
(d)of this section. For a standard paper photocopy of a record (no more than one copy of which need be supplied), the fee will be 25 cents per page. For copies produced by computer, such as discs or printouts, OSC will charge the direct costs, including staff time, of producing the copy. For other forms of duplication, OSC will charge the direct costs of that duplication.
(3)Review. Review fees will be charged to requesters who make a commercial use request. Review fees will be charged for only initial record review - in other words, the review done when OSC analyzes whether an exemption applies to a particular record or record portion at the initial request level. No charge will be made for review at the administrative appeal level for an exemption already applied. However, records or record portions withheld under an exemption that is subsequently determined not to apply may be reviewed again to determine whether any other exemption not previously considered applies; the costs of that review are chargeable where it is made necessary by such a change of circumstances. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section. *(d) Limitations on charging fees.*
(1)No search fee will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media.
(2)No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(3)Except for requesters seeking records for a commercial use, OSC will provide without charge:
(i)The first 100 pages of duplication (or the cost equivalent); and
(ii)The first two hours of search (or the cost equivalent).
(4)Whenever a total fee calculated under paragraph
(c)of this section is $20.00 or less for any request, no fee will be charged.
(5)The provisions of paragraphs (d)(3) and (d)(4) of this section work together. This means that for requesters other than those seeking records for a commercial use, no fee will be charged unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $20.00. *(e) Notice of anticipated fees in excess of $25.00.* When OSC determines or estimates that the fees to be charged under this section will amount to more than $25.00, OSC shall notify the requester of the actual or estimated amount of the fees, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, OSC will advise the requester that the estimated fee may be only a portion of the total fee. In cases in which a requester has been notified that actual or estimated fees amount to more than $25.00, the request shall not be considered received and further work will not be done on it until the requester agrees to pay the anticipated total fee. A notice under this paragraph will offer the requester an opportunity to discuss the matter with OSC in order to reformulate the request to meet the requester's needs at a lower cost. *(f) Charges for other services.* Apart from the other provisions of this section, when OSC chooses as a matter of administrative discretion to provide a special service-such as sending records by other than ordinary mail-the direct costs of providing the service ordinarily will be charged. *(g) Charging interest.* OSC may charge interest on any unpaid fee starting on the 31st day after the date of on which the billing was sent to the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the date of billing until payment is received by OSC. OSC will follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended by the Debt Collection Act of 1996 (Public Law 104-134, 110 Stat. 1321-358), and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset. *(h) Aggregating requests.* Where OSC reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests that otherwise could have been submitted as a single request, for the purpose of avoiding fees, OSC may aggregate those requests and charge accordingly. OSC may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, OSC will aggregate them only where a reasonable basis exists for determining that aggregation is warranted under all of the circumstances involved. Multiple requests involving unrelated matters will not be aggregated. *(i) Advance payments.*
(1)For requests other than those described in paragraphs (i)(2) and (i)(3) of this section, OSC will not require the requester to make an advance payment before work is begun or continued on a request. Payment owed for work already completed (that is, pre-payment after processing a request but before copies are sent to the requester) is not an advance payment.
(2)Where OSC determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require the requester to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives a satisfactory assurance of full payment from a requester who has a history of prompt payment.
(3)Where a requester has previously failed to pay a properly charged FOIA fee to any agency within 30 days of the date of billing, OSC may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before OSC begins to process a new request or continues to process a pending request from that requester.
(4)In cases in which OSC requires advance payment or payment due under paragraph (i)(2) or
(3)of this section, the request shall not be considered received and further work will not be done on the request until the required payment is received. *(j) Other statutes specifically providing for fees.* The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. Where records responsive to requests are maintained for distribution by agencies operating such statutorily based fee schedule programs, OSC will provide contact information for use by requesters in obtaining records from those sources. *(k) Requirements for waiver or reduction of fees.*
(1)Records responsive to a request shall be furnished without charge or at a charge reduced below that established under paragraph
(c)of this section where OSC determines, based on all available information, that the requester has demonstrated that:
(i)Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and
(ii)Disclosure of the information is not primarily in the commercial interest of the requester.
(2)To determine whether the first fee waiver requirement is met, OSC will consider the following factors: *(i) The subject of the request:* Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated. *(ii) The informative value of the information to be disclosed:* Whether the disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii)The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media satisfies this consideration.
(iv)The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. OSC shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.
(3)To determine whether the second fee waiver requirement is met, OSC will consider the following factors:
(i)The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. OSC shall consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information about this consideration.
(ii)The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. OSC ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4)Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(5)Requests for the waiver or reduction of fees should address the factors listed in paragraphs (k)(2) and
(3)of this section, insofar as they apply to each request. OSC will exercise its discretion to consider the cost-effectiveness of its investment of administrative resources in this decision making process, however, in deciding to grant waivers or reductions of fees. § 1820.8 Business information. *(a) In general.* Business information obtained by OSC from a submitter will be disclosed under the FOIA only under this section. *(b) Definitions.* For purposes of this section:
(1)“Business information” means commercial or financial information obtained by OSC from a submitter that may be protected from disclosure under exemption 4 of the FOIA.
(2)“Submitter” means any person or entity from whom the OSC obtains business information, directly or indirectly. The term includes corporations, and state, local, tribal and foreign governments. *(c) Designation of business information.* A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under exemption 4. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. *(d) Notice to submitters.* OSC shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph
(e)of this section, except as provided in paragraph
(h)of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph
(f)of this section. The notice shall either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish it. *(e) When notice is required.* Notice shall be given to a submitter wherever:
(1)The information has been designated in good faith by the submitter as information considered protected from disclosure under exemption 4; or
(2)OSC has reason to believe that the information may be protected from disclosure under exemption 4. *(f) Opportunity to object to disclosure.* OSC will allow a submitter a reasonable time to respond to the notice described in paragraph
(d)of this section and will specify that time period within the notice. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received by OSC until after its disclosure decision has been made shall not be considered by OSC. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA. *(g) Notice of intent to disclose.* OSC shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever OSC decides to disclose business information over the objection of a submitter, OSC shall give the submitter written notice, which shall include:
(1)A statement of the reason(s) why each of the submitter's disclosure objections was not sustained;
(2)A description of the business information to be disclosed; and
(3)A specified disclosure date, which shall be a reasonable time subsequent to the notice. *(h) Exceptions to notice requirements.* The notice requirements of paragraphs
(d)and
(g)of this section shall not apply if:
(1)OSC determines that the information should not be disclosed;
(2)The information lawfully has been published or has been officially made available to the public;
(3)Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or
(4)The designation made by the submitter under paragraph
(c)of this section appears obviously frivolous - except that, in such a case, OSC shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information. *(i) Notice of FOIA lawsuit.* Whenever a requester files a lawsuit seeking to compel the disclosure of business information, OSC shall promptly notify the submitter. *(j) Corresponding notice to requesters.* Whenever OSC provides a submitter with notice and an opportunity to object to disclosure under paragraph
(d)of this section, OSC shall also notify the requester(s). Whenever OSC notifies a submitter of its intent to disclose requested information under paragraph
(g)of this section, OSC shall also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, OSC shall notify the requester(s). § 1820.9 Other rights and services. Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA. § 1820.10 Production of official records or testimony in legal proceedings. No employee or former employee of the Office of Special Counsel shall, in response to a demand of a court or other authority, produce or disclose any information or records acquired as part of the performance of his official duties or because of his official status without the prior approval of the Special Counsel or the Special Counsel's duly authorized designee. Dated: April 3, 2007 Scott J. Bloch, Special Counsel. [FR Doc. E7-6774 Filed 4-11-07; 8:45 am] BILLING CODE 7405-01-S DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM372, Special Conditions No. 25-07-08-SC] Special Conditions: Boeing Model 787-8 Airplane; Reinforced Flightdeck Bulkhead AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This notice proposes special conditions for the Boeing Model 787-8 airplane. This airplane will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. The Boeing Model 787-8 airplanes will have a flightdeck bulkhead incorporating ballistic- and intrusion-resistant features. While the regulations include standards for ballistic- and intrusion-resistant flightdeck doors, they do not yet incorporate the same standards for these features in the bulkhead. Therefore, special conditions are needed to address these design features. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Additional special conditions will be issued for other novel or unusual design features of the Boeing Model 787-8 airplanes. DATES: Comments must be received on or before May 29, 2007. ADDRESSES: Comments on this proposal may be mailed in duplicate to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM372, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; or delivered in duplicate to the Transport Airplane Directorate at the above address. All comments must be marked Docket No. NM372. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Jeff Gardlin, FAA, Airframe/Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2136; facsimile
(425)227-1320. SUPPLEMENTARY INFORMATION: Comments Invited The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these proposed special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this notice between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change the proposed special conditions based on comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Background On March 28, 2003, Boeing applied for an FAA type certificate for its new Boeing Model 787-8 passenger airplane. The Boeing Model 787-8 airplane will be an all-new, two-engine jet transport airplane with a two-aisle cabin. The maximum takeoff weight will be 476,000 pounds, with a maximum passenger count of 381 passengers. Type Certification Basis Under provisions of 14 CFR 21.17, Boeing must show that Boeing Model 787-8 airplanes (hereafter referred to as “the 787”) meet the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-117, except §§ 25.809(a) and 25.812, which will remain at Amendment 25-115. If the Administrator finds that the applicable airworthiness regulations do not contain adequate or appropriate safety standards for the 787 because of a novel or unusual design feature, special conditions are prescribed under provisions of 14 CFR 21.16. In addition to the applicable airworthiness regulations and special conditions, the 787 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of part 36. In addition, the FAA must issue a finding of regulatory adequacy pursuant to section 611 of Public Law 92-574, the “Noise Control Act of 1972.” Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The 787 will incorporate a number of novel or unusual design features. Because of rapid improvements in airplane technology, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These proposed special conditions for the 787 contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. On January 15, 2002, the FAA promulgated 14 CFR 25.795(a) (Amendment 25-106), which specifies that the flightdeck door of a transport airplane be designed to resist forcible intrusion by unauthorized persons and penetration by small arms fire and fragmentation devices. At the time it was written, the regulation was limited to the flightdeck door to expedite a rapid retrofit of the existing airplanes required by operating rules to have a flightdeck door. In addition to a reinforced flightdeck door, the 787 will have a flightdeck bulkhead which is reinforced to resist intrusion and ballistic penetration. The regulations do not adequately address the certification requirements for such a bulkhead, and appropriate certification standards are necessary. These proposed special conditions would require that the reinforced flightdeck bulkhead meet the same standards as those specified in § 25.795(a) for flightdeck doors. The proposed special conditions contain the minimum standards that the Administrator considers necessary to ensure that safety standards are maintained after the aircraft enters into service. On December 21, 2006, the FAA issued a notice of proposed rulemaking that proposes amending § 25.795(a) to require that a flightdeck bulkhead—and any other accessible barrier separating the flightcrew compartment from occupied areas—also be designed to resist intrusion or penetration. The methods of compliance described in the preamble of that notice and associated draft advisory material could be used to show compliance to these proposed special conditions. For the 787, the reinforced bulkhead may be comprised of components such as the walls of adjacent lavatories, galleys, or crew rest areas. Those components would be covered by these proposed special conditions. Applicability As discussed above, these proposed special conditions are applicable to the 787. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design features, these proposed special conditions would apply to that model as well under the provisions of § 21.101. Conclusion This action would affect only certain novel or unusual design features of the 787. It is not a rule of general applicability, and it would affect only the applicant that applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these Special Conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Proposed Special Conditions Accordingly, the Administrator of the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for the Boeing Model 787-8 airplane. In addition to the requirements of 14 CFR 25.795(a) governing protection of the flightdeck door, the following special conditions apply. The reinforced bulkhead, including components that comprise the bulkhead, separating the flightcrew compartment from occupied areas must be designed to meet the following standards: It must resist forcible intrusion by unauthorized persons and be capable of withstanding impacts of 300 Joules (221.3 foot-pounds) at critical locations on the bulkhead as well as a 1113 Newton (250 pound) constant tensile load on accessible handholds. It must resist penetration by small arms fire and fragmentation devices to a level equivalent to level IIIa of the National Institute of Justice Standard
(NIJ)0101.04. Issued in Renton, Washington, on April 4, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-6887 Filed 4-11-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27611; Directorate Identifier 2007-CE-024-AD] RIN 2120-AA64 Airworthiness Directives; Sierra Hotel Aero, Inc. Models Navion (L-17A), Navion A (L-17B), (L-17C), Navion B, Navion D, Navion E, Navion F, Navion G, and Navion H Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for all Sierra Hotel Aero, Inc. (formally Navion Aircraft LLC) Models Navion (L-17A), Navion A (L-17B), (L-17C), Navion B, Navion D, Navion E, Navion F, Navion G, and Navion H airplanes. This proposed AD would require a one-time inspection of the entire fuel system and repetitive inspections of certain fuel selector valves. This proposed AD results from reports of airplane accidents associated with leaking or improperly operating fuel selector valves. We are proposing this AD to detect and correct fuel system leaks or improperly operating fuel selector valves, which could result in the disruption of fuel flow to the engine. This failure could lead to engine power loss. DATES: We must receive comments on this proposed AD by July 11, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. For service information identified in this proposed AD, contact Sierra Hotel Aero, 1690 Aeronca Lane, South St. Paul, MN 55075; phone:
(651)306-1456; fax:
(612)677-3171; Internet: *http://www.navion.com/servicebulletins.html* ; e-mail: *servicebulletinsupport@navion.com.* FOR FURTHER INFORMATION CONTACT: Tim Smyth, Aerospace Engineer, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone:
(847)294-7132; fax:
(847)294-7834. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-27611; Directorate Identifier 2007-CE-024-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion We have received several recent reports of Navion series airplanes involved in accidents where loss of engine power was a contributing factor. In some of these accidents, the National Transportation Safety Board
(NTSB)determined that the cause of engine power loss was defective fuel selector valves or gasolators that allowed air to be introduced into the fuel lines and disrupt the flow of fuel to the engine. This condition, if not corrected, could result in engine power loss. Relevant Service Information We have reviewed the following service information: • Sierra Hotel Aero, Inc. Navion Service Bulletin No. 106, dated February 27, 2007; • Sierra Hotel Aero, Inc. Navion Service Bulletin No. 101A, dated August 23, 2005; and • Navion Aircraft Corporation Navion Service letter # 87, dated February 20, 1965. The service information describes procedures for: • Performing a detailed inspection of the entire fuel system; • Inspecting and testing the fuel selector valve; • Replacing the fuel selector valve; and • Replacing the fuel accumulator tank. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require a one-time inspection of the entire fuel system and repetitive inspections of certain fuel selector valves. Costs of Compliance We estimate that this proposed AD would affect 1,500 airplanes in the U.S. registry. We estimate the following costs to do the proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 7 work-hours × $80 per hour = $560 N/A $560 $840,000 We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this repair/replacement: Labor cost Parts cost Total cost per airplane 3 work-hours × $80 per hour = $240 $1,000 $1,240 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Sierra Hotel Aero, Inc. (Formally Navion Aircraft LLC):** Docket No. FAA-2007-27611; Directorate Identifier 2007-CE-024-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by July 11, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Models Navion (L-17A), Navion A (L-17B), (L-17C), Navion B, Navion D, Navion E, Navion F, Navion G, and Navion H airplanes, all serial numbers, that are certificated in any category. Unsafe Condition
(d)This AD results from reported airplane accidents associated with leaking or improperly operating fuel system selector valves. We are issuing this AD to detect and correct fuel system leaks or improperly operating fuel selector valves, which could result in the disruption of fuel flow to the engine. This failure could lead to engine power loss. Compliance
(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures
(1)Inspect the fuel system, including inspecting and doing functional tests of the fuel selector valve. Initially no later than 100 hours time-in-service
(TIS)or 12 months, whichever occurs first, after the effective date of this AD. Repetitively thereafter inspect the fuel selector valve at intervals not to exceed 12 months until the replacement required by paragraph (e)(2) of this AD is done. Follow Sierra Hotel Aero, Inc. Navion Service Bulletin No. 106, dated February 27, 2007.
(2)Perform any corrective actions required as specified in Sierra Hotel Aero, Inc. Navion Service Bulletin No. 106, dated February 27, 2007, including replacing the fuel selector valve with one of the following part numbers (P/N):
(i)Navion P/N 147-30013-201 for airplanes equipped with ON/OFF fuel valves for the main tank.
(ii)Navion P/N 147-30013-202 for airplanes equipped with main and auxiliary selectable tanks.
(iii)Navion P/N 147-30013-203 for airplanes equipped with left tip, right tip and main tanks. Before further flight after any inspection required by this AD where corrective actions are necessary. Use the following service information:
(A)Sierra Hotel Aero, Inc. Navion Service Bulletin No. 106, dated February 27, 2007.
(B)Sierra Hotel Aero, Inc. Navion Service Bulletin No. 101A, dated August 23, 2005.
(C)Navion Aircraft Corporation Navion Service letter # 87, dated February 20, 1965.
