Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2007-04-25 · Agriculture Agriculture Department See Food and Nutrition Service Air Force Air Force Department NOTICES Meetings: Air Force Academy Board of Visitors, 20516 E7-7886 Alcohol Alcohol, Tobacco, Firearms · Unknown

Unknown. Notice

81,501 words·~370 min read·/register/2007/04/25/07-2064

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-2007-04-25.xml --- 72 79 Wednesday, April 25, 2007 Contents Agriculture Agriculture Department See Food and Nutrition Service Air Force Air Force Department NOTICES Meetings: Air Force Academy Board of Visitors, 20516 E7-7886 Alcohol Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 20561-20562 E7-7889 E7-7890 Army Army Department See Engineers Corps Arts Arts and Humanities, National Foundation See National Foundation on the Arts and the Humanities Centers Centers for Disease Control and Prevention NOTICES Meetings:
Horse racing industry; safety, health, and best practices, 20551 E7-7855 National Institute for Occupational Safety and Health— Asbestos and other mineral fibers; scientific research roadmap, 20552-20553 E7-7882 National Occupational Research Agenda Mining Sector Council, 20551-20552 E7-7849 Chemical Chemical Safety and Hazard Investigation Board NOTICES Meetings; Sunshine Act, 20500-20501 07-2064 Commerce Commerce Department See Economic Development Administration See International Trade Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-7828 E7-7830 20501-20503 E7-7831 E7-7833 E7-7834 Consumer Consumer Product Safety Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 20506-20507 E7-7811 Defense Defense Department See Air Force Department See Engineers Corps NOTICES Arms sales notification; transmittal letter, etc., 20507-20514 07-2044 Care for America's Returning Wounded Warriors, President's Commission, site visits:
McGuire Veterans Affairs Medical Center, VA, 20514 07-2041 Meetings: Missile Defense Advisory Committee, 20514-20515 07-2042 07-2043 National Defense Intelligence College, 20515 07-2021 Meetings; Sunshine Act, 20515-20516 07-2060 Economic Economic Development Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 20503-20504 E7-7832 Employee Employee Benefits Security Administration PROPOSED RULES Employee Retirement Income Security Act:
Participants in individual account plans; fee and expense disclosures, 20457-20460 E7-7884 Employment Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 20564-20566 E7-7819 E7-7820 E7-7821 Energy Energy Department See Energy Efficiency and Renewable Energy Office See Federal Energy Regulatory Commission See Western Area Power Administration NOTICES Meetings: National Coal Council, 20516-20517 E7-7856 Energy Energy Efficiency and Renewable Energy Office NOTICES Meetings:
Biomass Research and Development Technical Advisory Committee, 20517 E7-7854 Engineers Engineers Corps PROPOSED RULES Danger zones and restricted areas: Marine Corps Air Station Cherry Point, NC; rifle range, 20460-20462 E7-7901 EPA Environmental Protection Agency RULES Air pollution control: State operating permits programs— Maryland, 20428-20430 E7-7919 Air quality implementation plans: Preparation, adoption, submittal— Fine particle (PM2.5) national ambient air quality standards; implementation provisions, 20586-20667 E7-6347 Pesticide programs:
Biochemical and microbial pesticides; data requirements; notification to Agriculture Secretary, 20430 E7-7445 Plant-incorporated protectant tolerance exemptions; administrative revisions, 20431-20436 E7-7768 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Propiconazole, 20436-20439 E7-7678 PROPOSED RULES Air pollution control: State operating permits programs— Maryland, 20488-20489 E7-7920 Air programs: Clean Air Interstate Rule, CAIR Federal implementation plan, Clean Air Mercury Rule, etc.; cogeneration definition revisions and technical corrections, 20465-20480 E7-7536 Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
Montana, 20480-20488 E7-7900 Pesticide programs: Plant-incorporated protectant tolerance exemptions; administrative revisions, 20489-20494 E7-7767 NOTICES Agency information collection activities; proposals, submissions, and approvals, 20534-20536, 20668-20669 E7-6348 E7-7894 Confidential business information and data transfer, 20536-20538 E7-7765 E7-7879 Meetings: Ozone Transport Commission, 20538 E7-7898 Science Advisory Board, E7-7891 20538-20539 E7-7893 Pesticide programs:
Risk assessments— Mecoprop-p, 20539-20541 E7-7676 Pesticide registration, cancellation, etc.: E.I. Du Pont De Nemours & Co., Inc., et al., 20541-20543 E7-7769 Formetanate hydrochloride, 20543-20544 E7-7766 Pesticides; experimental use permits, etc.: Valent BioSciences Corp., 20544 E7-7888 Reports and guidance documents; availability, etc.: Pesticides— California red-legged frog; stipulated injunction, 20544-20545 E7-7764 Executive Executive Office of the President See Presidential Documents Export Export-Import Bank NOTICES China; machine tooling equipment; finance application, 20545-20546 E7-7924 FCC Federal Communications Commission RULES Common carrier services:
Wireless telecommunications services— Cellular telephones and other wireless devices use aboard airborne aircraft; facilitation; termination of proceeding, 20439 E7-7791 PROPOSED RULES Radio services, special: Fixed microwave services— 10.7-11.7 GHz band; antenna requirements, 20494-20499 E7-7796 NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-7929 20546-20547 E7-7932 Federal Energy Federal Energy Regulatory Commission NOTICES Complaints filed:
Allegheny Electric Cooperative, Inc., et al., 20523-20524 E7-7801 Norstar Operating, LLC, et al., 20524 E7-7861 Sierra Pacific Resources Operating Companies et al., 20524-20525 E7-7803 Electric rate and corporate regulation combined filings, 20525-20526 E7-7795 Environmental statements; availability, etc.: Pacific Gas & Electric Co., 20526-20527 E7-7804 Meetings: California Interstate Gas Co.; technical conference, 20527 E7-7805 Colorado Interstate Gas Company; technical conference, 20527 E7-7864 Transcontinental Gas Pipe Line Corp.; informal settlement conference, 20527 E7-7863 Wholesale Power Markets; conference on competition, 20528 E7-7869 *Applications, hearings, determinations, etc.:* Aero Energy, LLC, 20517-20518 E7-7797 ANR Pipeline Co., 20518 E7-7857 CenterPoint Energy Gas Transmission Co., 20518-20519 E7-7867 CenterPoint Energy-Illinois Gas Transmission Co., 20518 E7-7859 Commonwealth Edison Co. et al., 20519 E7-7860 Entergy Services, Inc., 20519 E7-7799 Maritimes & Northeast Pipeline, L.L.C., 20519-20520 E7-7862 PJM Interconnection, L.L.C., 20520 E7-7800 Rockies Express Pipeline LLC, E7-7865 20520-20521 E7-7866 Sleeping Bear, LLC, 20521 E7-7802 Texas-Ohio Pipeline, Inc., 20521 E7-7858 Transcontinental Gas Pipe Line Corp., 20522 E7-7868 Williston Basin Interstate Pipeline Co., 20522-20523 E7-7798 E7-7806 Federal Highway Federal Highway Administration NOTICES Meetings:
Motorcyclist Advisory Council, 20577-20578 07-2056 FMC Federal Maritime Commission NOTICES Agreements filed, etc., 20547-20548 E7-7916 E7-7931 Complaints filed: Norland Industries, Inc., et al., 20548-20549 E7-7913 Ocean transportation intermediary licenses: Aero Costa International, Inc., et al., 20549 E7-7910 Carex Shipping, LLC, et al., 20549 E7-7917 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Change in bank control, 20549-20550 E7-7874 Formations, acquisitions, and mergers, 20550 E7-7793 E7-7794 Fish Fish and Wildlife Service NOTICES Endangered and threatened species:
Incidental take permits— Brevard County, FL; Florida scrub-jay, 20558-20559 E7-7872 Endangered and threatened species permit applications, 20557-20558 E7-7899 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 20553-20557 E7-7813 E7-7815 Food Food and Nutrition Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 20500 E7-7881 GSA General Services Administration NOTICES Federal Management Regulation:
Federal buildings; redesignations (FMR Bulletin PBS-2007-B2), 20550-20551 E7-7827 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration NOTICES Federal claims; interest rates on overdue debts, 20551 07-2048 Homeland Homeland Security Department See U.S. Citizenship and Immigration Services RULES Chemical facility anti-terrorism standards: Chemical security assessment tool system access; registration process recommendation, 20423 E7-7923 Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 20557 E7-7922 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Surface Mining Reclamation and Enforcement Office IRS Internal Revenue Service RULES Income taxes:
Dual consolidated losses Correction, 20423-20425 E7-7780 E7-7782 International International Trade Administration NOTICES Grants and cooperative agreements; availability, etc.: Americas Competitiveness Forum, 20506 E7-7925 *Applications, hearings, determinations, etc.:* National Institute of Standards and Technology et al., 20504-20505 E7-7926 Purdue University, et al., 20505-20506 E7-7928 Justice Justice Department See Alcohol, Tobacco, Firearms, and Explosives Bureau See Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 20560-20561 E7-7885 Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 20562-20563 E7-7887 Labor Labor Department See Employee Benefits Security Administration See Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 20563-20564 E7-7823 Land Land Management Bureau NOTICES Alaska Native claims selection:
Klawock Heenya Corp., 20559-20560 E7-7883 K’oyitl’ots’ina, Ltd., 20559 E7-7880 Coal leases, exploration licenses, etc.: Colorado, 20560 E7-7807 Maritime Maritime Administration NOTICES Coastwise trade laws; administrative waivers: ASHLANA, 20578-20579 E7-7690 PANTHALASSA, 20579 E7-7687 SWEETEST THING, 20579-20580 E7-7685 National Foundation National Foundation on the Arts and the Humanities NOTICES Agency information collection activities; proposals, submissions, and approvals, 20566-20567 E7-7818 Nuclear Nuclear Regulatory Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 20567-20569 E7-7844 E7-7846 E7-7847 Personnel Personnel Management Office PROPOSED RULES Pay administration:
Critical position pay authority, 20440-20442 E7-7763 NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-7824 E7-7825 20569-20570 E7-7826 Postal Postal Service PROPOSED RULES Domestic Mail Manual: Lithium batteries; revised mailing standards, 20463-20465 E7-7817 Sharps and other regulated medical waste containers; revised mailing standards, 20462-20463 E7-7816 Presidential Presidential Documents PROCLAMATIONS *Special observances:* National Crime Victims’ Rights Week (Proc. 8130), 20695-20698 07-2066 National Park Week (Proc. 8131), 20699-20700 07-2067 SEC Securities and Exchange Commission NOTICES Meetings;
Sunshine Act, 20570 E7-7835 Self-regulatory organizations; proposed rule changes: Chicago Board Options Exchange, Inc., 20570-20571 E7-7837 NASDAQ Stock Market LLC, 20572-20573 E7-7838 New York Stock Exchange LLC, 20573-20576 E7-7836 Sentencing Sentencing Commission, United States See United States Sentencing Commission SBA Small Business Administration NOTICES *Applications, hearings, determinations, etc.:* Brook Venture Fund IIA, LP, 20577 E7-7839 State State Department NOTICES Foreign Assistance Act and Foreign Operations, Export Financing, and Related Programs Appropriations Act:
Somalia; assistance determination, 20577 E7-7918 Meetings: International Economic Policy Advisory Committee, 20577 E7-7921 Surface Surface Mining Reclamation and Enforcement Office PROPOSED RULES Federal and Indian lands programs: Indian lands; definition clarification; agency decision, 20672-20693 E7-7647 Transportation Transportation Department See Federal Highway Administration See Maritime Administration Treasury Treasury Department See Internal Revenue Service MISSING FOR:
U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services PROPOSED RULES Immigration: Religious workers; immigrant and nonimmigrant classification; petition requirement, 20442-20457 E7-7743 U.S. Sentencing United States Sentencing Commission NOTICES Sentencing guidelines and policy statements for Federal courts, 20576-20577 E7-7915 Veterans Veterans Affairs Department RULES Vocational rehabilitation and education: Veterans education— Educational institutions with multi-state campuses; centralized certifications of enrollment, 20425-20428 E7-7810 NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-7843 20580-20583 E7-7845 E7-7848 E7-7851 E7-7852 Western Western Area Power Administration NOTICES Resource adequacy plans:
California Independent System Operator Corporation's Balancing Authority Area transactions, 20528-20533 E7-7870 Separate Parts In This Issue Part II Environmental Protection Agency, 20586-20669 E7-6347 E7-6348 Part III Interior Department, Surface Mining Reclamation and Enforcement Office, 20672-20693 E7-7647 Part IV Executive Office of the President, Presidential Documents, 20695-20700 07-2066 07-2067 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 79 Wednesday, April 25, 2007 Rules and Regulations DEPARTMENT OF HOMELAND SECURITY 6 CFR Part 27 [DHS-2007-0025] Notice to Facilities to Begin Registration for Chemical Security Assessment Tool AGENCY: Department of Homeland Security.
ACTION: Notice. SUMMARY: The Department of Homeland Security (DHS or Department) recommends that chemical facilities begin the registration process to gain access to the Chemical Security Assessment Tool
(CSAT)system. This is a voluntary registration process for facilities that think they may be covered by DHS's Chemical Facility Anti-Terrorism Standards located in 6 CFR Part 27 and that would like to initiate the process to determine whether or not they are covered by 6 CFR Part 27. DATES: Effective April 25, 2007. FOR FURTHER INFORMATION CONTACT: Matthew Bettridge, Chemical Security Regulatory Task Force, Department of Homeland Security, 703-235-5263. SUPPLEMENTARY INFORMATION: Section 550 of the Homeland Security Appropriations Act of 2007 provided the Department of Homeland Security (DHS or Department) with authority to promulgate “interim final regulations” for the security of certain chemical facilities in the United States. *See* Pub. L. 109-295, sec. 550. On December 28, 2006, the Department issued an Advance Notice of Rulemaking seeking comment on the significant issues and regulatory text ( *see* 71 FR 78276), and on April 9, 2007, the Department published an Interim Final Rule establishing anti-terrorism standards for chemical facilities ( *see* 72 FR 17688). The Interim Final Rule is effective June 8, 2007. Although the Interim Final Rule does not go into effect until June, DHS strongly recommends that facilities begin the registration process as soon as possible to gain access to the Chemical Security Assessment Tool
(CSAT)system. The CSAT is a suite of four applications, including the User Registration, Top-Screen, Security Vulnerability Assessment, and Site Security Plan, through which the Department will collect and analyze key data from chemical facilities. Facilities will submit information to DHS through an on-line, web-based component of the CSAT system. CSAT user registration is the first step in the process of determining whether or not facilities are covered by the Interim Final Rule. In the course of the CSAT user registration process, facilities will provide basic information to DHS ( *e.g.* , the name, contact information, and mailing address for the submitter), and DHS will, in turn, provide each approved CSAT user with a user identification and password, so that they can access the CSAT system. DHS will provide approved users with user identifications and passwords in the weeks just before the interim final rule becomes effective ( *i.e.* , June 8, 2007). By beginning and encouraging early user registration, DHS believes that it will facilitate the efficient roll-out of the Interim Final Rule. The registration process can take some time, as there are several parts involved: Potential users must complete an online form, DHS must create an account, and potential users must then sign the user registration form and return it to DHS. Facilities who have registered early will have completed this process and will be able to begin completing the Top-Screen as soon as the rule goes into effect. Until the effective date of the rule, this is a voluntary registration process for facilities that think they may be covered by DHS's Chemical Facility Anti-Terrorism Standards located in 6 CFR Part 27 and that would like to initiate the process to determine whether or not they are covered by 6 CFR Part 27. By registering with DHS, facilities will obtain access to the CSAT system, so that they can obtain a user registration and password, complete the Top-Screen, etc. Note that this **Federal Register** Notice is not notice under 6 CFR 27.200(b) that DHS is seeking information from certain chemical facilities. This notice does not impose any obligation or requirement on any party. Instead, it simply provides written notice of the Web site available for parties voluntarily choosing to access the CSAT system. To begin the CSAT registration process, facilities should go to *http://www.DHS.gov/chemicalsecurity* and follow the instructions for gaining access to the CSAT system. DHS has activated this CSAT Web page concurrent with its publication of the interim final rule on April 9, 2007. In addition, DHS notes that it has established a help desk for CSAT users. The phone number for the help desk is located on the CSAT Web page. Robert B. Stephan, Assistant Secretary for Infrastructure Protection, Department of Homeland Security. [FR Doc. E7-7923 Filed 4-24-07; 8:45 am] BILLING CODE 4410-10-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9315] RIN 1545-BD10 Dual Consolidated Loss Regulations; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correcting amendments. SUMMARY: This document contains corrections to final regulations (TD 9315) that were published in the **Federal Register** on Monday, March 19, 2007 (72 FR 12902) regarding dual consolidated losses. Section 1503(d) generally provides that a dual consolidated loss of a dual resident corporation cannot reduce the taxable income of any other member of the affiliated group unless, to the extent provided in regulations, the loss does not offset the income of any foreign corporation. DATES: These correcting amendments are effective April 25, 2007. FOR FURTHER INFORMATION CONTACT: Jeffrey P. Cowan,
(202)622-3860 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The final regulations that are the subject of this document are under section 1503(d) of the Internal Revenue Code. Need for Correction As published, final regulations (TD 9315) contain errors that may prove to be misleading and are in need of clarification. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Correction of Publication Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 1.1503(d)-0 is amended by revising the entries
(1)and
(2)of Section 1.1503(d)-8(b). The revisions read as follows: § 1.1503(d)-0 Table of contents. § 1.1503(d)-8 Effective dates.
(b)* * *
(1)Reduction of term of agreements filed under §§ 1.1503-2A(c)(3), 1.1503-2A(d)(3), 1.1503-2(g)(2)(i), or 1.1503-2T(g)(2)(i).
(2)Reduction of term of agreements filed under §§ 1.1503-2(g)(2)(iv)(B)( *2* )( *i* ) (1992), 1.1503-2(g)(2)(iv)(B)( *3* )( *i* ), or Rev. Proc. 2000-42. **Par. 3.** Section 1.1503(d)-5 is amended by revising the last sentence of paragraph (a), the second sentence of paragraph (c)(4)(i)(A), and the only sentence of paragraph
(d)to read as follows: § 1.1503(d)-5 Attribution of items and basis adjustments.
(a)* * * The rules in this section apply for purposes of §§ 1.1503(d)-1 through 1.1503(d)-7.
(c)* * *
(4)* * *
(i)* * *
(A)* * * For purposes of determining items of income, gain, deduction, and loss of the domestic owner that are attributable to the domestic owner's foreign branch separate unit described in the preceding sentence, only items of income, gain, deduction, and loss that are attributable to the domestic owner's interest in the hybrid entity, or transparent entity, as provided in paragraph (c)(3) of this section, shall be taken into account. * * *
(d)* * * The fact that a particular item taken into account in computing the income or dual consolidated loss of a dual resident corporation or a separate unit, or the income or loss of an interest in a transparent entity, is not taken into account in computing income (or loss) subject to a foreign country's income tax shall not cause such item to be excluded from being taken into account under paragraph (b), (c), or
(e)of this section. **Par. 4.** Section 1.1503(d)-7(c) is amended by revising the last sentence of paragraph
(iv)of *Example 5* and the last sentence of paragraph
(C)of *Example 40* (ii). The revisions read as follows: § 1.1503(d)-7 Examples.
(c)* * * *Example 5* . * * *
(iv)* * * In addition, pursuant to § 1.1503(d)-6(f)(1) and (3), the deemed transfers pursuant to Rev. Rul. 99-5 as a result of the sale are not treated as triggering events described in § 1.1503(d)-6(e)(1)(iv) or (v). *Example 40* . * * *
(ii)* * *
(C)* * * Pursuant to § 1.1503(d)-6(j)(1)(iii), the domestic use agreement filed by the P consolidated group with respect to the year 1 dual consolidated loss of the Country X separate unit is terminated and has no further effect. **Par. 5.** Section 1.1503(d)-8 is amended by revising the heading texts of paragraphs (b)(1) and (2), the only sentence of paragraph (b)(1), the first sentence of paragraph (b)(2) and the last sentence of paragraph (b)(4). The revisions read as follows: § 1.1503(d)-8 Effective dates.
(b)* * *
(1)*Reduction of term of agreements filed under §§ 1.1503-2A(c)(3), 1.1503-2A(d)(3), 1.1503-2(g)(2)(i), or 1.1503-2T(g)(i)* . If an agreement is filed in accordance with §§ 1.1503-2A(c)(3), 1.1503-2A(d)(3), 1.1503-2(g)(2)(i), or 1.1503-2T(g)(2)(i) with respect to a dual consolidated loss incurred in a taxable year beginning prior to the application date and an event requiring recapture with respect to the dual consolidated loss subject to the agreement has not occurred as of the application date, then such agreement will be considered by the Internal Revenue Service to apply only for any taxable year up to and including the fifth taxable year following the year in which the dual consolidated loss that is the subject of the agreement was incurred and thereafter will have no effect.
