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Code · REGISTER · 2007-04-17 · PROPOSED RULES · Unknown

Unknown. Final rule

91,336 words·~415 min read·/register/2007/04/17/07-1888

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

--- schema: federal-register doc_type: fedreg source_file: FR-2007-04-17.xml --- 72 73 Tuesday, April 17, 2007 Contents Agency Agency for Healthcare Research and Quality NOTICES Evidence-based Practice Centers; topics nominations, 19203-19205 07-1813 Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Grain Inspection, Packers and Stockyards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 19165-19166 E7-7217 E7-7219 E7-7233 Animal Animal and Plant Health Inspection Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 19167 E7-7244 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 19205-19207 E7-7235 E7-7237 E7-7238 Meetings:
Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 19207 E7-7245 National Institute for Occupational Safety and Health— Radiation and Worker Health Advisory Board, 19207-19208 E7-7253 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 19208-19209 07-1879 07-1880 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration See Patent and Trademark Office Copyright Copyright Royalty Board, Library of Congress PROPOSED RULES Noncommercial educational broadcasting; copyrighted works use; statutory license rates and terms, 19138-19144 E7-7067 Corporation Corporation for National and Community Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 19182-19183 E7-7213 Defense Defense Department PROPOSED RULES Personnel, military and civilian:
Indebtedness of military personnel, 19136-19138 E7-7292 NOTICES Arms sales notification; transmittal letter, etc., 19183-19187 07-1884 Federal Acquisition Regulation (FAR): Agency information collection activities; proposals, submissions, and approvals, 19187-19188 07-1859 07-1860 Employment Employment Standards Administration See Wage and Hour Division Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission Energy Energy Efficiency and Renewable Energy Office NOTICES Consumer products; energy conservation program:
General Electric Co.; waiver from refrigerator and refrigerator-freezer test procedures, 19189-19192 E7-7232 EPA Environmental Protection Agency PROPOSED RULES Air pollutants, hazardous; national emission standards: Iron and steel foundries, 19150-19164 E7-7203 Air quality implementation plans; approval and promulgation; various States: Nevada, 19144-19150 E7-7285 NOTICES Agency information collection activities; proposals, submissions, and approvals, 19194-19197 E7-7277 E7-7278 Air programs:
Stratospheric ozone protection— Methyl bromide phaseout; critical use exemptions applications (2009 and 2010), 19197-19200 E7-7279 Committees; establishment, renewal, termination, etc.: Children's Health Protection Advisory Committee, 19200 E7-7272 Meetings: Clean Air Act Advisory Committee, 19201 E7-7275 Executive Executive Office of the President See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Airworthiness directives: Turbomeca S.A., 19110-19112 E7-7115 Federal Energy Federal Energy Regulatory Commission RULES Electric utilities (Federal Power Act):
Transmission service; undue discrimination and preference prevention, 19112-19116 E7-7229 Filing fees; annual update, 19116-19117 E7-7190 NOTICES Meetings; Sunshine Act, 19192-19194 E7-7334 Federal Highway Federal Highway Administration NOTICES Federal agency actions on proposed highways; judicial review claims: Vanderburgh County et al., IN; Evansville to Indianapolis I-69 highway project, 19228-19229 E7-7231 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies:
Formations, acquisitions, and mergers, 19201 E7-7281 Meetings; Sunshine Act, 19201-19202 07-1918 Fish Fish and Wildlife Service NOTICES Environmental statements; availability, etc.: Sheldon National Wildlife Refuge, OR; horse and burro management program, 19212-19213 E7-7243 GSA General Services Administration NOTICES Federal Acquisition Regulation (FAR): Agency information collection activities; proposals, submissions, and approvals, 19187-19188 07-1859 07-1860 Federal Management Regulation:
Federal buildings; designations and redesignations, 19202 E7-7230 GIPSA Grain Inspection, Packers and Stockyards Administration RULES Practice and procedure: Packers and Stockyards Act; cases settlement without formal proceedings, 19108-19109 E7-7041 NOTICES Grade standards: Beans, 19168-19169 E7-7242 Whole dry peas, split peas, and lentils, 19169-19170 E7-7241 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Children and Families Administration See Substance Abuse and Mental Health Services Administration NOTICES Meetings:
Physical Fitness and Sports, President's Council, 19202-19203 E7-7251 Vital and Health Statistics National Committee, 19203 07-1885 Homeland Homeland Security Department RULES Immigration: Evidence processing request; standardized timeframe; removal, 19100-19107 E7-7228 Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 19209-19211 E7-7204 E7-7283 07-1909 Public and Indian housing: Public Housing Operating Fund Program— Asset management; implementation guidance, 19211-19212 E7-7218 Industry Industry and Security Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 19170-19171 E7-7211 E7-7212 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Minerals Management Service See Reclamation Bureau See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service RULES Income taxes:
Nonqualified deferred compensation plans; section 409A application, 19234-19325 07-1820 International International Trade Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 19171-19173 E7-7209 E7-7215 Antidumping: Floor-standing, metal-top ironing tables and parts from— China, 19173 E7-7286 Freshwater crawfish tail meat from— China, 19174-19177 E7-7199 Honey from— Argentina, 19177-19178 E7-7288 Justice Justice Department See Justice Programs Office Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 19216 E7-7234 Labor Labor Department See Wage and Hour Division Land Land Management Bureau NOTICES Committees; establishment, renewal, termination, etc.:
National Historic Oregon Trail Interpretive Center Advisory Board, 19213-19214 E7-7264 Library Library of Congress See Copyright Royalty Board, Library of Congress Minerals Minerals Management Service NOTICES Grants and cooperative agreements; availability, etc.: Coastal Impact Assistance Program; 2007-2008 FY allocations, 19214 E7-7221 Outer Continental Shelf operations: Oil and gas lease sales— Restricted joint bidders list, 19214-19215 E7-7220 NASA National Aeronautics and Space Administration NOTICES Federal Acquisition Regulation (FAR):
Agency information collection activities; proposals, submissions, and approvals, 19187-19188 07-1859 07-1860 Grants and cooperative agreements; availability, etc.: Centennial Challenges Lunar Lander Challenge, 19216-19217 E7-7214 National Institute National Institute of Standards and Technology NOTICES Meetings: Information Technology Laboratory; Internet Protocol version 6 test materials, 19178-19179 E7-7287 International Code Council, 19179 E7-7276 NOAA National Oceanic and Atmospheric Administration RULES Fishery and conservation management:
Western Pacific fisheries— Electronic logbook forms; optional use, 19123-19125 E7-7291 International fisheries regulations: Pacific albacore tuna— U.S. vessels eligible to fish in Canadian waters; annual listing, 19122-19123 E7-7293 NOTICES Agency information collection activities; proposals, submissions, and approvals, 19180 E7-7216 Environmental statements; notice of intent: Illinois; Coastal Management Program, 19180-19181 07-1888 Marine mammal permit applications, determinations, etc., 19181-19182 E7-7294 Nuclear Nuclear Regulatory Commission RULES Spent nuclear fuel and high-level radioactive waste; independent storage; licensing requirements:
Approved spent fuel storage casks; list, 19109 E7-7262 NOTICES Export and import license applications for nuclear facilities and materials: Diversified Scientific Services, Inc., 19218-19219 E7-7270 Meetings: Reactor Safeguards Advisory Committee, 19219 E7-7268 E7-7269 Meetings; Sunshine Act, 19219-19220 07-1915 *Applications, hearings, determinations, etc.:* System Energy Resources Inc., 19217-19218 E7-7261 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Patent Patent and Trademark Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 19182 E7-7250 Personnel Personnel Management Office RULES Health benefits;
Federal employees: Continued coverage during retirement; requirements waiver, 19099-19100 E7-7267 Pay administration: Compensatory time off for travel, 19093-19099 E7-7266 PROPOSED RULES Internal Revenue Service broadbanding systems; criteria, 19126-19135 E7-7255 Reclamation Reclamation Bureau NOTICES Reports and guidance documents; availability, etc.: Mid-Pacific Region business practice guidelines; account for Central Valley Project water transfers, 19215 E7-7239 SEC Securities and Exchange Commission NOTICES Meetings;
Sunshine Act, 19220-19221 E7-7282 Securities: Suspension of trading— Amerossi EC Inc. et al., 19221 07-1913 Self-regulatory organizations; proposed rule changes: Boston Stock Exchange, Inc., 19221-19222 E7-7225 Chicago Stock Exchange, Inc., 19222-19223 E7-7223 National Association of Securities Dealers, Inc., 19223-19225 E7-7222 New York Stock Exchange LLC, 19225-19227 E7-7224 State State Department NOTICES Foreign Operations, Export Financing, and Related Programs Appropriations Act:
Independent States of the Former Soviet Union; assistance determination and waiver, 19227 E7-7273 Meetings: Defense Trade Advisory Group, 19227 E7-7274 Substance Substance Abuse and Mental Health Services Administration NOTICES Organization, functions, and authority delegations: State and Community Assistance Division, 19209 E7-7240 Surface Surface Mining Reclamation and Enforcement Office RULES Permanent program and abandoned mine land reclamation plan submissions: Pennsylvania, 19117-19122 E7-7227 NOTICES Agency information collection activities; proposals, submissions, and approvals, 19215-19216 07-1881 Surface Surface Transportation Board NOTICES Railroad services abandonment:
Lake State Railway Co., 19229-19230 E7-6934 Thrift Thrift Supervision Office RULES Community Reinvestment Act; implementation: Interagency uniformity Correction, 19109-19110 E7-7226 NOTICES Agency information collection activities; proposals, submissions, and approvals, 19230-19231 E7-7259 E7-7260 Trade Trade Representative, Office of United States NOTICES Dominican Republic-Central America-United States Free Trade Agreement: Retroactive duty treatment; eligibility determination, 19220 E7-7263 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Surface Transportation Board NOTICES Aviation proceedings:
Agreements filed; weekly receipts, 19227-19228 E7-7246 Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, 19228 E7-7248 Treasury Treasury Department See Internal Revenue Service See Thrift Supervision Office Veterans Veterans Affairs Department NOTICES Meetings: Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board, 19231-19232 07-1877 Special Medical Advisory Group, 19232 07-1878 Wage Wage and Hour Division PROPOSED RULES Child labor regulations, orders, and statements of interpretation:
Nonagricultural occupations; employment of 14- and 15-year-olds, 19337-19373 E7-7053 Occupations particularly hazardous for or detrimental to health or well-being of employees under 18 years old, 19328-19337 E7-7052 Separate Parts In This Issue Part II Treasury Department, Internal Revenue Service, 19234-19325 07-1820 Part III Labor Department, Wage and Hour Division, 19328-19373 E7-7052 E7-7053 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 73 Tuesday, April 17, 2007 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 550 RIN 3206-AK74 Pay Administration (General) AGENCY: Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management is issuing final regulations on compensatory time off for time spent in a travel status away from the official duty station when such time is not otherwise compensable.
DATES: The regulations are effective May 17, 2007. FOR FURTHER INFORMATION CONTACT: Vicki Draper by telephone at
(202)606-2858, by fax at
(202)606-0824, or by e-mail at *pay-performance-policy@opm.gov.* SUPPLEMENTARY INFORMATION: On January 27, 2005, the Office of Personnel Management
(OPM)published interim regulations (70 FR 3855) in 5 CFR part 550, subpart N, to implement section 203 of the Federal Workforce Flexibility Act of 2004 (Pub. L. 108-411, October 30, 2004), hereafter referred to as “the Act.” Section 203 of the Act amended 5 U.S.C. chapter 55, subchapter V, by adding a new section 5550b, which established a new form of compensatory time off for time spent by an employee in a travel status away from the employee's official duty station when such time is not otherwise compensable. The 60-day comment period for the interim regulations ended on March 28, 2005. During the comment period, OPM received comments from 16 Federal agencies, 7 unions, and 81 individuals, all of which are addressed in this final rule. In addition, in March 2006, we issued additional guidance, including questions and answers, to address many of the comments we received on the interim regulations. We encourage agencies and employees to review these materials on OPM's Web site at *http://www.opm.gov/oca/pay/HTML/compensatory_time.asp* . We will continue to provide additional guidance on the administration of compensatory time off for travel, as necessary. Effective Date Two individuals suggested the new provision be applied retroactively to cover previous travel times that were not compensable under title 5, United States Code. Section 203(c) of the Act provided that the new form of compensatory time off for travel would take effect on the earlier of
(1)the effective date of the implementing regulations or
(2)the 90th day after the date of the law's enactment (January 28, 2005). The interim regulations became effective on January 28, 2005, and apply prospectively from that date. Covered Employees Several commenters requested clarification on the categories of employees covered by the new compensatory time off provision, while others objected to omissions of certain categories of employees in OPM's regulations at 5 CFR 550.1402. Because the law authorizing the new compensatory time off provision is in 5 U.S.C. chapter 55, subchapter V, the new provision applies to an “employee” as defined in 5 U.S.C. 5541(2), who is employed in an “Executive agency,” as defined in 5 U.S.C. 105, without regard to whether the employee is exempt from or covered by the overtime pay provisions of the Fair Labor Standards Act of 1938 (FLSA), as amended. OPM cannot broaden coverage to include additional employee groups. The definition includes employees in senior-level
(SL)and scientific or professional
(ST)positions, but not members of the Senior Executive Service, Senior Foreign Service, Foreign Service officers, or prevailing rate (wage grade) employees. The compensatory time off for travel provision also does not apply to employees of Non-Appropriated Fund Instrumentalities (NAFI). NAFI employees are not covered by the laws administered by OPM, with a few narrow exceptions, which are listed in 5 U.S.C. 2105(c). Although title 38 employees are not specifically excluded from the definition of “employee” in 5 U.S.C. 5541(2), the title 38 employment system is administered by the Department of Veterans Affairs
(VA)under its own legal authority and any determinations as to coverage under 5 U.S.C. 5541(2) would be made by VA. A commenter noted that the Department of Justice
(DOJ)has determined the compensatory time off for travel statute does not apply to attorneys at DOJ. Congress recently enacted legislation (Pub. L. 109-425, December 20, 2006) which provides that attorneys at DOJ shall be eligible for compensatory time off for travel under section 5550b of title 5, United States Code. Employees who are on intermittent work schedules are not eligible to earn and use compensatory time off for travel because they do not have a scheduled tour of duty for leave purposes. Under 5 CFR 550.1406(b), compensatory time off for travel may be used by an employee when the employee is granted time off from his or her scheduled tour of duty established for leave purposes. Finally, a part-time employee may be entitled to compensatory time off for travel if the travel time does not qualify as compensable hours of work under 5 U.S.C. 5542(b)(2)(B) and 5 CFR 550.112(g)(2) and meets the other requirements in 5 CFR part 550, subpart N. Definitions Many commenters recommended the addition or revision of certain definitions in § 550.1403. One agency recommended adding a definition of *accrued compensatory time off,* which is used in § 550.1406. We agree and have added a definition to § 550.1403. In addition, we have added a definition of *authorized agency official* to mean the head of the agency or an official who is authorized to act for the head of the agency in the matter concerned. Two individuals recommended that OPM define *time the employee would have spent in normal home-to-work or work-to-home commuting* . We do not believe this is necessary, since agencies may use procedures already in place for deducting commuting time from travel hours as required by 5 CFR 550.112(j)(2) and 5 CFR 551.422(b). One agency recommended that OPM establish a minimum commute time for an employee whose residence is considered his or her official duty station. We are not adopting this recommendation because an employee whose residence is his or her official duty station does not spend time commuting to work. Two individuals recommended revising the definition of *official duty station* to be consistent with the term *official station* as defined in the Federal Travel Regulation (41 CFR 300-3.1) issued by the General Services Administration. *Official duty station* in § 550.1403 means the geographic area surrounding an employee's regular work site that is the same as the area designated by the employing agency for the purpose of determining whether travel time is compensable for the purpose of determining overtime pay, consistent with the regulations in 5 CFR 550.112(j) and 551.422(d). The term *official station* prescribes the geographic limits of an employee's permanent work station for the purpose of determining the employee's entitlement to subsistence allowances (per diem). We are not adopting the recommendation because the geographic area an agency designates for the purpose of determining whether an employee is entitled to overtime pay for a period of travel may be different than the geographic area covered by *official station* as defined in 41 CFR 300-3.1. One agency recommended that the definition of *travel status* be stated exactly as it is in § 550.1404(b), and one individual recommended clarifying the definition. We do not believe it is necessary to revise the definition because it refers directly to § 550.1404(b). Compensable Travel Time Several commenters recommended clarifying whether travel under certain circumstances is *compensable* . Under § 550.1403, *compensable* refers to periods of time that are creditable as hours of work for the purpose of determining a specific pay entitlement, even when that work time may not actually generate additional compensation because of applicable pay limitations. One agency and an individual recommended clarifying whether an employee who receives administratively uncontrollable overtime
(AUO)pay under 5 U.S.C. 5545(c)(2) is eligible to receive compensatory time off for travel. An employee receiving AUO pay may be entitled to compensation for travel time during
(1)nonovertime hours,
(2)AUO hours (i.e., irregular or occasional overtime hours), or
(3)regularly scheduled overtime hours—if the travel hours meet one of the conditions in 5 CFR 550.112(g) or 5 CFR 551.422, as applicable. If an AUO employee has other qualifying travel time that does not meet the applicable conditions to be treated as compensable hours of work, such travel time may be used to earn compensatory time off under 5 CFR part 550, subpart N. One agency recommended clarifying an employee is not eligible for compensatory time off for travel when the time spent traveling has been compensated under the FLSA. Overtime hours compensated under the FLSA clearly meet the definition of *compensable* in § 550.1403. Therefore, we believe no clarification in the regulations is necessary. One union recommended clarifying that a class of accommodations, such as business class, does not influence whether the travel time is *compensable* . We agree. Allowing an employee to upgrade his or her travel to business class does not eliminate his or her eligibility to earn compensatory time off for travel. One individual and one agency recommended clarifying whether an employee is eligible to earn compensatory time off for any portion of a period of travel under 5 CFR 550.112(g)(2) which may not be compensable because of the biweekly cap on premium pay. One union and one agency recommended that such an employee should be eligible. We disagree. Even though an employee may not be paid overtime pay for all of his or her travel hours because of the biweekly premium pay cap, all of the travel time is still considered to be compensable under 5 CFR 550.112(g)(2). Under these circumstances, therefore, the employee has been compensated fully under the law for all of the travel hours; the employee may not earn compensatory time off for any portion of such travel. Earning Compensatory Time Off for Travel Two unions and one individual recommended an employee should be able to earn compensatory time off when he or she travels while performing union representational duties. We are not adopting this recommendation. The term *travel* is defined at 5 CFR 550.1403 to mean officially authorized travel—i.e., travel for work purposes that is approved by an authorized agency official or otherwise authorized under established agency policies. The term “travel for work purposes” is intended to mean travel for agency-related work purposes. The Federal Labor Relations Authority
(FLRA)has held that the performance of representational duties does not involve the performance of work as used in the phrase “technology of performing work” under 5 U.S.C. 7106(b)(1). *See AFGE, Council 214, AFL-CIO,* 31 FLRA 1259, 1261-62 (1988). The FLRA has similarly held that the performance of representational activities does not involve “work” within the meaning of 5 U.S.C. 7106(a)(2)(B). *See AAFES, Dallas,* 53 FLRA at 24. Finally, the FLRA also has determined that, under 5 U.S.C. chapter 43, job performance encompasses the performance of agency-assigned duties and does not include duties performed on behalf of a union. *See United States Department of Health and Human Services., Soc. Sec. Admin., Office of Hearings & Appeals,* 48 FLRA 357, 364 (1993). Thus, employees who travel while performing union activities are not entitled to earn compensatory time off because they are traveling for the benefit of the union and not for agency-related work purposes. We have revised the definition of *travel* in § 550.1403 to clarify that time spent traveling in connection with union activities is not creditable for the purpose of earning compensatory time off for travel. One union and four individuals objected to an employee not being entitled to compensatory time off for travel when he or she is required to travel on a Federal holiday (or “in lieu of” holiday) during his or her basic (non-overtime) hours. Although most employees do not receive holiday premium pay for time spent traveling on a holiday (or an “in lieu of” holiday), an employee continues to be entitled to pay for the holiday in the same manner as if the travel were not required. Thus, an employee may not earn compensatory time off for travel during basic (non-overtime) holiday hours because the employee is entitled to his or her rate of basic pay for those hours. Compensatory time off for travel may be earned by an employee only for time spent in a travel status away from the employee's official duty station when such time is not otherwise compensable. Some commenters requested clarification regarding an employee's *travel status* as described in § 550.1404(b). Under § 550.1404(b), creditable travel time for the purpose of earning compensatory time off for travel includes the time an employee actually spends traveling between the official duty station and a temporary duty station, or between two temporary duty stations, and the usual waiting time that precedes or interrupts such travel (subject to certain exclusions). One union recommended revising § 550.1404(b)(1) to include situations where an employee may depart from his or her residence. We do not believe this is necessary, since travel to and from home is addressed in § 550.1404(c). One agency recommended clarifying compensatory time off for travel requires travel orders and it is not appropriate when travel is within an employee's normal commuting area. We are not adopting these recommendations. Agencies are already required to process travel orders for officially authorized travel. In addition, § 550.1404(a) already requires an employee to travel away from (i.e., outside the limits of) his or her official duty station in order to earn compensatory time off. Under § 550.1404(b)(1), time spent at a temporary duty station between arrival and departure is not time in a travel status. One individual recommended clarifying whether the arrival and departure are from the temporary duty worksite or lodging. We agree and have revised § 550.1404(b)(1) to clarify arrival and departure times. Time in a travel status ends when the employee arrives at the temporary duty worksite or his or her lodging in the temporary duty station, wherever the employee arrives first. Time in a travel status resumes when an employee departs from the temporary duty worksite or his or her lodging in the temporary duty station, from whichever the employee departs last. One agency recommended clarifying whether travel in connection with a permanent change of station
(PCS)is considered time spent in a *travel status,* and one individual recommended that it should be. Although PCS travel is officially authorized travel, it is not travel between an official duty station and a temporary duty station or between two temporary duty stations. Therefore, it is not considered time in a travel status for the purpose of earning compensatory time off for travel. The law applies to travel “away from the official duty station of the employee,” not travel to a new official duty station. We believe that the regulation limiting application to temporary duty travel is consistent with the law and the intent of Congress. We have revised § 550.1404(b)(1) to clarify that travel time in connection with an employee's PCS is not time in a travel status for the purpose of earning compensatory time off. Six individuals requested clarification of how travel is calculated when an employee travels between different time zones. We have added a new paragraph
(e)to § 550.1404 to provide clarification regarding the calculation of an employee's travel time when the employee's travel involves two or more time zones. Under 5 CFR 550.1404(b)(1), time in a travel status includes the time an employee “actually spends traveling” and the usual waiting time that precedes or interrupts the travel, subject to certain exclusions as specified in section 550.1404 of the regulations. When an employee's travel involves two or more time zones, the time zone from the point of first departure must be used to determine how many hours (i.e., elapsed time) the employee actually spent in a travel status for the purpose of accruing compensatory time off. We received a number of comments on § 550.1404(b)(1) concerning the employing agency's sole and exclusive discretion to determine what is creditable as “usual waiting time.” One agency, one union, and two individuals objected to providing agencies with this authority. The agency recommended establishing an upper and lower range of what is considered acceptable “usual waiting time.” The union recommended including examples of “usual waiting times.” The two individuals suggested defining “usual waiting time” to include the time it takes to get service at ticket counters, security, baggage claim, and transportation counters or using waiting times determined by the airlines or travel agencies. One individual commented that there may be different determinations of “usual waiting time” within an agency. We are not adopting any of these recommendations. The concept of “usual waiting time” is currently used in determining overtime hours of work under title 5 and the FLSA, and agencies are knowledgeable and experienced in applying this concept. In addition, we believe it is appropriate to give agencies the flexibility to make this determination. Several commenters recommended removing § 550.1404(b)(2), which states that bona fide meal periods during actual travel time or waiting time are not creditable as time spent in a travel status. An agency stated it was absurd to subtract bona fide meal periods from creditable travel time but allow time periods for making telephone calls, dozing, chatting, wandering through terminals, etc., to be considered creditable travel time. Another agency commented that the results of making distinctions between employees who choose to eat at a terminal restaurant and employees who choose to eat while walking to or waiting at the gate are so anomalous that consistent application of the regulation cannot be expected. OPM included this limitation in the interim regulations because it is consistent with the requirement to subtract bona fide meal periods from an employee's creditable overtime hours of work under 5 CFR 550.112(m) and 551.432(c). However, we agree that agencies should not try to make distinctions in the employee's activities during waiting time. Further, we agree it is not efficient or cost-effective to try to track employees' bona fide meal periods during travel time or waiting time solely for the purpose of crediting compensatory time off for travel, and we have removed § 550.1404(b)(2) accordingly. Many commenters requested clarification of, or objected to, § 550.1404(b)(3), which states that extended waiting time is not creditable as time in a travel status. Under § 550.1404(b)(3), if an employee experiences an extended (i.e., not usual) waiting time between the periods of actual travel during which the employee is free to rest, sleep, or otherwise use the time for his or her own purposes, the extended waiting time is not creditable as time in a travel status. Three agencies recommended providing guidance on a range of acceptable hours for “extended waiting time,” how much discretion an agency has in determining extended waiting times, or where to draw the line between “usual” and “extended” waiting times. Another agency recommended permitting an employee to earn compensatory time off for situations beyond the control of the employee, though not a large amount of compensatory time off. Three agencies and a union recommended revising § 550.1404(b)(3) to limit extended waiting time to any period during which an employee must obtain overnight lodging. We are not adopting any of these recommendations. Under § 550.1404(b)(1), determinations regarding what is creditable as usual waiting time are within the sole and exclusive discretion of the agency. The concept of excluding extended waiting time is currently used in determining creditable overtime hours of work under title 5 and the FLSA, and agencies are experienced in applying this limitation. Agencies should not establish a policy to credit compensatory time off for travel beyond the usual waiting time applied under title 5 and the FLSA. We received several comments about subtracting commuting time from creditable travel time under § 550.1404(c)(1) and § 550.1404(d). Under § 550.1404(c)(1), an agency must deduct the hours the employee would have spent in normal home-to-work or work-to-home commuting from travel between the employee's home and a temporary duty station. Under § 550.1404(d), if a transportation terminal (such as an airport) is located within the limits of the employee's official duty station, the employee's travel time to and from the airport (outside regular working hours) is considered to be equivalent to commuting time and is not creditable time in a travel status. If the airport is located outside the limits of the employee's official duty station, the travel time to and from the airport (outside regular working hours) is creditable time in a travel status, but it is subject to an offset for the time the employee would have spent in normal home-to-work or work-to-home commuting. Several commenters objected to deducting normal commuting time on non-workdays as required by § 550.1404(d). An agency recommended deleting § 550.1404(d) entirely. Another agency and a union recommended revising § 550.1404(d) to make travel to and from a transportation terminal within an employee's official duty station official travel time rather than equivalent commuting time. The union also objected to subtracting an employee's normal commuting time under § 550.1404(c)(1). One individual recommended making an exception for employees who reside outside the local commuting area or to limit the amount of normal commuting time the agency deducts for such employees. We are not adopting any of these recommendations. The requirement in OPM's regulations in § 550.1404(c) and
(d)regarding the deduction of normal commuting time is consistent with the requirement to deduct normal commuting time from an employee's travel time in determining creditable overtime hours of work under 5 CFR 550.112(j)(2) and 5 CFR 551.422(b). An individual expressed concern regarding how § 550.1404(c) might be applied by his agency. In particular, he was concerned his agency might define “official duty station” to encompass an unreasonably large area so that an employee could not be credited for travel from home to a temporary duty station. It is true that, under the regulations, travel to a temporary duty station within an employee's official duty station is not creditable for the purpose of accruing compensatory time off for travel. However, as explained in an earlier paragraph regarding comments on the definition of “official duty station,” an agency is required to use the same geographic area that is used for determining whether travel time is compensable under the overtime pay provisions. (See 5 CFR 550.112(j) and 551.422(d).) Thus, agency discretion is limited. We have no information indicating that the agencies have defined “official duty station” for overtime pay purposes in an unreasonable way. Therefore, we decline to make any change in the regulations in this regard. In the case of an employee who is offered one mode of transportation and who is permitted to use an alternative mode of transportation, or who travels at a time or by a route other than that selected by the agency, the agency must determine the estimated amount of time in a travel status the employee would have had if the employee had used the mode of transportation offered by the agency or traveled at the time or by the route selected by the agency under § 550.1404(c)(2). As recommended by an agency, we made a minor editorial correction to § 550.1404(c)(2) and replaced “traveled at the time and by the route selected by the agency” with “traveled at the time *or* by the route selected by the agency” [emphasis added]. One agency and an individual asked if compensatory time off for travel may be authorized when the employee returns a day earlier than planned. In such cases, the agency must credit an employee with the lesser of the estimated time in travel status the employee would have had if the employee had traveled on the day selected by the agency, or the employee's actual travel hours on a day other than that selected by the agency. One individual commented an alternative mode of transportation may save the agency money and recommended imposing a daily limit on the amount of compensatory time off for travel rather than crediting the lesser travel time. We do not agree. The cost of travel may influence how an agency schedules an employee's travel, but it does not have any impact on an employee's entitlement to compensatory time off for travel. Another individual asked if crediting the lesser travel time when an employee uses an alternative mode of transportation discriminates against employees with documented special needs and/or disabilities, such as a fear of flying, by not allowing the employee to earn compensatory time off for travel for the extra time spent traveling using the alternative mode of transportation. The regulatory requirement in § 550.1404(c)(2) regarding how to credit time when an employee uses an alternative mode of transportation, or travels at another time or by a route other than that selected by the agency, is consistent with the same requirement in determining creditable overtime hours of work under 5 CFR 551.422(c). In addition, an alternative mode of transportation or alternative route or time period may influence an agency's authorization of official travel but does not have an impact on an employee's entitlement to compensatory time off for travel. Therefore we have not changed the regulation. Two agencies recommended clarifying whether an agency may change an employee's work schedule for travel purposes. An agency may not adjust the regularly scheduled administrative workweek that normally applies to an employee (part-time or full-time) solely for the purpose of including planned travel time that would not otherwise be considered compensable hours of work. One individual recommended clarifying whether time spent traveling would be creditable as credit hours or compensatory time off for travel for an employee who is authorized to earn credit hours under an alternative work schedule. Credit hours are hours an employee elects to work, with supervisory approval, in excess of the employee's basic work requirement under a flexible work schedule. Under certain conditions, an agency may permit an employee to earn credit hours by performing productive and essential work while in a travel status. See OPM's Handbook on Alternative Work Schedules at *http://www.opm.gov/oca/worksch/HTML/Cred_hrs.htm#travel* for the conditions that must be met. If those conditions are met and the employee does earn credit hours for travel, the time spent traveling would be compensable and the employee would not be eligible to earn compensatory time off for travel. If the conditions are not met, the employee would be eligible to earn compensatory time off for travel. One agency, one union, and one individual expressed concerns about the provision in § 550.1405(a) which allows the employing agency to credit an employee's earned compensatory time off in increments of one-tenth of an hour (6 minutes) or one-quarter of an hour (15 minutes). The agency recommended mandating the use of either 6-minute or 15-minute increments, rather than providing the choice, for payroll consistency. The union recommended permitting agencies to continue their established minimum charges to leave rather than modifying the payroll systems. The requirement to credit and use compensatory time off for travel in increments of 6 or 15 minutes is consistent with OPM's standardized policy for charging annual and sick leave in the same increments. In addition, agency time and attendance and payroll processing systems have already been modified to accommodate this change as a result of the interim regulations issued in January 2005 on compensatory time off for travel. Under § 550.1405(b), an employee must comply with his or her agency's procedures for requesting credit of the employee's compensatory time off and file such requests within the time period specified by the agency. An agency recommended adding a requirement that an employee's request for credit of compensatory time off for travel may be denied if the request is not filed within the time periods established by agency policy or guidelines. We agree and have added this requirement to § 550.1405(b). One union recommended that an agency should approve a request to earn compensatory time off for travel at the same time the travel authorization is issued. Another agency recommended setting a specific time period within which employees must submit requests for credit of compensatory time off for travel. We are not adopting these recommendations. We do not believe it is necessary to limit an agency's discretionary authority to prescribe such procedures and time limitations in its internal policies. An agency recommended modification of OPM Form 71, *Request for Leave or Approved Absence* , or develop a new form, for employee requests to earn or use compensatory time off for travel. We do not believe it is necessary or desirable to mandate the use of a Governmentwide form for this purpose. However, an agency may choose to develop a form as part of its internal policies and procedures for requesting and using compensatory time off for travel. Three agencies recommended establishing a limit on the number of hours of compensatory time off for travel an employee may earn. Establishing a cap on the amount of compensatory time off for travel an employee may earn would require a legislative change. A union and an individual recommended not limiting compensatory time off to domestic travel. These regulations are not limited to domestic travel; OPM's regulations apply to both domestic and foreign travel. Using Compensatory Time Off for Travel Under § 550.1406(a), an employee must request permission from his or her supervisor to schedule the use of his or her accrued compensatory time off in accordance with agency-established policies and procedures. One agency recommended requiring agencies to charge compensatory time off for travel on a first-in, first-out basis. We agree and have revised § 550.1406(b) to require agencies to charge compensatory time off in the chronological order in which it was earned, with compensatory time off earned first being charged first. One individual recommended compensatory time off for travel should be redeemable at the rate of 1.5 times the number of hours spent traveling. No legal authority exists to permit an employee to be absent from his or her scheduled tour of duty on the basis of 1.5 hours for each hour of creditable travel time. In addition, the hour-for-hour rule in the interim regulation is consistent with the policy for earning and using compensatory time off in lieu of overtime pay under 5 CFR 550.114 and 551.531. Under § 550.1406(b), earned compensatory time off may be used when an employee is granted time off from his or her scheduled tour of duty for leave purposes. One agency and two individuals requested clarification of how the use of earned compensatory time off for travel relates to “use-or-lose” annual leave. (“Use or lose” annual leave is accrued annual leave in excess of the maximum leave ceilings (i.e., 30, 45, or 90 days) that is subject to forfeiture at the end of the leave year.) Section 6304(d) of title 5, United States Code, prescribes the conditions under which an employee's forfeited annual leave may be restored to an employee. There is no legal authority to restore an employee's forfeited annual leave because the employee elected to use earned compensatory time off for travel instead of using his or her excess annual leave. Forfeiting Unused Compensatory Time Off for Travel We received several comments on § 550.1407(a)(1), which requires employees to forfeit unused compensatory time off if it is not used by the end of the 26th pay period after the pay period during which it was credited, except as provided in § 550.1407(a)(2) (e.g., when an employee separates or is placed in a leave without pay status to perform service in the uniformed services with restoration rights or who has suffered an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81 and who later returns to service.). Two agencies recommended clarifying whether the forfeiture of unused compensatory time off occurs within 26 pay periods after it has been earned or credited to their payroll account. We agree and have revised § 550.1407(a)(1) to clarify that an employee must use his or her accrued compensatory time off within 26 pay periods after it is earned or forfeit such compensatory time off. One agency recommended giving agencies discretionary authority to provide a time limit for an employee to use compensatory time off for travel in the same way agencies are allowed to provide time limitations for the use of other compensatory time off. Another agency recommended establishing a specific date for using earned compensatory time off for travel. A union recommended an employee be allowed to use his or her earned compensatory time off for travel from the date earned until the end of the next leave year. Two individuals expressed concerns that agencies would not allow their employees to use their earned compensatory time for travel within 26 pay periods. One union and an individual recommended establishing a longer period of time, such as 52 pay periods, before requiring forfeiture of compensatory time off for travel. Several commenters recommended providing agencies discretionary authority to extend the time limit for using earned compensatory time off for travel in emergency situations or when employees are required to complete mission-critical assignments. While the use of compensatory time off for travel is subject to agency work demands, we believe 26 pay periods is a sufficient amount of time for most employees to use their earned compensatory time off. However, we believe exceptions may be warranted in exceptional situations, for example, during emergency situations, to complete mission-critical assignments, or when employees are deployed to perform work directly related to a military operation. Therefore, we have added a new paragraph
(e)to § 550.1407 to permit an authorized agency official, at his or her sole and exclusive discretion, to extend the time limit for using earned compensatory time off for travel if an employee's failure to use the compensatory time off within 26 pay periods is due to an exigency of the service beyond the employee's control. Section 550.1407(a)(2) extends the period for using earned compensatory time off for travel for an employee who separates from Federal service or is placed in a leave without pay status to perform service in the uniformed services with restoration rights or who has suffered an on-the-job injury with entitlement to injury compensation under 5 U.S.C. chapter 81 and who later returns to service in the same (or successor) agency. In these circumstances, the employee must use his or her earned compensatory time off by the end of the 26th pay period following the pay period in which the employee returns to duty. One agency objected to allowing the 26 pay periods to start over from the beginning upon an employee's return to duty. We believe it is reasonable to provide an employee, under these circumstances, a full 26 pay periods following his or her return to duty within which to use earned compensatory time off for travel. An agency recommended allowing agencies to consider unused compensatory time off when determining an employee's separation date. We are not adopting this recommendation. An agency has the authority under § 550.1406(a) to approve or disapprove an employee's request to use his or her accrued compensatory time off in accordance with agency-established policies and procedures. Two individuals objected to the provision in § 550.1408 which prohibits an individual from receiving payment under any circumstances for any unused compensatory time off for travel that he or she earned. However, the law explicitly prohibits payment for unused compensatory time off. (See 5 U.S.C. 5550b(b).) E.O. 12866, Regulatory Review The Office of Management and Budget has reviewed this rule in accordance with E.O. 12866. Regulatory Flexibility Act I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees. List of Subjects in 5 CFR Part 550 Administrative practice and procedure, Claims, Government employees, Wages. Office of Personnel Management. Linda M. Springer, Director. Accordingly, the interim rule amending 5 CFR part 550, which was published at 70 FR 3855 on January 27, 2005, is adopted as final with the following changes: PART 550—PAY ADMINISTRATION (GENERAL) 1. The authority citation for part 550 continues to read as follows: Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5545a(h)(2)(B) and (i), 5547(b) and (c), 5548, and 6101(c); sections 407 and 2316, Pub. L. 105-277, 112 Stat. 2681-101 and 2681-828 (5 U.S.C. 5545a); E.O. 12748, 3 CFR, 1992 Comp., p. 316. Subpart N—Compensatory Time Off for Travel 2. Revise the first sentence of § 550.1401 to read as follows: § 550.1401 Purpose. This subpart contains OPM regulations implementing 5 U.S.C. 5550b, which establishes a separate type of compensatory time off. * * * 3. In § 550.1403, add the definitions of *accrued compensatory time off* and *authorized agency official* and revise the definition of *travel* to read as follows: § 550.1403 Definitions. *Accrued compensatory time off* means the compensatory time off earned by an employee that has not been used or forfeited. *Authorized agency official* means the head of the agency or an official who is authorized to act for the head of the agency in the matter concerned. *Travel* means officially authorized travel—i.e., travel for work purposes that is approved by an authorized agency official or otherwise authorized under established agency policies. Time spent traveling in connection with union activities is excluded. 4. In § 550.1404, revise paragraph (b)(1), remove paragraph (b)(2), redesignate paragraph (b)(3) as paragraph (b)(2), revise the first sentence of paragraph (c)(2), and add paragraph
(e)to read as follows: § 550.1404 Creditable travel time. (b)(1) *Travel status.* Time in a travel status includes the time an employee actually spends traveling between the official duty station and a temporary duty station, or between two temporary duty stations, and the usual waiting time that precedes or interrupts such travel, subject to the exclusion specified in paragraph (b)(2) of this section and the requirements in paragraph (c),
(d)and
(e)of this section. Time spent at a temporary duty station between arrival and departure is not time in a travel status. Time in a travel status ends when the employee arrives at the temporary duty worksite or his or her lodging in the temporary duty station, wherever the employee arrives first. Time in a travel status resumes when an employee departs from the temporary duty worksite or his or her lodging in the temporary duty station, from whichever the employee departs last. Travel time in connection with an employee's permanent change of station is not time in a travel status. Determinations regarding what is creditable as “usual waiting time” are within the sole and exclusive discretion of the employing agency.
(c)* * *
(2)In the case of an employee who is offered one mode of transportation and who is permitted to use an alternative mode of transportation, or who travels at a time or by a route other than that selected by the agency, the agency must determine the estimated amount of time in a travel status the employee would have had if the employee had used the mode of transportation offered by the agency or traveled at the time or by the route selected by the agency. * * *
(e)*Travel involving two or more time zones* . When an employee's travel involves two or more time zones, the time zone from the point of first departure must be used to determine how many hours the employee actually spent in a travel status for the purpose of accruing compensatory time off. 5. In § 550.1405, paragraph
(b)is revised to read as follows: § 550.1405 Crediting compensatory time off.
(b)An employee must comply with his or her agency's procedures for requesting credit of compensatory time off under this section. Employees must file such requests within the time period required by the agency. An employee's request for credit of compensatory time off for travel may be denied if the request is not filed within the time period required by the agency. 6. In § 550.1406, revise the section heading and paragraph
(b)to read as follows: § 550.1406 Use of accrued compensatory time off.
(b)Compensatory time off may be used when the employee is granted time off from his or her scheduled tour of duty established for leave purposes. An employee must use earned compensatory time off under this subpart in increments of one-tenth of an hour (6 minutes) or one-quarter of an hour (15 minutes). Agencies must charge compensatory time off in the chronological order in which it was earned, with compensatory time off earned first being charged first. 7. In § 550.1407, revise paragraph (a)(1) and add a new paragraph
(e)to read as follows: § 550.1407 Forfeiture of unused compensatory time off.
(a)*After 26 pay periods* .
(1)Except as provided in paragraphs (a)(2) and
(e)of this section, an employee must use accrued compensatory time off by the end of the 26th pay period after the pay period during which it was earned. If an employee fails to use the compensatory time off within 26 pay periods after it was earned, he or she must forfeit such compensatory time off.
(e)*Exception due to an exigency* . If an employee fails to use his or her compensatory time earned under § 550.1404(a) by the end of the 26th pay period after the pay period during which it was earned due to an exigency of the service beyond the employee's control, an authorized agency official, at his or her sole and exclusive discretion, may extend the time limit for using such compensatory time off for travel for up to an additional 26 pay periods. [FR Doc. E7-7266 Filed 4-16-07; 8:45 am] BILLING CODE 6325-39-P OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 890 RIN 3206-AI62 Waiver of Requirements for Continued Coverage During Retirement AGENCY: Office of Personnel Management. ACTION: Final Rule. SUMMARY: Under current Federal Employees Health Benefits
(FEHB)Program regulations, the Office of Personnel Management
(OPM)may waive the eligibility requirements for health benefits coverage as an annuitant for an individual when, in its sole discretion, it determines that it would be against equity and good conscience not to allow a person to be enrolled in the FEHB Program as an annuitant. The regulations state that an individual's failure to satisfy eligibility requirements must be due to exceptional circumstances. They also list specific situations where a waiver will not be granted by OPM such as when an individual's retirement is based on a disability or an involuntary separation, or when an individual was misadvised by his/her employing office. This final regulation eliminates these specific situations from the regulation. This final regulation provides OPM with more flexibility when granting waivers. EFFECTIVE DATE: May 17, 2007. ADDRESSES: This document is available for viewing at the U.S. Office of Personnel Management, 1900 E Street, NW., Washington DC 20415. Send all comments to Michael Kaszynski, Insurance Policy, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3415, Washington DC 20415. FOR FURTHER INFORMATION CONTACT: Michael Kaszynski, Policy Analyst, at 202-606-0004. SUPPLEMENTARY INFORMATION: Under 5 U.S.C. 8905(b), OPM may waive the eligibility requirements for health benefits coverage as an annuitant for an individual when, in its sole discretion, it determines that it would be against equity and good conscience not to allow a person to be enrolled in the FEHB Program as an annuitant. Under 5 CFR 890.108, an individual's failure to satisfy eligibility requirements must be due to exceptional circumstances. An individual requesting a waiver must provide OPM with evidence that
(1)the individual intended to have FEHB coverage as an annuitant (retiree);
(2)the circumstances that prevented the individual from meeting the requirements of 5 U.S.C. 8905(b) were beyond the individual's control; and
(3)the individual acted reasonably to protect his or her right to continue coverage into retirement. Section 890.108 lists specific situations where a waiver will not be granted by OPM such as when an individual's retirement is based on a disability or an involuntary separation, or an individual was misadvised by his/her employing office. This final regulation eliminates these specific situations from 5 CFR 890.108 to provide more flexibility to the waiver process. On August 7, 2006, a proposed regulation was published in the **Federal Register** at 71 FR 44592. We received no comments on the proposed rule. We have made no changes to this rule from its proposed version. Collection of Information Requirement This final rule does not impose information collection and recordkeeping requirements that meet the definition of the Paperwork Reduction Act of 1995's term “collection of information” which means obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States; or answers to questions posed to agencies, instrumentalities, or employees of the United States which are to be used for general statistical purposes. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and government agencies with revenues of $11.5 million or less in any one year. This final rulemaking affects FEHB Program health insurance eligibility requirements which do not impact the dollar threshold. Therefore, I certify that this final regulation will not have a significant economic impact on a substantial number of small entities. Regulatory Impact Analysis We have examined the impact of this final rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the RFA (September 16, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995, (Pub. L. 104-4), and Executive Order 13132. Executive Order 12866 (as amended by Executive Order 13258, which merely assigns responsibility of duties) directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects ($100 million or more in any one year). This rule is not considered a major rule, as defined in section 804(2) of title 5, United States Code, because we estimate its impact will only affect federal government employment offices. Any resulting economic impact would not be expected to exceed the dollar threshold. Executive Order 12866, Regulatory Review This final rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866. List of Subjects in 5 CFR Part 890 Administrative practice and procedure, Government employees, Health facilities, Health insurance, Health professionals, Hostages, Iraq, Kuwait, Lebanon, Military personnel, Reporting and recordkeeping requirements, Retirement. Office of Personnel Management. Linda M. Springer, Director. For the reasons set forth in the preamble, OPM is amending 5 CFR part 890 as follows: PART 890—FEDERAL EMPLOYEES HEALTH BENEFITS PROGRAM 1. The authority citation for part 890 continues to read as follows: Authority: 5 U.S.C. 8913; § 890.803 also issued under 50 U.S.C. 403p, 22 U.S.C. 4069c and 4069c-1; subpart L also issued under sec. 599C of Pub. L. 101-513, 104 Stat. 2064, as amended; § 890.102 also issued under sections 11202(f), 11232(e), 11246
(b)and
(c)of Pub. L. 105-33, 111 Stat. 251; and section 721 of Pub. L. 105-261, 112 Stat. 2061, unless otherwise noted. 2. Section 890.108 is revised to read as follows: § 890.108 Will OPM waive requirements for continued coverage during retirement?
(a)Under 5 U.S.C. 8905(b), OPM may waive the eligibility requirements for health benefits coverage as an annuitant for an individual when, in its sole discretion, it determines that due to exceptional circumstances it would be against equity and good conscience not to allow a person to be enrolled in the FEHB Program as an annuitant.