(3)As terminating action for the required repetitive inspections in paragraph (e)(1) of this AD, you may replace the fuel selector valve with the applicable P/N as specified in paragraphs (e)(2)(i), (e)(2)(ii), and (e)(2)(iii) of this AD. At any time after the initial inspection required in paragraph (e)(1) of this AD; however, if replacement of the fuel selector valve is required as a corrective action as specified in Sierra Hotel Aero, Inc. Navion Service Bulletin No. 106, dated February 27, 2007, then you must replace before further flight. Follow the procedures in Sierra Hotel Aero, Inc. Navion Service Bulletin No. 101A, dated August 23, 2005. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Chicago Aircraft Certification Office, FAA, ATTN: Tim Smyth, Aerospace Engineer, 2300 East Devon Avenue, Room 107, Des Plaines, Illinois 60018; telephone:
(847)294-7132; fax:
(847)294-7834, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(g)To get copies of the service information referenced in this AD, contact Sierra Hotel Aero, 1690 Aeronca Lane, South St. Paul, MN 55075; phone:
(651)306-1456; fax:
(612)677-3171; Internet: *http://www.navion.com/servicebulletins.html;* e-mail: *servicebulletinsupport@navion.com.* To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://dms.dot.gov.* The docket number is Docket No. FAA-2007-27611; Directorate Identifier 2007-CE-024-AD. Issued in Kansas City, Missouri, on April 6, 2007. Kim Smith, Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-6928 Filed 4-11-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27849; Directorate Identifier 2006-NM-249-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Model Falcon 2000EX and Falcon 900EX Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as some stringer reinforcements (F900DX) and some rivets (F900DX/F2000EX) missing from the skin panels on each side of the fuselage between frames 9 and 10 on certain Falcon 900DX and Falcon 2000EX EASy aircraft; this situation affects the structural integrity of the fuselage. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 14, 2007. ADDRESSES: You may send comments by any of the following methods: • *DOT Docket Web Site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Fax:*
(202)493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the instructions for submitting comments. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27849; Directorate Identifier 2006-NM-249-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Emergency Airworthiness Directive 2006-0320-E, dated October 18, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states that following the incorporation of a design change to the Karman fairing, it has been determined that some stringer reinforcements (F900DX) and some rivets (F900DX/F2000EX) are missing from the skin panels on each side of the fuselage between frames 9 and 10 on certain Falcon 900DX and Falcon 2000EX EASy aircraft. This situation affects the structural integrity of the fuselage and may lead to an unsafe condition if left uncorrected. The MCAI was issued to recover the certificated structural strength by adding the missing rivets and checking the condition of the adjacent structure, and to add the missing stringer caps on F900DX (as appropriate). These actions include inspecting the area, including holes and structure, where missing rivets are found, and contacting the manufacturer if the holes are out-of-round beyond tolerance, or if cracks are found, as applicable. Relevant Service Information Dassault has issued Service Bulletin F900EX-308, dated October 18, 2006, and Service Bulletin Falcon F2000EX-133, dated September 28, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the proposed AD. These requirements, if ultimately adopted, will take precedence over the actions copied from the MCAI. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 2 products of U.S. registry. We also estimate that it would take about 170 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $27,200, or $13,600 per product. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Dassault Aviation:** Docket No. FAA-2007-27849; Directorate Identifier 2006-NM-249-AD. Comments Due Date
(a)We must receive comments by May 14, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Dassault Model Falcon 2000EX airplanes, S/N (serial number) 82; and Falcon 900EX (version F900DX) airplanes, S/Ns 601 through 605; certificated in any category. Reason
(d)The mandatory continuing airworthiness information
(MCAI)states that following the incorporation of a design change to the Karman fairing, it has been determined that some stringer reinforcements (F900DX) and some rivets (F900DX/F2000EX) are missing from the skin panels on each side of the fuselage between frames 9 and 10 on certain Falcon 900DX and Falcon 2000EX EASy aircraft. This situation affects the structural integrity of the fuselage and may lead to an unsafe condition if left uncorrected. The MCAI was issued to recover the certificated structural strength by adding the missing rivets and checking the condition of the adjacent structure, and to add the missing stringer caps on F900DX (as appropriate). These actions include inspecting the area, including holes and structure, where missing rivets are found, and contacting the manufacturer if the holes are out-of-round beyond tolerance, or if cracks are found, as applicable. Actions and Compliance
(e)Within 3 months after the effective date of this AD, unless already done, do the following actions: Inspect and repair the aircraft in accordance with the instructions of Dassault Service Bulletin F900EX-308, dated October 18, 2006, for version F900DX, S/N 601 through 605; and Dassault Service Bulletin F2000EX-133, dated September 28, 2006, for Model F2000EX S/N 82. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(f)The following provisions also apply to this AD:
(1)Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, FAA, ATTN: Tom Rodriguez, Aerospace Engineer, 1601 Lind Avenue, SW., Renton, Washington 98057-3356, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(2)Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(g)Refer to MCAI EASA Emergency Airworthiness Directive 2006-0320-E, dated October 18, 2006; Dassault Service Bulletin F900EX-308, dated October 18, 2006; and Dassault Service Bulletin F2000EX-133, dated September 28, 2006, for related information. Issued in Renton, Washington, on April 5, 2007. Stephen P. Boyd, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-6932 Filed 4-11-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-144859-04] RIN 1545-BD72 Section 1367 Regarding Open Account Debt AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking and notice of public hearing. SUMMARY: This document proposes amendments to the regulations relating to the treatment of open account debt between S corporations and their shareholders. These proposed regulations provide rules regarding the definition of open account debt and the adjustments in basis of any indebtedness of an S corporation to a shareholder under section 1367(b)(2) of the Internal Revenue Code
(Code)for shareholder advances and repayments on advances of open account debt. The proposed regulations affect shareholders of S corporations and are necessary to provide guidance needed to comply with the applicable tax law. This document also provides notice of a public hearing. DATES: Written or electronic comments and requests for a public hearing must be received by July 11, 2007. Outlines of topics to be discussed at the public hearing scheduled for July 31, 2007, at 10 a.m., must be received by July 10, 2007. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-144859-04), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions also may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (REG-144859-04), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC, or sent electronically, via the Federal eRulemaking Portal at * http:// www.regulations.gov * (IRS REG-144859-04). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, Stacy L. Short or Deane M. Burke,
(202)622-3070; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard Hurst at
(202)622-2949 (TDD Telephone) (not toll free numbers) and his e-mail address is *Richard.A.Hurst@irscounsel.treas.gov* ,
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Paperwork Reduction Act The collections of information contained in this notice of proposed rulemaking have been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). Comments on the collections of information should be sent to the Office of Management and Budget, Attention: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attention: IRS Reports Clearance Officer, T:FP, Washington, DC 20224. The recordkeeping requirement in these proposed regulations is in § 1.1367-2(a)(2)(i). This information must be maintained by the shareholder to ensure that the indebtedness of the S corporation to the shareholder continues to meet the definition of open account debt found in § 1.1367-2(a)(2)(i). The recordkeepers will be S corporation shareholders who have open account debt. The following estimates are an approximation of the average time expected to be necessary for a collection of information. They are based on the information that is available to the Internal Revenue Service. Individual recordkeepers may require greater or less time, depending on their particular circumstances. *Estimated total annual recordkeeping burden:* 250 hours. *Estimated average annual burden:* Hours per recordkeeper varies from .75 to 1.25 hours, depending on individual circumstances, with an estimated average of 1 hour. *Estimated number of recordkeepers:* 250. *Estimated annual frequency of recordkeeping:* On occasion. Background This document proposes to amend § 1.1367-2 of the Income Tax Regulations (26 CFR part 1) regarding the definition of open account debt and adjustments in basis of indebtedness for shareholder advances and repayments on advances of open account debt. Section 1367(a)(1) provides that the basis of each shareholder's stock in an S corporation is increased by the shareholder's pro rata share of the S corporation's income (separately and nonseparately computed items of income) and the excess of the deductions for depletion over the basis of the property subject to depletion. Section 1367(a)(2) provides that the basis of each shareholder's stock in the S corporation is decreased by the shareholder's pro rata share of distributions not includible in income of the shareholder by reason of section 1368 (nontaxable distributions), losses and deductions (separately and non-separately computed losses), any expense of the corporation that is not deductible and not properly chargeable to capital account, and certain deductions for depletion for any oil and gas property held by the S corporation. Under section 1367(b)(2)(A), if for any taxable year the amounts specified in section 1367(a)(2) (other than distributions) exceed the amount which reduces the shareholder's basis to zero, such excess losses and deductions shall be applied to reduce (but not below zero) the shareholder's basis in any indebtedness of the S corporation to the shareholder. Section 1367(b)(2)(B) provides that if a shareholder's basis in indebtedness is reduced for any taxable year, any net increase (the amount by which the items described in section 1367(a)(1) exceed the items described in section 1367(a)(2)) for any subsequent taxable year is applied to restore the reduction in basis in indebtedness before any of the excess is used to increase basis in stock. On January 3, 1994, the Treasury Department and the IRS published final regulations under section 1367 of the Code (TD 8508, 59 FR 12, amended on December 22, 1999 (TD 8852, 64 FR 71641)). Those final regulations relate, in part, to adjustments to basis in both stock of shareholders and indebtedness of an S corporation to its shareholders. Section 1.1367-2 of the Income Tax Regulations provides specific rules for required adjustments (reductions and restorations) to basis in any indebtedness of an S corporation to a shareholder. Section 1.1367-2(a) also provides that for purposes of adjustments to basis of indebtedness to shareholders, shareholder advances not evidenced by separate written instruments and repayments on the advances (open account debt) are treated as a single indebtedness. Further, § 1.1367-2(a) provides that the basis of indebtedness of the S corporation to a shareholder is reduced as provided in § 1.1367-2(b) and restored as provided in § 1.1367-2(c). Thus, the basis adjustment rules under the final regulations apply to all indebtedness of an S corporation to a shareholder, whether the indebtedness is evidenced by a written instrument or is open account debt. Section 1.1367-2(b) provides the rules for the reduction of basis of indebtedness of an S corporation to a shareholder. Generally, under § 1.1367-2(b)(1), if the basis of a shareholder's stock in the S corporation has been reduced to zero under section 1367(a)(2), the excess of certain losses and deductions specified in section 1367(a)(2) is applied to reduce (but not below zero) the basis of any indebtedness of the S corporation to the shareholder held by the shareholder at the close of the S corporation's taxable year. Any indebtedness of the S corporation to the shareholder that has been satisfied by the S corporation, or disposed of or forgiven by the shareholder during the taxable year, is not held by the shareholder at the close of that year and is not subject to basis reduction. Further, § 1.1367-2(b)(2) provides that if the interest of the shareholder in the S corporation is terminated during the taxable year, the rules in § 1.1367-2(b) are applied to any indebtedness of the S corporation to the shareholder held by the shareholder immediately before the termination of the shareholder's interest in the S corporation. If a shareholder holds more than one indebtedness at the close of the taxable year (or, if applicable, immediately prior to the termination of the shareholder's interest in the corporation), the basis of each indebtedness is reduced under § 1.1367-2(b)(3) in the same proportion that the basis of each indebtedness bears to the aggregate bases of the indebtedness of the S corporation to the shareholder. Section 1.1367-2(c) provides the rules for restoring basis of indebtedness of an S corporation to a shareholder. Generally, under § 1.1367-2(c)(1), if, for any taxable year of the S corporation, there has been a reduction in the basis of an indebtedness of the S corporation to a shareholder, any net increase in any subsequent taxable year of the S corporation is applied to restore that reduction. For purposes of § 1.1367-2, a net increase is the amount by which the shareholder's pro rata share of S corporation items described in section 1367(a)(1) exceed the items described in section 1367(a)(2) for the taxable year. The restoration rules apply only to indebtedness held by the shareholder as of the beginning of the taxable year in which the net increase arises. Further, the reduction in basis of indebtedness must be restored before a net increase is used to restore the shareholder's basis in stock. The shareholder's basis in indebtedness may not be restored above the adjusted basis of the indebtedness under section 1016(a) (excluding any prior year's adjustments under section 1367), determined as of the beginning of the taxable year in which the net increase arises. Under § 1.1367-2(c)(2), if a shareholder holds more than one indebtedness as of the beginning of an S corporation's taxable year, any net increase is applied first to restore the reduction of basis in any indebtedness repaid (in whole or in part) in that taxable year to the extent necessary to offset any gain that would otherwise be realized on the repayment. Any remaining net increase is applied to restore each outstanding indebtedness in proportion to the amount that the basis of each outstanding indebtedness has been reduced and not restored. Section 1.1367-2(d) provides rules for the time at which adjustments to basis of indebtedness under section 1367(b)(2) are effective. Generally, under § 1.1367-2(d)(1) the amount of the adjustments to basis of indebtedness are determined and effective as of the close of an S corporation's taxable year. However, if the shareholder is not a shareholder in the S corporation at that time, the adjustments are effective immediately before the shareholder's interest in the S corporation is terminated. Moreover, if a debt is disposed of or repaid, in whole or in part, before the close of the taxable year, the basis of that debt is restored effective immediately before the disposition or the first repayment on the debt during the taxable year. On August 25, 2005, the Tax Court issued its decision in *Brooks* v. *Commissioner,* TC Memo. 2005-204. In *Brooks,* the taxpayer borrowed money from a bank and advanced that money as open account debt to his S corporation in one taxable year and reduced basis in that open account debt for losses passed through to the taxpayer at the end of that same year. In the first few weeks of the subsequent taxable year, the S corporation repaid the open account debt (the taxpayer then repaid his debt for the borrowed money). Late in that subsequent year, the taxpayer advanced additional money (again, amounts borrowed from a bank) in an amount that offset the repayment of advances to avoid the recognition of gain from repayment of the indebtedness. Also, the taxpayer's advances increased the shareholder's basis in the indebtedness and allowed losses for that year to pass through to the taxpayer shareholder. Taxpayer and the S corporation made these repayments and advances for several taxable years and deferred indefinitely the recognition of income on any repayment of his open account debt. The court in *Brooks* held “that the basis of the open account indebtedness is properly computed by netting at the close of the year advances of open account debt during the year and repayments of open account debt during the year.” Explanation of Provisions The Treasury Department and the IRS believe that the concept of “open account debt” as defined in § 1.1367-2(a) was intended to provide administrative simplicity for S corporations but was not intended to permit the deferral allowed in *Brooks.* The IRS and Treasury Department are proposing these amendments to narrow the definition of open account debt and to modify the rules for adjustments of basis in indebtedness for the more narrowly defined open account debt. In these proposed regulations, open account debt is defined as shareholder advances not evidenced by separate written instruments for which the principal amount of the aggregate advances (net of repayments on the advances) does not exceed $10,000 at the close of any day during the S corporation's taxable year. Included within that definition are separate advances under a line of credit agreement if the advances are not evidenced by a separate written instrument. Open account debt is treated as a single indebtedness. This $10,000 limitation on open account debt for the purposes of the § 1.1367-2 regulations is modeled after section 7872(c)(3) and the § 1.7872-9 proposed regulations, which provide a $10,000 de minimis exception to the treatment of loans with below-market interest rates for compensation-related or corporation-shareholder loans. Under these proposed regulations, to determine whether shareholder advances and repayments on the advances exceed the $10,000 aggregate principal threshold on any day during the S corporation's taxable year for open account debt, the shareholder will have to maintain a “running balance” of those advances and repayments, and the outstanding principal amount of the open account debt. If the resulting aggregate principal of the running balance does not exceed $10,000 at the close of any day during the S corporation's taxable year, the advances and repayments on advances would constitute open account debt, would be treated as a single indebtedness, and would be accounted for at the close of the taxable year (as explained in this preamble). However, if the resulting aggregate principal of the running balance exceeds $10,000 at the close of any day during the S corporation's taxable year, the entire principal amount of that indebtedness would no longer constitute open account debt effective at the close of the day on the date the amount of the running balance exceeds $10,000. This principal amount would be treated as indebtedness evidenced by a written instrument for that taxable year, and would be accounted for according to the timing rules in § 1.1367-2(d) for that taxable year and subsequent taxable years. Any new shareholder advances not evidenced by a written instrument and repayments on those advances within the $10,000 aggregate principal threshold amount during the taxable year would constitute a new open account debt. The proposed regulations also modify the manner in which repayments on open account debt are accounted for under the existing final § 1.1367-2 regulations. These rules are separate from the maintenance of a running balance of the advances and repayments to determine if a shareholder has exceeded the $10,000 threshold amount. For purposes of accounting for open account debt, each shareholder, at the end of the S corporation's taxable year, must determine if that shareholder has made a net advance or received a net repayment on open account debt for that taxable year. To determine if a net advance or a net repayment has occurred, each shareholder, at the end of the S corporation's taxable year, must net all advances and repayments made during the year without regard to the outstanding principal amount of the open account debt. If, at the end of the taxable year, a net repayment exists, the net repayment must be taken into account effective at the close of the S corporation's taxable year under the general basis adjustment rules in the existing final § 1.1367-2 regulations. If, at the end of the taxable year, a net advance exists, the net advance is combined with the outstanding aggregate principal balance of the existing open account debt and that amount is carried forward to the beginning of the subsequent taxable year as the outstanding aggregate principal amount of the open account debt. If at any time during the taxable year the resulting aggregate principal of the running balance exceeds the $10,000 threshold amount so the entire principal amount of the indebtedness no longer constitutes open account debt, the running balance must be reconciled effective at the close of the day the balance exceeds $10,000 to determine the aggregate principal amount of the indebtedness, and for the remainder of the taxable year that principal amount is treated in the same manner as indebtedness evidenced by a written instrument for the purposes of this section. Proposed Effective Date The regulations, as proposed, apply to any shareholder advances to the S corporation made on or after the date of publication of a Treasury decision adopting these rules as final regulations in the **Federal Register** and repayments on those advances by the S corporation. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. Because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight
(8)copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing has been scheduled for July 31, 2007, beginning at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the “ FOR FURTHER INFORMATION CONTACT ” section of this preamble. The rules of 26 CFR 606.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and time to be devoted to each topic (a signed original and eight
(8)copies) by July 10, 2007. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal authors of these regulations are Stacy L. Short and Deane M. Burke of the Office of the Associate Chief Counsel (Passthroughs and Special Industries), IRS. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAX **Paragraph 1.** The authority citation for part 1 is amended by adding an entry in numerical order to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.1367-2 also issued under 26 U.S.C. 1367(b)(2). * * * > **Par. 2.** Section 1.1367-2 is amended as follows: 1. Paragraph
(a)is revised. 2. Paragraphs (c)(2) and (d)(1) are revised. 3. Paragraph (d)(2) is redesignated as paragraph (d)(3). 4. New paragraph (d)(2) is added. 5. Paragraph
(e)is amended by adding Examples 6 and 7. The revisions and additions read as follows: § 1.1367-2 Adjustments to basis of indebtedness to shareholder.
(a)*In general* —(1) *Adjustments under section 1367.* This section provides rules relating to adjustments required by subchapter S to the basis of indebtedness (including open account debt as described in paragraph (a)(2) of this section) of an S corporation to a shareholder. The basis of indebtedness of the S corporation to a shareholder is reduced as provided in paragraph
(b)of this section and restored as provided in paragraph
(c)of this section in accordance with the timing rules in paragraph
(d)of this section.
(2)*Open account debt* —(i) *General rule.* The term *open account debt* means shareholder advances not evidenced by separate written instruments and repayments on the advances, the aggregate outstanding principal of which does not exceed $10,000 of indebtedness of the S corporation to the shareholder at the close of any day during the S corporation's taxable year. Advances and repayments on open account debt are treated as a single indebtedness. For purposes of determining if shareholder advances not evidenced by separate written instruments and repayments on those advances exceed an aggregate outstanding principal of $10,000, a shareholder must maintain a running daily balance of all advances and repayments on those advances and the outstanding principal amount of the open account debt at the close of each day during the S corporation's taxable year.
(ii)*Exception.* If a shareholder's running balance exceeds an aggregate outstanding principal amount of $10,000 at the close of any day during the S corporation's taxable year, effective on the close of the day on which the shareholder's running balance exceeds $10,000, the running balance must be reconciled to determine the aggregate principal amount of indebtedness. For the remainder of the taxable year, that aggregate principal amount of indebtedness is treated in the same manner as indebtedness evidenced by a separate written instrument for purposes of this section. For the remainder of that taxable year and subsequent taxable years, the indebtedness is not open account debt and is subject to all basis adjustment rules applicable to basis of indebtedness of an S corporation to a shareholder in this section.
(c)* * *
(1)* * *
(2)*Multiple indebtedness.* If a shareholder holds more than one indebtedness (including any open account debt and any debt treated as a single indebtedness under paragraph (a)(2)(ii) of this section) as of the beginning of an S corporation's taxable year, any net increase is applied first to restore the reduction of basis in any indebtedness repaid (in whole or in part) in that taxable year to the extent necessary to offset any gain that would otherwise be realized on the repayment. Any remaining net increase is applied to restore each outstanding indebtedness (including any open account debt and any debt treated as a single indebtedness under paragraph (a)(2)(ii) of this section) in proportion to the amount that the basis of each outstanding indebtedness has been reduced under section 1367(b)(2)(A) and paragraph
(b)of this section and not restored under section 1367(b)(2)(B) and this paragraph (c).
(d)*Time at which adjustments to basis of indebtedness are effective* —(1) *In general.* Except as provided in paragraph (d)(2) of this section, the amounts of the adjustments to basis of indebtedness provided in section 1367(b)(2) and this section are determined as of the close of the S corporation's taxable year, and the adjustments are generally effective as of the close of the S corporation's taxable year. However, if the shareholder is not a shareholder in the S corporation at that time, these adjustments are effective immediately before the shareholder terminates his or her interest in the S corporation. If a debt (including any open account debt and any debt treated as a single indebtedness under paragraph (a)(2)(ii) of this section) is disposed of or repaid in whole or in part before the close of the taxable year, the basis of that indebtedness is restored under paragraph
(c)of this section, effective immediately before the disposition or the first repayment on the debt (or the net repayment on open account debt) during the taxable year. To the extent any reduction of basis in indebtedness under paragraph
(b)of this section that is disposed of or repaid (in whole or in part) during the taxable year is not restored completely under paragraph
(c)of this section, gain is realized on the repayment effective immediately before the indebtedness is disposed of or repaid (in whole or in part).
(2)*Open account debt* —(i) *In general.* All advances and repayments on open account debt (as described in paragraph (a)(2)(i) of this section) during the taxable year are netted continuously as the advances and repayments occur. The amount of any net advance or net repayment on open account debt for the S corporation's taxable year is determined at the close of the taxable year. If the shareholder advances, and repayments on the advances, during the S corporation's taxable year result in a net advance or net repayment, the basis of the open account debt is reduced as provided in paragraph
(b)of this section and restored as provided in paragraph
(c)of this section effective at the close of the taxable year. To the extent any reduction of basis of open account debt under paragraph
(b)of this section that is disposed of or repaid (in whole or in part) during the taxable year is not restored completely under paragraph
(c)of this section, income is realized on the net repayment at the close of the taxable year in which the open account debt is disposed of or repaid (in whole or in part).
(ii)*Exception.* On the close of the day on which the shareholder's running balance exceeds an aggregate outstanding principal amount of $10,000, the shareholder's running balance is reconciled to determine an aggregate principal amount of indebtedness. The resulting aggregate principal amount of indebtedness is treated as the principal amount of a debt evidenced by a separate written instrument for the remainder of that taxable year and any subsequent taxable year, and is no longer subject to the open account debt provisions of this section.
(e)* * * Example 6. *Treatment of open account debt.*
(i)A has been the sole shareholder in Corporation S since 2000. In 2007, A advances S $8,000, which is not evidenced by a written instrument. The $8,000 advance is open account debt and remains outstanding at that amount during 2007. On December 31, 2007, the basis of A's stock is zero; and the basis of the open account debt is reduced under paragraph
(b)of this section to $4,000. On April 1, 2008, S repays $3,000 of the open account indebtedness. On September 1, 2008, A advances S an additional $2,000, which is not evidenced by a written instrument. There is no net increase under paragraph
(c)of this section in year 2007 or 2008.
(ii)At no time during the 2007 taxable year does the running balance of A's open account debt exceed $10,000. As of December 31, 2007, A's basis in the open account debt is reduced under paragraph
(b)of this section to $4,000.
(iii)At no time during the 2008 taxable year does the running balance of A's open account debt exceed $10,000. On April 1, 2008, S's $3,000 repayment is applied to A's running balance for open account debt carried forward from 2007 in the amount of $8,000 to reduce the running balance to $5,000. On September 1, 2008, A's advance to S of $2,000, which is not evidenced by a written instrument, is applied to A's running balance to bring A's aggregate outstanding principal on A's open account indebtedness to $7,000.
(iv)At the close of the 2008 taxable year, the $3,000 April repayment S makes to A and A's $2,000 September advance are netted to result in a net repayment of $1,000 for the taxable year on A's $8,000 open account debt carried forward from 2007. Because there is no net increase in 2008, no basis of indebtedness is restored for the 2008 taxable year. Example 7. *Treatment of shareholder indebtedness not evidenced by a written instrument which exceeds $10,000.*
(i)The facts are the same as in Example 6, in addition to which, on February 1, 2008, S repays $1,000 of the open account debt and on March 1, 2008, A advances S $5,000, which is not evidenced by a written instrument.
(ii)At no time during the 2007 taxable year does the running balance of A's open account debt exceed $10,000. As of December 31, 2007, the basis of the open account debt is reduced under paragraph
(b)of this section to $4,000.
(iii)The running balance of A's open account debt does exceed $10,000 during the 2008 taxable year. On February 1, 2008, S's $1,000 repayment is applied to A's running balance for open account debt carried forward from 2007 in the amount of $8,000 to reduce the running balance to $7,000. On March 1, 2008, A's advance to S of $5,000, which is not evidenced by a written instrument, is applied to A's running balance to bring A's aggregate outstanding principal on A's open account debt to $12,000. Because this amount exceeds the $10,000 threshold amount, effective at the close of the day on March 1, 2008, A's running balance must be reconciled to determine an aggregate principal amount of indebtedness.
(iv)As of March 1, 2008, S had made a $1,000 repayment on A's open account debt, and A had advanced an additional $5,000 which was not evidenced by a written instrument. To reconcile A's running balance, the $1,000 repayment and $5,000 advance are netted first to result in a $4,000 net advance that is then added with A's existing principal amount of open account debt of $8,000 to determine the aggregate principal amount of indebtedness of $12,000. As of March 1, 2008, S's indebtedness to A that is not evidenced by a written instrument has a principal balance of $12,000 and a basis of $8,000 ($4,000 basis on December 31, 2007 + $4,000 net advance). On April 1, 2008, S repays $3,000 of that new indebtedness.