(2)*Reduction of term of agreements filed under §§ 1.1503-2(g)(2)(iv)(B)(2)(i) (1992), 1.1503-2(g)(2)(iv)(B)(3)(i), or Rev. Proc. 2000-42* . Taxpayers subject to the terms of a closing agreement entered into with the Internal Revenue Service pursuant to §§ 1.1503-2(g)(2)(iv)(B)( *2* )( *i* ) (1992), 1.1503-2(g)(2)(iv)(B)( *3* )( *i* ), or Rev. Proc. 2000-42 (2000-2 CB 394), see § 601.601(d)(2)(ii)( *b* ) of this chapter, will be deemed to have satisfied the closing agreement's fifteen-year certification period requirement if the five-year certification period specified in § 1.1503(d)-1(b)(20) has elapsed, provided such closing agreement is still in effect as of the application date, and provided the dual consolidated losses have not been recaptured. * * *
(4)* * * Notwithstanding the general application of this paragraph (b)(4) to events described in § 1.1503-2(g)(2)(iv)(B)( *1* )( *i* ) through ( *iii* ) that occur after April 18, 2007, a taxpayer may choose to apply this paragraph (b)(4) to events described in § 1.1503-2(g)(2)(iv)(B)( *1* )( *i* ) through ( *iii* ) that occur after March 19, 2007 and on or before April 18, 2007. LaNita Van Dyke, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration). [FR Doc. E7-7782 Filed 4-24-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9315] RIN 1545-BD10 Dual Consolidated Loss Regulations; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to final regulations. SUMMARY: This document contains a correction to final regulations (TD 9315) that were published in the **Federal Register** on Monday, March 19, 2007 (72 FR 12902) regarding dual consolidated losses. Section 1503(d) generally provides that a dual consolidated loss of a dual resident corporation cannot reduce the taxable income of any other member of the affiliated group unless, to the extent provided in regulations, the loss does not offset the income of any foreign corporation. DATES: This correction is effective April 25, 2007. FOR FURTHER INFORMATION CONTACT: Jeffrey P. Cowan,
(202)622-3860 (not a toll-free number). SUPPLEMENTARY INFORMATION: Background The correction notice that is the subject of this document is under section 1503(d) of the Internal Revenue Code. Need for Correction As published, final regulations (TD 9315) contain an error that may prove to be misleading and is in need of clarification. Correction of Publication Accordingly, the publication of the final regulations (TD 9315), which was the subject of FR Doc. E7-4618, is corrected as follows: On page 12904, column 1, in the preamble, under the paragraph heading “ *C. Elimination of the Consistency Rule* ”, third line from the bottom of the paragraph, the language “application of the dual consolidated” is corrected to read “application of the dual consolidated loss”. LaNita Van Dyke Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration). [FR Doc. E7-7780 Filed 4-24-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 21 RIN 2900-AL43 Administration of VA Educational Benefits—Centralized Certification AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: This document adopts as a final rule a proposed rule amending Department of Veterans Affairs
(VA)rules governing certification of enrollment in approved courses for the training of veterans and other eligible persons under the education benefit programs VA administers. Under this rule, educational institutions with multi-state campuses may submit certifications to VA from a centralized location. DATES: This final rule is effective June 25, 2007. FOR FURTHER INFORMATION CONTACT: Lynn M. Nelson, Education Advisor, Veterans Benefits Administration, Department of Veterans Affairs (225C), 810 Vermont Avenue, NW., Washington, DC 20420, 202-273-7187. SUPPLEMENTARY INFORMATION: In a document published in the **Federal Register** on February 22, 2006 (71 FR 9052), VA proposed a rule that would amend subpart D of 38 CFR part 21 regarding approval criteria for branches and extensions of educational institutions. VA is adopting as final the proposed rule with only minor non-substantive changes. The rule permits educational institutions with multi-state campuses to submit required certifications to VA from a centralized location (centralized certification). Interested persons were given 60 days to submit comments on the proposed rule. VA addresses the comments below. I. Background VA initially published a notice of proposed rulemaking
(NPRM)in the **Federal Register** on June 30, 2003 (68 FR 38657), proposing to amend VA regulations to permit centralized certification of courses. VA received several comments concerning the NPRM. Many of the comments opposing the proposed amendments came from individual State Approving Agencies (SAA), and a national association of SAAs. VA contracts with SAAs to perform course approval functions under 38 U.S.C. chapter 36. Based on the comments received, VA withdrew the initial NPRM and published a new NPRM taking into consideration all the comments received. (The new NPRM was published in the **Federal Register** on February 22, 2006 (71 FR 9052) for comment.) II. Favorable Comments on NPRM Published February 22, 2006 VA received four favorable comments. Two were from educational institutions, one was from a national association of SAAs, and one was from an individual SAA. One commenter, the national association, supported the proposed rule and commended VA for addressing the issues raised in response to the prior NPRM. In addition, the commenter requested that VA amend proposed 38 CFR 21.4266(f)(3) to add a requirement for teaching locations that do not have a certifying official present. Specifically, the commenter requested that VA require the educational institution's designated employee, who has access to VA's Internet-based educational certification application for purposes of providing certification information to VA, to also have access to other records the SAA may require. The commenter suggested that the designated employee should also have access to and provide academic records information to veterans, servicemembers, reservists or other eligible persons. (Another SAA individually submitted a similar comment.) While VA understands the commenter's concern, we did not make the recommended change in this final rule because VA already has a regulation (38 CFR 21.4209) that requires educational institutions to make certain records available for review by VA and duly authorized Government representatives, such as SAAs. Since § 21.4209 presently requires institutions to make the records available, VA believes that the change suggested by the commenter is unnecessary. If the educational institution does not make the required records available, § 21.4209(e) provides that such failure is grounds for discontinuing the payment of educational assistance allowance (or special training allowance). An institution that does not comply would also be subject to losing approval of its courses for veterans' training. III. Unfavorable Comments on the NPRM Published February 22, 2006 One commenter, a State veterans affairs office, opposed the NPRM speculating that the amendments would be a step backward in maintaining the quality of education and veteran education services and would lead to a decline in service to veterans. As stated in the preamble of the NPRM at 71 FR 9052, 9053-9058, and despite the commenter's concerns, VA has no evidence that service would diminish if schools submitted certifications from a central location. In contrast to the above commenter's critical comment, we also received favorable comments from school officials asserting that centralization would improve service to veteran students. These officials stated that they could maintain a better trained staff if they were permitted to centralize their certification activities. Employees who serve as certifying officials at smaller campuses often have other duties and, thus, do not specialize in VA certifications. The officials maintained that their designated employees could specialize in those duties and better serve VA beneficiaries if they could centralize the schools' certifications. In opposing the rule, the State commenter suggested that an SAA's oversight powers might be impaired by the rule. The commenter cited as an example of an oversight issue, an educational institution with interstate campuses that used inappropriate teaching methods and unqualified faculty. The SAA withdrew approval for the courses in the State and notified other SAAs that had campuses of the same educational institution in their states. The other SAAs conducted reviews and also withdrew approval for VA educational beneficiaries' training. SAAs use current law to appropriately disapprove courses upon discovering problems that cannot be corrected by an educational institution. Under this rule, the SAA would still be able to oversee and provide assistance to the various teaching locations within the State. If the educational institution in the commenter's example submitted certifications from one central location or separately from each State, the SAA could still withdraw approval of the teaching locations in the State and notify the other SAAs just as they have in the past under current law. This rule does not remove or change an institution's present ability to approve or disapprove courses. It merely allows an educational institution the flexibility of submitting VA certifications electronically from one central location. The commenter also expressed concern that certification documents would not be available to the SAA if an educational institution submitted certifications for campuses in the State from another State. In 38 CFR 21.4266(f)(3), we require that educational institutions, which centralize their certifying official functions, must designate employees at teaching locations without a certifying official to provide certification information to eligible persons, VA, and SAAs using VA's Internet-based education certification application. If an educational institution in Texas, with branches in Wisconsin and Maryland, submits all certifications from Texas, the educational institution's designated employees in each of those States, will have access to the relevant certification information. Another commenter expressed concern that administrative records would not be available to the centralized certifying official. However, § 21.4266(f)(3)(iv) provides that the certifying official has full access to the administrative records and accounts required by § 21.4209 for each student attending the teaching location(s) for which the certifying official has been designated responsibility. The State commenter also suggested that the State's SAA cannot be held contractually accountable for operations outside its borders. However, nothing in this rule would hold any SAA accountable for actions at a branch in another state. The only new provision is that an educational institution may submit VA certifications from a central location if it chooses to do so. VA made no substantive changes to the NPRM published February 22, 2006, based on the comments. Paperwork Reduction Act This final rule contains provisions that constitute collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) in § 21.4266(f). The collections are approved under Office of Management and Budget control number 2900-0073. We display the control number under the applicable regulation text in this final rule. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, or tribal governments, or the private sector. Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget
(OMB)unless OMB waives such review, as any regulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector 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 the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Regulatory Flexibility Act The Secretary of Veterans Affairs hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Existing VA regulations do not permit educational institutions with multi-state campuses to centralize their certifying official functions. Some educational institutions with multi-state campuses requested VA expand current regulations to permit them to centralize their certifying official functions. Since this rule will affect only those educational institutions that choose to centralize their certifying official functions, centralizing such functions would be at the option of the educational institution that wants to consolidate its certifying functions. Those institutions believe centralizing their functions will allow them to better manage and allocate their resources. The economic effect on small entities would essentially entail a cost savings associated with the consolidation of certifying functions. By centralizing the functions, the institutions desiring this option say they could dedicate less full-time employees to the centralizing duties and at the same time have those employees specialize. According to officials of educational institutions interested in centralizing, their training costs would be reduced by having a centralized staff dedicated to VA certification and serving veterans. The option in this rule, which would liberalize current regulations to permit centralized certification functions, would not impact a substantial number of small entities. Of the 6,900 post-secondary educational institutions approved by Department of Education for Title IV funds, only three of those institutions commented on the proposed rule. Less than 10 educational institutions have expressed interest in centralized certification, but those that have are very interested in the change that would allow them the option. Pursuant to 5 U.S.C. 605(b), this rule, therefore, is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604. Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this rule are: 64.117, Survivors and Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' Educational Assistance; and 64.124, All-Volunteer Force Educational Assistance. This proposed rule also affects the Montgomery GI Bill-Selected Reserve program and the Reserve Educational Assistance program. There are no Catalog of Federal Domestic Assistance numbers for the Montgomery GI Bill-Selected Reserve or the Reserve Educational Assistance program. List of Subjects in 38 CFR Part 21 Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs—education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation. Approved: March 19, 2007. R. James Nicholson, Secretary of Veterans Affairs. For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 21 (subpart D) as follows: PART 21—VOCATIONAL REHABILITATION AND EDUCATION Subpart D—Administration of Educational Assistance Programs 1. The authority citation for part 21, subpart D, continues to read as follows: Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 30, 32, 34, 35, 36, unless otherwise noted. 2. Revise § 21.4266 to read as follows: § 21.4266 Approval of courses at a branch campus or extension.
(a)*Definitions.* The following definitions apply to the terms used in this section.
(1)*Administrative capability* means the ability to maintain all records and accounts that § 21.4209 requires.
(2)*Certifying official* means a representative of an educational institution designated to provide VA with the reports and certifications that §§ 21.4203, 21.4204, 21.5810, 21.5812, 21.7152, and 21.7652 require.
(3)*Main campus* means the location where the primary teaching facilities of an educational institution are located. If an educational institution has only one teaching location, that location is its main campus. If it is unclear which of the educational institution's teaching facilities is primary, the main campus is the location of the primary office of its Chief Executive Officer.
(4)*Branch campus* means a location of an educational institution that—
(i)Is geographically apart from and operationally independent of the main campus of the educational institution;
(ii)Has its own faculty, administration and supervisory organization; and
(iii)Offers courses in education programs leading to a degree, certificate, or other recognized education credential.
(5)*Extension* means a location of an educational institution that is geographically apart from and is operationally dependent on the main campus or a branch campus of the educational institution. (Authority: 38 U.S.C. 3675, 3676, 3684)
(b)*State approving agency jurisdiction.*
(1)The State approving agency for the State where a residence course is being taught has jurisdiction over approval of that course for VA education benefit purposes.
(2)The fact that the location where the educational institution is offering the course may be temporary will not serve to change jurisdictional authority.
(3)The fact that the main campus of the educational institution may be located in another State from that in which the course is being taught will not serve to change jurisdictional authority. (Authority: 38 U.S.C. 3672)
(c)*Approving a course offered by a branch campus or an extension of an educational institution.* Before approving a course or a program of education offered at a branch campus or an extension of an educational institution, the State approving agency must ensure that—
(1)Except as provided in paragraph
(d)of this section, each location where the course or program is offered has administrative capability; and
(2)Except as provided in paragraph
(f)of this section, each location where the course or program is offered has a certifying official on site. (Authority: 38 U.S.C. 3672)
(d)*Exceptions to the requirement that administrative capability exist at each location.*
(1)A State approving agency may approve a course or program offered by a branch campus that does not have its own administrative capability if—
(i)The main campus of the educational institution within the same State maintains a centralized recordkeeping system that includes all records and accounts that § 21.4209 requires for each student attending the branch campus without administrative capability. These records may be originals, certified copies, or in an electronically formatted record keeping system; and
(ii)The main campus can identify the records of students at the branch campus for which it maintains centralized records.
(2)The State approving agency may approve a course or program offered by an extension that does not have its own administrative capability if—
(i)The extension and the main campus or branch campus it is dependent on are located within the same State;
(ii)The main campus or branch campus the extension is dependent on has administrative capability for the extension; and
(iii)The State approving agency combines the approval of the course(s) offered by the extension with the approval of the courses offered by the main campus or branch campus the extension is dependent on.
(e)*Combined approval.* The State approving agency may combine the approval of courses offered by an extension of an educational institution with the approval of the main campus or the branch campus that the extension is dependent on, if the extension is within the same State as the campus it is dependent on. Combining the approval of courses offered by an extension, with the approval of courses offered by the main campus or branch campus the extension is dependent on, does not negate the minimum period of operation requirements in § 21.4251 for courses that do not lead to a standard college degree offered by an extension of a proprietary educational institution. The State approving agency will list the extension and courses approved on the notice of approval sent to the educational institution pursuant to § 21.4258 of this part.
(f)*Exceptions to the requirement that each location where the course or program is offered must have a certifying official on site.* Exceptions to the requirement in paragraph
(c)of this section, that each location with an approved course or program of education must have a certifying official on site, will be permitted for—
(1)Extensions of an educational institution when the State approving agency combines the approval of the courses offered by the extension with a branch campus or main campus. (See paragraph
(e)of this section.)
(2)Educational institutions with more than one campus within the same State if the main campus—
(i)Maintains a centralized recordkeeping system. (See paragraph (d)(1) of this section.);
(ii)Has administrative capability for the branch campus (or branch campuses) within the same State; and
(iii)Centralizes its certifying official function at the main campus.
(3)Educational institutions with multi-state campuses when an educational institution wants to centralize its certifying official function into one or more locations if:
(i)The educational institution submits all required reports and certifications that §§ 21.4203, 21.4204, 21.5810, 21.5812, 21.7152, and 21.7652 require via electronic submission through VA's Internet-based education certification application;
(ii)The educational institution designates an employee, at each teaching location of the educational institution that does not have a certifying official present, to serve as a point-of-contact for veterans, servicemembers, reservists, or other eligible persons; the certifying official(s); the State approving agency of jurisdiction; and VA. The designated employee must have access (other than to transmit certifications) to VA's Internet-based education certification application to provide certification information to veterans, servicemembers, reservists, or other eligible persons, State approving agency representatives, and VA representatives;
(iii)Each certifying official uses the VA facility code for the location that has administrative capability for the teaching location where the student is training when submitting required reports and certifications to VA; and
(iv)Each certifying official has full access to the administrative records and accounts that § 21.4209 requires for each student attending the teaching location(s) for which the certifying official has been designated responsibility. These records may be originals, certified copies, or in an electronically formatted record keeping system. (Authority: 38 U.S.C. 3672) (The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0073) [FR Doc. E7-7810 Filed 4-24-07; 8:45 am] BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [EPA-R03-OAR-2007-0254; FRL-8304-8] State Operating Permit Programs; Maryland; Revisions to the Acid Rain Regulations AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: EPA is taking direct final action to approve revisions to the Maryland operating permit program. The revisions amend the Code of Maryland Administrative Regulations' (COMAR) incorporation by reference citations to ensure that future changes to the Federal Acid Rain program will continue to be incorporated into Maryland's regulations. EPA is approving these revisions in accordance with the requirements of the Clean Air Act. DATES: This rule is effective on June 25, 2007 without further notice, unless EPA receives adverse written comment by May 25, 2007. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the **Federal Register** and inform the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0254 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. *B. E-mail:* *campbell.dave@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0254, David Campbell, Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-0254. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket* . All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: Paul Arnold,
(215)814-2194, or by e-mail at *arnold.paul@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background On February 13, 2007, Maryland submitted a formal revision to its Title V operating permit program. The revisions amend The Code of Maryland Administrative Regulations' (COMAR) incorporation by reference citations to ensure that future changes to the Federal Acid Rain program will continue to be incorporated into Maryland's regulations. II. Summary of Title V Program Revision Both COMAR 26.11.02.01 and 26.11.03.01 currently incorporate by reference the Federal Acid Rain Program. These revisions will update COMAR 26.11.02.01 and COMAR 26.11.03.01 to ensure that future changes to the Federal program will continue to be incorporated by reference into Maryland's regulations. III. Final Action EPA is approving this revision to the Maryland operating permit program. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's **Federal Register** , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on June 25, 2007 without further notice unless EPA receives adverse comment by May 25, 2007. If EPA receives adverse comment, EPA will publish a timely withdrawal in the **Federal Register** informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. IV. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. 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 approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves 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 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This 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 approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This 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 approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. 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 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.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by *June 25, 2007* . Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approves changes to Maryland's Title V operating permit program and may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 70 Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements. Dated: April 17, 2007. Donald S. Welsh, Regional Administrator, Region III. 40 CFR part 70 is amended as follows: PART 70—[AMENDED] 1. The authority citation for part 70 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 2. Appendix A to part 70 is amended by revising paragraph
(c)in the entry for Maryland to read as follows: Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs Maryland
(c)The Maryland Department of the Environment submitted an operating permit program amendment on February 13, 2007. The program amendment contained in the February 13, 2007 submittal will update Maryland's existing incorporation by reference citations to the Federal Acid Rain Program. The state is hereby granted approval effective on June 25, 2007. [FR Doc. E7-7919 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 158 [EPA-HQ-OPP-2004-0415; FRL-8113-7] RIN 2070-AD51 Pesticides; Data Requirements for Biochemical and Microbial Pesticides; Notification to the Secretary of Agriculture AGENCY: Environmental Protection Agency (EPA). ACTION: Notification to the Secretary of Agriculture. SUMMARY: This document notifies the public that the Administrator of EPA has forwarded to the Secretary of Agriculture a draft final rule as required by section 25(a) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). As described in the Agency's semi-annual Regulatory Agenda, the draft final rule updates the data requirements necessary to register a biochemical or microbial pesticide product. The revisions will codify data requirements to reflect current regulatory and scientific standards. The data requirements will cover all scientific disciplines for biochemical and microbial pesticides, including product chemistry and residue chemistry, toxicology, and environmental fate and effects. ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2004-0415. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Nathanael R. Martin, Field and External Affairs Division (7506P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington DC 20460-0001; telephone number: 703-305-6475; e-mail address: *martin.nathanael@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? This action is directed to the public in general. It simply announces the submission of a draft final rule to the U. S. Department of Agriculture
(USDA)and does not otherwise affect any specific entities. This action may, however, be of particular interest to producers or registrants of a biochemical or microbial pesticide product. This action also may affect any person or company who might petition the Agency for new tolerances for biochemical or microbial pesticides, or hold a pesticide registration with existing tolerances, or any person or company who is interested in obtaining or retaining a tolerance in the absence of a registration, that is, an import tolerance for biochemical or microbial pesticides. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action. If you have any questions regarding this action, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document and Other Related Information? In addition to using regulations.gov, you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . II. What Action is EPA Taking? Section 25(a)(2) of FIFRA requires the Administrator to provide the Secretary of Agriculture with a copy of any final regulation at least 30 days before signing it for publication in the **Federal Register** . The draft final rule is not available to the public until after it has been signed by EPA. If the Secretary comments in writing regarding the draft final rule within 15 days after receiving it, the Administrator shall include the comments of the Secretary, if requested by the Secretary, and the Administrator's response to those comments in the final rule when published in the **Federal Register** . If the Secretary does not comment in writing within 15 days after receiving the draft final rule, the Administrator may sign the final rule for publication in the **Federal Register** anytime after the 15-day period. III. Do Any Statutory and Executive Order Reviews Apply to this Notification? No. This document is not a rule, it is merely a notification of submission to the Secretary of Agriculture. As such, none of the regulatory assessment requirements apply to this document. IV. Will this Notification be Subject to the Congressional Review Act? No. This action is not a rule for purposes of the Congressional Review Act (CRA), 5 U.S.C. 804(3), and will not be submitted to Congress and the Comptroller General. EPA will submit the final rule to Congress and the Comptroller General as required by the CRA. List of Subjects in 40 CFR Part 158 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests. Dated: April 9, 2007. Anne E. Lindsay, Acting Director, Office of Pesticide Programs. [FR Doc. E7-7445 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 174 and 180 [EPA-HQ-OPP-2005-0116; FRL-7742-2] Administrative Revisions to Plant-Incorporated Protectant Tolerance Exemptions AGENCY: Environmental Protection Agency (EPA). ACTION: Direct Final Rule. SUMMARY: EPA is taking direct final action to move existing active and inert ingredient plant-incorporated protectant tolerance exemptions from 40 CFR part 180, Tolerances and Exemptions from Tolerances for Pesticide Chemicals in Food to 40 CFR part 174, Procedures and Requirements for Plant-Incorporated Protectants, subpart W. EPA is also making some conforming changes to the text of the individual exemptions being transferred from part 180 so that they are consistent with part 174, as well as some minor technical corrections to the wording of certain individual exemptions. This action is administrative in nature and no substantive changes are made or are intended. DATES: This Direct Final Rule is effective on July 24, 2007 without further notice, unless EPA receives adverse comment by June 25, 2007. If EPA receives such adverse comment, EPA will publish a timely withdrawal in the **Federal Register** informing the public that this rule will not take effect. If this Direct Final Rule becomes effective on July 24, 2007, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. Objections and requests for hearings must be received on or before September 24, 2007. ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2005-0116. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Mike Mendelsohn, Biopesticides and Polllution Prevention Division
(BPPD)(7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-8715; fax number:
(703)308-7026; e-mail address: *mendelson.mike@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http:// www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR parts 174 and 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr.* C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2005-0116 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before September 24, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2005-0116, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. II. Background In 2001, EPA published a final rule, establishing certain basic parameters of its regulatory program under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for a specific class of pesticide products—plant-incorporated protectants (66 FR 37772, July 19, 2001). EPA defined these products as pesticidal substances, along with the genetic material necessary to produce them, when produced and used in living plants. As part of that rule, EPA changed the name of this type of pesticide from “plant-pesticide” to “plant-incorporated protectant.” EPA also established a new part in title 40 of the Code of Federal Regulations
(CFR)specifically for plant-incorporated protectants (40 CFR part 174). In the same issue of the **Federal Register** , EPA established a blanket tolerance exemption for all residues of nucleic acids that are part of a plant-incorporated protectant
(PIP)(66 FR 37817, July 19, 2001). See 40 CFR 174.475. A. What Action is the Agency Taking? In this Direct Final Rule, the Agency is making minor technical changes to conform the wording of certain individual tolerance exemptions with the above regulations. The specific technical changes are discussed below. The Agency is moving some tolerance exemptions listed under 40 CFR part 180 to 40 CFR part 174 in order to consolidate all plant-incorporated protectant-specific regulations in the same part. The Agency is also making some conforming changes to the wording of the exemptions so that they are consistent with the provisions currently in part 174. These changes consist of revising the term “plant-pesticides” in these exemptions to read “plant-incorporated protectants” and changing the term “vegetative insecticidal protein” to the more broad term “plant-incorporated protectant.” Further, for these exemptions, as well as those found in newly redesignated 40 CFR 174.501, 174.502, 174.503, 174.504, 174.505, 174.506, and 174.528 (formerly §§ 174.452, 174.453, 174.454, 174.455, 174.456, 174.457, and 174.458, respectively), EPA is also deleting the references to the phrase “genetic material necessary for its production” and the term “regulatory regions,” as well as the definitions of these terms, from individual tolerance exemptions. As noted above, EPA established a blanket tolerance exemption for nucleic acids, which includes the residues of genetic material necessary for the production of pesticidal substances in living plants, and residues of the genetic material necessary to produce any inert ingredient (40 CFR 174.475 redesignated as § 174.507). Retaining the references to the phrase “genetic material necessary for the production of the individual substances,” and to “regulatory regions” in the text of the individual exemptions would be wholly duplicative of redesignated 40 CFR 174.507, and has the potential to cause confusion as to the intended scope of that provision. Accordingly, the Agency is removing these references. These deletions will in no way affect the legal status of such residues, given the provisions at 40 CFR 174.507. Similarly, inclusion of the definitions of these terms in the individual exemptions becomes unnecessary once the exemptions are moved to part 174, as the terms are defined at § 174.3, which is generally applicable to all regulations contained in part 174. Moreover, the wording of the definitions varies slightly between some of the individual tolerance exemptions. While the Agency does not believe that there is any substantive difference between the different formulations, to avoid any confusion, EPA has chosen to delete the definitions from the individual tolerance exemptions. The deletion of these definitions from the individual tolerance exemptions will in no way affect the legal status of the residues exempted. Further, for these exemptions and for 40 CFR 174.451, *Scope and Purpose* , redesignated as § 174.500, EPA is changing the terms “plant raw agricultural commodities,” “Raw agricultural commodities,” “raw agricultural commodities, in food, and in animal feeds,” “plant racs,” and “plant commodities” to read “food commodities.” While the Agency does not believe that there is any substantive difference between the different formulations, to avoid any confusion, EPA has chosen to use the one term “food commodities.” This change will in no way affect the legal status of the residues exempted. EPA is changing the term “delta-endotoxin” to read “Cry protein” and removing any subspecies designations for *Bacillus thuringiensis* PIPs. The terms “delta-endotoxin” and “Cry protein” are redundant. While the Agency does not believe that there is any substantive difference between these different formulations, to avoid any confusion, EPA has chosen to use the one term “Cry protein” without a subspecies designation. This change will in no way affect the legal status of the residues exempted. EPA is adding the term “enzyme” to descriptions of current PIP inert ingredients to clarify the function of these proteins and to make classification easier for the layman. While the Agency does not believe that there is any substantive difference between these and the current naming formulations, to clarify the function of these proteins and make classification easier for the layman, EPA has chosen to add the term “enzyme.” This change will in no way affect the legal status of the residues exempted. EPA is updating *Bacillus thuringiensis* derived plant-incorporated protectant exemptions to conform to updated nomenclature as determined by the Bacillus thuringiensis Pesticidal Crystal Proteins Nomenclature Committee, a non-governmental scientific committee, *http://www.biols.susx.ac.uk/home/NeilCrickmore/Bt/* . EPA is standardizing the tolerance exemption descriptions to list the “residues of” portion of the exemption first and to list field corn, sweet corn and popcorn as corn; corn, field; corn, sweet; and corn, pop. These changes will in no way affect the legal status of the residues exempted. EPA is adding language to the exemption at § 174.513 (redesignated from § 180.1183), Potato Leaf Roll Virus Resistance Gene (also known as orfl/orf2 gene), and the genetic material necessary for its production to clarify that residues in or on all food commodities are covered under this regulation. The phrase “in or on all raw agricultural commodities” was inadvertently excluded from the regulatory text of this exemption. However, the preamble to the rule clearly stated the Agency's intention to exempt residues of this product in or on all raw agricultural commodities. See 62 FR 43650, August 15, 1997. In addition, EPA's findings and supporting analyses concerning the safety of these residues addressed residues in or on all raw agricultural commodities. The inclusion of the phrase “all food commodities” in the individual tolerance exemption will in no way affect the legal status of the residues covered by the regulation. Finally, EPA is adding language to the exemption at § 174.523 (redesignated from § 180.1174), CP4 Enolpyruvylshikimate-3-phosphate (GP4 EPSPS), and the genetic material necessary for its production in all plants to clarify that this PIP inert ingredient is a synthase. The word “synthase” corresponds to the last “S” in “CP4 EPSPS” and was inadvertently excluded from the exemption. However, the Notice of Filing (the pesticide petition) clearly stated “synthase” in describing the ingredient. See 60 FR 54689, October 25, 1995 (FRL-4982-4). The inclusion of the phrase “synthase” in the individual tolerance exemption will in no way affect the legal status of the residues covered by the regulation. The specific tolerance exemptions that EPA is transferring from part 180, subpart D to part 174, subpart W are identified in the codified portion of this document. In addition to redesignating these sections into part 174, EPA is making non-substantive changes to terminology and for that reason the revised tolerance language that will appear in 40 CFR part 174 appears at the end of this document as regulatory text. While EPA believes that it has accurately transferred each of the tolerance exemptions included in this rule, the Agency would appreciate readers notifying EPA of discrepancies, omissions or technical problems by submitting such comments to the address under FOR FURTHER INFORMATION CONTACT . EPA is publishing this rule without prior proposal because EPA views this as a non-controversial amendment and anticipates no adverse comments since the changes are entirely administrative in nature. As discussed further below, these revisions are being made merely to make the wording of certain tolerance exemptions consistent with the wording adopted in subsequent regulations. No changes have been made that affect in any way the legal status of the residues covered by the existing tolerance exemptions. All of the substantive issues reflected in the revisions to the regulatory text previously were the subject of notice and comments rulemaking; as no substantive changes are contemplated by this regulation, EPA anticipates no adverse comment on this notice. However, in the “Proposed Rules” section of this **Federal Register** , EPA is publishing a separate document that will serve as the proposal to these administrative revisions to plant-incorporated protectant tolerance exemptions if adverse comments are filed. This Direct Final Rule will be effective on July 24, 2007 without further notice unless the Agency receives adverse comment by June 25, 2007. If EPA receives adverse comment, EPA will publish a timely withdrawal in the **Federal Register** informing the public that this rule will not take effect. The Agency will address all public comments in a subsequent final rule based on the proposed rule. The Agency will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. B. What is the Agency's Authority for Taking this Action? This action is being finalized under sections 408(e)(1)(B) of the Federal Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a(e)(1)(B). Section 408(e)(1)(B) provides that the Administrator may issue a regulation modifying an exemption of a pesticide chemical residue from the requirement of a tolerance, 21 U.S.C. 346a(e)(l)(B). Because EPA is making no substantive modifications to the tolerance exemptions, the Agency has not made separate findings regarding the safety of the individual exemptions. EPA believes that the safety standard is applicable only where the Agency takes affirmative action to either substantively modify the tolerance exemption, or has reviewed the tolerance exemption and determined to leave it in effect. EPA is taking neither action in this notice, but is merely making technical modifications to conform the wording of the individual exemptions to wording that is consistent with the surrounding regulations. III. Statutory and Executive Order Reviews A. Executive Order 12866 Under Executive Order 12866, (58 FR 51735, October 4, 1993) the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector 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 the Executive Order. It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to 0MB review. B. 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 will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:
(1)a small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(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 a not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities since this action is administrative in nature and no substantive changes are being made. IV. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects 40 CFR Part 174 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements, Plant-incorporated protectants. 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 12, 2007. Janet L. Andersen, Director, Biopesticides and Pollution Prevention Division, Office of Pesticide Programs. Therefore, Title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 180 —[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a, and 371. 2. In the following table, the sections in the first column are transferred to 40 CFR part 174, subpart W and redesignated as the sections in the second column. Old Section Redesignated as New section 180.1134 174.521 180.1147 174.509 180.1151 174.522 180.1155 174.510 180.1173 174.511 180.1174 174.523 180.1182 174.512 180.1183 174.513 180.1184 174.514 180.1185 174.515 180.1186 174.516 180.1190 174.524 180.1192 174.517 180.1214 174.518 180.1215 174.519 180.1216 174.525 180.1217 174.520 180.1249 174.526 180.1252 174.527 §§ 180.1227 and 180.1242 [Removed] 3. Section 180.1227 and 180.1242 are removed. PART 174 —[AMENDED] 4. The authority citation for part 174 continues to read as follows: Authority: 7 U.S.C. 136 - 136y; 21 U.S.C. 346a and 371. § 174.21 [Amended] 5. Section 174.21 is amended as follows: i. In paragraph
(b)by revising the reference “§§ 174.475 through 174.479” to read “§§ 174.507 through 174.508.” ii. In paragraph
(c)by revising the reference “§§ 174.485 through 174.490” to read “§ 174.705.” §§ 174.475 and 174.479 [Redesignated as §§ 174.507 and 174.508] 6. Sections 174.475 and 174.479 are redesignated as §§ 174.507 and 174.508, respectively. §§ 174.480 and 174.485 [Redesignated as §§ 174.700 and 174.705] 7. Sections 174.480 and 174.485 are redesignated as § 174.700 and § 174.705, respectively and remain in subpart X. 8. Sections 174.451, 174.452, 174.453, 174.454, 174.455, 174.456, and 174.457 are redesignated as §§ 174.500, 174.501, 174,502, 174.503, 174.504, 174.505, and 174.506, respectively, and revised to read as follows: § 174.500 Scope and purpose. This subpart lists the tolerances and exemptions from the requirement of a tolerance for residues of plant-incorporated protectants in or on food commodities. § 174.501 Bacillus thuringiensis VIP3A protein; temporary exemption from the requirement of a tolerance. Residue of *Bacillus thuringiensis* VIP3A protein are temporarily exempt from the requirement of a tolerance when used as a plant-incorporated protectant in cotton seed, cotton oil, cotton meal, cotton hay, cotton hulls, cotton forage, and cotton gin byproducts. This temporary exemption from the requirement of a tolerance expires May 1, 2007. § 174.502 Bacillus thuringiensis Cry1A.105 protein in corn; temporary exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1A.105 protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. This temporary exemption from the requirement of a tolerance will permit the use of the food commodities in this paragraph when treated in accordance with the provisions of the experimental use permit 524-EUP-97 which is being issued under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136). This temporary exemption from the requirement of a tolerance expires and is revoked June 30, 2009; however, if the experimental use permit is revoked, or if any experience with or scientific data on this pesticide indicate that the tolerance is not safe, this temporary exemption from the requirement of a tolerance may be revoked at any time. § 174.503 Bacillus thuringiensis Cry2Ab2 protein in corn; temporary exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry2Ab2 protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. This temporary exemption from the requirement of a tolerance will permit the use of the food commodities in this paragraph when treated in accordance with the provisions of the experimental use permit 524-EUP-97 which is being issued under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136). This temporary exemption from the requirement of a tolerance expires and is revoked June 30, 2009; however, if the experimental use permit is revoked, or if any experience with or scientific data on this pesticide indicate that the tolerance is not safe, this temporary exemption from the requirement of a tolerance may be revoked at any time. § 174.504 Bacillus thuringiensis Cry1F protein in cotton; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1F protein in cotton are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in food and feed commodities of cotton. § 174.505 Bacillus thuringiensis modified Cry3A protein (mCry3A) in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* modified Cry3A protein (mCry3A) in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. § 174.506 Bacillus thuringiensis Cry34Ab1 and Cry35Ab1 proteins in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry34Ab1 and Cry35Ab1 proteins in corn are exempted from the requirement of a tolerance when used as plant-incorporated protectants in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. 9. Newly redesignated §§ 174.509 through 174.527 are revised to read as follows: § 174.509 Bacillus thuringiensis Cry3A protein; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry3A protein are exempted from the requirement of a tolerance when used as a plant-incorporated protectant in potatoes. § 174.510 Bacillus thuringiensis Cry1Ac protein in all plants; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1Ac protein in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectants in all food commodities. § 174.511 Bacillus thuringiensis Cry1Ab protein in all plants; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1Ab protein in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectants in all food commodities. § 174.512 Coat Protein of Potato Virus Y; exemption from the requirement of a tolerance. Residues of Coat Protein of Potato Virus Y are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.513 Potato Leaf Roll Virus Resistance Gene (also known as orf1/orf2 gene); exemption from the requirement of a tolerance. An exemption from the requirement of a tolerance is established for residues of the plant-incorporated protectant Potato Leaf Roll Virus Resistance Gene (also known as orf1/orf2 gene) in or on all food commodities. § 174.514 Coat Protein of Watermelon Mosaic Virus-2 and Zucchini Yellow Mosaic Virus; exemption from the requirement for a tolerance. Residues of Coat Protein of Watermelon Mosaic Virus-2 and Zucchini Yellow Mosaic Virus are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.515 Coat Protein of Papaya Ringspot Virus; exemption from the requirement of a tolerance. Residues of Coat Protein of Papaya Ringspot Virus are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.516 Coat protein of cucumber mosaic virus; exemption from the requirement of a tolerance. Residues of Coat Protein of Cucumber Mosaic Virus are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.517 Bacillus thuringiensis Cry9C protein in corn; exemption from the requirement of a tolerance. The plant-incorporated protectant *Bacillus thuringiensis* Cry9C protein in corn is exempted from the requirement of a tolerance for residues, only in corn used for feed; as well as in meat, poultry, milk, or eggs resulting from animals fed such feed. § 174.518 Bacillus thuringiensis Cry3Bb1 protein in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry3Bb1 protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectants in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. § 174.519 Bacillus thuringiensis Cry2Ab2 protein in cotton; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry2Ab2 protein in cotton is exempt from the requirement of a tolerance when used as a plant-incorporated protectant in the food and feed commodities, cotton seed, cotton oil, cotton meal, cotton hay, cotton hulls, cotton forage, and cotton gin byproducts. § 174.520 Bacillus thuringiensis Cry1F protein in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1F protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectants in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. § 174.521 Neomycin phosphotransferase II; exemption from the requirement of a tolerance. Residues of the neomycin phosphotransferase II (NPTII) enzyme are exempted from the requirement of a tolerance in all food commodities when used as a plant-incorporated protectant inert ingredient. § 174.522 Phosphinothricin Acetyltransferase (PAT); exemption from the requirement of a tolerance. Residues of the Phosphinothricin Acetyltransferase
(PAT)enzyme are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. § 174.523 CP4 Enolpyruvylshikimate-3-phosphate (CP4 EPSPS) synthase in all plants; exemption from the requirement of a tolerance. Residues of the CP4 Enolpyruvylshikimate-3-phosphate (CP4 EPSPS) synthase enzyme in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. § 174.524 Glyphosate Oxidoreductase GOX or GOXv247 in all plants; exemption from the requirement of a tolerance. Residues of the Glyphosate Oxidoreductase GOX or GOXv247 enzyme in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. § 174.525 E. coli B-D-glucuronidase enzyme as a plant-incorporated protectant inert ingredient; exemption from the requirement of a tolerance. Residues of *E. coli* B-D-glucuronidase enzyme are exempt from the requirement of a tolerance when used as a plant-incorporated protectant inert ingredient in all food commodities. § 174.526 Hygromycin B phosphotransferase
(APH4)marker protein in all plants; exemption from the requirement of a tolerance. Residues of the Hygromycin B phosphotransferase
(APH4)enzyme in all plants are exempt from the requirement of a tolerance when used as a plant-incorporated protectant inert ingredient in cotton. § 174.527 Phosphomannose isomerase in all plants; exemption from the requirement of a tolerance. Residues of the phosphomannose isomerase
(PMI)enzyme in plants are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. 10. Section 174.458 is redesignated as 174.528 and revised to read as follows: § 174.528 Bacillus thuringiensis Vip3Aa20 protein; temporary exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Vip3Aa20 protein in corn are temporarily exempt from the requirement of a tolerance when used as a plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; corn, pop. This temporary exemption from the requirement of tolerance will permit the use of the food commodities in this paragraph when treated in accordance with the provisions of the experimental use permit 67979-EUP-6, which is being issued in accordance with the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136). This temporary exemption from the requirement of a tolerance expires and is revoked March 31, 2008; however, if the experimental use permit is revoked, or if any experience with or scientific data on this pesticide indicate that the temporary tolerance exemption is not safe, this temporary exemption from the requirement of a tolerance may be revoked at any time. [FR Doc. E7-7768 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0224; FRL-8121-2] Propiconazole; Pesticide Tolerances for Emergency Exemptions AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation establishes time-limited tolerances for combined residues of propiconazole and its metabolites containing the dichlorobenzoic acid
(DCBA)moiety expressed as parent compound, in or on peach and nectarine. This action is in response to EPA's granting of emergency exemptions under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorizing use of the pesticide on peach and nectarine as a post-harvest treatment. This regulation establishes maximum permissible levels for residues of propiconazole in these food commodities. The tolerances expire and are revoked on December 31, 2010. DATES: This regulation is effective April 25, 2007. Objections and requests for hearings must be received on or before June 25, 2007, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0224. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the Office of Pesticide Programs
(OPP)Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Andrea Conrath, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-9356; e-mail address: *conrath.andrea@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0224 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before June 25, 2007. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2007-0224, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. II. Background and Statutory Findings EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing tolerances for combined residues of the fungicide propiconazole, and its metabolites containing the dichlorobenzoic acid (2,4-DCBA) moiety expressed as parent compound, in or on peach and nectarine at 2.0 parts per million (ppm). These tolerances expire and are revoked on December 31, 2010. EPA will publish a document in the **Federal Register** to remove the revoked tolerances from the Code of Federal Regulations (CFR). Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of the FFDCA and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party. Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act of 1996 (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166. III. Emergency Exemption for Propiconazole as a Post-Harvest Treatment on Peach and Nectarine and FFDCA Tolerances The applicant states that market demands have required producers to change storage practices for peaches and nectarines, and allow a pre-ripening time of 48 hours at 68°F to enhance fruit quality, prior to placing the fruit in cold storage at 32°F. This extra step has inadvertently fostered increased incidence of sour rot which has caused significant losses to growers. The current storage conditions used were developed to improve fruit quality and satisfy customer demands; returning to previous storage conditions would not result in acceptable fruit quality for the industry or consumer. Without the ability to adequately manage sour rot, economic data provided indicates that significant economic losses will occur. EPA has authorized under FIFRA section 18 the use of propiconazole on peach and nectarine as a post-harvest treatment, for control of sour rot in California. After having reviewed the submission, EPA concurs that emergency conditions exist for this State. As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of propiconazole in or on peach and nectarine. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing these tolerances without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although these tolerances expire and are revoked on December 31, 2010, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on peach and nectarine after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by these tolerances at the time of that application. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe. Because these tolerances are being approved under emergency conditions, EPA has not made any decisions about whether propiconazole meets EPA's registration requirements for use on peach and nectarine as a post-harvest treatment or whether permanent tolerance for these uses would be appropriate. Under these circumstances, EPA does not believe that these tolerances serve as bases for registration of propiconazole by a State for special local needs under section 24(c) of FIFRA. Nor do these tolerances serve as the basis for any State other than California to use this pesticide on these crops under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for propiconazole, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT . IV. Aggregate Risk Assessment and Determination of Safety EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . Consistent with section 408(b)(2)(D) of the FFDCA , EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of propiconazole and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for time-limited tolerances for combined residues or residues of propiconazole in or on peach and nectarine at 2.0 ppm. While this post-harvest use under section 18 is not expected to result in residues exceeding 1.0 ppm, there is a pre-harvest use registered for use on stone fruit (includes peach and nectarine) for which a permanent tolerance is established at 1.0 ppm. Therefore, EPA does not expect total residues from both of these uses to exceed 2.0 ppm in or on peach and nectarine. On September 22, 2006 the Agency published a Final Rule (71 FR 55300, FRL-8092-1) establishing tolerances for combined residues of propiconazole and its metabolites containing the dichlorobenzoic acid (2,4-DCBA) moiety expressed as parent compound, in or on various commodities; and inadvertent residues in or on alfalfa, forage, and alfalfa, hay. When the Agency conducted the risk assessments in support of these tolerance actions it assumed that propiconazole residues would be present on peach and nectarine at 2.0 ppm, in association with this section 18 post-harvest use and the already registered pre-harvest use (for which there is a permanent tolerance established at 1.0 ppm), as well as on all foods covered by the proposed and established tolerances. Residues on peach and nectarine were included because there was a pending emergency exemption application under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 *et seq.* , for emergency post-harvest use on these commodities. Therefore, establishing the peach and nectarine tolerances will not change the most recent estimated aggregate risks resulting from use of propiconazole, as discussed in the September 22, 2006 **Federal Register** . Refer to the September 22, 2006 **Federal Register** document, and its associated docket EPA-HQ-OPP-2006-0347, for a detailed discussion of the aggregate risk assessments and determination of safety. EPA relies upon those risk assessments and the findings made in the **Federal Register** document in support of this action. Based on the risk assessments discussed in the final rule published in the **Federal Register** of September 22, 2006, EPA concludes that there is a reasonable certainty that no harm will result to the general population, and to infants and children from aggregate exposure to propiconazole residues. The September 22, 2006 final rule contains a docket that has a risk assessment that describes the exposure and safety findings in detail. V. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology (a gas chromatography
(GC)method using electron capture detection (Method AG-454) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: * residuemethods@epa.gov* . B. International Residue Limits The Codex Alimentarious Commission has established a maximum residue limit
(MRL)for propiconazole in/on stone fruit, which includes peach and nectarine, at 1.0 ppm, expressed in terms of propiconazole *per se* . In addition, Canada has established MRLs on peach and nectarine of 1.0 ppm, expressed as propiconazole and its metabolites including the 2,4-DCBA moiety. As discussed above, there is a permanent U.S. tolerance set at 1.0 ppm for the stone fruit crop group, in association with a registered pre-harvest use. Therefore, to the extent possible, the U.S. tolerances are numerically harmonized with Codex and Canada. However, this section 18 emergency use represents a difference in the use pattern and the supporting residue data indicates a tolerance of 2.0 ppm will be necessary to cover total residues which may occur as a result of both the registered pre-harvest use, as well as this section 18 post-harvest use. A summary of Codex MRLs, Canadian MRLs, and Mexican tolerances and the corresponding U.S. tolerances for propiconazole is discussed at *http://www.regulations.gov* Docket No. EPA-HQ-OPP-2006-0347-0004; pages 53-54. VI. Conclusion Therefore, the tolerances are established for combined residues of propiconazole, and its metabolites containing the dichlorobenzoic acid
(DCBA)moiety expressed as parent compound in or on peach and nectarine at 2.0 ppm. VII. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VIII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 12, 2007. Donald R. Stubbs, Acting Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.434 is amended by adding text and table to paragraph
(b)to read as follows: §180.434 Propiconazole; tolerances for residue.