(b)The individual's failure to satisfy the eligibility requirements must be due to exceptional circumstances. An individual requesting a waiver must provide OPM with evidence that:
(1)The individual intended to have FEHB coverage as an annuitant (retiree);
(2)The circumstances that prevented the individual from meeting the requirements of 5 U.S.C. 8905(b) were beyond the individual's control; and
(3)The individual acted reasonably to protect his or her right to continue coverage into retirement. [FR Doc. E7-7267 Filed 4-16-07; 8:45 am] BILLING CODE 6329-39-P DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 103, 204, 214, 245, 245a [CIS No. 2287-03] RIN 1615-AB13 Removal of the Standardized Request for Evidence Processing Timeframe AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Final rule. SUMMARY: This rule amends Department of Homeland Security regulations to provide flexibility to U.S. Citizenship and Immigration Services in setting the time allowed to applicants and petitioners to respond to a Request for Evidence or to a Notice of Intent to Deny. This rule also describes the circumstances under which U.S. Citizenship and Immigration Services will issue a Request for Evidence or Notice of Intent to Deny before denying an application or petition, but United States Citizenship and Immigration Services will continue generally to provide petitioners and applicants with the opportunity to review and rebut derogatory information of which he or she is unaware. This rule also clarifies when petitioners and applicants may submit copies of documents in lieu of originals. In addition to these changes, this rule removes obsolete references to legacy agencies, and it removes obsolete language relating to certain legalization and agricultural worker programs. DATES: This final rule is effective June 18, 2007. FOR FURTHER INFORMATION CONTACT: Rodger Pitcairn, Program and Regulations Development, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3000, Washington, DC 20529, telephone
(202)272-8427. SUPPLEMENTARY INFORMATION: I. Background II. Comments Received in Response to the Proposed Rule A. Standards and Timeframes for RFE and NOID Responses B. Not Issuing at Least One RFE; Making Decisions on the Record C. Uniform Application of the “Preponderance of Evidence” Standard D. Relationship to Premium Processing Regulations E. Substitution of Form DS-2019; Submitting Copies F. Application of the Rule G. Use of the Term “Biometrics Capture” H. Technical Correction to Final Rule III. Statutory and Regulatory Reviews I. Background An applicant or petitioner seeking immigration benefits from U.S. Citizenship and Immigration Services (USCIS) must establish eligibility for such benefits. 8 CFR 103.2(b)(1). A Request for Evidence
(RFE)is a notice issued by USCIS to an applicant or petitioner seeking immigration benefits requesting initial or additional evidence to establish eligibility. *Id* ., 103.2(b)(8). Currently, USCIS must issue an RFE when evidence is missing from an application or petition. *Id* . In addition, USCIS must provide twelve weeks for an applicant or petitioner to respond to an RFE. *Id* . A Notice of Intent to Deny
(NOID)is a written notice issued by USCIS to an applicant or petitioner that USCIS has made a preliminary decision to deny the application or petition. A NOID may be based on evidence of ineligibility or on derogatory information known to USCIS, but not known to the petitioner or applicant. USCIS cannot, however, issue a NOID based on missing initial evidence if an RFE has not first been issued. The NOID provides the applicant or petitioner with an opportunity to inspect and rebut the evidence forming the basis of the decision to deny the petition or application. An applicant or petitioner usually is provided thirty days to respond to the evidence. On November 30, 2004, USCIS published a proposed rule to remove absolute requirements for, and fixed times to respond to, RFEs and NOIDs. 69 FR 69549. USCIS received thirteen comments from individuals, community-based groups that assist nonimmigrants and immigrants pursue applicants for benefits, law firms, and a national association representing immigration attorneys. This final rule adopts the proposed rule with minor changes as discussed below. II. Comments Received in Response to the Proposed Rule This final rule addresses requirements that are procedural in nature and does not alter the substantive rights of applicants or petitioners for immigration benefits. This final rule, therefore, is exempt from notice and comment requirements under 5 U.S.C. 553(b)(A), and could have been promulgated without public notice and comment. USCIS' decision to promulgate a proposed rule does not alter the authority to promulgate this rule as a final rule. For example, the proposed rule contained a presumptive thirty-day minimum time frame for responses, but, after considering the comments and the further development of the program, this final rule does not include a specific presumptive minimum time frame for responses. *See Hurson Assoc. Inc.* , v. *Glickman* , 229 F.3d 277 (D.C. Cir. 2000) (rule eliminating face-to-face process in agency review of requests for approval was procedural and not subject to notice-and-comment rulemaking); *JEM Broadcasting* v. *FCC* , 22 F.3d 320 (D.C. Cir. 1994) (challenge to the “hard look” rules is untimely; elimination of opportunity to correct errors in application was procedural rule not subject to notice and comment); *see also Public Citizen* v. *Department of State* , 276 F.3d 634 (D.C. Cir. 2002) (cut-off policy was procedural and exempt from notice and comment provisions). USCIS, however, values public comment on the proposed timeframes for RFEs and NOIDs and accordingly solicited public comment on the proposed rule. The comments provided to USCIS have been valuable in considering the changes promulgated in this final rule and are discussed below. A. Standards and Timeframes for RFE and NOID Responses In the proposed rule, USCIS suggested eliminating the current twelve-week standard timeframe for all applicants and petitioners to respond to an RFE in favor of a more flexible approach that would tailor the timeframes to the evidence requested and circumstances. The proposed rule would have set a new minimum response window of “generally no less than 30-day[s].” The proposed rule would have made similar changes for responding to the NOID. USCIS asked for comments on specific timeframes for various kinds of applications and petitions and evidence. No commenters suggested specific timeframes for each circumstance and case type, but two commenters suggested expanding the current twelve-week standard to give applicants and petitioners sixteen weeks to respond for cases involving asylum claimants and refugees. Another commenter suggested a general sixty-day timeframe for NOIDs. USCIS did not propose to extend the current twelve-week maximum, and will not do so in its final rule. The flexible timeframes will apply to all applicants and petitioners to whom RFEs are issued. Several commenters focused on the proposed shift from a twelve-week standard for responding to all RFEs to flexible timeframes. Five pointed to the fact that the Department of Labor
(DOL)has fixed timeframes for responding to their RFEs. USCIS evaluates petitions and applications in a far wider variety of contexts than DOL and for a far broader array of benefits and services. This fact requires greater processing flexibility. Accordingly, USCIS declines to adopt the standards used by DOL. Two commenters recommended that the current twelve-week RFE response period remain a standard because it is a predictable baseline. One also pointed out that the twelve-week standard actually gives a degree of flexibility because applicants and petitioners can choose to respond more quickly, often in far less than twelve weeks. Some commenters focused on the proposed minimum response time. One objected to the idea that USCIS would “generally” give not less than thirty days to respond, and suggested an actual thirty-day minimum. Eight commenters considered thirty days to be too short. Several commenters pointed out that it can take more than thirty days to get certified copies of tax returns from the Internal Revenue Service (IRS). Five commenters noted that it is often difficult to obtain documents from foreign countries. Several pointed specifically to problems refugees and asylum claimants can experience getting documents from the country from which they fled. One commenter suggested that providing a minimum of 45 days to respond would be unreasonable for most applicants and petitioners. USCIS recognizes the value of a predictable timeframe for responding to an RFE or NOID, and did not intend to make this an unpredictable, discretionary process with timeframes determined by individual adjudication officers. USCIS will set clear timeframes and standards for submission of different kinds of evidence in different circumstances. This rulemaking was designed to give USCIS flexibility to set the timeframes for responding to RFEs as a matter of agency practice and procedure and to more specifically set a reasonable time based upon the nature of the information requested. The timeframes would be set out in internal guidance to adjudicators. As many practitioners are aware, this guidance is, as a general matter, publicly disclosed. At this time, USCIS foresees no reason why this guidance would not be publicly disclosed after it is developed or whenever it is adjusted. Important processing steps (such as background checks) may need to be repeated if processing extends beyond certain timeframes. Repeating these steps would significantly delay an eventual acquisition of a benefit. Longer timeframes can actually work against a timely response because applicants and petitioners given almost three months to respond may delay responding simply because they consider that additional time in the United States to be a benefit. Recognizing that the majority of applications and petitions are eventually approved, USCIS does not want to arbitrarily restrict a reasonable opportunity to submit material to prove eligibility. USCIS recognizes that documents from certain countries other than the United States are occasionally difficult to obtain; thus, the timeframe flexibility will take into account these situations. Nevertheless, most applicants and petitioners can provide required documents in fewer than twelve weeks. USCIS also provides information explaining how to acquire benefits through many sources such as the agency's Web site, application forms, call centers, brochures, and field offices. Applicants and petitioners can easily follow the instructions provided by these resources and obtain all required documents before filing for immigration benefits. Applicants and petitioners who submit completed applications or petitions will minimize the need for RFE and facilitate faster decision by USCIS. CIS has found that in some cases, the standard twelve week timeframe serves to encourage applicants or petitioners to submit incomplete applications or petitions, relying on the RFE process to prompt them to submit the missing documents. The RFE process and the ensuing delays slows down the processing. Certain applicants and petitioners are also exploiting the RFE process to deliberately delay the processing and thus prolong their stay in the United States. A flexible RFE timeframe will therefore encourage the applicants and petitioners to file complete applications and petitions because they risk missing the timeframe and be denied the benefits sought to do otherwise. USCIS continues to believe a more flexible standard is necessary and appropriate to improve adjudication processes, USCIS services, and the administration and enforcement of immigration laws. The final rule maintains the current twelve-week standard as a ceiling on the response time to be provided, and sets a maximum of thirty days to respond to a NOID. USCIS intends to issue policy guidance setting clear standards for when a timeframe less than these maximums will be afforded prior to the effective date of the rule. With respect to minimum timeframes, the commenters' concerns should be allayed in part by the fact the final rule does not, as one commenter feared, let individual adjudicators determine when to offer less than thirty days to respond to a NOID and how long to give in such instances. Further, USCIS' goal is to establish a single set of guidelines and standards that will cover not only requests by mail, but also requests for materials made by USCIS during an interview. When information is requested during an interview, the individual USCIS offices now set timelines for the submission of missing or required evidence, often providing less than thirty days for the applicant or petitioner to respond. This shorter response time has been very effective both for the agency and for applicants and petitioners. To ensure that USCIS uses consistent standards across the board, the final rule removes the proposed thirty-day guideline in favor of the more specific timelines USCIS will set in its field guidance. Some of the timeframes mentioned by the commenters are not accurate. For example, the IRS may take up to sixty calendar days to process a request for an exact copy of a previously filed and processed tax return. IRS Form 4506 (revised April 2006). The fee for an exact copy of a previously filed and processed tax return at the present time is $39. The IRS can, however, provide a transcript of the processed return within ten business days, currently at no charge. IRS Form 4506T (revised April 2006). Thus, USCIS acknowledges that it can take more than thirty days for applicants or petitioners to obtain certified copies of processed tax returns. However, USCIS permits applicants or petitioners to submit transcripts of processed tax returns; therefore, USCIS believes that applicants and petitioners will be able to submit transcripts of processed tax returns even if response times to RFEs or NOIDs are as short as thirty days. USCIS also recognizes the variety of times required to respond to a document request. A copy of a State driver's license may easily be provided within ten days, while a standard foreign government document, such as a current passport that is certified by the issuing government, may require a longer timeframe. None of these timeframes, however, restrict the applicant's or petitioner's ability to file all of the obviously necessary and relevant documents with the original application. Several commenters who argued in favor of retaining the twelve-week standard opportunity to respond to an RFE also asserted that USCIS should create a new process allowing extension of the twelve-week response for any good cause. Several other commenters suggested such a new continuance process should be put in place if USCIS reduces the current twelve-week standard. One of these commenters stated the agency should consider an extension of up to thirty days where foreign documents are to be submitted. Another posited that adjudicators should have the discretion to set longer response times. The current twelve-week standard as a maximum limit has proven effective and efficient to USCIS and its applicants and petitioners. This twelve-week maximum will remain the standard response timeframe in many instances. Creating a new process to seek continuances to submit evidence where the twelve-week cycle remains unchanged or where USCIS sets shorter response times based on the evidence requested and circumstances would defeat the purpose of increasing the efficiency and responsiveness of case processing. Such a process would also often result in aliens being allowed to remain in the United States for lengthy periods while they try to acquire evidence that should have been filed with their application or that is necessary to establishing their eligibility for the benefit sought. Accordingly, USCIS declines to adopt any additional procedures. B. Not Issuing at Least One RFE; Making Decisions on the Record Ten commenters suggested the proposed regulation would not increase efficiency. Four suggested that USCIS would use the rule as an inappropriate tool to reduce its backlog. Three pointed out the positive aspects of the current RFE process and the opportunity it creates to emphasize evidence already in the record that the adjudicator may not have fully considered, to clear up misunderstandings, and to clarify issues and facts. One commenter suggested that at least unrepresented applicants and petitioners should always be given an opportunity to correct problems through the RFE process. Others recommended that the rule mandate at least one RFE where there is any type of deficiency. USCIS agrees that the RFE and NOID procedures play valuable roles. However, there is no need for an RFE or NOID process if the evidence initially submitted is sufficient to make a decision of either eligibility or ineligibility. The applicant or petitioner is responsible for providing evidence sufficient for USCIS to adjudicate the application or petition. 8 CFR 103.2(b)(1). USCIS is not responsible for advising the applicant or petitioner of the evidence that the applicant or petitioner should submit with each particular case beyond providing general filing guidance via form instructions and regulations. Several commenters focused on the proposed change that would allow denial of applications and petitions filed without the required initial evidence instead of sending an RFE. One commenter pointed out similarities to a previously proposed rule. 56 FR 61201 (Dec. 2, 1991). The commenter further noted that the previous rulemaking resulted in the current RFE process that USCIS now seeks to amend. 59 FR 1455 (January 11, 1994). USCIS recognizes this similarity. When the proposed rule was issued in 1991, the application and petition forms frequently did not clearly identify the evidence required to be filed. In response to comments received in connection with the 1991 proposed rule regarding the forms, the final rule did not contain the automatic denial process. Since the 1991 proposed rule, INS and now USCIS have revised the immigration benefit forms and instructions to list the initial evidence that applicants or petitioners need to file. The forms, with instructions in a growing number of languages, are available on paper and on USCIS' Web site. Given that the forms provide complete information regarding evidentiary requirements, USCIS believes that the twelve-week standard RFE requirement for missing initial evidence is obsolete and filings should be complete at the beginning of the process. Recognizing the concern expressed, however, USCIS currently intends to limit the application of its discretionary authority to deny an application or petition for lack of initial evidence without an RFE to cases that are filed with little more than a signature and the proper fee, and therefore are substantially incomplete or where the applicant or petitioner has failed to demonstrate a basis for eligibility for the benefit sought (e.g. an application for adjustment of status as an immediate relative), where no information or evidence of a covered relationship is provided. These skeletal applications, or applications that are filed alleging eligibility for a benefit based upon having filed a separate benefit application which has since been denied or of which USCIS has no record, clearly do not establish eligibility. DHS wishes to make clear that an applicant or petitioner is responsible for demonstrating eligibility for the benefit sought and that clearly deficient applications or petitions will not be permitted. As with RFEs, USCIS intends to issue additional internal guidance through policy memoranda, including a stipulated timeframe for responding to an RFE based on missing initial evidence. In such a case, even within the context of continuing an opportunity to respond to an RFE, giving a second opportunity to provide evidence need not result in deferring case processing for a full twelve weeks. Eight commenters expressed concerns that inexperienced staff given added discretion might make too many errors; be unaware of relevant business practices, regulations and law; and write RFEs with excessive boilerplate requests for unnecessary evidence. One commenter objected to the idea that USCIS would deny cases simply because an applicant or petitioner did not submit every piece of evidence requested in an RFE, pointing out that the current regulations lets applicants and petitioners request a decision on the record. Conversely, another commenter suggested that the proposed rule at 8 CFR 103.2(b)(13)(i) would remove explicit USCIS authority to summarily deny a case as abandoned for failure to submit initial and additional requested evidence by a required date. Therefore, the commenter requested that USCIS reinstate that explicit authority under 8 CFR 103.2(b)(13)(i). The final rule retains the current process for requesting a decision on the record. If an applicant or petitioner requests a decision on the record, USCIS will decide the case based on the record. This process has been in effect for more than a decade. The process struck a careful balance between giving a controlled process for requesting evidence and giving applicants and petitioners the opportunity to object and ask for a decision on the record. This balance is also essential to ensuring that the adjudicator will be able to deny the application or petition on the record, if additional evidence is needed, but the requested evidence is not received. An applicant's or petitioner's failure to respond to an RFE can close off a material line of inquiry or can effectively stop further processing towards granting an application or petition, and may be considered a factor in evaluating whether an applicant or petitioner has proven eligibility for the benefit sought. This final rule incorporates this concept and also clarifies USCIS' authority to summarily deny a case as abandoned for failure to reply to an RFE or a NOID by a required date. The final rule also allows USCIS to deny an application or petition if the applicant or petitioner fails to provide requested materials, such as photographs, necessary to complete processing and issuing resultant documentation. One commenter thought that this rule would unfairly burden applicants and petitioners due to the “failure to appear” provisions in 8 CFR 103.2(b)(13). To avoid this result, USCIS has modified the final rule. The rule now allows for exceptions where there is evidence, such as a prompt change of address or rescheduling request, that the agency concludes warrants excusing the failure to appear. Several commenters expressed concern with the proposed elimination of 8 CFR 245.18(i), which requires USCIS to issue a NOID to a physician who does not “comply with the requirements of paragraphs
(f)and (g).” After further analysis, the final rule retains the provision and simply removes the timeframes for the applicant's or petitioner's response to the NOID in favor of the timeframes USCIS will set for RFEs and NOIDs. Another commenter highlighted that NOIDs are currently required by regulation to provide the benefit seeker with an opportunity to know and address otherwise unknown adverse information on which a decision is to be made. This final rule maintains the general requirement for a NOID prior to any denial based upon derogatory information of which the petitioner or applicant is unaware. 8 CFR 103.2(b)(16)(i). C. Uniform Application of the ‘Preponderance of Evidence' Standard One commenter approved of the “preponderance of the evidence” standard as proposed at 8 CFR 103.2(b)(8)(i). The commenter, however, objected to the proposed language in 8 CFR 103.2(b)(8)(ii), which allows USCIS to deny an application or petition, request more evidence, or notify the applicant or petitioner of its intent to deny if the “evidence submitted does not fully establish eligibility.” The commenter stated, [c]onflating the preponderance standard with a “full eligibility” standard merges two irreconcilable concepts, *unless it is clear that a preponderance of the evidence does, indeed, establish full eligibility.* The regulation would be more acceptable if the language were changed to delete the “fully establish eligibility” language, and if language were added to state that the only cases that may be denied without an RFE are ones in which there is *clear evidence of ineligibility* . (Emphases in original). In response to these comments, USCIS has modified 8 CFR 103.2(b)(8)(i) to remove the phrase, “the preponderance of” and to modify 8 CFR 103.2(b)(8)(ii) to remove the word “fully.” USCIS is implementing these modifications because it believes that it would be inappropriate to apply a single standard in 8 CFR 103.2(b)(8)(i) and
(ii)to all USCIS adjudications. Furthermore, these modifications clarify that adjudications can involve different evidentiary standards or burdens. Under current regulations, some applications or petitions must demonstrate a preponderance of the evidence, while other applications or petitions require clear and convincing evidence, to establish eligibility. D. Relationship to Premium Processing Regulations One commenter asserted that if applied to premium processing requests, the proposed rule would contravene the existing premium processing service regulations at 8 CFR 103.2(f). In making this statement, the commenter interpreted the current premium processing regulations to require USCIS to issue an RFE or NOID before denying any application or petition for which premium processing services have been requested. USCIS appreciates this comment and, to clarify the applicability of this regulation, 8 CFR 103.2(f) has been modified to include “denial” in the list of appropriate actions. E. Substitution of Form DS-2019; Submitting Copies One commenter noted that the proposed rule at 8 CFR 103.2(b)(4) refers to the obsolete Form IAP-66, and suggesting the reference be updated to the DS-2019 which replaced the IAP-66. This correction has been incorporated in the final rule. The same commenter also requested that applicants be permitted to submit a copy of DS-2019 rather than the original, and suggested clarification with respect to when originals must be filed. The final rule clarifies that although copies of other documents may be submitted, those designed or produced for the purpose of evidence with a USCIS application, such as the DS-2019, must be submitted in the original. As a general rule, applicants and petitioners should be allowed to keep originals unless the originals are required by regulation to be submitted. If there is reason to question the authenticity of the original document for which a photocopy has been submitted, USCIS may then request the original document. In cases where an applicant or a petitioner submits original documents when not required, due to the cost involved in returning such documents as a matter of course, USCIS will retain the documents and make them part of the record. In such cases, applicants or petitioners who wish to have their original documents returned to them may submit a written request to the office that originally requested the records. F. Application of the Rule USCIS' ability to issue shorter RFE and NOID response times will apply to any RFE or NOID issued on or after the effective date of this rule even if the application or petition was filed before the effective date of this regulation. USCIS' discretion to deny cases for lack of required initial evidence without first issuing an RFE, however, will only extend to petitions and applications that are filed on or after the effective date of this regulation. G. Use of the Term “Biometrics Capture” USCIS received no comments concerning the use of the term “biometrics capture,” rather than “fingerprinting” in section 103.2(b)(13)(ii) of the proposed rule. USCIS believes, however, that an explanation of why that term has been adopted in the final would be beneficial to the public. While the term, “biometrics capture” includes fingerprints, it is in fact meant to be a more inclusive term. Biometrics capture can include such things as the capture of a digital photograph or a digital signature. As technology evolves and data collection requirements change, USCIS may change the biometrics information it collects or the methods used for such collection. Any changes made to the capture of biometrics will be reflected in the instructions of the affected form type and/or request for appearance for biometrics capture. H. Technical Correction to the Final Rule Amendment 3.a. of the proposed rule revised the terms “the Service” or “Service” to read “USCIS” wherever they appeared in certain subparagraphs of section 103.2. On May 23, 2006, USCIS published an interim final rule in the **Federal Register** which, among other things, changed any reference to “the Service” to read “USCIS” in section 103.2.(f)(2). 71 FR 29571. Accordingly, the proposed revision to section 103.2(f)(2) is no longer necessary and has been withdrawn from the final rule. III. Regulatory Requirements A. Regulatory Flexibility Act DHS has reviewed this rule in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), and, by approving it, DHS certifies that this rule will not have a significant economic impact on a substantial number of small entities. Although some petitions may be submitted by small entities, namely United States employers seeking nonimmigrant or immigrant labor, this rule is intended to be more flexible in setting time limits for RFEs or NOIDs, thereby reducing the timeframe for adjudicating these petitions without imposing costs on the entities. USCIS recognizes that this change may have a small impact on small business practices or productivity due to the change in timeframes for responses to RFEs or NOIDS. However, USCIS believes that these changes ultimately will benefit affected small businesses, namely because the reduction in adjudication timeframes will allow United States employers to receive the benefit sought at an earlier date (i.e. the ability to hire temporary or permanent foreign employees). B. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. C. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. D. Executive Order 12866 DHS considers this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, it was submitted to the Office of Management and Budget for review. DHS has assessed both the costs and the benefits associated with this final rule. There are minimal costs to USCIS associated with instructing adjudicators about the options for dealing with deficient applications and petitions. Instructions may take the form of policy memoranda, amendments to the Adjudicator's Field Manual, or local office training modules. USCIS estimates that any costs will be absorbed in the current program general expenses that cover issuing instructions and training. There are a number of benefits to both USCIS and the public. USCIS will reduce the number of RFEs and NOIDs and the cycle time for responses to such notices, thereby reducing the pending backlog of cases. The public will receive fewer and more specific RFE or NOID notices, and will benefit from more timely approval of applications and petitions. The cost to the public is minimal. Currently, if an RFE or NOID is issued, the applicant incurs the cost of burden hours to comply with the RFE and the cost of resubmitting the response. The procedure remains generally the same, though the processing flow and decision points have changed to improve overall adjudication efficiency. E. Executive Order 13132 (Federalism) This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 Civil Justice Reform This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995, Public Law 104-13, all departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or recordkeeping requirements inherent in a rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act. List of Subjects 8 CFR Part 103 Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds. 8 CFR Part 204 Administrative practice and procedure, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 214 Administrative practice and procedure, Aliens, Employment, Reporting and recordkeeping requirements. 8 CFR Part 245 Administrative practice and procedure, Aliens, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 245a Aliens, Immigration, Reporting and recordkeeping requirements. Accordingly, Chapter I of Title 8 of the Code of Federal Regulations is proposed to be amended as follows: PART 103—POWERS AND DUTIES; AVAILABILITY OF RECORDS 1. The authority citation for part 103 continues to read as follows: Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 *et seq.* ); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2. 2. Section 103.2 is amended by: a. Revising the term “INS office or Service Center” to read “USCIS office” in paragraph (a)(6); b. Revising the term “Service Center” to read “service center” wherever that term appears in the last sentence of paragraph (a)(7)(i); c. Revising paragraph (b)(1); d. Revising paragraph (b)(4); e. Revising paragraph (b)(5); f. Revising paragraph (b)(8); g. Revising paragraph (b)(11); h Removing the term “initial” in paragraph (b)(12), first sentence; i. Revising paragraph (b)(13); j. Revising term “regional commissioner” to read “USCIS Director or his or her designee” in paragraph (b)(16)(iii); k. Revising the term “regional commissioner” to read “USCIS Director or his or her designee” in the second sentence, and the term “regional commissioner's” to read “USCIS Director's or his or her designee's” in the third sentence in paragraph (b)(16)(iv); l. Revising paragraph (b)(17); m. Removing and reserving paragraphs
(c)and (d); n. Revising paragraph (f)(1). The revisions read as follows: § 103.2 Applications, petitions, and other documents.
(b)* * *
(1)*Demonstrating eligibility at time of filing.* An applicant or petitioner must establish that he or she is eligible for the requested benefit at the time of filing the application or petition. All required application or petition forms must be properly completed and filed with any initial evidence required by applicable regulations and/or the form's instructions. Any evidence submitted in connection with the application or petition is incorporated into and considered part of the relating application or petition.
(4)*Submitting copies of documents.* Application and petition forms, and documents issued to support an application or petition (such as labor certifications, Form DS 2019, medical examinations, affidavits, formal consultations, letters of current employment and other statements) must be submitted in the original unless previously filed with USCIS. Official documents issued by the Department or by the former Immigration and Naturalization Service need not be submitted in the original unless required by USCIS. Unless otherwise required by the applicable regulation or form's instructions, a legible photocopy of any other supporting document may be submitted. Applicants and petitioners need only submit those original documents necessary to support the benefit sought. However, original documents submitted when not required will remain a part of the record.
(5)*Request for an original document.* USCIS may, at any time, request submission of an original document for review. The request will set a deadline for submission of the original document. Failure to submit the requested original document by the deadline may result in denial or revocation of the underlying application or benefit. An original document submitted in response to such a request, when no longer required by USCIS, will be returned to the petitioner or applicant upon completion of the adjudication. If USCIS does not return an original document within a reasonable time after completion of the adjudication, the petitioner or applicant may request return of the original document by submitting a properly completed and signed Form G-884 to the adjudicating USCIS office.
(8)*Request for Evidence; Notice of Intent to Deny* —(i) *Evidence of eligibility or ineligibility.* If the evidence submitted with the application or petition establishes eligibility, USCIS will approve the application or petition, except that in any case in which the applicable statute or regulation makes the approval of a petition or application a matter entrusted to USCIS discretion, USCIS will approve the petition or application only if the evidence of record establishes both eligibility and that the petitioner or applicant warrants a favorable exercise of discretion. If the record evidence establishes ineligibility, the application or petition will be denied on that basis.
(ii)*Initial evidence.* If all required initial evidence is not submitted with the application or petition or does not demonstrate eligibility, USCIS in its discretion may deny the application or petition for lack of initial evidence or for ineligibility or request that the missing initial evidence be submitted within a specified period of time as determined by USCIS.
(iii)*Other evidence.* If all required initial evidence has been submitted but the evidence submitted does not establish eligibility, USCIS may: deny the application or petition for ineligibility; request more information or evidence from the applicant or petitioner, to be submitted within a specified period of time as determined by USCIS; or notify the applicant or petitioner of its intent to deny the application or petition and the basis for the proposed denial, and require that the applicant or petitioner submit a response within a specified period of time as determined by USCIS.
(iv)*Process.* A request for evidence or notice of intent to deny will be in writing and will specify the type of evidence required, and whether initial evidence or additional evidence is required, or the bases for the proposed denial sufficient to give the applicant or petitioner adequate notice and sufficient information to respond. The request for evidence or notice of intent to deny will indicate the deadline for response, but in no case shall the maximum response period provided in a request for evidence exceed twelve weeks, nor shall the maximum response time provided in a notice of intent to deny exceed thirty days. Additional time to respond to a request for evidence or notice of intent to deny may not be granted.
(11)*Responding to a request for evidence or notice of intent to deny.* In response to a request for evidence or a notice of intent to deny, and within the period afforded for a response, the applicant or petitioner may: submit a complete response containing all requested information at any time within the period afforded; submit a partial response and ask for a decision based on the record; or withdraw the application or petition. All requested materials must be submitted together at one time, along with the original USCIS request for evidence or notice of intent to deny. Submission of only some of the requested evidence will be considered a request for a decision on the record.
(13)*Effect of failure to respond to a request for evidence or a notice of intent to deny or to appear for interview or biometrics capture* —(i) *Failure to submit evidence or respond to a notice of intent to deny.* If the petitioner or applicant fails to respond to a request for evidence or to a notice of intent to deny by the required date, the application or petition may be summarily denied as abandoned, denied based on the record, or denied for both reasons. If other requested material necessary to the processing and approval of a case, such as photographs, are not submitted by the required date, the application may be summarily denied as abandoned.
(ii)*Failure to appear for biometrics capture, interview or other required in-person process.* Except as provided in 8 CFR 335.6, if USCIS requires an individual to appear for biometrics capture, an interview, or other required in-person process but the person does not appear, the application or petition shall be considered abandoned and denied unless by the appointment time USCIS has received a change of address or rescheduling request that the agency concludes warrants excusing the failure to appear.
(17)*Verifying claimed permanent resident status* —(i) *Department records* . The status of an applicant or petitioner who claims that he or she is a permanent resident of the United States or was formerly a permanent resident of the United States will be verified from official Department records. These records include alien and other files, arrival manifests, arrival records, Department index cards, Immigrant Identification Cards, Certificates of Registry, Declarations of Intention issued after July 1, 1929, Permanent Resident Cards (Form I-551), Alien Registration Receipt Cards (Form I-151), other registration receipt forms (Forms AR-3, AR-3a, and AR-103, provided that such forms were issued or endorsed to show admission for permanent residence), passports, and reentry permits. An official record of a Department index card must bear a designated immigrant visa symbol and must have been prepared by an authorized official of the Department in the course of processing immigrant admissions or adjustments to permanent resident status. Other cards, certificates, declarations, permits, and passports must have been issued or endorsed to show admission for permanent residence. Except as otherwise provided in 8 CFR part 101, and in the absence of countervailing evidence, such official records will be regarded as establishing lawful admission for permanent residence.
(ii)*Assisting self-petitioners who are spousal-abuse victims.* If a self-petitioner filing a petition under section 204(a)(1)(A)(iii), 204(a)(1)(A)(iv), 204(a)(1)(B)(ii), or 204(a)(1)(B)(iii) of the Act is unable to present primary or secondary evidence of the abuser's status, USCIS will attempt to electronically verify the abuser's citizenship or immigration status from information contained in the Department's automated or computerized records. Other Department records may also be reviewed at the discretion of the adjudicating officer. If USCIS is unable to identify a record as relating to the abuser, or the record does not establish the abuser's immigration or citizenship status, the self-petition will be adjudicated based on the information submitted by the self-petitioner.
(c)Reserved.
(d)Reserved.
(f)*Requests for Premium Processing Service* —(1) *Filing information.* A petitioner or applicant requesting Premium Processing Service shall submit Form I-907 with the appropriate fee to the Director of the service center having jurisdiction over the application or petition. Premium Processing Service guarantees 15 calendar day processing of certain employment-based petitions and applications. The 15 calendar day processing period begins when USCIS receives Form I-907, with the fee, at the designated address contained in the instructions to the form. USCIS will refund the fee for Premium Processing Service, but continue to process the case, unless within 15 calendar days of receiving the application or petition and Form I-907, USCIS issues and serves on the petitioner or applicant an approval notice, a denial notice, a notice of intent to deny, a request for evidence, or opens an investigation relating to the application or petition for fraud or misrepresentation. § 103.2 [Amended] 3. Section 103.2 is further amended by: a. Revising the terms “the Service” or “Service” to read “USCIS” wherever those terms appear in the following paragraphs: i. Paragraph (a)(7)(i), in the first sentence and the first time it appears in the last sentence; ii. Paragraph (b)(2)(ii), in the last sentence; iii. Paragraph (b)(2)(iii); iv. Paragraph (b)(3); v. Paragraph (b)(6); vi. Paragraph (b)(7); vii. Paragraph (b)(9), in the introductory text; viii. Paragraph (b)(10); ix. Paragraph (d)(2); x. Paragraph (e)(1); xi. Paragraph (e)(2); xii. Paragraph (e)(3), in the introductory text; xiii. Paragraph (e)(3)(iii); xiv. Paragraph (e)(4)(i); xv. Paragraph (e)(4)(iii), in the introductory text; xvi. Paragraph (e)(4)(iii)(C); xvii. Paragraph (e)(4)(iv), in the second sentence; xviii. Paragraph (f)(3), the first and last time the term appears in the last sentence; xix. Paragraph (f)(4), the first time the term appears in the first sentence; xx. Paragraph (f)(4), the first time the term appears in the second sentence; and xxi. Paragraph (f)(4), in the third sentence. b. Revising the term “Service's” to read “USCIS' ” in the following paragraphs: i. Paragraph (b)(15); ii. Paragraph (e)(3)(iii); and iii. Paragraph (e)(4)(iii)(C). PART 204—IMMIGRANT PETITIONS 4. The authority citation for part 204 continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1182, 1186a, 1255, 1641; 8 CFR part 2. § 204.1 [Amended] 5. Section 204.1 is amended by removing paragraph (h). § 204.2 [Amended] 6. Section 204.2 is amended by: a. Removing paragraph (c)(3)(ii) and by redesignating paragraph (c)(3)(iii) as (c)(3)(ii); b. Removing paragraph (e)(3)(ii) and by redesignating paragraph (e)(3)(iii) as (e)(3)(ii). PART 214—NONIMMIGRANT CLASSES 7. The authority citation for part 214 continues to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant to Executive Order 13323, published January 2, 2004), 1186a, 1187, 1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 643, Pub. L. 104-208; 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 1931, note, respectively. § 214.2 [Amended] 8. Section 214.2 is amended by: a. Removing paragraph (h)(10)(ii) and by redesignating paragraph (h)(10)(iii) as (h)(10)(ii); b. Removing paragraph (k)(10)(iii); c. Removing paragraph (l)(8)(i) and by redesignating paragraphs (l)(8)(ii) and (l)(8)(iii) as (l)(8)(i) and (l)(8)(ii) respectively; d. Revising paragraph (o)(7); and e. Revising paragraph (p)(9). The revisions read as follows: § 214.2 Special requirements for admission, extension, and maintenance of status.
(o)* * *
(7)The petitioner shall be notified of the decision, the reasons for the denial, and the right to appeal the denial under 8 CFR part 103.
(p)* * *
(9)The petitioner shall be notified of the decision, the reasons for the denial, and the right to appeal the denial under 8 CFR part 103. There is no appeal from a decision to deny an extension of stay to the alien or a change of nonimmigrant status. 9. Section 214.11 is amended by revising paragraph (k)(2) to read as follows: § 214.11 Alien victims of severe forms of trafficking in persons.
(k)* * *
(2)*Determination by USCIS.* An application for T-1 status under this section will not be treated as a bona fide application until USCIS has provided the notice described in paragraph (k)(3) of this section. In the event that an application is incomplete or if the application is complete but does not present sufficient evidence to establish prima facie eligibility for each required element of T nonimmigrant status, USCIS will follow the procedures provided in 8 CFR 103.2(b) for requesting additional evidence, issuing a notice of intent to deny, or adjudicating the case on the merits. 10. Section 214.15 is amended by revising paragraph
(d)to read as follows: § 214.15 Certain spouses and children of lawful permanent residents.
(d)*The definition of “pending petition.”* For purposes of this section, a pending petition is defined as a petition to accord a status under section 203(a)(2)(A) of the Act that was filed with USCIS under section 204 of the Act on or before December 21, 2000, and has not been adjudicated. In addition, the petition must have been properly filed according to 8 CFR 103.2(a), and if, subsequent to filing, USCIS returns the petition to the applicant for any reason or makes a request for evidence or issues a notice of intent to deny under 8 CFR 103.2(b), the petitioner must comply with the request within the time period set by USCIS. If USCIS denies a petition but the petitioner appeals that decision, the petition will be considered pending until the administrative appeal is decided by USCIS. A petition rejected by USCIS as not properly filed is not considered to be pending. PART 245—ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR PERMANENT RESIDENCE 11. The authority citation for part 245 continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1182, 1255; sec. 202, Pub. L. 105-100, 111 Stat. 2160, 2193; sec. 902, Pub. L. 105-277, 112 Stat. 2681; 8 CFR part 2. 12. Section 245.18 is amended by revising paragraph
(i)to read as follows: § 245.18 How can physicians with approved Forms I-140 that are serving in medically underserved areas or at a Veterans Affairs facility adjust status?
(i)*What if the physician does not comply with the requirements of paragraphs
(f)and
(g)of this section?* If an alien physician does not submit (in accordance with paragraphs
(f)and
(g)of this section) proof that he or she has completed the service required under 8 CFR 204.12(a), USCIS shall serve the alien physician with a written notice of intent to deny the alien physician's application for adjustment of status and, after the denial is finalized, to revoke approval of the Form I-140 and national interest waiver. The written notice shall require the alien physician to provide the evidence required by paragraph
(f)or
(g)of this section. If the alien physician fails to submit the evidence within the allotted time, USCIS shall deny the alien physician's application for adjustment of status and shall revoke approval of the Form I-140 and of the national interest waiver. PART 245a—ADJUSTMENT OF STATUS TO THAT OF PERSONS ADMITTED FOR LAWFUL TEMPORARY OR PERMANENT RESIDENT STATUS UNDER SECTION 245A OF THE IMMIGRATION AND NATIONALITY ACT 13. The authority citation for part 245a continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1255a and 1255a note. 14. Section 245a.20 is amended by revising paragraph (a)(2) to read as follows: § 245a.20 Decisions, appeals, motions, and certifications.
(a)* * *
(2)*Denials* . The alien shall be notified in writing of the decision of denial and of the reason(s) therefore. An applicant affected under this part by an adverse decision is entitled to file an appeal on Form I-290B Notice of Appeal to the Administrative Appeals Office (AAO), with the required fee specified in 8 CFR 103.7(b)(1). Renewal of employment authorization issued pursuant to 8 CFR 245a.13 will be granted until a final decision has been rendered on appeal or until the end of the appeal period if no appeal is filed. After exhaustion of an appeal, an alien who believes that the grounds for denial have been overcome may submit another application with fee, provided that the application is submitted on or before June 4, 2003. § 245a.33 [Amended] 15. Section 245a.33 is amended by removing the second sentence of paragraph (b). Dated: March 27, 2007. Michael Chertoff, Secretary. [FR Doc. E7-7228 Filed 4-16-07; 8:45 am] BILLING CODE 4410-10-P DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration 9 CFR Part 202 RIN 0580-AA97 Rules of Practice Governing Proceedings Under the Packers and Stockyards Act AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA. ACTION: Final rule. SUMMARY: This document amends Chapter 2 of Title 9 CFR to provide Supplemental Rules of Practice that will provide a mechanism for settling cases without the institution of formal proceedings. EFFECTIVE DATE: April 17, 2007. FOR FURTHER INFORMATION CONTACT: S. Brett Offutt, Director, Policy and Litigation Division, P&SP, GIPSA, 1400 Independence Ave., SW., Washington, DC 20250,
(202)720-7363, *s.brett.offutt@usda.gov.* SUPPLEMENTARY INFORMATION: Background The Grain Inspection, Packers and Stockyards Administration (GIPSA) of the U.S. Department of Agriculture
(USDA)administers the Packers and Stockyards Act of 1921, as amended and supplemented (7 U.S.C. 181-229) (P&S Act). The P&S Act is a statute that provides comprehensive regulation of the marketing of livestock, meat and poultry in interstate commerce. Its principal purposes are to enforce fair trade practices and financial protections, and to take action against certain anticompetitive practices in the livestock, meat and poultry industries. Under the Administrative Regulations of the Department of Agriculture (7 CFR Part 1), any hearing to assess a civil penalty for violations of the P&S Act must be conducted in accordance with the “Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary of Agriculture Under Various Statutes” as contained in Subpart H of Part 1, Subtitle A, 7 CFR. Chapter 2, Title 9 CFR contains regulations issued pursuant to the P&S Act. This document adds new sections to Part 202 to provide Supplemental Rules of Practice to provide a mechanism for settling cases without the institution of formal proceedings. Under the existing rules of practice, persons alleged to be in violation of the P&S Act may be served with an administrative complaint and may ultimately be required to appear in a hearing before a United States Department of Agriculture Administrative Law Judge. Legal fees and other expenses related to this administrative process, and suspensions and/or civil penalties that may result from a finding of violation of the P&S Act, may be costly. This rule provides supplemental rules of practice to allow both GIPSA and the violator to resolve proceedings in a more timely and less costly manner. Executive Order 12866 and Regulatory Flexibility Act The Office of Management and Budget
(OMB)designated this rule as not significant for the purposes of Executive Order 12866. This final rule implements additional Supplemental Rules of Practice relating to circumstances arising in connection with proceedings under the P&S Act. These new Supplemental Rules of Practice provide a mechanism for settling cases without the institution of formal administrative proceedings. The rule allows the Administrator discretion to enter into stipulation agreements with persons believed to be in violation of the P&S Act. The stipulations will occur before a formal administrative complaint is issued and will include payment of a civil penalty. Agreeing to the stipulation will be voluntary on the violator's part. If the violator does not agree, the Administrator retains the right to proceed through formal administrative proceedings. For example, if our investigation reveals a person to be inaccurately weighing livestock in violation of the P&S Act, we will provide notice of the violation and opportunity for a hearing. The notice will also give the violator the option to settle the case by paying a specified penalty. If the case were to go through the formal adjudicatory procedures, we could ask the administrative law judge to impose a penalty of $11,000 per violation. By entering a stipulation agreement, the alleged violator would pay a discounted civil penalty that is substantially less and would save the expense of litigation. The government would also save the expense of litigation. If the violator elects not to accept the stipulation, we would still have opportunity to pursue enforcement through the formal adjudicatory process. To ensure that stipulations remain an effective tool for achieving compliance with the P&S Act, we will adopt internal procedures that generally do not allow repeat violators an opportunity to agree to stipulated monetary penalties. In most cases, repeat violators and those violators whose conduct results in substantial economic harm to other persons will not be offered stipulations, but would be subject to having a formal administrative complaint filed against them. Our procedures to use stipulations for less serious violations will ensure that these stipulations will promote efficiency and cost savings while still providing an additional deterrent against violations of the P&S Act. This rule is not a rule as defined by the Regulatory Flexibility Act (5 U.S.C. 601-612). Therefore, this rule is exempt from the requirements of that Act. Executive Order 12988 This rule has been reviewed under E.O. 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not pre-empt State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) does not apply to this rule because the rule does not seek answers to identical questions or impose reporting, recordkeeping, or third party disclosure requirements on 10 or more persons, and the information collected is not used for general statistical purposes. E-Government Act Compliance We are committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Effective Date This rule
(1)relates to internal agency management, and
(2)improves the administration of programs regulated by the Packers and Stockyards Act because it affords more timely and less costly resolution of cases brought by USDA. No useful purpose would be served by delaying the effective date of implementing the use of stipulation agreements. Therefore, as allowed in 5 U.S.C. 553, it is found upon good cause that notice and other public procedure with respect to this rule change are impracticable and contrary to the public interest, and good cause is found for making this rule effective less than 30 days after publication in the **Federal Register** . List of Subjects in 9 CFR Part 202 Administrative practice and procedure, Stockyards. For the reasons set forth in the preamble, GIPSA amends 9 CFR part 202 as follows: PART 202—RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE PACKERS AND STOCKYARDS ACT 1. Revise the authority citation for part 202 to read as follows: Authority: 7 U.S.C. 228(a); 7 CFR 2.22 and 2.81. 2. Immediately following § 202.123 add a new undesignated center heading and §§ 202.200 and 202.210 to read as set forth below: Rules of Practice Applicable to All Other Proceedings § 202.200 Scope and applicability of rules of practice. The Uniform Rules of Practice for the Department of Agriculture promulgated in Subpart H of Part 1, Subtitle A, Title 7, Code of Federal Regulations, are the Rules of Practice applicable to adjudicatory, administrative proceedings under the Packers and Stockyards Act, as amended (7 U.S.C. 181 *et seq.* ). In addition, the Supplemental Rules of Practice set forth in this part shall be applicable to such proceedings. § 202.210 Stipulations.
(a)The Administrator may enter into a stipulation with any person operating subject to the Packers and Stockyards Act, as amended (P&S Act), prior to issuing a complaint that seeks a civil penalty against that person.
(1)The Administrator will give the person notice of an alleged violation of the P&S Act or regulations and provide an opportunity for a hearing;
(2)The person has the option to expressly waive the opportunity for a hearing and agree to pay a specified civil penalty within a designated time;
(3)The Administrator will agree to settle the matter by accepting payment of the specified civil penalty within a designated time;
(4)If the person does not agree to the stipulation, or does not pay the penalty within the specified time, the Administrator may issue an administrative complaint citing the alleged violation; and
(5)The civil penalty that the Administrator proposed in a stipulation agreement has no bearing on the civil penalty amount that may be sought in a formal administrative proceeding against the same person for the same alleged violation.
(b)[Reserved]. James E. Link, Administrator, Grain Inspection, Packers and Stockyards Administration. [FR Doc. E7-7041 Filed 4-16-07; 8:45 am] BILLING CODE 3410-KD-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 72 RIN 3150-AI03 List of Approved Fuel Storage Casks: Standardized NUHOMS® System, Revision 9, Confirmation of Effective Date AGENCY: Nuclear Regulatory Commission ACTION: Direct final rule: Confirmation of effective date. SUMMARY: The Nuclear Regulatory Commission
(NRC)is confirming the effective date of April 17, 2007, for the direct final rule that was published in the **Federal Register** on February 1, 2007 (72 FR 4615). This direct final rule amended the NRC's regulations to revise the Transnuclear, Inc., Standardized NUHOMS® System listing to include Amendment No. 9 to Certificate of Compliance
(CoC)No. 1004. DATES: *Effective Date:* The effective date of April 17, 2007, is confirmed for this direct final rule. ADDRESSES: Documents related to this rulemaking, including comments received, may be examined at the NRC Public Document Room, located at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. These same documents may also be viewed and downloaded electronically via the rulemaking Web site ( *http://ruleforum.llnl.gov* ). For information about the interactive rulemaking Web site, contact Ms. Carol Gallagher
(301)415-5905; e-mail *CAG@nrc.gov* . FOR FURTHER INFORMATION CONTACT: Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone
(301)415-6219, e-mail *jmm2@nrc.gov* . SUPPLEMENTARY INFORMATION: On February 1, 2007 (72 FR 4615), the NRC published a direct final rule amending its regulations in 10 CFR part 72 to revise the Transnuclear, Inc., Standardized NUHOMS® System listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 9 to CoC No. 1004. This amendment revises Technical Specifications 1.2.1 and 1.2.14 to add the Framatome-ANP, Version 9x9-2 fuel assemblies as approved contents for storage in the NUHOMS-61BT dry shielded canister. In the direct final rule, NRC stated that if no significant adverse comments were received, the direct final rule would become final on April 17, 2007. The NRC did not receive any comments that warranted withdrawal of the direct final rule. Therefore, this rule will become effective as scheduled. Dated at Rockville, Maryland, this 11th day of April, 2007. For the Nuclear Regulatory Commission. Michael T. Lesar, Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration. [FR Doc. E7-7262 Filed 4-16-07; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Part 563e [No. 2007-16] RIN 1550-AC08 Community Reinvestment Act Rule—Interagency Uniformity; Correction AGENCY: Office of Thrift Supervision, Treasury (OTS). ACTION: Final rule; correction. SUMMARY: OTS is correcting an inadvertent omission and incorrect word in a final rule that appeared in the **Federal Register** of March 22, 2007 (72 FR 13429). That final rule reestablishes uniformity between OTS's Community Reinvestment Act
(CRA)regulations and those of the other federal banking agencies. DATES: Effective July 1, 2007. FOR FURTHER INFORMATION CONTACT: Celeste Anderson, Senior Project Manager, Compliance and Consumer Protection,
(202)906-7990; Richard Bennett, Counsel, Regulations and Legislation Division,
(202)906-7409, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: In the final rule FR Doc. E7-5188 appearing on page 13429 in the **Federal Register** of Thursday, March 22, 2007, the following corrections are made: § 563.28 [Corrected] 1. On page 13435, in the third column, in § 563e.28 Assigned ratings, in paragraph (c)(1), in the first sentence, “or any affiliate” is corrected to read “or in any assessment area by any affiliate”. Appendix A to Part 563e—Ratings [Corrected] 2. On page 13436, in the second column, in Appendix A to Part 563e—Ratings, in paragraph (d)(3)(ii)(B), in the second sentence, “a bank's performance” is corrected to read “a savings association's performance”. Dated: April 11, 2007. By the Office of Thrift Supervision. Deborah Dakin, Senior Deputy Chief Counsel. [FR Doc. E7-7226 Filed 4-16-07; 8:45 am] BILLING CODE 6720-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2005-21624; Directorate Identifier 2005-NE-17-AD; Amendment 39-15028; AD 2005-13-25R1] RIN 2120-AA64 Airworthiness Directives; Turbomeca S.A. Arriel 2B Turboshaft Engines AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: The FAA is revising an existing airworthiness directive
(AD)for Turbomeca S.A. Arriel 2B turboshaft engines with Modification TU62A incorporated. That AD currently requires initial and repetitive inspections, cleaning, lubrication, and checks for proper operation of the HMU acceleration controller axle. This AD requires the same actions, but removes engines incorporating TU132 from the applicability and adds an optional terminating action for the repetitive actions required in AD 2005-13-25. This AD results from the engine manufacturer releasing a service bulletin to introduce modification TU132. We are issuing this AD to prevent loss of control of engine fuel flow in manual control mode or mixed control mode, which can lead to engine overspeed, and in-flight engine shutdown resulting in a forced autorotation landing or accident. DATES: Effective May 22, 2007. The Director of the Federal Register previously approved the incorporation by reference of Alert Mandatory Service Bulletin
(ASB)No. A292 73 2814, Update No. 1, dated January 11, 2005, on July 11, 2005 (70 FR 36480, June 24, 2005). The Director of the Federal Register approved the incorporation by reference of ASB No. A292 73 2814, Update No. 2, dated December 15, 2006, as of May 22, 2007. We must receive any comments on this AD by June 18, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Turbomeca S.A., 40220 Tarnos, France; telephone 33 05 59 74 40 00, fax 33 05 59 74 45 15, for the service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Christopher Spinney, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803-5299; telephone
(781)238-7175; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: On June 16, 2005, the FAA issued AD 2005-13-25, Amendment 39-14162 (70 FR 36480, June 24, 2005). That AD requires initial and repetitive inspections, cleaning, lubrication, and checks for proper operation of the hydromechanical unit
(HMU)acceleration controller axle on engines that incorporate modification TU62A. That AD was the result of several reports of the HMU acceleration controller axle sticking that resulted in engine overspeed and in-flight engine shutdown or uncommanded in-flight engine shutdown. That condition, if not corrected, could result in loss of control of engine fuel flow in manual control mode or mixed control mode, which can lead to engine overspeed, and in-flight engine shutdown resulting in a forced autorotation landing or accident. Actions Since We Issued AD 2005-13-25 Since we issued that AD, the manufacturer introduced modification TU132, which includes a new P3 cover with a self-lubricating coating and a reduced centering length in the P3 cover. The European Aviation Safety Authority
(EASA)which is the airworthiness authority for the European Union, recently notified us that Turbomeca S.A. has introduced modification TU132 to eliminate the cause of an unsafe condition on Turbomeca S.A. Arriel 2B turboshaft engines. This AD requires inspecting and lubricating the P3 cover and HMU acceleration control axle on HMUs that are not modified to TU132. We are issuing this AD to prevent loss of control of engine fuel flow in the manual control mode or mixed control mode, which can lead to engine overspeed, and in-flight engine shutdown resulting in a forced autorotation landing or accident. Relevant Service Information We have reviewed and approved the technical contents of Turbomeca Alert Mandatory Service Bulletin
(ASB)No. A292 73 2814, Update No. 2, dated December 15, 2006. That ASB describes procedures for inspecting, lubricating, and checking for proper operation of the HMU acceleration controller axle. The EASA issued AD 2007-0026, dated February 1, 2007, in order to ensure the airworthiness of these Arriel 2B turboshaft engines in the European Union. Bilateral Airworthiness Agreement This engine model is manufactured in France, and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, the EASA has kept the FAA informed of the situation described above. We have examined the findings of the EASA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States. FAA's Determination and Requirements of This AD The unsafe condition described previously is likely to exist or develop on other Turbomeca S.A. Arriel 2B turboshaft engines of the same type design. We are issuing this AD to prevent loss of control of engine fuel flow in the manual control mode or mixed control mode, which can lead to engine overspeed, and in-flight engine shutdown resulting in a forced autorotation landing or accident. This AD requires initial and repetitive inspections, cleaning, lubrication, and checks for proper operation of the HMU acceleration controller axle. You must use the service information described previously to perform the actions required by this AD. FAA's Determination of the Effective Date Since we are reducing the applicability of this AD, a situation exists that allows the immediate adoption of this AD. We have found that notice and opportunity for public comment before issuing this AD are unnecessary. Comments Invited This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to send us any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES . Include “AD Docket No. FAA-2005-21624; Directorate Identifier 2005-NE-17-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of the DMS Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://dms.dot.gov.* Examining the AD Docket You may examine the docket that contains the AD, any comments received, and any final disposition 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 on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under 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 summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-14162 70 FR 36480, June 24, 2005, and by adding a new airworthiness directive, Amendment 39-15028, to read as follows: **2005-13-25R1 Turbomeca S.A.:** Amendment 39-15028. Docket No. FAA-2005-21624; Directorate Identifier 2005-NE-17-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective May 22, 2007. Affected ADs
(b)This AD revises AD 2005-13-25, Amendment 39-14162. Applicability
(c)This AD applies to Turbomeca S.A. Arriel 2B turboshaft engines with Modification TU62A incorporated, but do not have Modification TU132. These engines are installed on, but not limited to, Eurocopter AS350B3 helicopters. Unsafe Condition
(d)This AD results from the engine manufacturer releasing a service bulletin to introduce modification TU132. We are issuing this AD to prevent loss of control of engine fuel flow in manual control mode or mixed control mode, which can lead to engine overspeed, and in-flight engine shutdown resulting in a forced autorotation landing or accident. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done. Hydromechanical Units
(HMUs)Without Modification TU132
(f)Within 20 operating hours after July 11, 2005, the AD's original effective date, inspect, clean, lubricate, and check for proper operation of the HMU acceleration controller axle. Use paragraph 2 of Instructions to be Incorporated of Turbomeca Alert Mandatory Service Bulletin No. A292 73 2814, Update No. 1, dated January 11, 2005, or Update No. 2, dated December 15, 2006, to do these actions.