(v)On September 1, 2008, A advances S an additional $2,000, which is not evidenced by a written instrument. The $2,000 advance is considered new open account debt. On December 31, 2008, A's basis in his stock is zero and the outstanding principal in the two remaining debts are as follows: 3/1/08 principal 4/1/08 repayment 9/1/08 advance 12/31/08 principal Indebtedness treated as if evidenced by written instrument $12,000 $3,000 $9,000 Open account debt $2,000 2,000 **Par. 3.** Section 1.1367-3 is amended as follows: 1. The section heading is revised. 2. The first sentence of the paragraph is revised. 3. A new second and last sentence are added. The revisions and additions read as follows: § 1.1367-3 Effective dates and transitional rules. Section 1.1367-2(a), (c)(2), (d)(2), and
(e)*Example 6* and *Example 7* apply to any shareholder advances to the S corporation made on or after the date these regulations are published as final regulations in the **Federal Register** and repayments on those advances by the S corporation. Kevin M. Brown, Deputy Commissioner for Services and Enforcement. [FR Doc. E7-6764 Filed 4-11-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD05-07-031] RIN 1625-AA08 Special Local Regulations for Marine Events; York River, Yorktown, VA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish special local regulations during the “Watermen's Heritage Festival Workboat Races,” a marine event to be held July 15, 2007 on the waters of the York River, Yorktown, Virginia. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to temporarily restrict vessel traffic in a portion of the York River during the event. DATES: Comments and related material must reach the Coast Guard on or before May 14, 2007. ADDRESSES: You may mail comments and related material to Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, hand-deliver them to Room 415 at the same address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays, or fax them to
(757)398-6203. The Inspections and Investigations Branch, Fifth Coast Guard District, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the above address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Project Manager, Fifth Coast Guard District, Inspections and Investigations Branch, at
(757)398-6204. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-07-031), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address listed under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose On July 15, 2007, the Watermen's Museum of Yorktown, VA will sponsor “Watermen's Heritage Festival Workboat Races” on the York River, immediately adjacent and north of the shoreline at Yorktown River Cliffs. The event will consist of approximately 40 traditional Chesapeake Bay deadrise workboats racing along a marked straight line race course in heats of 2 to 4 boats for a distance of approximately 1000 yards. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators and other transiting vessels. Discussion of Proposed Rule The Coast Guard proposes to establish temporary special local regulations on specified waters of the York River, Yorktown, Virginia. The regulations will be in effect from 9 a.m. to 5:30 p.m. on July 15, 2007. The effect will be to restrict general navigation in the regulated area during the event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Vessel traffic will be allowed to transit the regulated area at slow speed between heats, when the Coast Guard Patrol Commander determines it is safe to do so. These regulations are needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels. Regulatory Evaluation This proposed 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this regulation will prevent traffic from transiting a portion of the York River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners, marine information broadcasts, area newspapers and local radio stations, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area at slow speed between heats, when the Coast Guard Patrol Commander deems it is safe to do so. In many cases vessel traffic will be able to transit around the regulated using the marked navigation channel along the York River. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the York River during the event. Although this regulation prevents traffic from transiting a portion of the York River during the event, this proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would 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 proposed 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed 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 (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows: PART 100—REGATTAS AND MARINE PARADES 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. 2. Add a temporary § 100.35-T05-031 to read as follows: § 100.35-T05-031 York River, Yorktown, VA.
(a)*Regulated area* . The regulated area includes the waters of the York River, Yorktown, Virginia, bounded on the west by a line drawn along longitude 076°31′30″ West, bounded on the east by a line drawn along longitude 076°30′50″ West, bounded on the south by the shoreline and bounded on the north by a line drawn parallel and 400 yards north of the southern shoreline. All coordinates reference Datum NAD 1983.
(b)*Definitions:* The following definitions apply to this section:
(1)*Coast Guard Patrol Commander* means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector Hampton Roads.
(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector Hampton Roads with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.
(3)*Participant* includes all vessels participating in the Watermen's Heritage Festival Workboat races under the auspices of a Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector Hampton Roads.
(c)*Special local regulations:*
(1)Except for event participants and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.
(2)The operator of any vessel in the regulated area shall:
(i)Stop the vessel immediately when directed to do so by any Official Patrol.
(ii)Proceed as directed by any Official Patrol.
(iii)When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course.
(d)*Effective period:* This section will enforced from 9 a.m. to 5:30 p.m. on July 15, 2007. Dated: March 29, 2007. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E7-6943 Filed 4-11-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD05-07-027] RIN 1625-AA08 Special Local Regulations for Marine Events; Pasquotank River, Elizabeth City, NC AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish special local regulations for the “Carolina Cup Regatta”, a power boat race to be held on the waters of the Pasquotank River, Elizabeth City, North Carolina. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in portions on the Pasquotank River adjacent to Elizabeth City, North Carolina during the power boat race. DATES: Comments and related material must reach the Coast Guard on or before May 14, 2007. ADDRESSES: You may mail comments and related material to Commander Fifth Coast Guard District (dpi), 431 Crawford Street, Portsmouth, Virginia 23704-5004, hand-deliver them to Room 415 at the same address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays, fax them to (757)391-8149, or e-mail them to *Dennis.M.Sens@uscg.mil.* The Inspections and Investigations Branch, Fifth Coast Guard District, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the above address between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: CWO Humphrey, Marine Event Coordinator, Coast Guard Sector North Carolina at (252)247-4525. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD05-07-027], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose On June 9 and 10, 2007, the Virginia Boat Racing Association will sponsor the “Carolina Cup Regatta”, on the waters of the Pasquotank River. The event will consist of approximately 60 inboard hydroplanes racing in heats counter clockwise around an oval race course. A fleet of spectator vessels is anticipated to gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Discussion of Proposed Rule The Coast Guard purposes to establish temporary special local regulations on specified waters on the Pasquotank River adjacent to Elizabeth City, North Carolina. The regulated area includes a section of the Pasquotank River approximately one mile long and bounded in width by each shoreline. This rule would be enforced from 7 a.m. to 7 p.m. on June 9 and 10, 2007, and would restrict general navigation in the regulated area during the power boat race. The Coast Guard, at its discretion, when practical would allow the passage of vessels when races are not taking place. Except for participants and vessels authorized by the Coast Guard Patrol Commander, no person or vessel would be allowed to enter or remain in the regulated area during the enforcement period. Regulatory Evaluation This proposed 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. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this proposed regulation would prevent traffic from transiting a portion of the Pasquotank River adjacent to Elizabeth City, North Carolina during the event, the effects of this regulation would not be significant due to the limited duration that the regulated area would be in effect. Extensive advance notifications would be made to the maritime community via Local Notice to Mariners, marine information broadcast, and area newspapers, so mariners can adjust their plans accordingly. Vessel traffic would be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it is safe to do so. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit this section of the Pasquotank River during the event. This purposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be enforced for only a short period, from 7 a.m. to 7 p.m. on June 9 and 10, 2007. The regulated area will apply to a segment of the Pasquotank River adjacent to the Elizabeth City waterfront. Marine traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area during the event, vessels will be required to proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course. Before the enforcement period, we would issue maritime advisories so mariners can adjust their plans accordingly. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Coast Guard at the address listed under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call 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 proposed 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 proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would 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 proposed 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 proposed 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 proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination 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, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine parade permit are specifically excluded from further analysis and documentation under that section. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows: PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233. 2. Add temporary § 100.35-T05-027 to read as follows: § 100.35-T05-027 Pasquotank River, Elizabeth City, NC.
(a)*Regulated area.* The regulated area is established for the waters of the Pasquotank River, adjacent to Elizabeth City, NC, from shoreline to shoreline, bounded on the west by the Elizabeth City Draw Bridge and bounded on the east by a line originating at a point along the shoreline at latitude 36°17′54″ N., longitude 076°12′00″ W., thence southwesterly to latitude 36°17′35″ N., longitude 076°12′18″ W. at Cottage Point. All coordinates reference Datum NAD 1983.
(b)*Definitions.*
(1)*Coast Guard Patrol Commander* means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector North Carolina.
(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector North Carolina with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.
(3)*Participant* includes all vessels participating in the “Carolina Cup Regatta” under the auspices of the Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector North Carolina.
(c)*Special Local Regulations.*
(1)Except for event participants and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.
(2)The operator of any vessel in the regulated area shall:
(i)Stop the vessel immediately when directed to do so by any Official Patrol and then proceed only as directed.
(ii)All persons and vessels shall comply with the instructions of the Official Patrol.
(iii)When authorized to transit the regulated area, all vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course.
(d)*Enforcement period.* This section will be enforced from 7 a.m. to 7 p.m. on June 9 and 10, 2007. Dated: March 29, 2007. Larry L. Hereth, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E7-6939 Filed 4-11-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2006-0787-200621(b); FRL-8297-3] Approval and Promulgation of Implementation Plans; Tennessee: Approval of Revisions to the Knox County Portion of the Tennessee State Implementation Plan AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the State Implementation Plan
(SIP)submitted by the State of Tennessee, through Tennessee Department of Environment and Conservation (TDEC), on August 18, 1999 and July 16, 2001. The revisions pertain to the Knox County portion of the Tennessee SIP and include changes to the Knox County Air Quality Regulations Section 51.0—Standards for Cement Kilns. These standards set nitrogen oxides (NO <sup>X</sup> ) emissions control, compliance demonstration, certification, record keeping, and reporting requirements for Portland cement kilns in the County. The revisions were initially reviewed by TDEC, which found them to be as stringent as the State's requirements. After review of this submittal, EPA concurs with TDEC's finding. The proposed changes are part of the Knox County strategy to meet the national ambient air quality standards by reducing the emissions of NO <sup>X</sup> , a precursor of ozone formation. Because of the harmful health effects of ozone, EPA limits the amount of volatile organic compounds and NO <sup>X</sup> that can be released into the atmosphere. This action is being taken pursuant to section 110 of the Clean Air Act. In the Final Rules Section of this **Federal Register** , the EPA is approving the State's SIP revisions as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no significant, material, and adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this rule. EPA will not institute a second comment period on this document. Any parties interested in commenting on this document should do so at this time. DATES: Written comments must be received on or before May 14, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2006-0787 by one of the following methods: 1. *www.regulations.gov:* Follow the online instructions for submitting comments. 2. *E-mail: louis.egide@epa.gov.* 3. *Fax:*
(404)562-9019. 4. *Mail:* “EPA-R04-OAR-2006-0787,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. *Hand Delivery or Courier:* Dr. Egide Louis, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, 12th floor, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Dr. Egide Louis, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9240. Dr. Louis can also be reached via electronic mail at *louis.egide@epa.gov.* SUPPLEMENTARY INFORMATION: For additional information see the direct final rule which is published in the Rules Section of this **Federal Register** . Dated: March 29, 2007. J.I. Palmer, Regional Administrator, Region 4. [FR Doc. E7-6718 Filed 4-11-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2006-0779; FRL-8296-4] Approval and Promulgation of Air Quality Implementation Plans; Wisconsin; Prevention of Significant Deterioration AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to revise the Code of Federal Regulations
(CFR)for the purpose of giving the Wisconsin Department of Natural Resources
(WDNR)full regulatory responsibility for EPA-issued Prevention of Significant Deterioration
(PSD)permits. WDNR has the necessary state legislative authority to take responsibility for the permits, and has demonstrated that it has adequate resources to maintain oversight of these permits. DATES: Comments must be received on or before May 14, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0779, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: blakley.pamela@epa.gov.* • *Fax:*
(312)886-5824. • *Mail:* Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* Pamela Blakley, Chief, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal holidays. Please see the direct final rule which is located in the Rules section of this **Federal Register** for detailed instructions on how to submit comments. FOR FURTHER INFORMATION CONTACT: Danny Marcus, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)353-8781, *marcus.danny@epa.gov.* SUPPLEMENTARY INFORMATION: In the final rules section of this **Federal Register** , EPA is approving the state's submittal as a direct final rule without prior proposal because the Agency views this as a non-controversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this **Federal Register** . Dated: March 27, 2007. Mary A. Gade, Regional Administrator, Region 5. [FR Doc. E7-6728 Filed 4-11-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2005-AL-0002-200623; FRL-8298-1] Approval and Promulgation of Implementation Plans: Alabama: Proposed Approval of Revisions to the Visible Emissions Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve the Visible Emissions portion of the State Implementation Plan
(SIP)revision submitted to EPA, by the Alabama Department of Environmental Management (ADEM), on September 11, 2003 (the “2003 ADEM submittal”), provided it is revised as described in this action and submitted as a SIP revision. The open burning portion of the submittal was previously approved in a separate action on March 9, 2006 (71 FR 12138). DATES: Comments must be received on or before June 11, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2005-AL-0002, by one of the following methods:
(a)*www.regulations.gov:* Follow the on-line instructions for submitting comments.
(b)*E-mail: harder.stacy@epa.gov.*
(c)*Fax:* 404-562-9019.
(d)*Mail:* “EPA-R04-OAR-2005-AL-0002,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
(e)*Hand Delivery or Courier:* Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, 12th floor, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. *Instructions:* Direct your comments to Docket ID No. “EPA-R04-OAR-2005-AL-0002.” EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or e-mail, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding legal holidays. FOR FURTHER INFORMATION CONTACT: Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9042. Ms. Harder can also be reached via electronic mail at *harder.stacy@epa.gov* . SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Proposing? II. Why Is EPA Proposing This Action? III. What Is the Rationale for This SIP Revision? IV. What Does the Visible Emissions Rule in the Current SIP Require, and What Changes Are Requested by ADEM? V. What Changes Does EPA Recommend to the Submittal? VI. What Technical Analysis Was Used To Support Approval of This SIP Revision? VII. What Happens Next? VIII. Proposed Action IX. Statutory and Executive Order Reviews I. What Action Is EPA Proposing? EPA is proposing an approval, under Section 110(k) of the Clean Air Act (CAA), of the Visible Emissions portion of the Alabama SIP revision submitted on September 11, 2003. This proposed approval is contingent upon Alabama submitting a revised SIP submission addressing EPA's concerns regarding impacts of the rule changes on attainment of the National Ambient Air Quality Standards (NAAQS). Because the necessary revisions would materially alter both the existing SIP approved rule and the submitted revision, the State must make a SIP submittal to effect the changes noted by EPA below. As with any SIP revision, the State must provide public notice of and a public hearing on the proposed changes. If, after consideration of public comments, EPA determines the revised SIP submission meets the requirements of the CAA and is consistent with the recommended changes outlined in this action, the Agency may proceed to publish its approval of the revised SIP in the **Federal Register** . Alabama's revised submittal must be consistent with the changes discussed in this action for EPA to approve its incorporation into the SIP. If the revised language does not conform specifically to the recommended changes, EPA will need to re-evaluate Alabama's submittal and, if the changes are approvable, re-propose approval of the SIP submittal. II. Why Is EPA Proposing This Action? EPA is taking this action in response to a request from ADEM to revise the Visible Emissions portion of Alabama's SIP rule pertaining to sources of particulate matter
(PM)emissions. The request, submitted to EPA on September 11, 2003, would revise Alabama SIP rule 335-3-4-.01 (“Visible Emissions”) by amending the requirements for units that operate continuous opacity monitoring systems
(COMS)and that are not subject to any opacity limits other than those in rule 335-3-4-.01(1) (“Visible Emissions Restrictions for Stationary Sources”). Under section 110(l) of the CAA, EPA may not approve revisions to SIPs if the revisions would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP), or any other applicable requirement of the CAA. In determining whether to approve a requested revision, EPA considers the relevant impacts of the proposed change in light of the type of requirement affected by the requested revision. In this instance, the State is proposing revisions to its opacity requirements. We define opacity as the degree to which emissions reduce the transmission of light and obscure the view of an object in the background. (See 40 CFR 60.2). A change in opacity standards may not necessarily impact on a State's ability to meet the PM NAAQS or any other applicable requirement of the Act because, as discussed further in this action, a reliable and direct correlation between opacity and PM emissions cannot be established without significant site-specific simultaneous testing of both PM emissions and opacity, particularly for short-term periods (e.g., 24 hours or less). Nonetheless, because there is at least an indirect relationship between opacity and PM emissions, including the use of opacity to track the effectiveness of PM control equipment operation, we considered the impact of Alabama's proposed revision on the NAAQS for PM10 and PM2.5, and on other applicable requirements. No changes are being proposed to revise the particulate mass limits in the Alabama SIP, and sources must continue to meet applicable emissions limits. EPA proposes to approve Alabama's revision, with our recommended changes, because we determined that, with the changes specified in this action, the SIP revision will not interfere with attainment of either of the PM NAAQS or with other applicable requirements. III. What Is the Rationale for This SIP Revision? Monitoring opacity by use of COMS provides far more data than EPA Reference Method 9, the compliance determination method specified by most SIPs, including Alabama's. Alabama adopted into the State's regulations the rule revision contained in the 2003 ADEM submittal on August 26, 2003, and has since operated under it as a State-only enforceable provision. The purpose of that rule revision was to make the State's regulation consistent with what had been its practice in exercising enforcement discretion with respect to use of COMS data since the early 1980's. In addition to requiring corrective actions and prompt reporting of deviations from permit terms, the State has other oversight procedures in place that ensure long, continuous periods of high opacity are properly addressed by the source. ADEM receives quarterly emissions reports from plants that utilize COMS, which indicate the opacity of the emissions from sources subject to this rule revision. ADEM reviews the information and determines if further action should be taken due to any opacity exceedances. The data is required to be in a format that includes source operating time, monitor operating time, exempt opacity exceedances, and non-exempt opacity exceedances. The reports include daily opacity exceedances as well as a summary of the data for the entire quarter. In these reports, the sources also calculate the percentage of operating time in which they had non-exempt opacity exceedances as well as the percentage of operating time with any (total of exempt and non-exempt) opacity exceedances. ADEM has developed a program that takes the summary data from the quarterly opacity reports and calculates the percentage of source operating time that the opacity of emissions from individual units (or multiple units with a common stack) exceeded the opacity standard due to non-exempt reasons during the calendar quarter. As a check on the quarterly calculations from the source, this program also calculates the percentage of operating time that the opacity of emissions from individual units exceeded the opacity standard for any reason. With this program, ADEM compares the performance of each unit to the historical performance of that unit as well as compares it to the performance of the other units at that plant and other similar plants in the State, and the performance of the unit to the two percent threshold in the Alabama submittal. If the performance of a unit is not consistent with its historical performance or the performance of other similar units in the State, ADEM can review the daily exceedances of the opacity standard for the unit in question to determine if the exceedances were sporadic, or grouped in consecutive hours or consecutive days. ADEM may also ask the company for a detailed explanation of the exceedances (or a subset of exceedances) during the calendar quarter. If, for a source subject to the new standard, the number of unexcused opacity exceedances is in excess of two percent of the source operating time for which the opacity standard was applicable during the quarter, formal enforcement action may proceed. Opacity limitations have typically accompanied periodic Reference Method 5 particulate matter compliance tests (Method 5 tests) in SIPs. That is, where Method 5 tests are used to demonstrate compliance with filterable PM mass emission limitations, opacity limits and associated monitoring are commonly used as an indirect monitor for PM emissions and as indicators of good PM control equipment operation during the periods between Method 5 tests. EPA has long recognized opacity monitoring as a method of ensuring proper control device operation. *See* 39 FR 9308, 9309 (Mar. 8, 1974) (NSPS Additions and Miscellaneous Amendments discussing opacity as an indicator of whether control equipment is properly maintained and operated). With use of continuous opacity monitors it is possible to have a continuous stream of opacity data. This results in the collection of many individual, short-term opacity measurements that reflect the full range of control device operating variability and, depending upon the amount of variability, may or may not be indicative of poor operation of control equipment and excess PM emissions. For example, coal-fired power generation facilities may experience sporadic opacity exceedances caused by variations in the constituents of coal burned. The revised Alabama rule shifts emphasis from isolated six-minute periods to longer periods that are more indicative of excess PM emissions and problems with operation and maintenance of control devices. As noted above, under the proposed revised rule, with the changes discussed in this action, an emissions unit is allowed:
(1)Up to 100 percent opacity during periods of startup, shutdown, load change, and rate change or other short, intermittent periods upon terms approved by ADEM's Director and included in a state-issued permit;
(2)up to 100 percent opacity for up to two percent of the operating time on a quarterly basis (less the exempted periods approved by ADEM's Director and included in a state-issued permit), for no more than 10 percent of the time on a daily basis; and
(3)up to 20 percent opacity for the rest of the time in a quarter. EPA believes this approach, along with the monitoring and oversight safeguards discussed above, make appropriate use of COMS data for ensuring compliance with PM limits. IV. What Does the Visible Emissions Rule in the Current SIP Require, and What Changes Are Requested by ADEM? The subject Visible Emissions rule is in Chapter 335-3-4 (“Control of Particulate Emissions”) of the Alabama SIP. The currently approved Alabama Rule 335-3-4-.01, “Visible Emissions,” has a generally applicable limit of 20 percent on opacity level and provides that one six-minute period per hour of up to 40 percent opacity is exempted 1 from the 20 percent limit. The Director of ADEM may also grant, as part of a permit issued by the State, exemptions to the 20 percent limit during startup, shutdown, load change and rate change or other short, intermittent periods that are in addition to the hourly six-minute 40 percent exemption. These exemptions are provided by subparagraphs (1)(b) and (1)(c), respectively. Additional exemptions for circumstances not relevant to this rulemaking are provided by subparagraphs (1)(d) 2 and (1)(e). 3 The text of the current rule reads, in relevant part, as follows: 1 Alabama Rule 335-3-4-.01, “Visible Emissions,” provides four specific “exceptions” to compliance with the generally applicable opacity limit at subparagraphs 335-3-4-.01(b), (c), (d), and (e). To be consistent with more common terminology, in this notice we refer to these as “exemptions.” 2 Subparagraph
(d)provides that ADEM's Director may approve exceptions to this Rule in the form of source-specific adjustments to the opacity standard, provided certain conditions are met demonstrating to the Director's satisfaction that, with the adjustment, the source would continue to comply with its SIP particulate matter mass emissions limit. 3 Subparagraph
(e)provides that the provisions of this Rule do not apply to combustion sources in single-family and duplex dwellings where such sources are used for heating or other domestic purposes.
(1)Visible Emissions Restrictions for Stationary Sources.
(a)Except as provided in subparagraphs (b), (c), (d), or
(e)of this paragraph, no person shall discharge into the atmosphere from any source of emission, particulate of an opacity greater than that designated as twenty percent (20%) opacity, as determined by a six
(6)minute average.
(b)During one six
(6)minute period in any sixty
(60)minute period, a person may discharge into the atmosphere from any source of emission, particulate of an opacity not greater than that designated as forty percent (40%) opacity.
(c)The Director may approve exceptions to this Rule or specific sources which hold permits under Chapter 335-3-14; provided however, such exceptions may be made for startup, shutdown, load change, and rate change or other short, intermittent periods of time upon terms approved by the Director and made a part of such permit.