(b)*Section 18 emergency exemptions* . Time-limited tolerances are established for residues of propiconazole (1-[[2-(2,4-dichlorophenyl)-4-propyl-1,3-dioxolan-2-yl] methyl]-1H-1,2,4-triazole) and its metabolites determined as 2,4-dichlorobenzoic acid and expressed as parent compound, in connection with use of the pesticide under section 18 emergency exemptions granted by EPA. The tolerances will expire and are revoked on the dates specified in the following table: Commodity Parts per million Expiration/revocation date Nectarine 2.0 12/31/2010 Peach 2.0 12/31/2010 [FR Doc. E7-7678 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 22 [WT Docket No. 04-435; FCC 07-47] Amendment of the Commission's Rules To Facilitate the Use of Cellular Telephones and Other Wireless Devices Aboard Airborne Aircraft AGENCY: Federal Communications Commission. ACTION: Final rule, termination of proceeding. SUMMARY: This document provides notice of the termination of the proceeding in WT Docket No. 04-435, involving the Commission's ban on the airborne use of cellular telephones as set out in the Commission's prohibition on airborne operation of cellular telephones rules. DATES: Effective April 3, 2007. FOR FURTHER INFORMATION CONTACT: Linda Chang, Mobility Division, Wireless Telecommunications Bureau, 202-418-1339, *Linda.Chang@fcc.gov.* SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Memorandum Opinion and Order* , released April 3, 2007. The complete text of the *Memorandum Opinion and Order* is available for inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St., SW., Room CY-A257, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The complete text may also be downloaded at: *http://www.fcc.gov.* Synopsis of Memorandum Opinion and Order: 1. On December 15, 2004, the Commission adopted a *Notice of Proposed Rulemaking* ( *NPRM* ) at 70 FR 11916, March 10, 2005 in the above-captioned docket proposing to replace or relax its ban under § 22.925 of the Commission's rules on the use of 800 MHz cellular handsets on airborne aircraft. The *NPRM* explored several different options for allowing airborne use of wireless devices, including a proposal to remove the current ban on the airborne use of cellular phones. Given the lack of technical information in the record upon which the Commission may base a decision, it has determined at this time that this proceeding should be terminated. 2. In the *NPRM* , the Commission specifically requested technical comment, emphasizing that the ban on the airborne use of cell phones would not be removed without sufficient information regarding possible technical solutions. The *NPRM* also noted that the Federal Aviation Administration
(FAA)prohibits the use of portable electronic devices
(PEDs)on airborne aircraft, and that RTCA, Inc. (RTCA), a Federal Advisory Committee, is currently studying the effect of PEDs on aircraft navigation and safety at the request of the FAA. RTCA published findings in December 2006, and is expected to issue recommendations regarding airplane design and certification requirements in 2007. 3. The comments filed in this proceeding provide insufficient technical information that would allow the Commission to assess whether the airborne use of cellular phones may occur without causing harmful interference to terrestrial networks. Similarly, the December 2006 RTCA report does not provide data that would allow the Commission to evaluate the potential for interference between PED operations onboard airplanes and terrestrial-based wireless systems. Further, because it appears that airlines, manufacturers, and wireless providers are still researching the use of cell phones and other PEDs onboard aircraft, the Commission does not believe that seeking further comment at this juncture will provide the necessary technical information in the near term. Accordingly, the Commission concludes that this proceeding should be terminated. The Commission may, however, reconsider this issue in the future if appropriate technical data is available for its review. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-7791 Filed 4-24-07; 8:45 am] BILLING CODE 6712-01-P 72 79 Wednesday, April 25, 2007 Proposed Rules OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 535 RIN 3206-AK87 Critical Position Pay Authority AGENCY: Office of Personnel Management. ACTION: Proposed rule with request for comments. SUMMARY: The Office of Personnel Management
(OPM)is proposing new regulations to govern the use of a critical position pay authority that allows higher rates of pay for positions that require a very high level of expertise in a scientific, technical, professional, or administrative field and are critical to the agency's mission. By law, agency requests for critical position pay authority must be approved by OPM in consultation with the Office of Management and Budget. DATES: Submit comments on or before June 25, 2007. ADDRESSES: Send or deliver written comments to Charles D. Grimes III, Deputy Associate Director for Performance Management and Pay Systems Design, Office of Personnel Management, Room 7H31, 1900 E Street, NW., Washington, DC 20415-8200; FAX:
(202)606-4264; or e-mail: *pay-performance-policy@opm.gov* . FOR FURTHER INFORMATION CONTACT: Joe Ratcliffe,
(202)606-2838; FAX:
(202)606-4264; or e-mail: *pay-performance-policy@opm.gov* . SUPPLEMENTARY INFORMATION: Section 5377 of title 5, United States Code, as revised by section 102 of the Federal Workforce Flexibility Act of 2004 (Public Law 108-411, October 30, 2004), authorizes the Office of Personnel Management (OPM), in consultation with the Office of Management and Budget (OMB), to grant authority to an agency to fix the rate of basic pay for one or more positions that are designated as critical positions. Section 102 shifts responsibility for the critical position pay authority from OMB to OPM to encourage increased application of this underutilized flexibility as a means of attracting talented individuals to critical positions in the Federal Government who would not otherwise accept or stay in Government jobs at lower rates of pay. As the agency charged with assisting the executive branch to meet its growing human capital demands, OPM currently works directly with other agencies to ensure that they use the broad range of existing human resources management tools strategically to recruit, retain, and manage a high-performing workforce. Under the critical position pay authority, OPM may, upon the request of the head of an agency, grant critical position pay authority for positions that require a very high level of expertise in a scientific, technical, professional, or administrative field and are critical to the accomplishment of the agency's mission. Critical position pay authority may be granted only to the extent necessary to recruit or retain an individual exceptionally well-qualified for a critical position. Approval of critical position pay authority for a position does not change conditions of employment other than the rate of basic pay. For example, employees who receive critical position pay still remain under their normal pay plan, may still receive applicable performance awards; cash awards; recruitment, retention, and relocation incentives; and other similar payments; and remain subject to the applicable aggregate limitation on pay. However, employees receiving critical position pay may not receive locality pay under 5 U.S.C. 5304 or similar authority. Agencies with employees under the critical position pay authority must use the pay rate determinant code “C” for covered employees in submissions to the Central Personnel Data File. Guidance on submitting requests for critical position pay authority was published in OMB Bulletin No. 91-09, March 7, 1991. These proposed regulations would generally continue the policies and procedures established by OMB, but critical position pay would not be limited to positions classified above GS-15. A general summary of the proposed regulations is as follows: • The head of an agency would request critical position pay authority by sending a written request and supporting documentation to the Director of OPM. Requests would be prepared in accordance with § 535.104. • Heads of agencies with approved critical position pay authority would be authorized to set the rate of basic pay for a critical position up to the rate for level II of the Executive Schedule ($168,000 in 2007) without further approval. • In exceptional circumstances, the head of an agency could seek approval for critical position pay authority up to the rate for level I of the Executive Schedule ($186,600 in 2007), based on information and data that justify the higher rate of pay. • In rare circumstances, the head of an agency could seek approval for critical position pay authority at a rate higher than the rate for level I of the Executive Schedule with approval by the President based on information and data that justify the higher rate of pay. • After establishing a critical position pay rate, the head of an agency would have authority to make subsequent pay adjustments, up to the authorized maximum rate of pay. However, the employee must have at least a rating of Fully Successful or equivalent, and subsequent adjustments must be based on labor market factors, recruitment and retention needs, and individual accomplishments and contributions to an agency's mission. • A critical position pay rate would be a rate of basic pay for most purposes. • Critical position pay authority could be granted to one or more specific positions at an agency. • The law requires that OPM submit an annual report to Congress on the use of the critical position pay authority. To produce this report, agencies using the critical position pay authority would submit to OPM by January 31 of each year the information described in § 535.107. The agency would be required to report with respect to each covered position whether the critical position pay authority is still needed. • Agencies granted critical position pay authority could continue to use the authority as long as it is needed. OPM would monitor agencies' use of critical position pay authorities through annual reports and could terminate the authority associated with any given position if, in OPM's judgment in consultation with OMB, the authority is no longer needed. Executive Order 12866, Regulatory Review The Office of Management and Budget has reviewed this rule in accordance with Executive Order 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 affect only Federal agencies and employees. List of Subjects in 5 CFR Part 535 Government employees, Wages. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM is proposing to amend title 5, Code of Federal Regulations, by adding a new part 535 as follows: PART 535—CRITICAL POSITION PAY AUTHORITY Sec. 535.101 Purpose. 535.102 Definitions. 535.103 Authority. 535.104 Requests for and granting critical position pay authority. 535.105 Setting and adjusting rates of basic pay. 535.106 Treatment as a rate of basic pay. 535.107 Annual reporting requirements. Authority: 5 U.S.C. 5377; E.O. 13415, 71 FR 70641. § 535.101 Purpose. The purpose of this part is to provide a regulatory framework for the critical position pay authority authorized by 5 U.S.C. 5377. The Office of Personnel Management (OPM), in consultation with the Office of Management and Budget (OMB), may grant authority to the head of an agency to fix the rate of basic pay for one or more positions under this part. § 535.102 Definitions.
(a)*Agency* has the meaning given that term in 5 U.S.C. 5102.
(b)Employee means an employee (as defined in 5 U.S.C. 2105) in or under an agency.
(c)*Head of an agency* means the agency head or an official who has been delegated the authority to act for the agency head in the matter concerned.
(d)*Critical position* means a position for which OPM has granted authority to the head of an agency to exercise the pay-setting authority provided in 5 U.S.C. 5377.
(e)*Critical position pay authority* means the authority that may be granted to the head of an agency by OPM under 5 U.S.C. 5377 to set the rate of basic pay for a given critical position under the provisions of that section.
(f)*Critical position pay rate* means the specific rate of pay established by the head of an agency for an employee in a critical position based upon the exercise of the critical position pay authority. A critical position pay rate is a rate of basic pay to the extent provided in § 535.106. § 535.103 Authority.
(a)Subject to a grant of authority from OPM in consultation with OMB and all other requirements in this part, the head of an agency may fix the rate of basic pay for a critical position at a rate not less than the rate of basic pay that would otherwise be payable for the position, but not greater than—
(1)The rate payable for level II of the Executive Schedule (unless paragraph (a)(2) or (a)(3) applies);
(2)The rate payable for level I of the Executive Schedule in exceptional circumstances based on information and data that justify a rate higher than the rate payable for level II of the Executive Schedule; or
(3)A rate in excess of the rate for level I of the Executive Schedule that is established in rare circumstances with the written approval of the President.
(b)The head of an agency may exercise his or her critical position pay authority only—
(1)When such a position requires expertise of an extremely high level in a scientific, technical, professional, or administrative field and is critical to the agency's successful accomplishment of an important mission; and
(2)To the extent necessary to recruit or retain an individual exceptionally well-qualified for the critical position.
(c)If critical position pay authority is granted for a position, the head of an agency may determine whether it is appropriate to exercise the authority with respect to any proposed appointee or incumbent of the position.
(d)An agency granted critical position pay authority may continue to use the authority for an authorized position as long as needed. OPM will monitor the use of critical position pay authorities annually, through the agency's required reports under § 535.107, and will terminate the authority associated with a given position after notifying the agency if, in OPM's judgment in consultation with OMB, the authority is no longer needed. § 535.104 Requests for and granting critical position pay authority.
(a)An agency may request critical position pay authority only after determining that the position in question cannot be filled with an exceptionally well-qualified individual through the use of other available human resources flexibilities and pay authorities. Agency requests must include the information in paragraph
(d)of this subsection. OPM, in consultation with OMB, will review agency requests. OPM will advise the requesting agency as to whether the request is approved and when the agency's critical position pay authority becomes effective.
(b)A request for critical position pay authority (or authorities) must be signed by the head of an agency and submitted to OPM. Requests covering multiple positions must include a list of the positions in priority order. The head of an agency may request coverage of positions of a type not listed in 5 U.S.C. 5377(a)(2), as authorized by 5 U.S.C. 5377(i)(2) and Executive Order 13415.
(c)Requests for critical position pay authority to set pay above the rate for level II of the Executive Schedule and up to the rate for level I of the Executive Schedule because of exceptional circumstances require information and data that justify the higher pay. Requests for critical position pay authority to set pay above the rate for level I of the Executive Schedule due to rare circumstances require approval by the President. The head of an agency must submit such requests to OPM with the information required in paragraph
(d)of this section. If OPM, in consultation with OMB, concurs with a request to set pay above the rate for level I of the Executive Schedule, OPM will seek the President's approval.
(d)At a minimum, all requests for critical position pay authority must include:
(1)Position title;
(2)Position appointment authority (for Senior Executive Service positions, appointment authority for any incumbent);
(3)Pay plan and grade/level;
(4)Occupational series of the position;
(5)Geographic location of the position;
(6)Current salary of the position or incumbent;
(7)Name of incumbent (or “Vacant”);
(8)Length of time the incumbent has been in the position or length of time the position has been vacant;
(9)A written evaluation of the need to designate the position as critical. Such an evaluation must include—
(i)The kinds of work required by the position and the context within which it operates;
(ii)The range of positions and qualification requirements that characterize the occupational field, including those that require extremely high levels of expertise;
(iii)The rates of pay reasonably and generally required in the public and private sectors for similar positions; and
(iv)The availability of individuals who possess the qualifications to do the work required by the position;
(10)Documentation, with appropriate supporting data, of the agency's experience and, as appropriate, the experience of other organizations, in efforts to recruit or retain exceptionally well-qualified individuals for the position or for a position sufficiently similar with respect to the occupational field, required qualifications, and other pertinent factors, to provide a reliable comparison;
(11)Assessment of why the agency could not, through diligent and comprehensive recruitment efforts and without using the critical position pay authority, fill the position within a reasonable period with an individual who could perform the duties and responsibilities in a manner sufficient to fulfill the agency's mission. This assessment must include a justification as to why the agency could not, as an effective alternative, use other human resources flexibilities and pay authorities, such as recruitment, retention, and relocation incentives under 5 CFR part 575;
(12)An explanation regarding why the position should be designated a critical position and made eligible for a higher rate of pay under this part within its organizational context ( *i.e.* , relative to other positions in the organization) and, when applicable, how it compares with other critical positions in the agency. The agency must include an explanation of how it will deal with perceived inequities among agency employees ( *e.g.* , situations in which employees in positions designated as critical would receive higher rates of pay than their peers, supervisors, or other employees in positions with higher-level duties and responsibilities);
(13)Documentation of the effect on the successful accomplishment of important agency missions if the position is not designated as a critical position;
(14)Any additional information the agency may deem appropriate to demonstrate that higher pay is needed to recruit or retain an employee for a critical position;
(15)Unless the position is an Executive Schedule position, a copy of the position description and qualification standard for the critical position; and
(16)The desired rate of basic pay for requests to set pay above the rate for level II of the Executive Schedule and justification to show that such a rate is necessary to recruit and retain an individual exceptionally well-qualified for the critical position. § 535.105 Setting and adjusting rates of basic pay.
(a)The rate of basic pay for a critical position may not be less than the rate of basic pay, including any locality-based comparability payments established under 5 U.S.C. 5304 (or similar geographic adjustment or supplement under other legal authority) that would otherwise be payable for the position.
(b)If critical position pay authority is granted for a position, the head of an agency may set pay initially at any amount up to the rate of pay for level II or level I of the Executive Schedule, as applicable, without further approval unless a higher maximum rate is approved by the President under § 535.104(c).
(c)The head of an agency may make subsequent adjustments in the rate of pay for a critical position each January at the same time general pay adjustments are authorized for Executive Schedule employees under section 5318 of title 5, United States Code. Such adjustments may not exceed the new rate for Executive Schedule level II or other applicable maximum established for the critical position. However, the employee must have at least a rating of Fully Successful or equivalent, and subsequent adjustments must be based on labor market factors, recruitment and retention needs, and individual accomplishments and contributions to an agency's mission.
(d)Employees receiving critical position pay are not entitled to locality-based comparability payments established under 5 U.S.C. 5304 or similar geographic adjustments or supplements under other provision of law.
(e)If an agency discontinues critical position pay for a given position (on its own initiative or because OPM, in consultation with OMB, terminates the authority under § 535.103(d)), the employee's rate of basic pay will be set at the rate to which the employee would be entitled had he or she not received critical pay, as determined by the head of the agency. § 535.106 Treatment as rate of basic pay. A critical position pay rate is considered a rate of basic pay for all purposes except—
(a)Application of any saved pay or pay retention provisions ( *e.g.* , 5 U.S.C. 5363); or
(b)Application of any adverse action provisions ( *e.g.* , 5 U.S.C. 7512). § 535.107 Annual reporting requirements.
(a)OPM must submit an annual report to Congress on the use of the critical position pay authority. Agencies must submit the following information to OPM by January 31 of each year on their use of critical position pay authority for the previous calendar year:
(1)The name, title, pay plan, and grade/level of each employee receiving a higher rate of basic pay under this subpart;
(2)The annual rate or rates of basic pay paid in the preceding calendar year to each employee in a critical position;
(3)The beginning and ending dates of such rate(s) of basic pay, as applicable;
(4)The rate or rates of basic pay that would have been paid but for the grant of critical position pay. This includes what the rate or rates of basic pay were, or would have been, without critical position pay at the time critical position pay is initially exercised and any subsequent adjustments to basic pay that would have been made if critical position pay authority had not been exercised (estimate rates where a range would apply, such as for Senior Executive Service positions); and
(5)Whether the authority is still needed for the critical position(s).
(b)[Reserved] [FR Doc. E7-7763 Filed 4-24-07; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 204, 214, and 299 [CIS No. 2302-05; DHS Docket No. USCIS-2005-0030] RIN 1615-AA16 Special Immigrant and Nonimmigrant Religious Workers AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Proposed rule. SUMMARY: This rule proposes to amend U.S. Citizenship and Immigration Services (USCIS) regulations regarding the special immigrant and nonimmigrant religious worker visa classifications. This rule addresses concerns about the integrity of the religious worker program by proposing a petition requirement for religious organizations seeking to classify an alien as an immigrant or nonimmigrant religious worker. This rule also addresses an on-site inspection for religious organizations to ensure the legitimacy of petitioner organizations and employment offers made by such organizations. This rule also would clarify several substantive and procedural issues that have arisen since the religious worker category was created. This notice proposes new definitions that describe more clearly the regulatory requirements, and the proposed rule would add specific evidentiary requirements for petitioning employers and prospective religious workers. Finally, this rule also proposes to amend how USCIS regulations reference the sunset date, the statutory deadline by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence, so that regular updates to the regulations are not required each time Congress extends the sunset date. DATES: Written comments must be submitted on or before June 25, 2007. ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-2005-0030, by *one* of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To ensure proper handling, please reference DHS Docket No. USCIS-2005-0030 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. • *Hand Delivery/Courier:* Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. Contact Telephone Number
(202)272-8377. FOR FURTHER INFORMATION CONTACT: Irene Hoffman Moffatt, Senior Program Analyst, Service Center Operations, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529, telephone
(202)272-8410. SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation II. Background A. Current Eligibility Requirements for the Special Immigrant Religious Worker and Nonimmigrant Religious Worker B. Rationale for the Proposed Rule III. Analysis of Proposed Rule A. Proposed Changes to Definitions B. Proposed Petitioning Requirements C. On-site Inspections D. Evidentiary Requirements for Petitioning Organizations E. Changes Unique to the Special Immigrant Religious Worker Classification F. Changes Unique to the Nonimmigrant Religious Worker Classification IV. Regulatory Requirements A. Regulatory Flexibility Act B. Unfunded Mandates Reform Act of 1995 C. Small Business Regulatory Enforcement Fairness Act of 1996 D. Executive Order 12866 (Regulatory Planning and Review) E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Paperwork Reduction Act List of Subjects I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. The Department of Homeland Security
(DHS)and U.S. Citizenship and Immigration Services (USCIS) also invite comments that relate to the economic or federalism effects that might result from this proposed rule. Comments that will provide the most assistance to USCIS in evaluating these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. See ADDRESSES above for information on how to submit comments. *Instructions:* All submissions received must include the agency name and DHS Docket No. USCIS-2005-0030. All comments received will be posted without change to *http://www.epa.gov/feddocket* , including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.epa.gov/feddocket.* Submitted comments may also be inspected at the Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529. To make an appointment please contact the Regulatory Management Division at
(202)272-8377. II. Background A. Current Eligibility Requirements for Special Immigrant and Nonimmigrant Religious Workers Aliens may be classified either as nonimmigrant or special immigrant religious workers under the Immigration and Naturalization Act
(INA)and USCIS regulations. *See* sections 101(a)(15)(R) and (27)(C) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1101(a)(15)(R) and (27)(C); 8 CFR 204.5(m), 214.2(r). To be eligible for classification as a religious worker, the alien must have been a member of a religious denomination having a bona fide, nonprofit religious organization in the United States for at least two years prior to the application for admission to the United States if seeking the religious worker (R-1) nonimmigrant status, or to the filing of the petition with USCIS if seeking special immigrant status. The alien must seek to enter the United States to work for the organization, or a bona fide organization affiliated with the denomination, as a minister or a worker in a religious vocation or occupation, regardless of whether or not in a professional capacity. Unlike some nonimmigrant categories, the R classification does not require that the alien establish that he or she has a residence in a foreign country which he or she has no intention of abandoning. Under current USCIS regulations, “professional capacity” is defined as “an activity in a religious vocation or occupation for which the minimum of a United States baccalaureate degree or a foreign equivalent degree is required.” 8 CFR 214.2(r)(2). “Religious occupation” is defined as “an activity which relates to a traditional religious function,” including, but not limited to, religious instructors, cantors and workers in religious health care facilities. *Id.* The term generally would not include maintenance workers, clerical staff or fund raisers. *Id.* A “religious vocation” is a “calling to religious life evidenced by the demonstration of commitment practices in the religious denomination, such as the taking of vows.” *Id.* A bachelor's degree or foreign equivalent is only required for aliens working in a professional capacity, assuming the other vocation or occupation requirements are met. The main substantive difference between the special immigrant religious worker and the nonimmigrant religious worker classification is that the special immigrant religious worker must not only have been a member of the religious denomination for the two years immediately preceding the application, but must have also been working as a minister or performing the religious vocation or occupation continuously, either abroad or in the United States or both, for at least two years immediately preceding the filing of the application. The spouse or child of a nonimmigrant granted R-1 status can be admitted to the United States as an R-2 nonimmigrant in order to accompany, or follow to join, the principal R-1 alien. The spouse or child of a special immigrant religious worker is eligible to apply for permanent residence by virtue of the worker's acquisition of permanent residence. There is a significant procedural difference between the filing processes for special immigrant religious workers and nonimmigrant religious workers. Section 203(e) of the INA, 8 U.S.C. 1153(e), requires that an alien seeking status as a special immigrant religious worker file a petition (Form I-360) with USCIS. The petition must be approved before the alien can obtain special immigrant status. Under current USCIS regulations, there is no requirement that a nonimmigrant living outside of the United States file a petition to obtain a R-1 visa. At present, an R-1 classification can be initiated at a consular office overseas through application for an R-1 visa (without any prior approval of a petition by USCIS) or, for aliens who are visa-exempt, by seeking initial admission into the United States. Organizations seeking to employ a nonimmigrant religious worker already present in the United States, or to extend the stay of a current R-1 nonimmigrant employee in the United States, must file a Form I-129, Petition for a Nonimmigrant Worker, with USCIS, along with the appropriate fee. Filing a Form I-129 with USCIS is not the only way that a religious worker may obtain further periods of lawful stay in the United States. A religious worker may obtain additional approved periods of lawful stay in the United States by using a visa to reenter or, if visa-exempt, by seeking reentry at the border. Unlike the provision for ministers, which does not contain a sunset provision, section 101(a)(27)(C)(ii)(II) and
(III)of the Act, 8 U.S.C. 1101(a)(27)(C)(ii)(II) and (III), as enacted by section 151(a) of the Immigration Act of 1990 (IMMACT '90), Pub. L. No. 101-649, 104 Stat. 4978 (Nov. 29, 1990), provided that professional and other religious workers must “seek to enter the United States * * * before October 1, 1994.” *See also* An Act to Amend the Immigration and Nationality Act to Extend for an Additional 5 years the Special Immigrant Religious Worker Program, Pub. L. No. 108-99, 117 Stat. 1176 (Oct. 15, 2003). This sunset provision has been extended four times and now expires on October 1, 2008. Based on the pattern since 1990, further extensions to the sunset date can be anticipated. To immigrate under the special immigrant religious worker category, aliens who are not ministers must have a petition approved on their behalf and either enter the United States as an immigrant or adjust their status to permanent residence while in the United States by no later than September 30, 2008. This rule proposes to simply reference the statutory deadline contained in section 101(a)(27)(C) of the Act, rather than mention a specific date, so that regular updates to the regulations are not required each time Congress extends the sunset date provision. The sunset provision only applies to special immigrant workers in a religious vocation or occupation; it does not apply to the nonimmigrant religious worker category or to special immigrant ministers. B. Rationale for the Proposed Rule The former Immigration and Naturalization Service
(INS)published a proposed rule in 1995. 60 FR 29771 (June 5, 1995). While USCIS reviewed this earlier proposed rule, the Department determined that further changes to the regulations governing the religious worker program were needed. This was particularly evident given the passage of time, recent indications of fraud in the religious worker program and a renewed focus on eradicating such fraud, and the need to update current regulations to reflect recent statutory amendments. In March 1999, the Governmental Accountability Office
(GAO)identified incidents of fraud in the religious worker program. GAO, Issues Concerning the Religious Worker Visa Program, Report GAO/NSIAD-99-67 (March 26, 1999). The report stated that the fraud often involved false statements by petitioners about the length of time that the applicant was a member of the religious organization, the qualifying work experience, and the position being filled. The report also noted problems with the applicants making false statements about their qualifications and exact plans in the United States. USCIS has since continued to assess the potential for fraud in the religious worker program. USCIS developed and implemented a benefit fraud assessment to measure the integrity of specific nonimmigrant and immigrant applications and petitions by conducting administrative inquiries on randomly selected cases. The review is referred to as an “assessment” because the 220 cases reviewed were not attached to any suspicions of fraud; rather, they were a statistically valid combination of pending and completed cases filed over a six month period that were reviewed to determine the extent of fraud occurring within the sample. This assessment by the USCIS Office of Fraud Detection and National Security