(g)Thereafter, repeat the actions specified in paragraph
(f)of this AD within every 210 operating hours. Optional Terminating Action
(h)Modifying the HMU to Modification TU132, terminates the repetitive inspection requirements specified in paragraph
(g)of this AD. Turbomeca Service Bulletin No. 292 73 2132, dated May 31, 2006, contains information on modifying the HMU to Modification TU132. Alternative Methods of Compliance
(i)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(j)The EASA airworthiness directive 2007-0026, dated February 1, 2007, also addresses the subject of this AD. Material Incorporated by Reference
(k)You must use Turbomeca Alert Mandatory Service Bulletin
(ASB)No. A292 73 2814, Update No. 1, dated January 11, 2005; or ASB No. A292 73 2814, Update No. 2, dated December 15, 2006, to perform the actions required by this AD. The Director of the Federal Register previously approved the incorporation by reference of ASB No. A292 73 2814, Update No. 1, dated January 11, 2005, on July 11, 2005 (70 FR 36480; June 24, 2005). The Director of the Federal Register approved the incorporation by reference of ASB No. A292 73 2814, Update No. 2, dated December 15, 2006, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Turbomeca S.A., 40220 Tarnos, France; telephone 33 05 59 74 40 00, fax 33 05 59 74 45 15, for a copy of this service information. You may review copies at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* Issued in Burlington, Massachusetts, on April 9, 2007. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-7115 Filed 4-16-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 35 and 37 [Docket Nos. RM05-17-000 and RM05-25-000; Order No. 890] Preventing Undue Discrimination and Preference in Transmission Service Issued April 11, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Order granting extension of compliance action dates. SUMMARY: The Federal Energy Regulatory Commission (Commission) is extending certain deadlines for compliance actions required by Order No. 890, the final rule issued in this proceeding on February 16, 2007. DATES: The date by which transmission providers must implement certain reforms adopted in Order No. 890 is hereby extended by 60 days, to July 13, 2007, as set forth in Appendix A of this order. FOR FURTHER INFORMATION CONTACT: W. Mason Emnett (Legal Information), Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6540. SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. Order Granting Extension of Compliance Action Dates 1. On March 21, 2007, Tampa Electric Company (Tampa Electric) together with Florida Power & Light Company
(FPL)filed a motion for extension of deadlines relating to the implementation of additional functionality for the Open Access Same-Time Information System (OASIS) and the posting of new transmission-related metrics as outlined in Order No. 890. 1 On March 29, 2007, Tampa Electric and FPL supplemented their motion with a preliminary assessment of technical work required to implement the additional OASIS functionality and the posting of new transmission-related metrics. 1 *Preventing Undue Discrimination and Preference in Transmission Service,* Order No. 890, 72 FR 12266 (March 15, 2007), FERC Stats. & Regs. ¶ 31,241 (2007), *reh'g pending* (Order No. 890). 2. On March 23, 2007, the Edison Electric Institute
(EEI)filed a motion requesting that the Commission extend to 120 days from publication of Order No. 890 in the **Federal Register** all deadlines currently set as less than 120 days as applied to transmission providers that are not members of an Independent System Operator
(ISO)or Regional Transmission Organization (RTO). On March 29, 2007, EEI filed a second motion to extend the filing deadline for ISO and RTO transmission providers' “strawman” proposals detailing compliance with each of the nine planning principles adopted in Order No. 890. 3. On April 3, 2007, E.ON U.S. LLC (E.ON) filed a motion stating its support of EEI's request to allow utilities not participating in an ISO or RTO an additional 60 days to comply with the non-rate terms and conditions set out in Order No. 890, but requesting a 90-day extension for submission of its Federal Power Act
(FPA)section 206 compliance filing due to E.ON's particular circumstances. 4. Finally, on April 9, 2007, Portland General Electric Company
(PGE)filed a motion seeking an extension of deadlines associated with the optional filing under FPA section 205 regarding previously-approved variations from the *pro forma* Open Access Transmission Tariff (OATT). 5. For the reasons outlined below, the Commission grants in part the March 23, 2007, motion of EEI and denies the March 29, 2007, motion of EEI, as well as the subsequent motions of E.ON and PGE. Accordingly, the joint motion of Tampa Electric and FPL, as supplemented, is rejected as moot. I. Background 6. On February 16, 2007, the Commission issued Order No. 890 on Preventing Undue Discrimination and Preference in Transmission Service in these dockets. 2 In Order No. 890, the Commission amended its regulations and the *pro forma* OATT, adopted in Order No. 888, 3 to ensure that transmission services are provided on a basis that is just, reasonable and not unduly discriminatory or preferential. The Commission designed Order No. 890 to:
(1)Strengthen the *pro forma* OATT to ensure that it achieves its original purpose of remedying undue discrimination;
(2)provide greater specificity to reduce opportunities for undue discrimination and facilitate the Commission's enforcement; and
(3)increase transparency in the rules applicable to planning and use of the transmission system. 2 *Id.* 3 *Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities,* Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ¶ 31,036 (1996), *order on reh'g,* Order No. 888-A, 62 FR 12274 (Mar. 14, 1997), FERC Stats. & Regs. ¶ 31,048 (1997), *order on reh'g,* Order No. 888-B, 81 FERC ¶ 61,248 (1997), *order on reh'g,* Order No. 888-C, 82 FERC ¶ 61,046 (1998), *aff'd in relevant part sub nom. Transmission Access Policy Study Group v. FERC,* 225 F.3d 667 (D.C. Cir. 2000) ( *TAPS v. FERC* ), *aff'd sub nom. New York v. FERC,* 535 U.S. 1 (2002). 7. Order No. 890 established a number of compliance requirements with corresponding deadlines, each necessary to achieve its stated goals. Among other things, transmission providers that have not been approved as ISOs or RTOs, and whose transmission facilities are not under the control of an ISO or RTO, were directed to submit, within 60 days after publication of Order No. 890 in the **Federal Register** , *i.e.* , May 14, 2007, filings under section 206 of the FPA that contain the non-rate terms and conditions set forth in the order. 4 Within 75 days of publication, *i.e.* , May 29, 2007, all transmission providers must post a “strawman” proposal for compliance with each of the nine planning principles adopted in Order No. 890. 5 The Commission also requested that the North American Electric Reliability Corporation
(NERC)and the North American Energy Standards Board (NAESB) file, within 90 days from publication, *i.e.* , June 13, 2007, a joint status report that contains a work plan for completion of business practices and standards related to calculation of Available Transfer Capability (ATC). 6 NAESB was further requested to file a status report and work plan for the completion of the OASIS functionality or uniform business practices related to reforms adopted in Order No. 890. 7 The Commission required each transmission provider to develop, within 90 days from publication, *i.e.* , June 13, 2007, its own OASIS functionality or business practices necessary to implement certain reforms ordered in Order No. 890 pending completion of the NERC and NAESB processes. 8 Finally, the Commission required transmission providers to comply with a number of new regulations by Order No. 890's effective date of May 14, 2007. 4 Order No. 890 at P 139. 5 *Id.* at P 135. 6 *Id.* at P 223. 7 *Id.* at P 141. 8 *Id.* 8. In addition to these compliance obligations, the Commission provided an optional 205 procedure for transmission providers seeking to maintain previously-approved variations from the Order No. 888 *pro forma* OATT that were affected by the reforms adopted in Order No. 890. To the extent a transmission provider wishes to maintain these previously-approved variations, the Commission stated that the transmission provider would have to demonstrate that the relevant tariff provisions continue to be consistent with or superior to the *pro forma* OATT as modified by Order No. 890. The Commission provided that such demonstrations could be made in an FPA section 205 filing submitted within 30 days after publication of Order No. 890 in the **Federal Register** , *i.e.* , April 16, 2007. The Commission stated that each applicant should request that these proposed tariff provisions be made effective as of the date of the transmission provider's section 206 compliance filing. 9 9 *Id.* at P 139. II. Motions for Extension 9. Tampa Electric and FPL seek extension of compliance deadlines related to the implementation of additional OASIS functionality and the posting of new transmission-related metrics. As explained in their motion, Tampa Electric and FPL currently use FLOASIS, the OASIS for transmission providers in Florida. Tampa Electric and FPL state that they are currently negotiating an agreement with a new host, Open Access Technology International, Inc. (OATI), and anticipate that their new OASIS system will not be operational until July 1, 2007. If forced to meet the deadlines set forth in Order No. 890, Tampa Electric and FPL contend that they would be required to develop new software and manual processes on the current FLOASIS, which would become obsolete once they switch to the new OATI-hosted OASIS platform. 10. EEI, on behalf of transmission providers not affiliated with an ISO or RTO, seeks in its March 23, 2007, motion an extension of certain of the compliance requirements in Order No. 890 involving deadlines set at less than 120 days from publication of the order in the **Federal Register** . This would include: the FPA section 206 compliance filing requirement, the “strawman” proposal deadline, and the deadlines set for the NERC and NAESB status reports. EEI contends that the volume and nature of the compliance requirements set forth in Order No. 890 render these corresponding deadlines infeasible. To support its argument, EEI describes in detail many of the steps it believes are necessary for completion of the compliance requirements, such as the development of new software or modifications to existing software. 11. In addition, EEI states particular concern regarding the time needed to develop software upgrades necessary to implement conditional firm service and planning redispatch. EEI also contends the current compliance schedule does not allow sufficient time to ensure that the new software and processes will not harm reliability. EEI therefore requests reconsideration of the Commission's decision to make reforms involving NERC and NAESB activities effective in advance of associated development of business practices and standards. EEI requests the Commission abandon its requirement that transmission providers implement reforms on an individual basis prior to issuance of the final NERC and NAESB rules. 12. EEI also requests the Commission delay other compliance deadlines until the Commission issues further clarification of Order No. 890. Specifically, EEI contends that without additional guidance from the Commission regarding revising transmission rates to reflect capacity benefit margin
(CBM)set-aside, and prior to the issuance of the final NERC and NAESB standards, there may be significant inconsistencies in rate design among utilities, which could lead to hearing and settlement proceedings. EEI also states that transmission providers that make firm system sales need further clarification regarding the manner in which network resources should be designated and that, in the absence of such guidance, the Commission should not penalize transmission providers for their attempts to implement Order No. 890. 13. EEI further asks that the Commission clarify that the changes to Schedule 4 and Schedule 9 regarding imbalance charges need not become effective until the billing cycle immediately following the effective date of the revised *pro forma* OATT. EEI argues that requiring transmission providers to bill in two different billing methods for the same service over the course of a month would create the need for a complex software workaround. 14. In conjunction with its various requests, EEI proposes to organize a public conference on or about May 14, 2007, for participants to discuss progress made in their compliance efforts and any obstacles that have arisen. 15. On March 29, 2007, EEI filed a second motion on behalf of transmission providers that are members of an ISO or RTO, requesting a similar extension for filing of the “strawman” proposals for those entities. EEI contends in this motion that it is not feasible for ISOs and RTOs, and their transmission-owning members, to obtain robust input from a broad range of stakeholders in time to meet the current 75-day deadline. According to EEI, this deadline will be particularly challenging for most ISOs, RTOs and transmission owners because of the time required to coordinate planning obligations. 16. Answers to the EEI motions were filed by the American Public Power Association, National Rural Electric Cooperative Association, Transmission Access Policy Study Group, and Transmission Dependent Utility Systems (together the APPA Joint Commenters), the Mid-Continent Power Pool
(MAPP)on behalf of its public utility members, Puget Sound Energy, Inc. (Puget), and the Electric Power Supply Association (EPSA). MAPP and Puget state full support of EEI's March 23, 2007, motion, reiterating many of the arguments made by EEI. While the APPA Joint Commenters do not object to the extensions of time requested by EEI, they request that the Commission provide at least 45 days to comment on transmission providers' compliance filings if the requested extensions are granted. In support of their request, the APPA Joint Commenters contend that consolidation of the 60-day, 75-day, and 90-day deadlines into a single 120-day deadline will impose increased burdens on interested parties reviewing those previously-staggered filings and postings. EPSA states its support of the APPA Joint Commenters' request. 17. The APPA Joint Commenters also express particular concern with two elements of the EEI motions. First, they argue that the Commission should only grant an extension of the requirement to complete software modifications on a case-by-case basis and, even then, only on a showing of clear and convincing need. Second, the APPA Joint Commenters argue that, if the Commission grants EEI's request to delay posting of the “strawman” proposals, the associated technical conferences should also be delayed in order to maintain a 15- to 45-day period for stakeholder review of the “strawman” postings. 18. On April 3, 2007, E.ON filed a motion supporting EEI's request to allow utilities not participating in an ISO or RTO an additional 60 days to comply with the non-rate terms and conditions set out in Order No. 890. E.ON contends, however, that it is different from most stand-alone utilities because it must coordinate compliance efforts with the Southwest Power Pool, the independent transmission organization for E.ON's transmission system, as well as the Tennessee Valley Authority, which serves as the reliability coordinator for E.ON's transmission system. E.ON therefore requests a 90-day extension to submit its FPA section 206 compliance filing, rather than the 60-day extension requested by EEI. 19. On April 9, 2007, PGE filed a motion requesting an extension of the deadline to submit FPA section 205 filings relating to previously-approved variations from the *pro forma* OATT. To the extent the Commission grants EEI's request for an extension of the date to submit the FPA section 206 compliance filings, PGE requests that the Commission also generically extend the date of the FPA section 205 filings by 60 days. PGE further requests that, as to its own FPA section 205 filing, the Commission permit it to delay that filing until after the Commission issues its order on rehearing in this proceeding. III. Commission Determination 20. The Commission partially grants EEI's request and extends the date on which reforms adopted in Order No. 890 would have otherwise been effective by 60 days, *i.e.* , to July 13, 2007, except as provided for below. Specifically, all transmission providers that have not been approved as ISOs or RTOs, and whose transmission facilities are not under the control of an ISO or RTO, are required to submit FPA section 206 compliance filings that contain the non-rate terms and conditions set forth in Order No. 890 within 120 days of publication of the order in the **Federal Register** , *i.e.* , July 13, 2007. Similarly, transmission providers must take all other actions necessary to implement the reforms adopted in Order No. 890, except as provided for below, on or before July 13, 2007, unless a later compliance date was otherwise specified in the order. 10 10 Order No. 890 also requested NERC and NAESB to submit status reports within 90 days of publication of the order in the **Federal Register** , *i.e.* , June 13, 2007, containing work plans for developing standards and business practices associated with reforms adopted in Order No. 890. The limited extension of time granted here applies to actions to be taken by transmission providers and, thus, the NERC and NAESB filing deadlines remain unchanged. 21. With regard to the requirement for transmission providers to post “strawman” proposals for compliance with the nine planning principles adopted in Order No. 890, we deny EEI's requests for extension and retain the requirement that such postings be made within 75 days of publication of the order in the **Federal Register** , *i.e.* , May 29, 2007. The “strawman” proposals are necessary to facilitate the technical conferences that the Commission has scheduled in June 2007 to encourage discussion as to how transmission providers ultimately intend to fulfill their planning requirements. Due to the delay in **Federal Register** publication, the “strawman” posting date is more than 100 days after Order No. 890 was issued, which is consistent with EEI's assertion that the Commission typically provides 90 to 120 days for RTO and ISO efforts that require stakeholder participation. 11 In any event, the “strawman” proposals are only one aspect of the compliance process. The actual Attachment K compliance filing deadline is not until October 11, 2007. Transmission providers will therefore have roughly four months to prepare their Attachment K filings after the Commission holds technical conferences to discuss the “strawman” proposals. We believe this is sufficient time to ensure timely compliance with the Attachment K filing deadline. 11 EEI March 29 Motion at 2. 22. With regard to imbalance charges, however, we agree that it would be reasonable for a transmission provider to extend the date on which the imbalance-related provisions adopted in Schedule 4 and Schedule 9 become effective until the first day of the billing cycle following the effectiveness of the underlying imbalance-related reforms. Specifically, transmission providers submitting their imbalance provisions in section 206 filings on or before July 13, 2007, may specify that those provisions will become effective on the first day of the billing cycle following the filing date. We agree that this modest extension of the effectiveness of imbalance-related reforms will facilitate the implementation of those reforms. 23. The Commission is not convinced that EEI's remaining requests for extension or further generic modification of Order No. 890's compliance obligations are necessary. Although the Commission is aware of the challenges of compliance with Order No. 890, we are not persuaded that the related deadlines, as modified herein, are unreasonable or unclear. Order No. 890 is the result of a multi-year proceeding during which the Commission sought and received multiple rounds of comments from over 300 parties. The various compliance obligations in Order No. 890, including CBM-related modification of rates and implementation of interim workarounds pending development of final NERC and NAESB standards and business practices, were established after full consideration of these comments and the Commission's determination that related reforms are necessary to remedy the potential for undue discrimination. 12 EEI has not persuaded us that generic modification of those obligations pending final standards and practice development by NERC and NAESB would be appropriate. 13 Any issues specific to a transmission provider's ability to comply with the requirements of Order No. 890, as modified herein, may be considered during the compliance process on a case-by-case basis. For similar reasons, we deny the APPA Joint Commenters' request to establish in advance of the compliance process the number of days parties will have to comment on compliance filings. 12 With specific regard to the CBM-related rate changes required in Order No. 890, we believe that EEI's concerns are misplaced. Order No. 890 expressly contemplated transmission providers proposing necessary changes to rate design to ensure that point-to-point customers do not pay a transmission charge that includes the cost of the CBM set-aside, provided that the subject of such rate filings be limited solely to the issue of CBM-related cost recovery. *See* Order No. 890 at P 263. Nothing in Order No. 890 precludes transmission providers from proposing modification of rates for other services (such as network service) as necessary to recover CBM-related costs previously paid by point-to-point customers and, therefore, it is not necessary to extend the deadline for those filings. 13 Although Order No. 890 directed NERC and NAESB to develop standards and business practices necessary to implement ATC-related reforms within 270 and 360 days of publication of the order in the **Federal Register** , respectively, it did not establish a specific timeframe for NAESB's development of business practices necessary for remaining reforms. Instead, NAESB was requested to submit a work plan within 90 days of publication of the order in the **Federal Register** , upon review of which the Commission will issue an order establishing further compliance deadlines as necessary. *See* Order No. 890 at P 141. 24. The Commission also denies E.ON's request to extend its FPA section 206 compliance filing deadline by 90 days instead of the 60-day extension requested by EEI, granted above. All transmission providers must coordinate their compliance efforts with personnel internal and external to their organizations. We recognize these efforts will be complicated but, as explained above, they are the logical outgrowth of this multi-year proceeding. E.ON fails to justify the need for differential treatment during the compliance process. 25. Finally, the Commission denies PGE's request to extend the FPA section 205 deadlines relating to previously-approved variations from the *pro forma* OATT. The optional section 205 procedure was established so that transmission providers would have an opportunity to demonstrate that any previously-approved variations continue to be consistent with or superior to the terms and conditions of the reformed *pro forma* OATT, thereby allowing those transmission providers to retain those variations during implementation of Order No. 890. It is not necessary, as PGE assumes, to extend the 30-day deadline for submission of the section 205 filings simply because we extend the deadline for the section 206 compliance filings above. 14 The purpose of each filing is distinct and PGE offers no reason as to why transmission providers may need additional time to prepare their section 205 filings, which relate only to tariff provisions the Commission has already reviewed and approved. Moreover, deferring the deadline for PGE's FPA section 205 filing until after our order on rehearing in this proceeding would not achieve PGE's stated goal of ensuring that its previously-approved deviations remain in effect during the compliance process. 15 In the section 206 compliance filing, each transmission provider must conform the non-rate terms and conditions of its OATT to the reformed non-rate terms and conditions of the *pro forma* OATT. Failure to request that previously-approved variations remain in place in advance of submitting the compliance filing will result in those provisions being eliminated during the compliance process. 14 As provided in Order No. 890, however, transmission providers should request that the tariff provisions proposed in their optional 205 filings be made effective as of the date the transmission provider submits its section 206 compliance filing, which must now be on or before July 13, 2007. *See id* . at P 139. 15 *See* PGE Motion at 3. 26. In light of the extension of certain deadlines for compliance with Order No. 890 provided for above, the request for extension submitted by FPL and Tampa Electric is moot. The Commission Orders
(A)The date on which the reforms adopted in Order No. 890 would have otherwise been effective is hereby extended by 60 days, *i.e.* , to July 13, 2007, except as otherwise provided in the body of this order.
(B)The request for extension submitted by FPL and Tampa Electric is dismissed as moot.
(C)The request for extensions submitted by E.ON and PGE are denied.
(D)The Secretary shall promptly publish a copy of this order in the **Federal Register** . By the Commission. Kimberly D. Bose, Secretary. Appendix A: Summary of Compliance Filing Requirements For a more detailed description of compliance obligations please refer to Order No. 890 paragraph number. For further information related to Order No. 890, such as electronic versions of the *pro forma* OATT showing tariff changes adopted in Order No. 890 in redline/strikeout format, and further information regarding docketing of compliance filings and specific filing instructions, please visit our Web site at the following location: *http://www.ferc.gov/ industries/electric/indus-act/oatt-reform.asp.* Deadline (days after publication in the Fed. Reg.) Compliance action Order No. 890 paragraph No. 30 (4/16/2007) Optional Implementation FPA section 205 filings allowing transmission providers to propose previously approved variations from the *pro forma* OATT that have been affected by *pro forma* OATT reforms to remain in effect subject to a demonstration that such variations continue to be consistent with or superior to the revised *pro forma* OATT (non RTO/ISO transmission providers). Such optional filings must request a 90 day effective date to facilitate Commission review under section 205 P 139 75 (5/29/2007) Transmission Providers must post a “strawman” proposal for compliance with each of the nine planning principles adopted in Order No. 890. This may be posted on the Transmission Providers Web site or its OASIS site P 443 90 (6/13/2007) NERC/NAESB status report and work plan for completion of ATC related business practices and standards P 223 NAESB status report and work plan for completion of OASIS functionality or uniform business practices (other than those related to ATC) P 141 120 (7/13/2007) Transmission Providers that have not been approved as ISOs or RTOs, and whose transmission facilities are not under the control of an ISO or RTO, must submit FPA section 206 filings that contain the non-rate terms and conditions set forth in Order No. 890. These filings need only contain the revised provisions adopted in Order No. 890. Transmission providers utilizing the optional implementation FPA section 205 filing described above, need only submit tariff sheets necessary to implement the remaining modifications required under the Order No. 890, *i.e.* , modifications related to tariff provisions that did not implicate previously-approved variations P 135 120 (7/13/2007) Transmission Providers must submit redesigned transmission charges that reflect the Capacity Benefit Margin set-aside through a limited issue section 205 rate filing as part of their initial ATC related compliance filings P 263 180 (9/11/2007) Submit compliance filings with Attachment C
(ATC)of the *pro forma* OATT P 140 210 (10/11/2007) ISOs and RTOs, and transmission providers located within an ISO/RTO footprint, submit FPA section 206 filings that contain the non-rate terms and conditions set forth in Order No. 890. These filings need only contain the revised provisions adopted in Order No. 890 or a demonstration that previously approved variations continue to be consistent with or superior to the revised *pro forma* OATT P 157 P 161 210 (10/11/2007) Submit compliance filings with Attachment K (Planning) of the *pro forma* OATT or RTOs and ISOs file a demonstration that their planning processes are consistent with or superior to the planning principles in Order No. 890 P 140 P 422 N/A N/A Transmission Providers must file a revised Attachment C to incorporate any changes to NERC's and NAESB's reliability and business practice standards to achieve consistency in ATC within 60 days of completion of the NERC and NAESB processes P 325 N/A After the submission of FPA section 206 compliance filings, transmission providers may submit FPA section 205 filings proposing rates for the services provided for in the tariff, as well as non-rate terms and conditions that differ from those set forth in Order No. 890 if those provisions are “consistent with or superior to” the *pro forma* OATT P 135 [FR Doc. E7-7229 Filed 4-16-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 381 [Docket No. RM07-12] Annual Update of Filing Fees April 9, 2007. AGENCY: Federal Energy Regulatory Commission, Department of Energy. ACTION: Final rule; annual update of Commission filing fees. SUMMARY: In accordance with 18 CFR 381.104, the Commission issues this update of its filing fees. This notice provides the yearly update using data in the Commission's Management, Administrative, and Payroll System to calculate the new fees. The purpose of updating is to adjust the fees on the basis of the Commission's costs for Fiscal Year 2006. EFFECTIVE DATE: May 17, 2007. FOR FURTHER INFORMATION CONTACT: Elizabeth Misiewicz, Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street, NE., Room 4R-03, Washington, DC 20426, 202-502-6240. SUPPLEMENTARY INFORMATION: *Document Availability:* In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( *http://www.ferc.gov* ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426. From FERC's Web site on the Internet, this information is available in the eLibrary (formerly FERRIS). The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page. User assistance is available for eLibrary and other aspects of FERC's website during normal business hours. For assistance, contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll free at
(866)208-3676, or for TTY, contact
(202)502-8659. Annual Update of Filing Fees The Federal Energy Regulatory Commission (Commission) is issuing this notice to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2006 costs. The adjusted fees announced in this notice are effective May 17, 2007. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States. The new fee schedule is as follows: *Fees Applicable to the Natural Gas Policy Act:* 1. Petitions for rate approval pursuant to 18 CFR 284.123(b)(2). (18 CFR 381.403): $10,420. *Fees Applicable to General Activities:* 1. Petition for issuance of a declaratory order (except under Part I of the Federal Power Act). (18 CFR 381.302(a)): $20,940. 2. Review of a Department of Energy remedial order: *Amount in controversy:* $0-9,999 (18 CFR 381.303(b)): $100. $10,000-29,999 (18 CFR 381.303(b)): $600. $30,000 or more (18 CFR 381.303(a)): $30,560. 3. Review of a Department of Energy denial of adjustment: *Amount in controversy:* $0-9,999 (18 CFR 381.304(b)): $100. $10,000-29,999 (18 CFR 381.304(b)): $600. $30,000 or more (18 CFR 381.304(a)) $16,020. 4. Written legal interpretations by the Office of General Counsel (18 CFR 381.305(a)): $6,000. *Fees Applicable to Natural Gas Pipelines:* 1. Pipeline certificate applications pursuant to 18 CFR 284.224 (18 CFR 381.207(b)): $1,000 * * This fee has not been changed. *Fees Applicable to Cogenerators and Small Power Producers:* 1. Certification of qualifying status as a small power production facility (18 CFR 381.505(a)): $18,000. 2. Certification of qualifying status as a cogeneration facility (18 CFR 381.505(a)): $20,380. The Commission is eliminating the fee for applications for exempt wholesale generator status. List of Subjects in 18 CFR Part 381 Electric power plants, Electric utilities, Natural gas, Reporting and recordkeeping requirements. Thomas R. Herlihy, Executive Director. In consideration of the foregoing, the Commission amends part 381, Chapter I, Title 18, Code of Federal Regulations, as set forth below. PART 381—FEES 1. The authority citation for part 381 continues to read as follows: Authority: 15 U.S.C. 717-717w; 16 U.S.C. 791-828c, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85. § 381.302 [Amended] 2. In 381.302, paragraph
(a)is amended by removing “$19,890” and adding “$20,940” in its place. § 381.303 [Amended] 3. In 381.303, paragraph
(a)is amended by removing “$29,040” and adding “$30,560” in its place. § 381.304 [Amended] 4. In 381.304, paragraph
(a)is amended by removing “$15,230” and adding “$16,020” in its place. § 381.305 [Amended] 5. In 381.305, paragraph
(a)is amended by removing “$5,700” and adding “$6,000” in its place. § 381.403 [Amended] 6. Section 381.403 is amended by removing “$9,900” and adding “$10,420” in its place. § 381.505 [Amended] 7. In 381.505, paragraph
(a)is amended by removing “$17,110” and adding “$18,000” in its place and by removing “$19,360” and adding “$20,380” in its place. Subpart H of Part 381 [Removed] 8. Subpart H of part 381 (consisting of § 381.801) is removed. [FR Doc. E7-7190 Filed 4-16-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 938 [PA-147-FOR] Pennsylvania Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. SUMMARY: We are removing five required amendments to the Pennsylvania regulatory program (the “Pennsylvania program”) regulations under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) related to alternative reclamation plans; alternative postmining land use determinations; and bond forfeiture sites where reclamation is unreasonable, unnecessary, or impossible. Pennsylvania revised its program to be consistent with the corresponding Federal regulations and SMCRA. We are also approving two of four additional requested changes (not required) to the Pennsylvania program. Pennsylvania revised its program at its own initiative to clarify ambiguities and initiate changes in its fee collection calculations. The two approved changes are in regard to a typographical reference error and the evaluation of bond forfeiture sites. We are deferring our decision on two changes in regard to the discontinuation of a $100 per acre reclamation fee. EFFECTIVE DATE: April 17, 2007. FOR FURTHER INFORMATION CONTACT: George Rieger, Chief, Pittsburgh Field Division, Telephone:
(717)782-4036, e-mail: *grieger@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Pennsylvania Program II. Submission of the Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Pennsylvania Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval in the July 30, 1982, **Federal Register** (47 FR 33050). You can also find later actions concerning Pennsylvania's program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15 and 938.16. II. Submission of the Amendment By letter dated May 23, 2006 the Pennsylvania Department of Environmental Protection (PADEP) sent us an amendment to revise its program regulations at 25 Pennsylvania Code (Administrative Record No. PA 793.11) under SMCRA (30 U.S.C. 1201 *et seq.* ). Pennsylvania sent the amendment in response to five required program amendments codified in the Federal regulations at 30 CFR 938.16 (mm), (nn), (oo), (pp), and (qq), and to include four additional changes made at its own initiative. The required amendments pertain to alternative reclamation plans, alternative post mining land use determinations, and bond forfeiture sites where reclamation is unreasonable, unnecessary, or impossible and were required in a final rule notice published in the **Federal Register** on October 24, 1991 (56 FR 55080). The revisions that Pennsylvania proposed at its own initiative concern money received from reclamation fees and the evaluation of bond forfeiture sites. We announced receipt of the proposed amendment in the August 28, 2006, **Federal Register** (71 FR 50868). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. PA 793.17). The public comment period ended on September 27, 2006. We did not hold a public hearing or meeting because no one requested one. We received written comments from three Federal agencies and one environmental organization. III. OSM's Findings Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment, except as noted below, which includes removing five required amendments to the Pennsylvania regulatory program. We are removing the required program amendments at 30 CFR 938.16 (mm), (nn), (oo), (pp), and (qq). Any revisions that we do not specifically discuss below concern nonsubstantive wording, editorial, or re-numbering of section changes and are approved here without discussion. 1. Required Amendment at 30 CFR 938.16 (mm). Alternative Reclamation Plans and Applicable Performance Standards This required program amendment concerns alternative reclamation plans and applicable performance standards. The required program amendment codified in the Federal regulations at 30 CFR 938.16(mm) requires Pennsylvania to amend 25 Pa. Code 86.187(b)(1) or otherwise amend its program by requiring that alternative reclamation plans comply with all applicable performance standards in accordance with 86.189(c)(2), (c)(3), or (c)(4), whichever is appropriate. The amendment was required because section 86.187(b)(1) can be misinterpreted. Currently paragraph (b)(1) provides that the PADEP may prepare and implement an alternative reclamation plan where it determines that the original plan may be amended to decrease the cost of reclaiming the bond forfeiture site. Without more clarification, this paragraph can be interpreted to allow the PADEP to approve an alternative reclamation plan that would not require reclamation in accordance with the applicable performance standards in accordance with 86.189(c)(2), (c)(3), and (c)(4), whichever is appropriate. Therefore, paragraph
(1)of subsection 86.187(b) was not approved by OSM in an October 24, 1991, rulemaking to the extent that it would allow the implementation of an alternative reclamation plan that fails to require reclamation in accordance with the applicable performance standards mentioned above. See 56 FR 55083. In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.187(b) by clarifying that an alternative reclamation plan must be completed pursuant to 86.187(c). The PADEP is also amending 25 Pa. Code 86.187(c) with this amendment to include the requirement that alternative reclamation plans must comply with all applicable performance standards in accordance with 86.189(c)(2), (c)(3), and (c)(4). See Finding 2 below. We find that this clarification satisfies the required program amendment codified in the Federal regulations at 30 CFR 938.16(mm) and can be approved. Therefore, the required program amendment at 30 CFR 938.16(mm) can be removed. 2. Required Amendments at 30 CFR 938.16 (nn). Bond Forfeiture Sites: Alternative Reclamation Plans and Alternative Postmining Land Use This required program amendment concerns bond forfeiture sites (alternative postmining land use determinations and alternative reclamation plans). The required program amendment codified in the Federal regulations at 30 CFR 938.16
(nn)requires Pennsylvania to submit a proposed amendment to 25 Pa. Code 86.187(c) and section 18(c) of the Pennsylvania Surface Mining Conservation and Reclamation Act (PA SMCRA) or otherwise amend its program to be no less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that alternative postmining land use determinations for sites with forfeited bonds, under the Federal interim program or under Pennsylvania's permanent program, be made to ensure that all disturbed areas are restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. The amendment was required because section 18(c) of PA SMCRA and 25 Pa. Code 86.187(c) currently allow an alternative reclamation plan that merely calls for reclaiming the land so that it is suitable for agriculture, forests, recreating wildlife or water conservation, without regard to whether the alternative postmining land use is equal to or higher than the premining landuse as required by 30 CFR 816.133(a) and 817.133(a). Therefore, section 18(c) of PA SMCRA and paragraph
(c)of section 86.187 were not approved by OSM in an October 24, 1991, rulemaking to the extent that they did not provide for all disturbed areas to be restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. See 56 FR 55084. In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.187(c) by deleting language which allowed for alternate reclamation plans for bond forfeiture sites that would make the sites suitable, at a minimum, for agriculture, forests, recreation, wildlife or water conservation. The PADEP also added language to 86.187(c) that makes it clear that an alternate plan must comply with all applicable performance standards at 86.189(c)(2) through (c)(4), whichever is appropriate and ensure that all disturbed areas are restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining or higher or better uses. PADEP did not submit changes to section 18(c) of PA SMCRA. Nevertheless, we believe that section 18(c) can be interpreted in a manner that does not compromise the amended requirements of section 86.187(c), and therefore conclude that the statutory provision need not be amended. Should we later determine that the previously unapproved portion of section 18(c) is being interpreted to override the new requirements at § 86.187(c), such that the program is again less effective than the Federal regulations, we will take action to reinstate the disapproval of the offending portion of section 18(c). For the foregoing reasons, we find that the amendment to 25 Pa. Code 86.187(c) satisfies the requirements of 30 CFR 938.16(nn) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16(nn) can be removed. 3. Required Amendment at 30 CFR 938.16 (oo). Bond Forfeiture Sites: Alternative Postmining Land Use Determinations/Alternative Reclamation Plans This required program amendment concerns bond forfeiture sites (alternative postmining land use determinations and alternative reclamation plans). The required program amendment codified in the Federal regulations at 30 CFR 938.16(oo) requires Pennsylvania to delete 25 Pa. Code 86.189(c)(5) or otherwise amend its program to be no less effective than 30 CFR 816.133(a) and 817.133(a) by requiring that sites bonded during the Federal interim program or under Pennsylvania's permanent program be restored to conditions that are capable of supporting the uses they were capable of supporting before any mining or higher or better uses. The amendment was required because 25 Pa. Code 86.189(c)(5) currently allows for an alternative reclamation plan to make the site suitable, at a minimum, for agriculture, forests, recreation, wildlife or water conservation. The Federal regulations at 30 CFR 816.133(a) and 817.133(a) require that all disturbed areas be restored to uses they were capable of supporting before any mining or to higher or better uses. The Pennsylvania provision lacks a requirement that a site be restored to a higher and better use. Therefore, paragraph (c)(5) of subsection 86.187 was not approved by OSM in an October 24, 1991, rulemaking to the extent that it did not provide for all disturbed areas to be restored to conditions that are capable of supporting either the uses they were capable of supporting before any mining, or higher or better uses. See 56 FR 55085. For the same reason, the Director did not approve the cross references to 86.189(c)(5) contained in 86.189(c)(2), (c)(3), and (c)(4). In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.189 (c)(5) by deleting this paragraph which allowed for alternate reclamation plans for bond forfeiture sites that would make the sites suitable, at a minimum, for agriculture, forests, recreation, wildlife or water conservation. Federal regulations at 30 CFR 816.133(a) (relating to post mining land use) require that all disturbed areas be restored to uses they were capable of supporting before mining or to higher or better uses. The PADEP also deleted references to subsection (c)(5) at 86.189(c)(2), (c)(3), and (c)(4). We find that the amendment to 25 Pa. Code 86.187(c)(2)-(5) satisfies the requirements of 30 CFR 938.16(oo) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16
(oo)can be removed. 4. Required Amendment at 30 CFR 938.16 (pp): Bond Forfeiture Sites Where Reclamation Is Unreasonable, Unnecessary, or Impossible This required program amendment concerns bond forfeiture sites where reclamation is considered to be unreasonable, unnecessary, or impossible. The required program amendment codified in the Federal regulations at 30 CFR 938.16
(pp)requires that Pennsylvania delete 25 Pa. Code 86.190(a)(3). The amendment is required because this section allows the landowner of a bond forfeiture site to prevent reclamation, rendering 25 Pa. Code 86.190 less effective than the Federal regulations at 30 CFR 800.50(b)(2). While Title V of SMCRA, 30 U.S.C. 1251-1279, contains no specific provisions authorizing the regulatory authority to compel a recalcitrant landowner to allow reclamation, the Federal regulations at 30 CFR 800.50(b)(2) are quite explicit in requiring the regulatory authority to use funds collected from the bond forfeiture to complete the reclamation plan for that site, recalcitrant landowners notwithstanding. Therefore, paragraph 86.190(a)(3) was not approved in an October 24, 1991, rulemaking. See 56 FR 55085-55086. In response to this required amendment, Pennsylvania has deleted 25 Pa. Code 86.190(a)(3). We find that the deletion of 25 Pa. Code 86.190(a)(3) satisfies the requirements of 30 CFR 938.16(pp) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16
(pp)can be removed. 5. Required Amendment at 30 CFR 938.16 (qq): Bond Forfeiture Sites Where Reclamation Is Unreasonable, Unnecessary, or Impossible This required program amendment concerns bond forfeiture sites where reclamation is considered to be unreasonable, unnecessary, or impossible. The required program amendment codified in the Federal regulations at 30 CFR 938.16
(qq)requires that Pennsylvania delete the words “but are not limited to” from the introductory paragraph of 25 Pa. Code 86.190(a). The amendment was required because the introductory language of subsection
(a)of section 86.190 currently includes the words “but are not limited to,” which are used to refer to the reasons justifying a determination that reclamation under the reclamation plan is unreasonable, unnecessary or physically impossible. Any such reasons which are not specifically contained in section 86.190 were not approved. Currently, 25 Pa. Code 86.190(a) specifies parameters for determining when completion of the approved reclamation plan is unreasonable, unnecessary, or physically impossible. The reasons justifying such a determination include, but are not limited to the following:
(1)The site has been re-permitted and re-bonded for mining and reclamation is required as a condition of the permit;
(2)the site has been otherwise reclaimed;
(3)the landowner refused to allow the site to be reclaimed and the site is not a hazard to public health, safety, and welfare or adjacent property. Subsection 86.190(a) also provides that if the reclamation plan cannot be completed, the bond amount will be made available for expenditure to reclaim other lands or restore water supplies affected by other surface mining operations for which the Department has forfeited bonds. As we noted in an October 24, 1991, rulemaking notice, the introductory language of subsection
(a)of section 86.190, concerning the use of funds for other sites where reclamation of the forfeited site is unreasonable, unnecessary or physically impossible, mirrors the language of subsection (b), section 18, of PA SMCRA. See 56 FR 55085. This provision of Pennsylvania law was approved by the Secretary, as part of Pennsylvania's original permanent program approval. The reasons specified at section 86.190(a)(1), (a)(2), and (a)(3) for making a determination not to reclaim a site have not previously been approved by OSM. If as provided in paragraph
(1)of subsection (a), the site has been re-permitted and re-bonded for mining with full reclamation of the entire area made a permit condition, then forfeited bond money from the original permit is not needed for reclamation of the site. Likewise, as provided in paragraph (2), forfeited bond money is not needed to reclaim the site if it has been otherwise reclaimed, as long as such reclamation was performed in compliance with the reclamation plan and in accordance with the performance standards of the Pennsylvania program. Therefore, while there are no specific Federal counterparts to paragraphs
(1)and
(2)of subsection
(a)of section 86.190, we previously found that these provisions were not inconsistent with SMCRA and the Federal regulations and they were approved to the extent that full reclamation of the site in accordance with the reclamation plan and all applicable performance standards are required. The PADEP also amended § 86.190(a)(3) by deleting this section. See Finding 4. Because the basis for the Secretary's approval of 18(b) of PASMCRA had not changed, the Director approved the introductory paragraph of subsection 86.190
(a)in an October 24, 1991, rulemaking, except for the words “but are not limited to.” *Id.* In response to this required amendment, Pennsylvania has amended 25 Pa. Code 86.190(a) to delete the words “but are not limited to” to make clear that any reasons other than those specifically provided in 25 Pa. Code 86.190(a) are not permissible. We find that the amendment to 25 Pa. Code 86.190(a) satisfies the requirements of 30 CFR 938.16(qq) and can be approved. Therefore, the required program amendment codified in the Federal regulations at 30 CFR 938.16
(qq)can be removed. 6. Additional Change: 25 Pa Code 86.17(e)—Reclamation Fees Pennsylvania has amended this subsection to discontinue the collection of the $100 per acre reclamation fee from permittees under 25 Pa. Code 86.17(e). The reclamation fee is deposited in the Surface Mining Conservation and Reclamation Fund
(Fund)as a supplement to forfeited bonds and is used for reclaiming mining operations which have defaulted on their obligation to reclaim mined sites. Because issues regarding the Fund's solvency had become apparent, PADEP revised its bonding requirements and is now requiring all mine permits to post a full cost reclamation bond. The PADEP believes that because all of its permittees are now subject to full cost bonding requirements, there is no longer a basis for maintaining the supplement (the per acre fee). The issue of whether OSM acted within its discretion when it concluded that the Fund is no longer subject to the requirements of 30 CFR 800.11(e) is pending before the United States Court of Appeals for the Third Circuit in the matter of *Pennsylvania Federation of Sportsmen's Clubs* v. *Norton, (PFSC* v. *Norton* ) No. 06-1780. The outcome of this case could affect whether OSM may approve the proposed change to 25 Pa. Code 86.17(e). Therefore, in the interest of judicial economy, we are deferring our decision on this proposed change until final disposition of the *PFSC* v. *Norton* matter. 7. Additional Change: 25 Pa Code 86.187(a)(1)—Money Received From the Fees Pennsylvania has amended 25 Pa. Code 86.187(a)(1) to correct a typographical error. In paragraph (a)(1), reference was improperly made to 25 Pa. Code 86.17(b) (relating to permit and reclamation fees). The correct reference is to 25 Pa. Code 86.17(e). We find that the amended citation at 25 Pa. Code 86.187(a)(1) corrects a citation error and does not render the Pennsylvania program inconsistent with SMCRA or the Federal Regulations and can be approved. 8. Additional Change: 25 Pa Code 86.188(b)(5) and (c)(3)—Evaluation of Bond Forfeiture Sites Pennsylvania has amended 25 Pa. Code 86.188 by deleting 25 Pa. Code 86.188(b)(5) and 86.188(c)(3) in order to make it clear that bond forfeiture funds posted for and still needed to complete reclamation of the specific site for which the bonds were forfeited will not be used for reclamation of other sites until reclamation of the forfeited site has been completed. Currently, 25 Pa. Code 86.188(b) lists the categories in decreasing priority order to be used when the Department is considering bond forfeiture site reclamation. Subsection (b)(5) refers to “other sites which need reclamation.” Furthermore, section
(c)lists the factors that the Department will consider in selecting sites for reclamation under 25 Pa. Code 86.189(b)(1). Subsection (c)(3) considers the availability of funds to accomplish the required reclamation of the site or that portion of the site which is threatening life, health, safety, other property or the environment. As noted in an October 24, 1991, rulemaking notice, subsections
(b)and
(c)were not approved by OSM to the extent that they would allow bond forfeiture funds posted for and needed to complete reclamation of a specific site to be used for reclamation of other sites. See 56 FR at 55084. To the extent that these subsections provided only for a ranking of sites for reclamation without compromising the requirement that all sites for which bonds were posted be properly reclaimed, it was determined they were not inconsistent with section 509(a) of SMCRA and 30 CFR 800.50(b)(2) of the Federal regulations. The PADEP is addressing the concerns expressed in the October 24, 1991, rulemaking and is deleting the subsections (b)(5) and (c)(3) to remove any doubt that the PADEP intends to maintain adequate bonding to have funds available for completion of reclamation should the bonds be forfeited. We find that the amended regulations at 25 Pa. Code 86.188(b) and
(c)are not inconsistent with SMCRA or the Federal regulations and can be approved. 9. Additional Change: 25 Pa Code 86.283(c)—Reclamation Fees for Remining Areas Pennsylvania has amended 25 Pa. Code 86.283(c) to remove a reference to the per acre reclamation fee for remining areas for mine operators approved to participate in the financial guarantees program. PADEP has submitted this amendment to create consistency with the proposed amendment to 86.17(e) that would delete the per-acre reclamation fee requirement. See Finding 6 above. We are deferring our decision on the proposed amendment at 25 Pa. Code 86.283(c) for the same reason set forth above at Finding 6 in support of our deferral with respect to the proposed change at 86.17(e). IV. Summary and Disposition of Comments Public Comments We asked for public comments on the amendment (Administrative Record No. PA-793.17). We received comments from one organization, the Citizens for Pennsylvania's Future (PennFUTURE) (Administrative Record No. PA 793.18). PennFUTURE objected to the portion of the program amendment that would discontinue the collection of Pennsylvania's reclamation fee at 25 Pa. Code 86.17(e), and requested that we defer our decision on this proposed change until such time as the matter of *PFSC* v. *Norton* is decided by the United States Court of Appeals for the Third Circuit. As we noted above in Finding 6 above, we are deferring our decision with respect to the proposed amendment to 86.17(e), as well as on an ancillary proposed change at 86.283(c) (See Finding 9 above). Because we are deferring our decision, we will not respond to PennFUTURE's comments in opposition to these amendments in this rulemaking. Instead, we will respond to the comments in a future rulemaking, wherein we will decide whether or not to approve the proposed changes to 86.17(e) and 86.283(c). Federal Agency Comments Under Federal regulations at 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Pennsylvania program (Administrative Record No. PA 793.12). The Mine Safety and Health Administration (MSHA), District 1, responded (Administrative Record No. PA 793.13) and stated that it did not have any comments or concerns regarding this request. The Natural Resources Conservation Service responded (Administrative Record No. PA 793.14) and stated that it did not have any comments regarding this request. Environmental Protection Agency
(EPA)Concurrence and Comments Under Federal regulations at 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 *et seq.* ) or the Clean Air Act (42 U.S.C. 7401 *et seq.* ). None of the revisions that Pennsylvania proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. On June 6, 2006, we requested comments on the amendment from EPA (Administrative Record No. PA 793.15). The EPA, Region III, responded and stated that it did not identify any inconsistencies with the Clean Water Act or any other statutes or regulations under its jurisdiction. V. OSM's Decision Based on the above findings, we approve, with certain exceptions, the amendment Pennsylvania sent to us on May 23, 2006. We are removing the required program amendments codified in the Federal regulations at 30 CFR 938.16(mm), (nn), (oo), (pp), and
(qq)and approving two additional changes to the Pennsylvania program. We defer decision on two provisions regarding the reclamation fees at 25 Pa. Code 86.17(e) and 86.283(c). See Findings 6 and 9, respectively. To implement this decision, we are amending the Federal regulations at 30 CFR 938, which codify decisions concerning the Pennsylvania program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this regulation effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. VI. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by Section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, this rule meets the applicable standards of Subsections
(a)and
(b)of that Section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under Sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Government In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on federally recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal program involving Indian lands. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211, which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on proposed State regulatory program provisions does not constitute major Federal actions within the meaning of Section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(c)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State amendment that is the subject of this rule is based on counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million;
(b)Will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State, or local government agencies; and
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector. List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: February 23, 2007. H. Vann Weaver, Acting Regional Director, Appalachian Region. For the reasons set out in the preamble, 30 CFR part 938 is amended as set forth below: PART 938—PENNSYLVANIA 1. The authority citation for part 938 continues to read as follows: Authority: 30 U.S.C. 1201 *et seq.* 2. Section 938.15 is amended by adding a new entry in the table in chronological order by “Date of final publication” to read as follows: § 938.15 Approval of Pennsylvania regulatory program amendments. Original amendment submission date Date of final publication Citation/description * * * * * * * May 23, 2006 April 17, 2007 25 Pa. Code: 86.187(a)(1), (b), (c); 86.188(b)(5) [deleted]; 86.188(c)(3) [deleted]; 86.189(c)(2) through (c)(4) [deleted reference to (c)(5)], 86.189 (c)(5) [deleted]; 86.190
(a)[the words “but are not limited to” are deleted]; 86.190(a)(3) [deleted]. § 938.16 [Amended] 3. Section 938.16 is amended by removing and reserving paragraphs (mm), (nn), (oo), (pp), (qq). [FR Doc. E7-7227 Filed 4-16-07; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 070119012-7077-02; I.D. 031307B] RIN 0648-AU78 Pacific Albacore Tuna Fisheries; Vessel List to Establish Eligibility to Fish for Albacore Tuna in Canadian Waters Under the U.S. Canada Albacore Tuna Treaty AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to develop a new vessel list at the beginning of each calendar year of U.S. vessels eligible to fish for albacore tuna in Canadian waters. The vessel list would revert to zero vessels on December 31 of each year, unless NMFS receives a notice for a vessel to be added to the list for the upcoming year, with the requisite information. This regulation would clarify that the vessel list will remain valid for a single calendar year. Updating the list every year will facilitate the United States' obligation to annually provide Canada a current list of U. S. vessels that are likely to fish albacore off the coast of Canada. The proposed rule is adopted without change. DATES: This final rule will be effective May 17, 2007. ADDRESSES: You may submit requests to be placed on the annual list of U.S. vessels eligible to fish for albacore tuna in Canadian waters, by any of the following methods: • E-mail: *albacore.fish@noaa.gov* . • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. • Phone: (562)980-4024. • Fax:
(562)980-4047. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to NMFS Southwest Region and by e-mail to *David_Rostker@omb.eop.gov* , or fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Chris Fanning, Southwest Region, NMFS,
(562)980-4198 or
(562)980-4030. SUPPLEMENTARY INFORMATION: On February 7, 2007, NMFS published a proposed rule (72 FR 5652) proposing to revise the methodology to create a vessel list for vessels eligible to fish for albacore tuna in Canadian waters. The proposed rule is adopted without change. The 1981 Treaty Between the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges (Treaty), as amended in 2002, establishes a number of obligations for both countries to control reciprocal fishing in waters of one country by vessels of the other country. One obligation requires each country to annually provide to the other country a list of its fishing vessels that are expected to fish for Pacific albacore tuna off the coast of the other country during the upcoming fishing season, generally June through October each year. As described in the 2004 final rule implementing amendments to the Treaty (69 FR 31531, June 4, 2004), and codified at 50 CFR 300.172, the list must include vessel and owner name, address, and phone number; USCG documentation number (or state registration if not documented); vessel operator (if different from the owner) and his or her address with phone number. Each U.S. vessel must be on the list for at least 7 days prior to engaging in fishing under the Treaty. This is intended to ensure that both countries have equal information as to eligible vessels. Canadian and U.S. enforcement officers need up-to-date lists of eligible vessels to adequately enforce the Treaty. Vessel owners who wish their vessels to remain on, or be added to the vessel list must contact NMFS (see ADDRESSES ) and provide the required information. NMFS will notify fishermen via a confirmation letter or email of the date the request to be on the list was received and the date the vessel was placed on the list. Before the 2006 fishing season (June through October), NMFS did not require owners of albacore fishing vessels that wanted their vessels to be on the list of U. S. vessels eligible to fish for albacore tuna in Canadian waters under the Treaty, to contact NMFS. Instead, NMFS relied on a lengthy list created from information provided by the industry that was not readily verifiable and did not indicate whether each vessel owner actually wished to fish for albacore tuna in Canada for any given year. The result was that NMFS was not able to provide the Canadian Government an updated vessel list of vessels owners who intended to fish for albacore tuna in Canada for a particular fishing season. With this final rule, NMFS would amend 50 CFR 300.172 to state explicitly that the vessel list is effective for only one calender year and will be recompiled beginning on January 1 of each year. Additional vessels may be added to the list throughout the year in accordance with 50 CFR 300.172. Comments and Responses A proposed rule to implement this action was published on February 7, 2007, at 72 FR 5652 and comments were solicited through March 9, 2007. No comments or responses were received. Classification The Regional Administrator, NMFS Southwest Region, determined that this final rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 *et seq.* This final rule has been determined to be not significant for the purposes of Executive Order (E.O.) 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage (72 FR 5652) that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. This final rule for revising the methodology for developing the list of vessels eligible to fish for albacore tuna in Canadian waters under the U.S. Canada Albacore Tuna Treaty presents contains a collection-of-information requirement subject to the Paperwork Reduction Act
(PRA)that has been approved by OMB under control number 0648-0492. Public reporting burden for requesting to be placed on the list of vessels eligible to fish in Canadian waters is estimated to average 0.08 hours per vessel or about 5 minutes each, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov* , or fax to
(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. List of Subjects in 50 CFR Part 300 Fisheries, High seas fishing, International agreements, Permits, Reporting and recordkeeping requirements. Dated: April 11, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 300 is amended as follows: PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart L—Pacific Albacore Tuna Fisheries 1. The authority citation for part 300 subpart L continues to read as follows: Authority: Sec. 401, Pub. L. 108-219, 118 Stat. 616 (16 U.S.C. 1821 note). 2. Section 300.172 is revised to read as follows: § 300.172 Vessel list. The “vessel list” is the list of U.S. vessels that are authorized to fish under the Treaty as amended in 2002. Only a vessel on the list for at least 7 days may engage in fishing in Canadian waters under the Treaty as amended in 2002. The owner of any U.S. vessel that wishes to be eligible to fish for albacore tuna under the Treaty as amended in 2002 must provide the Regional Administrator or his designee with the vessel name, the owner's name and address, phone number where the owner can be reached, the USCG documentation number (or state registration number if not documented), and vessel operator (if different from the owner) and his or her address and phone number. On the date that NMFS receives a request that includes all the required information, NMFS will place the vessel on the annual vessel list. NMFS will notify fishermen by a confirmation letter or email of the date the vessel was placed on the list. Because the vessel list will revert to zero vessels on December 31 of each year, the required information must be provided in the manner specified on an annual basis. [FR Doc. E7-7293 Filed 4-16-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 070207026-7079-02; I.D. 012207A] RIN 0648-AS29 Fisheries in the Western Pacific; Optional Use of Electronic Logbook Forms AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: This final rule allows participants in U.S. domestic pelagics, crustaceans, bottomfish and seamount groundfish, precious corals, and coral reef ecosystems fisheries of the western Pacific region the optional use of NMFS-approved electronic logbook forms in lieu of paper logbooks. This action is intended to enhance the efficiency of fish catch and effort data reporting and recordkeeping by fishermen, reduce human error, and improve data accuracy. DATES: This final rule is effective May 17, 2007. ADDRESSES: Copies of the fishery management plans
(FMPs)and the regulatory amendment may be obtained from Kitty M. Simonds, Executive Director, Western Pacific Fishery Management Council (Council), 1164 Bishop Street, Suite 1400, Honolulu, HI 96813, or via the World Wide Web at *www.wpcouncil.org* . Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted to William L. Robinson, Regional Administrator, NMFS Pacific Islands Region (PIR), 1601 Kapiolani Blvd. Suite 1110, Honolulu, HI 96814, and by e-mail to David Rostker, *David_Rostker@omb.eop.gov* or fax to
(202)395-7285. FOR FURTHER INFORMATION CONTACT: Bob Harman, NMFS PIR,
(808)944-2271. SUPPLEMENTARY INFORMATION: Electronic Access This **Federal Register** document is also accessible via the World Wide Web at the Office of the **Federal Register** : *www.gpoaccess.gov/fr/index.html.* Background The NMFS Pacific Islands Region encompasses western Pacific Federal waters, i.e., the 200-nautical mile U.S. Exclusive Economic Zone (EEZ), around the Territories of Guam and American Samoa, the State of Hawaii, the Commonwealth of the Northern Mariana Islands, and other U.S. island possessions in the Pacific. Western Pacific fisheries are currently managed under five fishery management plans (FMPs)--Pelagics, Crustaceans, Bottomfish and Seamount Groundfish, Precious Corals, and Coral Reef Ecosystems. Current regulations (50 CFR 665.14) require permit holders, who fish for western Pacific management unit species and who are subject to Federal reporting requirements, to record their catch and effort information on paper logbook forms and submit them to NMFS. Maintaining paper logbook forms, and the interpretation of such forms, is subject to potential errors due to illegible handwriting and missed data entry. The availability and capacity of personal computers offer benefits to fishery participants and NMFS data collection programs. The optional use of electronic logbook data collection systems would utilize existing and emerging technologies to enhance the efficiency of fish catch and effort data reporting and recordkeeping by fishermen, reduce human error, and improve data accuracy. Furthermore, if transmitted through a remote communication system such as electronic mail or vessel monitoring system, electronic reporting provides a near real-time catch reporting system. At its 123rd meeting in June 2004, the Council took final action to recommend amending the western Pacific regulations to provide fishermen an alternative to the currently-required paper logbook forms. Specifically, fishermen would be allowed to submit logbook data to NMFS on removable non-paper media (such as diskette, CD-ROM, memory stick, etc.), and would also be allowed to transmit the data to NMFS via e-mail or other remote communication systems, where such remote transmission was appropriate and feasible. The option to use electronic logbook forms would be available to fishermen who are subject to Federal reporting requirements under all western Pacific FMPs, as well as those participants in fisheries that may become subject to Federal reporting requirements. This action does not establish the technical requirements or protocols for the electronic logbook program. It is, however, the initial step for program implementation. The technical and legal specifications and operational details for the electronic logbook software program and hardware requirements will be developed and published by NMFS subsequent to this final rule. Additional background information on this final rule may be found in the preamble to the proposed rule (72 FR 7853) published on February 21, 2007, and is not repeated here. Comments and Responses On February 21, 2007, NMFS published in the **Federal Register** a proposed rule (72 FR 7853). The comment public comment period ended on March 23, 2007. NMFS received two comments on the proposed rule as follows: *Comment 1:* Electronic logbooks offer a means of achieving greater efficiency and effectiveness in reporting fishery information. *Response:* NMFS notes further that electronic data reporting has the potential to greatly reduce errors and costs. *Comment 2:* Computer systems aboard fishing vessels are typically not designed for the rigors of use at sea. The effectiveness of an electronic logbook reporting program, therefore, is conditional to frequent power disruptions and unreliability of at-sea computer systems. *Response:* NMFS recognizes the problems associated with using computers at sea, and will consider reliability, operational conditions, and associated issues when developing the technical specifications for approved electronic reporting systems. The difficulties of employing computers for fisheries data reporting is a reason that NMFS is implementing this final rule as an optional alternative to paper logbooks, and paper logbooks will continue to be accepted. Changes to the Proposed Rule No changes to the proposed rule were made in this final rule. Classification The Regional Administrator, NMFS PIR, has determined that this regulatory amendment is necessary for the conservation and management of the affected fisheries and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification, or the economic impacts of the proposed rule. As a result, a regulatory flexibility analysis was not required and none was prepared. This final rule contains amendments to collection-of- information requirements subject to the Paperwork Reduction Act
(PRA)and which has been approved by the Office of Management and Budget
(OMB)under control number 0648-0214. The public reporting burden for this collection-of-information is estimated to average five minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information. Send comments regarding this burden estimate, or any other aspects of this data collection, including suggestions for reducing the burden, to William L. Robinson (see ADDRESSES ), or by email to *David_Rostker@omb.eop.gov* or fax to
(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number. List of Subjects in 50 CFR Part 665 Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaii, Hawaiian Natives, Northern Mariana Islands, Pacific Remote Island Areas, Reporting and recordkeeping requirements. Dated: April 11, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 665 is amended as follows: PART 665—FISHERIES IN THE WESTERN PACIFIC 1. The authority citation for part 665 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 665.14, revise paragraph
(a)to read as follows: § 665.14 Reporting and recordkeeping.