(2)Compliance with opacity standards in this Rule shall be determined by conducting observations in accordance with Reference Method 9 in Appendix A, 40 CFR Part 60, as the same may be amended requiring a six
(6)minute average as determined by twenty-four
(24)consecutive readings, at intervals of fifteen
(15)seconds each. The 2003 ADEM submittal would add three new paragraphs, (3), (4), and (5), to Alabama Rule 335-3-4-.01 that apply only to those emissions units that use COMS for measuring opacity, that operate such systems according to Federal specifications, and that are subject only to those opacity limits of the State's SIP ( *e.g.* , not subject to opacity limits under any preconstruction permit or other regulation). The revision provides that these units will not be in violation of the State's generally applicable opacity limitation if the non-exempt excess emissions periods do not exceed two percent of the source operating hours for which the opacity standard is applicable and for which the COMS is indicating valid data, on a quarterly basis. The text of the proposed change reads as follows:
(3)The conditions in paragraph
(4)of this Rule apply to each emissions unit that meets all of the following requirements:
(a)A Continuous Opacity Monitoring System
(COMS)is used for indication of opacity of emissions;
(b)With respect to opacity limitations, the units are subject only to the opacity provisions stated in paragraph
(1)of this Rule; and
(c)The COMS system utilized is required to comply with the requirements of 40 CFR 60.13 or 40 CFR 75.14 (if applicable) and is required to be certified in accordance with the requirements of 40 CFR 60, Appendix B, Performance Specification 1.
(4)During each calendar quarter, the permittee will not be deemed in violation of Rule 335-3-4-.01(1) if the non-exempt excess emissions periods do not exceed 2.0 percent of the source operating hours for which the opacity standard is applicable and for which the COMS is indicating valid data.
(5)Nothing in paragraph
(4)of this Rule shall be construed to supercede the validity of opacity readings taken under paragraph
(2)of this Rule. In summary, under the 2003 submission, sources operating COMS would not be deemed in violation of the standard where emissions in excess of the 20 percent opacity were limited to:
(1)One six-minute average per hour of up to 40 percent opacity;
(2)periods of startup, shutdown, load change and rate change or other short intermittent periods upon terms approved by ADEM's Director and included in a State-issued permit; and
(3)no more than two percent of the remaining operating time after subtracting out all periods qualifying under the previous two instances. V. What Changes Does EPA Recommend to the Submittal? As described above, under the Alabama SIP, Method 9 is the method specified for determining compliance with the 20 percent opacity limit. COMS are not specified as the method to determine compliance with the numerical opacity limit, although COMS data can be credible evidence of opacity. Opacity, both as measured by Method 9 and COMS, has been used as a proxy for particulate emissions and to indicate whether a company is following good air pollution control practices. ADEM has proposed amending its SIP to allow up to two percent of COMS readings to exceed 20 percent opacity during non-exempt periods, in part since the Alabama SIP provides no other exemption from the standard for malfunction. The use of COMS increases data availability and provides a greater degree of reliability compared to the Method 9 procedure. Nonetheless, as currently written, the revision would allow a source to emit at a higher allowable average opacity percent level (as measured by COMS in six-minute increments) on a quarterly basis as well as allowing higher short term excursions than the current approved SIP allows. Because this potential for higher average opacity on a quarterly basis could indicate an increase in particulate matter emissions, and in the absence of a supporting demonstration of compliance with CAA requirements from the State, we believe that the 2003 SIP submittal is not approvable as submitted. The submission is also not clear about whether the new opacity standard for certain sources with COMS at 335-3-4-.01(3)-(5) applies in addition to, or in lieu of, the existing opacity standard in paragraphs 335-3-4-.01(1)(a)-(b), as measured under paragraph 335-3-4-.01(2). In addition, the purpose behind new paragraph 335-3-4-.01(5) is not clear. EPA believes the State can revise the 2003 ADEM submittal by amending it to ensure that the allowable average quarterly opacity is at least as stringent as (i.e., equal to or lower than) that allowed by the current approved SIP, and by being clear that only a single version of the standard applies to any unit (although any credible evidence of opacity could be used to assess compliance with the applicable version of the standard). Accordingly, this proposed approval is contingent upon Alabama's submission of a revised rule with certain changes. The revision would clearly indicate that a unit is covered by either the existing opacity standard at paragraphs 335-3-4-.01(1)(a)-(b), as measured under paragraph 335-3-4-.01(2), or by the new standard established in paragraphs 335-3-4-.01(1)(a), (3)-(4), as measured by the COMS referenced in those paragraphs—but not both. 4 The revision would also provide that the hourly 40 percent exemption under Alabama rule 335-3-4-.01(1)(b) does not apply to sources subject to the new paragraphs 335-3-4-.01(3) and 335-3-4-.01(4). Thus, the 40 percent exemption for up to 24 six-minute periods per day on an hourly basis would be replaced by the generally applicable 20 percent standard. The revision would allow a source to exceed the 20 percent standard (up to 100 percent opacity) during no more than 24 six-minute periods per day. In part this revision would replace the existing provision allowing one six-minute exceedance per hour at 40 percent opacity with a provision allowing up to 24 six-minute exceedances per calendar day at 100 percent opacity. However, under the revised provision, these exceedances would be part of, not in addition to, the exceedances allowed under 335-3-4-.01(4) ( *i.e.* , two percent of operating time). 4 As noted elsewhere, the exemptions in paragraphs 335-3-4-.01(1)(c)-(e) are not impacted by the 2003 SIP revision and would continue to apply to either the existing or the revised standard. Thus, under the current SIP, a source is required to maintain 20 percent opacity, except that it may emit at up to 40 percent opacity for one six-minute average per hour, and may have emissions of up to 100 percent opacity as specified in a permit. Under the 2003 submission, certain sources using COMS would, in addition to the current SIP exemptions, also be allowed emissions of up to 100 percent opacity for up to two percent of the quarterly operating time that they are otherwise subject to the 20 percent opacity limit. Under the revision proposed for approval in this notice, these sources still would be allowed emissions of up to 100 percent opacity for up to two percent of quarterly operating time that they are subject to the 20 percent opacity limit (but not to exceed 10 percent of a calendar day), and they would not be allowed the 40 percent hourly exemption. 5 5 Although this new opacity standard would only apply to certain sources using COMS, EPA notes that, consistent with EPA's and ADEM's credible evidence rules, nothing in the rule should preclude the use of COMS to enforce the existing standard or the use of Method 9 to enforce the new standard. Where currently any source may exceed the opacity limit for six minutes out of every hour ( *i.e.* , 10 percent of the time, on an hourly basis), under the revision EPA is proposing would be approvable, a source using COMS subject to the new standard could exceed the opacity limit for 10 percent of the time on a daily basis ( *i.e.* , up to 2.4 hours of consecutive opacity exceedances per calendar day), but for only two percent of the time on a quarterly basis. Under the current standard, the 40 percent opacity limit in theory allows a source to emit a total of approximately 219 hours of emissions in a quarter at up to 40 percent opacity, if the source uses one six-minute exemption for every hour of operation. Under the proposed revision, a source would be allowed to emit no more than 44 hours of excess emissions in a quarter (and no more than 2.4 hours in a day), but those emissions could have up to 100 percent opacity. 6 6 The director's discretion provisions under Alabama rule 335-3-4-.01(1)(c) and
(d)would be unchanged by this SIP revision, so periods of excess emissions allowed in a permit pursuant to those provisions would continue to be allowed, in addition to the emissions allowed by the new provisions discussed herein. EPA notes that, as the director's discretion provisions are not being revised by ADEM or reviewed by EPA at present, nothing in this notice should be considered as approving those provisions. As a result, the final rule would have the potential to increase the impact of opacity exceedances on a short-term basis by allowing exceedances of up to 100 percent opacity and also allowing those periods of excess opacity to be aggregated in up to 24 consecutive six-minute periods per day (as opposed to the current approved rule which provides an hourly 40 percent exemption, also for a total of 24 six-minute periods per day). However, the long-term cap of two percent serves to restrict the total amount of time a source is allowed to exceed the standard. As discussed below, EPA believes that the reduction in total duration of exceedances will reduce average opacity as compared to the current standard, even taking into consideration that the exemption in the current standard limits exceedances to 40 percent (not 100 percent) opacity. Thus, under the proposed revised rule, with the changes discussed in this notice, an emissions unit covered by the new standard would be allowed:
(1)Up to 100 percent opacity during periods of startup, shutdown, load change, and rate change or other short, intermittent periods upon terms approved by ADEM's Director and included in a state-issued permit;
(2)up to 100 percent opacity for up to two percent of the operating time on a quarterly basis (where the amount of operating time does not include the exempted periods approved by ADEM's Director and included in a state-issued permit), but for no more than ten percent of the time on a daily basis; and
(3)up to 20 percent opacity for the rest of the time in a quarter. The current federally-approved SIP opacity limit remains in effect. Any new exceptions proposed in this action do not take effect until EPA takes final action. Furthermore, any final rule would be prospective only. In addition, this proposal is not intended to affect on-going enforcement actions against sources that may be subject to the new standard, nor does it relieve affected sources in Alabama of their obligations to comply with any other federal, state, or local opacity requirements, or particulate matter control requirements. VI. What Technical Analysis Was Used To Support Approval of This SIP Revision? The existing Alabama SIP specifies Method 9 as the method for determining compliance with the generally applicable opacity limit for sources of PM emissions. *See* Ala. Admin. Code r. 335-3-4-.01(2). More frequent readings with COMS help determine whether a source is following good air pollution control practices between Method 9 or Method 5 tests. With the additional restrictions described above, the proposed SIP revision can be shown to be no less stringent in terms of average quarterly opacity than the existing SIP. Today, we propose to approve Alabama's SIP revision contingent upon the revision including our recommended changes, based on a finding that the revision would not increase average quarterly opacity levels and thus would not interfere with attainment or maintenance of a NAAQS, RFP, or any other requirement of the Act. The relationship between changes in opacity and increases or decreases in ambient PM <sup>2.5</sup> levels cannot be quantified readily and is particularly uncertain for short term and site-specific analyses. There are several contributors to this uncertainty including
(1)differences between combustion technology characteristics and fuel components,
(2)differences in control technology types, temperatures at which they operate, and load characteristics,
(3)the recognition that both opacity and mass emissions are subject to significant variability over short periods of time and fluctuations in one may not track fluctuations in the other, and
(4)differences between what the ambient sampler collects and the mass of particles that exists at the point of COMS measurement ( *e.g.* , in the stack) and the direct PM <sup>2.5</sup> that forms immediately upon exiting the stack (that are related to fuel components more than to control technology). In addition to these uncertainty factors, opacity is directly related to particle size, with particles of an aerodynamic diameter of approximately 1.0 micrometer having the greatest potential for impairment of visibility, or increased opacity. (See, e.g., Malm, William C. “Introduction to Visibility,” Cooperative Institute for Research in the Atmosphere, May 1999, Chap. 2, p. 8). As particles increase in size, their impact on opacity diminishes, despite the fact that their mass may increase. Thus for PM emissions of a given mass level, opacity can be greater or less depending on the particle size distribution. Several past instances and State and Federal rules are instructive regarding the uncertainties in relating opacity to PM concentrations. EPA recognized and accounted for these uncertainties as early as the 1970s by permitting sources to adjust source-specific opacity standards under new source performance standards
(NSPS)when they could demonstrate that they were in compliance with applicable PM limits at times when opacity limits were being exceeded. See, e.g., 44 FR 37960, 37961 (June 29, 1979). In EPA's own NSPS for glass manufacturing plants, (40 CFR 60.293(e)), and national emission standard for Inorganic Arsenic Emissions from Glass Manufacturing Plants (40 CFR 61.163), EPA has written specific provisions into its standards permitting source owners or operators to redetermine opacity limitations where they can demonstrate compliance with emission limits in the applicable rules. More recently, when examining a study of COMS at a portland cement kiln, we have found that the plant's visible emissions readings were consistently below its allowable limit (20 percent) while PM emissions significantly exceeded the NSPS due to broken bags in its baghouse. Finally, a number of States have incorporated similar provisions into their regulations. (See, e.g., Indiana Administrative Code, 326 IAC 5-1-5(b); Wisconsin NR 431.07; Pima County, Arizona 2-8-300(C)). The contributions to uncertainty described above lessen when applied to longer term averages and the relationship between ambient PM <sup>2.5</sup> measurements and changes in opacity are more reliable than for shorter term (e.g., daily) assessments. Therefore, for purposes of this proposal, EPA focused on analyzing the effects of the proposed change in the opacity limitations for facilities covered by the rule over quarterly periods. EPA believes that a quarterly basis is appropriate because correlations between opacity and PM control device operation are more readily generalized over a longer-term basis and, therefore, a quarterly average is more likely to reflect impacts on the ambient PM levels accurately than a daily average, and because ADEM's proposed rule includes a quarterly limit. By calculating and comparing the average quarterly opacities allowed by the current SIP approved rule, the 2003 ADEM submittal, and the 2003 ADEM submittal with required changes specified, we can determine which proposed SIP change, if any, provides an average quarterly opacity equivalent with, or more stringent than, the average quarterly opacity allowed by the current SIP approved rule. Proposed changes that provide average quarterly opacities more stringent than (or equivalent with) those allowed by the existing SIP rule are expected to be more stringent than (or equivalent to) the existing SIP rule. EPA is not performing similar calculations comparing stringency of average daily opacity levels under the current rule and the proposed rule because a generally applicable relationship between opacity and PM mass emissions cannot be specified over short averaging times (e.g., 24 hours or less). Even with extensive testing, it is very difficult to establish reliable correlations between the magnitude of opacity measurements and PM mass emissions for short averaging times (e.g., 24 hours or less) that will remain reliable over a longer period of record (i.e., that will establish a direct daily correlation over a longer period, such as three or more months). Therefore, opacity may not be a reliable indicator of short-term emissions, or for use in projecting changes in short-term PM ambient air quality concentrations. Accordingly, we conclude that the proposed change in the allowed opacity will have no effect on attainment of the 24-hour PM NAAQS (35 μg/m 3 for PM <sup>2.5</sup> and 150 μmg/m 3 for PM <sup>10</sup> ) or (based on the quarterly stringency comparison) the annual PM NAAQS (15.0 μg/m for PM <sup>2.5</sup> ). We can calculate the average allowable quarterly opacity for a unit by multiplying an allowed level of opacity by the duration for which that level of opacity is allowed, summing those products for each allowed level of opacity occurring over a quarter, and then dividing that total by the number of six-minute periods in a quarter. The average quarterly opacity for a unit is an opacity value equivalent with one single, constant opacity value emitted for each and every six-minute period of the quarter, allowing us to compare a unit with a longer period of lower opacity to one with a shorter period of higher opacity. The general formula for calculating the allowable average quarterly opacity (i.e., the average opacity (percent) allowed by rule over a quarter) is: EP12AP07.010 Where: n = specific period of quarterly operation, opacity = opacity (percent) related to that specific period, duration = number of six-minute average periods related to the specific period, and 21,900 = number of six-minute average periods per quarter. For the Alabama analysis, using the above general formula to determine the allowable average opacity over a quarter, we chose to use the maximum opacity allowed for each condition, the maximum duration allowed for each condition, and the maximum amount of time for unit operation when calculating the average allowable quarterly opacity. Although operation with opacity at the maximum level for the longest period allowed under a rule is not reflective of actual operations, such a conservative assumption provides a consistent basis for comparisons. Usually calculation of allowable average quarterly opacity can be readily ascertained, since opacity limits and their associated condition durations are known explicitly. However, because ADEM allows an exemption from opacity limits during periods of startup, shutdown, load change and rate change or other short, intermittent periods upon terms approved by ADEM's Director and included in a state-issued permit, and because the duration of those periods is not known, we used a variable, T <sup>1</sup> , to represent the duration of those periods. In theory, the duration of those periods could range from 0, meaning no periods of exemption for a quarter, to 21,900, meaning all periods of the quarter are exempt. 7 In practice, one sample of units subject to the current SIP rule contains durations of about 400 periods per quarter for this exemption. 7 EPA does not intend to indicate that it would be appropriate or consistent with the SIP for an exemption period under 335-3-4.01(1)(c) to last for an extended period of time, but rather is utilizing conservative assumptions for the purpose of ensuring the requirements of section 110(l) will be met. EPA does not anticipate that a source would, in fact, operate at 100% opacity for all permissible excursion periods. Relying on the variable T <sup>1</sup> , calculation of allowable average quarterly opacities becomes straightforward. By way of example, the allowable average quarterly opacity for the 2003 ADEM Submittal is the sum of the ten percent of the quarter's duration at 40 percent opacity, the time (T <sup>1</sup> ) at 100 percent opacity due to exemptions, the two percent of the non-exempt time of the quarter's duration at 100 percent opacity, and the balance of the non-exempt time of the quarter's duration at 20 percent opacity, all divided by the number of six-minute periods in the quarter. The equation shown below provides the allowable average quarterly opacity for the 2003 ADEM Submittal for T <sup>1</sup> values of 0 to 19,710: EP12AP07.011 We derived allowable average quarterly opacity equations for the current SIP-approved rule and the 2003 ADEM submittal, substituted various exemption durations (T <sup>1</sup> ) in the equations, determined the corresponding allowable average quarterly opacities, and organized the results as shown in Table 1 below. Table 1.—Calculated Allowable Average Quarterly Opacity Levels, for Various Startup, Shutdown, Load Change, and Rate Change Durations (T <sup>1</sup> ), Using Alabama's Current SIP-Approved Rule, and the 2003 ADEM Submittal Calculated allowable average quarterly opacity (percent) for various startup, shutdown, load change and rate change durations (T <sup>1</sup> ) T <sup>1</sup> = 0 T <sup>1</sup> = 1,000 T <sup>1</sup> = 10,000 T <sup>1</sup> = 17,520 T <sup>1</sup> = 19,710 T <sup>1</sup> = 21,900 Current SIP Approved Rule 22.00 25.65 58.53 86.00 94.00 100.00 2003 ADEM Submittal 23.44 27.02 59.24 86.16 94.00 100.00 As can be seen, under these conservative assumptions, the 2003 ADEM submittal would result in allowable average quarterly opacity levels that are slightly higher than those calculated from the current SIP rule for periods of startup, shutdown, load change and rate change, *i.e.* for where those durations are less than 19,710 six-minute averages. In order to be approvable, we have recommended that ADEM eliminate the exemption for six-minutes at up to 40 percent opacity for up to ten percent of the operating time. The allowable average quarterly opacity for the 2003 ADEM Submittal With Required Changes Specified for all T <sup>1</sup> values = EP12AP07.012 We derived allowable average quarterly opacity equations for the current SIP approved rule and the 2003 ADEM submittal with recommended changes specified, substituted various exemption durations (T <sup>1</sup> ) in the equations, determined the corresponding allowable average quarterly opacities, and organized the results as shown in Table 2 below. As shown, the proposed revision to the SIP rule yields an allowable average quarterly opacity equivalent to or less than the allowable average quarterly opacity calculated from the current SIP rule in all cases. Table 2.—Calculated Allowable Average Quarterly Opacity Levels, for Various Startup, Shutdown, Load Change, and Rate Change Durations (T <sup>1</sup> ), Using Alabama's Current SIP-Approved Rule and the Proposed SIP Revision With Recommended Changes Specified Calculated allowable average quarterly opacity (percent) for various startup, shutdown, load change and rate change durations (T <sup>1</sup> ) T <sup>1</sup> = 0 T <sup>1</sup> = 1,000 T <sup>1</sup> = 10,000 T <sup>1</sup> = 17,520 T <sup>1</sup> = 19,710 T <sup>1</sup> = 21,900 Current SIP Approved Rule 22.00 25.65 58.53 86.00 94.00 100.00 2003 ADEM Submittal with Recommended Changes Specified 21.60 25.18 57.40 84.32 92.16 100.00 Therefore, by incorporating these recommended changes, Alabama would reduce uncertainties related to whether such a change could interfere with attainment, RFP or any other requirement of the Act. Accordingly, we conclude that the revision of Alabama's SIP rule to incorporate the 2003 ADEM submittal with our recommended changes specified in this action would not interfere with requirements of the CAA and would be approvable. Further details of this analysis are contained in the technical support document. VII. What Happens Next? EPA anticipates Alabama will submit a revised rule revision reflecting the changes discussed in section IV above. If Alabama's revised rule is submitted and considered approvable, after considering any comments received on today's proposed approval, EPA will publish a final rule in the **Federal Register** approving the State's requested rule revision and will also address in that rulemaking any comments received on this proposed approval. In addition, we plan to develop further criteria to aid EPA Regional Offices in evaluating future revisions to rules such as Alabama's and, in this regard, we expect to publish in the near future a request for information that will assist us in that effort. VIII. Proposed Action EPA is proposing to approve the Visible Emissions portion of a SIP revision submitted to EPA by Alabama on September 11, 2003, provided it is revised as described in section IV of this action and submitted as a SIP revision in accordance with the requirements of the CAA. IX. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements, and imposes no additional requirements beyond those imposed by state law. Accordingly, I hereby certify that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this action proposes to approve requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 97249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve State rule as consistent with Federal standards, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: April 4, 2007. J.I. Palmer, Jr., Regional Administrator, Region 4. [FR Doc. E7-6948 Filed 4-11-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2006-0917; FRL-8298-3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Redesignation of the Richmond-Petersburg 8-Hour Ozone Nonattainment Area To Attainment and Approval of the Associated Maintenance Plan and 2002 Base-Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a redesignation request and State Implementation Plan
(SIP)revisions submitted by the Commonwealth of Virginia. The Virginia Department of Environmental Quality (VADEQ) is requesting that the Richmond-Petersburg ozone nonattainment area (“Richmond Area” or “Area”) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). The Area is comprised of the Cities of Petersburg, Colonial Heights, Hopewell, and Richmond, and the Counties of Prince George, Chesterfield, Hanover, Henrico, and Charles City. EPA is proposing to approve the ozone redesignation request for the Richmond Area. In conjunction with its redesignation request, the Commonwealth submitted a SIP revision consisting of a maintenance plan for the Richmond Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is proposing to make a determination that the Richmond Area has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality monitoring data for 2003-2005. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the Richmond Area has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA). In addition, the Commonwealth of Virginia has also submitted a 2002 base-year inventory for the Richmond Area, and EPA is proposing to approve that inventory for the Richmond Area as a SIP revision. EPA is also providing information on the status of its adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the maintenance plan for the Richmond Area for purposes of transportation conformity, and is also proposing to approve those MVEBs. EPA is proposing approval of the redesignation request and of the maintenance plan and 2002 base-year inventory SIP revisions in accordance with the requirements of the CAA. DATES: Written comments must be received on or before May 14, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0917 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail:* *morris.makeba@epa.gov.* C. *Mail:* EPA-R03-OAR-2006-0917, Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2006-0917. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Amy Caprio,