(FDNS)confirmed that there was a 33% rate of fraud in the religious worker program. The assessment also indicated patterns of potential fraud and weaknesses that created vulnerabilities for fraud. Through this sample of religious worker cases, FDNS established that a significant number of petitions filed on behalf of religious workers were filed by nonexistent organizations (44% of fraudulent cases) and/or contained material misrepresentations in the documentation submitted to establish eligibility (54% of fraudulent cases). There exists a compelling need to eliminate this fraud. A summary of the USCIS FDNS Religious Worker Benefit Fraud Assessment can be found on the docket at *http://www.regulations.gov* or at *http://www.uscis.gov* under the “about USCIS” tab, then under “Freedom of Information and Privacy Act (FOIA).” In keeping with the DHS anti-fraud strategy, cases identified with preliminary findings of fraud are referred to the Bureau of Immigration and Customs Enforcement
(ICE)for further investigation, possible removal proceedings, or referral for criminal prosecution. The changes proposed in this rule, if implemented, would decrease the opportunity for fraud in the religious worker program. III. Analysis of Proposed Rule This rule proposes changes to the current religious worker process to address concerns about the integrity of the religious worker program. Those changes include expanding the petition requirement for all religious organizations seeking to classify an alien as an immigrant or nonimmigrant religious worker and the possibility of an on-site inspection for religious organizations to ensure the legitimacy of petitioner organizations and employment offers made by such organizations. USCIS also is proposing new and amended definitions to describe more clearly the regulatory requirements, as well as add specific evidentiary requirements for petitioning employers and prospective religious workers. This rule also proposes to amend how USCIS regulations reference the sunset date, the statutory deadline by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence, so that regular updates to the regulations are not required each time Congress extends the sunset date. USCIS does not believe that the requirements proposed under this rule (as discussed below) would substantially burden the free exercise of religion and therefore this rule should not raise any concerns under the Religious Freedom Restoration Act of 1993. *See* Pub. L. No. 103-141, 107 Stat. 1488, found as amended at 42 U.S.C. 2000bb *et seq.* The regulation of the process that organizations must follow to petition for foreign workers and of foreign workers seeking to enter or remain in the United States exists independently of whether the employing organization is classified as “religious” in nature. The existing regulation of the religious worker program is only being continued by the present rule—it is not a new form of regulation or a regulation that otherwise intrudes upon the existing expectations of religious freedom under the First Amendment. USCIS has carefully crafted the additional requirements proposed in an attempt to eradicate fraud in the religious worker program. The proposed rule applies to the religious organizations who petition for an immigrant or non-immigrant religious worker to perform religious work in the United States. The proposed rule does not make any distinction that is known to be based on the substance of an individual's religious beliefs; it only sets qualifications for the organization seeking to employ an individual, and the qualifications of that individual. USCIS, however, is interested in public comment on this issue and will consider comments received in the development of the final rule. A. Proposed Changes to Definitions The applicable definitions for applicants and petitioners for religious worker classification are set forth in 8 CFR 204.5(m) and 214.2(r)(2). This proposed rule adds several definitions, and expands or clarifies others as described below. Because each of the defined terms are repeated in both 204.5 and 214.2, the amendments and additions proposed below apply to both sections as indicated in the regulation text at the end of this rule. Bona Fide Organizations USCIS proposes to clarify the existing definition of “bona fide nonprofit religious organization in the United States” to mean a religious organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, 26 U.S.C. 501(c)(3), or subsequent amendment, as a religious organization *and* possessing a currently valid determination letter from the IRS confirming such exemption. A church must petition as a bona fide nonprofit religious organization and may not petition as a bona fide organization which is affiliated with a religious organization as a means to avoid the evidentiary requirements applicable to churches. USCIS has determined that this letter is the best means for a petitioner to provide immediate and certain documentation at the time of the initial application that the religious organization is exempt from taxation under section 501(c)(3). The agency welcomes public comments on alternative means for the initial petition to include such documentation. USCIS also proposes to add to the existing definition of “bona fide organization which is affiliated with the religious organization in the United States,” to include entities such as educational institutions, hospitals, or private foundations. See 8 CFR 204.5(m)(2), 214.2(r)(2). Such entities may qualify as a petitioning employer organization for immigration purposes, even if their purpose is not exclusively religious, if documentation is provided to establish the organization's religious purpose and the religious nature of its activities. The eligibility of each organization will be determined on a case-by-case basis. An organization granted section 501(c)(3) status by the IRS as something other than a religious organization must submit the Religious Denomination Certification contained in the Forms I-360 and I-129, signed by the attesting religious organization in the denomination to confirm the petitioning organization's affiliation with the religious denomination. Additionally, the bona fide nonprofit religious organization attesting to the petitioning organization's affiliation with the denomination must be exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986 and as evidenced by a currently valid determination letter from the IRS confirming the bona fide nonprofit religious organization's exemption. A church may not present itself as a bona fide organization affiliated with a religious denomination as a means of avoiding the requirement that churches present an IRS tax-exempt letter as a religious organization. Denominational Membership USCIS proposes to add a definition of “denominational membership” to clarify that, during at least the two-year period immediately preceding the filing of the petition, the alien must have been a member of the same religious denomination as the United States employer that seeks to employ him or her. The definition is premised on the shared faith and worship practices of the institution, rather than on their formal affiliation. The purpose of this definition is to avoid the immigration of religious workers
(1)into institutions that are not truly practicing a religion, and
(2)based on the alien's recent “conversion” to a religious commitment in the interest of immigration status rather than a sincere intention to perform service to one's longstanding faith. Ministers A “minister” is currently defined as an individual duly authorized by a religious denomination to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that religion. USCIS proposes to amend this definition to require that an individual also be “fully trained according to the denomination's standard.” The revised definition focuses on the denomination's traditional requirements for ordination or its equivalent, because some denominations do not require a particular level of formal academic training or experience. Religious Denomination USCIS is modifying the definitions of “religious denomination” to clarify that it applies to a religious group or community of believers governed or administered under some form of common ecclesiastical government. See 8 CFR 204.5(m)(2), 214.2(r)(2). The denomination must share a common creed or statement of faith, some form of worship, a formal or informal code of doctrine and discipline, religious services and ceremonies, established places of religious worship, religious congregations, or comparable indicia of a bona fide religious denomination. The proposed definition does not require a hierarchical governing structure because some legitimate denominations officially shun such structures; instead, the focus is on the commonality of the faith and internal organization of the participating organizations. Religious Occupation “Religious occupation” is now defined as habitual employment in an occupation the duties of which primarily relate to a traditional religious function and that is recognized as a religious occupation within the denomination. USCIS proposes to amend the definition to clarify that the duties of the position must be “primarily, directly, and substantially related to the religious beliefs or creed of the denomination.” Examples of religious occupations include, but are not limited to, liturgical workers, religious instructors, religious counselors, cantors, catechists, missionaries, religious translators, religious broadcasters, youth ministers, religious choir directors or music ministers, or ritual slaughter supervisors. “Religious occupation” does not include positions whose duties are primarily administrative or supportive in nature, and any administrative duties must be incident to the substantive, traditionally religious functions. Examples of non-qualifying administrative and support positions include, but are not limited to: janitors; maintenance workers; clerks; secretaries; fund raisers; secular musicians; secular translators; those who sell literature, volunteer as ushers during worship services, serve in the choir, volunteer part-time to assist the clergy, or lead a weekly study group; or similar persons engaged in primarily secular, administrative or support duties. These examples are primarily drawn from the legislative history of IMMACT '90. *Family Unity and Employment Opportunity Immigration Act of 1990,* H. Rept. 101-723(I), 101st Cong., 2nd Sess. (Sept. 19, 1990). Religious Vocation USCIS is proposing to revise the definition of “religious vocation” to clarify that it refers to a formal lifetime commitment to a religious way of life. The opportunity to immigrate as a religious worker in a vocation should be reserved for those individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Religious Workers USCIS proposes to add a new definition of “religious workers” and to define the term, in part, as individuals engaged in a religious occupation or vocation either in a professional or non-professional capacity. Religious workers in a vocation are those individuals who have made a formal lifetime commitment to a religious way of life. USCIS is proposing to require evidence that the religious denomination has a traditional established class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. Such evidence may include, but is not limited to, the taking of vows, or other investitures or ceremonies. USCIS requests comments with regard to other types of available evidence and alternative criteria for establishing the required level of commitment to a religious way of life applicable to diverse religious denominations. Religious workers in a religious occupation are those seeking to be employed by a religious organization in a religious occupation, the duties of which involve traditional religious functions. The new definition of religious occupation seeks to distinguish more clearly between non-qualifying lay or administrative work, and the kind of committed religious work justifying immigration status. The definition and evidentiary requirement for religious workers in a religious occupation use the bright lines of:
(1)compensation by the employer, and
(2)either 20 hours per week for nonimmigrants or 35 hours per week (full-time) for special immigrants. The revised requirements for immigrant petitions and nonimmigrant status require that the alien's work be compensated by the employer because that provides an objective means of confirming the legitimacy of and commitment to the religious work, as opposed to lay work, and of the employment relationship. Unless the alien has taken a vow of poverty or similarly made a formal lifetime commitment to a religious way of life, this rule requires that the alien be compensated in the form of a salary or in the form of a stipend, room and board, or other support so long as it can be reflected in a W-2, wage transmittal statements, income tax returns, or other verifiable IRS documents. USCIS recognizes that legitimate religious work is sometimes performed on a voluntary basis, but allowing such work to be the basis for an R-1 nonimmigrant visa or special immigrant religious worker classification opens the door to an unacceptable amount of fraud and increased risk to the integrity of the program. In this rule, USCIS is proposing to implement bright lines that will ease the verification of petitioner's claims in the instances where documentary evidence is required. It should be noted that this rule greatly reduces the burden on petitioners for submission of evidence. For example, petitioners are currently required to submit evidence of the beneficiary's education and training whereas under this proposed rule they need only attest to the beneficiary's eligibility. Documentary evidence is generally only required when it is in the form of an official government document or similarly provides added reliability. This change to the evidentiary requirements, in favor of an attestation scheme, can only successfully insure against fraud and abuse where petitioner's claims can be verified. In accordance with 8 CFR 214.2(b)(1), members of a religious denomination coming temporarily and solely to do missionary work on behalf of a religious denomination may do so by obtaining a B-1 visa and may be granted extensions in increments of up to one year (provided such work does not involve the selling of articles or the solicitation or acceptance of donations). The issue of training is also clarified. The rules do not require a specific set of training, but a religious worker must be minimally competent to do the work and must intend to do it. Religious study or training for religious work in the United States does not justify special immigrant status, though an R-1 religious worker may pursue study or training incident to status, as is appropriate in several other nonimmigrant classifications. Aliens seeking to pursue religious study in the United States not incident to R-1 status may pursue options such as F-1 or J-1 classifications. All of these definitions recognize that some administrative duties are incidental to many religious functions, but require that the religious functions predominate. B. Proposed Petitioning Requirements USCIS is proposing to impose a new petition requirement on employers or organizations seeking to classify an alien as a religious worker, whether as an immigrant (Form I-360) or nonimmigrant (Form I-129). A petition requirement already exists for special immigrants and for organizations that seek to extend the stay or change status of a nonimmigrant religious worker already in the United States. The addition of the petition requirement for nonimmigrants seeking an R-1 visa or R-1 visa-exempt entry is needed in order to facilitate current and future on-site inspections and to further ensure the integrity of the program. Only the employing, United States organization will be allowed to complete and submit the Form I-129 or Form I-360 on behalf of the beneficiary. Allowing petitions to be filed by the aliens themselves or by third parties does not support the integrity of the process. Given that there always must be an employing United States organization; this requirement should not pose any undue hardship on filers. USCIS also is proposing to require that the petitioning employer complete and submit an attestation along with the Form I-129 or the Form I-360, for non-immigrants and special immigrants, respectively. The attestation will serve to establish that the alien will be entering the United States solely to carry on the vocation of a minister or to work in a religious vocation or occupation, that the alien is qualified for such position, and that the job offer is legitimate. These attestations must be executed by an authorized official of the organization. This requirement is designed to ensure that the prospective employer has the ability and intention to compensate the alien at a level at which the alien and accompanying family members will not become public charges, and that funds to pay the alien's compensation do not include any monies obtained from the alien, excluding reasonable donations or tithing to the religious organization. C. On-Site Inspections This rule proposes that USCIS may conduct on-site inspections of petitioning organizations seeking to employ either an R-1 nonimmigrant or special immigrant religious worker. Pursuant to its general authority under section 103 of the INA and 8 CFR part 103, USCIS may conduct audits, on-site inspections, reviews or investigations, to ensure that an alien is entitled to the benefit sought and that all laws have been complied with before and after approval of such benefits. DHS has determined that the option to conduct such on-site inspections is vital to the integrity of the religious worker program and petitioning process. A recent assessment by the FDNS confirmed that there was a high percentage of fraud (33%) in the religious worker program. Through the statistically valid sample of Form I-360 religious worker petitions, FDNS established that a significant number of petitions filed on behalf of religious workers were filed by nonexistent organizations and/or contained material misrepresentations in the documentation submitted to establish eligibility. By promulgating the option to conduct on-site inspections as proposed in this rule, USCIS is emphasizing this tool, with other program enhancements, as a deterrent to fraud and an aid in the detection of fraudulent petitions in the R-1 nonimmigrant and special immigrant religious worker categories. This rule will also allow DHS to monitor religious workers and ensure they maintain lawful status while in the United States. The purpose of this activity is to eliminate the inappropriate award of immigration benefits to unqualified individuals. D. Evidentiary Requirements for Petitioning Organizations USCIS also proposes to change the evidentiary requirements for petitioning employer organizations seeking a religious worker. Existing regulations require that the organization submit documentation showing that it is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986 as it relates to religious organizations. USCIS is proposing to specifically require that petitioning organizations submit a currently valid determination letter from the Internal Revenue Service (IRS). Likewise, a group of religious organizations, that are recognized as tax exempt under a group tax exemption, must provide the most current determination letter from the IRS that establishes that the group is an organization as described in section 509(a)(1) of the Internal Revenue Code of 1986, 26 U.S.C. 509(a)(1), and that the group's tax exemption is in accordance with section 501(c)(3) of the Internal Revenue Code of 1986. USCIS recognizes that in some cases such a determination letter will require the payment of a user fee to the IRS. See IRS Form 8718 (rev. June 2006). Although churches may not be required to obtain a section 501(c)(3) exemption for tax purposes, such an exemption is required when requesting immigration benefits on behalf of an alien. *See* Internal Revenue Service, *Tax Guide for Churches and Religious Organizations: Benefits and responsibilities under the Federal Tax Law* (IRS pub. no. 1828, Rev. Sept. 2006); *compare* , section 101(a)(27)(C)(ii)(III) of the INA, 8 U.S.C. 1101(a)(27)(C)(ii)(III). Entities seeking to employ alien religious workers should be willing to request IRS recognition of their tax-exempt status, and their certifications to IRS under applicable tax rules will help ensure the integrity of their participation in the immigration process. In addition, the proposed regulation would modify the current regulatory text by replacing the “it” with “organization” in order to clarify that the organization must be exempt from taxation. USCIS requests comments regarding how to document bona fide tax exempt status, including the availability of other government agencies that may certify the bona fide tax exempt status of organizations located in United States territories that may be outside the jurisdiction of the IRS. E. Changes Unique to the Special Immigrant Religious Worker Classification Current regulations describing various categories of religious workers have led to much confusion. USCIS is now proposing to reorganize 8 CFR 204.5(m) in its entirety and simplify the religious worker classification by dividing it into three distinct categories: ministers, individuals engaged in a religious vocation, and individuals engaged in a religious occupation. Individuals within the latter two categories may be either professionals or non-professionals. The proposed rule recognizes that the prior religious work need not correspond precisely to the type of work to be performed; for instance, a former minister may immigrate to work as a missionary, and a former missionary, now ordained, may immigrate to work as a minister. The rule codifies longstanding recognition that a break in the continuity of religious work during the two years immediately preceding the filing of the petition will not affect eligibility if the alien has performed as a religious worker on a compensated, full-time basis, the break did not exceed two years, and the nature of the break was for further religious training or for sabbatical and did not involve unauthorized work in the United States. The proposed rule also clarifies that qualifying prior experience (that is, during the two years immediately preceding the petition or preceding any acceptable interruption of religious work) acquired in the United States must have been authorized under United States immigration law and in conformity with all other laws of the United States such as the Fair Labor Standards Act of 1938, 29 U.S.C. 201 *et seq.* , 52 Stat 1060, as amended. If the alien was employed in the United States during the two years immediately preceding the filing of the application, the petitioner must submit the alien's W-2 wage statements, the employer's wage transmittal statements, and the transcripts of the alien's processed income tax returns (IRS Form 4506T) for the preceding two years reflecting such work. Additionally, the alien must have belonged to the same denomination as the petitioner organization throughout the two years of qualifying employment. The evidentiary requirements in the rule also will ensure that the tax laws have been generally observed. Allowing periods of unauthorized, unreported employment to qualify an alien toward permanent immigration undermines the integrity of the United States immigration system. USCIS proposes to remove existing 8 CFR 204.5(m)(3)(iv), which currently states that the director may request appropriate additional evidence relating to the eligibility under section 203(b)(4) of the Act, 8 U.S.C. 1153(b)(4), of the religious organization, the affiliated organization, or the alien. This paragraph is unnecessary, since it merely repeats general adjudicative procedures found in 8 CFR 103.2. A similar provision has been stricken from the nonimmigrant religious worker regulations. F. Changes Unique to the Nonimmigrant Religious Worker Classification To maintain consistency in the adjudication of the nonimmigrant and special immigrant religious worker classifications, DHS has made conforming changes to the nonimmigrant religious worker classification (R visa category), where appropriate, to reflect the changes proposed in the definitions and filing requirements for special immigrant religious workers. Some proposed requirements, such as the period of authorized stay, are applicable only to the R visa category. Under current regulations, the standard period of stay is three years (with one potential extension of two years). USCIS proposes to change the standard period of stay to one year (with two potential extensions of two years each). An alien may apply for a one-year period of stay by filing the Form I-129 and the R Classification Supplement with the required attestation section completed and supporting documentation. This one-year admission runs from the date of initial admission in order to provide the alien the benefit of the full year and also to accommodate for any delay in consular processing. An alien may apply for additional periods of stay by filing the Form I-129 with USCIS and through demonstration of the alien's compensation by the approved employer in a manner that assures compliance with tax policies and provides better assurance to USCIS that the required employment relationship truly exists. Any request for R-1 status, admission beyond the first year of R-1 status, or any period of extension of stay, must include initial evidence of the previous R-1 employment in the form of the alien's W-2 wage statements, the employer's wage transmittal statements, and transcripts of the alien's processed income tax returns (IRS Form 4506T) for any preceding period spent in the United States in R-1 status. For any period of such employment not yet reflected in documents, such as W-2s, wage transmittal statements or income tax returns, required to be completed or filed at the time of filing the petition, then pay stubs relating to payment for such employment shall also be presented for work not yet reflected in such documents. Aliens who have taken a vow of poverty or similar formal lifetime commitment to a religious way of life may submit evidence of such commitment in lieu of the above documentary requirements, but must also submit evidence of all financial support (including stipends, room and board, or other forms of support) received while in R-1 status. The proposed rule will require that every petition for R-1 classification must be initiated by filing a Form I-129 with USCIS. Beneficiaries will no longer be able to obtain an R-1 visa or status at a United States Consulate abroad or at a port-of-entry without the prior approval of the Form I-129 by USCIS. Visa-exempt aliens will present the USCIS approval of the Form I-129 at the port-of-entry when applying for admission in R-1 status. Only a prospective or existing employer can complete and file the Form I-129, and the employer must notify USCIS when the individual on an R-1 visa has been released from his or her employment or is no longer working the minimally required hours. DHS is proposing to exempt from the five-year maximum stay certain aliens whose work in the United States is intermittent or seasonal. DHS requests comments on the need for this exemption in the religious worker context. Lastly, the existing rule is clarified to allow R-2 spouses and children to remain in the United States for the same time limits as the principal alien. Nevertheless, as with any dependent nonimmigrant status, the primary purpose of the spouse or child must be to join or accompany the principal R-1 alien in the United States. USCIS may limit, deny or revoke on notice any stay for an R-2 that is not primarily intended for that purpose or is intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States. An R-1 alien may not use occasional work visits to the United States in order to “park” the R-2 family members in the United States for extended periods while the principal alien is absent. IV. Regulatory Requirements A. Regulatory Flexibility Act USCIS has reviewed this regulation in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)). USCIS is not able at this time to certify this rule will not have a significant economic impact on a substantial number of small entities. This proposed rule amends existing regulations pertaining to the special immigrant and nonimmigrant religious worker classifications and also is designed to address fraud in, and ensure the integrity of, the religious worker program. This rule affects only those religious organizations and bona fide organizations affiliated with a religious denomination (which may include educational institutions, hospitals, and private foundations) that are seeking to classify an alien as a nonimmigrant religious worker or special immigrant religious worker. DHS estimates that USCIS likely will receive approximately 22,338 petitions filed annually from such organizations and that in most instances, such organizations would be considered “small entities” as that term is defined under 5 U.S.C. 601. The 22,338 figure is derived from the total number of Forms I-360 and I-129 religious worker petition filings in the prior fiscal year (4,617 Form I-360s and 5,939 Form I-129s filed for change of status or extension of stay of R-1 nonimmigrants), plus 11,782 visas issued by the Department of State for initial R-1 nonimmigrant visas, which USCIS projected will be the number of new petitions it will see for the R-1 nonimmigrant category in light of the new petition requirement for that classification. The 22,338 figure, however, does not take into account petitioning organizations that file petitions for several potential religious workers. Further, there are no available statistics on the total number of religious organizations and affiliated bona fide organizations that may exist in the United States and of that the number the percentage of organizations that ultimately may seek to hire a foreign national to perform work in a religious occupation or vocation. The Department, therefore, seeks comments on the extent of any potential economic impact of this rule on small entities. USCIS recognizes that there will be certain additional costs and burdens on the religious organizations and bona fide organizations affiliated with a religious denomination due to the new petitioning requirement for R-1 nonimmigrants. The estimated costs and benefits are described in detail in the Executive Order 12866 section below. Even assuming that the number of petition filings remains constant annually and projecting that approximately 15,637 (70% of the 22,338 petitions) individual organizations will seek religious workers, USCIS has determined that the total costs to a religious or affiliated bona fide organization of for a religious worker petition ($190) would represent a small percentage of the organization's total annual wage cost for the beneficiary of the religious worker petition (depending on the type of worker sought and assuming, for purposes of this analysis, that the position is salaried). USCIS also projects that the petition cost would be an even smaller percentage of the petitioning organization's overall operating budget. These percentages were calculated based on Bureau of Labor Statistics indicating national average wages for the private sector ($17.25/hour), religious workers ($11.41/hour), Directors of Religious Activities/Education ($16.41/hour), and clergy ($19.23/hour) and based on the standard 35 hours per week for a full-time worker for a full year. Finally, petitioning organizations will have an additional burden in terms of time needed to complete attestation and certification requirements related to the organization's tax exempt status and the potential religious worker's qualifications and to collect and submit additional information related to the employer's tax exempt status and an attestation regarding the potential religious worker's qualifications and duties, etc. USCIS anticipates, however, that most of this information will be readily available to the organization. Thus, any impact on religious or affiliated organizations or individuals to comply with these requirements should be minimal. Additionally, USCIS recognizes that many religious organizations will be required to pay a user fee to the IRS to acquire a currently valid determination letter of their IRC section 501(c)(3) status. IRS Forms 1023 and 8718 (rev. June 2006). Very small organizations with gross revenues of not more than $10,000 may be charged a fee of $300 by the IRS to determine their current 501(c)(3) status. Organizations with gross receipts in excess of $10,000 during the previous four years or anticipating gross receipts averaging more than $10,000 during the first four years, may be charged a fee of $750 by the IRS to determine their current 501(c)(3) status. USCIS does not currently possess sufficient information to determine which organizations would fall into each category or otherwise not be required to pay such a fee. Accordingly, DHS invites comments on the scope of these costs and more accurate means for defining these costs. Again, DHS invites comments on ways that a religious organization could demonstrate that they meet the requirements without providing a 501(c)(3) letter, but without USCIS being required to analyze sizeable paperwork to verify the status. USCIS is also pursuing alternative avenues of verification directly with the IRS. Considering the importance of preventing fraud in the religious worker program and of ensuring that only legitimate religious organizations and bona fide affiliated organizations participate in the process, DHS believes that this proposed rule will have a positive impact overall. USCIS anticipates a net reduction of many of the adjudicative resources that might be expended in determining whether a religious worker petition involves potential fraud or misrepresentations. USCIS, however, specifically invites public comment on the estimated cost to petitioning religious organizations and bona fide organizations affiliated with a religious denomination to comply with the new religious worker petition requirements and prepare for the on-site inspections. 