(a)*Fishing record forms* . The operator of any fishing vessel subject to the requirements of §§ 665.21, 665.41, 665.61(a)(4), 665.81, or 665.602 must maintain on board the vessel an accurate and complete record of catch, effort, and other data on paper report forms provided by the Regional Administrator, or electronically as specified and approved by the Regional Administrator. All information specified by the Regional Administrator must be recorded on paper or electronically within 24 hours after the completion of each fishing day. The logbook information, reported on paper or electronically, for each day of the fishing trip must be signed and dated or otherwise authenticated by the vessel operator in the manner determined by the Regional Administrator, and be submitted or transmitted via an approved method as specified by the Regional Administrator, and as required by this paragraph (a). The operator of any vessel subject to the requirements of §§ 665.21, 665.41, 665.61(a)(4), or 665.81 must submit the original logbook information for each day of the fishing trip to the Regional Administrator within 72 hours of each landing of management unit species, unless the fishing was authorized under a PRIA troll and handline permit, a PRIA crustaceans fishing permit, a PRIA bottomfish permit, or a PRIA precious corals fishing permit, in which case the original logbook form for each day of fishing within the PRIA EEZ waters must be submitted to the Regional Administrator within 30 days of each landing of management unit species. For fisheries managed under § 665.602, the original logbook information for each day of the fishing trip must be submitted to the Regional Administrator within 30 days of each landing of management unit species. [FR Doc. E7-7291 Filed 4-16-07; 8:45 am] BILLING CODE 3510-22-S 72 73 Tuesday, April 17, 2007 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 9501 RIN 3206-AL02 Office of Personnel Management Criteria for Internal Revenue Service Broadbanding Systems AGENCY: Office of Personnel Management. ACTION: Proposed rule with request for comments. SUMMARY: The Office of Personnel Management
(OPM)is issuing proposed regulations to revise the criteria for Internal Revenue Service
(IRS)broadbanding systems. The proposed regulations would provide the Department of the Treasury with the flexibility, in coordination with OPM, to establish broader bands for covered IRS employees. The proposed regulations also would establish a more direct relationship between pay and performance. Finally, the proposed regulations would revise the criteria consistent with the changes in the General Schedule pay administration rules made by the Federal Workforce Flexibility Act of 2004 and OPM implementing regulations. DATES: Comments must be received on or before June 18, 2007. ADDRESSES: Send or deliver written comments to Jerry Mikowicz, Deputy Associate Director for Pay and Leave Administration, Strategic Human Resources Policy Division, Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 20415-8200; by fax at
(202)606-0824; or by e-mail at *pay-performance-policy@opm.gov* . FOR FURTHER INFORMATION CONTACT: Jeanne Jacobson, by telephone at
(202)606-2858; by fax at
(202)606-0824; or by e-mail at *pay-performance-policy@opm.gov* . SUPPLEMENTARY INFORMATION: The Office of Personnel Management
(OPM)is issuing proposed regulations to revise the criteria for Internal Revenue Service
(IRS)broadbanding systems. Under 5 U.S.C. 9509, the Secretary of the Treasury may establish one or more broadbanding systems covering all or any portion of the IRS workforce under the General Schedule (GS). Note that under 5 U.S.C. 9501(c), employees within a unit to which a labor organization is accorded exclusive recognition under 5 U.S.C. chapter 71 will not be subject to the broadbanding flexibility provided by § 9509 unless the exclusive representative and IRS have entered into a written agreement that specifically provides for the exercise of the broadbanding flexibility. Section 9509(b) of title 5, United States Code, directs OPM to prescribe criteria for IRS broadbanding systems and specifies certain principles that such criteria must follow, at a minimum. OPM published the final criteria as a notice in the **Federal Register** on December 19, 2000 (65 FR 79433). We propose to issue these criteria as regulations in 5 CFR part 9501 with the revisions discussed in this Supplementary Information. Under 5 U.S.C. 9508, the Secretary of the Treasury must develop a performance management system for the IRS. These criteria include the definition of certain performance appraisal terms consistent with the concepts and terminology found in 5 U.S.C. 9508. Any performance management system that supports broadbanding must include the concepts defined by these terms. However, in its operating instructions, the IRS may continue to use current terminology that captures these concepts or apply these definitions to currently used terms if it determines that such an approach is the most effective for employee understanding and acceptance. The supplemental information explaining the criteria contains language describing the relevant application of these concepts and terms as currently used by IRS, where applicable. Maximum Number of Grades in a Band We are proposing to revise the criteria to provide the Department of the Treasury additional flexibility in combining GS grades into bands under IRS broadbanding systems. Section 9501.203(a) of the proposed regulations (section V.B. of the current criteria) provides the minimum and maximum number of GS grades that may be combined into bands. In § 9501.203(b), we propose to allow the Department of the Treasury, after coordination with OPM, to establish one or more bands that encompass grades not otherwise permitted by § 9501.203(a). In addition, we propose to add a new provision in § 9501.203(c) to require each IRS broadbanding system to include at least one band that combines two or more General Schedule grades, consistent with the definition of “broadbanded system” in 5 U.S.C. 9509(a). We have also amended the definition of *broadbanding system* in § 9501.104 to provide that all positions covered by the regulations are considered to be in a single broadbanding system unless the Department of the Treasury determines that a separate system is needed for supervisors and managerial employees (as authorized in § 9501.206(a)). Within-Band Pay Adjustments The proposed regulations at § 9501.205 revise the criteria currently found in section V.D. concerning within-band pay adjustments. This section includes some minor wording changes for clarity, consistency, and regulatory formatting. As discussed further, the other changes in the criteria for within-band adjustments are intended primarily to establish a more direct relationship between pay and performance. Section 9501.205(f)(1) of the proposed regulations requires IRS to use performance assessments derived under a performance appraisal system established under 5 U.S.C. 9508 (i.e., ratings of record as currently applied by IRS) as a basis for within-band pay increases. This paragraph provides that IRS policies for granting within-band pay increases on the basis of a positive assessment must provide for pay distinctions based on levels of performance and requires that a positive assessment in the IRS performance appraisal system supporting the broadbanding system must have two or more summary rating levels that represent performance equivalent to fully successful or better (i.e., a rating of record of “Fully Successful” or higher level as currently applied by IRS). In § 9501.104, we have added a definition of *positive assessment* to mean a summary performance assessment documenting that employee performance is the equivalent of fully successful or better (i.e., a rating of record of “Fully Successful” or higher as currently applied by IRS). In addition, we have added a definition of negative assessment to mean a summary performance assessment documenting that employee performance is less than the equivalent of fully successful (i.e., a rating of record of “Minimally Successful” or “Unacceptable” as currently applied by IRS). Furthermore, for clarification and ease of reference, we have included definitions for *performance assessment* and *unacceptable performance* . The proposed regulations at § 9501.205(f)(6) allow IRS to establish a separate pay progression plan and separate salary increase budget for entry/developmental employees in recognition of the fact that pay progression for entry/developmental employees is often designed to be more rapid (as with GS entry/developmental employees who are in career ladders and receive regular promotions providing sizable pay increases typically each year). Because of this additional flexibility, the proposed regulations at § 9501.401 require that, if IRS provides prorated career-ladder promotion payments to a group of employees converted to entry/developmental positions covered by a separate pay progression plan, the first salary increase budget for these entry/developmental employees following conversion must be determined after taking into account the length of time between the prorated promotion payments and the first performance-based payments under the IRS broadbanding system. Generally, the normal salary increase budget for entry/developmental employees should be reduced if that length of time is less than 52 weeks. Similarly, if an individual employee enters the broadbanding system by transfer or reassignment from another Federal position and receives a prorated within-grade increase or career-ladder promotion payment at conversion, the employee's first performance-based payment under the IRS broadbanding system may be reduced, as allowed under § 9501.205(f)(8) and discussed below. Section 9501.205(f)(8) provides IRS with the flexibility to reduce an employee's performance-based within-band increase from that generally provided under the pay progression plan when, for example, an employee enters the broadbanding system during the appraisal period that is the basis for the within-band increase, an employee was in a leave without pay status during the appraisal period (except for employees with restoration rights under 5 CFR part 353), or an employee entered the broadbanding system and received a prorated within-grade increase or career-ladder promotion payment less than 52 weeks before the performance-based within-band increase. The proposed regulations provide IRS additional flexibility to grant within-band pay increases. For example, § 9501.205(f)(7) allows IRS to take into account an employee's position in the rate range in determining within-band pay increases. Section 9501.205(f)(5) continues to allow IRS to use other individual factors to provide within-band pay increases, such as the acceptance of a supervisory position within the same band. However, § 9501.205(f)(2) continues to prohibit within-band pay increases based solely on time at pay level. Section 9501.205(g) allows IRS to provide general pay increases to specified categories of employees with current positive assessments when band rate ranges are adjusted under § 9501.204. We added a definition of *general pay increase* to § 9501.104 to help clarify that general pay increases for employees under IRS broadbanding systems are different from General Schedule across-the-board increases under 5 U.S.C. 5303. Such general pay increases may be paid in combination with performance-based pay increases under § 9501.205(f). The amount of such pay increases may be any percentage amount up to the percentage amount by which band rate ranges are adjusted. IRS may authorize different general pay increases for different employee categories. However, if IRS provides an increase that is less than the band rate range adjustment, the resulting unused funds must be redirected and applied to performance-based pay increases. The proposed regulations also provide IRS the flexibility to forgo paying any general pay increase and to use performance-based pay increases exclusively. Under § 9501.205(f)(4), the pay of an employee with a positive assessment must not fall below the minimum rate of a band as a result of receiving a pay increase that is less than the band rate range increase. Section 9501.205(h) prohibits IRS from providing any kind of pay increase (including a locality pay increase or a staffing supplement increase) to an employee with a negative assessment, even if it were to cause the employee to fall below the band minimum rate. This section requires IRS to establish procedures for dealing with employees who do not receive a performance-based pay increase, a general pay increase, or other pay increase because of a negative assessment. Such procedures may allow an employee who later receives a positive assessment to receive such increases prospectively. Section 9501.205(h) prescribes procedures for dealing with employees who do not receive a locality pay increase because of a negative assessment. The locality payment for such an employee must be frozen at its existing level. The regulations include provisions for adjusting a frozen locality payment when an employee moves to a new locality pay area and when an employee subsequently receives a positive assessment. The regulations include similar rules for employees receiving a frozen staffing factor under the staffing supplement provisions at § 9501.304(b). Section 9501.205(i) provides the requirements for adjusting the pay of a retained rate employee, consistent with the proposed criteria in other paragraphs of § 9501.205. IRS must provide a retained rate employee a pay increase equal to 50 percent of the dollar increase in the maximum rate of the applicable band (including any locality payment or staffing supplement). A retained rate employee with a negative assessment may not receive a pay increase. This is a variation of the pay retention rules in 5 U.S.C. 5363, as authorized by 5 U.S.C. 9509(c). Finally, § 9501.205(j) provides that within-band pay reductions authorized on the basis of unacceptable performance and/or conduct may not exceed 10 percent or cause an employee's rate of pay to fall below the minimum rate of his or her band. An employee's rate of pay may not be reduced more than once in a 12-month period based on unacceptable performance and/or conduct. Pay Administration Changes The proposed regulations contain changes in the IRS broadbanding criteria consistent with the changes in the GS pay administration rules made by sections 101 and 301 of the Federal Workforce Flexibility Act of 2004 (Public Law 108-411, October 30, 2004) and OPM implementing regulations. Section 101 of the Federal Workforce Flexibility Act of 2004 amended 5 U.S.C. 5753 and 5754 by providing a new authority to make recruitment, relocation, and retention incentive payments. OPM issued interim regulations to implement the new authority on May 13, 2005 (70 FR 25732). We propose to amend the criteria for IRS broadbanding systems to reflect the new terms “recruitment, relocation, and retention incentives,” as used in the interim regulations. The remaining proposed revisions in the criteria are a result of amendments made by section 301 of the Act and implementing regulations. Section 301 of the Federal Workforce Flexibility Act of 2004 amended provisions in 5 U.S.C. chapter 53 relating to the administration of special rates, locality rates, and retained rates. These statutory amendments became effective on the first day of the first pay period beginning on or after April 28, 2005—i.e., May 1, 2005. OPM issued interim regulations to implement the amendments and revise the rules that govern pay setting for Federal employees covered by the GS pay system on May 31, 2005 (70 FR 31278). We are proposing to revise the criteria for IRS broadbanding systems to be consistent with the Federal Workforce Flexibility Act of 2004 amendments because 5 U.S.C. 9509(b)(3) provides that “except as otherwise provided under this section, employees under a broad-banded system shall continue to be subject to the law and regulations covering employees under the pay system that otherwise would apply to such employees.” That is, employees are to be treated as GS employees, except as otherwise provided by 5 U.S.C. 9509. For example, section V.G. of the current criteria, proposed in § 9501.208, states that the provisions in the criteria related to grade and pay retention are based on the current grade and pay retention authority in 5 U.S.C. chapter 53, subchapter VI, and 5 CFR part 536. Section 301 of the Federal Workforce Flexibility Act of 2004 amended 5 U.S.C. 5302 so that locality payments under 5 U.S.C. 5304 are no longer paid on top of a retained rate. Rather, an employee's pay retention entitlement is derived by comparing an employee's payable (highest) rate of basic pay (including any locality rate or special rate) to the highest applicable rate range (including a locality rate or special rate range) for the employee's current position. Consistent with this change, we are proposing to revise the procedures for converting the pay of an employee to a retained rate under an IRS broadbanding system in § 9501.401 (Appendix B of the current criteria). We are also proposing to revise the procedures for determining the converted GS-equivalent pay rate for an employee who is retaining a band or pay rate under an IRS broadbanding system in § 9501.402 (Appendix C of the current criteria), consistent with the changes in the GS pay retention rules. The Federal Workforce Flexibility Act of 2004 also amended 5 U.S.C. 5303 so that an employee is not entitled to a special rate if he or she is entitled to a higher rate of basic pay under another authority (e.g., a locality rate or retained rate). We are proposing to delete a reference in the current Appendix C to a situation where an employee who is entitled to a higher locality rate of pay also is entitled to a special rate. We are also proposing to revise terminology throughout the criteria to be consistent with new terminology in the interim regulations implementing the Federal Workforce Flexibility Act of 2004. Publishing the Criteria in Regulations The IRS broadbanding criteria were originally published in the **Federal Register** as a notice with three appendices. Since that time, significant developments have occurred to establish agency-specific personnel systems in regulations (e.g., the Department of Homeland Security Human Resources Management System in 5 CFR Chapter XCVII and part 9701 and the Department of Defense Human Resources Management and Labor Relations Systems in 5 CFR chapter XCIX and part 9901). Consequently, OPM proposes to pursue the option of organizing and establishing the criteria for the Internal Revenue Service broadbanding systems and related appendices as four subparts in a new 5 CFR chapter XCV and part 9501.. Subpart A of the proposed regulations provides the purpose and the general provisions governing the IRS broadbanding system and defines terms that are used throughout the new part 9501. Subpart A also clarifies the relationship of the regulations in part 9501 to other provisions of law and regulations. Subpart B of the proposed regulations provides the criteria for the IRS broadbanding system. The criteria follow the principles outlined in 5 U.S.C. 9509(b)(4)(A)-(F). Subpart C consists of the former Appendix A, but we are proposing to delete the formulas in the current Appendix A because the rules the formulas express are adequately described in proposed § 9501.303(a). Subpart D consists of the current Appendices B and C. We have also taken this opportunity to make other minor clarifications and formatting changes. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees. List of Subjects in 5 CFR Part 9501 Administrative practice and procedure, Government employees, Wages. Office of Personnel Management. Linda M. Springer, Director. Accordingly, under the authority of section 9509 of title 5, United States Code, OPM is proposing to amend title 5, Code of Federal Regulations, by establishing chapter XCV consisting of part 9501, as follows: CHAPTER XCV—OFFICE OF PERSONNEL MANAGEMENT CRITERIA FOR INTERNAL REVENUE SERVICE BROADBANDING SYSTEMS PART 9501—OFFICE OF PERSONNEL MANAGEMENT CRITERIA FOR INTERNAL REVENUE SERVICE BROADBANDING SYSTEMS Subpart A—General Provisions Sec. 9501.101 Authority. 9501.102 Applicability. 9501.103 Broadbanding system plan. 9501.104 Definitions. Subpart B—Broadbanding Criteria 9501.201 General. 9501.202 Structure of broadbanding systems. 9501.203 Minimum and maximum number of grades in a band. 9501.204 Setting minimum and maximum rates of pay in a band. 9501.205 Adjusting an employee's pay within a band. 9501.206 Setting the pay of a supervisor. 9501.207 Setting the pay of an employee. 9501.208 Related provisions. Subpart C—Staffing Supplements 9501.301 Authority. 9501.302 Eligibility. 9501.303 Conversion to staffing supplement. 9501.304 Administration of staffing supplements. 9501.305 Treatment of staffing supplements as basic pay. 9501.306 New staffing supplements. Subpart D—Conversion Rules 9501.401 Conversion into broadbanding systems. 9501.402 Conversion to the General Schedule pay system. Authority: 5 U.S.C. 9509(b). Subpart A—General Provisions § 9501.101 Authority. This part contains regulations providing the criteria for Internal Revenue Service
(IRS)broadbanding systems, as authorized by 5 U.S.C. 9509(b). Section 9509 of title 5, United States Code, as added by the IRS Restructuring and Reform Act of 1998 (Pub. L. 105-206), provides the Secretary of the Treasury the authority to establish one or more broadbanding systems covering all or any portion of the IRS workforce under the General Schedule (GS). Section 9509(b) of title 5, United States Code, directs the Office of Personnel Management
(OPM)to prescribe criteria for IRS broadbanding systems and specifies certain principles that such criteria must follow, at a minimum. § 9501.102 Applicability.
(a)A *broad-banded system* is defined in 5 U.S.C. 9509(a) as a system for grouping positions for pay, job evaluation, and other purposes that is different from the General Schedule pay and classification system established under 5 U.S.C. chapter 51 and chapter 53, subchapter III. Employees covered by IRS broadbanding systems are not covered by subchapter III of chapter 53 or by those provisions of chapter 51 that define General Schedule grades. However, selected provisions from those parts of law are used in applying parallel features to employees in IRS broadbanding systems, as provided in this part. (b)(1) As required by 5 U.S.C. 9509(b)(3), employees covered by IRS broadbanding systems are to be treated as if they are General Schedule employees for the purpose of applying other laws and regulations governing General Schedule employees, except as otherwise provided in this part. Applicable laws and regulations include, but are not limited to 5 U.S.C. 5304, authorizing locality-based comparability payments (except as provided in § 9501.205(h)); 5 U.S.C. chapter 53, subchapter VI, authorizing grade and pay retention (except as otherwise provided in this part); and 5 U.S.C. 5753 and 5754, authorizing recruitment, relocation, and retention incentives. (Many title 5 provisions apply to Federal employees on a more general basis and do not base coverage on whether an employee is covered by the General Schedule system—e.g., aggregate pay limitation under 5 U.S.C. 5307; premium pay under 5 U.S.C. chapter 55, subchapter V; severance pay under 5 U.S.C. 5595; leave under 5 U.S.C. chapter 63; retirement under 5 U.S.C. chapters 83 and 84; and insurance under 5 U.S.C. chapter 87.)
(2)Employees in IRS broadbanding systems are not covered by the special rate program established under 5 U.S.C. 5305. However, IRS broadbanding systems may use a parallel authority to establish staffing supplements, which are linked to established special rates as described in subpart C of this part.
(c)The criteria in this part apply only to broadbanding systems that cover General Schedule positions. Section 9509(b)(1)(B) of title 5, United States Code, authorizes the Secretary of the Treasury, with the prior approval of the Director of OPM, to include in a broadbanding system positions that otherwise would be subject to 5 U.S.C. chapter 53, subchapter IV (prevailing rate systems), or 5 U.S.C. 5376 (senior-level positions). Including such positions requires OPM's separate review and approval of a specific plan for that purpose. The criteria in this part do not apply to broadbanding systems that include such positions. § 9501.103 Broadbanding system plan. Before implementing any broadbanding system under this part, IRS must develop a written plan that includes policies and implementing procedures to address each criterion relevant to the broadbanding system, including descriptions of broadbanding structure(s), positions covered, classification criteria, the method of pay progression within a band, policies for setting and adjusting pay, policies for paying supervisors or managerial employees, and policies for converting positions into broadbanding systems. § 9501.104 Definitions. In this part: *Band* means a pay level or work level within a career path containing one or more General Schedule grades and related ranges of pay. *Broadbanding system* means a system for grouping positions for pay, job evaluation, and other purposes that is different from the General Schedule system established under 5 U.S.C. chapter 51 and chapter 53, subchapter III, as a result of combining the grades and related ranges of pay for one or more occupational series. All positions covered by this part are considered to be in a single broadbanding system unless the Department of the Treasury determines that a separate system is needed for supervisors and managerial employees (as authorized in § 9501.206(a)). *Career path* means a grouping of one or more occupational series into broad occupational families or career tracks for job evaluation, pay, or other purposes. A career path may contain one or more bands. *Employee* means an individual who otherwise would be covered by 5 U.S.C. chapter 51 and chapter 53, subchapter III, if not covered by a broadbanding system. *General pay increase* means a pay increase IRS may provide to specified categories of employees when the minimum and maximum rates of pay for band rate ranges are adjusted under § 9501.204. *Managerial* has the meaning given that term in OPM's General Schedule Supervisory Guide. *Negative assessment* means a summary performance assessment consistent with 5 U.S.C. 9508 prepared at the end of the established period covering an employee's performance over the applicable period or to support a pay determination, including one granted in accordance with § 9501.205, and documenting that the employee's performance is less than the equivalent of fully successful. *Performance assessment* has the meaning given that term in 5 U.S.C. 9508(b)(1). *Positive assessment* means a summary performance assessment consistent with 5 U.S.C. 9508 prepared at the end of the established period covering an employee's performance over the applicable period or to support a pay determination, including one granted in accordance with § 9501.205, and documenting that the employee's performance is the equivalent of fully successful or better. Positive assessments must include a minimum of two levels of distinction and may include more than two. *Supervisor* has the meaning given that term in OPM's General Schedule Supervisory Guide. *Unacceptable performance* has the meaning given that term in 5 U.S.C. 9508(b)(2). Subpart B—Broadbanding Criteria § 9501.201 General. Under 5 U.S.C. 9509(b)(3), the criteria for IRS broadbanding systems in this subpart must—
(a)Ensure that the structure of any broadbanding system maintains the principle of equal pay for substantially equal work (see § 9501.202);
(b)Establish the minimum and maximum number of grades that may be combined into bands (see § 9501.203);
(c)Establish the requirements for setting the minimum and maximum rates of pay in a band (see § 9501.204);
(d)Establish the requirements for adjusting the pay of an employee within a band (see § 9501.205);
(e)Establish the requirements for setting the pay of a supervisory employee whose position is in a band or who supervises employees whose positions are in bands (see § 9501.206); and
(f)Establish the requirements and methodologies for setting the pay of an employee upon conversion to a broadbanding system, initial appointment, change of position or type of appointment (including promotion, demotion, transfer, reassignment, reinstatement, placement in another broad band, or movement to a different geographic location), and movement between a broadbanding system and another pay system (see § 9501.207). § 9501.202 Structure of broadbanding systems.
(a)IRS broadbanding systems must—
(1)Link to the General Schedule;
(2)Assign occupations to career paths based on the nature of work performed, the qualifications required, the normal career and pay progression, and other characteristics of those occupations;
(3)Combine General Schedule grades into bands following the criteria in paragraph
(b)of this section and § 9501.203;
(4)Place positions into bands within career paths in accordance with—
(i)Classification standards published by OPM under 5 U.S.C. 5105; or
(ii)Any agency guidance that places a position within its correct band and career path (but which need not be sufficient to determine a position's correct General Schedule grade);
(5)Not include law enforcement officers covered by special base rates under section 403 of the Federal Employees Pay Comparability Act of 1990 (section 529 of Public Law 101-509, November 5, 1990, as amended) in the same band as non-law enforcement officers when the maximum grade in the band is any one of grades 3 through 10; and
(6)Use established General Schedule rates of pay (including any applicable locality rates or special rates) for premium pay purposes under 5 U.S.C. chapter 55, subchapter V, and 5 CFR part 550, subpart A (i.e., for the purpose of determining the maximum hourly overtime rate and the biweekly premium pay limitation).
(b)The range of difficulty and responsibility of each band must be the same as the range of difficulty and responsibility of the band's constituent grades (i.e., consistent with the grade level criteria in standards published by OPM in accordance with 5 U.S.C. 5105) and must represent the normal range of work performed in the organization. § 9501.203 Minimum and maximum number of grades in a band.
(a)Except as provided in paragraphs
(b)and
(c)of this section, a band under an IRS broadbanding system must contain—
(1)At least one General Schedule grade; and
(2)Not more than—
(i)Eight General Schedule grades when grades 13, 14, and 15 are not included in the band;
(ii)Five General Schedule grades when grade 13 is included, but neither grade 14 nor 15 is included in the band;
(iii)Three General Schedule grades when grade 14 is included, but grade 15 is not included in the band; and
(iv)Two General Schedule grades when grade 15 is included in the band. (b)(1) The Department of the Treasury may, after coordination with OPM (as defined in paragraph (b)(2) of this section), approve the establishment of one or more bands containing General Schedule grades not otherwise permitted under paragraph
(a)of this section.
(2)For the purpose of applying paragraph (b)(1) of this section, coordination with OPM means the process by which the Department of the Treasury, after appropriate staff-level consultation, officially provides OPM with notice of a proposed band and its intended effective date. If OPM concurs, or does not respond to that notice within 30 calendar days, the Department of the Treasury may proceed to establish the proposed band. However, in the event that OPM objects to the combination of grades that would be grouped together in a proposed band, the Department of the Treasury may not proceed until the matter is resolved. OPM may condition its concurrence on the establishment of appropriate within-band control points, as provided in § 9501.205(d).
(c)Each IRS broadbanding system must include at least one band that combines two or more General Schedule grades subject to the limits in paragraph (a)(2) of this section. § 9501.204 Setting minimum and maximum rates of pay in a band. (a)(1) The minimum rate of pay for each band must equal the minimum rate of pay payable under 5 U.S.C. 5332 for the lowest General Schedule grade in that band. The maximum rate of pay for each band must equal the maximum rate of pay payable under 5 U.S.C. 5332 for the highest General Schedule grade in that band. Unless otherwise stated in this part, references in this part to the *minimum rate of pay* or *maximum rate of pay* for a band exclude any applicable locality payment or staffing supplement.
(2)Notwithstanding paragraph (a)(1) of this section, the minimum rates of pay and the maximum rates of pay for bands covering law enforcement officers must equal the minimum and maximum special base rates for grades 3 through 10 established under section 403 of the Federal Employees Pay Comparability Act of 1990, as applicable.
(3)The maximum rate of pay for any band may not exceed the maximum rate of pay for grade 15 under 5 U.S.C. 5332.
(b)The minimum rate of pay and maximum rate of pay that define each band must be adjusted at the same time and in the same manner as adjustments are made in the corresponding minimum and maximum General Schedule rates of pay under 5 U.S.C. 5303 or similar provision of law.
(c)Employees in IRS broadbanding systems are not covered by the special rate authority in 5 U.S.C. 5305. However, IRS broadbanding systems may provide for the use of staffing supplements instead of special rates under subpart C of this part. If special rates are not replaced with staffing supplements, special rate employees must be converted into a broadbanding system under the procedures established in subpart D of this part.
(d)Only employees receiving retained rates of pay under 5 U.S.C. chapter 53, subchapter VI, as applied in the broadbanding system, may receive rates of pay that exceed the locality-adjusted or staffing supplement-adjusted band maximum rates.
(e)Only employees who fail to receive a pay increase under § 9501.205(h) may receive rates of pay that are less than the band minimum rate of pay (as a result of the rate range adjustment made under paragraph
(b)of this section). § 9501.205 Adjusting an employee's pay within a band.
(a)IRS broadbanding systems must establish policies providing for pay adjustments within a band consistent with the requirements of this section.
(b)IRS must establish policies concerning which level of management will make pay adjustment decisions for employees.
(c)IRS must establish principles for managing pay progression and payroll costs associated with pay adjustments and provide funding for salary increases under its broadbanding systems. Because broadbanding systems provide more choices on how to distribute pay to employees, IRS must have an overall budget to manage the costs associated with such choices. At a minimum, the salary increase budget must include funds approximately equal to the amounts that would be required for individual pay adjustments made at the time of schedule adjustments under 5 U.S.C. 5303 (or similar provision of law), locality-based comparability payments under 5 U.S.C. 5304, and staffing supplement adjustments under subpart C of this part, as applicable. A salary increase budget must meet salary cost objectives and be consistent with policies and procedures for adjusting pay under a broadbanding system that are established to ensure equal pay for work of equal value, as required by 5 U.S.C. 2301(b)(3).
(d)IRS may use control points within bands. Control points are dollar points within bands that limit or restrict the movement of employees through the rate range of the band. They may be expressed as a percentage of the rate range or as a percentage of the range maximum rate of pay. If control points are used, IRS broadbanding systems must include policies governing the establishment of control points within bands including the circumstances under which an employee's rate of pay may be set or adjusted above a control point.
(e)IRS must provide for locality payments as if its employees were General Schedule employees covered by 5 U.S.C. 5304 and 5 CFR part 531, subpart F, except as provided by paragraph
(h)of this section. (See subpart C of this part for information on possible staffing supplements.)
(f)IRS must establish policies for providing performance-based within-band pay increases to employees consistent with the criteria in this section, including the following:
(1)IRS must use employee performance assessments as a basis for within-band pay increases for employees. IRS policies for granting within-band pay increases on the basis of a positive assessment must provide for pay distinctions based on levels of performance. The IRS performance appraisal system supporting the IRS broadbanding system must have two or more summary rating levels that represent performance equivalent to fully successful or better.
(2)Within-band pay increases may not be based solely on time at pay level.
(3)As required by paragraph
(h)of this section, an employee with a current negative assessment may not receive a pay increase under this paragraph.
(4)The rate of pay of an employee with a current positive assessment may not fall below the band minimum rate of pay.
(5)IRS may also use other individual factors to provide additional within-band pay increases, such as the acceptance of a supervisory position within the same band.
(6)IRS may cover entry/developmental employees under a different pay progression plan than that which is applicable to employees at the full performance (journey) level. IRS may establish a tailored salary increase budget for entry/developmental employees who are covered by a separate pay progression plan.
(7)IRS policies may take into account an employee's position in the rate range in determining the amount of a within-band pay increase.
(8)IRS policies may provide for proration of an employee's performance-based within-band increase ( *i.e.* , reduction from the amount generally provided under the pay progression plan) in specified appropriate circumstances, such as—
(i)An employee entered the broadbanding system during the appraisal period that is the basis for the within-band increase;
(ii)An employee was in leave-without-pay status during the appraisal period that is the basis for the within-band increase (except for employees covered by 5 CFR part 353); or
(iii)An employee entered the broadbanding system and received a prorated within-grade increase or career-ladder promotion payment under § 9501.401(b) less than 52 weeks before the within-band increase.
(g)IRS may provide general pay increases for specified categories of employees when the minimum and maximum rates of pay for band rate ranges are adjusted under § 9501.204, consistent with the following criteria:
(1)As provided in paragraph
(h)of this section, an employee with a current negative assessment may not receive a pay increase under this paragraph.
(2)A pay increase under this paragraph may be used in combination with performance-based pay increases under paragraph (f)(1) of this section. Alternatively, IRS may exclusively use performance-based pay increases under paragraph (f)(1) of this section and not grant general pay increases under this paragraph.
(3)The amount of a pay increase under this paragraph for a specified category of employees may be any percentage amount up to the percentage amount by which band rate ranges are adjusted under § 9501.204. IRS may authorize different pay increases under this paragraph for different employee categories. If IRS provides an increase under this paragraph that is less than the band rate range adjustment, the resulting unused funds must be redirected and applied to performance-based pay increases under paragraph
(f)of this section.
(h)Except as provided in paragraph (h)(2) of this section and § 9501.304(b)(1), IRS may not provide any kind of pay increase to any employee who has a current negative assessment, even if this causes the employee's rate of pay to fall below the minimum rate of pay of the employee's band because of a simultaneous rate range adjustment. In addition, IRS may not allow such an employee to receive a pay increase as a result of a higher locality pay percentage (as described in paragraph
(e)of this section). The locality pay percentage for that employee must be frozen at its existing level. IRS must apply the following rules for employees who do not receive pay increases under this paragraph:
(1)IRS must establish procedures for dealing with employees described in this paragraph who do not receive a pay increase under paragraphs
(f)and/or
(g)of this section because of a negative assessment. Those procedures may allow an employee who later receives a positive assessment to receive a pay increase. However, any such increase may not be retroactive and may not exceed the pay increase the employee would have received if the employee had a positive assessment at the time pay increases under paragraphs
(f)and/or
(g)of this section were determined.
(2)For an employee receiving a frozen locality payment because of a negative assessment, if such an employee moves to a new official worksite in a different locality pay area, the employee must receive the locality payment applicable in the new locality pay area as in effect on the day before the locality rate was frozen. See § 9501.304(b)(1) if the employee's position of record is covered by a staffing supplement at the new official worksite.
(3)If an employee receiving a frozen locality payment because of a negative assessment subsequently receives a positive assessment, the employee will become entitled to the currently applicable locality payment on the first day of the first pay period beginning on or after the date when he or she receives a positive assessment. See § 9501.304(b)(2) if the employee's position of record is covered by a staffing supplement when he or she receives a positive assessment.
(i)IRS policies on adjusting a retained rate for employees on pay retention must provide a retained rate employee a pay increase equal to 50 percent of the dollar increase in the maximum rate of the applicable band (including any applicable locality payment or staffing supplement), except that a retained rate employee with a negative assessment may not receive a pay increase. (This is a variation of the pay retention rules in 5 U.S.C. 5363, as authorized by 5 U.S.C. 9509(c). See § 9501.208(b).)
(j)IRS may establish policies for reducing an employee's rate of pay within a band, but only for unacceptable performance and/or conduct, or the voluntary loss of supervisory status (if such loss results in a reversal of a within-band adjustment granted at the time of placement in a supervisory position). These reductions may be made effective at any time. However, reductions based on unacceptable performance, as defined in 5 U.S.C. 9508, and/or conduct may not occur more than once in a 12-month period. Any reductions in an employee's rate of pay based on unacceptable performance and/or conduct are adverse actions under 5 U.S.C. 7512 as long as the employee and the action are otherwise covered by that section. (See 5 CFR 752.401.) A reduction based on unacceptable performance and/or conduct may not exceed 10 percent of the employee's rate of pay or cause an employee's rate to fall below the minimum rate of pay of the employee's band. § 9501.206 Setting the pay of a supervisor.
(a)IRS broadbanding systems may provide for a separate broadbanding system or career path for supervisors and managerial employees.
(b)A supervisor's or managerial employee's rate of pay may not be based on the salaries of the employees he or she supervises or manages. § 9501.207 Setting the pay of an employee.
(a)IRS broadbanding systems must include policies for determining the career path, band, and rate of pay for employees upon conversion into the system consistent with the provisions in § 9501.401. IRS broadbanding systems may also include policies for making prorated within-grade increase or career-ladder promotion payments to employees as an adjustment in pay or a lump-sum payment upon conversion from the General Schedule to a broadbanding system consistent with the provisions in § 9501.401.
(b)IRS broadbanding systems must include policies for determining an employee's career path, band, and rate of pay upon initial appointment, promotion, demotion, transfer, reassignment, or placement in a different band or career path. The methods used to set pay must be consistent with the principle of equal pay for substantially equal work and the following:
(1)Pay must be set at least at the minimum rate of pay and must not exceed the maximum rate of pay of the band to which assigned (except for employees who receive a rate below the minimum rate of pay as described in § 9501.205(h) or who receive a rate above the maximum rate of pay under pay retention provisions). (See § 9501.204(d) and (e).)
(2)Policies must specify the conditions under which pay may be set above the minimum rate of pay upon initial placement in a band and the amount of any minimum or maximum pay increase upon promotion. The time-in-grade provisions in 5 CFR 300.601-605 do not apply to employees under a broadbanding system.
(3)Upon movement to a different official worksite, IRS must process a geographic conversion as provided in 5 CFR 531.205.
(4)Movement of an employee to a band with a lower maximum rate of pay than the employee's former band is equivalent to a reduction in grade for the purpose of applying 5 U.S.C. chapters 43 and 75.
(c)Agencies must use the procedures in § 9501.402 for determining an employee's GS equivalent grade and pay rate upon conversion from a broadbanding system to the General Schedule. § 9501.208 Related provisions.
(a)For provisions of 5 U.S.C. chapter 51 that apply to the determination of General Schedule grades, other than sections 5104 and 5105, the term *grade* is deemed to mean *band within a career path.*
(b)The provisions in this part related to grade and pay retention are based on the grade and pay retention authority in 5 U.S.C. chapter 53, subchapter VI, and 5 CFR part 536. When applying the grade and pay retention provisions, the term *band* has the same meaning as *grade* under the statute and regulations. Under 5 U.S.C. 9509(c), the Secretary of the Treasury may provide for variations from the grade and pay retention authority for employees who are covered by broadbanding systems with prior approval of the Director of OPM and in accordance with a plan for implementing such variations. Section 9501.205(i) is an implementation of this variation authority.
(c)When applying the severance pay provisions to employees covered by IRS broadbanding systems, the term *band* has the same meaning as *grade* in paragraph (c)(4) of the definition of *reasonable offer* in 5 CFR 550.703. When applying this definition, IRS will also consider a position one band below the employee's current band level to be a *reasonable offer* in the case of a broadbanding system under which the next lower band comprises two or more grades. Subpart C—Staffing Supplements § 9501.301 Authority. IRS broadbanding systems may use staffing supplements under the terms and conditions in this subpart. § 9501.302 Eligibility. If an employee is assigned to a position meeting the coverage requirements for a special rate under 5 U.S.C. 5305 and is in a band where the maximum rate for the banded GS grades is a special rate that exceeds the maximum GS rate of basic pay (including any applicable locality rate under 5 U.S.C. 5304 or similar provision of law) for the banded grades, the employee is eligible for a staffing supplement. § 9501.303 Conversion to staffing supplement.
(a)Upon conversion, the employee's broadbanding rate of pay is established by dividing the employee's former GS special rate or locality rate (whichever was higher) by the staffing factor. The staffing factor is determined by dividing the maximum special rate for the banded grades by the GS base rate corresponding to that special rate (step 10 of the GS rate for the same grade as the special rate, excluding any locality payment). The employee's staffing supplement is derived by multiplying the employee's broadbanding rate of pay by the staffing factor minus one. The employee's final staffing supplement-adjusted rate equals the employee's broadbanding rate of pay plus the staffing supplement. This amount will equal the employee's former GS special rate or locality rate. Since the employee's total pay rate immediately after conversion into the broadbanding system will be the same as immediately before conversion, the provisions regarding adverse action under 5 U.S.C. chapter 75, subchapter II, and pay retention under 5 U.S.C. 5363 do not apply.
(b)If an employee is in a band where the maximum GS rate for the banded grades is a locality rate, the broadbanding rate upon conversion into a broadbanding system is derived by dividing the employee's former locality rate or special rate by the applicable locality pay factor ( *e.g.* , 1.1750 in the Washington-Baltimore-Northern Virginia locality pay area in 2006). The employee's broadbanding locality-adjusted rate will equal the employee's former GS locality rate or special rate. Since there is no change in total pay rate, the provisions regarding adverse action under 5 U.S.C. chapter 75, subchapter II, and pay retention under 5 U.S.C. 5363 do not apply.
(c)The rules for converting an employee on pay retention who is in a position meeting the coverage requirements for a special rate under 5 U.S.C. 5305 are in § 9501.401(d). § 9501.304 Administration of staffing supplements.
(a)A staffing supplement is added to an employee's broadbanding rate much like a locality adjustment is added to a GS base rate, as follows:
(1)Any General Schedule or special rate schedule adjustment will require recomputation of the staffing supplement under § 9501.303. Employees receiving a staffing supplement remain entitled to a locality rate, which may, over time, supersede the need for a staffing supplement. If the employee is entitled to a higher locality rate, the employee is not entitled to a staffing supplement for any purpose.
(2)If OPM discontinues or decreases a special rate schedule on which staffing supplements are based, pay retention rules will be applied, as appropriate.
(3)Upon geographic movement, an employee who receives a staffing supplement will have the supplement removed or recomputed to reflect any applicable staffing supplement or locality rate in the new official worksite, consistent with § 9501.303(a). Any resulting reduction in pay is not an adverse action under 5 U.S.C. chapter 75, subchapter II, or a basis for pay retention under 5 U.S.C. 5363.
(b)IRS may not allow an employee with a current negative assessment to receive a pay increase as a result of a staffing factor increase. The staffing supplement for that employee must be frozen at its existing level. IRS must apply the following rules for employees who do not receive pay increases under this paragraph:
(1)For an employee receiving a frozen staffing supplement because of a negative assessment, if such an employee moves to a new position of record or official worksite where a different staffing supplement applies, the employee must receive the staffing supplement applicable to the employee's new position of record and/or official worksite as in effect on the day before the staffing supplement was frozen. If no staffing supplement applies to the employee's new position of record or official worksite, apply the rules in § 9501.205(h)(1) to determine the employee's entitlement to any locality payment.
(2)If an employee receiving a frozen staffing supplement because of a negative assessment subsequently receives a positive assessment, the employee will become entitled to the currently applicable staffing supplement on the first day of the first pay period beginning on or after the date when he or she receives a positive assessment. If no staffing supplement is applicable to the employee's position of record, the employee will become entitled to the currently applicable locality payment, as provided in § 9501.205(h)(2).
(c)An employee's broadbanding rate adjusted by a staffing supplement may not exceed the rate for level IV of the Executive Schedule. § 9501.305 Treatment of staffing supplements as basic pay. The employee's broadbanding rate adjusted by the staffing supplement is basic pay for the same purposes as a special rate under 5 CFR 530.308—e.g., for retirement, life insurance, premium pay, pay retention, and severance pay purposes, and for determining recruitment, relocation, and retention incentives. The staffing supplement is also basic pay under 5 U.S.C. chapter 75, subchapter II, for the limited purpose of determining whether a reduction in pay occurs at the point of an employee's conversion into a broadbanding system. The staffing supplement will also be used to compute worker's compensation payments and lump-sum payments for accrued and accumulated annual leave. § 9501.306 New staffing supplements. OPM may approve staffing supplements for categories of employees within an IRS broadbanding system who are not in approved special rate categories for General Schedule employees, consistent with the provisions in 5 U.S.C. 5305(a) and (b). Subpart D—Conversion Rules § 9501.401 Conversion into broadbanding systems. (a)(1) *General* . IRS broadbanding systems must include policies for determining the career path, band, and pay rate for employees upon conversion into a broadbanding system under the terms and conditions in this section.
(2)An employee may not suffer a reduction in his or her total pay rate upon initial conversion to a broadbanding system. For this purpose, “total pay rate” includes any applicable locality payment, special rate supplement, and staffing supplement—each of which will be considered to be part of basic pay under 5 U.S.C. chapter 75, subchapter II, for the limited purpose of determining whether a reduction in pay occurs at conversion.
(3)If conversion into a broadbanding system is accompanied by any simultaneous pay action, the employee's General Schedule pay entitlements must be determined before converting the employee into the broadbanding system.
(b)*Prorated within-grade increase and career-ladder promotion payments* . IRS broadbanding systems may include policies for making prorated within-grade increase or career-ladder promotion payments to employees as an adjustment in pay or a lump-sum payment after conversion from the General Schedule to a broadbanding system under the following conditions:
(1)An employee may receive a prorated within-grade increase or a career-ladder promotion payment after conversion to an IRS broadbanding system under this section, but not both.
(2)The amount of any within-grade increase or career-ladder promotion payment may not be more than the prorated value of the employee's within-grade increase or career-ladder promotion at the time of conversion, based on the number of weeks of creditable service the employee has performed as of the date of initial conversion into the broadbanding system. There is no restriction on when such payments may be made.
(3)A prorated within-grade increase or career-ladder promotion payment may be made only to an employee with a positive assessment at the time of conversion into a broadbanding system.
(4)A within-grade increase payment may not be made to an employee receiving the maximum rate of pay for his or her grade or a retained rate immediately before conversion.
(5)If IRS provides career-ladder promotion payments to a group of employees converted to entry/developmental positions for which the IRS has established a special pay progression plan under § 9501.205(f)(6), the first salary increase budget for these entry/developmental employees following conversion must be determined after taking into account the length of time between the prorated career-ladder promotion payment and the first performance-based payments under an IRS broadbanding system.
(6)A within-grade increase or career-ladder promotion payment paid as an adjustment to pay after conversion into a broadbanding system may not cause an employee's pay to exceed the maximum rate of pay of a band.
(c)*Special rate employees* . If an IRS broadbanding system uses staffing supplements instead of special rates under 5 U.S.C. 5305, special rate employees must be converted into the system consistent with the provisions in subpart C of this part. If an IRS broadbanding system eliminates special rates, a new locality-adjusted rate of pay must be derived for each employee, as follows:
(1)Divide the employee's special rate by the locality pay factor for the area ( *e.g.* , 1.1750 for the Washington-Baltimore-Northern Virginia locality pay area in 2006) to determine the new broadbanding rate of pay.
(2)Multiply the employee's new broadbanding rate of pay by the locality pay factor for the area to determine the employee's broadbanding locality rate of pay. If the employee's broadbanding locality rate of pay exceeds the maximum locality-adjusted rate for the employee's band, the employee must be placed on pay retention (if not otherwise excluded from the pay retention authority at 5 U.S.C. chapter 53, subchapter VI). The locality adjustment is basic pay under 5 U.S.C. chapter 75, subchapter II, for the limited purpose of determining whether a reduction in basic pay occurs at the point of an employee's conversion into a broadbanding system.
(d)*Employees on pay retention* . Upon conversion, employees on pay retention must be assigned to the band that encompasses the grade of their position. Determine the employee's broadbanding rate of pay as follows:
(1)Compare the employee's retained rate to the highest applicable maximum rate of pay for the employee's band (including any applicable locality payment or staffing supplement).
(2)If the employee's retained rate is higher than the highest applicable maximum rate of pay for the band, the employee will continue to receive a retained rate.
(3)If the employee's retained rate is less than the highest applicable maximum rate of pay for the band, divide the employee's retained rate by the applicable locality pay factor or staffing factor that applies to the employee's new position of record and official worksite to derive the employee's new broadbanding rate of pay. Multiply the employee's new broadbanding rate of pay by the applicable locality pay or staffing factor to derive the employee's broadbanding locality-adjusted or staffing supplement-adjusted rate of pay. The locality adjustment and staffing supplement are basic pay under 5 U.S.C. chapter 75, subchapter II, for the limited purpose of determining whether a reduction in basic pay occurs at the point of an employee's conversion into a broadbanding system.
(e)*Employees on grade retention* . Upon conversion, employees on grade retention must be assigned to the band that encompasses their retained grade until the original 2-year grade retention period expires. When the 2-year period expires, the employee's rate of pay must be determined under the pay retention rules at 5 CFR 536.304 in the band for his or her position of record. § 9501.402 Conversion to the General Schedule pay system. (a)(1) Except as provided in paragraph (a)(2) of this section, when an employee covered by a broadbanding system moves voluntarily or involuntarily to a GS position, IRS must use the procedures in this section to convert the employee's band and pay rate to a GS-equivalent grade and rate of pay before the employee moves out of the system. IRS must determine the converted GS-equivalent grade and rate of pay before any accompanying geographic move, promotion, or other simultaneous action. The new employing organization must use the converted GS-equivalent grade and rate of pay in applying various pay administration rules that govern how pay is set in the GS position (e.g., rules for promotion and highest previous rate under 5 CFR part 531, subpart B, and grade and pay retention under 5 CFR part 536). For the purpose of those rules, the converted GS grade and rate of pay are deemed to have been in effect at the time the employee left the broadbanding system. The rules for determining the converted GS grade for pay administration purposes do not apply to the determination of an employee's GS-equivalent grade for other purposes, such as reduction-in-force or adverse action.
(2)The conversion procedures in this section do not apply to employees who involuntarily move back to the same General Schedule career-ladder position they held immediately before conversion into the broadbanding system prior to any pay adjustment event under the system (including any promotion, demotion, or pay adjustment provided under § 9501.205). (A pay adjustment event does not include any prorated within-grade or career-ladder promotion pay increase received as part of conversion into the system.) For such employees, IRS must subtract any prorated within-grade or career-ladder promotion payment and reconstruct the employee's grade and rate of pay under the General Schedule as if he or she had never entered the broadbanding system.