(215)814-2156, or by e-mail at *caprio.amy@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Table of Contents I. What Are the Actions EPA Is Proposing To Take? II. What Is the Background for These Proposed Actions? III. What Are the Criteria for Redesignation to Attainment? IV. Why Is EPA Taking These Actions? V. What Would Be the Effect of These Actions? VI. What Is EPA's Analysis of the Commonwealth's Request? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Maintenance Plan for the Richmond Area Adequate and Approvable? VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. What Are the Actions EPA Is Proposing To Take? On September 20, 2006 the VADEQ formally submitted a request to redesignate the Richmond Area from nonattainment to attainment of the 8-hour NAAQS for ozone. On September 25, 2006 Virginia submitted a maintenance plan for the Richmond Area as a SIP revision to ensure continued attainment in the Area over the next 11 years. VADEQ also submitted a 2002 base-year inventory for the Richmond Area as a SIP revision on September 18, 2006 and supplements to the base-year inventory submittal on November 17, 2006 and February 13, 2007. The Richmond Area is comprised of the Cities of Petersburg, Colonial Heights, Hopewell, and Richmond, and the Counties of Prince George, Chesterfield, Hanover, Henrico, and Charles City. It is currently designated a marginal 8-hour ozone nonattainment area. EPA is proposing to determine that the Richmond Area has attained the 8-hour ozone NAAQS and that it has met the requirements for redesignation pursuant to section 107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the redesignation request to change the designation of the Richmond Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve the Richmond maintenance plan as a SIP revision for the Area (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to ensure continued attainment in the Richmond Area for the next 11 years. Concurrently, the Commonwealth is requesting that this 8-hour maintenance plan supersede the previous 1-hour maintenance plan. EPA is also proposing to approve the 2002 base-year inventory for the Richmond Area as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the Richmond maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds
(VOCs)and nitrogen oxides (NO <sup>X</sup> ) for the Richmond Area for transportation conformity purposes. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of NO <sup>X</sup> and VOC react in the presence of sunlight to form ground-level ozone. The air pollutants NO <sup>X</sup> and VOC are referred to as precursors of ozone. The CAA establishes a process for air quality management through the attainment and maintenance of the NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1-hour standard. EPA designated, as nonattainment, any area violating the 8-hour ozone NAAQS based on the air quality data for the three years of 2001-2003. These were the most recent three years of data at the time EPA designated 8-hour areas. The Richmond Area was designated a marginal 8-hour ozone nonattainment area in a **Federal Register** notice signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-based standard for ozone during the years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to revoke the 1-hour ozone NAAQS in the Richmond Area (as well as most other areas of the country) effective June 15, 2005. See 40 CFR 50.9(b); 69 FR at 23996 (April 30, 2004); and see 70 FR 44470 (August 3, 2005). However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (D.C. Cir. 2006) (hereafter “South Coast.”). The Court held that certain provisions of EPA's Phase I Rule were inconsistent with the requirements of the Clean Air Act. The Court rejected EPA's reasons for implementing the 8-hour standard in nonattainment areas under Subpart 1 in lieu of subpart 2 of Title I, part D of the Act. The Court also held that EPA improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:
(1)Nonattainment area New Source Review
(NSR)requirements based on an area's 1-hour nonattainment classification;
(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas;
(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and
(4)the certain conformity requirements for certain types of federal. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. Elsewhere in this document, mainly in section VI. B. “The Richmond Area Has Met All Applicable Requirements under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA,” EPA discusses its rationale why the decision in South Coast is not an impediment to redesignating the Richmond Area to attainment of 8-hour ozone NAAQS. The CAA, title I, part D, contains two sets of provisions—subpart 1 and subpart 2—that address planning and control requirements for nonattainment areas. Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. In 2004, the Richmond Area was classified a marginal 8-hour ozone nonattainment area based on air quality monitoring data from 2001-2003. Therefore, the Richmond Area is subject to the requirements of subpart 2 of part D. Under 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). See 69 FR 23857 (April 30, 2004) for further information. Ambient air quality monitoring data for the 3-year period must meet data completeness requirements. The data completeness requirements are met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of 40 CFR part 50. The ozone monitoring data indicates that the Richmond Area has a design value of 0.082 ppm for the 3-year period of 2003-2005, using complete, quality-assured data. Therefore, the ambient ozone data for the Richmond Area indicates no violations of the 8-hour ozone standard. B. The Richmond Area Under the 1-hour ozone NAAQS, the Richmond Area consisted of the Cities of Colonial Heights, Hopewell, and Richmond, and the Counties of Chesterfield, Hanover, Henrico, and Charles City. Under the 8-hour ozone NAAQS, the Richmond Area was expanded to also include the City of Petersburg and Prince George County. Prior to its designation as an 8-hour ozone nonattainment area, the Richmond Area was a maintenance area for the 1-hour ozone NAAQS. 1 See November 17, 1997 (62 FR 61237). 1 Under the 1-hour ozone NAAQS the Richmond Area consisted of the Cities of Colonial Heights, Hopewell, and Richmond, the Counties of Chesterfield, Hanover, Henrico, and Charles City. See November 6, 1991 (58 FR 56694). On September 20, 2006 the VADEQ requested that the Richmond Area be redesignated to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2003-2005, indicating that the 8-hour NAAQS for ozone had been achieved in the Richmond Area. The data satisfies the CAA requirements that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration (commonly referred to as the area's design value), must be less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the CAA, a nonattainment area may be redesignated if sufficient complete, quality-assured data is available to determine that the area has attained the standard and the area meets the other CAA redesignation requirements set forth in section 107(d)(3)(E). III. What Are the Criteria for Redesignation to Attainment? The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA, allows for redesignation, providing that:
(1)EPA determines that the area has attained the applicable NAAQS;
(2)EPA has fully approved the applicable implementation plan for the area under section 110(k);
(3)EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
(4)EPA has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and
(5)The State containing such area has met all requirements applicable to the area under section 110 and part D. EPA provided guidance on redesignations in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990, on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents: • “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton, June 18, 1990; • “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992; • “Contingency Measures for Ozone and Carbon Monoxide
(CO)Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992; • “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992; • “State Implementation Plan
(SIP)Actions Submitted in Response to Clean Air Act
(Act)Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; • “Technical Support Documents
(TSDs)for Redesignation Ozone and Carbon Monoxide
(CO)Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993; • “State Implementation Plan
(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide
(CO)National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993; • Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” dated November 30, 1993; • “Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and • “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. IV. Why Is EPA Taking These Actions? On September 20, 2006, the VADEQ requested redesignation of the Richmond Area to attainment for the 8-hour ozone standard. On September 25, 2006, VADEQ submitted a maintenance plan for the Richmond Area as a SIP revision, to ensure continued attainment of the 8-hour ozone NAAQS over the next 11 years, until 2018. Concurrently, Virginia is requesting that 8-hour maintenance plan submittal supersede the 1-hour maintenance plan requirements already in place and that the 8-hour maintenance plan meet the requirement of CAA section 175A(b) with respect to the 1-hour ozone maintenance plan update. EPA is proposing to approve the maintenance plan to fulfill the requirement of section 175A(b) for submission of a maintenance plan update eight years after the area was redesignated to attainment of the 1-hour ozone NAAQS. EPA believes that such an update must ensure that the maintenance plan in the SIP provides maintenance of the NAAQS for a period of 20 years after the area is initially redesignated to attainment. EPA can propose approval because the maintenance plan, which demonstrates maintenance of the 8-hour ozone NAAQS through 2018, also demonstrates maintenance of the 1-hour ozone NAAQS through 2018. VADEQ also submitted a 2002 base-year inventory as a SIP revision on September 18, 2006 and supplements to that submittal on November 17, 2006 and February 13, 2007, which is an applicable requirement for the Richmond Area for purposes of redesignation. EPA has determined that the Richmond Area has attained the 8-hour ozone standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). V. What Would Be the Effect of These Actions? Approval of the redesignation request would change the official designation of the Richmond Area from nonattainment to attainment for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Virginia SIP a 2002 base-year inventory and a maintenance plan ensuring continued attainment of the 8-hour ozone NAAQS in the Richmond Area for the next 11 years, until 2018. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the NO <sup>X</sup> and VOC MVEBs for transportation conformity purposes for the years 2011 and 2018. These MVEBs are displayed in the following table: Table 1.—Motor Vehicle Emissions Budgets in Tons per Day
(TPD)Year VOC NO <sup>X</sup> 2011 32.343 43.661 2018 23.845 26.827 VI. What Is EPA's Analysis of the Commonwealth's Request? EPA is proposing to determine that the Richmond Area has attained the 8-hour ozone standard and that all other redesignation criteria have been met. The following is a description of how the VADEQ's September 20, 2006 (redesignation request), September 25, 2006 (maintenance plan and MVEBs), September 18, 2006 (base-year emissions inventory) and November 17, 2006 and February 13, 2007 (supplements to base-year inventory) submittals satisfy the requirements of section 107(d)(3)(E) of the CAA. A. The Richmond Area Has Attained the 8-Hour Ozone NAAQS EPA is proposing to determine that the Richmond Area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor, within the area, over each year must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. There are four ozone monitors in the Richmond Area. As part of its redesignation request, Virginia referenced ozone monitoring data for the years 2003-2005 for the Richmond Area. This data has been quality assured and is recorded in the AQS. The fourth-high 8-hour daily maximum concentrations, along with the three-year averages are summarized in Table 2. The Hanover County monitoring site had the highest 3-year average of the fourth highest daily maximum 8-hour average and are therefore used to make air quality determinations. Table 2.—Richmond Area Fourth Highest 8-Hour Average Values, Richmond Monitors, Parts per Million
(PPM)Monitor AQS ID # 2003 2004 2005 3-Year average Chesterfield County 510410004 0.079 0.075 0.078 0.077 Henrico County 510870014 0.083 0.074 0.084 0.080 Hanover County 510850003 0.086 0.078 0.083 0.082 Charles City County 510360002 0.079 0.077 0.083 0.079 The average for the 3-year period 2003-2005 is 0.082 ppm. The air quality data for 2003-2005 indicate that the Richmond Area has attained the standard with a design value of 0.082 ppm. The data collected at the Richmond Area monitors satisfy the CAA requirement that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. The VADEQ's request for redesignation for the Richmond Area indicates that the data is complete and was quality assured in accordance with 40 CFR part 58. The VADEQ uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. In addition, as discussed below with respect to the maintenance plan, VADEQ has committed to continue monitoring in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by Virginia indicates that the Richmond Area has attained the 8-hour ozone NAAQS. B. The Richmond Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA EPA has determined that the Richmond Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that it meets all applicable SIP requirements under part D of Title I of the CAA, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Richmond Area and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to applicable requirements. The September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant CAA requirements that came due prior to the submittal of a complete redesignation request. See also Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the CAA. *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004). See also 68 FR at 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This section also sets forth EPA's views on the potential effect of the Court's ruling in *South Coast* on this redesignation action. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to this redesignation action so as to preclude redesignation, and does not prevent EPA from finalizing this redesignation. EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that has been filed, imposes no impediment to moving forward with redesignation of this area to attainment, because in either circumstance redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests. 1. Section 110 General SIP Requirements Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which includes enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to the following: • Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; • Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; • Implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)); • Provisions for the implementation of part D requirements for New Source Review
(NSR)permit programs; • Provisions for air pollution modeling; and • Provisions for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants in accordance with the NO <sup>X</sup> SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO <sup>X</sup> SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the State. Thus, we do not believe that these requirements are applicable requirements for purposes of redesignation. EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Richmond Area will still be subject to these requirements after it is redesignated. The section 110 and part D requirements, which are linked with a particular area's designation and classification, are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity ( *i.e.* , for redesignations) and oxygenated fuels requirement. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 53099, October 19, 2001). Similarly, with respect to the NO <sup>X</sup> SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NO <sup>X</sup> SIP Call rules are not “an” ‘applicable requirement' for purposes of section 110(1) because the NO <sup>X</sup> rules apply regardless of an area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.” 69 FR 23951, 23983 (April 30, 2004). EPA believes that section 110 elements not linked to the Area's nonattainment status are not applicable for purposes of redesignation. As explained later in this notice, two part D requirements applicable for purposes of redesignation under the 8-hour standard became due prior to the submission of the redesignation request. Because the Virginia SIP satisfies all of the applicable general SIP elements and requirements set forth in section 110(a)(2), EPA concludes that Virginia has satisfied the criterion of section 107(d)(3)(E) regarding section 110 of the Act. 2. Part D Nonattainment Requirements Under the 8-Hour Standard The Richmond Area was classified a Subpart 2, marginal nonattainment area for the 8-hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of part D, set forth the basic nonattainment requirements applicable to all nonattainment areas. Section 182 of the CAA, found in subpart 2 of part D, establishes additional specific requirements depending on the area's nonattainment classification. The Richmond Area is classified as a Subpart 2, marginal nonattainment area. We do not believe that any part of the Court's opinion would require that this subpart 2 classification be changed upon remand to EPA. However, even assuming for present purposes that the Richmond Area would become subject to a different classification under a classification scheme created in a future rule in response to the court's decision, that would not prevent EPA from finalizing a redesignation for this area. For the reasons set forth below, we believe that any additional requirements that might apply based on that different classification would not be applicable for purposes of evaluating the redesignation request. This belief is based upon
(1)EPA's longstanding policy of evaluating redesignation requests in accordance with only the requirements due at the time the request was submitted; and
(2)consideration of the inequity of applying retroactively any requirements that might be applied in the future. First, at the time the redesignation request was submitted, the area was classified under Subpart 2 and was required to meet the Subpart 2 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment”, Memorandum from John Calcagni, Director, Air Quality Management Division) See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation. See, *e.g* , also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis). At the time the redesignation request was submitted, the Richmond Area was classified as a marginal area under Subpart 2 and thus only Subpart 2 marginal area requirements are applicable for purposes of redesignation. Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted, but which might later become applicable. The D.C. Circuit has recognized the inequity in such retroactive rulemaking. See *Sierra Club* v. *Whitman* , 285 F.3d 63 (D.C. Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” *Id.* at 68. Similarly, here it would be unfair to penalize the area by applying to it for purposes of redesignation any additional requirements that were not in effect at the time it submitted its redesignation request, but that might apply in the future. Two Subpart 2 requirements became due for the Richmond Area under section 182(a) of the CAA prior to redesignation—a 2002 base-year inventory, and the emissions statement requirement pursuant to section 182(a)(3)(B). The Virginia SIP has an approved emissions statement rule for the 1-hour standard covering those portions of the 8-hour nonattainment area that was part of the previous 1-hour attainment area, which satisfies the emissions statement requirement for the 8-hour standard. See 65 FR 21315 (April 21, 2000). Virginia recently submitted a rulemaking to expand the VOC and NO <sup>X</sup> Richmond Emissions Control Area to include the City of Petersburg and Prince George County. EPA approved this rulemaking on March 2, 2007 (72 FR 9441) and will be effective on April 2, 2007. Today, EPA is proposing to approve the 2002 base-year inventory for the Richmond Area, which was submitted on September 18, 2006, and supplemented on November 17, 2006 and February 13, 2007, concurrently with its maintenance plan, into the Virginia SIP. A detailed evaluation of Virginia's 2002 base-year inventory for the Richmond Area can be found in a Technical Support Document
(TSD)prepared by EPA for this rulemaking. EPA has determined that the emission inventory and emissions statement requirements for the Richmond Area have been satisfied. EPA believes it is reasonable to interpret the general conformity and NSR requirements of part D as not requiring approval prior to redesignation. With respect to section 176, Conformity Requirements, section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under Title 23 U.S.C. and the Federal Transit Act (“transportation conformity”) as well as to all other Federally supported or funded projects (“general conformity”). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that the CAA required the EPA to promulgate. EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) since state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. See *Wall* v. *EPA* , 265 F. 3d 426, 438 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748 (December 7, 1995). EPA has also determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without part D NSR in effect, because PSD requirements will apply after redesignation. The rationale for this position is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D NSR Requirements or Areas Requesting Redesignation to Attainment.” Virginia has demonstrated that the Richmond Area will be able to maintain the standard without Part D NSR in effect in the Richmond Area, and therefore, Virginia need not have a fully approved Part D NSR program prior to approval of the redesignation request. Virginia's SIP-approved PSD program will become effective in Richmond upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR at 12467-68); Cleveland-Akron-Lorain, Ohio (61 FR at 20458, 20469-70); Louisville, Kentucky (66 FR 53665, 53669 October 23, 2001); Grand Rapids, Michigan (61 FR at 31831, 31834-37, June 21, 1996). 3. Requirements Under the 1-Hour Standard With respect to the 1-hour standard requirements, the City of Petersburg and the Prince George County portions of the Richmond Area were designated Unclassifiable/Attainment under the 1-hour standard and were never designated nonattainment for the 1-hour standard. Therefore, there are no outstanding 1-hour nonattainment area requirements these portions of the Richmond Area would be required to meet. Thus, we find that the Court's ruling does not result in any additional 1-hour requirements for purposes of redesignation. The portion of the Richmond Area consisting of the Cities Colonial Heights, Hopewell, and Richmond, and the Counties of Chesterfield, Hanover, Henrico, and Charles City was an Attainment area subject to a Clean Air Act section 175A maintenance plan under the 1-hour standard. The Court's ruling does not impact redesignation requests for these types of areas. First, there are no conformity requirements that are relevant for redesignation requests for any standard, including the requirement to submit a transportation conformity SIP. 2 Under longstanding EPA policy, EPA believes that it is reasonable to interpret the conformity SIP requirement as not applying for purposes of evaluating a redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. 40 CFR 51.390. See *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748 (Dec. 7, 1995) (Tampa, FL redesignation). 2 Clean Air Act section 176(c)(4)(E) currently requires States to submit revisions to their SIPs to reflect certain federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the motor vehicle emissions budgets that are established in control strategy SIPs and maintenance plans. Second, with respect to the three other anti-backsliding provisions for the 1-hour standard that the Court found were not properly retained, this portion of the Richmond Area is an attainment area subject to a maintenance plan for the 1-hour standard, and the NSR, contingency measure (pursuant to section 172(c)(9) or 182(c)(9)) and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1-hour standard. Thus the decision in *South Coast* should not alter requirements that would preclude EPA from finalizing the redesignation of this area. 4. Richmond Has a Fully Approved SIP for Purposes of Redesignation EPA has fully approved the Virginia SIP for the purposes of this redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p.3; *Southwestern Pennsylvania Growth Alliance* v. *Browner* , 144 F. 3d 984, 989-90 (6th Cir. 1998), *Wall* v. *EPA* , 265 F. 3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR at 25425 (May 12, 2003) and citations therein. The Richmond Area was a 1-hour ozone maintenance area at the time of its designation as a marginal 8-hour ozone nonattainment area on April 30, 2004. As stated previously, two subpart 2 part D requirements became due for the Richmond Area prior to redesignation a 2002 base-year inventory, and the emissions statement requirement. VADEQ has submitted concurrently with its maintenance plan, a 2002 base-year inventory as a SIP revision. In this action, EPA is proposing approval of this inventory. The emissions statement requirement for the entire Richmond Area was recently fulfilled on March 2, 2007 (72 FR 9441). Because there are no outstanding SIP submission requirements applicable for the purposes of the redesignation of the Richmond Area, the applicable implementation plan satisfies all pertinent SIP requirements. C. The Air Quality Improvement in the Richmond Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the Richmond Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. Emissions reductions attributable to these rules are shown in Table 3. Table 3.—Total VOC and NO <sup>X</sup> Emissions for 2002 and 2005 in Tons per Day
(TPD)Year Point Area * Nonroad Mobile Total Volatile Organic Compounds
(VOC)2002 31.228 51.364 23.278 50.200 156.070 2005 32.705 54.760 20.438 43.518 151.421 Diff (02-05) +1.477 +3.396 −2.840 −6.682 −4.649 Nitrogen Oxides (NO <sup>X</sup> ) 2002 119.750 27.067 17.792 74.130 238.739 2005 77.281 26.501 16.862 67.155 187.799 Diff (02-05) −42.469 −0.566 −0.930 −6.975 −50.940 * Area source category includes emissions from motor vehicle refueling. Between 2002 and 2005, VOC emissions decreased by 4.649 tpd and NO <sup>X</sup> emissions decreased by 50.940 tpd because of permanent and enforceable measures implemented by the Commonwealth and the federal government. These reductions, and anticipated future reductions, are due to the following permanent and enforceable measures. Programs Currently in Effect
(a)Tier 1;
(b)National Low Emission Vehicle
(NLEV)Program; and
(c)NO <sup>X</sup> SIP Call EPA believes that permanent and enforceable emissions reductions are the cause of the long-term improvement in ozone levels and are the cause of the Area achieving attainment of the 8-hour ozone standard. D. The Richmond Area Has a Fully Approvable Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate the Richmond Area to attainment status, Virginia submitted a SIP revision to provide for maintenance of the 8-hour ozone NAAQS in the Area for at least 11 years after redesignation. The Commonwealth is requesting that EPA approve this SIP revision as meeting the requirement of CAA 175A and 175A(b). Section 175A(a) was met with the September 25, 2006 submission of the maintenance plan, because it states that Richmond will maintain the 8-hour ozone NAAQS for at least 10 years after redesignation. Section 175A(b) was met with the September 25, 2006 submission of the maintenance plan, because it will replace the 1-hour maintenance plan update requirement that was due 8 years after redesingation of the Richmond Area to attainment. Once approved, the maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP for the Richmond Area meets the requirements of the CAA regarding maintenance of the applicable 8-hour ozone standard. What Is Required in a Maintenance Plan? Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A(a), the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Section 175A(b) states that eight years after redesignation from nonattainment to attainment, the State must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the next 10-year period following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The Calcagni memorandum dated September 4, 1992, provides additional guidance on the content of a maintenance plan. An ozone maintenance plan should address the following provisions:
(a)An attainment emissions inventory;
(b)a maintenance demonstration;
(c)a monitoring network;
(d)verification of continued attainment; and
(e)a contingency plan. Analysis of the Richmond Area Maintenance Plan
(a)Attainment inventory—An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. VADEQ determined that the appropriate attainment inventory year is 2005. That year establishes a reasonable year within the three-year block of 2003-2005 as a baseline and accounts for reductions attributable to implementation of the CAA requirements to date. The 2005 inventory is consistent with EPA guidance and is based on actual “typical summer day” emissions of VOC and NO <sup>X</sup> during 2005 and consists of a list of sources and their associated emissions. To develop the NO <sup>X</sup> and VOC base year emissions inventories, VADEQ used the following approaches:
(i)Point source emissions were developed using the latest version of EPA's Economic Growth Analysis System (EGAS 5.0).