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 it 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 section 804 of the Small Business Regulatory Enforcement Act of 1996. 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 (Regulatory Planning and Review) This rule is considered by the Department of Homeland Security to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget for review. Assessment of the Costs This proposed rule amends existing regulations pertaining to the special immigrant and nonimmigrant religious worker classifications. For fiscal year 2005, 3,230 individual organizations filed 4,617 petitions with USCIS seeking special immigrant religious workers. Also, 5,939 petitions were filed with USCIS for extensions and changes of status for R-1 nonimmigrant religious workers. Not all of these R-1 petitions represent filings by a single religious organization or bona fide organization affiliated with a religious denomination. These figures also do not account for instances where a single religious organization or affiliated bona fide organization filed petitions for several potential religious workers. Currently, there is no petition requirement for religious organizations or bona fide affiliated organizations initially seeking a nonimmigrant religious worker. To estimate the number of organizations that may be affected by the new petition requirement for the nonimmigrant religious worker classification (R-1), USCIS looked at the number of nonimmigrant visas that were issued by the Department of State for religious workers in 2004. Department of State issued 11,782 visas for 2004; however, this number does not exclude those aliens who potentially have multiple visas or those aliens who were previously in R-1 nonimmigrant status and received extension of their status by obtaining a new visa and reentering the United States (rather than seeking an extension while in the United States). Assuming the number of religious worker petitions filed annually and the number of religious or affiliated organizations seeking workers remain constant, DHS projects that approximately 15,637 individual organizations will seek religious workers each fiscal year. This projection is based on the percentage of religious organizations and bona fide affiliated organizations that sought special immigrant religious workers in FY 2005 (70%) applied against the total population of projected annual petition filings of 22,338. In order to differentiate the amount attributed to each form associated with the Religious Worker program (Form I-129 and I-360) the following figures will be used to estimate costs and burden hours for each form. Based on the percentage of religious organizations and bona fide affiliated organizations that sought special immigrant religious workers in FY 2005 (70%) applied against the population of projected annual petition filings for the Form I-129, DHS estimates that there will be approximately 12,407 (17,721 × 70%) Form I-129 filings for the nonimmigrant religious worker, and 3,230 (4,617 × 70%) for the Form I-360 which comprises the total 15,637 (22,338 × 70%) total projected filings for both forms. The current fees for the Form I-129, Petition for Nonimmigrant Worker, and the Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant are $190. USCIS is proposing to modify these fees in a separate rule. USCIS already has an approved information collection for the Form I-129, OMB 1615-0009, and Form I-360, OMB 1615-0020. Petitioning organizations are required to submit additional initial evidence related to their tax-exempt status and an attestation regarding the potential religious worker's qualifications and duties, etc. Information collection costs, therefore, are increased by these requirements, which would increase the existing information collection burden by roughly 15 minutes per respondent for the new attestation for both the Form I-129 and the Form I-360. If there are 15,637 respondents, this increases the information collection burden by approximately 3,908 hours, which at $16 per hour increases public costs by $62,528. DHS estimates that the Form I-129 will have 12,407 of the 15,637 estimates filings which would be an increase in information collection burden by approximately 3,101 hours for the attestation which at $16 per hour increases the public costs for the Form I-129 by $49,616. DHS estimates that the Form I-360 will have 3,230 of the 15,637 estimates filings (based on the FY05 filings stated earlier) which would be an increase in information collection burden by approximately 807 hours which at $16 per hour increases the public costs for the Form I-360 by $12,912. The total cost of petitioning under this proposed rule is estimated to be $6,510,103. ($5,165,373 for the Form I-129 and $1,344,730 for the Form I-360). In addition, changes in filing requirements will increase the frequency of filings for extensions or changes of status over a five-year period, increasing the total costs to the public to $6,665,503. In addition, several respondents are expected to pay the fee required under Internal Revenue Regulations of ($750) for obtaining a section 501(c)(3) status determination letter from that agency. Since this is a new requirement, USCIS has no data on which to base an estimate of how many will be required to resort to this course of action. The agency has anecdotal stories from adjudications and other programs indicating that these letters are regularly lost or destroyed, and the existence of the IRS form points to its eventuality. Nonetheless, even assuming that all 15,637 religious worker petitions expected to be received per year are required to pay this fee, the total cost of such requests would be under $12 million. USCIS feels that the actual number will be much less and welcomes comments on this impact. Together the total cost of these proposed changes are estimated to be $18,393,253, which remains well below the threshold of an economically significant rule as provided by the Executive Order. Assessment of Benefits The cost of the proposed rule's increased information collection is outweighed by the overall benefit to the public of an improved system for processing religious workers. The proposed rule is a vital tool in furthering the protection of the public by
(1)more clearly defining the requirements and process by which religious workers may gain admission to the United States, and
(2)increasing the ability of DHS to deter or detect fraudulent petitions and to investigate and refer matters for prosecution. A recent assessment by the USCIS Office of Fraud Detection and National Security confirmed that there was a high percentage of fraud in the religious worker program. Through this statistically valid sample of I-360 religious worker petitions, FDNS established that a significant number of petitions filed on behalf of religious workers were filed by nonexistent organizations and/or contained material misrepresentations in the documentation submitted to establish eligibility. The benefits of decreased fraud and increased national security tend to be intangible, thus, the benefits of such reduction in the high level of fraud in this program are difficult to quantify. On the other hand, the lack of such protections become quite tangible as soon as the lack of protections such as those proposed in this rule are manifested in the tangible economic or societal damage caused by a recipient of a fraudulent religious worker visa. The changes to the petition requirements for all religious workers as well as other program enhancements, such as a possible on-site inspection, are intended to increase detection of fraudulent petitions in this category and increase the ability of DHS to monitor that the eligible alien maintains status during their stay as valued guests in this country. This rule amends requirements for the special immigrant and nonimmigrant religious worker visa classifications. It will not significantly change the number of persons who immigrate to the United States based on employment-based petitions or temporarily visit based on a nonimmigrant visa petition. This rule is intended to benefit the public by clarifying definitions associated with the religious worker classifications, acceptable evidence, and specific religious worker qualification requirements. Balanced against the costs and the requirements to collect information, the burden imposed by the proposed rule appears to USCIS to be justified by the benefits. 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, it is 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 Any prospective employer must file a Form I-129, Petition for Nonimmigrant Worker, or Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant seeking to classify an alien as a religious worker under sections 101(a)(15)(R) and (27)(C) of the Act. The Forms I-129 and I-360 are considered information collections under the Paperwork Reduction Act (PRA). The Office of Management and Budget
(OMB)has previously approved both the Forms I-129 and I-360 for use. The OMB control numbers for these collections for the Form I-129 is OMB 1615-0009 and for the Form I-360 is OMB 1615-0020. This proposed rule extends the number of respondents for Form I-129 and adds new information collections with respect to evidentiary attestations for both the Form I-129 and Form I-360. These requirements are considered information collections subject to review by OMB under the Paperwork Reduction Act of 1995. Written comments are encouraged and will be accepted until June 25, 2007. When submitting comments on the information collection, your comments should address one or more of the following four points.
(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 the agency's estimate of the burden of the collection of information, 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 collection of the information on those who are to respond, including through the use of any and all appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Overview of Information Collection for Attestation in the Form I-129
(1)*Type of information collection:* Revision of currently approved collections.
(2)*Title of Form/Collection:* I-129, Petition for a Nonimmigrant Worker/Evidentiary requirements; religious worker.
(3)*Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection:* Form I-129, U.S. Citizenship and Immigration Services.
(4)*Affected public who will be asked or required to respond, as well as a brief abstract:* Individuals. The information collection is necessary in order for USCIS to make a determination whether the prospective employer is a bona fide non-profit religious organization or a bona fide organization which is affiliated with the religious denomination, that the job offer is legitimate, that the beneficiary qualifies for the classification sought, and that the employer is providing compensation in compliance with the Internal Revenue Code.
(5)*An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond to the new requirements:* 381,355 respondents at 3 hours per response. In addition, the on-site inspection is estimated to be an additional 65 minutes for each religious organization (12,407 respondents).
(6)*An estimate of the total of public burden (in hours) associated with the collection:* Total reporting burden hours is 1,157,501. All comments and suggestions or questions regarding additional information should be directed to the Department of Homeland Security, U.S. Citizenship and Immigration Services, Regulatory Management Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529; Attention: Richard A. Sloan, Director, 202-272-8377. Overview of Information Collection for Attestation in the Form I-360
(1)*Type of information collection:* Revision of currently approved collections.
(2)*Title of Form/Collection:* Form I-360 Petition for Amerasian, Widow(er), or Special Immigrant /Evidentiary requirements; religious worker.
(3)*Agency form number, if any, and the applicable component of the Department of Homeland Security sponsoring the collection:* Form I-360, U.S. Citizenship and Immigration Services.
(4)*Affected public who will be asked or required to respond, as well as a brief abstract:* Individuals. The information collection is necessary in order for USCIS to make a determination whether the prospective employer is a bona fide non-profit religious organization or a bona fide organization which is affiliated with the religious denomination, that the job offer is legitimate, that the beneficiary qualifies for the classification sought, and that the employer is providing compensation in compliance with the Internal Revenue Code.
(5)*An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond to the new requirements:* 16,914 respondents at 2.25 hours per response.
(6)*An estimate of the total of public burden (in hours) associated with the collection:* Total reporting burden hours is 41,554. All comments and suggestions or questions regarding additional information should be directed to the Department of Homeland Security, U.S. Citizenship and Immigration Services, Regulatory Management Division, 111 Massachusetts Avenue, NW., 3rd Floor, Washington, DC 20529; Attention: Richard A. Sloan, Director, 202-272-8377. List of Subjects 8 CFR Part 204 Administrative practice and procedure, Immigration, Reporting and recordkeeping requirements. 8 CFR Part 214 Administrative practice and procedure, Aliens, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students. 8 CFR Part 299 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 204—IMMIGRANT PETITIONS 1. 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. 2. Section 204.5 is amended by revising paragraph
(m)to read as follows: § 204.5 Petitions for employment-based immigrants.
(m)*Religious workers.*
(1)Any prospective employer may file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant visa petition, on behalf of an alien for classification under section 203(b)(4) of the Act as a section 101(a)(27)(C) of the Act special immigrant religious worker. Such a petition may be filed for an alien who (either abroad or in the United States) for at least the two years immediately preceding the filing of the petition has been a member of a religious denomination that has a bona fide nonprofit religious organization in the United States. The alien must be coming to the United States solely for the purpose of working, on a compensated, full-time basis, in one of the following capacities:
(i)The vocation of a minister of that religious denomination; or
(ii)A religious vocation; or
(iii)A religious occupation.
(2)The alien also must be coming to work for a bona fide nonprofit religious organization in the United States, or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation as an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 or subsequent amendment, at the request of the organization to fulfill a reasonable need of the organization. All three types of religious workers must have been performing, on a compensated, full-time but not necessarily exclusive basis, as a minister or in a religious vocation or occupation in the denomination continuously for at least the two-year period immediately preceding the filing of the petition. A full-time position is considered to be 35 hours per week. The prior religious work may be either abroad or in lawful immigration status in the United States, and must have occurred after the age of 14 years. The prior religious work need not correspond precisely to the type of work to be performed; for instance, a former minister may immigrate to work as a missionary, and a former missionary, now ordained, may immigrate to work as a minister.
(3)A break in the continuity of the required religious work during the two years immediately preceding the filing of the petition will not affect eligibility so long as:
(i)The alien was still employed as a religious worker on a compensated, full-time basis,
(ii)The break did not exceed two years, and
(iii)The nature of the break was for further religious training or for sabbatical that did not involve unauthorized work in the United States. However, the alien must have been a member of the petitioner's denomination throughout the two years of qualifying employment.
(4)*Definitions* . As used in this paragraph
(m)the term: *Bona fide nonprofit religious organization in the United States* means a religious organization exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization and possessing a currently valid determination letter from the IRS confirming such exemption. A church must petition as a bona fide nonprofit religious organization and may not petition as a bona fide organization that is affiliated with an organization as a means to avoid the evidentiary requirements applicable to churches. *Bona fide organization which is affiliated with the religious denomination* means an organization which is closely associated with and routinely and substantially acts to further the religious goals of the religious denomination, as attested to by a bona fide nonprofit religious organization in the United States within the denomination. The bona fide nonprofit religious organization attesting to the petitioning organization's affiliation must be exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, and as evidenced by a currently valid determination letter from the IRS confirming the bona fide nonprofit religious organization's exemption. “Affiliation” for this particular purpose does not require legal relationship in the form of ownership or control by the denomination or by religious organizations within the denomination, but it does require a solid and public commitment by the affiliated organization to the tenets of the religious denomination. *Denominational membership* means membership during at least the two-year period immediately preceding the filing date of the petition, in the same type of religious denomination as the United States religious organization where the alien will be employed. Membership in religious denominations, including interdenominational organizations, sharing forms of government and worship, creeds, and disciplinary practices may be sufficient to show denominational membership. The denominational membership requirement shall be interpreted in a manner to allow qualification of persons who have demonstrated a sincere commitment to the religious faith of the United States organization of employment, and to prevent qualification by persons who may have taken on the faith of the United States organization for purposes of facilitating eligibility for United States immigrant or nonimmigrant status. *Minister* means an individual duly authorized by a religious denomination, and fully trained according to the denomination's standards, to conduct religious worship and to perform other duties usually performed by authorized members of the clergy of that denomination. The term does not include a lay preacher or a person not authorized to perform such duties. In all cases, there must be a rational relationship between the activities performed and the religious calling of the minister. The minister must also intend to work solely as a minister in the United States, but the performance of administrative duties incident to the predominant, essentially religious duties does not exclude one from the definition of minister. *Religious denomination* means a religious group or community of believers governed or administered under a common type of ecclesiastical government. Members of a denomination must share a recognized common creed or statement of faith, a common form of worship, a common formal code of doctrine and discipline, religious services and ceremonies, common established places of religious worship, religious congregations, or comparable indicia of a bona fide religious denomination. For the purposes of this definition, religious organizations that are recognized as tax exempt under a group tax exemption issued pursuant to section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization will be presumed to belong to the same religious denomination, but such official affiliation is not necessary for denominational membership. *Religious occupation* means habitual employment in an occupation the duties of which primarily relate to a traditional religious function and which is recognized as a compensated religious occupation within the denomination. The duties of the position must be primarily, directly and substantively related to, and must clearly involve inculcating or carrying out the religious creed and/or beliefs of the denomination. The position must be traditionally recognized by the religious organization or similar organizations as a compensated occupation within the denomination. A religious occupation, in contrast to a vocation, must be salaried, or otherwise compensated by stipend, room and board, or other support that is reflected in an alien's W-2, wage transmittal statements, or income tax returns. Examples of occupations that can qualify as a religious occupation include liturgical workers, religious instructors, religious counselors, cantors, catechists, missionaries, religious translators, religious broadcasters, youth ministers, religious choir directors or music ministers, or ritual slaughter supervisors. “Religious occupation” does not include positions whose duties are primarily administrative or supportive in nature, and any administrative duties must be incident to the substantive, traditionally religious functions. Examples of non-qualifying administrative and support positions include, but are not limited to: janitors; maintenance workers; clerks; secretaries; fund raisers; secular musicians; secular translators; those who sell literature, volunteer as ushers during worship services, serve in the choir, volunteer part-time to assist the clergy or teach religion classes; or similar persons engaged in primarily secular, administrative or support duties. It is expected that members of religious organizations volunteer their time even in traditionally religious functions, and immigration status will not be conferred to lay persons who have arranged to be paid for traditionally volunteer work in order to obtain immigration status. Religious study or training for religious work does not constitute religious work, but a religious worker may pursue study or training incident to status. For nonimmigrant purposes, prior experience or training is not required, the petition must demonstrate that the alien truly intends to take up the described religious occupation, and the position must require at least 20 hours per week of compensated service. For immigrant petitions only, the position offered must be permanent and full-time, and the alien's experience in the preceding years must have been full-time. Full-time is considered to be 35 hours per week. *Religious vocation* means a formal lifetime commitment to a religious way of life. There must be evidence that the religious denomination has a traditional established class of individuals whose lives are dedicated to religious practices and functions, as distinguished from the secular members of the religion. It requires that the individual make a formal lifetime commitment through vows, or other investitures or ceremonies, to this class of individuals and religious way of life. Examples of individuals with a religious vocation include, but are not limited to nuns, monks, and religious brothers and sisters. *Religious worker* means an individual engaged in and, according to the denomination's standards, qualified for a religious occupation or vocation, whether or not in a professional capacity. Such individuals may work in a religious vocation if they have made a formal lifetime commitment to a religious way of life and in a religious occupation if the duties predominantly involve traditional religious functions.
(5)*Form and filing requirements* . The Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, along with the fee specified in 8 CFR 103.7(b)(1), and supporting evidence must be filed at the appropriate USCIS service center. Such a petition must be filed by the prospective United States employer on behalf of an alien who is either abroad or in the United States. After the date stated in section 101(a)(27)(C) of the Act (as amended), immigration or adjustment of status on the basis of this section is limited solely to ministers of religion.
(6)*Attestation* . The Form I-360 contains an attestation section which an authorized official of the prospective employer must complete, sign and date. The term “prospective employer” refers to the organization or institution where the alien will be performing the proffered duties. The attestation includes a statement which certifies under penalty of perjury that the contents of the attestation are true and correct to the best of his or her knowledge. This attestation must be submitted by the prospective employer along with the petition. In the Form I-360, the prospective employer must specifically attest to the following:
(i)That the prospective employer is a bona fide non-profit religious organization or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986;
(ii)The number of members of the prospective employer's organization, the number and positions (with brief descriptions) of employees in the prospective employer's organization, the number of aliens holding R visa status currently employed or employed within the past five years by the prospective employer's organization, and the number of special immigrant religious worker and R visa petitions and applications filed by or on behalf of any aliens to be employed as ministers or religious workers for the prospective employer in the past five years;
(iii)The title of the position offered to the alien, the complete package of compensation being offered and a detailed description of the alien's proposed daily duties;
(iv)That the alien will be employed at least 35 hours per week and such services are needed on a full-time basis;
(v)The specific location(s) of the proposed employment;
(vi)That the alien has worked as a compensated, full-time religious worker for the two years immediately preceding the filing of the application and is otherwise qualified for the position offered;
(vii)That the alien has been a member of the denomination for at least two years immediately preceding the filing of the application;
(viii)That the alien will not be engaged in secular employment, and any compensation for religious work will be paid to the alien by the attesting employer;
(ix)That the prospective employer has the ability and intention to compensate the alien at a level at which the alien and accompanying family members will not become a public charge, and that funds to pay the alien's compensation do not include any monies obtained from the alien, excluding reasonable donations or tithing to the religious organization, and that the petitioner will notify USCIS of any changes to the alien's employment; and
(7)*Evidence relating to the petitioning organization.* A petition shall include the following initial evidence relating to the petitioning organization:
(i)A currently valid determination letter from the Internal Revenue Service
(IRS)showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or
(ii)For religious organizations that are recognized as tax exempt under a group tax exemption, a currently valid determination letter from the IRS establishing that the group is an organization as described in sections 509(a)(1) of the Internal Revenue Code of 1986, and that the group's tax exemption is in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or
(iii)For a bona fide organization which is affiliated with the religious denomination, if the organization was granted a section 501(c)(3) exemption as something other than a religious organization:
(A)A currently valid determination letter from the IRS showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, not necessarily as a religious organization;
(B)Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization;
(C)Organizational literature, such as brochures, calendars, flyers and other literature describing the religious purpose and nature of the activities of the organization;
(D)A Religious Denomination Certification. The Form I-360 contains a “Religious Denomination Certification” section which the petitioner must have the attesting religious organization complete, sign and date. The “Religious Denomination Certification” includes a statement certifying under penalty of perjury that the petitioning organization is affiliated with the religious denomination. The certification must be submitted by the petitioner along with the petition and attestation; and
(E)A currently valid determination letter from the IRS evidencing that the attesting organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization.
(8)*Evidence relating to the qualifications of a minister.* If the alien is a minister, the petitioner must submit as initial evidence a copy of the alien's certificate of ordination or similar documents reflecting acceptance of the alien's qualifications as a minister in the religious denomination, as well as evidence that the alien has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation that establishes that the theological institution is accredited by the denomination. For denominations that do not require a prescribed theological education, the petitioner must submit evidence of the denomination's requirements for ordination to minister, evidence of the duties allowed to be performed by virtue of ordination, evidence of the denomination's gradations of ordination, if any, and evidence of the alien's completion of the denomination's requirements for ordination.
(9)*Evidence relating to the alien's prior employment.* Initial evidence must include evidence of the alien's prior religious employment. If the alien was employed in the United States during the two years immediately preceding the filing of the application, the petitioner must submit the alien's W-2 wage statements, the employer's wage transmittal statements, and the transcripts of the alien's processed income tax returns for the preceding two years reflecting such work. If more than six months of such employment is not yet reflected in the documents such as W-2s, wage transmittal statements or income tax returns required to be completed or filed at the time of filing the petition, then pay stubs relating to payment for such employment shall also be presented for work not yet reflected in such documents. If the alien was employed outside the United States during such two years, the petitioner must submit comparable evidence of compensation and religious work. Aliens who have taken a vow of poverty or similar formal lifetime commitment to a religious way of life may submit evidence of such commitment in lieu of the above documentary requirements, but must also submit evidence of all financial support (including stipends, room and board, or other support) received in the preceding two years. Qualifying prior experience (that is, during the two years immediately preceding the petition or preceding any acceptable break in the continuity of the religious work) must have occurred after the age of 14, and, if acquired in the United States, must have been authorized under United States immigration law.
(10)*Audits, inspections, assessment, verification, spot checks, and site visits.* The supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization's facilities, an interview with the organization's officials, a review of selected organization records relating to compliance with immigration laws and regulations, and an interview with any other individuals or review of any other records that the USCIS considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, or satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition. PART 214—NONIMMIGRANT CLASSES 3. The authority citation for part 214 continues to read as follows: Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1372, 1379, 1731-32; section 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, 8 CFR part 2. 4. Section 214.2 is amended by revising paragraph
(r)to read as follows: § 214.2 Special requirements for admission, extension, and maintenance of status.
(r)*Religious workers* —(1) *General.* Under section 101(a)(15)(R) of the Act, an alien who, for at least the two years immediately preceding the time of application for admission, has been a member of a religious denomination having a bona fide nonprofit religious organization in the United States, may be admitted temporarily to the United States to carry on the activities of a religious worker for a period not to exceed five years. The alien must be coming to or remaining in the United States solely for one of the following purposes:
(i)As an employee of a religious organization within the denomination, or of a bona fide organization which is affiliated with the religious denomination, at the request of the organization;
(ii)To carry on the vocation of a minister of the religious denomination; or
(iii)To work in a religious vocation or occupation.
(2)An alien may work for more than one qualifying employer as long as each qualifying employer submits the Form I-129 and R Classification Supplement, and, where applicable, accompanying documentation, submitted either in a single petition or through an additional petition.