(3)The provisions regarding adverse action under 5 U.S.C. chapter 75, subchapter II, and pay retention under 5 U.S.C. 5363 do not apply to reductions in pay that occur when the IRS subtracts any prorated within-grade or career-ladder promotion increase from a career-ladder employee's rate of pay upon conversion back to the General Schedule as required by paragraph (a)(2) of this section.
(b)*GS grade level determination* .
(1)Upon voluntary or involuntary conversion of an employee out of a broadbanding system to the GS pay system (other than an involuntary conversion covered by paragraph (a)(2) of this section), IRS must determine the employee's GS-equivalent grade level as follows (except as otherwise provided in paragraphs (b)(2), (b)(3), and
(d)of this section):
(i)Convert an employee in a band encompassing a single GS grade to that grade.
(ii)For an employee in a band encompassing more than one GS grade, compare the employee's rate of pay (including any locality adjustment or staffing supplement, as applicable) with the rates of pay in the highest applicable GS rate range for each grade encompassed by the employee's band. If the employee's occupational series is a two-grade interval series, consider only odd-numbered grades between GS-5 and GS-11. In identifying the *highest applicable GS rate range* consider the following types of rate ranges:
(A)The GS base pay schedule;
(B)The LEO special base rate schedule;
(C)An applicable locality pay schedule for the locality pay area in which the employee's official worksite is located; or
(D)A special rate schedule for the employee's position and official worksite, as applicable.
(iii)If the employee's rate of pay (including any locality adjustment or staffing supplement) fits into an area of the highest applicable GS rate range for a GS grade that does not overlap with the rate range of the next higher or lower grade in the same band, convert the employee to that GS grade.
(iv)If the employee's rate of pay (including any locality adjustment or staffing supplement) fits into an area of the highest applicable GS rate range for a grade that overlaps with the highest applicable GS rate range of the next higher or lower grade in the same band, compare the employee's rate of pay with the dollar midpoint of the overlap area. If the employee's rate of pay is lower than the dollar midpoint of the overlap area, convert the employee to the lower grade. If the employee's rate of pay is equal to or higher than the dollar midpoint of the overlap area, convert the employee to the higher grade.
(v)If an employee's rate of pay (including any locality payment or staffing supplement) is lower than the minimum rate of the highest applicable GS rate range for the lowest GS grade in the band, convert the employee to the lowest grade.
(2)Notwithstanding paragraphs (b)(1)(i)-(b)(1)(v) of this section, upon voluntary or involuntary conversion of an employee out of a broadbanding system to the GS pay system (other than an involuntary conversion covered by paragraph (a)(2) of this section), an employee's converted GS grade may not be lower than the GS grade held by the employee immediately preceding a lateral conversion into the broadbanding system, unless the employee was retaining a GS grade immediately before conversion or the employee underwent a reduction in band while in the broadbanding system.
(3)Notwithstanding paragraphs (b)(1)(i) through (b)(1)(v) of this section, upon voluntary or involuntary conversion of an employee out of a broadbanding system to the GS pay system (other than an involuntary conversion covered by paragraph (a)(2) of this section), if an employee moves back to the General Schedule before any pay adjustment event under the broadbanding system (including any promotion, demotion, or pay adjustment provided under § 9501.205), the employee's converted GS grade is the grade the employee held immediately before conversion into the broadbanding system. (A pay adjustment event does not include any prorated within-grade or career-ladder promotion pay increase received as part of conversion into the system.)
(c)*GS pay rate determination* . Upon voluntary or involuntary conversion of an employee out of a broadbanding system to the GS pay system (other than an involuntary conversion covered by paragraph (a)(2) of this section), IRS must determine the employee's GS-equivalent rate of pay under the rules in this paragraph (except as otherwise provided in paragraph
(d)of this section). If an employee voluntarily moves back to the General Schedule before any pay adjustment event under the broadbanding system (including any promotion, demotion, or pay adjustment provided under § 9501.205), IRS must subtract any prorated pay increase received as part of conversion into the broadbanding system (including any applicable locality payment or staffing supplement associated with that increase) before applying the rules in this paragraph. (The preceding sentence does not apply to an employee who involuntarily moves back to the General Schedule.) As provided in paragraph (a)(3) of this section, any resulting reduction in pay is not an adverse action.
(1)Convert the employee's rate of pay under the broadbanding system (including any locality adjustment or staffing supplement) to a rate on the highest applicable GS rate range for the converted GS grade derived under paragraph
(b)of this section. In identifying the *highest applicable GS rate range* consider the following types of rate ranges:
(i)The GS base pay schedule;
(ii)The LEO special base rate schedule;
(iii)An applicable locality pay schedule for the locality pay area in which the employee's official worksite is located; or
(iv)A special rate schedule for the employee's position and official worksite, as applicable.
(2)If the highest applicable GS rate range is under a locality pay schedule, convert the employee's rate of pay (including any locality adjustment or staffing supplement) to a GS locality rate of pay. Since this converted rate is used only as a basis for setting the employee's rate in the new position, do not adjust the converted rate to equal a standard step rate. The rate of pay underlying the converted GS locality rate of pay becomes the employee's converted GS base rate.
(3)If the highest applicable GS rate range is a special rate range, convert the employee's rate of pay (including any locality adjustment or staffing supplement) to a special rate. The converted special rate may fall between the standard step rates. The rate of pay underlying the converted GS special rate becomes the employee's converted GS base rate.
(4)If the employee's rate of pay (including any locality adjustment or staffing supplement) exceeds the maximum rate of the highest applicable GS rate range, convert the rate of pay to a retained rate (if not otherwise excluded from the pay retention authority at 5 U.S.C. chapter 53, subchapter VI).
(5)If the employee's rate of pay (including any locality adjustment or staffing supplement) is lower than the minimum rate of the highest applicable GS rate range, convert the employee's rate of pay to a GS locality rate, or special rate, as applicable. Since this converted rate is used only as a basis for setting the employee's rate in the new position, do not adjust the converted rate to equal a standard step rate. If the employee's converted rate is a locality rate, the rate of pay underlying the locality rate becomes the employee's GS base rate.
(d)*Employees on band or pay retention* . Apply the following procedures to determine the converted GS-equivalent grade and pay rate upon voluntary or involuntary conversion of an employee from a broadbanding system to the GS system (other than an involuntary conversion covered by paragraph (a)(2) of this section) when the employee is retaining a band or pay rate under the broadbanding system:
(1)If an employee is retaining a band, apply the procedures in paragraphs
(b)and
(c)of this section using the grades encompassed by the employee's retained band to determine the employee's GS-equivalent retained grade and pay rate. The time in a retained band counts toward the 2-year limit on grade retention in 5 U.S.C. 5362. (If the employee is also receiving a retained rate, apply the procedures in paragraph (d)(2) of this section instead of paragraph
(c)of this section to determine the employee's GS-equivalent rate of pay.)
(2)If the employee's rate of pay under the broadbanding system is a retained rate, the employee's GS-equivalent grade is the highest grade encompassed in his or her band (unless the employee is also retaining a band in which case apply paragraph (d)(1) of this section to determine the employee's GS-equivalent grade). If the employee's retained rate is less than the maximum rate of the highest applicable GS rate range for the employee's GS-equivalent grade, apply the procedures in paragraph (c)(1)-(c)(3) of this section to determine the employee's GS-equivalent pay rate. If the employee's retained rate exceeds the maximum rate of the highest applicable GS rate range for the employee's GS-equivalent grade, convert the employee's broadbanding retained rate to an equal GS-equivalent retained rate.
(e)*Within-grade increase equivalent increase determinations* . Service under a broadbanding system is creditable for within-grade increase purposes upon conversion to the GS pay system. (See 5 CFR 531.407(b) for additional information on equivalent increase determinations.) [FR Doc. E7-7255 Filed 4-16-07; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 112 [DOD-2007-OS-0025] RIN 0790-AI08 Indebtedness of Military Personnel AGENCY: Department of Defense. ACTION: Proposed rule. SUMMARY: This part contains uniform Department of Defense policies for indebtedness of Military Personnel. This updated rule contains editorial changes only as required for internal Department of Defense mandated reconsideration every five years. DATES: Comments must be received by June 18, 2007. ADDRESSES: You may submit comments, identified by docket number and or RIN number and title, by any of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number
(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Mark Gingras, Office of the Deputy Under Secretary of Defense for Program Integration, 4000 Defense Pentagon, Washington, DC 20301-4000. SUPPLEMENTARY INFORMATION: Executive Order 12866, “Regulatory Planning and Review” It has been determined that 32 CFR part 123 is not a significant regulatory action. The rule does not:
(1)Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4) It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been certified that this rule does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. The reporting and recordkeeping requirements have been submitted to OMB for review. Executive Order 13132, “Federalism” It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1)The States;
(2)The relationship between the National Government and the States; or
(3)The distribution of power and responsibilities among the various levels of government. List of Subjects in 32 CFR Part 112 Claims, Credit, Military personnel. Accordingly, 32 CFR Part 112 is proposed to be revised as follows: PART 112—INDEBTEDNESS OF MILITARY PERSONNEL Sec. 112.1 Purpose. 112.2 Applicability and scope. 112.3 Definitions. 112.4 Policy. 112.5 Processing of debt complaints. 112.6 Processing of involuntary allotments. 112.7 Responsibilities. Authority: 5 U.S.C. 5520a(k) and 10 U.S.C. 113(d). § 112.1 Purpose. This part:
(a)Updates DoD policies and assigns responsibilities governing delinquent indebtedness of members of the Military Services and prescribes policy for processing involuntary allotments from the pay of military members to satisfy judgment indebtedness in accordance with 5 U.S.C. 5520a(k).
(b)Establishes responsibility for procedures implementing 5 U.S.C. 5520a(k), 15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1665a, 1666-1666j, and 1667-1667e (“Truth in Lending Act”), and 15 U.S.C. 1601 note, and 1692-1692o (“Fair Debt Collection Practices Act”). § 112.2 Applicability and scope.
(a)This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is not operating as a Service in the Navy, under agreement with the Department of Homeland Security), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b)This part does not apply to:
(1)Indebtedness of a member of the Military Services to the Federal Government.
(2)Processing of indebtedness claims to enforce judgments against military members for alimony or child support.
(3)Claims by State or municipal governments under the processing guidelines for complaints, including tax collection actions. § 112.3 Definitions.
(a)*Absence.* A member's lack of an “appearance,” at any stage of the judicial process, as evidenced by failing to physically attend court proceedings; failing to be represented at court proceedings by counsel of the member's choosing; or failing to timely respond to pleadings, orders, or motions.
(b)*Court.* A court of competent jurisdiction within any State, territory, or possession of the United States.
(c)*Debt Collector.* An agency or agent engaged in the collection of debts described under 15 U.S.C. 1601 note and 1692-1692o (“Fair Debt Collection Practices Act”).
(d)*Exigencies of Military Duty.* A military assignment or mission-essential duty that, because of its urgency, importance, duration, location, or isolation, necessitates the absence of a member of the Military Services from appearance at a judicial proceeding or prevents the member from being able to respond to a notice of application for an involuntary allotment. Exigency of military duty is normally presumed during periods of war, national emergency, or when the member is deployed.
(e)*Judgment.* A final judgment must be a valid, enforceable order or decree, by a court from which no appeal may be taken, or from which no appeal has been taken within the time allowed, or from which an appeal has been taken and finally decided. The judgment must award a sum certain amount and specify that the amount is to be paid by an individual who, at the time of application for the involuntary allotment, is a member of the Military Services.
(f)*Just Financial Obligation* . A legal debt acknowledged by the military member in which there is no reasonable dispute as to the facts or the law; or one reduced to judgment that conforms to Sections 501-591 of title 50 Appendix, United States Code (The Servicemembers Civil Relief Act, as amended).
(g)*Member of the Military Services* . For the purposes of this Part, any member of the Regular Army, Air Force, Navy, Marine Corps, or Coast Guard, and any member of a Reserve component of the Army, Air Force, Navy, Marine Corps, or Coast Guard (including the Army National Guard of the United States and the Air National Guard of the United States) on active duty pursuant to 10 U.S.C. 672 for a period in excess of 180 days at the time an application for involuntary allotment is received by the Director, DFAS, or Commanding Officer, Coast Guard Pay and Personnel Center. The following shall not be considered members:
(1)Retired personnel, including those placed on the temporary or permanent disabled retired list; and
(2)Personnel in a prisoner of war or missing in action status, as determined by the Secretary of the Military Department concerned. § 112.4 Policy.
(a)Members of the Military Services are expected to pay their just financial obligations in a proper and timely manner. A Service member's failure to pay a just financial obligation may result in disciplinary action under the Uniform Code of Military Justice (10 U.S.C. 801-940) or a claim pursuant to Article 139 of the Uniform Code of Military Justice. Except as stated in this section, and in paragraphs (a)(1) and (a)(2) of this section, the DoD Components have no legal authority to require members to pay a private debt or to divert any part of their pay for satisfaction of a private debt.
(1)Legal process instituted in civil courts to enforce judgments against military personnel for the payment of alimony or child support shall be acted on pursuant to 42 U.S.C. 651-665, and Part 7, Chapter 7, Section B. of Department of Defense Regulation 7000.14-R Volume 7. 1 1 Copies may be obtained from the DoD Directives Web page at: *http://www.dtic.mil/whs/directives* .
(2)Involuntary allotments under 5 U.S.C. 5520a(k) shall be established in accordance with this part.
(b)Whenever possible, indebtedness disputes should be resolved through amicable means. Claimants may contact military members by having correspondence forwarded through the military locator services for an appropriate fee, as provided under DoD Instruction 7230.7. 2 2 See footnote 1 to § 112.4(a)(1). § 112.5 Processing of debt complaints.
(a)Debt complaints meeting the requirements of this Part and procedures established by the Under Secretary of Defense for Personnel and Readiness, as required by § 112.7(a)(1) shall receive prompt processing assistance from commanders.
(b)Assistance in indebtedness matters shall not be extended to those creditors:
(1)Who have not made a bona fide effort to collect the debt directly from the military member;
(2)Whose claims are patently false and misleading; or
(3)Whose claims are obviously exorbitant.
(c)Some States have enacted laws prohibiting creditors from contacting a debtor's employer about indebtedness or communicating facts on indebtedness to an employer unless certain conditions are met. The conditions that must be met to remove this prohibition are generally such things as reduction of a debt to judgment or obtaining written permission of the debtor.
(1)At DoD installations in States having such laws, the processing of debt complaints shall not be extended to those creditors who are in violation of the State law. Commanders may advise creditors that this rule has been established because it is the general policy of the Military Services to comply with State law when that law does not infringe upon significant military interests.
(2)The rule in paragraph(c)(1) of this section shall govern even though a creditor is not licensed to do business in the State where the debtor is located. A similar practice shall be started in any State enacting a similar law regarding debt collection.
(3)Pursuant to 15 U.S.C. 1601 note and 1692-1692o (“Fair Debt Collection Practices Act”), contact by a debt collector with third parties, such as commanding officers, for aiding debt collection is prohibited without a court order or the debtor's prior consent given directly to the debt collector. Creditors are generally exempt from this requirement, but only when they collect on their own behalf. § 112.6 Processing of involuntary allotments. Pursuant to 5 U.S.C. 5520a(k):
(a)In those cases in which the indebtedness of a military member has been reduced to a judgment, an application for an involuntary allotment from the member's may be made under procedures prescribed by the Under Secretary of Defense for Personnel and Readiness. Such procedures shall provide the exclusive remedy available.
(b)An involuntary allotment from a member's pay shall not be permitted in any indebtedness case in which:
(1)Exigencies of military duty caused the absence of the member from the judicial proceeding at which the judgment was rendered; or
(2)There has not been compliance with the procedural requirements of the Servicemembers Civil Relief Act 50 U.S.C. Appendix, sections 501-591. § 112.7 Responsibilities.
(a)The Under Secretary of Defense for Personnel and Readiness shall:
(1)In consultation with the Under Secretary of Defense (Comptroller), establish procedures for the processing of debt complaints and involuntary allotments.
(2)Have policy oversight on the assistance to be provided by military authorities to creditors of military personnel who have debt complaints, and on involuntary allotment of military pay.
(b)The Under Secretary of Defense (Comptroller) shall:
(1)Establish, as necessary, procedures supplemental to those promulgated by the Under Secretary of Defense for Personnel and Readiness to administer and process involuntary allotments from the pay of members of the Military Services; this includes the authority to promulgate forms necessary for the efficient administration and processing of involuntary allotments.
(2)Ensure that the Director, Defense Finance and Accounting Service:
(i)Implements procedures established by the Under Secretary of Defense for Personnel and Readiness and The Under Secretary of Defense (Comptroller).
(ii)Considers whether Servicemembers Civil Relief Act 50 U.S.C. Appendix, sections 501-591 has been complied with pursuant to 5 U.S.C. 5520a(k) prior to establishing an involuntary allotment against the pay of a member of the Military Services.
(iii)Publishes, prints, stocks, redistributes, and revises DoD forms necessary to process involuntary allotments.
(c)The Heads of the DoD Components shall urge military personnel to meet their just financial obligations, since failure to do so damages their credit reputation and affects the public image of all DoD personnel. See DoD Directive 5500.7. 3 3 See footnote 1 to § 112.4(a)(1).
(d)The Secretaries of the Military Departments shall:
(1)Establish, as necessary, procedures to administer and process involuntary allotments from the pay of members of the Military Services. This includes designating those commanders, or other officials who may act in the absence of the commander, who shall be responsible for determining whether a member's absence from a judicial proceeding was caused by exigencies of military duty, and establishing appeal procedures regarding such determinations.
(2)Require commanders to counsel members to pay their just debts, including complying, as appropriate, with court orders and judgments for the payments of alimony or child support.
(3)Emphasize prompt command action to assist with the processing of involuntary allotment applications.
(e)The Chief, Office of Personnel and Training, for the Coast Guard shall:
(1)Establish, as necessary, procedures supplemental to those promulgated by the Under Secretary of Defense for Personnel and Readiness to administer and process involuntary allotment from the pay of members of the Military Services; this includes the authority to promulgate forms necessary for the efficient administration and processing of involuntary allotments.
(2)Ensure that the Commanding Officer, Coast Guard Pay and Personal Center:
(i)Implements procedures established by the Under Secretary of Defense for Personnel and Readiness and Chief, Office of Personnel and Training.
(ii)Considers whether the Servicemembers Civil Relief Act, as amended (50 U.S.C. Appendix, sections 501-591) has been complied with pursuant to 5 U.S.C. 5520a(k) prior to establishing an involuntary allotment against the pay of a member of the Military Services.
(iii)Acts as the Coast Guard manager for forms necessary to process involuntary allotments. Dated: April 11, 2007. C.R. Choate, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. E7-7292 Filed 4-16-07; 8:45 am] BILLING CODE 5001-06-P LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 381 [Docket No. 2006-2 CRB NCBRA] Noncommercial Educational Broadcasting Statutory License AGENCY: Copyright Royalty Board, Library of Congress. ACTION: Notice of proposed rulemaking. SUMMARY: The Copyright Royalty Judges are publishing for comment certain royalty rates, proposed by the parties in the proceeding to determine the rates and terms for the noncommercial educational broadcasting statutory license contained in the Copyright Act. DATES: Comments and objections, if any, are due on or before May 17, 2007. ADDRESSES: An original, five paper copies, and one electronic copy in Portable Document Format
(PDF)on compact disk (an optical data storage medium such as a CD-ROM, CD-R or CD-RW) or floppy diskette of a comment or objection must be delivered to the Copyright Royalty Board in one of the following ways: If hand delivered by a private party, the comment or objection should be brought to the Copyright Office Public Information Office in the James Madison Memorial Building, Room LM-401, 101 Independence Avenue, SE., Monday through Friday, between 8:30 a.m. and 5 p.m., and the envelope must be addressed as follows: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC 20559-6000. If delivered by a commercial courier (excluding overnight delivery services such as Federal Express, United Parcel Service and similar overnight delivery services), the comment or objection must be delivered to the Congressional Courier Acceptance Site
(CCAS)located at 2nd and D Street, NE., Monday through Friday, between 8:30 a.m. and 4 p.m., and the envelope must be addressed as follows: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, 101 Independence Avenue, SE., Washington, DC 20559-6000. If a comment or objection is sent by mail (including overnight delivery using United States Postal Service Express Mail), the envelope must be addressed to: Copyright Royalty Board, P.O. Box 70977, Southwest Station, Washington, DC 20024-0977. Comments and objections may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries. FOR FURTHER INFORMATION CONTACT: Gina Giuffreda, Attorney-Advisor. Telephone
(202)707-7658. Telefax
(202)252-3423. SUPPLEMENTARY INFORMATION: Background Section 118 of the Copyright Act, title 17 of the United States Code, establishes a statutory license for the use of certain copyrighted works in connection with noncommercial television and radio broadcasting. The terms and rates for this statutory license have been adjusted periodically by the Librarian of Congress and appear in 37 CFR Part 253. However, the Copyright Royalty and Distribution Reform Act of 2004, Pub. L. No. 108-419, transferred jurisdiction over these rates and terms to the Copyright Royalty Judges. 17 U.S.C. 801(b)(1). This is a window year for the establishment of new rates and terms for the 2008-2012 license period. On January 9, 2006, pursuant to 17 U.S.C. 803(b)(1)(A)(i)(V), the Copyright Royalty Judges published a notice in the **Federal Register** announcing commencement of proceedings under 17 U.S.C. 118 and requesting interested parties to submit their petitions to participate. 71 FR 1453 (January 9, 2006). Petitions to participate were received from: the American Council on Education (“ACE”); the National Music Publishers Association, Inc. (“NMPA”); the Harry Fox Agency (“HFA”); the National Religious Broadcasters Noncommercial Music License Committee (“NRBNMLC”); Royalty Logic, Inc.; the American Society of Composers, Authors and Publishers (“ASCAP”); Broadcast Music, Inc. (“BMI”); SESAC, Inc.; National Public Radio (“NPR”); the Corporation for Public Broadcasting (“CPB”); the Public Broadcasting Service (“PBS”); and the Church Music Publishers Association, Inc. The Judges set the timetable for the three-month negotiation period, see 17 U.S.C. 803(b)(3), and directed the participants to submit their written direct statements no later than January 30, 2007. Instead of written direct statements, the parties submitted notification of settlements and proposed rates and terms for the Copyright Royalty Judges to adopt. There are two ways that copyright owners and public broadcasting entities 1 may negotiate rates and terms under the section 118 statutory license. First, copyright owners may negotiate rates and terms with specific public broadcasting entities for the use of all of the copyright owners' works covered by the license. Section 118(b)(2) provides that such license agreements “shall be given effect in lieu of any determination by the * * * Copyright Royalty Judges,” provided that copies of the agreements are submitted to the Copyright Royalty Board “within 30 days of execution.” 17 U.S.C. 118(b)(2). The Copyright Royalty Judges received notification of several agreements in this category for which no further action is required. 1 A “public broadcasting entity” is defined as a “noncommercial educational broadcast station as defined in section 397 of title 47 and any nonprofit institution or organization engaged in the activities described in paragraph
(2)of subsection (c)” of section 118. Second, copyright owners and public broadcasting entities may negotiate rates and terms for categories of copyrighted works and uses, that would be binding on all owners and entities, and submit them to the Copyright Royalty Judges for approval. Section 801(b)(7)(A) provides that in such event:
(i)the Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determination set by the agreement to comment on the agreement and object to its adoption as a basis for statutory terms and rates; and
(ii)the Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement, if any participant described in clause
(i)objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates. 17 U.S.C. 801(b)(7)(A). The Copyright Royalty Judges received seven proposals within this category:
(1)A joint proposal of BMI and the NRBNMLC;
(2)a joint proposal of ASCAP and ACE;
(3)a joint proposal of SESAC and ACE;
(4)a joint proposal of HFA, NMPA and the NRBNMLC;
(5)a joint proposal of SESAC and the NRBNMLC;
(6)a joint proposal of ASCAP and the NRBNMLC; and
(7)a joint proposal of BMI and ACE. After reviewing the proposals, the Copyright Royalty Judges determined that they were insufficient on their face. 2 By Order dated February 22, 2007, the Judges directed the parties to amend their proposals. On March 15, 2007, ACE, ASCAP, BMI, HFA, NMPA, NPR, NRBNMLC, PBS and SESAC submitted a joint proposal for section 118 rates and terms. It is this proposal that the Judges are publishing today for comment. 3 2 The reason for the insufficiency was the parties' incorrect assumption that the Copyright Royalty Judges would be amending part 253 of title 37 of the Code of Federal Regulations-the Copyright Office's rules-rather than our own rules. As a result, the parties only proposed amendments rather than a complete text of regulations. 3 Part 381, which we propose today, will be part of a new Subchapter E which will contain the rates and terms for the various statutory licenses. This new subchapter will be established upon the publication of the final determination of the rates and terms for the section 112 and 114 statutory licenses, Docket No. 2005-1 CRB DTRA, and will contain Part 380. As part of this notice of proposed rulemaking (“NPRM”), the Copyright Royalty Judges are modifying three aspects of the joint proposal. First, the proposed regulations for terms governing the recording of nondramatic performances and displays of musical works and the terms for the use of published pictorial, graphic and sculptural works require the deposit with the Copyright Office of cue sheets (for musical works) and standard lists (for pictorial, graphic and sculptural works) in hard copy format. We are changing these provisions to require submission of cue sheets and standard lists in electronic disk format only (due to space limitations) and requiring that they be submitted to the offices of the Copyright Royalty Board rather than the Copyright Office. Second, the joint proposal requires public broadcasting entities to make information concerning fees deposited in trust funds for unknown copyright owners available upon request to the Copyright Office. We are changing the provision to make the information available to the Copyright Royalty Judges instead of the Copyright Office. Third, the parties have included a provision in their proposal governing the rates and terms applicable to certain public broadcasting entities that states that such rates and terms are experimental, without precedential effect, and may not be introduced or relied upon in any governmental, administrative or judicial proceeding. The Copyright Royalty Judges decline to include such a provision within our regulations. Our task, as set forth in section 118 and chapter 8 of the Copyright Act, is to adopt rates and terms for the noncommercial broadcasting license. It is not our task to offer evaluations, limitations or characterizations of the rates and terms, or make statements about their use or value in proceedings other than this one. As discussed above, the public may comment and object to any or all of the proposed regulations contained in this NPRM. Those who do comment and object, however, must be prepared to participate in further proceedings in this docket to establish rates and terms for the section 118 license. List of Subjects in 37 CFR Part 381 Copyright, Music, Radio, Television, Rates. Proposed Regulations For the reasons set forth in the preamble, the Copyright Royalty Judges propose to add Part 381 to Chapter III of title 37 of the Code of Federal Regulations to read as follows: PART 381—USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH NONCOMMERCIAL EDUCATIONAL BROADCASTING Sec. 381.1 General. 381.2 Definition of public broadcasting entity. 381.3 [Reserved] 381.4 Performance of musical compositions by PBS, NPR and other public broadcasting entities engaged in the activities set forth in 17 U.S.C. 118(c). 381.5 Performance of musical compositions by public broadcasting entities licensed to colleges and universities. 381.6 Performance of musical compositions by other public broadcasting entities. 381.7 Recording rights, rates and terms. 381.8 Terms and rates of royalty payments for the use of published pictorial, graphic and sculptural works. 381.9 Unknown copyright owners. 381.10 Cost of living adjustment. 381.11 Notice of restrictions on use of reproductions of transmission programs. Authority: 17 U.S.C. 118, 801(b)(1) and 803. § 381.1 General. This part establishes terms and rates of royalty payments for certain activities using published nondramatic musical works and published pictorial, graphic and sculptural works during a period beginning on January 1, 2008, and ending on December 31, 2012. Upon compliance with 17 U.S.C. 118, and the terms and rates of this part, a public broadcasting entity may engage in the activities with respect to such works set forth in 17 U.S.C. 118(c). § 381.2 Definition of public broadcasting entity. As used in this part, the term *public broadcasting entity* means a noncommercial educational broadcast station as defined in section 397 of title 47 and any nonprofit institution organization engaged in the activities described in 17 U.S.C. 118(c). § 381.3 [Reserved] § 381.4 Performance of musical compositions by PBS, NPR and other public broadcasting entities engaged in the activities set forth in 17 U.S.C. 118(c). The following schedule of rates and terms shall apply to the performance by PBS, NPR and other public broadcasting entities engaged in activities set forth in 17 U.S.C. 118(c) of copyrighted published nondramatic musical compositions, except for public broadcasting entities covered by §§ 381.5 and 381.6, and except for compositions which are the subject of voluntary license agreements.
(a)*Determination of royalty rate.*
(1)For performance of such work in a feature presentation of PBS: 2008-2012 $227.58
(2)For performance of such a work as background or theme music in a PBS program: 2008-2012 $57.66
(3)For performance of such a work in a feature presentation of a station of PBS: 2008-2012 $19.45
(4)For performance of such a work as background or theme music in a program of a station of PBS: 2008-2012 $4.10
(5)For the performance of such a work in a feature presentation of NPR: 2008-2012 $23.07
(6)For the performance of such a work as background or theme music in an NPR program: 2008-2012 $5.59
(7)For the performance of such a work in a feature presentation of a station of NPR: 2008-2012 $1.63
(8)For the performance of such a work as background or theme music in a program of a station of NPR: 2008-2012 $.58
(9)For purposes of this schedule the rate for the performance of theme music in an entire series shall be double the single program theme rate.
(10)In the event the work is first performed in a program of a station of PBS or NPR, and such program is subsequently distributed by PBS or NPR, an additional royalty payment shall be made equal to the difference between the rate specified in this section for a program of a station of PBS or NPR, respectively, and the rate specified in this section for a PBS or NPR program, respectively.
(b)*Payment of royalty rate* . The required royalty rate shall be paid to each known copyright owner not later than July 31 of each calendar year for uses during the first six months of that calendar year, and not later than January 31 for uses during the last six months of the preceding calendar year.
(c)*Records of use* . PBS and NPR shall, upon the request of a copyright owner of a published musical work who believes a musical composition of such owner has been performed under the terms of this schedule, permit such copyright owner a reasonable opportunity to examine their standard cue sheets listing the nondramatic performances of musical compositions on PBS and NPR programs. Any local PBS and NPR station that shall be required by the provisions of any voluntary license agreement with ASCAP, BMI or SESAC covering the license period January 1, 2008, to December 31, 2012, to provide a music use report shall, upon request of a copyright owner who believes a musical composition of such owner has been performed under the terms of this schedule, permit such copyright owner to examine the report.
(d)*Terms of use* . The fees provided in this schedule for the performance of a musical work in a program shall cover performances of such work in such program for a period of four years following the first performance. § 381.5 Performance of musical compositions by public broadcasting entities licensed to colleges and universities.
(a)*Scope* . This section applies to the performance of copyrighted published nondramatic musical compositions by noncommercial radio stations which are licensed to accredited colleges, accredited universities, or other accredited nonprofit educational institutions and which are not affiliated with National Public Radio. For purposes of this section, accreditation of institutions providing post-secondary education shall be determined by a regional or national accrediting agency recognized by the Council for Higher Education Accreditation or the United States Department of Education; and accreditation of institutions providing elementary or secondary education shall be as recognized by the applicable state licensing authority.
(b)*Voluntary license agreements* . Notwithstanding the schedule of rates and terms established in this section, the rates and terms of any license agreements entered into by copyright owners and colleges, universities, and other nonprofit educational institutions concerning the performance of copyrighted musical compositions, including performances by noncommercial radio stations, shall apply in lieu of the rates and terms of this section.
(c)*Royalty rate* . A public broadcasting entity within the scope of this section may perform published nondramatic musical compositions subject to the following schedule of royalty rates:
(1)For all such compositions in the repertory of ASCAP, $277 annually in 2007, as adjusted pursuant to § 381.10.
(2)For all such compositions in the repertory of BMI, $277 annually in 2007, as adjusted pursuant to § 381.10.
(3)For all such compositions in the repertory of SESAC, $116 annually in 2008, as adjusted pursuant to § 381.10.
(4)For the performance of any other such compositions: $1.
(d)*Payment of royalty rate* . The public broadcasting entity shall pay the required royalty rate to ASCAP, BMI and SESAC not later than January 31 of each year.
(e)*Records of use* . A public broadcasting entity subject to this section shall furnish to ASCAP, BMI and SESAC, upon request, a music-use report during one week of each calendar year. ASCAP, BMI and SESAC shall not in any one calendar year request more than 10 stations to furnish such reports. § 381.6 Performance of musical compositions by other public broadcasting entities.
(a)*Scope* . This section applies to the performance of copyrighted published nondramatic musical compositions by radio stations not licensed to colleges, universities, or other nonprofit educational institutions and which are not affiliated with NPR. In the event that a station owned by a public broadcasting entity broadcasts programming by means of an in-band, on-channel (“IBOC”) digital radio signal and such programming is different than the station's analog broadcast programming, then any such programming shall be deemed to be provided by a separate station requiring a separate royalty payment.
(b)*Voluntary license agreements* . Notwithstanding the schedule of rates and terms established in this section, the rates and terms of any license agreements entered into by copyright owners and noncommercial radio stations within the scope of this section concerning the performance of copyrighted musical compositions, including performances by noncommercial radio stations, shall apply in lieu of the rates and terms of this section.
(c)*Royalty rate* . A public broadcasting entity within the scope of this section may perform published nondramatic musical compositions subject to the following schedule of royalty rates:
(1)For all such compositions in the repertory of ASCAP, the royalty rates shall be as follows: Population count 2008 2009 2010 2011 2012 Level 1 0-249,999 $550 $567 $583 $601 $619 Level 2 250,000-499,999 1,000 1,030 1,061 1,093 1,126 Level 3 500,000-999,999 1,500 1,545 1,591 1,639 1,688 Level 4 1,000,000-1,499,999 2,000 2,060 2,122 2,185 2,251 Level 5 1,500,000-1,999,999 2,500 2,575 2,652 2,732 2,814 Level 6 2,000,000-2,499,999 3,000 3,090 3,183 3,278 3,377 Level 7 2,500,000-2,999,999 3,500 3,605 3,713 3,825 3,939 Level 8 3,000,000 and above 5,000 5,150 5,305 5,464 5,628
(2)For all such compositions in the repertory of BMI, the royalty rates shall be as follows: Population count 2008 2009 2010 2011 2012 Level 1 0-249,999 $550 $567 $583 $601 $619 Level 2 250,000-499,999 1,000 1,030 1,061 1,093 1,126 Level 3 500,000-999,999 1,500 1,545 1,591 1,639 1,688 Level 4 1,000,000-1,499,999 2,000 2,060 2,122 2,185 2,251 Level 5 1,500,000-1,999,999 2,500 2,575 2,652 2,732 2,814 Level 6 2,000,000-2,499,999 3,000 3,090 3,183 3,278 3,377 Level 7 2,500,000-2,999,999 3,500 3,605 3,713 3,825 3,939 Level 8 3,000,000 and above 5,000 5,150 5,305 5,464 5,628
(3)For all such compositions in the repertory of SESAC, the royalty rates shall be as follows: Population count 2008 2009 2010 2011 2012 Level 1 0-249,999 $120 $124 $127 $131 $135 Level 2 250,000-499,999 200 206 212 219 225 Level 3 500,000-999,999 300 309 318 328 338 Level 4 1,000,000-1,499,999 400 412 424 437 450 Level 5 1,500,000-1,999,999 500 515 530 546 563 Level 6 2,000,000-2,499,999 600 618 637 656 675 Level 7 2,500,000-2,999,999 700 721 743 765 788 Level 8 3,000,000 and above 1,000 1,030 1,061 1,093 1,126
(4)For the performance of any other such compositions, in 2008 through 2012, $1.
(d)*Payment of royalty rate.* The public broadcasting entity shall pay the required royalty rate to ASCAP, BMI and SESAC not later than January 31 of each year. Each annual payment shall be accompanied by a signed declaration stating the Population Count of the public broadcasting entity and the source for such Population Count. An exact copy of such declaration shall be furnished to each of ASCAP, BMI and SESAC. Upon prior written notice thereof from ASCAP, BMI or SESAC, a public broadcasting entity shall make its books and records relating to its Population Count available for inspection.
(e)*Records of use.* A public broadcasting entity subject to this section shall furnish to ASCAP, BMI and SESAC, upon request, a music-use report during one week of each calendar year. ASCAP, BMI and SESAC each shall not in any one calendar year request more than 10 stations to furnish such reports.
(f)*Definitions.* As used in paragraphs
(c)and
(d)of this section, the following terms and their variant forms mean the following:
(1)*Population Count.* The combination of:
(i)The number of persons estimated to reside within a station's Predicted 60 dBu Contour, based on the most recent available census data; and
(ii)The nonduplicative number of persons estimated to reside in the Predicted 60 dBu Contour of any Translator Station or Booster Station that extends a public broadcasting entity's signal beyond the contours of a station's Predicted 60 dBu Contour.
(iii)In determining Population Count, a station or a Translator Station or a Booster Station may use and report the total population data, from a research company generally recognized in the broadcasting industry, for the radio market within which the station's community license is located.
(2)*Predicted 60 dBu Contour* shall be calculated as set forth in 47 CFR 73.313.
(3)*Translator Station and Booster Station* shall have the same meanings as set forth in 47 CFR 74.1201. § 381.7 Recording rights, rates and terms.
(a)*Scope* . This section establishes rates and terms for the recording of nondramatic performances and displays of musical works, other than compositions subject to voluntary license agreements, on and for the radio and television programs of public broadcasting entities, whether or not in synchronization or timed relationship with the visual or aural content, and for the making, reproduction, and distribution of copies and phonorecords of public broadcasting programs containing such nondramatic performances and displays of musical works solely for the purpose of transmission by public broadcasting entities. The rates and terms established in this schedule include the making of the reproductions described in 17 U.S.C. 118(c)(3).
(b)*Royalty rate* . (1)(i) For uses described in paragraph
(a)of this section of a musical work in a PBS-distributed program, the royalty fees shall be calculated by multiplying the following per-composition rates by the number of different compositions in that PBS-distributed program: 2008-2012
(A)Feature $149.94
(B)Concert feature (per minute) 44.59
(C)Background 74.97
(D)Theme: ( *1* ) Single program or first series program 74.97 ( *2* ) Other series program 30.39
(ii)For such uses other than in a PBS-distributed television program, the royalty fee shall be calculated by multiplying the following per-composition rates by the number of different compositions in that program: 2008-2012
(A)Feature $9.43
(B)Concert feature (per minute) 2.48
(C)Background 4.10
(D)Theme: ( *1* ) Single program or first series of program 4.10 ( *2* ) Other series program 1.63
(iii)In the event the work is first recorded other than in a PBS-distributed program, and such program is subsequently distributed by PBS, an additional royalty payment shall be made equal to the difference between the rate specified in this section for other than a PBS-distributed program and the rate specified in this section for a PBS-distributed program.
(2)For uses licensed herein of a musical work in a NPR program, the royalty fees shall be calculated by multiplying the following per-composition rates by the number of different compositions in any NPR program distributed by NPR. For purposes of this schedule “National Public Radio” programs include all programs produced in whole or in part by NPR, or by any NPR station or organization under contract with NPR. 2008-2012
(i)Feature $12.35
(ii)Concert feature (per minute) 18.13
(iii)Background 6.19
(iv)Theme:
(A)Single program or first series program 6.19
(B)Other series program 2.47
(3)For purposes of this schedule, a “Concert Feature” shall be deemed to be the nondramatic presentation in a program of all or part of a symphony, concerto, or other serious work originally written for concert performance, or the nondramatic presentation in a program of portions of a serious work originally written for opera performance.
(4)For such uses other than in an NPR-produced radio program: 2008-2012
(i)Feature $.79
(ii)Feature (concert) (per half hour) 1.65
(iii)Background .40
(5)The schedule of fees covers use for a period of three years following the first use. Succeeding use periods will require the following additional payment: additional one-year period—25 percent of the initial three-year fee; second three-year period—50 percent of the initial three-year fee; each three-year fee thereafter—25 percent of the initial three-year fee; provided that a 100 percent additional payment prior to the expiration of the first three-year period will cover use during all subsequent use periods without limitation. Such succeeding uses which are subsequent to December 31, 2012, shall be subject to the royalty rates established in this schedule.
(c)*Payment of royalty rates.* The required royalty rates shall be paid to each known copyright owner not later than July 31 of each calendar year for uses during the first six months of that calendar year, and not later than January 31 for uses during the last six months of the preceding calendar year.
(d)*Records of use.*
(1)Maintenance of cue sheets. PBS and its stations, NPR, or other public broadcasting entities shall maintain and make available for examination pursuant to paragraph
(e)of this section copies of their standard cue sheets or summaries of same listing the recording of the musical works of such copyright owners.
(2)Content of cue sheets or summaries. Such cue sheets or summaries shall include:
(i)The title, composer and author to the extent such information is reasonably obtainable.
(ii)The type of use and manner of performance thereof in each case.
(iii)For Concert Feature music, the actual recorded time period on the program, plus all distribution and broadcast information available to the public broadcasting entity.
(e)*Filing of use reports with the Copyright Royalty Judges. Deposit of cue sheets or summaries.* PBS and its stations, NPR, or other television public broadcasting entity shall deposit with the Copyright Royalty Judges one electronic copy in Portable Document Format
(PDF)on compact disk (an optical data storage medium such as a CD-ROM, CD-R or CD-RW) or floppy diskette of their standard music cue sheets or summaries of same listing the recording pursuant to this schedule of the musical works of copyright owners. Such cue sheets or summaries shall be deposited not later than July 31 of each calendar year for recordings during the first six months of the calendar year and not later than January 31 of each calendar year for recordings during the second six months of the preceding calendar year. PBS and NPR shall maintain at their offices copies of all standard music cue sheets from which such music use reports are prepared. Such music cue sheets shall be furnished to the Copyright Royalty Judges upon their request and also shall be available during regular business hours at the offices of PBS or NPR for examination by a copyright owner who believes a musical composition of such owner has been recorded pursuant to this schedule. § 381.8 Terms and rates of royalty payments for the use of published pictorial, graphic, and sculptural works.
(a)*Scope.* This section establishes rates and terms for the use of published pictorial, graphic, and sculptural works by public broadcasting entities for the activities described in 17 U.S.C. 118. The rates and terms established in this schedule include the making of the reproductions described in 17 U.S.C. 118(c).
(b)*Royalty rate.*
(1)The following schedule of rates shall apply to the use of works within the scope of this section:
(i)For such uses in a PBS-distributed program: 2008-2012
(A)For featured display of a work $69.70
(B)For background and montage display 33.99
(C)For use of a work for program identification or for thematic use 137.40
(D)For the display of an art reproduction copyrighted separately from the work of fine art from which the work was reproduced irrespective of whether the reproduced work of fine art is copyrighted so as to be subject also to payment of a display fee under the terms of the schedule 45.14
(ii)For such uses in other than PBS-distributed programs: 2008-2012
(A)For featured display of a work $45.14
(B)For background and montage display 23.13
(C)For use of a work for program identification or for thematic use 92.27
(D)For the display of an art reproduction copyrighted separately from the work of fine art from which the work was reproduced irrespective of whether the reproduced work of fine art is copyrighted so as to be subject also to payment of a display fee under the terms of this schedule 23.14
(2)For the purposes of the schedule in paragraph (b)(1) of this section the rate for the thematic use of a work in an entire series shall be double the single program theme rate. In the event the work is first used other than in a PBS-distributed program, and such program is subsequently distributed by PBS, an additional royalty payment shall be made equal to the difference between the rate specified in this section for other than a PBS-distributed program and the rate specified in this section for a PBS-distributed program.
(3)“Featured display” for purposes of this schedule means a full-screen or substantially full-screen display appearing on the screen for more than three seconds. Any display less than full-screen or substantially full-screen, or full-screen for three seconds or less, is deemed to be a “background or montage display”.
(4)“Thematic use” is the utilization of the works of one or more artists where the works constitute the central theme of the program or convey a story line.
(5)“Display of an art reproduction copyrighted separately from the work of fine art from which the work was reproduced” means a transparency or other reproduction of an underlying work of fine art.
(c)*Payment of royalty rate.* PBS or other public broadcasting entity shall pay the required royalty fees to each copyright owner not later than July 31 of each calendar year for uses during the first six months of that calendar year, and not later than January 31 for uses during the last six months of the preceding calendar year.
(d)*Records of use.*
(1)PBS and its stations or other public broadcasting entity shall maintain and furnish either to copyright owners, or to the offices of generally recognized organizations representing the copyright owners of pictorial, graphic and sculptural works, copies of their standard lists containing the pictorial, graphic, and sculptural works displayed on their programs. Such notice shall include the name of the copyright owner, if known, the specific source from which the work was taken, a description of the work used, the title of the program on which the work was used, and the date of the original broadcast of the program.
(2)Such listings shall be furnished not later than July 31 of each calendar year for displays during the first six months of the calendar year, and not later than January 31 of each calendar year for displays during the second six months of the preceding calendar year.
(e)*Filing of use reports with the Copyright Royalty Judges.*
(1)PBS and its stations or other public broadcasting entity shall deposit with the Copyright Royalty Judges one electronic copy in Portable Document Format
(PDF)on compact disk (an optical data storage medium such as a CD-ROM, CD-R or CD-RW) or floppy diskette of their standard lists containing the pictorial, graphic, and sculptural works displayed on their programs. Such notice shall include the name of the copyright owner, if known, the specific source from which the work was taken, a description of the work used, the title of the program on which the work was used, and the date of the original broadcast of the program.
(2)Such listings shall be furnished not later than July 31 of each calendar year for displays during the first six months of the calendar year, and not later than January 31 of each calendar year for displays during the second six months of the preceding calendar year.
(f)*Terms of use.*
(1)The rates of this schedule are for unlimited use for a period of three years from the date of the first use of the work under this schedule. Succeeding use periods will require the following additional payment: Additional one-year period—25 percent of the initial three-year fee; second three-year period—50 percent of the initial three-year fee; each three-year period thereafter—25 percent of the initial three-year fee; provided that a 100 percent additional payment prior to the expiration of the first three-year period will cover use during all subsequent use periods without limitation. Such succeeding uses which are subsequent to December 31, 2012, shall be subject to the rates established in this schedule.
(2)Pursuant to the provisions of 17 U.S.C. 118(e), nothing in this schedule shall be construed to permit, beyond the limits of fair use as provided in 17 U.S.C. 107, the production of a transmission program drawn to any substantial extent from a published compilation of pictorial, graphic, or sculptural works. § 381.9 Unknown copyright owners. If PBS and its stations, NPR and its stations, or other public broadcasting entity is not aware of the identity of, or unable to locate, a copyright owner who is entitled to receive a royalty payment under this part, they shall retain the required fee in a segregated trust account for a period of three years from the date of the required payment. No claim to such royalty fees shall be valid after the expiration of the three-year period. Public broadcasting entities may establish a joint trust fund for the purposes of this section. Public broadcasting entities shall make available to the Copyright Royalty Judges, upon request, information concerning fees deposited in trust funds. § 381.10 Cost of living adjustment.
(a)On December 1, 2007, the Copyright Royalty Judges shall publish in the **Federal Register** a notice of the change in the cost of living as determined by the Consumer Price Index (all consumers, all items) during the period from the most recent Index published prior to December 1, 2006, to the most recent Index published prior to December 1, 2007. On each December 1 thereafter the Copyright Royalty Judges shall publish a notice of the change in the cost of living during the period from the most recent index published prior to the previous notice, to the most recent Index published prior to December 1, of that year.
(b)On the same date of the notices published pursuant to paragraph
(a)of this section, the Copyright Royalty Judges shall publish in the **Federal Register** a revised schedule of rates for § 381.5 which shall adjust those royalty amounts established in dollar amounts according to the change in the cost of living determined as provided in paragraph
(a)of this section. Such royalty rates shall be fixed at the nearest dollar.