(ii)Area source emissions were also developed using growth factors from EGAS 5.0 and then applied to the 2002 Area source inventory.
(iii)Mobile nonroad emissions were developed using EPA's NONROAD 2005 model. The NONROAD 2005 model estimates fuel consumption and emissions of total hydrocarbons, carbon monoxide, nitrogen oxides, sulfur oxides, and particulate matter for all nonroad mobile source categories except for aircraft, locomotives, and commercial marine vessels (CMV).
(iv)Mobile on-road source emissions were calculated using EPA's MOBILE6.2 mobile source inventory model. The Virginia Department of Transportation
(VDOT)provided daily vehicle miles traveled (DVMT), average speed data for each road type by jurisdiction, and annual growth rates that were used to forecast DVMT into the future. Also, the Virginia Department of Motor Vehicles provided registration data that was specific to each jurisdiction. Mobile source emission projections include the National Low Emission Vehicle Program (NLEV), the 2004 Tier 2 and Low Sulfur Gasoline Rule, the 2004 and 2007 Heavy-Duty Diesel Vehicle Rules, and the 2006 Low Sulfur Diesel Rule. In addition, Richmond, Hopewell, Colonial Heights, Chesterfield, Hanover, Henrico, and Charles City were modeled with Phase II Reformulated Gasoline
(RFG)while Prince George and Petersburg were modeled with conventional gasoline fuel. More detailed information on the compilation of the 2002, 2005, 2011, and 2018 inventories can found in the Technical Appendices, which are part of VADEQ's September 25, 2006 submittal.
(b)Maintenance Demonstration—On September 25, 2006, the VADEQ submitted a maintenance plan as required by section 175A of the CAA. The Richmond maintenance plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that future emissions of VOC and NO <sup>X</sup> will not exceed the attainment year 2005 emissions levels throughout the Richmond Area through the year 2018. A maintenance demonstration need not be based on modeling. See *Wall* v. *EPA, supra; Sierra Club* v. *EPA, supra* . See also 66 FR at 53099-53100; 68 FR at 25430-32. Tables 4 and 5 specify the VOC and NO <sup>X</sup> emissions for the Richmond Area for 2005, 2011, and 2018. The VADEQ chose 2011 as an interim year in the maintenance demonstration period to demonstrate that the VOC and NO <sup>X</sup> emissions are not projected to increase above the 2005 attainment level during the time of the maintenance period. Table 4.—Total VOC Emissions for 2005-2018
(TPD)Source category 2005 VOC emissions 2011 VOC emissions 2018 VOC emissions Point 32.705 36.074 39.900 Area 1 54.760 60.315 68.331 Mobile 2 43.518 32.343 23.845 Nonroad 20.438 15.898 15.515 Total 151.421 144.630 147.591 1 Includes vehicle refueling emissions and the benefits of selected local controls (Stage I, CTG RACT, and open burning). Also includes site/project specific emissions estimates and projections. 2 Includes transportation provisions. Table 5.—Total NO <sup>X</sup> Emissions for 2005-2018
(TPD)Source category 2005 NO <sup>X</sup> emissions 2011 NO <sup>X</sup> emissions 2018 NO <sup>X</sup> emissions Point 62.536 69.333 75.241 Area 1 55.207 56.974 60.105 Mobile 2 78.169 50.387 31.890 Non-road 30.208 29.116 23.093 Total 226.120 205.810 190.329 1 Includes selected local controls (open burning). 2 Includes transportation provisions. Additionally, the following programs are either effective or due to become effective and will further contribute to the maintenance demonstration of the 8-hour ozone NAAQS: *Currently in Effect:* • The National Low Emission Vehicle
(NLEV)program; • Open burning restrictions for Richmond, Hopewell, Colonial Heights, Hanover, Henrico, Chesterfield, and western Charles City; • Control Technology Guideline
(CTG)Reasonable Available Control Technology
(RACT)requirements for Richmond, Hopewell, Colonial Heights, Hanover, Henrico, Chesterfield, and western Charles City; • Non-CTG VOC RACT requirements for Richmond, Hopewell, Colonial Heights, Hanover, Henrico, Chesterfield, and western Charles City; • Reformulated gasoline requirements for Richmond, Hopewell, Colonial Heights, Hanover, Henrico, Chesterfield, and western Charles City; • Motor vehicle fleet turnover with new vehicles meeting the Tier 2 standards; and • Low sulfur gasoline. *Additionally, the following programs are in place and either effective or are due to become effective.* • Heavy duty diesel on-road (2004/2007) and low sulfur on-road (2006); 66 FR 5002, (January 18, 2001). • Non-road emission standards
(2008)and off-road diesel fuel 2007/2010); 69 FR 38958 (June 29, 2004). *Lastly, to further improve air quality and to provide room for industrial and population growth while maintaining emissions in the area to less than 2005 levels, the Commonwealth of Virginia has initiated rulemaking to implement the following programs:* • Implement the Stage I requirements of 9 VAC 5 Chapter 40, Article 37 in Prince George, Petersburg, and eastern Charles City; • Implement open burning restriction requirements of 9 VAC 5 Chapter 40, Article 40 in Prince George, Petersburg, and eastern Charles City; and • Implement existing source CTG RACT requirements of 9 VAC 5 Chapter 40, Articles 5-6, 24-36, and 39 in Prince George, Petersburg, and eastern Charles City. Based on the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that VADEQ has successfully demonstrated that the 8-hour ozone standard should be maintained in the Richmond Area.
(c)Monitoring Network—There are three monitors measuring ozone in the Richmond Area. VADEQ will continue to operate its current air quality monitors (located in the Richmond Area), in accordance with 40 CFR part 58.
(d)Verification of Continued Attainment—In addition to maintaining the key elements of its regulatory program, the Commonwealth will acquire ambient and source emission data to track attainment and maintenance. The Commonwealth will track the progress of the maintenance demonstration by periodically updating the emissions inventory. This tracking will consist of annual and periodic evaluations. The annual evaluation will consist of checks on key emissions trend indicators such as the annual emission update of stationary sources, the Highway Performance Monitoring System
(HPMS)vehicle miles traveled data reported to the Federal Highway Administration, and other growth indicators. These indicators will be compared to the growth assumptions used in the plan to determine if the predicted versus the observed growth remains relatively constant. The Commonwealth will also develop and submit periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR 51, subpart A), beginning in 2005.
(e)The Maintenance Plan's Contingency Measures—The contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the Commonwealth will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the timeframe by which the state would adopt and implement the measure(s). The ability of the Richmond Area to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO <sup>X</sup> emissions in the Area remaining at or below 2005 levels. The Commonwealth's maintenance plan projects VOC and NO <sup>X</sup> emissions to decrease and stay below 2005 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. The Commonwealth's maintenance plan lays out situations where the need to adopt and implement a contingency measure to further reduce emissions would be triggered. Those situations are as follows:
(i)An actual increase of the VOC or NO <sup>X</sup> emissions exceed the regional emissions budgets, which would be identified or predicted through the development of the comprehensive periodic tracking inventories—The maintenance plan states that the VADEQ will monitor the observed growth rates for VMT, population, and point source VOC and NO <sup>X</sup> emissions on a yearly basis which will serve as an early warning indicator of the potential for a violation. The plan also states that comprehensive tracking inventories will also be developed every 3 years using current EPA-approved methods to estimate emissions, concentrating on areas identified in the less rigorous yearly evaluations as being potential problems. If the regional emissions budget for VOC or NO <sup>X</sup> is exceeded, the following control strategies will be implemented as follows: • Preparation of a complete VOC and NO <sup>X</sup> emission inventory; and • The expanded implementation of one or more of the control strategies, listed in Table 6, that have not already been implemented in the Richmond Area. Table 6.—Maintenance Plan Contingency Measure Options Control strategy Description 9 VAC 5 Chapter 40, Article 42 Emissions Standards for Portable Fuel Container Spillage. 9 VAC 5 Chapter 40, Article 47 Emissions Standards for Solvent Metal Cleaning Operations. 9 VAC 5 Chapter 40, Article 48 Emissions Standards for Mobile Equipment Repair and Refinishing Operations. 9 VAC 5 Chapter 40, Article 49 Emissions Standards for Architectural and Industrial Maintenance Coatings. 9 VAC 5 Chapter 40, Article 50 Emissions Standards for Consumer Products. 9 VAC 5-40-310 of 9 VAC 5 Chapter 40, Article 4 General Process Operations—Standard for Nitrogen Oxides (non-CTG RACT for major sources).
(ii)A violation (any 3-year average of each annual fourth highest 8-hour average) of the 8-hour ozone NAAQS of 0.08 ppm occurs—The maintenance plan states that if a violation (any 3-year average of each annual fourth highest 8-hour average) of the 8-hour ozone NAAQS of 0.08 ppm occurs at a monitor located in the Richmond monitoring network, the VADEQ will implement two of the following control strategies as follows: • The expanded implementation of one or more of the following control strategies, listed in Table 6, that have not already been implemented in the Richmond Area.
(iii)A violation (any 3-year average of each annual fourth highest 8-hour average) of the 8-hour ozone NAAQS of 0.08 ppm in any subsequent ozone season—The maintenance plan states that if a violation (any 3-year average of each annual fourth highest 8-hour average) of the 8-hour ozone NAAQS of 0.08 ppm occurs in the Richmond monitoring network following the implementation of the requirements listed in the previous section (section e(ii)) and in any subsequent ozone season, two additional control strategies from Table 6 will be implemented. The following schedule for adoption, implementation and compliance applies to the contingency measures concerning non-CTG RACT requirements. It would also apply to the imposition of the area source VOC regulations if those regulations had not already been implemented due to other triggers or provisions of the maintenance plan. • Notification received from EPA that a contingency measure must be implemented, or three months after a recorded violation; • Applicable regulation to be adopted 6 months after this date; • Applicable regulation to be implemented 6 months after adoption; 3 3 In the event of implementation of the RACT contingency measure, Virginia would amend its current RACT regulations to apply them to non-CTG sources in the Richmond Area within 6 months after
(a)notification received from EPA that the contingency measure must be implemented, or
(b)three months after a recorded violation. The newly subject non-CTG RACT sources would need to develop source-specific RACT plans and comply with their plans no later than 12 months from the date of Virginia's adoption of the amended regulations. • Compliance with regulation to be achieved within 12 months of adoption. The maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. EPA believes that the maintenance plan SIP revision submitted by Virginia for the Richmond area meets the requirements of section 175A of the Act. VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the Richmond Maintenance Plan Adequate and Approvable? A. What Are the Motor Vehicle Emissions Budgets? Under the CAA, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs (i.e., RFP SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from on-road mobile sources. In the maintenance plan, the MVEBs are termed “on-road mobile source emission budgets.” Pursuant to 40 CFR part 93 and 51.112, MVEBs must be established in an ozone maintenance plan. An MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. An MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of or reasonable progress towards the NAAQS. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and ensuring conformity of such transportation activities to a SIP. When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB contained therein “adequate” for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB can be used by state and federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining “adequacy” of a MVEB are set out in 40 CFR 93.118(e)(4). EPA's process for determining “adequacy” consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” on July 1, 2004 (69 FR 40004). EPA consults this guidance and follows this rulemaking in making its adequacy determinations. The MVEBS for the Richmond Area are listed in Table 1 of this document for 2011 and 2018, and are the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs (safety margin allocation for 2011 and 2018 only). These emission budgets, when approved by EPA, must be used for transportation conformity determinations. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The following example is for the 2018 safety margin: Richmond first attained the 8-hour ozone NAAQS during the 2003 to 2005 time period. The Commonwealth used 2005 as the year to determine attainment levels of emissions for Richmond. The total emissions from point, area, mobile on-road, and mobile non-road sources in 2005 equaled 151.421 tpd of VOC and 187.799 tpd of NO <sup>X</sup> . The VADEQ projected emissions out to the year 2018 and projected a total of 147.591 tpd of VOC and 154.158 tpd of NO <sup>X</sup> from all sources in Richmond. The safety margin for 2018 would be the difference between these amounts, or 3.830 tpd of VOC and 33.641 tpd of NO <sup>X</sup> . The emissions up to the level of the attainment year including the safety margins are projected to maintain the Area's air quality consistent with the 8-hour ozone NAAQS. The safety margin is the extra emissions reduction below the attainment levels that can be allocated for emissions by various sources as long as the total emission levels are maintained at or below the attainment levels. Table 7 shows the safety margins for the 2011 and 2018 years. Table 7.—2011 and 2018 Safety Margins for Richmond Inventory year VOC emissions
(tpd)NO <sup>X</sup> emissions
(tpd)2005 Attainment 151.421 187.799 2011 Interim 144.630 168.492 2011 Safety Margin 6.791 19.307 2005 Attainment 151.421 187.799 2018 Final 147.591 154.158 2018 Safety Margin 3.830 33.641 The VADEQ allocated 1.000 tpd VOC and 3.000 tpd NO <sup>X</sup> to the 2011 interim VOC projected on-road mobile source emissions projection and the 2011 interim NO <sup>X</sup> projected on-road mobile source emissions projection to arrive at the 2011 MVEBs. For the 2018 MVEBs the VADEQ allocated 1.000 tpd VOC and 3.000 tpd NO <sup>X</sup> from the 2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the mobile source budgets these portions of the safety margins are no longer available, and may no longer be allocated to any other source category. Table 8 shows the final 2009 and 2018 MVEBS for the Richmond Area. Table 8.—2011 and 2018 Final MVEBs for Richmond Inventory year VOC emissions
(tpd)NO <sup>X</sup> emissions
(tpd)2011 projected on-road mobile source projected emissions 31.343 40.661 2011 Safety Margin Allocated to MVEBs 1.000 3.000 2011 MVEBs 32.343 43.661 2018 projected on-road mobile source projected emissions 22.845 23.827 2018 Safety Margin Allocated to MVEBs 1.000 3.000 2018 MVEBs 23.845 26.827 C. Why Are the MVEBs Approvable? The 2011 and 2018 MVEBs for the Richmond Area are approvable because the MVEBs for NO <sup>X</sup> and VOCs continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. D. What Is the Adequacy and Approval Process for the MVEBs in the Richmond Maintenance Plan? The MVEBs for the Richmond Area maintenance plan are being posted to EPA's conformity Web site concurrently with this proposal. The public comment period will end at the same time as the public comment period for this proposed rule. In this case, EPA is concurrently processing the action on the maintenance plan and the adequacy process for the MVEBs contained therein. In this proposed rule, EPA is proposing to find the MVEBs adequate and also proposing to approve the MVEBs as part of the maintenance plan. The MVEBs cannot be used for transportation conformity until the maintenance plan and associated MVEBs are approved in a final **Federal Register** notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. If EPA receives adverse written comments with respect to the proposed approval of the Richmond MVEBs, or any other aspect of our proposed approval of this updated maintenance plan, we will respond to the comments on the MVEBs in our final action or proceed with the adequacy process as a separate action. Our action on the Richmond Area MVEBs will also be announced on EPA's conformity Web site: *http://www.epa.gov/otaq/stateresources/transconf/index.htm* (once there, click on the “Conformity” button, then look for “Adequacy Review of SIP Submissions”). VIII. Proposed Actions EPA is proposing to determine that the Richmond Area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the redesignation of the Richmond Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA has evaluated Virginia's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the Richmond Area has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of the Richmond Area from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the associated maintenance plan for the Richmond Area, submitted on September 25, 2006, as a revision to the Virginia SIP. EPA is proposing to approve the maintenance plan for the Richmond Area because it meets the requirements of section 175A as described previously in this notice. EPA is also proposing to approve the 2002 base-year inventory for the Richmond Area, and the MVEBs submitted by Virginia for the Richmond Area in conjunction with its redesignation request. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IX. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule, proposing to approve the redesignation of the Richmond Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base-year inventory, and the MVEBS identified in the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: April 5, 2007. Judith Katz, Acting Regional Administrator, Region III. [FR Doc. E7-7018 Filed 4-11-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 107, 171, 172, 173, 176, 178, and 180 [Docket No. PHMSA-2006-25910 (HM-218E)] RIN: 2137-AE23 Hazardous Materials: Miscellaneous Cargo Tank Motor Vehicle and Cylinder Issues; Petitions for Rulemaking AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: PHMSA proposes to amend the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to revise certain requirements applicable to the manufacture, maintenance, and use of DOT and MC specification cargo tank motor vehicles, DOT specification cylinders and UN pressure receptacles. The proposed revisions are based on petitions for rulemaking submitted by the regulated community and are intended to enhance the safe transportation of hazardous materials in commerce, clarify regulatory requirements, and reduce operating burdens on cargo tank and cylinder manufacturers, requalifiers, carriers, shippers, and users. DATES: Comments must be received by June 11, 2007. ADDRESSES: You may submit comments identified by the docket number PHMSA-2006-25910 (HM-218E) by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Web Site: http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. • *Fax:* 1-202-493-2251. • *Mail:* Docket Management System; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001. • *Hand Delivery:* To the Docket Management System; Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. *Instructions:* You must include the agency name and docket number PHMSA-2006-25910 (Docket No. HM-218E) or the Regulatory Identification Number
(RIN)for this notice of proposed rulemaking at the beginning of your comment. Please note that all comments received will be posted without change to *http://dms.dot.gov* including any personal information provided. See the Privacy Act section of this document. *Docket:* You may view the public docket through the Internet at *http://dms.dot.gov,* or in person at the Docket Management System office at the above address. FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite or T. Glenn Foster, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001, telephone
(202)366-8553. SUPPLEMENTARY INFORMATION: I. Background The Administrative Procedure Act
(APA)requires Federal agencies to give interested persons the right to petition for the issuance, amendment, or repeal of a rule (5 U.S.C. 553(e)). PHMSA's rulemaking procedure regulations, at 49 CFR 106.95, provide for persons to ask PHMSA to add, amend or delete a regulation by filing a petition for rulemaking containing adequate support for the requested action. In this NPRM, PHMSA (also “we” or “us”) proposes to amend the HMR based on petitions for rulemaking submitted by cargo tank and cylinder manufacturers, requalifiers, shippers, and carriers. We are also proposing revisions to address requests for clarification of the regulations. These proposed revisions are intended to enhance the safe transportation of hazardous materials in cargo tank motor vehicles and cylinders, clarify regulatory requirements, and reduce operating burdens on carriers, shippers, and users. II. Summary of Proposals in This NPRM The development of this rulemaking was influenced by a wide array of correspondence received from persons engaged in the manufacture, maintenance, or use of cargo tanks and cylinders. We received petitions for rulemaking requesting changes to the cargo tank and cylinder requirements specified in the HMR and clarification of existing requirements. These petitions are summarized and discussed in the following review-by-section summary: A. Part 171 Updated/Revised/Added Incorporations by Reference (§ 171.7) We have reviewed the following documents pertaining to cargo tanks and compressed gas cylinders. As a result, we have found no provisions that would impose a substantial burden or would have an adverse impact on safety. Therefore, we are proposing to update, revise, and add the following incorporation by reference
(IBR)materials in paragraph (a)(3) of § 171.7 in the Table of material incorporated by reference: • In response to Western Growers Association
(WGA)petition P-1352, under the entry “American Society of Mechanical Engineers,” we propose to revise the reference for “ASME Code, Sections II (Parts A and B), V, VIII (Division 1), and IX of 1998 Edition of American Society of Mechanical Engineers Boiler and Pressure Vessel Code” to add a section reference for § 173.5b. See review-by-section preamble discussion in § 173.5b for further details. • In response to WGA petition P-1352, under the entry “American Society for Testing and Materials,” we propose to add references to ASTM A53/A53M-06a and ASTM A106/A106M-06a. See review-by-section preamble discussion in § 173.5b for further details. • In response to Compressed Gas Association
(CGA)petition P-1482, under the entry “Compressed Gas Association, Inc,” we propose to add a reference to CGA, C-1 “Methods for Hydrostatic Testing of Compressed Gas Cylinders,” 2004 edition. See review-by-section preamble discussion in § 180.205 for further details. • In response to CGA petition P-1489, under the entry “Compressed Gas Association, Inc,” we propose to update CGA G-2.2, “Guideline Method for Determining Minimum of 0.2% Water in Anhydrous Ammonia,” from the 1985 Edition to reflect the 1985 Second Edition, Reaffirmed 1997. Paragraph (l), in § 173.315, restricts the use of MC 330 and MC 331 cargo tanks constructed of quenched and tempered “QT” steel from transporting anhydrous ammonia unless the ammonia has the specified minimum water content. The analysis of the water content in the ammonia is conducted as prescribed in CGA G-2.2. Currently, CGA G-2.2, 1985, Second Edition is incorporated by reference in § 171.7(a)(3). CGA reaffirmed this publication in 1997. There were no changes to the document other than the title reflecting that it was reaffirmed in 1997. • In response to CGA petition P-1488, under the entry “Compressed Gas Association, Inc,” we propose to update CGA P-20, “Standard for Classification of Toxic Gas Mixtures” from the 1995 2nd edition to the 2003 3rd edition. See review-by-section preamble discussion in § 173.115 for further details. • In response to CGA petition P-1484, under the entry “Compressed Gas Association, Inc,” we propose to add a reference to CGA TB-25 “Design Considerations for Tube Trailers,” 2005 edition. See review-by-section preamble discussion in § 173.301 for further details. • In response to CGA petition P-1422, under the entry “Compressed Gas Association, Inc,” we propose to add a reference to CGA V-9 “Standard for Compressed Gas Cylinder Valves,” 2005 edition. See review-by-section preamble discussion in §§ 173.40 and 173.301 for further details. In response to Tank Trailer Manufacturers Association
(TTMA)petition P-1408, we are also proposing to revise paragraph
(b)of § 171.7, List of informational materials not requiring incorporation by reference, to add a reference to TTMA RP No. 96-01, “Structural Integrity of DOT 406, DOT 407, and DOT 412 Cylindrical Cargo Tanks, January 1, 2001 Edition.” See review-by-section preamble discussion in § 178.345-3 for further details. B. Part 173 Mobile Refrigeration Systems (§ 173.5b) The agricultural produce industry uses large, mobile refrigeration systems on field sites to help preserve freshly harvested fruit and vegetables. These refrigeration systems consist of ASME non-DOT specification pressure components with a maximum total volumetric capacity per vehicle of 2,500 gallons. Refrigerant systems placed in service prior to June 1, 1991, have a maximum allowable working pressure
(MAWP)between 150 to 250 psig; and those placed in service on or after June 1, 1991, have an MAWP of 250 psig. The refrigeration system, commonly known as vacuum tubes, accumulators, refrigeration units, icemakers, pressure coolers or evaporators, primarily use Division 2.2 refrigerant gases or anhydrous ammonia in the cooling process. The refrigeration systems may or may not be mounted on a motor vehicle. These refrigerant systems are operated under special permit, SP-10285, which requires each refrigeration system to be visually inspected annually and proof pressure tested at least once every two years. The Western Growers Association
(WGA)P-1352 requests we establish design and safety control measures for these refrigeration systems consistent with those specified in the special permit and provide for their use in the HMR. WGA states these refrigeration systems have been authorized under DOT-SP 10285 for highway transportation since 1989 and have an exceptional transportation safety record. WGA conservatively estimates that in a two-month period, these refrigeration systems cool over 18,000,000 cartons of produce valued at more than $56 million. We agree with WGA that these portable refrigeration systems have a proven safety record under the special permit. Therefore, we propose to add a new § 173.5b to authorize the transportation of these refrigeration systems subject to the design and safety control measures recommended in the petition and prescribed in DOT-SP 10285. Standards for Cylinder Valves (§§ 173.40 and 173.301) Currently, § 173.40(c) of the HMR requires each cylinder containing a poison inhalation hazard