(3)*Definitions.* As used in this paragraph (r), as applicable to the proposed employment and to the membership in the two years preceding the filing of the petition, the definitions of terms set forth at 8 CFR 204.5(m)(1), concerning immigrant religious workers, shall apply to nonimmigrant religious workers.
(4)*Requirements for admission/change of status; time limits* —(i) *Principal applicant.* If otherwise admissible, an alien who meets the requirements of section 101(a)(15)(R) of the Act may be admitted as an R-1 alien or changed to R-1 status for an initial period of up to one year from date of initial admission. If visa-exempt, the alien must present the original Notice of Action, Form I-797 approval notice (not a copy), at the port of entry.
(ii)*Spouse and children.* The spouse and children of an R-1 alien who are accompanying or following to join the principal may be accorded R-2 status and admitted or have their R-2 status extended for the same period of time and subject to the same limits as the principal, regardless of the time such spouse and children may have spent in the United States in R-2 status. Neither the spouse nor children may accept employment while in the United States in R-2 status.
(iii)*Extension of stay or readmission.* An R-1 alien who is maintaining status or is seeking readmission and who satisfies the eligibility requirements of this section may be granted an extension of R-1 stay or readmission in R-1 status for the validity period of the petition, up to 2 years, provided the total period of time spent in R-1 status does not exceed a maximum of five years. A petition for an extension of R-1 status must be filed by the United States employer on Form I-129, Petition for a Nonimmigrant Worker, along with the R Classification Supplement containing the attestation, the fee specified in 8 CFR 103.7(b)(1), and the supporting evidence, at the appropriate USCIS service center.
(iv)*Limitation on total stay.* An alien who has spent five years in the United States under section 101(a)(15)(R) of the Act may not be readmitted to, or receive extension of stay in, the United States under the R visa classification unless the alien has resided abroad and been physically present outside the United States for the immediate prior year. The limitations in this paragraph shall not apply to R-1 aliens who did not reside continually in the United States and whose employment in the United States was seasonal or intermittent or was for an aggregate of six months or less per year. In addition, the limitations shall not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment. To qualify for this exception, the petitioner and the alien must provide clear and convincing proof that the alien qualifies for such an exception. Such proof shall consist of evidence such as arrival and departure records, transcripts of processed income tax returns, and records of employment abroad. The primary purpose of the spouse or child must be to join or accompany the principal R-1 alien in the United States. USCIS may limit, deny or revoke on notice any stay for an R-2 that is not primarily intended for this purpose or is intended to evade the normal requirements of the nonimmigrant classification that otherwise would apply when the principal alien is absent from the United States.
(5)*Jurisdiction and procedures for obtaining R-1 status.* A petitioner seeking to classify an alien as a religious worker, by initial petition or by change of status, shall file a petition on Form I-129, Petition for a Nonimmigrant Worker, along with the R Classification Supplement containing the attestation, the fee specified in 8 CFR 103.7(b)(1), and supporting evidence, at the appropriate USCIS service center. The Form I-129, Petition for a Nonimmigrant Worker, must be submitted by the employer in the United States seeking to employ the religious worker.
(6)*Attestation.* The Form I-129, Petition for a Nonimmigrant Worker, contains an attestation section in the R Classification Supplement, which the authorized official of the prospective employer must complete, sign and date. The term “prospective employer” refers to the organization or institution where the alien will be performing the proffered duties. The attestation includes a statement which certifies under penalty of perjury that the contents of the attestation are true and correct to the best of his or her knowledge. This attestation must be submitted by the prospective employer along with the petition. In the Form I-129 R Classification Supplement, the prospective employer must specifically attest to the following:
(i)That the prospective employer is a bona fide non-profit religious organization or a bona fide organization which is affiliated with the religious denomination and is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986;
(ii)The number of members of the prospective employer's organization, the number and positions (with brief descriptions) of employees in the prospective employer's organization, the number of aliens holding R visa status currently employed or employed within the past five years by the prospective employer's organization, and the number of special immigrant religious worker and R visa petitions and applications filed by or on behalf of any aliens to be employed as ministers or religious workers for the prospective employer in the past five years;
(iii)The title of the position offered to the alien, the complete package of compensation being offered and a detailed description of the alien's proposed daily duties;
(iv)That the position that the alien is being offered requires at least 20 hours per week of compensated service;
(v)The specific location(s) of the proposed employment and that the alien is otherwise qualified for the position offered;
(vi)That the alien has been a member of the denomination for at least 2 years;
(vii)That, if the position is not a religious vocation, the alien will not be engaged in secular employment, and any compensation for religious work will be paid to the alien by the attesting employer,
(viii)That the prospective employer has the ability and intention to compensate and otherwise support (through housing, for example) the alien at a level at which the alien and accompanying family members will not become public charges, and that funds to pay the alien's compensation do not include any monies obtained from the alien, excluding reasonable donations or tithing to the religious organization; and
(ix)That the petitioner will notify USCIS of any changes to the alien's employment and reapply by filing a new Form I-129 on behalf of the alien within 60 days of the occurrence of any change.
(7)*Evidence relating to the petitioning organization.* The petitioner must submit the following initial evidence relating to the petitioning organization:
(i)A currently valid determination letter from the Internal Revenue Service
(IRS)showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or
(ii)For religious organizations that are recognized as tax exempt under a group tax exemption, a currently valid determination letter from the IRS establishing that the group is an organization as described in sections 509(a)(1) of the Internal Revenue Code of 1986 or subsequent amendment, and that the group's tax exemption is in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization; or
(iii)For a bona fide organization which is affiliated with the religious denomination, if the organization was granted a section 501(c)(3) exemption as something other than a religious organization:
(A)A currently valid determination letter from the IRS showing that the organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, (not necessarily as a religious organization),
(B)Documentation that establishes the religious nature and purpose of the organization, such as a copy of the organizing instrument of the organization that specifies the purposes of the organization,
(C)Organizational literature, such as brochures, calendars, flyers and other literature describing the religious purpose and nature of the activities of the organization, and
(D)A Religious Denomination Certification. The Form I-129 contains a “Religious Denomination Certification” section which the petitioner must have the attesting religious organization complete, sign and date. The “Religious Denomination Certification” includes a statement certifying under penalty of perjury that the petitioning organization is affiliated with the religious denomination. The certification must be submitted by the petitioner along with the petition and attestation.
(E)A currently valid determination IRS letter evidencing that the attesting organization is exempt from taxation in accordance with section 501(c)(3) of the Internal Revenue Code of 1986, as a religious organization.
(8)*Evidence relating to the qualifications of a minister.* If the alien is a minister, the petitioner must submit as initial evidence a copy of the alien's certificate of ordination or similar documents reflecting acceptance of the alien's qualifications as a minister in the religious denomination, as well as evidence that the alien has completed any course of prescribed theological education at an accredited theological institution normally required or recognized by that religious denomination, including transcripts, curriculum, and documentation which establishes that the theological education is accredited by the denomination. For denominations that do not require a prescribed theological education, the petitioner must submit evidence of the denomination's requirements for ordination to minister, evidence of the duties allowed to be performed by virtue of ordination, evidence of the denomination's gradations of ordination, if any, and evidence of the alien's completion of the denomination's requirements for ordination.
(9)*Change or addition of employers; employer obligations.* An alien admitted in the R-1 classification shall engage only in employment that is consistent with the approved petition, the attestation contained in the supplement and supporting documents submitted to USCIS. A different or additional employer seeking to employ the alien must obtain prior approval of such employment through the filing of an additional Form I-129, Petition for a Nonimmigrant Worker, with the R Classification Supplement, supporting documents and the appropriate fee. Any compensated work for an unauthorized religious organization will constitute a failure to maintain status within the meaning of section 237(a)(1)(C)(i) of the Act. When an alien who has obtained R-1 classification is working less than the required number of hours or has been released from or has otherwise terminated employment before the expiration of a period of authorized R-1 stay, the employer through whom R-1 classification has been obtained must notify DHS within 7 days of such release or termination, using reporting procedures set forth in the instructions to Form I-129, Petition for a Nonimmigrant Worker, which can be found on the USCIS Internet Web site at *http://www.uscis.gov.*
(10)*Evidence of previous R-1 employment.* Any request for R-1 status, admission beyond the first year of R-1 status, or any period of extension of stay, must include initial evidence of the previous R-1 employment in the form of the alien's W-2 wage statements, the employer's wage transmittal statements, and transcripts of the alien's processed income tax returns for any preceding period spent in the United States in R-1 status. For any period of such employment not yet reflected in the documents such as W-2s, wage transmittal statements or income tax returns required to be completed or filed at the time of filing the petition, then pay stubs relating to payment for such employment shall be presented for work not yet reflected in such documents. Aliens who have taken a vow of poverty or similar formal lifetime commitment to a religious way of life may submit evidence of such commitment in lieu of the above documentary requirements, but must also submit evidence of all financial support (including stipends, room and board, or other support) received while in R-1 status.
(11)*Nonimmigrant intent.* The filing or approval of a permanent labor certification or the filing of a preference petition for an alien shall not be a basis for denying an R petition, a request to extend such a petition, or the alien's application for admission, change of status, or extension of stay. The alien may legitimately come to the United States for a temporary period as an R nonimmigrant and depart voluntarily at the end of his or her authorized stay and, at the same time, lawfully seek to become a permanent resident of the United States.
(12)*Audits, inspections, assessment, verification, spot checks, and site visits.* The supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, up to and including an on-site inspection of the petitioning organization. The inspection may include a tour of the organization's facilities, an interview with the organization's officials, a review of selected organization records relating to compliance with immigration laws and regulations, and an interview with any other individuals or review of any other records that the USCIS considers pertinent to the integrity of the organization. An inspection may include the organization headquarters, or satellite locations, or the work locations planned for the applicable employee. If USCIS decides to conduct a pre-approval inspection, satisfactory completion of such inspection will be a condition for approval of any petition. PART 299—IMMIGRANT FORMS 5. The authority citation for part 299 continues to read as follows: Authority: 8 U.S.C. 1101 and note, 1103; 8 CFR part 2. 6. Section 299.1 is amended in the table by revising the entries for Forms “I-129” and “I-360”, to read as follows: § 299.1 Prescribed forms. Form No. Edition date Title * * * * * * * I-129 XX-XX-XX Petition for a Nonimmigrant Worker. * * * * * * * I-360 XX-XX-XX Petition for Amerasian Widow(er) or Special Immigrant. * * * * * * * 7. Section 299.5 is amended in the table, by revising the entries for Forms “I-129” and “I-360”, to read as follows: § 299.5 Display of control numbers. Form No. Form title Currently assigned OMB control No. * * * * * * * I-129 Petition for a Nonimmigrant Worker 1615-0009 * * * * * * * I-360 Petition for Amerasian Widow(er) or Special Immigrant 1615-0020 * * * * * * * Dated: April 16, 2007. Michael Chertoff, Secretary. [FR Doc. E7-7743 Filed 4-24-07; 8:45 am] BILLING CODE 4410-10-P DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2550 RIN 1210-AB07 Fee and Expense Disclosures to Participants in Individual Account Plans AGENCY: Employee Benefits Security Administration, Department of Labor. ACTION: Request for information. SUMMARY: The Department of Labor is currently reviewing the rules under the Employee Retirement Income Security Act (ERISA) applicable to the disclosure of plan administrative and investment-related fee and expense information to participants and beneficiaries in participant-directed individual account plans (e.g., 401(k) plans). The purpose of this review is to determine to what extent rules should be adopted or modified, or other actions should be taken, to ensure that participants and beneficiaries have the information they need to make informed decisions about the management of their individual accounts and the investment of their retirement savings. The purpose of this notice is to solicit views, suggestions and comments from plan participants, plan sponsors, plan service providers and members of the financial community, as well as the general public, on this important issue. DATES: Written or electronic responses should be submitted to the Department of Labor on or before July 24, 2007. ADDRESSES: *Responses:* To facilitate the receipt and processing of responses, EBSA encourages interested persons to submit their responses electronically by e-mail to *e-ORI@dol.gov* , or by using the Federal eRulemaking portal at *http://www.regulations.gov* (follow instructions for submission of comments). Persons submitting responses electronically are encouraged not to submit paper copies. Persons interested in submitting written responses on paper should send or deliver their responses (preferably, at least three copies) to the Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, DC 20210, Attention: Fee Disclosure RFI. All written responses will be available to the public, without charge, online at *http://www.regulations.gov* and *http://www.dol.gov/ebsa* , and at the Public Disclosure Room, N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: Katherine D. Lewis, Office of Regulations and Interpretations, Employee Benefits Security Administration, Room N-5669, U.S. Department of Labor, Washington, DC 20210, telephone
(202)693-8510. This is not a toll-free number. SUPPLEMENTARY INFORMATION: A. Background According to the Department's most recent data, an estimated 41 million participants in 401(k) plans are permitted to direct the investment of all or a portion of their plan accounts. While contributions and earnings increase retirement savings in 401(k) and other participant-directed plans, fees and expenses charged to participant accounts can substantially reduce that growth. For this reason, it is important that plan participants, particularly those responsible for making their own investment decisions, consider what and how fees and expenses are charged to their individual accounts. In general, the purpose of this Request for Information
(RFI)is to obtain, from the perspective of plan participants, plan sponsors and plan service providers, information concerning:
(1)What administrative and investment-related fee and expense information participants should consider;
(2)the manner in which that information should be provided or made available to participants; and,
(3)who should be responsible for providing the information. Responses to this RFI will be used to assist the Department in determining to what extent rules should be developed or modified, or other courses of action pursued, to improve the information currently available to participants and beneficiaries relating to administrative and investment-related fees and expenses, recognizing that in many instances participants may have to bear the cost of disclosing such information. In considering the questions set forth in the RFI, commenters are encouraged to take into consideration the following initiatives. Section 404(c) Regulation In 1992, the Department adopted a final regulation under section 404(c) of ERISA. 1 In general, the regulation sets forth the conditions under which participants are considered to be exercising control over the assets in their accounts, thereby relieving fiduciaries from liability for the results of participants' investment decisions. Among other matters, the regulation, at § 2550.404c-1(b)(2)(i)(B), conditions relief upon participants and beneficiaries being provided and having access to specific information concerning their plan and the investment options offered thereunder. In framing the disclosure requirements, the Department attempted to strike a balance between what it believed participants needed to make informed investment decisions and the burdens and costs to participants and plan sponsors resulting from a broader disclosure mandate. There have been a number of changes since 1992 in what and how information is communicated to plan participants and investors generally. For this reason, this RFI seeks information on what changes, if any, should be made to the section 404(c) regulation. An example of one such change is the use of summary or profile prospectuses by mutual funds as a means by which to communicate basic information to investors. The use of profile prospectuses as a permissible means by which to communicate to participant-investors for purposes of compliance with the section 404(c) requirements was addressed in Advisory Opinion 2003-11A. 2 1 See Final Regulation Regarding Participant Directed Individual Account Plans (ERISA Section 404(c) Plans), 57 FR 46,906 (Oct.13, 1992) (codified at 29 CFR § 2550.404c-1). This regulation may be accessed at *www.dol.gov/dol/allcfr/title_29/Part_2550/29CFR2550.404c-1.htm.* 2 This advisory opinion may be accessed at *www.dol.gov/ebsa/regs/aos/ao2003-11a.html* (September 8, 2003). To facilitate consideration of the section 404(c) disclosure requirements, the applicable provisions of section 2550.404c-1(b)(2)(i) are set forth below in relevant part:
(B)The participant or beneficiary is provided or has the opportunity to obtain sufficient information to make informed decisions with regard to investment alternatives available under the plan, and incidents of ownership appurtenant to such investments. For purposes of this subparagraph, a participant or beneficiary will not be considered to have sufficient investment information unless—
(1)The participant or beneficiary is provided by an identified plan fiduciary (or a person or persons designated by the plan fiduciary to act on his behalf):
(ii)A description of the investment alternatives available under the plan and, with respect to each designated investment alternative, a general description of the investment objectives and risk and return characteristics of each such alternative, including information relating to the type and diversification of assets comprising the portfolio of the designed investment alternative;
(v)A description of any transaction fees and expenses which affect the participant's or beneficiary's account balance in connection with purchases or sales of interests in investment alternatives (e.g., commissions, sales load, deferred sales charges, redemption or exchange fees);
(vi)The name, address, and phone number of the plan fiduciary (and, if applicable, the person or persons designated by the plan fiduciary to act on his behalf) responsible for providing the information described in paragraph (b)(2)(i)(B)(2) upon request of a participant or beneficiary and a description of the information described in paragraph (b)(2)(i)(B)(2) which may be obtained on request;
(viii)In the case of an investment alternative which is subject to the Securities Act of 1933, and in which the participant or beneficiary has no assets invested, immediately following the participant's or beneficiary's initial investment, a copy of the most recent prospectus provided to the plan. This condition will be deemed satisfied if the participant or beneficiary has been provided with a copy of such most recent prospectus immediately prior to the participant's or beneficiary's initial investment in such alternative;
(ix)Subsequent to an investment in a investment alternative, any materials provided to the plan relating to the exercise of voting, tender or similar rights which are incidental to the holding in the account of the participant or beneficiary of an ownership interest in such alternative to the extent that such rights are passed through to participants and beneficiaries under the terms of the plan, as well as a description of or reference to plan provisions relating to the exercise of voting, tender or similar rights.