(c)The adjusted schedule for rates for § 381.5 shall become effective thirty days after publication in the **Federal Register** . § 381.11 Notice of restrictions on use of reproductions of transmission programs. Any public broadcasting entity which, pursuant to 17 U.S.C. 118, supplies a reproduction of a transmission program to governmental bodies or nonprofit institutions shall include with each copy of the reproduction a warning notice stating in substance that the reproductions may be used for a period of not more than seven days from the specified date of transmission, that the reproductions must be destroyed by the user before or at the end of such period, and that a failure to fully comply with these terms shall subject the body or institution to the remedies for infringement of copyright. Dated: April 10, 2007. James Scott Sledge, Chief Copyright Royalty Judge. [FR Doc. E7-7067 Filed 4-16-07; 8:45 am] BILLING CODE 1410-72-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2007-0165; FRL-8300-3] Approval and Promulgation of Implementation Plans; Revisions to the Nevada State Implementation Plan; Stationary Source Permits AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing, under the Clean Air Act, approval of certain revisions to the applicable state implementation plan for the State of Nevada and full disapproval of certain other revisions. These revisions involve State rules governing applications for, and issuance of, permits for stationary sources, but not including review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act. These revisions involve submittal of certain new or amended State rules and requests by the State for rescission of certain existing rules from the state implementation plan. The rescission requests for which we propose approval are contingent upon receipt of public notice and hearing documentation from the State. EPA is proposing this action under the Clean Air Act obligation to take action on State submittals of revisions to state implementation plans. The intended effect is to update the rules governing permitting in the applicable state implementation plan and to rescind unnecessary provisions from the applicable plan. EPA is taking comments on this proposal and plans to follow with a final action. DATES: Any comments must arrive by June 18, 2007. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-0165, by one of the following methods: 1. Federal eRulemaking Portal: *www.regulations.gov.* Follow the on-line instructions. 2. E-mail: *R9airpermits@epa.gov.* 3. Mail or deliver: Gerardo Rios (Air-3), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or e-mail. www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. *Docket:* The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location ( *e.g.* , copyrighted material), and some may not be publicly available in either location ( *e.g.* , CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX,
(415)972-3534, *yannayon.laura@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, the terms “we,” “us” and “our” refer to EPA. Table of Contents I. The State's Submittal A. Which rules did the state submit or rescind? B. What is the regulatory history of the Nevada SIP? C. What is the purpose of this proposed rule? II. EPA's Evaluation and Action A. How is EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. Public comment and proposed action. III. Statutory and Executive Order Reviews I. The State's Submittal A. Which rules did the state submit or rescind? On February 16, 2005, the State of Nevada's Department of Conservation and Natural Resources, Division of Environmental Protection
(NDEP)submitted a large revision to the applicable State Implementation Plan (SIP). The February 16, 2005 SIP revision submittal includes statutory provisions, new or amended rules as well as requests for rescission of certain statutory provisions and rules approved by EPA into the applicable SIP. The rules and rescission requests submitted by NDEP on February 16, 2005 relate to definitions, administrative requirements, prohibitory rules, and permitting-related requirements and procedures. The February 16, 2005 SIP submittal also includes documentation of public notice and hearing for all of the new or amended rules through the hearing on November 30, 2004 held by the Nevada State Environmental Commission. On January 12, 2006, NDEP re-submitted most of the earlier submittal as modified to reflect new or amended rules adopted by the State Environmental Commission on October 4, 2005. The January 12, 2006 SIP revision submittal supersedes the regulatory portion of the earlier SIP revision submittal but is not a complete re-submittal of the earlier submittal in that it did not include the documentation of public notice and hearing previously submitted. The January 12, 2006 SIP revision submittal does include such documentation for amendments adopted by the commission on October 4, 2005. On December 8, 2006, NDEP submitted a SIP revision supplementing and superseding certain rules submitted on January 12, 2006 to reflect amendments adopted by the State Environmental Commission on September 6, 2006. The December 8, 2006 SIP revision submittal contains the amended rules and related documentation of public notice and hearing. Our consideration of the rules submitted on January 12, 2006 and December 8, 2006 is made herein in light of the public participation documentation contained in those two submittals as well as the February 16, 2005 submittal. With some specific exceptions, none of the three submittals contains documentation of public notice and hearing for the State's rescissions. The primary purpose of these SIP revision submittals is to clarify and harmonize the provisions approved by EPA under section 110 of the Clean Air Act (“Act” or CAA) with the current provisions adopted by the State. Because these submittals incorporate so many changes from the 1970s and 1980s vintage SIP regulations, EPA has decided to review and act on them in a series of separate actions. The first such action, related to various definitions, sulfur emission rules, and restrictions on open burning and use of incinerators, was proposed in the **Federal Register** on September 13, 2005 (70 FR 53975) and finalized on March 27, 2006 (71 FR 15040). The second such action, related to statutory authority, was proposed on June 9, 2006 (71 FR 33413) and finalized on August 31, 2006 (71 FR 51766). A third action, related to most of the State's rescissions, was proposed on August 28, 2006 (71 FR 50875); EPA finalized most of the proposed rescissions on January 3, 2007 (72 FR 11). A fourth action, related to monitoring and VOC rules, was proposed on August 31, 2006 (71 FR 51793) and finalized on December 11, 2006 (71 FR 71486). In today's action, we are taking another step in the process of acting on the State's January 12, 2006, and December 8, 2006 SIP revision submittals by proposing action on the State's submittal of rules governing applications for, and issuance of, permits for stationary sources. 1 We are also proposing action on the State's requests for rescission of certain permit-related rules in the existing SIP. The remaining portions of the submittals will be acted on in future **Federal Register** actions. 1 We note that the stationary source permitting rules that are the subject of this proposal are not intended to satisfy the requirements for pre-construction review and permitting of major sources or major modifications under part C (“Prevention of significant deterioration of air quality”) or part D (“Plan requirements for nonattainment areas”) of title I of the Clean Air Act. Of the 100+ permit-related rules or statutes that were submitted by NDEP for approval or for rescission, we are proposing action today on all but two. We are deferring action on the State's requests for rescission of rule 25 of general order number 3 of the Nevada Public Service Commission and Nevada Revised Statutes
(NRS)704.820 to 704.900—Construction of utility facilities: utility environmental protection act. Rule 25 of general order number 3 and NRS 704.820-900 relate to new source review under part D, and as such, we will take action on the State's related rescissions after the State submits, and we take action on, a revised “nonattainment” new source review program under part D of title I of the Clean Air Act. B. What is the regulatory history of the Nevada SIP? Pursuant to the Clean Air Amendments of 1970, the Governor of Nevada submitted the original Nevada SIP to EPA in January 1972. EPA approved certain portions of the original SIP and disapproved other portions under CAA section 110(a). See 37 FR 10842 (May 31, 1972). For some of the disapproved portions of the original SIP, EPA promulgated substitute provisions under CAA section 110(c). 2 This original SIP included various rules, codified as articles within the Nevada Air Quality Regulations (NAQR), and various statutory provisions codified in chapter 445 of the Nevada Revised Statutes (NRS). In the early 1980's, Nevada reorganized and re-codified its air quality rules into sections within chapter 445 of the Nevada Administrative Code (NAC). Today, Nevada codifies its air quality regulations in chapter 445B of the NAC and codifies air quality statutes in chapter 445B (“Air Pollution”) of title 40 (“Public Health and Safety”) of the NRS. 2 Provisions that EPA promulgates under CAA section 110(c) in substitution of disapproved State provisions are referred to as Federal Implementation Plans (FIPs). Nevada adopted and submitted many revisions to the original set of regulations and statutes in the SIP, some of which EPA approved on February 6, 1975 at 40 FR 5508; on March 26, 1975 at 40 FR 13306; on January 9, 1978 at 43 FR 1341; on January 24, 1978 at 43 FR 3278; on August 21, 1978 at 43 FR 36932; on July 10, 1980 at 45 FR 46384; on April 14, 1981 at 46 FR 21758; on August 27, 1981 at 46 FR 43141; on March 8, 1982 at 47 FR 9833; on April 13, 1982 at 47 FR 15790; on June 18, 1982 at 47 FR 26386; on June 23, 1982 at 47 FR 27070; on March 27, 1984 at 49 FR 11626. Since 1984, EPA has approved very few revisions to Nevada's applicable SIP despite numerous changes that have been adopted by the State Environmental Commission. As a result, the version of the rules enforceable by NDEP is often quite different from the SIP version enforceable by EPA. C. What is the purpose of this proposed rule? The purpose of this proposed rule is to present our evaluation under the Clean Air Act and EPA's regulations of the new and amended rules in NDEP's January 12, 2006 and December 8, 2006 SIP revision submittals. The submitted rules relate to application for, and issuance of, permits for stationary sources and with respect to NDEP's requests for rescission of certain permitting-related rules from the existing SIP. We provide our reasoning in general terms below but provide a more detailed analysis in the technical support document
(TSD)that has been prepared for this proposed rulemaking. II. EPA's Evaluation and Action A. How is EPA evaluating the rules? Under CAA section 110(k)(2), EPA is obligated to take action on submittals by States of SIPs and SIP revisions. CAA section 110(k)(3) authorizes EPA to approve or disapprove, in whole or in separable part, such submittals. EPA has reviewed the rules submitted on January 12, 2006 and December 8, 2006 by NDEP governing application for, and issuance of, permits for stationary sources and the permitting-related rules (in the existing SIP) that the State has requested rescission for compliance with the CAA requirements for SIPs in general set forth in CAA section 110(a)(2) and for stationary source permitting programs in particular in 40 CFR part 51, sections 51.160 through 51.164, and also for compliance with CAA requirements for SIP revisions in CAA section 110(l) and 193. 3 As described below, EPA is proposing approval of some, but full disapproval of most, of the submitted rules and rescissions. 3 CAA section 110(l) requires SIP revisions to be subject to reasonable notice and public hearing prior to adoption and submittal by States to EPA and prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. CAA section 193 provides that no control requirement in effect in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant. B. Do the rules meet the evaluation criteria? We are proposing action on the submitted rules listed in tables 1 and 2 and on the requests for rescission of existing SIP rules listed in table 3. Table 1 lists the submitted rules that, while permit-related, are separable from the rest of the permit-related rules and thus qualify for action independent of our action on the bulk of the permit-related rules. Table 2 lists the submitted set of rules that comprise the bulk of NDEP's stationary source permitting program (excluding review under parts C and D of the title I of the CAA). Table 3 lists the permit-related rules (in the existing SIP) for which NDEP has requested rescission and for which we are proposing action. Table 1.—Submitted Rules That Are Proposed for Action Independent of the Rest of the Permit-Related Rules Submitted rule Title Adoption date Submittal date Proposed action NAC 445B.021 “Area source” defined 11/03/93 01/12/06 Disapproval. NAC 445B.028 “Best available control technology” defined 03/26/96 01/12/06 Disapproval. NAC 445B.178 “Source reduction” defined 03/03/94 01/12/06 Disapproval. NAC 445B.196 “Toxic regulated air pollutant” defined 10/03/95 01/12/06 Disapproval. NAC 445B.22083 Construction, major modification or relocation of plants to generate electricity using steam produced by burning of fossil fuels 10/04/05 01/12/06 Approval. NAC 445B.250 Notification of planned construction or reconstruction 10/04/05 01/12/06 Approval. NAC 445B.252 Testing and sampling 09/18/03 01/12/06 Approval. The separable, submitted rules are listed in table 1 along with the applicable adoption and submittal dates and our proposed actions. As shown in table 1, we are proposing approval of the three specific submitted rules and disapproval of four specific submitted rules. We are proposing approval of NAC 445B.22083, 445B.230, and 445B.252 because they strengthen the SIP and otherwise meet all applicable requirements. We are proposing disapproval of NAC 445B.021, 445B.178, and 445B.196 because they define terms that are not used in any of the other submitted rules or in any of the rules of the existing SIP and thus are unnecessary. We are also proposing to disapprove NAC 445B.028 (“Best Available Control Technology” defined) because it is not used in any of the other submitted rules and is used only in an existing SIP rule for which we are proposing to grant NDEP's rescission request. 4 The TSD provides more details concerning our proposal and rationale with respect to each of the rules listed in table 1. 4 “Best Available Control Technology”
(BACT)is the control technology requirement under EPA's Prevention of Significant Deterioration
(PSD)regulations for pre-construction review and permitting of new major sources and major modifications in attainment or unclassifiable areas, and we would expect this definition to be re-submitted by NDEP when they submit their rules implementing PSD for approval by EPA as a SIP revision. Table 2 lists the submitted rules governing application for, and issuance of, permits for stationary sources under NDEP jurisdiction in the State of Nevada, excluding rules intended to provide for review and permitting of major sources and major modifications under parts C and D of title I of the CAA. In our review of these submitted rules, we have identified a number of deficiencies that lead us to conclude that the submitted rules do not comply with the requirements of section 110 and 40 CFR part 51, sections 51.160 through 51.164 and that form the basis for our proposed disapproval. Table 2.—Submitted Rules Governing Application for, and Issuance of, Permits for Stationary Sources Under NDEP Jurisdiction Submitted rule Title Adoption date Submittal date NAC 445B.003 “Adjacent properties” defined 11/03/93 01/12/06 NAC 445B.0035 “Administrative revision to a Class I operating permit” defined 08/19/04 01/12/06 NAC 445B.007 “Affected state” defined 11/03/93 01/12/06 NAC 445B.013 “Allowable emissions” defined 10/04/05 01/12/06 NAC 445B.014 “Alteration” defined 10/03/95 01/12/06 NAC 445B.016 “Alternative operating scenarios” defined 10/03/95 01/12/06 NAC 445B.019 “Applicable requirements” defined 01/22/98 01/12/06 NAC 445B.035 “Class I-B application” defined 10/03/95 01/12/06 NAC 445B.036 “Class I source” defined 08/19/04 01/12/06 NAC 445B.037 “Class II source” defined 09/18/01 01/12/06 NAC 445B.038 “Class III source” defined 09/18/01 01/12/06 NAC 445B.044 “Construction” defined 10/04/05 01/12/06 NAC 445B.046 “Contiguous property” defined 09/16/76 01/12/06 Sec. 2 of R096-05 “Dispersion technique” defined 10/04/05 01/12/06 Sec. 3 of R096-05 “Excessive concentration” defined 10/04/05 01/12/06 NAC 445B.066 “Existing stationary source” defined 10/03/95 01/12/06 NAC 445B.068 “Facility” defined 10/03/95 01/12/06 NAC 445B.069 “Federally enforceable” defined 11/03/93 01/12/06 NAC 445B.070 “Federally enforceable emissions cap” defined 11/03/93 01/12/06 NAC 445B.082 “General permit” defined 10/03/95 01/12/06 Sec. 4 of R096-05 “Good engineering practice stack height” defined 10/04/05 01/12/06 NAC 445B.087 “Increment” defined 11/03/93 01/12/06 NAC 445B.093 “Major modification” defined 08/19/04 01/12/06 NAC 445B.094 “Major source” defined 05/10/01 01/12/06 NAC 445B.0945 “Major stationary source” defined 08/19/04 01/12/06 NAC 445B.099 “Modification” defined 10/03/95 01/12/06 NAC 445B.104 “Motor vehicle” defined 05/10/01 01/12/06 Sec. 5 of R096-05 “Nearby” defined 10/04/05 01/12/06 NAC 445B.108 “New stationary source” defined 10/03/95 01/12/06 NAC 445B.117 “Offset” defined 10/03/95 01/12/06 NAC 445B.123 “Operating permit” defined 11/19/02 01/12/06 NAC 445B.124 “Operating permit to construct” defined 11/19/02 01/12/06 NAC 445B.1345 “Plantwide applicability limitation” defined 08/19/04 01/12/06 NAC 445B.138 “Potential to emit” defined 03/26/98 01/12/06 NAC 445B.142 “Prevention of significant deterioration of air quality” defined 11/03/93 01/12/06 NAC 445B.147 “Program” defined 11/03/93 01/12/06 NAC 445B.154 “Renewal of an operating permit” defined 11/03/93 01/12/06 NAC 445B.156 “Responsible official” defined 11/03/93 01/12/06 NAC 445B.157 “Revision of an operating permit” defined 08/19/04 01/12/06 NAC 445B.179 “Special mobile equipment” defined 05/10/01 01/12/06 NAC 445B.187 “Stationary source” defined 05/10/01 01/12/06 NAC 445B.194 “Temporary source” defined 05/10/01 01/12/06 NAC 445B.287 Operating permits: General requirements; exception; restriction on transfers 08/19/04 01/12/06 NAC 445B.288 Operating permits: Exemptions from requirements; insignificant activities 05/10/01 01/12/06 NAC 445B.295 Application: General requirements 09/06/06 12/08/06 NAC 445B.297 Application: Submission of application and supplementary or corrected information 08/19/04 01/12/06 NAC 445B.298 Application: Official date of submittal 08/19/04 01/12/06 NAC 445B.305 Operating permits: Imposition of more stringent standards for emissions 10/03/95 01/12/06 NAC 445B.308 Prerequisites and conditions for issuance of operating permits: Environmental evaluation; compliance with control strategy; exemption from environmental evaluation 09/06/06 12/08/06 NAC 445B.310 Environmental evaluation: Applicable sources 09/06/06 12/08/06 NAC 445B.311 Environmental evaluation: Required information 09/06/06 12/08/06 NAC 445B.313 Method for determining heat input: Class I sources 11/19/02 01/12/06 NAC 445B.3135 Method for determining heat input: Class II sources 11/19/02 01/12/06 NAC 445B.314 Method for determining heat input: Class III sources 11/19/02 01/12/06 NAC 445B.315 Contents of operating permits: Exception for operating permits to construct; required conditions 11/19/02 01/12/06 NAC 445B.318 Operating permits: Separate permit required for each source; form of application; issuance or denial of permit; posting of permit 09/06/06 12/08/06 NAC 445B.319 Operating permits: Administrative amendment 08/19/04 01/12/06 NAC 445B.325 Operating permits: Termination, reopening and revision, revision, or revocation and reissuance 01/22/98 01/12/06 NAC 445B.326 Operating permits: Assertion of emergency as affirmative defense to action for noncompliance 11/03/93 01/12/06 NAC 445B.331 Request for change of location of emission unit 09/06/06 12/08/06 NAC 445B.3361 General requirements 09/06/06 12/08/06 NAC 445B.3363 Operating permit to construct: Application 09/06/06 12/08/06 NAC 445B.33637 Operating permit to construct for approval of plantwide applicability limitation: Application 08/19/04 01/12/06 NAC 445B.3364 Operating permit to construct: Review of application and determination of completeness by director; notice 09/06/06 12/08/06 NAC 445B.3365 Operating permit to construct: Required conditions 09/06/06 12/08/06 NAC 445B.33656 Operating permit to construct for approval of plantwide applicability limitation: Required conditions and information 09/06/06 12/08/06 NAC 445B.3366 Operating permit to construct: Expiration; extension 09/06/06 12/08/06 NAC 445B.3368 Application: Additional requirements; exception 08/19/04 01/12/06 NAC 445B.3375 Class I-B application: Filing requirement 09/06/06 12/08/06 NAC 445B.3395 Review of application and determination of completeness by director; notice; expiration of permit 09/06/06 12/08/06 NAC 445B.340 Prerequisites to issuance, revision or renewal of permit 01/22/98 01/12/06 NAC 445B.342 Revision of permit: Exception when making certain changes; notification of changes 09/06/06 12/08/06 NAC 445B.3425 Minor revision of permit 08/19/04 01/12/06 NAC 445B.344 Significant revision of permit 11/19/02 01/12/06 NAC 445B.3441 Administrative revision of permit to incorporate conditions of certain permits to construct 09/06/06 12/08/06 NAC 445B.3443 Renewal of permit 02/26/04 01/12/06 NAC 445B.3453 Application: General requirements 11/19/02 01/12/06 NAC 445B.3457 Application: Determination of completeness by director 09/06/06 12/08/06 NAC 445B.346 Required contents of permit 10/03/95 01/12/06 NAC 445B.3465 Application for revision 10/04/05 01/12/06 NAC 445B.3473 Renewal of permit 02/26/04 01/12/06 NAC 445B.3477 Class II general permit 11/19/02 01/12/06 NAC 445B.3485 Application: General requirements 09/06/06 12/08/06 NAC 445B.3487 Application: Determination of completeness by director 09/06/06 12/08/06 NAC 445B.3489 Required content of permits 09/06/06 12/08/06 NAC 445B.3493 Application for revision 09/18/01 01/12/06 NAC 445B.3497 Renewal of permits 02/26/04 01/12/06 First, we find that certain submitted rules use undefined terms, contain incorrect citations, rely on rules or statutory provisions that have not been submitted for approval as part of the SIP, or multiple versions of the same rule were included in the same submittal, and thus are unnecessarily ambiguous. Specifically, NAC 445B.3366 relies on the term, “commence,” that is not defined in the SIP for contexts outside of CAA section 111. NAC 445B.069 includes incorrect citations to EPA regulations. The following submitted rules rely on rules or statutory provisions that have not been submitted: NAC 445B.287 (citing subsection (2)), NAC 445B.104 (citing NRS 485.050), NAC 445B.179 (citing NRS 482.123), and NAC 445B.311 (citing 445B.083). More than one version of the following rules was submitted on December 8, 2006: NAC 445B.308, NAC 445B.3363, and NAC 445B.3364. NDEP must define the relevant term, correct the citations, submit the relevant rules and statutory provisions for approval into the SIP, and submit a single version of those rules for which multiple versions were submitted. Second, the definition of “potential to emit” in submitted rule NAC 445B.138 must be revised to require effective limits and to include criteria by which a limit is judged to be practicably enforceable by NDEP. Third, NDEP's stationary source program may not be as inclusive as required under the CAA depending upon whether the exclusion of “special mobile equipment” from the definition of “stationary source” in submitted rule NAC 445B.187 extends to engines and vehicles that are not considered to be “nonroad.” Absent a satisfactory explanation by NDEP, the definition must be amended accordingly. Fourth, the method for determining heat input for class I sources in submitted rule NAC 445B.313 must be amended to require combustion sources to make applicability determinations based on the maximum heat input. Fifth, NAC 445B.331 (“Request for change of location of emission unit”) must be amended to limit its applicability to location changes within the confines of the existing stationary source at which the emission unit is originally permitted. Relocation of an emission unit to a site outside of the existing source at which it is originally permitted should trigger new source review. Sixth, the submitted rule NAC 445B.3477 (“Class II general permit”) does not identify the requirements for general permits, the public participation requirements for issuing such permits, nor the criteria by which stationary sources may qualify for such a permit. To be approved, the rule must be amended accordingly. Seventh, NAC 445B.311 allows for NDEP to authorize use of a modification or substitution of a model specified in appendix W of 40 CFR part 51 without EPA approval and must be amended accordingly to comply with 40 CFR 51.160(f). Eighth, to comply with 40 CFR 51.161 (“Public availability of information”), the relevant submitted rules must be amended to provide for adequate public review of new or modified class II sources. Under submitted rule NAC 445B.3457 (“Application: Determination of completeness by Director”), NDEP may initiate public notice and comment if, after review of an application for a class II permit, NDEP determines that the change to the stationary source results in a significant change in air quality at any location where the public is present on a regular basis. Such a provision does not provide well-defined objective criteria for determining when public notice is required to meet the requirements of 40 CFR 51.161. With respect to issue of public review of proposed permits, the submitted provisions for class I sources are generally acceptable with one exception; NAC 445B.3364 must be amended to specifically require that copies of NDEP's review and preliminary intent to issue or deny a class I operating permit be sent to Washoe County Health District for those sources proposed to be constructed or modified in Washoe County and to the Clark County Department of Air Quality and Environmental Management in Clark County. Also, the rules must be amended to provide for public participation for sources of lead with PTE's greater than 5 tons per year. See 40 CFR 51.100(k)(2) and 40 CFR 51.161(d). Ninth, while the affirmative defense provision in NAC 445B.326 is acceptable as applied to permit conditions, it is not approvable under CAA section 110(a)(2) if applied to technology-based emission limitations approved into the SIP. Because of the potential for confusion, NAC 445B.326 should be withdrawn from further consideration as part of the Nevada SIP or must be revised to clarify that the affirmative defense applies only to actions brought for noncompliance of permit conditions and not to technology-based emission limitations approved into the SIP. Lastly, while the submitted rules include a specific prohibition on approving a permit for any source where the degree of emission limitation required is affected by that amount of the stack height as exceeds good engineering practice stack height or any other dispersion technique, the relevant provision (i.e., 445B.308(3)) includes director's discretion (* * * if “the Director determines” * * *), which must be removed in order for EPA to approve the rules as meeting the requirements of 40 CFR 51.164. The TSD provides more details concerning our proposal and rationale with respect to each of the issues discussed above in connection with the rules listed in table 2. In the TSD, we also identify certain other deficiencies in the rules listed in table 2 that we do not view as approvability issues but that we recommend for further clarification or correction. Table 3 lists the permit-related rules in the existing SIP for which NDEP has requested rescission and for which we are proposing action. Table 3 lists these rules along with the dates they were submitted to EPA and the dates on which we published approval of them into the SIP in the **Federal Register** . As shown in table 3, we are proposing approval of rescission requests for NAQR article 13.1.3(3) and NAC 445.706(2) and proposing disapproval of rescission requests for NAQR article 1.60 and 1.72 and NAC 445.715. Table 3.—Existing SIP Rules for Which the State Has Requested Rescission and for Which We Are Proposing Action Existing SIP rule Title Submittal date Approval date and FR Proposed action Article 1.60 Effective date 12/29/78 08/27/81 at 46 FR 43141 Disapproval. NAQR Article 1.72 Existing facility 12/10/76 08/21/78 at 43 FR 36932 Disapproval. NAQR Article 13, subsection 13.1.3(3) [BACT requirement in attainment areas] 03/17/80 04/14/81 at 46 FR 21758 Approval. NAC 445.706(2) [payment of fees] 10/26/82 03/27/84 at 49 FR 11626 Approval. NAC 445.715 Operation permits: Revocation 10/26/82 03/27/84 at 49 FR 11626 Disapproval. We are proposing approval of the rescission request for NAQR article 13.1.3(3), which applies a control technology requirement defined by Best Available Control Technology
(BACT)to certain new sources in attainment areas for the following reasons: • Air pollution permit programs developed by States under section 110 of the Clean Air Act are not required to impose a BACT requirement on new sources in attainment areas so long as the program is not intended to satisfy part C of title I of the Act; • Rescission of the SIP BACT requirement would only act prospectively and would not relax emission limits in any existing permits; • Rescission would not eliminate the BACT requirement for all new sources in Nevada given that BACT continues to be a requirement for new major sources and major modifications in attainment areas under EPA's prevention of significant deterioration regulations at 40 CFR 52.21 (see 40 CFR 52.1485); and • We find no evidence to suggest that Nevada is relying on the BACT requirement in NAQR article 13.1.3(3) to maintain the National Ambient Air Quality Standards (NAAQS) in any area. Thus, we find that rescission of the BACT requirement in NAQR article 13.1.3(3) from the SIP would not interfere with continued attainment of the NAAQS and can therefore be approved under CAA section 110(l). We are proposing approval of the rescission request for NAC 445.706(2), which relates to permit fees, because permit fee rules are no longer required for the NDEP portion of the Nevada SIP under CAA section 110(a)(2)(L) given our approval of NDEP's title V program (and related fee requirements). Our proposed approval of the rescission requests for NAQR article 13.1.3(3) and NAC 445.706(2) is contingent upon receipt of documentation from NDEP of notice and public hearing for repeal or rescission of these provisions as required under CAA section 110(l) for all SIP revisions. We are proposing disapproval of the rescission request for NAQR article 1.60 because it defines a term, “effective date,” that is relied upon by other terms in the existing SIP that NDEP intends to retain, such as “existing source” as defined in NAQR article 1.73 and “new source” as defined in NAQR article 1.114. We find that the rescission requests for NAQR article 1.72 and NAC 445.715 could otherwise be approved but for the fact that we are proposing disapproval of the submitted set of rules comprising NDEP's current stationary source permitting program (listed in table 2, above). NAQR article 1.72 and NAC 445.715 need to be retained in connection with the stationary source permitting program as approved in the existing SIP, and thus we are proposing to disapprove their related rescission requests at this time. The TSD provides more details concerning our proposal and rationale with respect to each of the rules listed in table 3. C. Public Comment and Proposed Action Under CAA section 110(k)(3) and for the reasons stated above, EPA is proposing, under the Clean Air Act, approval of certain revisions to the applicable Nevada SIP and full disapproval of certain other revisions. These revisions involve State rules governing applications for, and issuance of, permits for stationary sources, but not including pre-construction review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act. NDEP submitted the rules that are the subject of this proposal on January 12, 2006 and re-submitted amendments to some of these rules on December 8, 2006. Specifically, we are proposing approval of three specific submitted rules and disapproval of one such rule (see table 1, above); full disapproval of the rest of the submitted rules that comprise NDEP's stationary source permitting program (see table 2, above); and approval of two, and disapproval of three, requests for rescission of rules from the existing SIP (see table 3, above). The rescission requests for which we propose approval are contingent upon receipt of public notice and hearing documentation from the State. We will accept comments from the public on this proposal for the next 60 days. Unless we receive convincing new information during the comment period, we intend to publish a final rule that will approve three rules shown in table 1, above, as revisions to the Nevada SIP; 5 disapprove one rule shown in table 1 and all of the submitted rules shown in table 2, above; rescind two rules shown in table 3, above, from the Nevada SIP (contingent upon receipt of public notice and hearing documentation); and retain three rules (also shown in table 3) in the Nevada SIP. If we finalize our disapproval of the relevant submitted rules, we will not be imposing sanctions under CAA section 179 and 40 CFR 52.31 because the State of Nevada has an approved stationary source permitting program in the applicable SIP and is not required under the Clean Air Act to submit its updated stationary source permitting program to EPA for approval. 6 5 Final approval of these rules would supersede the following rules in the applicable SIP (superseding rules shown in parentheses) upon the established compliance date for any new or amended requirements in the superseding rules: NAC 445B.22083, as submitted on November 30, 2003 (NAC 445B.22083); NAQR article 2.16.1 (NAC 445B.250); and NAC 445.682 (NAC 445B.252). 6 In this context, we are referring to NDEP's program for issuing pre-construction permits for all new sources and modifications other than those for which part C (i.e., PSD) or part D (i.e., Nonattainment NSR) of title I of the CAA apply and for issuing operating permits under title I of the CAA (not title V). III. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve or disapprove new or amended state rules, or to approve or disapprove requests for rescission of previously-approved state rules, 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 or disapprove pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve or disapprove new or amended state rules, or to approve or disapprove requests for rescission of previously-approved state rules, implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Lead, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Authority: 42 U.S.C. 7401 *et seq.* Dated: April 4, 2007. Jane Diamond, Acting Regional Administrator, Region IX. [FR Doc. E7-7285 Filed 4-16-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2002-0034; FRL-8299-8] RIN 2060-AM85 National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing amendments to the national emission standards for hazardous air pollutants for iron and steel foundries. The proposed amendments add alternative compliance options for cupolas at existing foundries and clarify several provisions to increase operational flexibility and improve understanding of the final rule requirements. DATES: Comments must be received on or before May 17, 2007, unless a public hearing is requested by April 27, 2007. If a hearing is requested on the proposed rule, written comments must be received by June 1, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2002-0034, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-docket@epa.gov.* • *Fax:*
(202)566-1741. • *Mail:* National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Docket, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. • *Hand Delivery:* EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 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-HQ-OAR-2002-0034. 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 docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. Phil Mulrine, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (D243-02), Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number:
(919)541-5289; fax number:
(919)541-3207; e-mail address: *mulrine.phil@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? The regulated categories and entities potentially affected by this proposed action include: Category NAICS code 1 Examples of regulated entities Industry 331511 Iron foundries. Iron and steel plants. Automotive and large equipment manufacturers. 331512 Steel investment foundries. 331513 Steel foundries (except investment). Federal government Not affected. State/local/tribal government Not affected. 1 North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. To determine whether your facility would be regulated by this action, you should examine the applicability criteria in 40 CFR 63.7682 of subpart EEEEE (NESHAP for Iron and Steel Foundries). If you have any questions regarding the applicability of this action to a particular entity, consult either the air permit authority for the entity or your EPA regional representative as listed in 40 CFR 63.13 of subpart A (General Provisions). B. What should I consider as I prepare my comments to EPA? Do not submit information containing confidential business information
(CBI)to EPA through www.regulations.gov or e-mail. Send or deliver information identified as CBI only to the following address: Roberto Morales, OAQPS Document Control Officer (C404-02), Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina 27711, Attention Docket ID EPA-HQ-OAR-2002-0034. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. C. Where can I get a copy of this document? In addition to being available in the docket, an electronic copy of this proposed action will also be available on the Worldwide Web
(WWW)through the Technology Transfer Network (TTN). Following signature, a copy of this proposed action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: *http://www.epa.gov/ttn/oarpg/* . The TTN provides information and technology exchange in various areas of air pollution control. D. When would a public hearing occur? If anyone contacts EPA requesting to speak at a public hearing concerning the proposed amendments by April 27, 2007, we will hold a public hearing on May 2, 2007. If you are interested in attending the public hearing, contact Ms. Pamela Garrett at
(919)541-7966 to verify that a hearing will be held. E. How is this document organized? The supplementary information in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments to EPA? C. Where can I get a copy of this document? D. When would a public hearing occur? E. How is this document organized? II. Background Information III. Summary of Proposed Amendments A. Emissions Limitations B. Work Practice Standards C. Operation and Maintenance Requirements D. Compliance With Alternative Emissions Limits E. Monitoring Requirements F. Recordkeeping and Reporting Requirements G. Definitions H. Applicability I. Editorial Corrections IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations II. Background Information The national emission standards for hazardous air pollutants (NESHAP) for iron and steel foundries (40 CFR part 63, subpart EEEEE) establish emissions limitations and work practice requirements for the control of hazardous air pollutants
(HAP)from foundry operations. The NESHAP implement section 112(d) of the Clean Air Act
(CAA)by requiring all iron and steel foundries that are major sources of HAP to meet standards reflecting application of the maximum achievable control technology (MACT). The compliance date for most of the subpart EEEEE requirements is April 23, 2007. After publication of the NESHAP (69 FR 21906, April 22, 2004), the American Foundry Society, the Alliance of Automobile Manufacturers, and the Steel Founders' Society of America filed petitions for reconsideration of the final rule. The American Foundry Society and the Steel Founders' Society of America also filed petitions for review of the final rule ( *Steel Founders' Society of America* v. *U.S. EPA* , No. 04-1190, DC Cir.) and *American Foundry Society* v. *U.S. EPA* , No. 04-1191, DC Cir.). The concerns raised by the petitioners regarding the work practice standards for scrap management have been resolved by rule amendments issued on May 20, 2005 (97 FR 29400). The Steel Founders' Society of America petitioned the court for voluntary dismissal of their petition for review on March 23, 2006, and the court granted that petition on May 2, 2006. Thus, the only challenge to the NESHAP remaining before the court is the American Foundry Society petition for review, No. 04-1191. This proposed rule addresses the need for alternative emissions limits for cupolas at existing foundries and clarification of other rule requirements. EPA anticipates that these proposed amendments will resolve the remaining issues raised by the petitioners. These amendments are set out in Attachment A to a settlement agreement between EPA and the petitioners that became final on March 9, 2007. In accordance with section 113(g) of the CAA, EPA published a notice of the proposed settlement agreement (72 FR 1986, January 17, 2007) and provided a 30-day comment period which ended on February 16, 2007. The settlement agreement requires that the EPA Administrator sign proposed amendments no later than April 9, 2007. In addition, since publication of the final rule, we have identified a few minor editorial errors requiring correction. Rather than publish a separate notice of corrections, we are including those changes along with the proposed amendments. III. Summary of Proposed Amendments A. Emissions Limitations 1. New Compliance Options for Cupola Metal Melting Furnaces Section 63.7690(a)(2) of the NESHAP establishes HAP emissions limits for cupola metal melting furnaces at existing iron and steel foundries. The owner or operator may elect to comply with a limit of 0.006 grains per dry standard cubic foot (gr/dscf) of particulate matter
(PM)or 0.0005 gr/dscf of total metal HAP. The PM emissions limits for cupolas were based on an evaluation of the average performance achieved by the top 12 percent of the cupola emissions sources (i.e., the “MACT floor”). Because baghouses (the technology on which the MACT floor performance was based) are generally designed to meet a specified outlet concentration limit and because EPA Method 5 (40 CFR part 60, appendix A) directly determines concentration, a concentration-based emissions limit was selected for inclusion in the rule. The alternative concentration-based emissions limit expressed as total metal HAP provided equivalent metal HAP emissions reductions as the MACT floor PM emissions limit. We documented the determination of these emissions limits in a memorandum titled, “Determination of the MACT Floor Metal HAP Emission Limits for Iron and Steel Foundries”, which is included in the docket for the final rule (Docket Item No. EPA-HQ-OAR- 2002-0034-0239). As part of our discussions with the petitioners on technical issues, we recognized the need for an equivalent mass-based emissions limit for cupola melting furnaces to allow the use of control technologies that are designed on a mass removal basis rather than an outlet concentration basis. We reviewed the data previously identified for the top 12 percent of cupola emissions sources as well as the 6th percentile unit on which the promulgated emissions limit was based. These data indicate that the equivalent mass PM emissions rate for a baghouse operating at the MACT floor emissions limit for cupolas at existing sources (0.006 gr/dscf) is 0.10 pound per ton (lb/ton) of metal charged. In terms of total metal HAP, the MACT-equivalent mass emissions rate for cupolas at existing sources is 0.008 lb/ton. We documented the determination of these mass-based emissions limits in a memorandum titled, “Determination of a MACT Floor Equivalent Emission Limit for Cupola Melting Furnaces,” which is included in the docket for this rulemaking (Docket Item EPA-HQ-OAR-2002-0034-0223). Therefore, we are proposing to amend the emissions limits in 40 CFR 63.7690(a)(2) for cupolas at existing sources to add alternative limits of 0.10 lb/ton of PM or 0.008 lb/ton of total metal HAP. 2. Fugitive Emissions Opacity Limit Some of the petitioners requested that we revise the opacity limit for fugitive emissions in 40 CFR 63.7690(a)(7) to clarify that the limit does not apply to fugitive emissions that are unrelated to emissions sources subject to the NESHAP. According to the petitioners, the rule could be interpreted to apply to fugitive emissions from foundry-related operations not subject to the rule or operations in other source categories that may be co-located in foundries. Some foundries are co-located with other manufacturing processes that are housed in separate buildings. We did not intend to set emissions limitations for these co-located operations. Therefore, we are clarifying that the opacity emissions limitations apply only to buildings that house iron and steel foundry emissions sources. If nonfoundry operations are housed in the same building as the foundry operations, the foundry must comply with the opacity limits for that building. 3. Triethylamine Emissions Limit In response to the petitioners' suggestion, we are proposing to clarify the language of the emissions limit for triethylamine
(TEA)in § 63.7690(a)(11) by replacing the reference to test conditions (“as determined when scrubbing with fresh acid solution”) with the phrase “according to the performance test procedures in § 63.7732(g)” since § 63.7732(g) contains the requirement to conduct the test when scrubbing with fresh acid solution. Although the existing NESHAP primarily address the control of HAP metals, there are potential opportunities for foundries to reduce emissions of other HAP such as TEA through the use of low-HAP binders and other pollution prevention
(P2)techniques. Current information indicates that these P2 methods show promise, but they are not appropriate for all foundries or casting methods. And, in some cases, it can be quite costly for the foundry to incorporate P2 methods into their overall process. EPA encourages foundries to explore the various P2 options available and use them when appropriate and cost-effective to further reduce their HAP footprint. B. Work Practice Standards 1. Capture and Collection Systems Section 63.7690(b)(1) of the NESHAP requires the owner or operator of an iron or steel foundry to install, operate, and maintain a capture and collection system for all emissions sources subject to a limit or standard for volatile organic hazardous air pollutants (VOHAP) or TEA in 40 CFR 63.7690(a)(8) through (11). One petitioner was concerned that this provision could be construed to require capture and collection systems for electric arc furnaces and electric induction furnaces, even though these furnaces are not directly subject to a VOHAP limit. According to the petitioner, the scrap certification and inspection/selection requirements in 40 CFR 63.7700 could be understood as work practice standards to limit organics from entering electric arc furnaces and electric induction furnaces. It could be inferred that a “standard” limiting VOHAP does exist for these furnaces and therefore, a capture and collection system is required. A similar concern exists for foundries that decide to meet the work practice requirement in 40 CFR 63.7700(e) instead of the VOHAP emissions limit in 40 CFR 7690(a)(9). The petitioner requests that EPA confirm that the scrap certification and inspection/selection requirements are not considered VOHAP work practice standards which would necessitate a capture and collection system. It is our intent that the requirements for capture and collection systems apply to emissions sources subject to an emissions limit but not to an emissions source subject to work practice standards. A capture and control system that routes emissions to an add-on control device is not needed because the work practice acts to reduce or prevent the release of emissions. In response to the petitioner's concerns, we are proposing to clarify the requirement in § 63.7690(b)(1) by deleting the reference to “standard”. 2. Scrap Management Section 63.7700(a) of the NESHAP establishes work practice standards to minimize the organics and HAP metals in charge materials. The owner or operator must comply with certification requirements in § 63.7700(b) or operate according to a scrap selection and inspection plan required in § 63.7700(c). One commenter requested that the work practice standards specify that the requirements for the certification and the written plan specify “chlorinated” plastics. Plastics were included in the list of undesirable scrap material primarily because certain types of plastics, such as polyvinyl chloride, could lead to the formation of dioxins. We did not intend to make certain metal components, such as Quiet Steel(®), that contain some plastics that cannot be removed from the scrap unrecyclable. Recycling these materials in foundries is environmentally preferable to landfilling these materials. Therefore, to clarify our intent, we now specify that it is “chlorinated” plastics that are to be removed from the scrap material. The petitioner also objected to the requirement in 40 CFR 63.7700(c)(2) for the owner or operator to obtain and maintain onsite a copy of the procedures used by the scrap supplier for either removing accessible mercury switches or for purchasing automobile bodies that have had the switches removed. According to the petitioner, it is difficult for some plants to obtain such written procedures from scrap suppliers. In this case, the plant should be able to document their attempts to obtain a copy of the procedures. The proposed amendments include an alternative procedure that allows the plant to document their attempts to obtain a copy of the procedures from the scrap suppliers servicing their area. We note, however, that under 40 CFR 63.7700(c)(2) the materials acquisition program must specify that the scrap supplier remove accessible mercury switches from the trunks and hoods of any automotive bodies contained in the scrap in addition to accessible lead components such as batteries and wheel weights. It is incumbent on the foundry owner or operator to communicate these specifications to their scrap suppliers. 3. Scrap Preheaters Section 63.7700(e) of the rule establishes requirements for scrap preheaters at an existing iron and steel foundry. The owner or operator must install, operate, and maintain a gas-fired preheater according to 40 CFR 63.7700(e)(1) or charge only certain materials according to 40 CFR 63.7700(e)(2). One petitioner was concerned that the language in 40 CFR 63.7700(e)(1) could be interpreted to require foundries to install gas-fired preheaters, even when not necessary for foundry operations. It was not our intent to mandate installation of preheaters, but rather to establish requirements for those existing facilities that use scrap preheaters in lieu of selecting the option in 40 CFR 63.7700(e)(2). Therefore, we are proposing to clarify § 63.7700(e)(1) by deleting the word “install”. Instead, the owner or operator would be required to operate and maintain a gas-fired preheater where the flame directly contacts the scrap charged. C. Operation and Maintenance Requirements One petitioner suggested that the requirement in 40 CFR 63.7710(b) for an operation and maintenance plan would be better understood if it clarified the emissions sources subject to the plan requirements. The proposed amendments clarify that the requirement applies to each capture and collection system and control device for an emissions source subject to a PM, metal HAP, TEA, or VOHAP emissions limit in 40 CFR 63.7690(a). D. Compliance With Alternative Emissions Limits The existing NESHAP establishes PM emissions limits and alternative emissions limits expressed in total metal HAP for cupolas and other foundry processes. In response to requests by the petitioners, we are proposing amendments to 40 CFR 63.7732, 40 CFR 63.7690, and 40 CFR 63.7734 to clarify our original intent to allow foundries to demonstrate compliance with any of the applicable alternative emissions limitations that are provided for a specific emissions source. When multiple alternative emissions limitations are provided for a specific emissions source, iron and steel foundries can demonstrate initial compliance with any of the alternative limits; they are not required to comply with all of the alternative emissions limits at any one time. We are also clarifying a facility's ability to change their selected compliance alternative and the procedures needed to effect that change. However, regarding continuous compliance, the facility is expected to continuously comply with the alternative emissions limit that was selected as their compliance option as demonstrated in their most recent performance test. The facility may choose to alter their selected alternative but must continue to comply with the previously selected alternative until they successfully demonstrate compliance with the new alternative emissions limitation. We are also proposing requirements for determining initial compliance for cupola melting furnaces at existing iron and steel foundries that are subject to the new mass rate emissions limit. Revisions to 40 CFR 63.7732(b) and
(c)would include new equations for determining PM or total metal HAP emissions from cupolas in the lb/ton format. Other amendments to 40 CFR 63.7732(b) and
(c)would clarify test method and emissions source sampling requirements. 1. Single Performance Test for Control Devices Serving Multiple Units Section 63.7734 of the NESHAP requires iron and steel foundries to demonstrate initial compliance with PM emissions limits by conducting a performance test for each process unit according to the procedures in 40 CFR 63.7732. One petitioner pointed out that a common emissions control system may serve two similar or identical cupolas or serve multiple furnaces or process units. According to the petitioner, a requirement for separate tests of the control device while the emissions sources are operating is redundant and imposes unnecessary costs because the control device should perform the same on each identical furnace. We acknowledge that there are certain control device configurations that we cannot fully address within the rule requirements. These situations are best evaluated on a case-by-case basis. Therefore, we are proposing to resolve the petitioner's concern by adding a new provision to the performance test requirements. The proposed amendment requires foundries to submit a site-specific test plan for the situation described by the petitioner or other situations not expressly considered in 40 CFR 63.7734. The site-specific test plan, which is subject to approval by the Administrator, would explain the procedures that would be followed during the test, such as operation of the unit or units at the maximum operating condition of the control system. The Administrator or delegated authority would determine on a case-by-case basis if one representative furnace/control device configuration may be tested. 2. Sampling Procedure for Electric Arc Furnaces, Electric Induction Furnaces, and Scrap Preheaters One petitioner objected to the sampling instructions in 40 CFR 63.7732(c)(4) and
(5)for electric arc and electric induction metal melting furnaces (when metal is being melted) and scrap preheaters (when scrap is being preheated) as inappropriate restrictions on performance testing. Many operations that occur during the furnace melting process are considered part of typical operation. Scrap preheaters operate on a batch basis and do not heat scrap for extended periods of time. It is not practical to start and stop tests for these emissions sources over the course of a heat until the required sampling time is accumulated. According to the petitioner, testing during all phases of operations is consistent with the requirement in § 63.6(f)(2)(iii)(A) of the NESHAP General Provisions (40 CFR part 63, subpart A), which state that a performance test must be conducted under representative operating conditions of the source. In response to these concerns, we are proposing to clarify that the initial compliance demonstrations for electric arc metal melting furnaces, electric induction metal melting furnaces, and scrap preheaters should be conducted under normal production conditions. The emissions limitations derived for these sources used data for various production cycles, including charging, melting, back-charging, and tapping. As the MACT floor emissions limitation was based on various production cycles and because significant PM and metal HAP emissions can occur from these other production cycles, the promulgated requirement to test only during melting is being amended to more accurately align the testing requirements to the testing procedures used as the basis of the MACT emissions limitation. The proposed amendments require sampling during normal operating conditions, which may include charging, melting, alloying, refining, slagging, and tapping (for a furnace) or charging, heating, and discharging (for a scrap preheater). 3. Minimum Sampling Volume for Total Metal HAP One petitioner pointed out that it was unnecessary to specify the minimum sample volume for test runs by EPA Method 29 (40 CFR part 60, appendix A) because the method already includes a requirement. The proposed amendments remove this requirement from 40 CFR 63.7732(c)(2). 4. Opacity Test Section 63.7732(d) of the existing rule establishes the requirements for opacity tests. The proposed amendments instruct the certified observer how to take opacity readings by Method 9 (40 CFR part 60, appendix A) for a building that has many openings. This issue was not addressed in the NESHAP. Under the proposed amendments, the observer would be allowed to take readings from a limited number of openings or vents that appear to have the highest opacities instead of making observations for each opening or vent from the building or structure. Alternatively, a single observation for the entire building would be allowed if the fugitive release points afford such an observation. Section 63.7732(d)(2) requires that opacity observations to demonstrate compliance with the fugitive emissions opacity standards in 40 CFR 63.7690(a)(7) overlap with the PM performance tests. One petitioner stated that it is not feasible for opacity observations to overlap with PM performance tests in all cases because subsequent tests are required every 6 months for opacity and every 5 years for PM emissions. The petitioner raised the concern that the rule could have been read to require a PM performance test during each opacity test; however, this was not our intent. In response to the petitioner's concern, we are proposing amendments to 40 CFR 63.7732(d)(2) to clarify that opacity tests are to be conducted during PM performance tests, but that PM performance tests are not required to occur during the semiannual opacity tests. 5. Alternative Test Method Section 63.7732(g)(v) of the NESHAP requires the use of EPA Method 18 (40 CFR part 60, appendix A) to determine the triethylamine
(TEA)concentration of gases from the TEA cold box mold or core making line. One petitioner requested EPA to allow an alternative to Method 18 because the detection limit of Method 18, which is approximately 1 part per million by volume (ppmv), is not significantly less than the emissions limit. The petitioner believed this could make compliance determinations problematic. According to the petitioner, operators will need to use the alternative silica gel adsorption tube sampling technique in section 8.2.4 of Method 18 to achieve lower detection limits, but that not all facilities will know to specify the alternative sampling techniques to their testing contractors. The commenter stated that the alternative methodology is equivalent to National Institute of Occupational Safety and Health (NIOSH) Method 2010 and requested that the rule allow the NIOSH method as an acceptable alternative. If the rule specifies the NIOSH method as an alternative, facilities can ensure that proper sampling techniques are used to achieve the low detection limits. We agree that NIOSH Method 2010 is an acceptable and equivalent sampling alternative to EPA Method 18. However, the NIOSH method does not include quality assurance performance requirements. Therefore, we are proposing NIOSH Method 2010, “Amines, Aliphatic” (incorporated by reference-see § 63.14) as an acceptable alternative to EPA Method 18 (40 CFR part 60, appendix A) provided the performance requirements outlined in section 13.1 of EPA Method 18 are satisfied. Method 2010 is included in the *NIOSH Manual of Analytical Methods* (4th edition, NIOSH Publication 94-113, August 1994). The manual is available from the Government Printing Office and the National Technical Information Service (NTIS), NTIS publication no. PB95154191. The NIOSH method may also be found on the NIOSH Web site at the following address: *www.cdc.gov/niosh/nmam/method-4000.html.* 6. Procedures for Establishing Operating Limits One petitioner pointed out that the procedures for establishing control device operating limits in 40 CFR 63.7733(b) through
(d)should not instruct operators to compute and record the 3-hour average parameter value because some sampling durations are based on sampling volumes which do not correspond to a 3-hour period. This requirement could be misinterpreted to require performance testing over a period of at least 3 hours. We originally intended that the performance test consist of three 1-hour tests runs, and that the control device parameter operating limit would be based on the average of these data. However, there are instances where the duration of the sampling runs may be greater than 1 hour. The proposed amendments delete the reference to the 3-hour average from the test procedures and clarify that the operator is to compute and record the average operating parameter value for each valid sampling run in which the applicable limit is met. 7. Repeat Performance Tests One petitioner requested EPA to clarify that demonstrating compliance by one method does not preclude a demonstration of compliance using an alternative method at a later date. EPA agrees that a plant may elect to demonstrate compliance with an alternative emissions limit during the repeat performance tests conducted at least every 5 years. Furthermore, the plant may elect to conduct a performance test earlier than 5 years in order to change an operating limit or to demonstrate compliance with a different alternative emissions limit. The proposed amendments clarify these testing options in amendments to 40 CFR 63.7731(a). A test conducted for the purpose of changing operating limits is subject to notification requirements in 40 CFR 63.7750(d). E. Monitoring Requirements 1. Baghouse Monitoring Requirements Section 63.7740(b) of the existing NESHAP requires a bag leak detection system for each negative pressure baghouse and for each positive pressure baghouse equipped with a stack where the baghouse is applied to meet any PM or total metal HAP emissions limitation in subpart EEEEE. This provision also requires inspection of each baghouse according to the requirements in 40 CFR 63.7740(b)
(1)through (8). One petitioner states that the final rule appears to omit any monitoring requirements for positive pressure baghouses not equipped with a stack. Although these units are not required to install a bag leak detection system, we intended to require the visual inspection of these positive pressure baghouses to ensure their proper performance. Therefore, we are proposing amendments to clarify our original intent to require monitoring inspections of positive baghouses that are not equipped with a stack. The proposed amendments to 40 CFR 63.7740(b) clarify the text to ensure that the requirements in this paragraph for installing and using a bag leak detection system apply only to negative pressure baghouses and positive pressure baghouses equipped with a stack. The inspection requirements would be separated and placed in a new paragraph
(c)and clarified to state that the inspection requirements apply to each baghouse regardless of type. The proposed amendments to 40 CFR 63.7740 also renumber the paragraphs which follow new paragraph (c). Similar clarifications would be made to the requirements for demonstrating continuous compliance in 40 CFR 63.7743(c). 2. Demonstration of Initial Compliance With Bag Leak Detection System Operation and Maintenance Requirements Section 63.7736(c) of the existing NESHAP instructs the owner or operator how to demonstrate initial compliance with the requirements for bag leak detection systems. Under 40 CFR 63.7736(c)(1), the owner or operator must submit the bag leak detection system monitoring plan to the Administrator for approval according to the requirements in 40 CFR 63.7710(b). One petitioner requested EPA to clarify this provision because the requirement could be interpreted to necessitate submission of the monitoring plan independent of the operation and maintenance plan. Our intent in the existing rule was to include the bag leak detection system information in the operation and maintenance plan to streamline the approval process and avoid the administrative costs associated with a separate submission. In addition, having one integrated plan provides a centralized reference tool for control device operation and maintenance requirements. The proposed amendments to 40 CFR 63.7736(c)(1) clarify the requirement to submit the bag leak system monitoring information to the Administrator within the written operation and maintenance plan for approval according to the requirements in § 63.7710(b). 3. Installation, Operation, and Maintenance Requirements for Monitors One petitioner requested that EPA revise the requirements for operation and maintenance of continuous parameter monitoring systems
(CPMS)to more clearly describe the inspection requirements. Under the operation and maintenance requirements for flow measurement devices in 40 CFR 63.7741(a)(1)(iv), the owner or operator must perform monthly inspections of all flow sensor components for integrity, all electrical connections for continuity, and all mechanical connections for leakage. The proposed amendments change this provision to require a monthly visual inspection of all components, including all electrical and mechanical connections for proper functioning. The same changes would be made to the monthly inspection requirements for other types of monitoring devices in §§ 63.7741(a)(2)(vi), (c)(1)(vi), (c)(2)(iv), (d)(8), and (e)(2)(iv). We are proposing these changes in response to the concerns expressed by one petitioner who explained that the changes are needed to ensure the ability of a facility to comply on a monthly basis. According to the petitioner, the ability of a facility to specifically inspect for “integrity”, “continuity” and “leakage” depends on where the components are located, but a facility would be able to readily determine proper functioning. One the facility determines that a connection is not working properly, additional steps can be taken to address the problem, which may include removing a barrier to allow access to the connection. In addition, testing of the electrical connections for continuity is not necessary when indicators are routinely used to show whether the current is flowing. A visual inspection is sufficient to ensure that current is flowing to each electrical connection. The proposed amendments also revise the requirement for pressure measurement devices in 40 CFR 63.7741(a)(2)(iii) and 40 CFR 63.7741(c)(1)(iv) for a “daily check of the pressure tap for pluggage.” We are proposing to require a daily check for pluggage when using a regular pressure tap and a monthly check when using a non-clogging pressure tap. Less frequent checks for non-clogging pressure taps would encourage use of newer technology and provide an inspection frequency commensurate with the operation of a non-clogging pressure tap. The proposed amendments also clarify the requirements for pressure measurement devices in 40 CFR 63.7741(a)(2)(iv) and 40 CFR 63.7741(c)(1)(iv) to allow the use of a manometer or equivalent device for calibrations. F. Recordkeeping and Reporting Requirements The proposed amendments clarify two of the recordkeeping requirements in 40 CFR 63.7752(a)(4). The requirement for the annual quantity of chemical binder or coating materials used to make molds and cores would be revised to require the annual quantity of chemical binder or coating materials used to coat or make molds and cores. We inadvertently omitted the word “coat” from the original rule language. The requirement for records of the annual quantity of HAP used would state that records are required of the annual quantity of HAP used in these chemical binder or coating materials at the foundry, as calculated from the recorded quantities and chemical compositions (from Material Data Safety Sheet or other documentation). This proposed amendment clarifies that the HAP records requirement is specific to the chemicals used in the mold and core-making and coating operations and not to other HAP materials used at the foundry such as solvents used to clean or degrease equipment. Proposed amendments to the reporting requirements allow foundries to report the results of the semiannual opacity tests within the semiannual reports rather than having to submit these semiannual documents separately. This change would reduce the administrative costs associated with submission of separate reports. Other proposed amendments to the reporting requirements clarify the requirements for an immediate startup, shutdown, and malfunction report by adding the same language used in 40 CFR 63.10(d)(5)(ii). The proposed amendments require an immediate report if you had a startup, shutdown, or malfunction and the source exceeded any applicable emissions limitation in 40 CFR 63.7690. G. Definitions We are proposing to add definitions of the terms “off blast” and “on blast” to 40 CFR 63.7765. These definitions would clarify that blast conditions used to bring the cupola up to operating temperature during start-up are not covered by the VOHAP parameter operating limit in 40 CFR 63.7690(b)(3). The existing parameter operating limit requires the foundry to operate each combustion device applied to emissions from a cupola that is subject to the VOHAP emissions limit so that the 15-minute average combustion zone temperature does not fall below a certain level. The operating limit states that periods when the cupola is off-blast and for 15 minutes after going on-blast from an off-blast condition are not included in the 15-minute average combustion zone temperature. The term “off blast” would be defined as those periods of cupola operation when the cupola is not actively being used to produce molten metal. Off-blast conditions include cupola startup procedures as defined in the startup, shutdown, and malfunction plan. Off-blast conditions also include idling conditions when the blast air is turned off or down to the point that the cupola does not produce additional molten metal. The term “on blast” would mean those periods of cupola operation when combustion (blast) air is introduced to the cupola furnace and the furnace is capable of producing molten metal. On blast conditions are characterized by both blast air introduction and molten metal production. The petitioners also raised the concern that only a limited number of metal constituents were evaluated when assessing the total metal HAP emissions limits. They noted that not all constituents for which EPA Method 29 (40 CFR part 60, appendix A) is applicable are HAP. They also sought clarification on how to calculate the total metal HAP if certain constituents were below the analytical detection limit. The evaluation of the total metal HAP emissions limits actually included most Method 29 HAP constituents, although it did not include phosphorus. The evaluation did not include detection limits or other non-zero values for metal constituents measured below detection limit. To address the petitioners' concerns, we are proposing to revise the definition of “total metal HAP” to specify the analytes to be included and how non-detect values are to be used in calculating the total metal HAP quantity. The proposed definition is based on the analytes and methods used to derive the total metal HAP alternative. The definition of “total metal HAP” would be the sum of the concentrations of antimony, arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, mercury, nickel, and selenium as measured by EPA Method 29 (40 CFR part 60, appendix A). Only the measured concentration of the listed analytes that are present at concentrations exceeding one-half of the quantification limit of the analytical method are used in the sum. If any of the analytes are not detected or are detected at concentrations less than one-half the quantification limit of the analytical method, the concentration of those analytes is assumed to be zero for the purposes of calculating the total metal HAP for this subpart. We are also proposing to clarify the definition of “scrap preheater” to differentiate scrap dryers that are used solely to remove moisture from the scrap metal from scrap preheaters. Scrap preheaters are used to preheat the metal scrap and reduce the energy required to effect melting. Most scrap preheaters heat the scrap metal to 400 degrees Fahrenheit or higher while scrap dryers operate at lower temperatures and are used solely to remove moisture from the scrap metal as a safety consideration when operating an electric induction furnace. Because of the lower operating temperatures, we do not believe that scrap dryers are a significant potential source for VOHAP emissions. We are proposing to amend the definition of “scrap preheater” to state that scrap dryers, which are used solely to remove water from metal scrap that does not contain any volatile impurities or other tramp materials, are not considered to be scrap preheaters for purposes of this subpart. H. Applicability One of the petitioners asked EPA to reference the CAA or NESHAP General Provisions definition of “major source” in 40 CFR 63.7681 (Am I subject to this subpart?). We are proposing to add a reference to 40 CFR 63.2 as requested by the commenter. This addition would clarify that when we refer to a “major source” of hazardous air pollutants in 40 CFR 63.7681, we are referring to the definition of major source in 40 CFR 63.2, and not, for example, to the definition of major source in 40 CFR 51.166. I. Editorial Corrections We are proposing to correct a grammatical error in 40 CFR 63.7710(b), which should refer to an emissions source subject to a (rather than “an”) PM, metal HAP, TEA, or VOHAP emissions limit in 40 CFR 63.7690(a). A comma would be added to 40 CFR 63.7734(a)(11). The words “as possible” were inadvertently omitted from 40 CFR 63.7741(a)(2)(i) and would be added. The proposed amendments also correct a misspelling of the word “calendar” in 40 CFR 63.7700(c)(3)(iii). IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may “raise novel legal or policy issues.” Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. The proposed amendments add a new compliance alternative, allow a new alternative test method, and clarify requirements in the existing rule. One proposed amendment to the baghouse monitoring requirements clarifies our original intent to require inspections of positive pressure baghouses not equipped with a stack. No new burden is associated with this proposed requirement because the burden was included in the approved information collection request
(ICR)for the existing rule. The OMB has previously approved the information collection requirements contained in the existing regulation (40 CFR part 63, subpart EEEEE) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0543, EPA ICR number 2096.02. A copy of the OMB-approved ICR may be obtained from Susan Auby, Collection Strategies Division, U.S. EPA (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at *auby.susan@epa.gov* , or by calling
(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR part 63 are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For the purposes of assessing the impacts of the proposed amendments on small entities, small entity is defined as:
(1)A small business that meets the Small Business Administration size standards for small businesses found at 13 CFR 121.201 (less than 500 employees for NAICS codes 331511, 331512, and 331513);
(2)a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of the proposed amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. There would not be any adverse impacts on any source (including any small entity) as a result of the proposed amendments because the proposed amendments provide an overall economic benefit to entities subject to the rule. The proposed amendments do not create any new requirements or burdens that were not already included in the economic impact assessment for the existing rule. The proposed amendments relieve regulatory burden for all entities as a result of the operational flexibility afforded by the alternative compliance option, alternative test method, and provisions allowing plants to combine multiple reports into a single submission. We have therefore concluded that these proposed amendments will relieve regulatory burden for all affected small entities. We continue to be interested in the potential impacts of the proposed action on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the proposed amendments do not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. The proposed amendments are expected to result in an overall reduction in expenditures for the private sector and are not expected to impact State, local, or tribal governments. Thus, the proposed amendments are not subject to the requirements of sections 202 and 205 of the UMRA. In addition, the proposed amendments do not significantly or uniquely affect small governments. The proposed amendments contain no requirements that apply to such governments, and impose no obligations upon them. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that 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.” The proposed amendments do not have federalism implications. They would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The proposed amendments do not impose any requirements on State and local governments. Thus, Executive Order 13132 does not apply to the proposed amendments. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local government, EPA specifically solicits comments on this proposed rule from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The proposed rule amendments do not have tribal implications, as specified in Executive Order 13175. They would not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. The proposed amendments impose no requirements on tribal governments. Thus, Executive Order 13175 does not apply to the proposed amendments. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. These proposed amendments are not subject to the Executive Order because they are based solely on technology performance. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use These proposed amendments are not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because they are not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that these proposed amendments are not likely to have any adverse energy effects because energy requirements would remain at the existing level. No additional pollution controls or other equipment that would consume energy are required by the proposed amendments. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. No. 104-113, Section 12(d), 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS. The proposed amendments involve technical standards. These proposed amendments include an alternative methodology, the NIOSH Method 2010, “Amines, Aliphatic” (incorporated by reference in § 63.14) for EPA Method 18 (40 CFR part 60, appendix A) to determine the triethylamine
(TEA)concentration of gases from the TEA cold box mold or core making line provided the performance requirements outlined in section 13.1 of EPA Method 18 are satisfied. Consistent with the NTTAA, EPA conducted searches to identify voluntary consensus standards in addition to these EPA and alternative methods. No applicable voluntary consensus standards were identified. For the methods required or referenced by this proposed rule, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures under §§ 63.7(f) and 63.8(f) of Subpart A of the General Provisions. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that these proposed amendments will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. These proposed amendments do not relax the control measures on sources regulated by the rule and therefore will not cause emissions increases from these sources. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements. Dated: April 9, 2007. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, part 63, title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart A—[AMENDED] 2. Section 63.14 is amended by adding paragraph (k)(2) to read as follows: § 63.14 Incorporations by reference.