(PIH)material in Hazard Zone A to be closed with a plug or valve having a taper-threaded connection. Each cylinder, with the plug or valve installed, must be capable of withstanding the cylinder test pressure without damage or leakage, as specified in § 173.40(c). CGA (P-1422) requests we add a new paragraph (c)(5) to § 173.40 to require cylinders containing a Hazard Zone A material to be closed with a plug or a valve conforming to CGA V-9, “Compressed Gas Association Standard for Compressed Gas Cylinder Valves,” 2005 edition. Section 173.301 prescribes general requirements for the shipment of compressed gases in cylinders and spherical vessels. CGA further requests we revise § 173.301(c) to require cylinders containing Hazard Zone A and B toxic gases and mixtures to meet the requirements in CGA V-9. CGA V-9 defines a cylinder valve as the mechanical device attached to a compressed gas cylinder that permits flow into or out of the cylinder when the device is in the open position, and prevents flow when it is in the closed position. CGA V-9 contains standards on general cylinder valve design, design qualification, and performance requirements such as operating temperature limits, pressure ranges, and flow capabilities. This standard also contains testing and maintenance requirements to ensure valves are maintained in a safe working condition. CGA V-9 is not applicable to cylinder valves used on non-refillable cylinders whose valves or inlet connections are permanently attached to the cylinders by means of welding or brazing, or to valves on cylinders that are horizontally mounted to a chassis or framework for road transportation. CGA states use of this publication will provide greater assurance that valves used on cylinders containing toxic materials are in good condition and properly maintained. Based on our review of CGA V-9, we agree with CGA that providing for the use of CGA V-9 will assist shippers in the proper selection and use of valves installed in DOT specification cylinders containing toxic and various types of other gases. Because gases vary in degrees of corrosivity, toxicity, and pressure and concentration, a user must use care in selecting a cylinder valve appropriate for the cylinder's intended use and pressure. The current HMR offer no guidance to users on the proper selection of valves. Therefore, we propose to revise §§ 173.40(c) and 173.301(a) to require valves on cylinders, unless otherwise excepted, to conform to the requirements in CGA V-9, “Standard for Compressed Gas Cylinder Valves,” 2005 Fifth Edition. We also solicit comments on the potential cost impacts, if any, of requiring compliance with CGA V-9. Classification Criteria for Toxic Gas Mixtures (§ 173.115) In § 173.155(c)(2), the definition for Division 2.3 material (gas poisonous by inhalation) provides that LC <sup>50</sup> values for mixtures may be determined using the formula in § 173.133(b)(1)(i) or CGA P-20, “Standard for Classification of Toxic Gas Mixtures.” CGA (P-1488) requests we update CGA P-20 from the 1995 2nd edition to the 2003 3rd edition. CGA enclosed a list of changes contained in the 3rd edition. These changes align the LC <sup>50</sup> values contained in CGA P-20 with values contained in the international standards for the following materials: Ethylene oxide, Hydrogen fluoride, Methyl amine, Nitrogen trioxide, Phosphorous pentafluoride, Phosphorous trifluoride, and Tungsten hexafluoride. We agree the petition has merit and propose to revise paragraph (c)(2) to reflect the updated CGA P-20, “Standard for Classification of Toxic Gas Mixtures.” Tube Trailers (§ 173.301) This section prescribes general requirements for the shipment of compressed gases in cylinders and spherical pressure vessels. Paragraph
(i)of § 173.301 specifies guidelines for cylinders mounted on motor vehicles or in frames, commonly referred to as tube trailers. CGA (P-1484) requests we revise § 73.301(i) to reference the technical bulletin, CGA TB-25, “Design Considerations for Tube Trailers,” 2005 edition. CGA TB-25 addresses protective structures for valves and pressure relief devices, and design considerations for the static, dynamic, and thermal loads affecting tube trailers. These design considerations are intended to reduce the likelihood of the tube separating from the trailer and to minimize the unintentional release of hazardous materials in the event of a highway collision, including but not limited to, a rollover accident. These guidelines are intended to promote the reliable operation of the trailers under normal conditions and minimize the risk of a catastrophic incident in the event of an accident. We agree the guidelines contained in CGA TB-25 will enhance the safe transportation of tube trailers. CGA developed TB-25 to address safety concerns identified following a May 1, 2001 hydrogen gas tube trailer incident investigated by the National Transportation Safety Board (NTSB). In the incident, certain horizontally mounted cylinders on a semi-trailer, along with valves, piping and fittings, were damaged, causing the release of hydrogen gas. As a result, NTSB made several recommendations to PHMSA in an effort to address safety concerns. PHMSA responded to NTSB Recommendation H-02-25 by revising ERG Guide 115 in the 2004 Emergency Response Guidebook to include information on the difficulty of detecting and extinguishing hydrogen-fuel fires. As a result, NTSB classified Safety Recommendation H-02-25 as “Closed—Acceptable Action.” NTSB also recommended that PHMSA revise § 173.301 to clearly require valves, piping, and fittings for cylinders that are horizontally mounted and used to transport hazardous materials to be protected from multidirectional forces that are likely to occur during accidents, including rollovers (NTSB Recommendation H-02-23); and to require cylinders that are used to transport hazardous materials and are horizontally mounted on a semi-trailer to be protected from impact with the roadway or terrain to reduce the likelihood of their being fractured and ejected during a rollover accident (NTSB Recommendation H-02-24). Accordingly, we propose to revise § 173.301(i) to require tube trailers to conform to the requirements in CGA TB-25, “Design Considerations for Tube Trailers.” We also solicit comments on the potential cost impacts, if any, of requiring compliance with CGA TB-25. Requalification of DOT 3BN Cylinders (§ 173.338) Section 173.338 authorizes the use of DOT 3BN cylinders for the shipment of tungsten hexafluoride. Section 173.163 permits cylinders used exclusively for hydrogen fluoride to be requalified by external visual inspection in place of the periodic volumetric expansion test. Air Products (P-1458) requests we permit DOT 3BN cylinders used exclusively for tungsten hexafluoride to be requalified by an external visual inspection in place of the volumetric expansion test. Air Products states the chemical and physical properties of tungsten hexafluoride are similar to those of hydrogen fluoride. Air Products states noble metal nickel 200 does not corrode in tungsten hexafluoride service and the company has never had a cylinder fail a volumetric expansion test. We agree with the petitioner that the chemical properties of tungsten hexafluoride are similar to those of hydrogen fluoride. Tungsten hexafluoride does not corrode nickel; therefore, an internal inspection is not warranted. We have authorized DOT 3BN cylinders used exclusively for tungsten hexafluoride to be requalified by an external visual inspection for several years under special permit, SP- 14016, with satisfactory transportation experience. SP-14016 stipulates that DOT 3BN cylinders removed from service must be condemned. Therefore, in § 173.338, we propose to permit DOT 3BN cylinders used exclusively for tungsten hexafluoride to be requalified by an external visual inspection in place of the volumetric expansion test. The cylinders must be condemned when removed from service. C. Part 176 Stowage Requirements for Class 2 Material on Vessels (§ 176.200) Section 176.200 prescribes general stowage requirements for Class 2 (Compressed gases) materials transported aboard vessels. Horizon Lines (P-1471) requests we prohibit vessel stowage of Division 2.1 (flammable gases) in “reefer units,” that is, powered refrigerated temperature controlled containers. Horizon Lines expresses concern that sparks emitted from mechanical components of the reefer unit could come into contact with flammable gas in the event of a spill and cause an explosion. Horizon Lines further states its concern was substantiated by several major manufacturers of reefer units. We agree with the petitioner that the stowage of flammable gases in powered refrigerated temperature controlled containers should not be permitted without adequate safety measures. The transport of hazardous materials in temperature controlled containers is addressed in Chapter 7 of the International Maritime Dangerous Goods
(IMDG)Code. More specifically, the IMDG Code, at 7.4 and 7.7 requires the use of refrigeration systems with explosion-proof electric fittings within the cooling compartment to prevent ignition of flammable vapors. Consistent with the IMDG Code, we propose to revise § 176.200
(f)to restrict any package containing a Division 2.1 material from transportation in powered refrigerated temperature controlled containers, unless the container equipment is capable of preventing ignition of flammable vapor by having non-sparking or explosion-proof electric fittings within the cooling compartment. D. Part 178 DOT 4E Cylinders (§ 178.68) Section 178.68 contains the manufacturing specification for DOT 4E welded aluminum cylinders. Paragraph (l)(2) specifies the guided bend test procedures and rejection criteria to be applied to welds. Worthington Cylinders Corp (Worthington) (P-1486) requests we revise this paragraph to authorize the use of an alternate bend test illustrated in paragraph 12 of The Aluminum Association's publication, “Welding Aluminum: Theory and Practice” for determining the soundness of circumferential seam welds on aluminum cylinders. Worthington states use of this alternate test will assure the stress is placed on the weld, rather than the heat-affected zone of the weld. We agree that this alternate bend test is an acceptable test method for aluminum cylinders, as well as the currently authorized bend test designed for thin-walled steel cylinders. Therefore, we are proposing to revise § 178.68(l) to allow the bend test described in The Aluminum Association's publication, “Welding Aluminum: Theory and Practice,” as an alternative test method. DOT 406, 407, and 412 Cargo Tank Motor Vehicles (§ 178.345-3) Section 178.345-3 prescribes structural integrity requirements for the design and construction of DOT 406, DOT 407, and DOT 412 cargo tank motor vehicles. Paragraph
(a)specifies the general requirements and acceptance criteria for structural integrity. The Tank Trailer Manufacturers Association
(TTMA)(P-1408) requests we revise paragraph
(a)to reference TTMA Recommended Practice
(RP)No. 96-97, “Structural Integrity of DOT 406, DOT 407, and DOT 412 Cylindrical Cargo Tanks,” December 1, 1997 Edition. This standard contains methods for calculating the structural integrity of DOT 406, DOT 407 and DOT 412 cylindrical cargo tanks in conformance with §§ 178.345-3 and 178.345-8(e). Based on the Federal Motor Carrier Safety Administration's review of TTMA RP No. 96-97, we agree with the petitioner that using the methods outlined in the publication for calculating the structural integrity of cargo tanks will be beneficial to manufacturers in reducing time to perform the calculations. Therefore, we propose to revise § 178.345-3(a)(3) to reference the updated TTMA RP 96-01, 2001 Edition, as suitable guidance for performing the structural integrity calculations. Manhole Assemblies on DOT 406, 407, and 412 Cargo Tank Motor Vehicles (§ 178.345-5) Section 178.345-5 prescribes requirements for manhole assemblies used on DOT 406, DOT 407, and DOT 412 cargo tank motor vehicles. Paragraph
(f)specifies that all fittings and devices mounted on a manhole cover, coming in contact with the lading, must withstand the same static internal fluid pressure and contain the same permanent compliance markings as those prescribed in paragraph
(e)for the manhole cover. Because paragraph
(e)already requires the manhole cover to be marked with a statement certifying that the manhole cover meets the requirements in § 178.345-5, TTMA (P-1372) requests we remove the marking requirement in paragraph (f). We agree with the petitioner that the requirement in § 178.345-5(f) to mark the manhole's fittings is duplicative of the manhole cover marking requirement in paragraph (e). Therefore, we propose to remove the redundant wording in paragraph (f). E. Part 180 Cylinder Requalification (§ 180.205) Section 180.205 prescribes general requirements for requalification of DOT specification cylinders and special permit cylinders. Paragraph
(g)contains requirements for conducting a periodic pressure test for the requalification of cylinders. These requirements include parameters for accuracy of the test equipment. CGA requests we revise paragraph
(g)to reference CGA C-1 “Methods for Hydrostatic Testing of Compressed Gas Cylinders,” 2004 edition. This CGA publication contains hydrostatic testing requirements for the requalification of cylinders. We agree the CGA publication more adequately reflects the equipment accuracy requirements for performing a pressure test on cylinders. We propose to revise § 180.205(g) to reference CGA C-1 for requalification of DOT specification cylinders. Section 180.207 covering UN pressure receptacles also references § 180.205(g) for test equipment accuracy. We propose to retain the current requirement in paragraph
(g)that permits a pressure test to be repeated, in the event of test equipment failure only, at a pressure increased by 10%, or 100 psi, whichever is the lower value. If repeated, the cumulative increase in test pressure may not exceed 10% of minimum prescribed test pressure, as noted in CGA C-1. As an example, using a cylinder marked “DOT3AA1800”, if the first test is performed exactly at the minimum test pressure of 3000 psi (5/3 service pressure), and subsequent tests exactly at 3100, 3200, and 3300, a total of three repeat tests could be performed. However, if the first test is performed at 3200, one repeat test could be performed at 3300. The proposed rule does not alter any of the requirements for the operator to ensure the test system is accurate and ready to test cylinders. We are retaining the requirements contained in current paragraph
(g)concerning bands and other removable attachments, allowing other calibration standards approved by the Associate Administrator, requiring the requalifier to demonstrate calibration to an authorized DOT inspector, and the retention of calibrated cylinder certificates. Cargo Tank Testing and Inspection (§ 180.407) Section 180.407 prescribes requirements for the periodic testing and inspection of specification cargo tanks. Paragraph (d)(3) of § 180.407 requires each reclosing pressure relief valve that is required to be removed and tested to be able to open at the required set pressure and reseat to a leak-tight condition at 90 percent of the set-to-discharge pressure or the pressure for the applicable cargo tank specification. Paragraph (g)(1)(ii)(A) of § 180.407 requires each self-closing pressure relief valve that is an emergency relief vent to open at the required set pressure and seat to a leak-tight condition at 90 percent of the set-to-discharge pressure or the pressure for the applicable cargo tank specification. Keehn Service Corporation (Keehn Service) (P-1436) states the majority of pressure relief valves installed on MC-330 and MC-331 cargo tank motor vehicles transporting liquefied petroleum gas have a start-to-discharge set pressure of 250 psi. Keehn Service states it is difficult for existing or rebuilt valves to open at this exact pressure. In fact, a margin of error of as much as 4 psig could occur when using a typical 0-400 psig pressure gauge. Keehn Service requests we specify a start-to-discharge tolerance for pressure relief valves. We agree with the petitioner that it may be difficult for a pressure relief valve to function exactly at the specified set pressure and that we should allow a margin of error. Therefore, we propose to revise paragraphs (d)(3) and (g)(1)(ii)(A), of § 180.407, to specify that reclosing and self-closing pressure relief valves must be set-to-discharge at a pressure no more than 110% of the required set pressure. Providing for a tolerance is consistent with the set-to-discharge tolerance allowed for certain other DOT specification pressure vessels. III. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This notice is published under authority of 49 U.S.C. 5103(b), which authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This notice proposes to adopt regulations intended to enhance the safe transportation of hazardous materials in cargo tank motor vehicles and cylinders, clarify regulatory requirements, and reduce operating burdens on carriers, shippers, and users. B. Executive Order 12866 and DOT Regulatory Policies and Procedures This notice of proposed rulemaking is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget (OMB). This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). The proposed rule addresses several petitions for rulemaking submitted by the regulated community. For the most part, the petitioners request revisions to the HMR that should reduce overall compliance costs. For example, several of the petitioners request we update industry consensus standards incorporated by reference into the HMR. Adoption of industry standards reduces the regulatory burden on persons who offer hazardous material for transportation and persons who transport hazardous materials in commerce. Industry standards developed and adopted by consensus generally are accepted and followed by the industry; thus, their incorporation by reference in the HMR assures that the industry is not forced to comply with a different set of standards to accomplish the same safety goal. In addition, several of the petitions request regulatory relief through alternative means of compliance with current safety regulations or the elimination of requirements that are duplicative, out-dated, or otherwise unnecessary for safety. Thus, we are proposing to eliminate a duplicative marking requirement for manholes on certain cargo tank motor vehicles and provide alternative manufacturing and requalification methods for certain cylinders and cargo tank motor vehicles. Two of the proposals in this NPRM may result in increased compliance costs on the regulated community. We are proposing to require valves on cylinders authorized for the transportation of hazardous materials to conform to requirements in a CGA consensus standard—CGA V-9—applicable to compressed gas cylinder valves. Use of the CGA standard will help shippers to select a valve that is appropriate for the cylinder's intended use and pressure. Use of the correct valve is critical to prevent leaks or failures during transportation. We believe that most cylinder users already use the CGA consensus standard to guide their valve selection decisions; thus, we expect increased compliance costs associated with this proposal to be minimal. However, we request comments on the potential costs and impacts of requiring compliance with the valve requirements in CGA V-9. In addition, we are proposing to address a safety problem involving the transportation of hazardous materials in tube trailers through adoption of CGA consensus standard TB-24, “Design Considerations for Tube Trailers.” The CGA standard addresses safety concerns identified by NTSB in its investigation of an accident involving tube trailers that resulted in the release of hydrogen gas. We anticipate transportation of hydrogen gas in tube trailers will increase significantly in the coming years to support its use as an alternative fuel for automobiles and other vehicles. Ensuring that hydrogen gas will be transported safely to suppliers and distribution centers will be essential to support its use as an alternative fuel. The CGA standard addresses protective structures for valves and pressure relief devices and design considerations for static, dynamic, and thermal loads affecting tube trailers. The standard is intended to reduce the likelihood of the tube trailer separating from its trailer and to prevent the unintentional release of hazardous materials in the event of a highway collision or rollover accident. Because we are proposing to adopt an industry consensus standard that is already in widespread use by the industry, we expect compliance costs associated with this proposal will be minimal. However, we request comments on the potential cost and other impacts of requiring compliance with the CGA standard. If adopted, the proposals in this NPRM will enhance transportation safety and may reduce the overall compliance burden on the regulated industry. C. Executive Order 13132 This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“federalism”). This proposed rule would preempt State, local, and Indian tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. The Federal hazardous materials transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:
(i)The designation, description, and classification of hazardous material;
(ii)The packing, repacking, handling, labeling, marking, and placarding of hazardous material;
(iii)The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;
(iv)The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or
(v)The design, manufacture, fabrication, inspection, marking, maintenance, reconditioning, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. This proposed rule addresses covered subject items
(v)above and preempts State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This proposed rule is necessary to update, clarify and provide relief from regulatory requirements. Federal hazardous materials transportation law provides at § 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the **Federal Register** the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. PHMSA has determined the effective date of Federal preemption for these requirements will be 1 year from the date of publication of a final rule in the **Federal Register** . D. Executive Order 13084 This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply. E. Regulatory Flexibility Act, Executive Order 13272, and DOT Regulatory Policies and Procedures The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires an agency to review regulations to assess their impact on small entities unless the agency determines a rule is not expected to have a significant impact on a substantial number of small entities. The proposed rule incorporates several petitions for rulemaking submitted by the regulated community. As specified above, there may be minimal increased costs associated with the adoption of CGA V-9 and CGA TB-24. However, the revisions as a whole proposed in this rulemaking, if adopted, may decrease overall compliance costs for the regulated community while enhancing the safe transportation of hazardous materials in commerce. Therefore, I certify this rule should not have a significant economic impact on a substantial number of small entities. This notice has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure potential impacts of draft rules on small entities are properly considered. F. Paperwork Reduction Act PHMSA currently has approved information collections under Office of Management and Budget
(OMB)Control Number 2137-0014, “Cargo Tank Specification Requirements,” with an expiration date of November 30, 2007, and Control Number 2137-0022, “Testing, Inspection, and Marking Requirements for Cylinders,” with an expiration date of August 31, 2008. This rule proposes no new information collection and recordkeeping requirements. Title 5, Code of Federal Regulations requires us to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. Under the Paperwork Reduction Act, no person is required to respond to an information collection unless it has been approved by OMB and displays a valid OMB control number. Requests for a copy of these information collections should be directed to Deborah Boothe or T. Glenn Foster, Office of Hazardous Materials Standards (DHM-10), Pipeline and Hazardous Materials Safety Administration, Room 8422, 400 Seventh Street, SW., Washington, DC 20590-0001, Telephone
(202)366-8553. All comments should be addressed to the Dockets Unit as identified in the ADDRESSES section, and received prior to the close of the comment period identified in the DATES section of this rulemaking. In addition, you may submit comments specifically related to the information collection burden to the PHMSA Desk Officer, Office of Management and Budget (OMB), at fax number 202-395-6974. Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it displays a valid OMB control number. G. Regulation Identifier Number
(RIN)A regulation identifier number
(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. H. Unfunded Mandates Reform Act This proposed rule imposes no unfunded mandates and thus does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. I. 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.* List of Subjects 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements. 49 CFR Part 173 Hazardous materials transportation, Incorporation by reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium. 49 CFR Part 176 Hazardous materials transportation, Incorporation by reference, Maritime carriers, Radioactive materials, Reporting and recordkeeping requirements. 49 CFR Part 178 Hazardous materials transportation, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 180 Hazardous materials transportation, Incorporation by reference, Motor carriers, Motor vehicle safety, Packaging and containers, Railroad safety, Reporting and recordkeeping requirements. In consideration of the foregoing, 49 CFR Chapter I is proposed to be amended as follows: PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 1. The authority citation for part 171 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub L. 104-134 section 31001. 2. In § 171.7, make the following changes: a. In the table in paragraph (a)(3), under The Aluminum Association, a new entry titled “Welding Aluminum: Theory and Practice,” 2002 Fourth Edition is added; b. In the table in paragraph (a)(3), under American Society of Mechanical Engineers, the entry titled “ASME Code, Sections II (Parts A and B), V, VIII (Division 1), and IX of 1998 Edition of American Society of Mechanical Engineers Boiler and Pressure Vessel Code,” is revised; c. In the table in paragraph (a)(3), under American Society for Testing and Materials, entries for ASTM A53/A53M-06a and ASTM A106/A106M-06a are added; d. In the table in paragraph (a)(3), under Compressed Gas Association, Inc., entries for CGA Pamphlet G-2.2 1985 edition and CGA Pamphlet P-20 1995 edition are revised; e. In the table in paragraph (a)(3), under Compressed Gas Association Inc., new entries for CGA C-1 2005 edition, CGA TB-25 2005 edition, and CGA V-9 2005 edition are added; and f. In paragraph (b), a new entry “Truck Trailer Manufacturers Association,” 1020 Princess Street, Alexandria, Virginia 22314, “TTMA RP No. 96-01,” January 1, 2001 Edition is added in alphabetical order. The revisions and additions read as follows: § 171.7 Reference material.
(a)* * *
(3)*Table of material incorporated by reference* . * * * Source and name of material 49 CFR reference * * * * * * * *The Aluminum Association* , * * * * * * * Welding Aluminum: Theory and Practice, 2002 Fourth Edition 178.68. * * * * * * * *American Society of Mechanical Engineers* , * * * * * * * ASME Code, Sections II (Parts A and B), V, VIII (Division 1), and IX of 1998 Edition of American Society of Mechanical Engineers Boiler and Pressure Vessel Code 172.102; 173.5b; 173.24b; 173.32; 173.306; 173.315; 173.318; 173.420; 178.245-1; 178.245-3; 178.245-4; 178.245-6; 178.245-7; 178.255-1; 178.255-2; 178.255-14; 178.255-15; 178.270-2; 178.270-3; 178.270-7; 178.270-9; 178.270-11; 178.270-12; 178.271-1; 178.272-1; 178.273; 178.274; 178.276; 178.277; 178.320; 178.337-1; 178.337-2; 178.337-3; 178.337-4; 178.337-6; 178.337-16; 178.337-18; 178.338-1; 178.338-2; 178.338-3; 178.338-4; 178.338-5; 178.338-6; 178.338-13; 178.338-16; 178.338-18; 178.338-19; 178.345-1; 178.345-2; 178.345-3; 178.345-4; 178.345-7; 178.345-14; 178.345-15; 178.346-1; 178.347-1; 178.348-1; 179.400-3; 180.407. * * * * * * * *American Society for Testing and Materials* , * * * * * * * ASTM A53/A53M-06a Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless 173.5b. * * * * * * * ASTM A106/A106M-06a Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service 173.5b. * * * * * * * *Compressed Gas Association, Inc.* , * * * * * * * CGA C-1, Methods for Hydrostatic Testing of Compressed Gas Cylinders, 2004 Edition 180.205. * * * * * * * CGA G-2.2, Guideline Method for Determining Minimum of 0.2% Water in Anhydrous Ammonia, 1985, Second Edition, Reaffirmed 1997 173.315. * * * * * * * CGA P-20, Standard for the Classification of Toxic Gas Mixtures, 2003, Third Edition 173.115. * * * * * * * CGA TB-25, Design Considerations for Tube Trailers, 2005 Edition 173.301. * * * * * * * CGA V-9, Standard for Compressed Gas Cylinder Valves, 2005 Fifth Edition 173.40; 173.301. * * * * * * *
(b)*List of informational materials not requiring incorporation by reference.* * * * Source and name of material 49 CFR reference * * * * * * * Truck Trailer Manufacturers Association, 1020 Princess Street, Alexandria, Virginia 22314 TTMA RP No. 96-01, Structural Integrity of DOT 406, DOT 407, and DOT 412 Cylindrical Cargo Tanks, January, 2001 Edition 178.345-3. * * * * * * * PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS The authority citation for part 173 continues to read as follows: Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53. 4. A new § 173.5b is added to read as follows: § 173.5b Portable and mobile refrigeration systems. This section authorizes the highway transportation of residual amounts of Division 2.2 refrigerant gases or anhydrous ammonia contained in non-specification pressure vessels that are components of refrigeration systems, which may or may not be permanently mounted to a transport vehicle, used for agricultural operations. These refrigeration systems are used at field sites to cool (pre-cool) produce before the produce is loaded into trucks or railcars for market or used to supplement stationary refrigeration systems during peak harvest times. The components of these refrigeration systems are commonly known as vacuum tubes, accumulators, refrigeration units, ice makers, pressure coolers, or evaporators.
(a)*General packaging requirements.* Each non-specification pressure vessel must conform to the following:
(1)Each pressure vessel must be designed, manufactured, and maintained in accordance with applicable requirements of the ASME Code (IBR, see § 171.7 of this subchapter).
(2)Except as authorized in this section, each pressure vessel and associated piping must be rated at a maximum allowable work pressure
(MAWP)of 250 psig. The pressure in these components may not exceed MAWP.
(3)Any part of the piping or pressure vessel separated from another component of the refrigeration system by means of a valve, blank flange, or other device must be equipped with a pressure relief valve set at MAWP. All lines that must be disconnected for transportation purposes must be closed by means of a cap, plug or blank flange, and valves at the end of disconnected lines must be tightly closed.
(4)The aggregate total volumetric capacity of components within the refrigeration system authorized for highway transportation in accordance with this section may not exceed 2,500 gallons per vehicle.
(5)Each pressure vessel and associated piping containing anhydrous ammonia must conform to the following:
(i)Piping with a diameter of 2 inches or more must conform to ASTM Specification A53B Schedule 40 (IBR, see § 171.7 of this subchapter) or ASTM Specification A106 Schedule 40 (IBR, see § 171.7 of this subchapter).
(ii)Piping with a diameter of less than 2 inches must conform to ASTM Specification A53B (IBR, see § 171.7 of this subchapter) Schedule 80 or ASTM Specification A106 Schedule 80 (IBR, see § 171.7 of this subchapter).
(iii)The words “Inhalation Hazard” must be marked as required in special provision 13 in § 172.102 of this subchapter and, when practicable, within 24 inches of the placard.
(b)*Refrigeration systems placed into service prior to June 1, 1991.*
(1)For refrigeration systems placed into service prior to June 1, 1991, each pressure vessel and associated piping for the condensing line (“high side”) must be rated at an MAWP of not less than 250 psig. Each pressure vessel and associated piping for the evaporating line (“low side”) must be rated at an MAWP of not less than 150 psig, except that each pressure vessel or associated piping that will contain refrigerant gas during transportation must be rated at an MAWP of not less than 250 psig. During transportation, pressure in the components that are part of the evaporating line may not exceed 150 psig.
(2)Each pressure vessel and associated piping that is part of the evaporating line must be marked “LOW SIDE” in a permanent and clearly visible manner. The evaporating line must have a pressure gauge with corresponding temperature markings mounted so as to be easily readable when standing on the ground. The gauge must be permanently marked or tagged “SATURATION GAUGE”.
(3)Each pressure vessel and associated piping with an MAWP of 250 psig or greater containing liquid anhydrous ammonia must be isolated using appropriate means from piping and components marked “LOW SIDE”.
(4)Liquid lading is only authorized in system components with a rated MAWP of not less than 250 psig.
(5)Prior to transportation, each pressure vessel and associated piping with a rated MAWP of less than 250 psig must be relieved of enough gaseous lading to ensure that the MAWP is not exceeded at transport temperatures up to 54 °C (130 °F).
(6)Refrigeration systems placed into service prior to June 1, 1991, may continue in service until October 1, 2017.
(c)Prior to transportation over public highways, each pressure vessel and associated piping must be drained of refrigerant gas or liquid anhydrous ammonia to the extent practicable. Drained contents must be recovered in conformance with all applicable environmental regulations. Residual liquid anhydrous ammonia in each component may not exceed one percent of the component's total volumetric capacity or 10 gallons, whichever is less.
(d)*System inspection and testing.*
(1)Each refrigeration system authorized under this section must be visually inspected every year. The visual inspection must include items listed in § 180.407(d)(2) applicable to refrigeration systems. A certificate of the annual visual inspection must be dated and signed by the person performing the inspection and must contain that person's company affiliation. The certificate must remain at the equipment owner's office.
(2)Each refrigeration system authorized under this section must be proof pressure tested every two years beginning with the initial pressure test performed after manufacture. Additional pressure tests must be performed after any modification, repair or damage to a part of the system pressurized with refrigerant gas. System test pressures may not be less than one-and-one-half (1.50) times the rated MAWP of the system component or piping.
(3)Pressure relief valves must be successfully tested every two years at the MAWP for the components or piping to which they are attached. Pressure relief valves may be replaced and marked every 5 years with valves certified at the appropriate MAWP, in which case the valves need not be tested every two years. Valves that do not pass the test must be repaired or replaced.
(e)*Test markings and reports.*
(1)Evidence of testing specified in paragraph
(d)of this section must be marked on the right forward side of the refrigeration system with 2 inch high letters indicating type of last test (V = visual; P = pressure: hydrostatic or pneumatic) and the month/year in which it was performed. Reports and all of the requirements for records of inspections including markings must be completed as specified in part 180.
(2)Pressure relief valves must be durably marked with either the date of last test, set-pressure and testing company or the date of last replacement, set-pressure, and certifying company, as applicable. 5. In § 173.40, the introductory text to paragraph
(c)is revised to read as follows: § 173.40 General packaging requirements for toxic materials packaged in cylinders.
(c)*Closures.* When a valve is installed in a DOT specification cylinder containing a hazardous material, unless otherwise excepted, the valve must conform to the requirements in CGA V-9 (IBR; see § 171.7 of this subchapter). In addition, each cylinder containing a Hazard Zone A material must be closed with a plug or valve conforming to the following: 6. In § 173.115, paragraph (c)(2) is revised to read as follows: § 173.115 Class 2, Divisions 2.1, 2.2, and 2.3—Definitions.
(c)* * *
(2)In the absence of adequate data on human toxicity, is presumed to be toxic to humans because when tested on laboratory animals it has an LC <sup>50</sup> value of not more than 5000 mL/m 3 (see § 173.116(a) of this subpart for assignment of Hazard Zones A, B, C or D). LC <sup>50</sup> values for mixtures may be determined using the formula in § 173.133(b)(1)(i) or CGA P-20 (IBR, see § 171.7 of this subchapter). 7. In § 173.301, a new paragraph (a)(11) is added and paragraph
(i)is revised to read as follows: § 173.301 General requirements for shipment of compressed gases in cylinders and spherical pressure vessels.
(a)* * *
(11)When a valve is installed in a DOT specification cylinder containing a hazardous material, unless otherwise excepted, the valve must conform to the requirements in CGA V-9 (IBR; see § 171.7 of this subchapter).
(i)*Cylinders mounted in motor vehicles or in frames.*
(1)MEGCs must conform to the requirements in § 173.312. DOT specification cylinders mounted on motor vehicles or in frames must conform to the requirements specified in this paragraph (i).
(2)Seamless DOT specification cylinders longer than 2 m (6.5 feet) are authorized for transportation only when horizontally mounted on a motor vehicle or in an ISO framework or other framework of equivalent structural integrity in accordance with CGA TB-25 (IBR, see § 171.7 of this subchapter). The pressure relief device must be arranged to discharge unobstructed to the open air. In addition, for Division 2.1 (flammable gas) material, the pressure relief devices must be arranged to discharge upward to prevent any escaping gas from contacting personnel or any adjacent cylinders.
(3)Cylinders may not be transported by rail in container on freight car
(COFC)or trailer on flat car
(TOFC)service except under conditions approved by the Associate Administrator for Safety, Federal Railroad Administration. 8. Section 173.338 is revised to read as follows: § 173.338 Tungsten hexafluoride.
(a)Tungsten hexafluoride must be packaged in specification 3A, 3AA, 3BN, or 3E (§§ 178.36, 178.37, 178.39, 178.42 of this subchapter) cylinders. Cylinders must be equipped with a valve protection cap or be packed in a strong outside container complying with the provisions of § 173.40. Outlets of any valves must be capped or plugged. As an alternative, the cylinder opening may be closed by the use of a metal plug. Specification 3E cylinders must be shipped in an overpack that complies with the provisions of § 173.40.
(b)In place of the volumetric expansion test, DOT 3BN cylinders used in exclusive service may be given a complete external visual inspection in conformance with part 180, subpart C, of this subchapter, at the time such periodic requalification becomes due. Cylinders that undergo a complete external visual inspection, in place of the volumetric expansion test, must be condemned in accordance with § 180.205 of this subchapter if removed from tungsten hexafluoride service. PART 176—CARRIAGE BY VESSEL 9. The authority citation for part 176 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53. 10. In § 176.200, paragraph
(f)is revised to read as follows: § 176.200 General stowage requirements.
(f)Class 2 (compressed gas) material must be kept as cool as practicable and be stowed away from all sources of heat and ignition. Any package containing a Division 2.1 (flammable gas) material is restricted from transport in powered refrigerated temperature controlled containers, unless the equipment is capable of preventing ignition of flammable vapors by having non-sparking or explosion-proof electric fittings within the cooling compartment. PART 178—SPECIFICATIONS FOR PACKAGINGS 11. The authority citation for part 178 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53. 12. In § 178.68, paragraph (l)(2) is revised to read as follows: § 178.68 Specification 4E welded aluminum cylinders.
(l)* * *
(2)*Guided bend test.* A bend test specimen must be cut from the cylinder used for the physical test specified in paragraph
(j)of this section. Specimen must be taken across the seam, must be a minimum of 1 1/2 inches wide, edges must be parallel and rounded with a file, and back-up strip, if used, must be removed by machining. The specimen shall be tested as follows:
(i)The specimen must be bent to refusal in the guided bend test jig as illustrated in paragraph 6.10 of CGA C-3 (IBR, see § 171.7 of this subchapter). The root of the weld (inside surface of the cylinder) must be located away from the ram of the jig. The specimen must not show a crack or other open defect exceeding 1/8 inch in any direction upon completion of the test. Should this specimen fail to meet the requirements, specimens may be taken from each of 2 additional cylinders from the same lot and tested. If either of the latter specimens fails to meet requirements, the entire lot represented must be rejected.
(ii)Alternatively, the specimen may be tested in a guided bend test jig as illustrated in paragraph 12 of The Aluminum Association's publication, “Welding Aluminum: Theory and Practice” (IBR, see § 171.7 of this subchapter). The root of the weld (inside surface of the cylinder) must be located away from the mandrel of the jig. No specimen must show a crack or other open defect exceeding 1/8 inch in any direction upon completion of the test. Should this specimen fail to meet the requirements, specimens may be taken from each of 2 additional cylinders from the same lot and tested. If either of the latter specimens fails to meet requirements, the entire lot represented must be rejected. 13. In § 178.345-3, at the end of paragraph (a)(3), a sentence is added to read as follows: § 178.345-3 Structural integrity.
(a)* * *
(3)* * * TTMA RP 96-01, Structural Integrity of DOT 406, DOT 407, and DOT 412 Cylindrical Cargo Tanks, may be used as guidance in performing the calculations. 14. In § 178.345-5, paragraph
(f)is revised to read as follows: § 178.345-5 Manhole assemblies.
(f)All components mounted on a manhole cover that form part of the lading retention structure of the cargo tank wall must withstand the same static internal fluid pressure as that required for the manhole cover. The component manufacturer shall verify compliance using the same test procedure and frequency of testing as specified in § 178.345-5(b). PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS 15. The authority citation for part 180 continues to read as follows: Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53. 16. In § 180.205, paragraph
(g)is revised to read as follows: § 180.205 General requirements for requalification of specification cylinders.
(g)*Pressure test.* Unless otherwise provided, each cylinder required to be pressure tested under this subpart must be tested by means suitable for measuring the expansion of the cylinder under pressure. The pressure test procedures and equipment accuracy for the volumetric expansion test and, when authorized, the proof pressure test must be in accordance with CGA C-1 (IBR, see § 171.7 of this subchapter), subject to the following limitations as applicable:
(1)Bands and other removable attachments must be loosened or removed before testing so that the cylinder is free to expand in all directions.
(2)Each day before testing, the requalifier shall confirm the accuracy of the expansion-indicating device and the pressure-indicating device by using a calibrated cylinder or other method authorized in writing by the Associate Administrator. In the event the calibrated cylinder's expansion values have changed from the certified certificate expansion values, the calibrated cylinder may be recalibrated using a dead weight test device traceable to the National Institute of Standards and Testing
(NIST)measurement standards or using another calibrated cylinder.
(3)The requalifier must demonstrate calibration in conformance with this paragraph
(g)to an authorized inspector on any day that the requalifier retests cylinders. A requalifier must maintain calibrated cylinder certificates in accordance with § 180.215(b)(4).
(4)When a test pressure cannot be achieved or maintained due to a malfunction of the test equipment, the pressure test may be repeated only at a pressure increased by 10% or 100 psig, whichever is the lower value. The cumulative increase in test pressure may not exceed 10% of minimum prescribed test pressure.
(5)This paragraph
(g)does not authorize retest of a cylinder otherwise required to be condemned under paragraph
(i)of this section. In § 180.407, paragraphs (d)(3) and (g)(1)(ii)(A) are revised to read as follows: § 180.407 Requirements for test and inspection of specification cargo tanks.
(d)* * *
(3)All reclosing pressure relief valves must be externally inspected for any corrosion or damage which might prevent safe operation. All reclosing pressure relief valves on cargo tanks carrying lading corrosive to the valve must be removed from the cargo tank for inspection and testing. Each reclosing pressure relief valve required to be removed and tested must open at no less than the required set pressure and no more than 110 percent of the required set pressure and reseat to a leak-tight condition at 90 percent of the set-to-discharge pressure or the pressure prescribed for the applicable cargo tank specification.
(g)* * *
(1)* * *
(ii)* * *
(A)Each self-closing pressure relief valve that is an emergency relief vent must open at no less than the required set pressure and no more than 110 percent of the required set pressure and reseat to a leak-tight condition at 90 percent of the set-to-discharge pressure or the pressure prescribed for the applicable cargo tank specification. Issued in Washington, DC on April 6, 2007 under authority delegated in 49 CFR part 106. Theodore L. Willke, Acting Associate Administrator for Hazardous Materials Safety. [FR Doc. E7-6942 Filed 4-11-07; 8:45 am] BILLING CODE 4910-60-P 72 70 Thursday, April 12, 2007 Notices AFRICAN DEVELOPMENT FOUNDATION Sunshine Act Meeting Meeting: African Development Foundation, Board of Directors Meeting. Time: Tuesday, April 24, 2007, 8:45 a.m. to 1 p.m. Place: African Development Foundation, Conference Room, 1400 I Street, NW., Suite 1000, Washington, DC 20005. Date: Tuesday, April 24, 2007. Status: 1. Open session, April 24, 2007, 8:45 a.m. to 12 p.m.; and, 2. Closed session, April 24, 2007, 12 p.m. to 1 p.m. Due to security requirements and limited seating, all individuals wishing to attend the open sessions of the meeting must notify Doris Martin, General Counsel, at
(202)673-3916 or *mrivard@usadf.gov* of your request to attend by 9 a.m. on Wednesday, April 18, 2007. Rodney J. MacAlister, President. [FR Doc. 07-1840 Filed 4-10-07; 3:10 pm]
Connectionstraces to 36
Traces to 36 documents
46 references not yet in our index
  • 5 CFR 1820
  • Pub. L. 97-365
  • 96 Stat. 1749
  • Pub. L. 104-134
  • 14 CFR 25
  • 14 CFR 34
  • Pub. L. 92-574
  • 14 CFR 39
  • 26 CFR 1
  • T.D. 8508
  • T.D. 8852
  • 26 CFR 606.601(a)(3)
  • 33 CFR 100
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • 33 USC 1233
  • 40 CFR 52
  • 40 CFR 60
  • 40 CFR 75.14
  • Pub. L. 104-4
  • 472 F.3d 882
  • 40 CFR 50
  • 40 CFR 81
  • 40 CFR 58
  • 375 F.3d 537
  • 285 F.3d 63
  • 265 F.3d 426
  • 144 F.3d 984
  • 40 CFR 51
  • 40 CFR 93
  • 40 CFR 93.118(e)(4)
  • 49 CFR 106.95
  • 49 USC 5101-5127
  • 49 CFR 171
  • 49 CFR 173
  • 49 CFR 176
  • 49 CFR 178
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U.S.C.§ 3717
Stat.Public Law 104–133
F. App'x472 F.3d 882
F. App'x375 F.3d 537
F. App'x285 F.3d 63
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