(k)* * *
(2)The following method as published in the National Institute of Occupational Safety and Health (NIOSH) test method compendium, “NIOSH Manual of Analytical Methods”, NIOSH publication no. 94-113, Fourth Edition.
(i)NIOSH Method 2010, “Amines, Aliphatic,” Issue 2 (and subsequent revisions), August 15, 1994, IBR approved for § 63.7732(g)(1)(v) of Subpart EEEEE of this part.
(ii)[Reserved] Subpart EEEEE—[Amended] 3. Section 63.7681 is amended by revising the second sentence to read as follows: § 63.7681 Am I subject to this subpart? * * * Your iron and steel foundry is a major source of HAP for purposes of this subpart if it emits or has the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year or if it is located at a facility that emits or has the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year as defined in § 63.2. 4. Section 63.7690 is amended by: a. Revising paragraphs
(a)introductory text; b. Revising paragraph (a)(2); c. Revising paragraph (a)(7); d. Revising paragraphs (a)(11)(i) and (ii); and e. Revising paragraph (b)(1) introductory text to read as follows: § 63.7690 What emissions limitations must I meet?
(a)You must meet the emissions limits or standards in paragraphs (a)(1) through
(11)of this section that apply to you. When alternative emissions limitations are provided for a given emissions source, you are not restricted in the selection of which applicable alternative emissions limitation is used to demonstrate compliance.
(2)For each cupola metal melting furnace at an existing iron and steel foundry, you must not discharge emissions through a conveyance to the atmosphere that exceed either the limit for PM in paragraph (a)(2)(i) or
(ii)of this section or, alternatively the limit for total metal HAP in paragraph (a)(2)(iii) or
(iv)of this section:
(i)0.006 gr/dscf of PM; or
(ii)0.10 pound of PM per ton (lb/ton) of metal charged, or
(iii)0.0005 gr/dscf of total metal HAP; or
(iv)0.008 lb/ton of total metal HAP.
(7)For each building or structure housing any iron and steel foundry emissions source at the iron and steel foundry, you must not discharge any fugitive emissions to the atmosphere from foundry operations that exhibit opacity greater than 20 percent (6-minute average), except for one 6-minute average per hour that does not exceed 27 percent opacity.
(11)* * *
(i)You must not discharge emissions of TEA through a conveyance to the atmosphere that exceed 1 ppmv, as determined according to the performance test procedures in § 63.7732(g); or
(ii)You must reduce emissions of TEA from each TEA cold box mold or core making line by at least 99 percent, as determined according to the performance test procedures in § 63.7732(g).
(b)* * *
(1)You must install, operate, and maintain a capture and collection system for all emissions sources subject to an emissions limit for VOHAP or TEA in paragraphs (a)(8) through
(11)of this section. 5. Section 63.7700 is amended by: a. Revising the last sentence in paragraph (b); b. Revising paragraphs (c)(1)(i) and (ii); c. Revising the last sentence in paragraph (c)(2); d. Revising paragraph (c)(3)(iii); and e. Revising paragraph (e)(1) to read as follows: § 63.7700 What work practice standards must I meet?
(b)* * * Any post-consumer engine blocks, post-consumer oil filters, or oily turnings that are processed and/or cleaned to the extent practicable such that the materials do not include lead components, mercury switches, chlorinated plastics, or free organic liquids can be included in this certification.
(c)* * *
(1)* * *
(i)For scrap charged to a scrap preheater, electric arc metal melting furnace, or electric induction metal melting furnace, specifications for scrap materials to be depleted (to the extent practicable) of the presence of used oil filters, chlorinated plastic parts, organic liquids, and a program to ensure the scrap materials are drained of free liquids; or
(ii)For scrap charged to a cupola metal melting furnace, specifications for scrap materials to be depleted (to the extent practicable) of the presence of chlorinated plastic, and a program to ensure the scrap materials are drained of free liquids.
(2)* * * You must either obtain and maintain onsite a copy of the procedures used by the scrap supplier for either removing accessible mercury switches or for purchasing automobile bodies that have had mercury switches removed, as applicable, or document your attempts to obtain a copy of these procedures from the scrap suppliers servicing your area.
(3)* * *
(iii)The inspection procedures must include provisions for rejecting or returning entire or partial scrap shipments that do not meet specifications and limiting purchases from vendors whose shipments fail to meet specifications for more than three inspections in one calendar year.
(e)* * *
(1)You must operate and maintain a gas-fired preheater where the flame directly contacts the scrap charged; or 6. Section 63.7710 is amended by revising the first sentence in paragraph
(b)introductory text to read as follows: § 63.7710 What are my operation and maintenance requirements?
(b)You must prepare and operate at all times according to a written operation and maintenance plan for each capture and collection system and control device for an emissions source subject to a PM, metal HAP, TEA, or VOHAP emissions limit in § 63.7690(a). * * * 7. Section 63.7731 is amended by revising the first sentence in paragraph
(a)to read as follows: § 63.7731 When must I conduct subsequent performance tests?
(a)You must conduct subsequent performance tests to demonstrate compliance with all applicable PM or total metal HAP, VOHAP, and TEA emissions limitations in § 63.7690 for your iron and steel foundry no less frequently than every 5 years and each time you elect to change an operating limit or to comply with a different alternative emissions limit, if applicable. * * * 8. Section 63.7732 is amended by: a. Revising paragraph (a); b. Revising paragraphs
(b)introductory text, (b)(4), and (b)(5) and adding paragraph (b)(6); c. Revising paragraphs
(c)introductory text, (c)(2), (c)(4), and (c)(5) and adding paragraph (c)(6); d. Revising paragraph
(d)introductory text, adding two sentences to the end of paragraph (d)(1), and revising paragraph (d)(2); e. Revising paragraph (e)(3); f. Revising paragraphs (f)(2)(ix) and (f)(3); g. Revising paragraphs (g)(1)(v), (g)(2), and (g)(4); h. Revising paragraphs (h)(2)(ii), (h)(3)(ii), and (h)(3)(iii); and i. Adding paragraph
(i)to read as follows: § 63.7732 What test methods and other procedures must I use to demonstrate initial compliance with the emissions limitations?
(a)You must conduct each performance test that applies to your iron and steel foundry based on your selected compliance alternative, if applicable, according to the requirements in § 63.7(e)(1) and the conditions specified in paragraphs
(b)through
(i)of this section.
(b)To determine compliance with the applicable emissions limit for PM in § 63.7690(a)(1) through
(6)for a metal melting furnace, scrap preheater, pouring station, or pouring area, follow the test methods and procedures in paragraphs (b)(1) through
(6)of this section.
(4)For electric arc and electric induction metal melting furnaces, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, melting, alloying, refining, slagging, and tapping.
(5)For scrap preheaters, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, heating, and discharging.
(6)Determine the total mass of metal charged to the furnace or scrap preheater For a cupola metal melting furnace at an existing iron and steel foundry that is subject to the PM emissions limit in § 63.7690(a)(ii), calculate the PM emissions rate in lb/ton using Equation 1 of this section: EP17AP07.000 Where: EF <sup>PM</sup> = Mass emissions rate of PM, lb/ton; C <sup>PM</sup> = Concentration of PM measured during performance test run, gr/dscf; Q = Volumetric flow rate of exhaust gas, dry standard cubic feet per minute (dscfm); M <sup>charge</sup> = Mass of metal charged during performance test run, tons; t <sup>test</sup> = Duration of performance test run, minutes; and 7,000 = Unit conversion factor, grains per pound (gr/lb).
(c)To determine compliance with the applicable emissions limit for total metal HAP in § 63.7690(a)(1) through
(6)for a metal melting furnace, scrap preheater, pouring station, or pouring area, follow the test methods and procedures in paragraphs (c)(1) through
(6)of this section.
(2)A minimum of three valid test runs are needed to comprise a performance test.
(4)For electric arc and electric induction metal melting furnaces, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, melting, alloying, refining, slagging, and tapping.
(5)For scrap preheaters, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, heating, and discharging.
(6)Determine the total mass of metal charged to the furnace or scrap preheater during each performance test run and calculate the total metal HAP emissions rate using Equation 2 of this section: EP17AP07.001 Where: EF <sup>TMHAP</sup> = Emissions rate of total metal HAP, lb/ton; C <sup>TMHAP</sup> = Concentration of total metal HAP measured during performance test run, gr/dscf; Q = Volumetric flow rate of exhaust gas, dscfm; M <sup>charge</sup> = Mass of metal charged during performance test run, tons; t <sup>test</sup> = Duration of performance test run, minutes; and 7,000 = Unit conversion factor, gr/lb.
(d)To determine compliance with the opacity limit in § 63.7690(a)(7) for fugitive emissions from buildings or structures housing any iron and steel foundry emissions source at the iron and steel foundry, follow the procedures in paragraphs (d)(1) and
(2)of this section.
(1)* * * The certified observer may identify a limited number of openings or vents that appear to have the highest opacities and perform opacity observations on the identified openings or vents in lieu of performing observations for each opening or vent from the building or structure. Alternatively, a single opacity observation for the entire building or structure may be performed, if the fugitive release points afford such an observation.
(2)During testing intervals when PM performance tests, if applicable, are being conducted, conduct the opacity test such the opacity observations are recorded during the PM performance tests.
(e)* * *
(3)For a cupola metal melting furnace, correct the measured concentration of VOHAP, TGNMO, or TOC for oxygen content in the gas stream using Equation 3 of this section: EP17AP07.002 Where: C <sup>VOHAP</sup> = Concentration of VOHAP in ppmv as measured by Method 18 in 40 CFR part 60, appendix A or the concentration of TGNMO or TOC in ppmv as hexane as measured by Method 25 or 25A in 40 CFR part 60, appendix A; and %O <sup>2</sup> = Oxygen concentration in gas stream, percent by volume (dry basis).
(f)* * *
(2)* * *
(ix)Calculate the site-specific VOC emissions limit using Equation 4 of this section: EP17AP07.003 Where: C <sup>VOHAP,avg</sup> = Average concentration of VOHAP for the source test in ppmv as measured by Method 18 in 40 CFR part 60, appendix A or the average concentration of TGNMO for the source test in ppmv as hexane as measured by Method 25 in 40 CFR part 60, appendix A; and C <sup>CEM</sup> = Average concentration of total hydrocarbons in ppmv as hexane as measured using the CEMS during the source test.
(3)For two or more exhaust streams from one or more automated conveyor and pallet cooling lines or automated shakeout lines, compute the flow-weighted average concentration of VOHAP emissions for each combination of exhaust streams using Equation 5 of this section: EP17AP07.004 Where: C <sup>w</sup> = Flow-weighted concentration of VOHAP or VOC, ppmv (as hexane); C <sup>i</sup> = Concentration of VOHAP or VOC from exhaust stream “i”, ppmv (as hexane); n = Number of exhaust streams sampled; and Q <sup>i</sup> = Volumetric flow rate of effluent gas from exhaust stream “i,”, dscfm.
(g)* * *
(1)* * *
(v)Method 18 to determine the TEA concentration. Alternatively, you may use NIOSH Method 2010 (incorporated by reference-see § 63.14) to determine the TEA concentration provided the performance requirements outlined in section 13.1 of EPA Method 18 are satisfied. The sampling option and time must be sufficiently long such that either the TEA concentration in the field sample is at least 5 times the limit of detection for the analytical method or the test results calculated using the laboratory's reported analytical detection limit for the specific field samples are less than 1/5 of the applicable emissions limit. When using Method 18, the adsorbent tube approach, as described in section 8.2.4 of Method 18, may be required to achieve the necessary analytical detection limits. The sampling time must be at least 1 hour in all cases.
(2)If you use a wet acid scrubber, conduct the test as soon as practicable after adding fresh acid solution and the system has reached normal operating conditions.
(4)If you are subject to the 99 percent reduction standard, calculate the mass emissions reduction using Equation 6 of this section: EP17AP07.005 Where: E <sup>i</sup> = Mass emissions rate of TEA at control device inlet, kilograms per hour (kg/hr); and E <sup>o</sup> = Mass emissions rate of TEA at control device outlet, kg/hr.
(h)* * *
(2)* * *
(ii)Calculate the flow-weighted average emissions limit, considering only the regulated streams, using Equation 5 of this section, except C <sup>w</sup> is the flow-weighted average emissions limit for PM or total metal HAP in the exhaust stream, gr/dscf; and C <sup>i</sup> is the concentration of PM or total metal HAP in exhaust stream “i”, gr/dscf.
(3)* * *
(ii)Measure the flow rate and PM or total metal HAP concentration of the combined exhaust stream both before and after the control device and calculate the mass removal efficiency of the control device using Equation 6 of this section, except E <sup>i</sup> is the mass emissions rate of PM or total metal HAP at the control device inlet, lb/hr and E <sup>o</sup> is the mass emissions rate of PM or total metal HAP at the control device outlet, lb/hr.
(iii)Meet the applicable emissions limit based on the calculated PM or total metal HAP concentration for the regulated emissions sources using Equation 7 of this section: EP17AP07.006 Where: C <sup>released</sup> = Calculated concentration of PM (or total metal HAP) predicted to be released to the atmosphere from the regulated emissions source, gr/dscf; and C <sup>i</sup> = Concentration of PM (or total metal HAP) in the uncontrolled regulated exhaust stream, gr/dscf.
(i)To determine compliance with an emissions limit for situations when multiple sources are controlled by a single control device, but only one source operates at a time, or other situations that are not expressly considered in paragraphs
(b)through
(h)of this section, a site-specific test plan should be submitted to the Administrator for approval according to the requirements in § 63.7(c)(2) and (3). 9. Section 63.7733 is amended by revising paragraphs (b)(2), (c)(2), and (d)(2) to read as follows: § 63.7733 What procedures must I use to establish operating limits?
(b)* * *
(2)Compute and record the average pressure drop and average scrubber water flow rate for each valid sampling run in which the applicable emissions limit is met.
(c)* * *
(2)Compute and record the average combustion zone temperature for each valid sampling run in which the applicable emissions limit is met.
(d)* * *
(2)Compute and record the average scrubbing liquid flow rate for each valid sampling run in which the applicable emissions limit is met. 10. Section 63.7734 is amended by: a. Revising paragraph
(a)introductory text; b. Revising paragraph (a)(2)(ii); c. Adding paragraphs (a)(2)(iii) and (iv); d. Revising paragraphs (a)(7) and (a)(11) to read as follows: § 63.7734 How do I demonstrate initial compliance with the emissions limitations that apply to me?
(a)You have demonstrated initial compliance with the emissions limits in § 63.7690(a) by meeting the applicable conditions in paragraphs (a)(1) through
(11)of this section. When alternative emissions limitations are provided for a given emissions source, you are not restricted in the selection of which applicable alternative emissions limitation is used to demonstrate compliance.
(2)* * *
(ii)The average total metal HAP concentration in the exhaust stream, determined according to the performance test procedures in § 63.7732(c), did not exceed 0.0005 gr/dscf; or
(iii)The average PM mass emissions rate, determined according to the performance test procedures in § 63.7732(b), did not exceed 0.10 lb/ton; or
(iv)The average total metal HAP mass emissions rate, determined according to the performance test procedures in § 63.7732(c), did not exceed 0.008 lb/ton.
(7)For each building or structure housing any iron and steel foundry emissions source at the iron and steel foundry, the opacity of fugitive emissions from foundry operations discharged to the atmosphere, determined according to the performance test procedures in § 63.7732(d), did not exceed 20 percent (6-minute average), except for one 6-minute average per hour that did not exceed 27 percent opacity.
(11)For each TEA cold box mold or core making line in a new or existing iron and steel foundry, the average TEA concentration, determined according to the performance test procedures in § 63.7732(g), did not exceed 1 ppmv or was reduced by 99 percent. 11. Section 63.7736 is amended by revising paragraph (c)(1) to read as follows: § 63.7736 How do I demonstrate initial compliance with the operation and maintenance requirements that apply to me?
(c)* * *
(1)You have submitted the bag leak detection system monitoring information to the Administrator within the written O&M plan for approval according to the requirements of § 63.7710(b); 12. Section 63.7740 is amended by: a. Revising paragraph (b); b. Redesignating paragraphs
(c)through
(g)as
(d)through (h); and c. Adding paragraph
(c)to read as follows: § 63.7740 What are my monitoring requirements?
(b)For each negative pressure baghouse or positive pressure baghouse equipped with a stack that is applied to meet any PM or total metal HAP emissions limitation in this subpart, you must at all times monitor the relative change in PM loadings using a bag leak detection system according to the requirements in § 63.7741(b).
(c)For each baghouse, regardless of type, that is applied to meet any PM or total metal HAP emissions limitation in this subpart, you must conduct inspections at their specified frequencies according to the requirements specified in paragraphs (c)(1) through
(8)of this section.
(1)Monitor the pressure drop across each baghouse cell each day to ensure pressure drop is within the normal operating range identified in the manual.
(2)Confirm that dust is being removed from hoppers through weekly visual inspections or other means of ensuring the proper functioning of removal mechanisms.
(3)Check the compressed air supply for pulse-jet baghouses each day.
(4)Monitor cleaning cycles to ensure proper operation using an appropriate methodology.
(5)Check bag cleaning mechanisms for proper functioning through monthly visual inspections or equivalent means.
(6)Make monthly visual checks of bag tension on reverse air and shaker-type baghouses to ensure that bags are not kinked (kneed or bent) or lying on their sides. You do not have to make this check for shaker-type baghouses using self-tensioning (spring-loaded) devices.
(7)Confirm the physical integrity of the baghouse through quarterly visual inspections of the baghouse interior for air leaks.
(8)Inspect fans for wear, material buildup, and corrosion through quarterly visual inspections, vibration detectors, or equivalent means. 13. Section 63.7741 is amended by: a. Revising paragraphs (a)(1)(iv), (a)(2)(i), (a)(2)(iii), (a)(2)(iv), and (a)(2)(vi); b. Revising paragraph
(b)introductory text; c. Revising paragraphs (c)(1)(iii), (c)(1)(iv), (c)(1)(vi), and (c)(2)(iv); d. Revising paragraph (d)(8); and e. Revising paragraph (e)(2)(iv) to read as follows: § 63.7741 What are the installation, operation, and maintenance requirements for my monitors?
(a)* * *
(1)* * *
(iv)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(2)* * *
(i)Locate the pressure sensor(s) in or as close as possible to a position that provides a representative measurement of the pressure and that minimizes or eliminates pulsating pressure, vibration, and internal and external corrosion.
(iii)Check the pressure tap for pluggage daily. If a “non-clogging” pressure tap is used, check for pluggage monthly.
(iv)Using a manometer or equivalent device such as a magnahelic or other pressure indicating transmitter, check gauge and transducer calibration quarterly.
(vi)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(b)For each negative pressure baghouse or positive pressure baghouse equipped with a stack that is applied to meet any PM or total metal HAP emissions limitation in this subpart, you must install, operate, and maintain a bag leak detection system according to the requirements in paragraphs (b)(1) through
(7)of this section.
(c)* * *
(1)* * *
(iii)Check the pressure tap for pluggage daily. If a “non-clogging” pressure tap is used, check for pluggage monthly.
(iv)Using a manometer or equivalent device such as a magnahelic or other pressure indicating transmitter, check gauge and transducer calibration quarterly.
(vi)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(2)* * *
(iv)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(d)* * *
(8)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(e)* * *
(2)* * *
(iv)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning. 14. Section 63.7743 is amended by: a. Adding a second sentence to the end of paragraph
(a)introductory text and removing the colon after the first sentence in paragraph
(a)in text and adding period in its place; b. Revising paragraph (a)(2)(ii) and adding paragraphs (a)(2)(iii) and (iv); c. Revising paragraph (a)(7); and d. Revising paragraph
(c)introductory text and paragraphs (c)(1) and
(2)to read as follows: § 63.7743 How do I demonstrate continuous compliance with the emissions limitations that apply to me?
(a)* * * When alternative emissions limitations are provided for a given emissions source, you must comply with the alternative emissions limitation most recently selected as your compliance alternative.
(2)* * *
(ii)Maintaining the average total metal HAP concentration in the exhaust stream at or below 0.0005 gr/dscf; or
(iii)Maintaining the average PM mass emissions rate at or below 0.10 lb/ton; or
(iv)Maintaining the average total metal HAP mass emissions rate at or below 0.008 lb/ton.
(7)For each building or structure housing any iron and steel foundry emissions source at the iron and steel foundry, maintaining the opacity of any fugitive emissions from foundry operations discharged to the atmosphere at or below 20 percent opacity (6-minute average), except for one 6-minute average per hour that does not exceed 27 percent opacity.
(c)For each baghouse,
(1)Inspecting and maintaining each baghouse according to the requirements of § 63.7740(c)(1) through
(8)and recording all information needed to document conformance with these requirements; and
(2)If the baghouse is equipped with a bag leak detection system, maintaining records of the times the bag leak detection system sounded, and for each valid alarm, the time you initiated corrective action, the corrective action taken, and the date on which corrective action was completed. 15. Section 63.7750 is amended by adding a sentence to the end of paragraph
(e)introductory text to read as follows: § 63.7750 What notifications must I submit and when?
(e)* * * For opacity performance tests, the notification of compliance status may be submitted with the semiannual compliance report in § 63.7751(a) and
(b)or the semiannual part 70 monitoring report in § 63.7551(d). 16. Section 63.7751 is amended by revising paragraph
(c)to read as follows: § 63.7751 What reports must I submit and when?
(c)Immediate startup, shutdown, and malfunction report. If you had a startup, shutdown, or malfunction during the semiannual reporting period that was not consistent with your startup, shutdown, and malfunction plan and the source exceeds any applicable emissions limitation in § 63.7690, you must submit an immediate startup, shutdown, and malfunction report according to the requirements of § 63.10(d)(5)(ii). 17. Section 63.7752 is amended by revising paragraph (a)(4) to read as follows: § 63.7752 What records must I keep?
(a)* * *
(4)Records of the annual quantity of each chemical binder or coating material used to coat or make molds and cores, the Material Data Safety Sheet or other documentation that provides the chemical composition of each component, and the annual quantity of HAP used in these chemical binder or coating materials at the foundry as calculated from the recorded quantities and chemical compositions (from Material Data Safety Sheets or other documentation). 18. Section 63.7765 is amended by: a. Revising the definition for “Deviation”; b. Adding, in alphabetical order, definitions for “Offblast” and “On blast”; and c. Revising the definitions “Scrap preheater” and adding “Total metal HAP” to read as follows: § 63.7765 What definitions apply to this subpart? *Deviation* means any instance in which an affected source or an owner or operator of such an affected source. A deviation is not always a violation. The determination of whether a deviation constitutes a violation of the standard is up to the discretion of the entity responsible for enforcement of the standards. *Off blast* means those periods of cupola operation when the cupola is not actively being used to produce molten metal. Off blast conditions include cupola startup when air is introduced to the cupola to preheat the sand bed and other cupola startup procedures as defined in the startup, shutdown, and malfunction plan. Off blast conditions also include idling conditions when the blast air is turned off or down to the point that the cupola does not produce additional molten metal. *On blast* means those periods of cupola operation when combustion (blast) air is introduced to the cupola furnace and the furnace is capable of producing molten metal. On blast conditions are characterized by both blast air introduction and molten metal production. *Scrap preheater* means a vessel or other piece of equipment in which metal scrap that is to be used as melting furnace feed is heated to a temperature high enough to eliminate volatile impurities or other tramp materials by direct flame heating or similar means of heating. Scrap dryers, which solely remove moisture from metal scrap, are not considered to be scrap preheaters for purposes of this subpart. *Total metal HAP* means, for the purposes of this subpart, the sum of the concentrations of antimony, arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, mercury, nickel, and selenium as measured by EPA Method 29 (40 CFR part 60, appendix A). Only the measured concentration of the listed analytes that are present at concentrations exceeding one-half the quantitation limit of the analytical method are to be used in the sum. If any of the analytes are not detected or are detected at concentrations less than one-half the quantitation limit of the analytical method, the concentration of those analytes will be assumed to be zero for the purposes of calculating the total metal HAP for this subpart. 19. Table 1 to subpart EEEEE is amended by revising the entry for § 63.9 to read as follows: Table 1 to Subpart EEEEE of Part 63.—Applicability of General Provisions to Subpart EEEEE * * * * * Citation Subject Applies to subpart EEEEE? Explanation * * * * * * * 63.9 Notification requirements Yes Except: For opacity performance tests, Subpart EEEEE allows the notification of compliance status to be submitted with the semiannual compliance report or the semiannual part 70 monitoring report. * * * * * * * [FR Doc. E7-7203 Filed 4-16-07; 8:45 am] BILLING CODE 6560-50-P 72 73 Tuesday, April 17, 2007 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request April 11, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Pub. L. 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Agricultural Marketing Service *Title:* Seed Service Testing Program. *OMB Control Number:* 0581-0140. *Summary of Collection:* The Agricultural Marketing Act
(AMA)of 1946, as amended by 7 U.S.C. 1621 authorizes the Secretary to inspect and certify the quality of agricultural products and collect such fees as reasonable to cover the cost of service rendered. The purpose of the voluntary program is to promote efficient, orderly marketing of seeds and assist in the development of new and expanding markets. Under the program, samples of agricultural and vegetable seeds submitted to the Agricultural Marketing Service
(AMS)are tested for factors such as purity and germination at the request of the applicant for the service. The Testing Section of the Seed Regulatory and Testing Branch of AMS that test the seed and issues the certificates is the only Federal seed testing facility that can issue the Federal Seed Analysis Certificate. *Need and Use of the Information:* Applicants generally are seed firms who use the seed analysis certificates to represent the quality of seed lots to foreign customers according to the terms specified in contracts of trade. The only information collected is information needed to provide the service requested by the applicant. Applicants must provide information such as the kind and quantity of seed, tests to be performed, and seed treatment if present, along with a sample of seed in order for AMS to provide the service. Only authorized AMS employees used the information collected to track, test, and report test results to the applicant. If the information were not collected, AMS would not know which test to conduct or would not be able to relate the test results with a specific lot of seed. *Description of Respondents:* Business or other for-profit; Farms; State, Local or tribal Government. *Number of Respondents:* 53. *Frequency of Responses:* Reporting; On occasion. *Total Burden Hours:* 682. Agricultural Marketing Service *Title:* Tart Cherries Grown in the states of MI, NY, PA, OR, UT, WA, and WI. *OMB Control Number:* 0581-0177. *Summary of Collection:* Marketing Order No. 930 (7 CFR part 930) regulates the handling of tart cherries grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin. The Agricultural Marketing Agreement Act of 1937 was designed to permit regulation of certain agricultural commodities for the purpose of providing orderly marketing conditions in inter- and intrastate commerce and improving returns to growers. The primary objective of the Order is to stabilize the supply of tart cherries. Only tart cherries that will be canned or frozen will be regulated. An 18-member Board comprised of producers, handlers and one public member with each member serving for a three-year term office administer the Order. *Need and Use of the Information:* Various forms were developed by the Board for persons to file required information relating to tart cherry inventories, shipments, diversions and other needed information to effectively carry out the requirements of the Order. The information collected is used to ensure compliance, verify eligibility, and vote on amendments, monitor and record grower's information. Authorized Board employees and the industry are the primary users of the information. *Description of Respondents:* Business or other for profit; Not-for-profit institutions. *Number of Respondents:* 953. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 853. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E7-7217 Filed 4-16-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request April 11, 2007 The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Pub. L. 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Rural Business-Cooperative Service *Title:* Annual Survey of Farmer Cooperatives. *OMB Control Number:* 0570-0007. *Summary of Collection:* The Rural Business Cooperative Service
(RBS)was mandated the responsibility to acquire and disseminate information pertaining to agricultural cooperatives under the Cooperative Marketing Act of 1926: 7 U.S.C. 451-457 and Pub. L. 450. The primary objective of RBS is to promote understanding, use and development of the cooperative form of business as a viable option for enhancing the income of agricultural producers and other rural residents. The annual survey collects basic statistics on cooperative business volume, net income, members, financial status, employees, and other selected information to support RBS' objective and role. RBS will use a variety of forms to collect information. *Need and Use of the Information:* RBS uses the information collected to summarize for program planning, evaluation service work and cooperative analysis and education. The information collected and published in the annual report on farmer cooperatives supports and enhances most of the major functions of RBS. By not collecting this information, the RBS would have difficulties in carrying out its policy on farmer cooperatives. *Description of Respondents:* Business or other for-profit. *Number of Respondents:* 1,588. *Frequency of Responses:* Reporting: Annually. *Total Burden Hours:* 1,534. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E7-7219 Filed 4-16-07; 8:45 am] BILLING CODE 3410-XT-P DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request April 12, 2007. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Rural Utilities Service *Title:* Environmental Policies and Procedures (7 CFR part 1794). *OMB Control Number:* 0572-0117. *Summary of Collection:* In December 1998, the Rural Utilities Service
(RUS)published its revised Environmental Policies and Procedures and in 2003 revisions were made to clarify policy on certain environmental review processes. The rule promulgated environmental regulations that cover all RUS Federal actions taken by RUS' electric, telecommunications, water and environmental programs. The regulation was necessary to ensure continued RUS compliance with the Council on Environmental Quality
(CEQ)Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act
(NEPA)(40 CFR parts 1500-1508), and certain related Federal environmental laws, statutes, regulations, and Executive Orders. RUS electric, telecommunications, water and environmental program borrowers provide environmental documentation to assure that policy contained in NEPA is followed. *Need and Use of the Information:* RUS will collect information to evaluate the cost and feasibility of the proposed project and the environmental impact. If the information is collected, the agency would not be in compliance with NEPA and CEQ regulations. *Description of Respondents:* Non-for-profit institutions; Business or other for-profit. *Number of Respondents:* 1,339. *Frequency of Responses:* Reporting: On occasion. *Total Burden Hours:* 486,440. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E7-7233 Filed 4-16-07; 8:45 am] BILLING CODE 3410-15-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0045] Notice of Request for Extension of Approval of an Information Collection; Pseudorabies Accelerated Eradication Program; Payment of Indemnity AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Extension of approval of an information collection; comment request. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the payment of indemnity for the domestic pseudorabies accelerated eradication program. DATES: We will consider all comments that we receive on or before June 18, 2007. ADDRESSES: You may submit comments by either of the following methods: Federal eRulemaking Portal: *Go to http://www.regulations.gov,* select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2007-0045 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2007-0045, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2007-0045. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: For information regarding an information collection associated with regulations for the payment of indemnity for the domestic pseudorabies accelerated eradication program, contact Dr. John Korslund, Senior Staff Veterinarian, Aquaculture, Swine, Equine, and Poultry Programs, NCAHP, VS, APHIS, 4700 River Road Unit 46, Riverdale, MD 20737;
(301)734-5914. For copies of more detailed information on the information collection, contact Mrs. Celeste Sickles, APHIS's Information Collection Coordinator, at
(301)734-7477. SUPPLEMENTARY INFORMATION: *Title:* Pseudorabies Accelerated Eradication Program; Payment of Indemnity. *OMB Number:* 0579-0137. *Type of Request:* Extension of approval of an information collection. *Abstract:* Under the Animal Health Protection Act (7 U.S.C. 8301 *et seq.* ), the United States Department of Agriculture
(USDA)has authority for, among other things, preventing the interstate spread of pests and diseases of livestock within the United States and for conducting eradication programs. In connection with this mission, the Animal and Plant Health Inspection Service (APHIS), USDA, established an accelerated pseudorabies eradication program, including the payment of indemnity, to further pseudorabies eradication efforts in cooperation with States and industry and to protect swine not infected with pseudorabies from the disease. Pseudorabies is a contagious, infectious, and communicable disease of livestock, primarily swine. The disease, also known as Aujeszky's disease, mad itch, and infectious bulbar paralysis, is caused by a herpes virus, and is known to cause reproductive problems, including abortion and stillborn death, and death in neonatal pigs, and occasional death losses in breeding and finishing hogs. The regulations in 9 CFR part 85 govern the interstate movement of swine and other livestock (cattle, sheep, and goats) in order to help prevent the spread of pseudorabies. These regulations authorize the payment of indemnity to herd owners for the depopulation of swine known to be infected with pseudorabies and require the collection of information that includes an appraisal and agreement form, a movement permit, and a report of net salvage proceeds. Additionally, the swine must be moved to slaughter in a means of conveyance sealed with an official seal. We are asking the Office of Management and Budget
(OMB)to approve our use of these information collection activities for an additional 3 years. The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1)Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2)Evaluate the accuracy of our estimate of the burden of the information collection, including the validity of the methodology and assumptions used;
(3)Enhance the quality, utility, and clarity of the information to be collected; and
(4)Minimize the burden of the information collection on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies, *e.g.* , permitting electronic submission of responses. *Estimate of burden:* The public reporting burden for this collection of information is estimated to average 1.1333 hours per response. *Respondents:* Swine herd owners, State animal health authorities, and accredited veterinarians. *Estimated annual number of respondents:* 10. *Estimated annual number of responses per respondent:* 3. *Estimated annual number of responses:* 30. *Estimated total annual burden on respondents:* 34 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.) All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. Done in Washington, DC, this 11th day of April 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-7244 Filed 4-16-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration United States Standards for Beans AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA. ACTION: Notice; request for public comment. SUMMARY: We plan to revise the U.S. standards for Beans to provide applicants for service with an optional grade designation for bean certification; and remove the requirements that the percentage of high moisture and, in the case of Mixed beans, the percentage of each class in the mixture be shown on the grade line. DATES: We will consider comments that we receive by May 17, 2007. ADDRESSES: We invite you to submit comments on this notice. You may submit comments by any of the following methods: • E-mail: Send comments via electronic mail to *comments.gipsa@usda.gov.* • Mail: Send hardcopy written comments to Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • Fax: Send comments by facsimile transmission to:
(202)690-2755. • Hand Delivery or Courier: Deliver comments to: Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • Federal eRulemaking Portal: Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. • Instructions: All comments should refer to the date and page number of this issue of the **Federal Register** . • Read Comments: All comments will be available for public inspection in the above office during regular business hours (7 CFR 1.27(b)). FOR FURTHER INFORMATION CONTACT: Beverly A. Whalen at USDA, GIPSA, FGIS, FMD, Suite 180, STOP 1404, 6501 Beacon Drive, Kansas City, Missouri 64133; Telephone
(816)823-4648; Fax Number
(816)823-4644; e-mail *Beverly.A.Whalen@usda.gov.* SUPPLEMENTARY INFORMATION: Background The Agricultural Marketing Act of 1946, as amended (AMA), directs and authorizes the Secretary of Agriculture to develop and improve standards for agricultural products (7 U.S.C. 1622). These are standards of quality, condition, quantity, grade, and packaging. The intent of such standards is to encourage uniformity and consistency in commercial practices. We establish and maintain a variety of quality and grade standards for agricultural commodities. These standards serve as the fundamental starting point to define commodity quality in the domestic and global marketplace. We provide official procedures for how inspectors determine the various grading factors in supporting handbooks, such as the Bean Handbook. The AMA standards and supporting procedures are voluntary and widely used in private contracts, government procurement, marketing communication, and, for some commodities, consumer information. Standards developed under the AMA include rice, whole dry peas, split peas, feed peas, lentils, and beans. The U.S. standards for Whole Dry Peas, Split Peas, Feed Peas, Lentils, and Beans do not appear in the Code of Federal Regulations (although the process by which we develop these standards is specified through the regulations in 7 CFR 868.102, Procedures for establishing and revising grade standards); however, the standards are available on the GIPSA Web site at *http://www.gipsa.usda.gov/GIPSA/webapp?area=home&subject=grpi&topic=sq-ous* and by contacting the Field Management Division
(FMD)at the above address. We provide the official procedures for how inspectors determine the various grading factors in various supporting handbooks, such as the Bean Handbook, which you may view and print from the GIPSA Web site at *http://www.gipsa.usda.gov/GIPSA/webapp?area=home&subject=lr&topic=hb-bi.* Optional Grade Designation and Certification Procedures We work closely with the National Dry Bean Council
(NDBC)and others in the bean industry to examine the effectiveness of the U.S. standards for Beans in today's marketing environment. It appears that the current standards continue to meet consumer/processor needs; however, both the rice and grain industries have optional certification procedures. We have determined that these certification procedures could be beneficial to the bean industry, as well. Currently, inspectors certify beans offered for inspection as a specific quality (U.S. grade) for example, U.S. No. 2 Pinto Beans. Certifying a specific grade is commonly referred to in the rice and grain industries as “Option 1” grade designation. This works well most of the time, however, there are exceptions. At times, sellers find when preparing to load beans for shipment that the supply of a particular grade of bean may be insufficient to meet the quality and quantity requirements specified in the sales contract. When this happens, the seller may find it necessary to ship beans of a better quality. However, current inspection procedures do not allow the flexibility to describe or certify superior quality beans as being of a lower quality. If the lot presented for inspection is not uniform in quality for the declared grade, the inspector certifies each portion separately according to quality. That is, if a consignment consists of both U.S. No. 1 and 2 Pinto beans, current procedure requires that the quantity representing each of the different qualities receive separate certification. Such certification may not meet the terms of sale for the contract. The U.S. standards for rice and grains offer an alternative approach that is termed “Option 2” grade designation. When a contract specifies an Option 2 grade designation, the applicant may specifically request Option 2 certification. Under Option 2 certification, there is no limitation placed on the amount of better quality grain in the lot. When a lot meets or is of better quality than the declared grade, inspectors include the term “or better” immediately following the numerical or sample grade designation. We would like to offer the Option 2 grade designation and certification approach for beans. Under such an approach, beans that are a better quality than that specified by the contract would be certified as a specific grade “or better” (for example, U.S. No. 2, or better, Pinto Beans). The applicant for inspection can obtain the optional certification procedure by requesting it on the application for inspection. The applicant would file the request for the optional certification prior to the beginning of inspection so the inspector knows how to certify the lot. We believe that Option 2 grade designation and certification will better align the bean industry with the rice and grain industries, provide sellers with the flexibility to ship beans of better quality, and provide buyers with the desirable option of receiving better quality. High Moisture and Mixed Beans We also plan to remove the requirements that the percentage of high moisture and, in the case of Mixed beans, the percentage of each class in the mixture be shown on the grade-line. The special grade designation “High moisture” is applicable to all classes of beans containing over 18.0 percent moisture. While we will continue to show the special grade designation High moisture” on the grade line, we intend to eliminate the requirement that the percentage of moisture be shown on the grade line. Rather, we plan to enter the percentage of moisture, if applicable, in the “Results” section of the certificate. Additionally, for the class of Mixed beans, we currently require inspectors to include the breakdown of the different classes, in order of predominance, on the grade line of the certificate. Instead of showing this information on the grade line, we plan to enter such information in the “Results” section of the certificate. This approach will not change the grade of the product. We intend for these changes to improve the readability of the certificate. The grade line will provide the grade designation, which includes special grade designations, when applicable, and other related information will be provided in the Remarks section of the certificate. Further, this change in the U.S. standards for Beans will better align certification requirements in beans with other graded commodities such as rice. Comments We are requesting comments for 30 days. All comments received within the comment period will be made part of the public record we maintain, will be available to the public for review, and will be considered before we take final action. Authority: 7 U.S.C. 1621-1627. James E. Link, Administrator, Grain Inspection, Packers and Stockyards Administration. [FR Doc. E7-7242 Filed 4-16-07; 8:45 am] BILLING CODE 3410-KD-P DEPARTMENT OF AGRICULTURE Grain Inspection, Packers and Stockyards Administration United States Standards for Whole Dry Peas, Split Peas, and Lentils AGENCY: Grain Inspection, Packers and Stockyards Administration, USDA. ACTION: Notice; request for public comment. SUMMARY: We plan to revise the U.S. standards for Whole Dry Peas, Split Peas, and Lentils to provide applicants for service with an optional grade designation for pea and lentil certification and to remove the requirement that, in the case of Mixed Dry Peas, the percentage of each class in the mixture be shown on the grade line. DATES: We will consider comments that we receive by May 17, 2007. ADDRESSES: We invite you to submit comments on this notice. You may submit comments by any of the following methods: • E-mail: Send comments via electronic mail to *comments.gipsa@usda.gov* . • Mail: Send hardcopy written comments to Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC 20250-3604. • Fax: Send comments by facsimile transmission to:
(202)690-2755. • Hand Delivery or Courier: Deliver comments to: Tess Butler, GIPSA, USDA, 1400 Independence Avenue, SW., Room 1647-S, Washington, DC, 20250-3604. • Federal eRulemaking Portal: Go to *http://www.regulations.gov* . Follow the online instructions for submitting comments. • Instructions: All comments should refer to the date and page number of this issue of the **Federal Register** . • Read Comments: All comments will be available for public inspection in the above office during regular business hours (7 CFR 1.27 (b)). FOR FURTHER INFORMATION CONTACT: Beverly A. Whalen at USDA, GIPSA, FGIS, FMD, Suite 180, STOP 1404, 6501 Beacon Drive, Kansas City, Missouri 64133; Telephone
(816)823-4648; Fax Number
(816)823-4644; e-mail *Beverly.A.Whalen@usda.gov* . SUPPLEMENTARY INFORMATION: Background The Agricultural Marketing Act of 1946, as amended (AMA), directs and authorizes the Secretary of Agriculture to develop and improve standards for agricultural products (7 U.S.C. 1622). These are standards of quality, condition, quantity, grade, and packaging. The intent of such standards is to encourage uniformity and consistency in commercial practices. We establish and maintain a variety of quality and grade standards for agricultural commodities. These standards serve as the fundamental starting point to define commodity quality in the domestic and global marketplace. We provide official procedures for how inspectors determine the various grading factors in supporting handbooks, such as the Pea and Lentil Handbook. The AMA standards and supporting procedures are voluntary and widely used in private contracts, government procurement, marketing communication, and, for some commodities, consumer information. Standards developed under the AMA include rice, whole dry peas, split peas, feed peas, lentils, and beans. The U.S. standards for Whole Dry Peas, Split Peas, Feed Peas, Lentils, and Beans do not appear in the Code of Federal Regulations (although the process by which we develop these standards is specified through the regulations in 7 CFR 868.102, Procedures for establishing and revising grade standards); however, the standards are available on the GIPSA Web site at *http://www.gipsa.usda.gov/GIPSA/webapp?area=home&subject=grpi&topic=sq-ous* and by contacting the Field Management Division
(FMD)at the above address. We provide the official procedures for how inspectors determine the various grading factors in various supporting handbooks, such as the Pea and Lentil Handbook, which you may view and print from the GIPSA Web site at *http://www.gipsa.usda.gov/GIPSA/webapp?area=home&subject=lr&topic=hb-pl* . Optional Grade Designation and Certification Procedures We work closely with the U.S. Dry Pea and Lentil Council (USDPLC) and others in the pea and lentil industries to examine the effectiveness of the U.S. standards in today's marketing environment. It appears that the current standards continue to meet consumer and processor needs; however, both the rice and grain industries have optional certification procedures. We have determined that these certification procedures could be beneficial to the pea and lentil industries, as well. Currently, inspectors certify peas and lentils offered for inspection as a specific quality (U.S. grade), such as U.S. No. 2 Smooth Green Dry Peas. Certifying a specific grade is commonly referred to in the rice and grain industries as “Option 1” grade designation. This works well most of the time, however, there are exceptions. At times, sellers find when preparing to load peas or lentils for shipment that the supply of a particular grade of pea or lentil may be insufficient to meet the quality and quantity requirements specified in the sales contract. When this happens, the seller may find it necessary to ship peas or lentils of a better quality. However, current inspection procedures do not allow the flexibility to describe or certify superior quality peas or lentils as being of a lower quality. If the lot presented for inspection is not uniform in quality for the declared grade, the inspector certifies each portion separately according to quality. That is, if a consignment consists of both U.S. No. 1 and 2 Smooth Green Dry Peas, current procedure requires that the quantity representing each of the different qualities receive separate certification. Such certification may not meet the terms of sale for the contract. The U.S. standards for rice and grains offer an alternative approach that is termed “Option 2” grade designation. When a contract specifies an Option 2 grade designation, the applicant may specifically request Option 2 certification. Under Option 2 certification, there is no limitation placed on the amount of better quality grain in the lot. When a lot meets or is of better quality than the declared grade, inspectors include the term “or better” immediately following the numerical or sample grade designation. We would like to offer the Option 2 grade designation and certification approach for peas and lentils. Under such an approach, peas or lentils that are a better quality than that specified by the contract would be certified as a specific grade “or better;” (for example, U.S. No. 2, or better, Smooth Dry Peas). The applicant for inspection can obtain the optional certification procedure by requesting it on the application for inspection. The applicant would file the request for the optional certification prior to the beginning of inspection so the inspector knows how to certify the lot. We believe that Option 2 grade designation and certification will better align the pea and lentil industries with the rice and grain industries, provide sellers with the flexibility to ship peas and lentils of better quality, and provide buyers with the desirable option of receiving better quality. Mixed Whole Dry Peas We also intend to eliminate the requirement that certain grade related information be shown on the grade line of the certificate for the class of Mixed Whole Dry Peas. Currently, the U.S. standards for Whole Dry Peas require a breakdown of the different classes, in order of predominance, be shown on the grade line of the certificate, in addition to the regular grade designation information, when the peas are classed as Mixed peas. Instead of showing this information on the grade line, we plan to enter such information in the “Results” section of the certificate. This approach will not change the grade of the product. We intend for the change to improve the readability of the certificate. The grade line will provide the grade designation and other related information will be provided in the “Results” section of the certificate. Further, this change in the U.S. standards for Whole Dry Peas will better align certification requirements in peas with other graded commodities such as rice, beans, and lentils. Comments We are requesting comments for 30 days. All comments received within the comment period will be made part of the public record we maintain, will be available to the public for review, and will be considered before we take final action. Authority: 7 U.S.C. 1621-1627. James E. Link, Administrator, Grain Inspection, Packers and Stockyards Administration. [FR Doc. E7-7241 Filed 4-16-07; 8:45 am] BILLING CODE 3410-KD-P DEPARTMENT OF COMMERCE Bureau of Industry and Security Foreign Availability Procedures and Criteria AGENCY: Bureau of Industry and Security, Department of Commerce. ACTION: Proposed information collection; comment request. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: Written comments must be submitted on or before June 18, 2007. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Larry Hall, BIS ICB Liaison, Department of Commerce, Room 6622, 14th and Constitution Avenue, NW., Washington, DC 20230. SUPPLEMENTARY INFORMATION: I. Abstract This information is collected in order to respond to requests by Congress and industry to make foreign availability determinations. Exporters are urged to submit data regarding the foreign product's technical characteristics and the availability of these products in foreign markets to determine if similar U.S. products should be decontrolled. II. Method of Collection Written submission. III. Data *OMB Number:* 0694-0004. *Form Number:* None. *Type of Review:* Regular submission. *Affected Public:* Individuals or households, business or other for-profit organizations and not-for-profit institutions. *Estimated Number of Respondents:* 2. *Estimated Time per Response:* 255 hours. *Estimated Total Annual Burden Hours:* 510. *Estimated Total Annual Cost:* $0. IV. Request for Comments Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. In addition, the public is encouraged to provide suggestions on how to reduce and/or consolidate the current frequency of reporting. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record. Dated: April 11, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-7211 Filed 4-16-07; 8:45 am] BILLING CODE 3510-DT-P DEPARTMENT OF COMMERCE Bureau of Industry and Security Special Comprehensive License AGENCY: Bureau of Industry and Security, Department of Commerce. ACTION: Proposed information collection; comment request. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)). DATES: Written comments must be submitted on or before June 18, 2007. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230, (or via the internet at *DHynek@doc.gov.* ). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Larry Hall, BIS ICB Liaison, Department of Commerce, Room 6703, 14th and Constitution Avenue, NW., Washington, DC 20230. SUPPLEMENTARY INFORMATION: I. Abstract The Special Comprehensive License procedure authorizes multiple shipments of items from the U.S. or from approved consignees abroad who are approved in advance by the Bureau of Industry and Security to conduct the following activities: servicing, support services, stocking spare parts, maintenance, capital expansion, manufacturing, support scientific data acquisition, reselling and reexporting in the form received, and other activities as approved on a case-by-case basis. II. Method of Collection Submitted on forms. III. Data *OMB Number:* 0694-0089. *Form Number:* BIS-748P and BIS-752P. *Type of Review:* Regular submission. *Affected Public:* Business or other for-profit organizations. *Estimated Number of Respondents:* 867. *Estimated Time per Response:* 1 to 6 hours. *Estimated Total Annual Burden Hours:* 1,017. *Estimated Total Annual Cost:* $0. IV. Request for Comments Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. In addition, the public is encouraged to provide suggestions on how to reduce and/or consolidate the current frequency of reporting. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record. Dated: April 11, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-7212 Filed 4-16-07; 8:45 am] BILLING CODE 3510-DT-P DEPARTMENT OF COMMERCE International Trade Administration Commercial Service—Strategic User Satisfaction Survey ACTION: Proposed information collection; comment request. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burdens, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collections, as required by the Paperwork Reduction Act of 1995, Pub. L. 104-13 (44 U.S.C. 3506
(2)(A)). DATES: Written comments must be submitted on or before June 18, 2007. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 or via the Internet at *dHynek@doc.gov.* FOR FURTHER INFORMATION CONTACT: Request for additional information or copies of the information collection instrument and instructions should be directed to: Joseph Carter, 14th and Constitution Avenue, NW., Washington, DC 20230; Phone number:
(202)482-3342; E-mail: *joseph.carter@mail.doc.gov.* SUPPLEMENTARY INFORMATION: I. Abstract The International Trade Administration's U.S. Commercial Service
(CS)is mandated by Congress to help U.S. businesses, particularly small and medium-sized companies, export their products and services to global markets. As part of its mission, the CS currently uses transactional user satisfaction surveys to collect feedback from U.S. business clients that use CS pay-for-use products/events provided by the organization's international offices. These surveys ask the client to evaluate the CS on its customer service delivery for a specific transaction. The results from these transactional user satisfaction surveys are used to ensure that clients' needs and expectations are met and service delivery is consistent across the organization. In addition to conducting user satisfaction surveys on a transactional basis for pay-for-use products/events provided by the CS's international offices, the CS would like to conduct a strategic user satisfaction survey on an annual basis to collect more in-depth user satisfaction feedback from CS clients in order to assess the importance or relative impact of specific service delivery processes and attributes on overall customer satisfaction. Survey responses would enable the CS to prioritize the allocation of time, budget and resources using performance-importance diagrams. Without this information, CS is unable to systematically determine the actual and relative levels of performance for attributes, processes and subprocesses, identify the drivers or determinants of overall satisfaction, and provide clear, actionable insights for managerial intervention. This information will be used for program improvement, strategic planning, and allocation of resources. II. Method of Collection The data collection method for the CS is an e-mail message delivering a hot link to a web-enabled survey. If the client does not respond to the survey within two weeks, another e-mail reminder is sent to the client. III. Data *OMB Number:* None. *Form Number:* None. *Type of Review:* Regular submission. *Affected Public:* Business or other for-profit organizations. *Estimated Number of Respondents:* 1,500. *Estimated Time per Response:* 30 minutes. *Estimated Total Annual Burden Hours:* 750. *Estimated Total Annual Costs:* $45,000. IV. Request for Comments Comments are invited on
(a)whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and costs) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: April 11, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-7209 Filed 4-16-07; 8:45 am] BILLING CODE 3510-FP-P DEPARTMENT OF COMMERCE International Trade Administration Information for Self-Certification Under FAQ 6 of the United States European Union Safe Harbor Privacy Framework AGENCY: International Trade Administration, United States Department of Commerce. ACTION: Proposed information collection; comment request. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burdens, invites the general public and other Federal agencies to take this opportunity to comment on the continuing information collections, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). DATES: Written comments must be submitted on or before June 18, 2007. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork, Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument and instructions should be directed to: Damon Greer, U.S. Department of Commerce, International Trade Administration, Room 2003, 1401 Constitution Avenue, NW., Washington, DC 20230; Phone number:
(202)482-5023 and fax number:
(202)482-5522. SUPPLEMENTARY INFORMATION: I. Abstract In response to the European Union Directive on Data Protection that restricts transfers of personal information from Europe to countries whose privacy practices are not deemed “adequate,” the U.S. Department of Commerce
(DOC)has developed a “Safe Harbor” framework that will allow U.S. organizations to satisfy the European Directive's requirements and ensure that personal data flows to the United States are not interrupted. In this process, the DOC repeatedly consulted with U.S. organizations affected by the European Directive and interested non-government organizations. On July 27, 2000, the European Commission issued its decision in accordance with Article 25.6 of the Directive that the Safe Harbor Privacy Principles provide adequate privacy protection. The Safe Harbor framework bridges the differences between the European Union
(EU)and U.S. approaches to privacy protection. The complete set of Safe Harbor documents and additional guidance materials may be found at *http://export.gov/safeharbor.* Once the Safe Harbor was deemed “adequate” by the European Commission on July 27, 2000, DOC began working on the requirements that are necessary to put this accord into effect. The European Member States implemented the decision made by the Commission within 90 days. Therefore, the Safe Harbor became operational on November 1, 2000. The DOC created a list for U.S. organizations to sign up to the Safe Harbor and provided guidance on the mechanics of signing up to this list. As of March 1, 2007, 1,100 U.S. organizations have been placed on the Safe Harbor List, located at *http://export.gov/safeharbor.* Organizations that have signed up to this list are deemed “adequate” under the Directive and do not have to provide further documentation to European officials. This list will be used by EU organizations to determine whether further information and contracts will be needed for a U.S. organization to receive personally identifiable information. This list is necessary to make the Safe Harbor accord operational, and was a key demand of the Europeans in agreeing that the Principles were providing “adequate” privacy protection. The Safe Harbor provides a number of important benefits to U.S. firms. Most importantly, it provides predictability and continuity for U.S. organizations that receive personal information from the European Union. Personally identifiable information is defined as any information that can be identified to a specific person, for example an employee's name and extension would be considered personally identifiable information. All 15 member countries are bound by the European Commission's finding of “adequacy”. The Safe Harbor also eliminates the need for prior approval to begin data transfers, or makes approval from the appropriate EU member countries automatic. The Safe Harbor principles offer a simpler and cheaper means of complying with the adequacy requirements of the Directive, which should particularly benefit small and medium enterprises. The decision to enter the Safe Harbor is entirely voluntary. Organizations that decide to participate in the Safe Harbor must comply with the safe harbor's requirements and publicly declare that they do so. To be assured of Safe Harbor benefits, an organization needs to reaffirm its self-certification annually to the Department of Commerce that it agrees to adhere to the safe harbor's requirements, which includes elements such as notice, choice, access, data integrity, security and enforcement. This list will be most regularly used by European Union organizations to determine whether further information and contracts will be needed by a U.S. organization to receive personally identifiable information. It will be used by the European Data Protection Authorities to determine whether a company is providing “adequate” protection, and whether a company has requested to cooperate with the Data Protection Authority. This list will be accessed when there is a complaint logged in the EU against a U.S. organization. This will be on a monthly basis. It will be used by the Federal Trade Commission and the Department of Transportation to determine whether a company is part of the Safe Harbor. This will be accessed if a company is practicing “unfair and deceptive” practices and has misrepresented itself to the public. It will be used by the Department of Commerce and the European Commission to determine if organizations are signing up to the list. II. Method of Collection The self-certification form is provided via the Internet at *http://export.gov/safeharbor* and by mail to requesting U.S. firms. III. Data *OMB Number:* 0625-0239. *Form Number:* None. *Type of Review:* Regular submission. *Affected Public:* Business or other for-profit organizations. *Estimated Number of Respondents:* 500. *Estimated Time per Response:* Web site, 20 minutes; and paper format, 40 minutes. *Estimated Total Annual Burden Hours:* 400. *Estimated Total Annual Costs to Public:* $20,000. IV. Request for Comments Comments are invited on:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and costs) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: April 11, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-7215 Filed 4-16-07; 8:45 am] BILLING CODE 3510-DR-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-888] Floor-Standing, Metal-Top Ironing Tables and Parts Thereof from the People's Republic of China: Extension of the Time Limit for the Preliminary Results of the 2005/2006 Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: April 17, 2007. FOR FURTHER INFORMATION CONTACT: Anya Naschak or Bobby Wong, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202)482-6375 or
(202)482-0409, respectively. SUPPLEMENTARY INFORMATION: Background On August 6, 2004, the Department of Commerce (“Department”) published in the **Federal Register** an antidumping duty order on floor standing, metal-top ironing tables and parts thereof from the People's Republic of China (“PRC”). *See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof From the People's Republic of China* , 69 FR 47868 (August 6, 2004). The Department received timely requests from Since Hardware (Guangzhou) Co., Ltd. (“Since Hardware”) and Foshan Shunde Yongjian Housewares & Hardware Co., Ltd. (“Foshan Shunde”), in accordance with 19 CFR 351.213(b)(2), for an administrative review of the antidumping duty order on ironing tables and parts thereof from the PRC, which has an August annual anniversary month. Home Products International Inc., the petitioner, also requested, in accordance with 19 CFR 351.213(b)(1), an administrative review of the antidumping duty order on ironing tables and parts thereof from the PRC for Since Hardware. On September 26, 2006, the Department initiated an administrative review with respect to Since Hardware and Foshan Shunde. *See Initiation of Antidumping and Countervailing Duty Administrative Reviews* , 71 FR 57465 (September 29, 2006). On January 23, 2007, the Department rescinded the administrative review with respect to Foshan Shunde because it withdrew its request for an quit administrative review in a timely manner, pursuant to 19 CFR 351.213(d)(1). *See Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People's Republic of China: Notice of Partial Rescission of Antidumping Duty Administrative Review* , 72 FR 2856 (January 23, 2007). The deadline for completion of the preliminary results in the administrative review for Since Hardware is currently May 3, 2007. Extension of Time Limits for Preliminary Results Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“the Act”), and section 351.213(h)(1) of the Department's regulations require the Department to issue the preliminary results of an administrative review within 245 days after the last day of the anniversary month of the order or suspension agreement for which the administrative review was requested, and the final results of the review within 120 days after the date on which the notice of the preliminary results was published in the **Federal Register** . However, if the Department determines that it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations allow the Department to extend the 245-day period to 365 days and the 120-day period to 180 days. Pursuant to section 751(a)(3)(A) of the Act and section 351.213(h) of the Department's regulations, we determine that it is not practicable to complete this administrative review within the statutory time limit of 245 days. The Department requires additional time to analyze questionnaire responses, issue supplemental questionnaires, and possibly conduct verification. In particular, there are complex factors of production methodology issues that the Department requires additional time to review. Therefore, in accordance with section 751(a)(3)(A) of the Act and section 351.213(h)(2) of the Department's regulations, the Department is extending the time limit for the completion of these preliminary results by an additional 120 days to August 31, 2007. The final results, in turn, will be due 120 days after the date of issuance of the preliminary results, unless extended. Dated: April 11, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-7286 Filed 4-16-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-570-848] Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Final Results And Rescission, In Part, of 2004/2005 Antidumping Duty Administrative and New Shipper Reviews AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On October 10, 2006, the Department of Commerce (“the Department”) published the preliminary results of its administrative and new shipper reviews of the antidumping duty order on freshwater crawfish tail meat from the People's Republic of China (“PRC”). *See Freshwater Crawfish Tail Meat From the People's Republic of China: Preliminary Results and Partial Rescission of the 2004/2005 Administrative and New Shipper Reviews* , 71 FR 59432 (October 10, 2006) ( *Preliminary Results* ). Based on our analysis of the record, including information obtained since the preliminary results, we have made changes to the margin calculations for Xiping Opeck Food Co., Ltd. (“Xiping Opeck”), Xuzhou Jinjiang Foodstuffs Co., Ltd. (“Xuzhou Jinjiang”) and Qingdao Jinyongxiang Aquatic Foods Co., Ltd. (“Qingdao JYX”). See Final Results of Review section, below. EFFECTIVE DATE: April 17, 2007. FOR FURTHER INFORMATION CONTACT: Scot Fullerton or Erin Begnal, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202)482-1386 or
(202)482-1442, respectively. SUPPLEMENTARY INFORMATION: Background On October 10, 2006, the Department published the preliminary results of its administrative and new shipper reviews of the antidumping duty order on freshwater crawfish tail meat from the PRC, and invited parties to comment on the preliminary results. *See Preliminary Results* . The administrative review covers six exporters or producer/exporters:
(1)Jiangsu Jiushoutang Organisms-Manufactures Co., Ltd. (“Jiangsu JOM”);
(2)Shanghai Sunbeauty Trading Co., Ltd. (“Shanghai Sunbeauty”);
(3)Qingdao JYX; and
(4)Qingdao Wentai Trading Co., Ltd. (“Qingdao Wentai”);
(5)Yancheng Hi-King Agriculture Developing Co., Ltd. (“Yancheng Hi-King”); and
(6)Xuzhou Jinjiang. 1 The period of review (“POR”) for all respondents subject to this administrative review is September 1, 2004, through August 31, 2005. 2 The new shipper review covers two producer/exporters:
(1)Xiping Opeck; and
(2)Xuzhou Jinjiang. The period of review for Xiping Opeck is September 1, 2004, through August 31, 2005, while the period of review for Xuzhou Jinjiang is September 1, 2004, through October 5, 2005. 1 Xuzhou Jinjiang is a participant in both the administrative review and new shipper review. 2 On July 3, 2006, the Department issued its notice of rescission of antidumping duty new shipper reviews of Jiangsu JOM, Shanghai Sunbeauty and Qingdao Wentai, for the period September 1, 2004, and February 28, 2005. *See Notice of Rescission of Antidumping Duty New Shipper Reviews: Freshwater Crawfish Tail Meat from the People's Republic of China* , 71 FR 37902 (July 3, 2006) (“ *Rescission of New Shipper Review* ”). Accordingly, this administrative review only covers these companies' entries not already covered by the above-referenced new shipper reviews. Therefore, this administrative review, for Jiangsu JOM, Shanghai Sunbeauty and Qingdao Wentai, covers entries from March 1, 2005, through August 31, 2005. On October 30, 2006, subsequent to the issuance of the Preliminary Results, the Department received publicly available information, for purposes of valuing factors of production, from the Crawfish Processors Alliance, the Louisiana Department of Agriculture and Forestry, and Bob Odom, Commissioner (collectively, “Domestic Parties”), pursuant to 19 CFR 351.301(c)(3). *See* Letter to the U.S. Department of Commerce, from Domestic Parties, regarding *Freshwater Crawfish Tail Meat from the People's Republic of China: 2004-05 Administrative Review* (October 30, 2006); *see also Freshwater Crawfish Tail Meat from the People's Republic of China: 2004-05 New Shipper Review* (October 30, 2006). On November 9, 2006, Xuzhou Jinjiang submitted rebuttal surrogate value information responding to Domestic Parties' October 30, 2006, surrogate value information. *See* Letter to the U.S. Department of Commerce, from Xuzhou Jinjiang, regarding *Freshwater Crawfish Tail Meat from the People's Rep. of China; Surrogate Value Rebuttal* (November 9, 2006). On November 9, 2006, the Department also received case briefs from Domestic Parties as well as Xuzhou Jinjiang. *See* Case Brief from Domestic Parties, regarding *Freshwater Crawfish Tail Meat from the People's Republic of China: 2004-05 Administrative Review* (November 9, 2006), Case Brief from Domestic Parties, regarding *Freshwater Crawfish Tail Meat from the People's Republic of China: 2004-05 New Shipper Review* (November 9, 2006), Case Brief from Xuzhou Jinjiang, regarding *Freshwater Crawfish Tail Meat from the People's Republic Of China; Comment on the Preliminary Results* (November 9, 2006). Additionally, on November 14, 2006, we received rebuttal briefs from Domestic Parties and Xuzhou Jinjiang. *See Freshwater Crawfish Tail Meat From the People's Republic of China: Petitioner's Rebuttal Brief* (April 14, 2006); *see also* Rebuttal Brief from Domestic Parties, regarding *Freshwater Crawfish Tail Meat from the People's Republic of China: 2004-05 New Shipper Review* (November 14, 2006); and Rebuttal Brief from Xuzhou Jinjiang, regarding *Freshwater Crawfish Tail Meat from the People's Rep. Of China; Comment on the Preliminary Results* (November 14, 2006). No case briefs were submitted by Jiangsu JOM, Shanghai Sunbeauty, or Qingdao Wentai. Although petitioners initially requested a hearing in the administrative and new shipper reviews, this request was subsequently withdrawn. On February 2, 2007, the Department placed revised expected non-market economy (“NME”) wage rates on its website, (see http://ia.ita.doc.gov/wages/index.html) and offered interested parties an opportunity to submit comments on these revised wage rates, as the period for submission of case briefs and rebuttal briefs had already passed. On February 7, 2007, Xuzhou Jinjiang submitted comments on the revised wage rates. *See* Xuzhou Jinjiang Wage Rate Comments, dated February 7, 2007. No other comments on the revised wage rates were submitted. Scope of Order The product covered by this antidumping duty order is freshwater crawfish tail meat, in all its forms (whether washed or with fat on, whether purged or unpurged), grades, and sizes; whether frozen, fresh, or chilled; and regardless of how it is packed, preserved, or prepared. Excluded from the scope of the order are live crawfish and other whole crawfish, whether boiled, frozen, fresh, or chilled. Also excluded are saltwater crawfish of any type, and parts thereof. Freshwater crawfish tail meat is currently classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers 1605.40.10.10 and 1605.40.10.90, which are the HTSUS numbers for prepared foodstuffs, indicating peeled crawfish tail meat and other, as introduced by U.S. Customs and Border Protection (“CBP”) in 2000, and HTSUS numbers 0306.19.00.10 and 0306.29.00.00, which are reserved for fish and crustaceans in general. The HTSUS subheadings are provided for convenience and customs purposes only. The written description of the scope of this order is dispositive. Separate Rates Qingdao JYX, Xiping Opeck, and Xuzhou Jinjiang have requested separate, company-specific antidumping duty rates. In our preliminary results, we found that Qingdao JYX, Xiping Opeck, and Xuzhou Jinjiang had met the criteria for the application of a separate antidumping duty rate. *See Preliminary Results* . We have not received any information since the *Preliminary Results* with respect to Qingdao JYX, Xiping Opeck, and Xuzhou Jinjiang which would warrant reconsideration of our separate-rates determinations with respect to these companies. Therefore, for these final results, we will continue to calculate company-specific separate rates for these respondents. Partial Rescission of Administrative Review In the *Preliminary Results* , the Department stated its intention to partially rescind the administrative review for Yancheng Hi-King, as the firm informed the Department that it did not export the subject merchandise to the United States during the POR. The Department also stated its intention to rescind the administrative review for Qingdao Wentai, as the Department determined that Qingdao Wentai's single sale, covered by both the new shipper review and administrative review, was not *bona fide* and could not serve as the basis for the calculation of a dumping margin. *See Rescission of New Shipper Review* . No comments on the Department's intention to rescind the administrative review for Yancheng Hi-King and Qingdao Wentai were submitted by any interested party. Therefore, for the reasons stated above, we are rescinding the administrative review with respect to Yancheng Hi-King and Qingdao Wentai. *See* 19 CFR 351.213(d)(3). Adverse Facts Available - Jiangsu JOM & Shanghai Sunbeauty For purposes of the *Preliminary Results* , the Department applied facts available to sales by Jiangsu JOM and Shanghai Sunbeauty, as Jiangsu JOM would not permit the Department to verify information placed on the record, and Shanghai Sunbeauty informed the Department that it would not participate further in this review and did not respond to the Department's requests for information. Therefore, we determined that neither company cooperated to the best of its ability. *See* Memorandum to James C. Doyle, Director, from Christopher D. Riker, Program Manager, regarding *Freshwater Crawfish Tail Meat from the People's Republic of China: Preliminary Application of Adverse Facts Available to Shanghai Sunbeauty Trading Co., Ltd.* , dated October 2, 2006, and Memorandum to James C. Doyle, Director, from Christopher D. Riker, Program Manager, regarding *Freshwater Crawfish Tail Meat from the People's Republic of China: Preliminary Application of Adverse Facts Available to Jiangsu Jiushoutang Organisms-Manufacturers Co., Ltd.* , dated October 2, 2006. No comments on this determination were submitted by any interested party. Therefore, for the reasons stated above, we find it appropriate, pursuant to sections 776(a)(2)(D) and 776(b) of the Tariff Act of 1930, as amended (“the Act”), to use adverse facts available (“AFA”) as the basis for the final results of review for Jiangsu JOM and Shanghai Sunbeauty, which are part of the PRC-wide entity, as the Department was unable to verify Jiangsu JOM's and Shanghai Sunbeauty's questionnaire responses concerning their eligibility for a separate rate. Consistent with the statute, court precedent, and its normal practice, the Department has assigned the rate of 223.01 percent, the highest rate on the record of any segment of the proceeding, to the PRC-wide entity (including Shanghai Sunbeauty and Jiangsu JOM) as AFA. *See, e.g., Freshwater Crawfish Tail Meat From the People's Republic of China: Notice of Final Results of Antidumping Duty Administrative Review, and Final Partial Rescission of Antidumping Duty Administrative Review* , 67 FR 19546 (April 22, 2002). As discussed further below, this rate has been corroborated. Corroboration of Secondary Information Section 776(c) of the Act provides that, when the Department relies on the facts otherwise available and on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. To “corroborate” means to determine that the information used has probative value. *See* Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act (“URAA”), H.R. Rep. No. 103-316 at 870 (1994). The Department has determined that to have probative value, information must be reliable and relevant. *See* SAA at 870; *see also Tapered Roller Bearings and Parts Thereof, Finished and Unfinished from Japan* , 61 FR 57391, 57392 (November 6, 1996). The *SAA* also states that independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation. *See Preliminary Determination of Sales at Less Than Fair Value: High and Ultra-High Voltage Ceramic Station Post Insulators from Japan* , 68 FR 35627 (June 16, 2003), unchanged in *Notice of Final Determination of Sales at Less Than Fair Value: High and Ultra-High Voltage Ceramic Station Post Insulators from Japan* , 68 FR 62560 (November 5, 2003); and *Final Determination of Sales at Less Than Fair Value: Live Swine from Canada* , 70 FR 12181 (March 11, 2005). The reliability of the AFA rate was determined by the calculation of the margin based on sales and production data of a respondent in a prior review, and on the most appropriate surrogate value information available to the Department, chosen from submissions by the parties in that review, as well as information gathered by the Department itself. Furthermore, the calculation of this margin was subject to comment from interested parties in the proceeding *Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Final Results of Antidumping Duty Administrative Revew, and Final Partial Rescission of Antidumping Duty Administrative Review* , 67 FR 19546 (April 22, 2002) (“1999-2000 Review”). The Department has received no information to date that warrants revisiting the issue of the reliability of the rate calculation itself. This rate has been used as AFA in every subsequent segment of this proceeding and the Department has received no comments challenging the reliability of the margin. No information has been presented in the current review. Thus, the Department finds that the margin calculated in the 1999-2000 review is reliable. With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in * Fresh Cut Flowers from Mexico: Final Results of Antidumping Administrative Review * , 61 FR 6812 (February 22, 1996), the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin. Similarly, the Department does not apply a margin that has been discredited. *See D & L Supply Co. v. United States* , 113 F.3d 1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that has been judicially invalidated). None of these unusual circumstances are present here. As there is no information on the record of this review that indicates that this rate is not relevant as AFA for the PRC-wide entity, we determine that this rate is relevant. Because the rate is both reliable and relevant it has probative value. Accordingly, we determine that the highest rate determined in any segment of this administrative proceeding ( *i.e.* , 223.01 percent) is corroborated ( *i.e.* , it has probative value). Analysis of Comments Received In the case and rebuttal briefs received from the parties after the *Preliminary Results* , we received comments on the surrogate values used to value labor, overhead, selling, general and administrative expenses (“SG&A”), and profit. We also received comments regarding the *bona fides* of Xuzhou Jinjiang's POR sales. Moreover, we received additional comments from Xuzhou Jinjiang in response to the Department's February 2, 2007, request for comments on the revised expected NME wage rates. All issues raised in the case briefs and wage rate comments are addressed in the Memorandum to David Spooner, Assistant Secretary for Import Administration, from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, regarding *Issues and Decision Memorandum for the Final Results in the 2004/2005 Administrative and New Shipper Reviews of Freshwater Crawfish Tail Meat from the People's Republic of China* (April 9, 2007) (“ *Issues and Decision Memorandum* ”), which is hereby adopted by this notice. A list of the issues raised, all of which are in the *Issues and Decision Memorandum* , is attached to this notice as Appendix I. Parties can find a complete discussion of all issues raised in the briefs and the corresponding recommendations in this public memorandum on file in the Central Records Unit (“CRU”), room B-099 of the Herbert H. Hoover Building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov. The paper copy and electronic version of the *Issues and Decision Memorandum* are identical in content. Changes Since the Preliminary Results Based on the comments received from the interested parties, we have made changes to the margin calculations for Qingdao JYX, Xiping Opeck, and Xuzhou Jinjiang. For the final results, we have updated the surrogate value for labor. For a discussion of these changes, see the *Issues and Decision Memorandum* at Comment 2. Final Results of Review We determine that the following antidumping duty margins exist: Freshwater Crawfish Tail Meat from the PRC Manufacturer/Exporter Weighted-Average Margin (Percent) Qingdao Jinyongxiang Aquatic Foods Co., Ltd. 50.98 Xiping Opeck Food Co., Ltd. 34.85 Xuzhou Jinjiang Foodstuffs Co., Ltd. 0.00 PRC-wide Rate(including Jiangsu Jiushoutang Organisms-Manufactures Co., Ltd. and Shanghai Sunbeauty Trading Co., Ltd.) 223.01 For details on the calculation of the antidumping duty margin for Qingdao JYX, Xiping Opeck, and Xuzhou Jinjiang, see Memorandum to the File, through Christopher D. Riker, Program Manager from Scot Fullerton, Senior International Trade Analyst, regarding Freshwater Crawfish Tail Meat From the People's Republic of China - Analysis Memorandum for the Final Results of Administrative Review of Qingdao Jinyongxiang Aquatic Foods Co., Ltd. (April, 9, 2007), Memorandum to the File, through Christopher D. Riker, Program Manager, from Erin Begnal, Senior International Trade Analyst, regarding *Freshwater Crawfish Tail Meat From the People's Republic of China - Analysis Memorandum for the Final Results of New Shipper Review of Xiping Opeck Food Co., Ltd.* (April, 9, 2007), and Memorandum to the File, through Christopher D. Riker, Program Manager, from Scot Fullerton, Senior International Trade Analyst, regarding Freshwater Crawfish Tail Meat From the People's Republic of China - Analysis Memorandum for the Final Results of New Shipper Review of Xuzhou Jinjiang Foodstuffs Co., Ltd. (April, 9, 2007). Public versions of these memoranda are on file in the CRU. Assessment of Antidumping Duties The Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate assessment instructions directly to CBP within 15 days of publication of the final results of this review. For assessment purposes for companies with a calculated rate, where possible, the Department calculated importer-specific assessment rates for freshwater crawfish tail meat from the PRC on a per-unit basis. Specifically, the Department divided the total dumping margins (calculated as the difference between normal value and export price) for each importer by the total quantity of subject merchandise sold to that importer during the POR to calculate a per-unit assessment amount. The Department will direct CBP to assess importer-specific assessment rates based on the resulting per-unit (i.e., per-kilogram) rates by the weight in kilograms of each entry of the subject merchandise during the POR. Cash Deposits The following cash-deposit requirements will be effective upon publication of the final results for shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided by section 751(a)(2)(C) of the Act:
(1)for subject merchandise exported by Qingdao JYX, Xiping Opeck, and Xuzhou Jinjiang, we will establish a per-kilogram cash deposit rate which will be equivalent to the company-specific weighted-average margin established in this review;
(2)the cash-deposit rate for PRC exporters who received a separate rate in a prior segment of the proceeding will continue to be the rate assigned in that segment of the proceeding;
(3)for all other PRC exporters of subject merchandise which have not been found to be entitled to a separate rate (including Shanghai Sunbeauty and Jiangsu JOM), the cash-deposit rate will be the PRC-wide rate of 223.01 percent;
(4)for all non-PRC exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the PRC exporter that supplied that exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review. Notification to Importers This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties. These reviews and notice are in accordance with sections 751(a)(1), 751(a)(2) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5). Dated: April 9, 2007. David M. Spooner, Assistant Secretary for Import Administration. Appendix I General Issues *Comment 1:* Surrogate Financial Ratios *Comment 2:* Surrogate Wage Rate Company-Specific Issues *Comment 3:* *Bona Fides* of Xuzhou Jinjiang Foodstuffs Co., Ltd.'s Sales [FR Doc. E7-7199 Filed 4-16-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-357-812] Honey from Argentina: Final Results of New Shipper Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On November 24, 2006, the Department of Commerce (the Department) published the preliminary results of review in this proceeding. *See Honey from Argentina: Preliminary Results of New Shipper Review* , 71 FR 67850 (November 24, 2006) ( *Preliminary Results* ). This new shipper review covers one exporter, Patagonik S.A. (Patagonik) and its affiliated supplier, Colmenares Santa Rosa (CSR), of subject merchandise to the United States. The period of review
(POR)is December 1, 2004, to December 31, 2005. The petitioners are the Sioux Honey Association and the American Honey Producers Association. Based on our analysis of comments received, the margin calculation for these final results does not differ from the preliminary results. EFFECTIVE DATE: April 17, 2007. FOR FURTHER INFORMATION CONTACT: David Cordell or Robert James, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-0408 or
(202)482-0649, respectively. SUPPLEMENTARY INFORMATION: Background On November 24, 2006, the Department published its *Preliminary Results* of this antidumping duty new shipper review of honey from Argentina. On December 15, 2006, the **Federal Register** published a correction notice due to typographical errors in the original preliminary results notice. *See Corrections Honey From Argentina: Preliminary Results of New Shipper Review (Corrections Notice)* , 71 FR 75614 (December 15, 2006). Subsequent to publication of the *Preliminary Results* and the *Corrections Notice* , the Department issued an additional cost questionnaire on December 20, 2006, to which Patagonik responded on January 3, 2007. In response to the Department's invitation to comment on the preliminary results, petitioners submitted their case brief on January 8, 2007, and Patagonik submitted its rebuttal brief on January 16, 2007. 1 On January 31, 2007, the Department extended the final results until April 16, 2007. *See Notice of Extension of Time Limit for Final Results of Antidumping Duty New Shipper Review: Honey from Argentina* , 72 FR 4486 (January 31, 2007). 1 In response to requests from petitioners and Patagonik, the Department extended the deadline for case briefs to January 8, 2006, and for rebuttal briefs to January 16, 2006. Scope of the Order The merchandise covered by the order is honey from Argentina. The products covered are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight, and flavored honey. The subject merchandise includes all grades and colors of honey whether in liquid, creamed, comb, cut comb, or chunk form, and whether packaged for retail or in bulk form. The merchandise is currently classifiable under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 of the *Harmonized Tariff Schedule of the United States* (HTSUS). Although the HTSUS subheadings are provided for convenience and Customs purposes, the Department's written description of the merchandise under this order is dispositive. Analysis of Comments Received All issues raised in the case and rebuttal briefs by parties to this new shipper review are addressed in the “Issues and Decision Memorandum” (Decision Memorandum) from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration. A list of issues addressed in the Decision Memorandum is appended to this notice. The Decision Memorandum is on file in the CRU and can be accessed directly on the web at http://www.ita.doc.gov/. Changes Since the Preliminary Results Based on our analysis of comments received, we have made no changes to our preliminary results. Final Results of Review We determine that the following dumping margins exist for the period December 1, 2004, through December 31, 2005. Exporter Weighted Average Margin (percentage) Patagonik S.A. /Colmenares Santa Rosa S.R.L 0.00 Assessment The Department shall determine, and the CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific assessment rates for the merchandise based on the ratio of the total amount of antidumping duties calculated for the examined sales made during the POR to the total customs value of the sales used to calculate those duties. The Department will issue appropriate *ad valorem* assessment instructions directly to CBP 15 days after publication of these final results of review. We will direct CBP to assess the resulting assessment rate against the entered customs values for the subject merchandise on each of the importer's entries during the POR. The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the period of review produced by companies included in these final results of review for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see *Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties* , 68 FR 23954 (May 6, 2003). Cash Deposit Requirements The following cash deposit requirements will be effective upon publication of the final results of this new shipper review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(1) of the Tariff Act of 1930, as amended (the Tariff Act):
(1)the cash deposit for Patagonik/CSR will be the rate established in the final results of this new shipper review;
(2)for any previously reviewed or investigated company not listed above, the cash deposit rate will continue to be the company-specific rate published in the most recent period;
(3)the cash deposit rate for entries of subject merchandise exported/produced by Patagonik/CSR but not produced by Patagonik/CSR will continue to be the “all other's” rate of 30.24 percent or the rate applicable to the producer/exporter if so established; and
(4)if neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will be the “all others” rate from the LTFV investigation (30.24 percent). *See Notice of Antidumping Duty Order; Honey From Argentina* , 66 FR 63672 (December 10, 2001). These deposit requirements shall remain in effect until publication of the final results of the next administrative review. Notification to Interested Parties This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties. This notice also serves as a reminder to parties subject to administrative protective orders
(APO)of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation, which is subject to sanction. We are issuing and publishing this determination and notice in accordance with sections section 751(a)(1) and 777(i)(1) of the Tariff Act. Dated: April 9, 2007. David M. Spooner, Assistant Secretary for Import Administration. Appendix: Issues and Decision Memorandum *Comment 1* . Bona Fide nature of the sale Comment 2. Billing Adjustment Comment 3. Averaging of Beekeeper Costs Comment 4. Drum Costs Comment 5. Feed Costs Comment 6. Rent Comment 7. Honey Collector's Salary [FR Doc. E7-7288 Filed 4-16-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Institute of Standards and Technology Notice of Meeting Regarding IPv6 Test Materials for the United States Government AGENCY: National Institute of Standards and Technology, Department of Commerce. ACTION: Notice of meeting. SUMMARY: The National Institute of Standards and Technology
(NIST)Information Technology Laboratory
(ITL)invites interested parties to attend a meeting pertaining to Internet Protocol version 6
(IPv6)Test Materials for the United States Government. NIST will host a meeting open to the public on May 4th, 2007, in Lecture Room B of building 101 at 9 am to discuss establishing a framework for a sound and viable testing methodology for Internet Protocol version 6. The discussion will include: USG requirements for testing, attributes of potential administrative frameworks for test programs, potential sources of test suites to serve as a technical basis for a testing program, and potential test providers who could carry out and/or provide services in support of such programs. DATES: The public meeting will be held on May 4th, 2007 at 9 a.m. Parties wishing to submit information should send their materials to NIST no later than April 30, 2007. ADDRESSES: The public meeting will be held at: NIST Administration Building, 100 Bureau Drive, Lecture Room B, Gaithersburg, MD 20899. Submissions of information should be sent to: *sp-500-267-comments@antd.nist.gov.* FOR FURTHER INFORMATION CONTACT: Stephen Nightingale, *night@nist.gov.* SUPPLEMENTARY INFORMATION: Following publication of NIST Special Publication 500-267 *A Profile for IPv6 in the Federal Government—Version 1.0,* NIST has begun to consider the feasibility and form of a possible testing program to demonstrate claims of compliance. Such a testing program might have two components:
(1)Qualified test laboratories testing to public domain test suites and relevant test methods, and
(2)An Approved Products List. The approved products list could identify Hosts, Routers and Network Protection Devices (including Firewalls) that have passed interoperability testing and conformance testing. The objective of the meeting is to determine the following information:
(1)Whether there are test Suites for interoperability and conformance that can be placed in the public domain, free from intellectual property rights or other encumbrance and validated against the specifications, for use as the standard reference test suite for the U.S. Government IPv6 Profile.
(2)What test methods, being devices or procedural systems, can be validated in conjunction with the standard reference test suites.
(3)Whether there are testing facilities compliant with, or intending to be compliant with, ISO 17025 *General Requirements for the Competence of Calibration and Testing Laboratories,* which may conduct interoperability and conformance testing of all or any integral part of the IPv6 Profile, in a forum open to all qualified applicants. Other interested parties are also invited to submit written statements. All parties desiring to attend the meeting must register in advance, to help co-ordinate access to the NIST campus. Draft NIST SP 500-267, the IPv6 profile, remains available electronically at *http://www.antd.nist.gov/usgv6-v1-draft.pdf.* Dated: April 12, 2007. William Jeffrey, Director. [FR Doc. E7-7287 Filed 4-16-07; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF COMMERCE National Institute of Standards and Technology International Code Council: The Update Process for the International Codes AGENCY: National Institute of Standards and Technology, Commerce. ACTION: Notice of Final Action Hearings on U.S. Model Building Safety and Fire Prevention Codes, 2007 supplement to the 2006 editions. SUMMARY: The International Code Council (ICC), under whose auspices the International Codes (“I-Codes”) are developed, maintains a process for updating these model codes based on receipt of proposals from interested individuals and organizations. The ICC's 14 separately published codes are each comprehensively updated and re-published every three years with a supplement released between each edition. The most current versions of the I-Codes are the 2006 editions. The 2007 supplement to the 2006 editions, the subject of this notice, will be released in July of 2007. The purpose of this notice is to invite public participation in the Final Action Hearings of the present code development cycle that concludes in the publication of the 2007 supplement to the 2006 edition. Consistent with the procedures of the Governmental Consensus Process, following committee action taken at the Code Development Hearings held in September 2006, the ICC published the result of the hearings and invited and received public comment. At the Final Action Hearings contested proposals will again be publicly debated followed by membership action to approve or reject each scheduled item. The publication of this notice by the National Institute of Standards and Technology
(NIST)on behalf of ICC is being undertaken as a public service. NIST does not necessarily endorse, approve, or recommend any of the codes or standards referenced in the notice. Session Dates: The Final Action Hearings of the 2006/2007 Code Development Cycle will occur between May 21 and May 26, 2007, at the Rochester Riverside Convention Center, Rochester, New York. The agenda for the hearing as well as updates to the schedule are also posted on the ICC Web site at: *http://www.iccsafe.org* . FOR FURTHER INFORMATION CONTACT: Mike Pfeiffer, PE, Vice President, Codes and Standards Development at ICC's Chicago District Office, 4051 West Flossmoor Road, Country Club Hills, Illinois 60478; Telephone 888-422-7233, Extension 4338; e-mail *mpfeiffer@iccsafe.org* . SUPPLEMENTARY INFORMATION: Background The ICC produces a family of Codes and Standards that are comprehensive, coordinated, and are widely used across the country in the regulation of the built environment. Local, State, and Federal agencies use these codes and standards as the basis for developing regulations concerning new and existing construction. ICC's model codes and standards are each developed and maintained through voluntary consensus development processes known as the Governmental Consensus Process. Consistent with the voluntary consensus requirements of the National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113), the Governmental Consensus Process incorporates a balance of involved interests, ensures due process, provides for conclusion by consensus, the resolution of objections by interested parties, the fair consideration of all public comments, and has a prescribed process for appeal of any action. The ICC code development process is initiated when proposals from interested persons—supported by written data, views, or arguments—are solicited, received and then published in the Proposed Changes document. This document is distributed a minimum of 30 days in advance of the Code Development Hearings and serves as the agenda for that session. At the Code Development Hearing the ICC Code Development Committee for each code or subject area of the code considers testimony and takes action on each proposal (Approval, Disapproval, or Approval as Modified). At the conclusion of committee action on each proposal, any member of the public assembly may make a motion for a vote by the ICC members in attendance (“assembly action”) to consider an action different than the committee action. Successful assembly actions on code changes become part of the record of public comments and are considered at the Final Action Hearing. Following the Code Development Hearing, the Report of the Public Hearing is published and identifies the disposition of each proposal, the reason for the committee's action, and successful assembly actions. Any person may provide additional comment on the committee actions in the public comment period following the first hearing. These comments are published and distributed in Final Action Agenda which serves as the agenda for the second public hearing in each cycle. Proposals which are approved by a vote of the Governmental Members of ICC at the Final Action Hearing are incorporated in either the Supplement or Edition, as applicable, with the next 18-month cycle starting with the submittal deadline for proposals. Proponents of proposals will receive a copy of all documents (Proposed Changes, Report of the Public Hearing and Final Action Agenda). Any interested party may also request a copy, free of charge, by downloading the “return coupon” from the ICC website at *http://www.iccsafe.org* and forwarding it as directed. The International Codes consist of the following: International Building Code; International Code Council Electrical Code Administrative Provisions; International Energy Conservation Code; International Existing Building Code; International Fire Code; International Fuel Gas Code; International Mechanical Code; ICC Performance Code for Buildings and Facilities; International Plumbing Code; International Private Sewage Disposal Code; International Property Maintenance Code; International Residential Code; International Urban-Wildland Interface Code; and International Zoning Code. Dated: April 12, 2007. William Jeffrey, Director. [FR Doc. E7-7276 Filed 4-16-07; 8:45 am] BILLING CODE 3510-13-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Marine Mammal Stranding Report/Marine Mammal Rehabilitation Disposition Report AGENCY: National Oceanic and Atmospheric Administration (NOAA). ACTION: Notice. SUMMARY: The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. DATES: Written comments must be submitted on or before June 18, 2007. ADDRESSES: Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6625, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at *dHynek@doc.gov* ). FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of the information collection instrument and instructions should be directed to Patricia Lawson, 301-713-2322 or *patricia.lawson@noaa.gov.* SUPPLEMENTARY INFORMATION: I. Abstract The marine mammal stranding report provides information on strandings so that the National Marine Fisheries Service
(NMFS)can compile and analyze by region the species, numbers, conditions, and causes of illnesses and deaths in stranded marine mammals. The Agency requires this information to fulfill its management responsibilities under the Marine Mammal Protection Act (16 U.S.C. 1421a). The Agency is also responsible for the welfare of marine mammals while in rehabilitation status. The data from the marine mammal rehabilitation disposition report are required for monitoring and tracking of marine mammals held at various NMFS-authorized facilities. This information is submitted primarily by volunteer members of the marine mammal stranding networks who are authorized by the Agency. II. Method of Collection Paper applications, electronic reports, and telephone calls are required from participants, and methods of submittal include Internet through the NMFS National Marine Mammal Stranding Database and facsimile transmission of paper forms. III. Data *OMB Number:* 0648-0178. *Form Number:* None. *Type of Review:* Regular submission. *Affected Public:* Not-for-profit institutions; and business or other for-profit organizations. *Estimated Number of Respondents:* 400. *Estimated Time per Response:* 30 minutes. *Estimated Total Annual Burden Hours:* 2,400. *Estimated Total Annual Cost to Public:* $78.44. IV. Request for Comments *Comments are invited on:*
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility;
(b)the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information;
(c)ways to enhance the quality, utility, and clarity of the information to be collected; and
(d)ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: April 11, 2007. Gwellnar Banks, Management Analyst, Office of the Chief Information Officer. [FR Doc. E7-7216 Filed 4-16-07; 8:45 am] BILLING CODE 3510-22-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Notice of Intent To Prepare and Environmental Impact Statement
(EIS)for the Proposed Approval of a Coastal Management Program for the State of Illinois Under the Coastal Zone Management Act
(CZMA)of 1972, As Amended AGENCY: Office of Ocean and Coastal Resource Management (O CRM), National Oceanic and Atmospheric Administration (NOAA), U.S. Department of Commerce. ACTION: Notice of intent to prepare an EIS; request for comments. SUMMARY: Pursuant to the National Environmental Policy Act
(NEPA)of 1969, as amended (42 U.S.C. 4231, *et seq,* ), the Council on Environmental Quality Regulations for implementing the procedural provisions of NEPA (40 Code of Federal Regulation
(CFR)parts 1500-1508), and NOAA policy and procedures (NOAA Administrative Orders
(NAO)216-6), the NOS Office of Ocean and Coastal Resource Management
(OCRM)is issuing this notice to advise the public of its intent to prepare an EIS evaluating potential environmental impacts associated with approving and providing annual funding for the State of Illinois' Coastal Management Program under the CZMA. Interested parties who wish to submit suggestions, comments on substantive information regarding the scope of content of the proposed DEIS, extent of the action, range of alternatives, and types of impacts, are invited to provide written comments to the designated officials below. Currently there are no scoping meetings planned, as many meetings and workshops have already been held for Federal, State and local agencies as well as the public in Illinois. The meetings and written comments will be documented and summarized in a scoping report included in the DEIS for public comment. SUPPLEMENTARY INFORMATION: The National Coastal Zone Management
(CZM)Program is a voluntary partnership between the Federal Government and U.S. coastal States and territories authorized by the CZMA. OCRM administers program at the Federal level and works with State coastal zone management partners to: • Preserve, protect, develop and, where possible, restore and enhance the resources of the nation's coastal zone for this and succeeding generations; • Encourage and assist the states to exercise effectively their responsibilities in the coastal zone to achieve wise use of land and water resources, giving full consideration to ecological, cultural, historic, and aesthetic values, as well as the need for compatible economic development; • Encourage the preparation of special area management plans to provide increased specificity in protecting significant natural resources, reasonable coastal-dependent economic growth, improved protection of life and property in hazardous areas and improved predictability in government decisionmaking; and • Encourage the participation, cooperation, and coordination of the public, Federal, State, local, interstate and regional agencies, and governments affecting the coastal zone. Of the 35 coastal States and island territories eligible to participate in the CMP, only Illinois has not joined. A total of 34 coastal States and five island territories and commonwealths have developed CZM programs representing more than 99.9 percent of the nation's 95,331 miles of oceanic and Great lakes coastline. Illinois has 63 miles of shoreline. On November 4, 2004, Governor Blagojevich announced that Illinois would be seeking application into the National Coastal Zone Management Program. It is a voluntary program under which Illinois will be applying to NOAA for Federal program approval and Federal funding. The Illinois Department of Natural Resources has been designated as the lead State agency for developing the Lake Michigan Coastal Management Program for Illinois. The purpose of the Illinois Coastal Management Program
(ICMP)will be to enhance the State's role in planning for and managing its natural and cultural resources in the coastal region. Many Federal, State, and local agencies manage resources in the coastal region of Illinois. This will not change, as the fundamental roles of the agencies will remain the same. The ICMP will encourage coordination of agency efforts in the coastal region and will provide opportunities for Federal, State, and local stakeholders to cooperatively identify priorities for the coastal region and to implement projects which address those priorities. Upon ICMP approval, Illinois will be eligible to receive approximately $2 million/year in Federal CZMA funds, which will fund a grants program to assist in implementing projects and studies designed to protect and enhance the natural and cultural resources within Illinois' coastal zone. The ICMP will create ecological, recreational and economic opportunities for Illinois and may provide assistance in addressing the following issues: Water quality; protection of wetlands and other natural resources; planning for erosion control, utility access and energy development; improving public access for recreational purposes; redevelopment of deteriorating and underutilized urban waterfronts and ports; educational, interpretive, and research measures; documentation, monitoring and analysis of coastal land uses changes; and preservation and/or restoration of areas for their conservation, recreational, ecological, historical and aesthetic values. The EIS will analyze the environmental impacts of two alternatives that are available to OCRM:
(1)Approve the program and
(2)do not approve the program, or the No Action alternative. Public participation is invited by providing written comments to NOS, and attending public meetings conducted by the State. OCRM reserves the right to hold additional scoping meetings should they prove necessary, and they will be noticed in the **Federal Register** and local newspapers 30 days in advance of their being held. Oral and written comments presented at the public scoping meetings, as well as written comments received by OCRM during this scoping period and throughout the EIS process, will be considered in the preparation of the EIS. To ensure that OCRM has sufficient time to consider public input in preparation of the Draft EIS, written comments should be submitted to the address below by 29 June 2007. Letters and other written or oral comments received may be published in the EIS along with the names of the individuals making the comments (personal home addresses and phone numbers will not be published). As required by law, comments will be addressed in the EIS and made available to the public. Private addresses will only be used to develop a mailing list of those individuals requesting copies of the EIS. FOR FURTHER INFORMATION CONTACT: Please direct any written comments or requests for information to: Diana Olinger, Coastal Programs Division, Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration, 1305 East-West Highway, Silver Spring, Maryland 20910, E-mail: *Diana.Olinger@noaa.gov,* telephone number:
(301)563-1149. William Corso, Deputy Assistant Administrator, Ocean Services and Coastal Zone Management, National Oceanic and Atmospheric Administration. (Federal Domestic Assistance Catalog 11.419 Coastal Zone Management Program Assistance) [FR Doc. 07-1888 Filed 4-16-07; 8:45 am]
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156 references not yet in our index
  • 5 CFR 550
  • Pub. L. 108-411
  • 5 CFR 550.1402
  • Pub. L. 109-425
  • 5 CFR 550.1406(b)
  • 5 CFR 550.112(g)(2)
  • 5 CFR 550.112(j)(2)
  • 5 CFR 551.422(b)
  • 41 CFR 300
  • 5 CFR 550.112(j)
  • 5 CFR 550.112(g)
  • 5 CFR 551.422
  • 5 CFR 550.1403
  • 5 CFR 550.1404(b)(1)
  • 5 CFR 550.112(m)
  • 5 CFR 551.422(c)
  • 5 CFR 550.114
  • Pub. L. 105-277
  • 5 CFR 890
  • 5 CFR 890.108
  • Pub. L. 96-354
  • Pub. L. 104-4
  • Pub. L. 101-513
  • 104 Stat. 2064
  • Pub. L. 105-33
  • Pub. L. 105-261
  • 112 Stat. 2061
  • 8 CFR 103.2(b)(1)
  • 229 F.3d 277
  • 22 F.3d 320
  • 276 F.3d 634
  • 8 CFR 103.2(b)(13)(i)
  • 8 CFR 103.2(b)(13)
  • 8 CFR 245.18(i)
  • 8 CFR 103.2(b)(16)(i)
  • 8 CFR 103.2(b)(8)(i)
  • 8 CFR 103.2(b)(8)(ii)
  • 8 CFR 103.2(f)
  • 8 CFR 103.2(b)(4)
  • Pub. L. 104-13
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U.S.C.§ 5545
U.S.C.§ 7106
U.S.C.§ 5550b
U.S.C.§ 5304
Pub. L.Public Law 118-137
F. App'x229 F.3d 277
F. App'x22 F.3d 320
F. App'x276 F.3d 634
Cites 274 · showing 12Cited by 0 across 0 sources
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