(2)The participant or beneficiary is provided by the identified plan fiduciary (or a person or persons designated by the plan fiduciary to act on his behalf), either directly or upon request, the following information, which shall be based on the latest information available to the plan:
(i)A description of the annual operating expenses of each designated investment alternative (e.g., investment management fees, administrative fees, transaction costs) which reduce the rate of return to participants and beneficiaries, and the aggregate amount of such expenses expressed as a percentage of average net assets of the designated investment alternative;
(ii)Copies of any prospectuses, financial statements and reports, and of any other materials relating to the investment alternatives available under the plan, to the extent such information is provided to the plan;
(iii)A list of the assets comprising the portfolio of each designated investment alternative which constitute plan assets within the meaning of 29 CFR 2510.3-101, the value of each such asset (or the proportion of the investment alternative which it comprises), and, with respect to each such asset which is a fixed rate investment contract issued by a bank, savings and loan association or insurance company, the name of the issuer of the contract, the term of the contract and the rate of return on the contract;
(iv)Information concerning the value of shares or units in designated investment alternatives available to participants and beneficiaries under the plan, as well as the past and current investment performance of such alternatives, determined, net of expenses, on a reasonable and consistent basis; and
(v)Information concerning the value of shares or units in designated investment alternatives held in the account of the participant or beneficiary. Advisory Council Report In 2004, the Advisory Council on Employee Welfare and Pension Benefit Plans' Working Group on Fee and Related Disclosures to Participants reviewed the current disclosure requirements applicable to participant-directed individual account plans. Their review sought to assess the adequacy and usefulness of such requirements and to determine whether changes to the requirements would help participants more effectively manage their retirement savings. Focusing on the requirements applicable to section 404(c) plans, the working group issued a report containing a consensus recommendation, which is summarized below: The working group recognizes that providing actual fee information for a particular participant's account over a stated period of time is not justified at this time by the cost of providing that information. Given the current state of technology and recordkeeping practices, it is a complex and costly procedure to sum the total costs to a particular participant's account because of investment changes over time. Nonetheless, the working group saw examples of investment statements showing the expense of each investment option expressed as a ratio for each fund in which a participant was invested as of the date of the statement. The working group believes that this is pertinent information that is helpful in making the investment decision. This information can also be presented in an understandable format. With regard to the section 404(c) regulation, the consensus of the working group, recognizing that different considerations apply to open platform (also known as open brokerage) options in plans, made the following recommendations: The profile prospectus of each investment option should be delivered to each employee upon eligibility to participate. For those options not subject to the prospectus requirements, the working group recommended that the Department should require a disclosure with information substantially similar to the information on the profile prospectus. Providing this information prior to the initial investment decision should eliminate the need to automatically provide a full prospectus or other information concerning the particular investment options elected immediately after the investment options are elected. A participant would still be able to request such materials. Participants must be given materials (like a glossary) that explain the meaning of the terms used in the profile prospectus (or other like document) coincident with the delivery of the profile prospectus. This explanation would include a description of an expense ratio and what it means to have the investment expenses of an investment option expressed as a ratio. Included in this would be a mathematical example demonstrating the calculation necessary to approximately determine the expenses that apply to a particular participant's account investments as of a particular date. Account and investment recordkeepers should be encouraged to develop internet Web sites where participants can research information about plan investment options and review information about their own investment choices. Additionally, these recordkeepers should be encouraged to develop web-based tools for participants to calculate alternative investment scenarios that incorporate assumptions about investment expenses as well as rates of return. Nonetheless, it is not intended that the suggestions in this paragraph be made into requirements. To the extent that an annual statement is provided by the recordkeeper, the statement must provide the expenses of each investment option expressed as a ratio along with other information provided about the investment options. There must also be an identification of the investment expenses that are paid entirely or in part by the plan sponsor. The investment expenses do not include other expenses for general plan maintenance paid by the plan sponsor, including, but not limited to, legal expenses, consulting expenses and accounting expenses. If such investment expenses were paid in part by the plan sponsor, the portion so paid would be identified. Any new requirement implemented under this item 3 [annual statement recommendation] should have a delayed effective date as applied to small and medium sized plans, based on the number of participants. New requirements like those described in this item [annual statement recommendation] could be more costly to implement for such plans than for large plans. Defining what a small to medium size plan is for these purposes should err on the high side. Perhaps plans covering fewer than 500 participants would come within this classification. Delaying the application would likely allow service providers time to design necessary systems to provide the contemplated disclosures in a cost effective manner for such sponsors. The Department should provide a sample model disclosure format that is available on its Web site. This would be a helpful addition to existing tools already provided on its Web site for understanding expenses both from the perspective of a participant and a plan sponsor. Commenters are encouraged to consider the report and recommendations of the working group in reviewing the issues identified in this RFI. This report may be accessed at *www.dol.gov/ebsa/publications/AC_111704_report.html.* GAO Report In November 2006, the Government Accountability Office
(GAO)published Report GAO-07-21 entitled “Private Pensions: Changes Needed to Provide 401(k) Plan Participants and the Department of Labor Better Information on Fees.” This report recommends that, in order to better enable the Department to effectively oversee 401(k) plan fees, the Secretary of Labor should require plan sponsors to report a summary of all fees that are paid out of plan assets or by participants. The summary should list fees by type, particularly investment fees indirectly incurred by participants. Commenters are encouraged to consider the report and recommendations of the GAO in reviewing the issues identified in this RFI, including the GAO's specific recommendation relating to fee disclosure. The GAO report referenced above may be accessed at *www.gao.gov/htext/d0721.html* . B. Issues Under Consideration The purpose of this notice is to solicit views, suggestions and comments from plan participants, plan sponsors, plan service providers and members of the financial community, as well as the general public, as to what extent rules should be adopted or modified, or other action taken, to ensure that participants and beneficiaries have the information they need to make informed decisions about the management of their individual accounts and the investment of their retirement savings. To facilitate consideration of the issues, the Department has set forth below a number of matters with respect to which views, suggestions, comments and information are requested. Interested persons, however, are encouraged to address any other matters they believe to be germane to the Department's consideration of fee and expense disclosure issues. Request for Information Disclosure of Information Relating to Plan Investment Options 1. What basic information do participants need to evaluate investment options under their plans? If that information varies depending on the nature or type of investment option (options offered by a registered investment company, options offered under a group annuity contract, life cycle fund, stable value product, etc.), please include an explanation. 2. What specific information do participants need to evaluate the fees and expenses (such as investment management and 12b-1 fees, surrender charges, market value adjustments, etc.) attendant to investment options under their plans? If that information varies depending on the nature or type of option, or the particular fee arrangement relating to options (e.g., bundled service arrangements), please include an explanation. 3. To what extent is the information participants need to evaluate investment options and the attendant fees and expenses not currently being furnished or made available to them? Should such information be required to be furnished or made available by regulation or otherwise? Who should be responsible for furnishing or making available such information? What, if any, additional burdens and/or costs would be imposed on plan sponsors or plans (plan participants) for such disclosures? 4. Should there be a requirement that information relating to investment options under a plan (including the attendant fees and expenses) be provided to participants in a summary and/or uniform fashion? Such a requirement might provide that: A) all investment options available under a participant-directed individual account plan must disclose information to participants in a form similar to the profile prospectus utilized by registered investment companies; or B) plan fiduciaries must prepare a summary of all fees paid out of plan assets directly or indirectly by participants and/or prepare annually a single document setting forth the expense ratios of all investment options under the plan. 3 Who should be responsible for preparing such documents? Who should bear the cost of preparing such documents? What are the burden/cost implications for plans of making any recommended changes? 3 See recommendations of the GAO as set forth Report GAO-07-21 (November, 2006), *www.gao.gov/htext/d0721.html* . 5. How is information concerning investment options, including information relating to investment fees and expenses, communicated to plan participants, and how often? Does the information or the frequency with which the information is furnished depend on whether the plan is intended to be a section 404(c) plan? 6. How does the availability of information on the internet pertaining to specific plan investment options, including information relating to investment fees and expenses, affect the need to furnish information to participants in paper form or electronically? 7. What changes, if any, should be made to the section 404(c) regulation, to improve the information required to be furnished or made available to plan participants and beneficiaries, and/or to improve likelihood of compliance with the disclosure or other requirements of the section 404(c) regulation? What are the burden/cost implications for plans of making any recommended changes? 8. To what extent should participant-directed individual account plans be required to provide or promote investment education for participants? For example, should plans be required or encouraged to provide a primer or glossary of investment-related terms relevant to a plan's investment options (e.g., basis point, expense ratio, benchmark, redemption fee, deferred sales charge); a copy of the Department's booklet entitled “A Look at 401(k) Fees” ( *www.dol.gov/ebsa/publications/401k_employee.html* ) or similar publication; or investment research services? Should such a publication include an explanation of other investment concepts such as risk and return characteristics of available investment options? Please explain views, addressing costs and other issues relevant to adopting such a requirement. Disclosure of Information Relating to Plan and Individual Account Administrative Fees and Expenses 9. What information is currently furnished to participants about the plan and/or individual administrative expenses charged to their individual account? Such expenses may include, for example: audit fees, legal fees, trustee fees, recordkeeping expenses, individual participant transaction fees, participant loan fees or expenses. 10. What information about administrative expenses would help plan participants, but is not currently disclosed? Please explain the nature and usefulness of such information. 11. How are charges against an individual account for administrative expenses typically communicated to participants? Is such information included as part of a participant's individual account statement or furnished separately? If separately, is the information communicated via paper statements, electronically, or via website access? 12. How frequently is information concerning administrative expenses charged to a participant's account communicated? 13. What, if any, requirements should the Department impose to improve the disclosure of administrative expenses to plan participants? Please be specific as to any recommendation and include estimates of any new compliance costs that may be imposed on plans or plan sponsors. 14. Should charges for administrative expenses be disclosed as part of the periodic benefit statement required under ERISA section 105? General Questions 15. What, if any, distinctions should be considered in assessing the informational needs of participants in plans that intend to meet the requirements of section 404(c) as contrasted with those of participants in plans that do not intend to meet the requirements of section 404(c)? 16. What (and what portion of) plan administrative and investment-related fees and expenses typically are paid by sponsors of participant-directed individual account plans? How and when is such information typically communicated to participants? 17. How would providing additional fee and expense information to participants affect the choices or conduct of plan sponsors and administrators, and/or that of vendors of plan products and services? Please explain any such effects. 18. How would providing additional fee and expense information to participants affect their plan investment choices, plan savings conduct or other plan related behavior? Please explain any such effects and provide specific examples, if available. 19. Please identify any particularly cost-efficient (high-value but inexpensive) fee and expense disclosures to participants, and to the contrary any particularly cost-inefficient ones. Please provide any available estimates of the dollar costs or benefits of such disclosures. Signed at Washington, DC, this 20th day of April 2007. Bradford P. Campbell, Acting Assistant Secretary, Employee Benefits Security Administration, Department of Labor. [FR Doc. E7-7884 Filed 4-24-07; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 334 United States Marine Corps Restricted Area and Danger Zone, Neuse River and Tributaries, Marine Corps Air Station Cherry Point, NC AGENCY: United States Army Corps of Engineers, DoD. ACTION: Notice of proposed rulemaking and request for comments. SUMMARY: The Corps of Engineers is proposing to amend its regulations to designate an existing rifle range fan as a danger zone. The military exercise area is located within the Rifle Range of Marine Corps Air Station Cherry Point, North Carolina, along the Neuse River. The danger zone will only be activated by the Marine Corps Air Station Cherry Point during range operational hours. The Marine Corps will advise residents in the vicinity of the range fan thus ensuring their safety by alerting them to temporary potential hazardous conditions which may exist as a result of small arms exercises. There will be no change in the use of the existing exercise area. The area, however, needs to be marked on navigation charts to insure security and safety for the public. Entry points into the danger zone will be prominently marked with signage indicating the boundary of the danger zone. The placement of aids to navigation and regulatory markers will be installed in accordance with the requirements of the United States Coast Guard. If the proposed signage exceeds nationwide permit and/or regional general permit conditions, the Commander, United States Marine Corps, Marine Corps Air Station Cherry Point, North Carolina will seek additional Department of the Army authorizations. DATES: Written comments must be submitted on or before May 25, 2007. ADDRESSES: You may submit comments, identified by docket number COE-2007-0011, by any of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. *E-mail: david.b.olson@usace.army.mil.* Include the docket number, COE-2007-0011, in the subject line of the message. *Mail:* U.S. Army Corps of Engineers, *ATTN:* CECW-CO (David B. Olson), 441 G Street, NW., Washington, DC 20314-1000. *Hand Delivery/Courier:* Due to security requirements, we cannot receive comments by hand delivery or courier. *Instructions:* Direct your comments to docket number COE-2007-0011. All comments received will be included in the public docket without change and may be made available on-line at *http://www.regulations.gov* , including any personal information provided, unless the commenter indicates that 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 *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an anonymous access system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail directly to the Corps without going through *http://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, we recommend 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 we cannot read your comment because of technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic comments should avoid the use of any special characters, any form of encryption, and be free of any defects or viruses. *Docket:* For access to the docket to read background documents or comments received, go to *www.regulations.gov* . All documents in the docket are listed. Although listed in the index, some information is not publicly available, such as 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. Consideration will be given to all comments received within 30 days of the date of publication of this notice. FOR FURTHER INFORMATION CONTACT: Mr. David Olson, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at
(202)761-4922, Mr. Scott Jones, Corps of Engineers, Wilmington District, Regulatory Branch, at
(252)975-1616, or Ms. Tracey Wheeler, Corps of Engineers, Wilmington District, Regulatory Branch, at
(252)975-1616. SUPPLEMENTARY INFORMATION: Pursuant to its authorities in Section 7 of the Rivers and Harbors Act of 1917 (40 Stat. 266; 33 U.S.C. 1) and Chapter XIX of the Army Appropriations Act of 1919 (40 Stat. 892; 33 U.S.C. 3), the Corps proposes to amend 33 CFR 334.430 by adding a danger zone along the Neuse River as described below. The regulations governing the restricted area are not proposed to be changed. Procedural Requirements a. Review Under Executive Order 12866 This proposed rule is issued with respect to a military function of the Defense Department and the provisions of Executive Order 12866 do not apply. b. Review Under the Regulatory Flexibility Act This proposed rule has been reviewed under the Regulatory Flexibility Act (Pub. L. 96-354) which requires the preparation of a regulatory flexibility analysis for any regulation that will have a significant economic impact on a substantial number of small entities ( *i.e.* , small businesses and small governments). Unless information is obtained to the contrary during the public notice comment period, the Corps expects that the establishment of this danger zone would have practically no economic impact on the public, result in no anticipated navigational hazard, or interfere with existing waterway traffic. This proposed rule, if adopted, will have no significant economic impact on small entities. c. Review Under the National Environmental Policy Act Due to the administrative nature of this action and because there is no intended change in the use of the area, the Corps expects that this regulation, if adopted, will not have a significant impact to the quality of the human environment and, therefore, preparation of an environmental impact statement will not be required. An environmental assessment will be prepared after the public notice period is closed and all comments have been received and considered. The environmental assessment may be reviewed at the District office listed at the end of FOR FURTHER INFORMATION CONTACT , above. d. Unfunded Mandates Act This proposed rule does not impose an enforceable duty on the private sector and, therefore, it is not a Federal private sector mandate and it is not subject to the requirements of either Section 202 or Section 205 of the Unfunded Mandates Act. We have also found under Section 203 of the Act that small governments will not be significantly and uniquely affected by this rulemaking. List of Subjects in 33 CFR Part 334 Danger zones, Marine safety, Navigation (water), Restricted areas, Waterways. For the reasons set out in the preamble, the Corps proposes to amend 33 CFR part 334, as follows: PART 334—DANGER ZONE AND RESTRICTED AREA REGULATIONS 1. The authority citation for part 334 continues to read as follows: Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3). 2. Section 334.430 is revised to read as follows: § 334.430 Neuse River and tributaries at Marine Corps Air Station Cherry Point, North Carolina; restricted area and danger zone.
(a)*The restricted area.* That portion of Neuse River within 500 feet of the shore along the reservation of the Marine Corps Air Station, Cherry Point, North Carolina, extending from the mouth of Hancock Creek to a point approximately 6,800 feet west of the mouth of Slocum Creek, and all waters of Hancock and Slocum Creeks and their tributaries within the boundaries of the reservation.
(b)*The danger zone.* The waters within an area beginning at latitude 34.923425° N, longitude—76.853222° W; thence northeasterly across Hancock Creek to latitude 34.925258° N, longitude—76.849864° W; continuing northeasterly to latitude 34.933382° N, longitude—76.835081° W; thence northwesterly to the Neuse River shoreline at latitude 34.936986° N, longitude—76.841197° W, continuing northwesterly to latitude 34.943275° N, longitude—76.852169° W; thence southwesterly along the shorelines to latitude 34.935111° N, longitude—76.859078° W; thence southeasterly along Hancock Creek shoreline to the point of origin.
(c)*The regulations.*
(1)Except in cases of extreme emergency, all persons or vessels, other than those vessels operated by the U.S. Navy or Coast Guard, are prohibited from entering the restricted area or danger zone without prior permission of the enforcing agency.
(2)Entry points into the danger zone will be prominently marked with signage indicating the boundary of the danger zone.
(3)Firing will take place both day and night at irregular periods throughout the year. Appropriate warnings will be issued through official government and civilian channels serving the region. Such warnings will specify the time and duration of operations and give such other pertinent information as may be required in the interest of safety. Upon completion of firing or if the scheduled firing is cancelled for any reason, the warning signals marking the danger zone will be removed.
(4)Except as otherwise provided in this section, the danger zone will be open to general public access. Vessels, watercraft, and other vehicles may proceed through the danger zone.
(5)The regulations in this section shall be enforced by the Commanding Officer, Marine Corps Air Station Cherry Point, North Carolina, and/or persons or agencies as he/she may designate. Lawrence A. Lang, Acting Chief, Operations Directorate of Civil Works. [FR Doc. E7-7901 Filed 4-24-07; 8:45 am] BILLING CODE 3710-92-P POSTAL SERVICE 39 CFR Part 111 Revised Standards for Mailing Sharps Waste and Other Regulated Medical Waste AGENCY: Postal Service. ACTION: Proposed rule. SUMMARY: The Postal Service TM is proposing to revise the mailing standards for medical waste so that medical professionals can more easily use the mail to ship waste to disposal sites. For over 15 years we have safely permitted approved vendors to use the mail for return of sharps and other regulated medical waste for disposal. Under our current standards, mail-back medical waste containers are most often used by individuals who self-inject medications to control diseases such as diabetes and arthritis. By increasing the maximum allowable weight of medical waste mail-back containers and at the same time requiring additional packaging safeguards, we intend to provide small medical offices the option of using the mail for sending medical waste for disposal. This proposal would allow medical professionals a safe, easy, and cost-effective means of disposing of sharps and other regulated medical waste. DATES: We must receive your comments on or before May 25, 2007. ADDRESSES: Mail or deliver written comments to the Manager, Mailing Standards, Postal Service, 475 L'Enfant Plaza SW., Room 3436, Washington, DC 20260-3436. You may inspect and photocopy all written comments at the Postal Service Headquarters Library, 475 L'Enfant Plaza SW., 11th Floor N, Washington, DC between 9 a.m. and 4 p.m., Monday through Friday. FOR FURTHER INFORMATION CONTACT: Bert Olsen, 202-268-7276. SUPPLEMENTARY INFORMATION: This proposal would increase the use of the mail for shipping medical waste while improving packaging requirements so that these items continue to be safe while transported in the mail. Currently, mailing standards require that primary sharps receptacles not exceed 3 gallons and that primary receptacles for other regulated medical waste not exceed 5 gallons. This proposal would allow for a single larger primary receptacle that could accommodate several pre-primary sharps receptacles (sharps receptacles normally used in doctors' offices) as well as several tie-closed bags of other regulated medical waste. This change would add additional receptacles (pre-primary) to the currently required triple-packaging system and therefore would increase protection of the contents. The pre-primary receptacles may be different in size and design. The primary receptacle that holds the pre-primary receptacles and the bags of other regulated medical waste must be capable of passing all current package tests. The new standards would set the total mailpiece weight limit to 35 pounds for packages approved as “Medical Professional Packaging.” All other medical waste mailpieces would be required to conform to the current 25-pound weight limit. Although we are exempt from the notice and comment requirements of the *Administrative Procedure Act* [5 U.S.C. of 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), we invite public comment on the following proposed revisions to *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM®), incorporated by reference in the *Code of Federal Regulations* . See 39 CFR 111.1. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, 39 CFR part 111 is proposed to be amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001; chapter 36 of Title 39: Pub. L. No 109-435, 120 Stat. 3198 (2006). 2. Revise the following sections of the *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 600 Basic Standards for All Mailing Services 601 Mailability 10.0 Hazardous Materials 10.17 Infectious Substances (Hazard Class 6, Division 6.2) 10.17.6 Sharps Waste and Other Mailable Regulated Medical Waste *[Add a new second sentence to item b5 as follows:]* * * * Except for Medical Professional Packages as identified in 10.17.6c, which may not weigh more than 35 pounds.* * * *[Renumber items 6c through 6f as new 6d through 6g. Add new item 6c as follows:]* c. Medical Professional Packaging. One primary receptacle larger than 5 gallons in volume may be used for mailing pre-primary sharps receptacles (sharps receptacles normally used in doctors' offices) and other regulated medical waste under the following conditions: 1. The mailpiece must meet all the requirements in 10.17.6, except for the primary receptacle capacity limits in 10.17.6b1. 2. Only rigid, securely closed, puncture- and leak-resistant pre-primary sharps receptacles that meet or exceed Occupational Safety and Health Administration standards may be placed inside the primary receptacle. Each pre-primary sharps container may contain no more than 50 ml (1.66 ounces) of residual waste liquid. Several pre-primary sharps receptacles may be enclosed in the single primary receptacle. 3. Multiple tie-closed plastic bags of regulated medical waste may be placed inside the single primary receptacle. 4. The primary receptacle must be lined with a plastic bag at least 4 mil in thickness and include sufficient absorbent material within the liner to absorb all residual liquid in the primary receptacle. 5. The mailpiece must not weigh more than 35 pounds. *[Renumber items d1 through d7 as new d2 through d8. Add new number d1 as follows:]* 1. For Medical Professional Packages, the additional marking, “Medical Professional Packaging,” must be clearly printed in lettering at least 2 inches high on the address side of the outer shipping container. *[Add two new sentences to the introductory text renumbered item f as follows:]* f. *Testing Criteria.* Packages tested for approval as Medical Professional Packaging containers may not be tested using pre-primary containers that are currently or have previously been approved as USPS primary containers. In addition, test reports must identify by brand name the pre-primary containers that were used during testing.* * * We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes if our proposal is adopted. Neva R. Watson, Attorney, Legislative. [FR Doc. E7-7816 Filed 4-24-07; 8:45 am] BILLING CODE 7710-12-P POSTAL SERVICE 39 CFR Part 111 Revised Standards for Mailing Lithium Batteries AGENCY: Postal Service. ACTION: Proposed rule. SUMMARY: The Postal Service is proposing to revise our mailing standards for lithium batteries. Currently, our standards limit customers and battery manufacturers from using the mail to send consumer-type lithium batteries, and prohibit the mailing of devices powered by lithium batteries when the batteries are in the device. These standards are excessively restrictive because they obstruct the mailing of commonly used consumer-type batteries that are permitted to be transported by air under Department of Transportation
(DOT)and International Air Transportation Association
(IATA)regulations. In addition, under our current standards, it is difficult to determine which lithium batteries meet mailing standards and which do not. Therefore, by identifying all small consumer-type lithium batteries as mailable when properly labeled and packaged, this proposal would increase the safety of the mail. Our proposed standards are based on, yet more restrictive than, DOT shipping regulations for lithium batteries. DATES: We must receive your comments on or before May 25, 2007. ADDRESSES: Mail or deliver written comments to the Manager, Mailing Standards, Postal Service, 475 L'Enfant Plaza, SW., Room 3436, Washington, DC 20260-3436. You may inspect and photocopy all written comments at Postal Service Headquarters Library, 475 L'Enfant Plaza, SW., 11th Floor N, Washington, DC between 9 a.m. and 4 p.m., Monday through Friday. FOR FURTHER INFORMATION CONTACT: Bert Olsen, 202-268-7276. SUPPLEMENTARY INFORMATION: Current mailing standards are inconsistent with Department of Transportation
(DOT)regulations and prohibit most lithium batteries from being mailed via air transportation services—Express Mail, First-Class Mail, or Priority Mail—even though commercial air carriers currently carry these items under DOT regulations. This proposal would allow the Postal Service to accept lithium batteries and battery-powered devices for mailing in a manner similar to that of other commercial shippers. Commercial shippers follow DOT and International Air Transportation Association
(IATA)regulations, which generally allow lithium batteries containing up to 8 grams of equivalent lithium content, while we accept only batteries having no more than 0.5 grams of equivalent lithium content. Many small consumer-type batteries contain more than 0.5 grams of equivalent lithium content. In addition, our standards prohibit acceptance of devices that have the batteries installed in them, while DOT and IATA regulations permit shipment of electronic devices when small consumer-type batteries are installed. DOT regulations suggest that the device itself offers protection of the batteries, and batteries contained in equipment are less likely to externally short-circuit. Consumer devices such as personal digital assistants, cameras, flashlights, laptop computers, cell phones, handheld electronic games, and portable media players such as iPods and MP3 players contain lithium batteries. Many popular consumer products now contain lithium batteries, and some batteries cannot be easily removed from the device they power, and some batteries easily exceed our allowable equivalent lithium content requirement. Therefore, we propose to adopt mailing standards that are in line with industry standards and that are more easily understood and complied with by mailers. Our proposed revision is more restrictive than the shipping regulations required by DOT and IATA in the following ways: • We would impose a 5-pound weight limit on mailpieces containing primary lithium batteries. • We would impose a 10-pound weight limit on mailpieces containing secondary lithium batteries and a limit of no more than 3 batteries per mailpiece. • We would require all primary and secondary lithium batteries to be of the type proven (by testing) to be nondangerous in accordance with *UN Manual of Tests and Criteria* . • We would require all mailpieces containing lithium batteries to be marked on the outside to identify the contents. Our proposal mirrors DOT and IATA allowable gram quantity limits for small consumer-type lithium batteries. Devices containing batteries must be packaged in such a way as to prevent activation while they are in the mailstream. Lithium batteries other than small consumer-type batteries remain nonmailable. Although we are exempt from the notice and comment requirements of the Administrative Procedure Act [5 U.S.C. of 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), we invite public comment on the following proposed revisions to *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM®), incorporated by reference in the *Code of Federal Regulations.* See 39 CFR 111.1. We provide the proposed mailing standards below. We propose to implement these standards on June 1, 2007. List of Subjects in 39 CFR Part 111 Administrative practice and procedure, Postal Service. Accordingly, 39 CFR part 111 is proposed to be amended as follows: PART 111—[AMENDED] 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3626, 5001. 2. Revise the following sections of the *Mailing Standards of the United States Postal Service,* Domestic Mail Manual (DMM), as follows: 600 Basic Standards for All Mailing Services 601 Mailability 601.10 Hazardous Materials 10.20 Miscellaneous Hazardous Materials (Hazard Class 9) *[Add new 10.20.5 to read as follows:]* 10.20.5 Primary Lithium (Non-Rechargeable) Cells and Batteries Small consumer-type primary lithium cells or batteries (lithium metal or lithium alloy) like those used to power cameras and flashlights are mailable with the following restrictions: Each cell must contain no more than 1.0 gram
(g)of lithium content per cell. Each battery must contain no more than 2.0 g aggregate lithium content per battery. Additionally, each cell or battery must meet the requirements of each test in the *UN Manual of Tests and Criteria* , part III, and subsection 38.3 as referenced in DOT's hazardous materials regulation at 49 CFR 171.7. All primary lithium cells and batteries must be mailed within a firmly sealed package separated and cushioned to prevent short circuit, movement, or damage. Except for batteries installed in equipment, they must be in a strong outer package. All outer packages must have a complete delivery and return address. Primary lithium cells and batteries are mailable as follows: a. Via surface transportation when the cells or batteries (not packed with or installed in equipment) are “in the original retail packaging.” They are forbidden aboard passenger aircraft. The outside of the package must be marked on the address side “Surface Mail Only, Primary Lithium Batteries—Forbidden for Transportation Aboard Passenger Aircraft.” b. Via surface or air transportation when the cells or batteries are properly packed with or properly installed in the equipment they operate and the mailpiece has no more than the number of batteries needed to operate the device. Cells or batteries properly installed in the device they operate must be protected from damage and short circuit, and the device must be equipped with an effective means of preventing accidental activation. The outside of the package must be marked on the address side “Package Contains Primary Lithium Batteries.” c. The mailpiece must not exceed 5 pounds. *[Add new 10.20.6 to read as follows:]* 10.20.6 Secondary Lithium-Ion (Rechargeable) Cells and Batteries Small consumer-type lithium-ion cells and batteries like those used to power cell phones and laptop computers are mailable with the following restrictions: Each cell must contain no more than 1.5 g of equivalent lithium content per cell. Each battery must contain no more than 8.0 g aggregate quantity of equivalent lithium content per battery. Additionally, each cell or battery must meet the requirements of each test in the *UN Manual of Tests and Criteria* , Part III, and subsection 38.3 as referenced in the DOT's hazardous materials regulation at 49 CFR 171.7. All secondary lithium-ion cells and batteries must be mailed in a firmly sealed package separated and cushioned to prevent short circuit, movement, or damage. Except for batteries installed in equipment, they must be in a strong outer package. All outer packages must have a complete delivery and return address. These cells and batteries are mailable as follows: a. Via surface or air transportation when individual cells or batteries are mailed or when properly packed with or properly installed in the equipment they operate and the mailpiece has no more than the number of batteries needed to operate the device. Cells or batteries properly installed in the device they operate must be protected from damage and short circuit, and the device must be equipped with an effective means of preventing accidental activation. The outside of the package must be marked on the address side “Package Contains Lithium-ion Batteries (no lithium metal).” b. The mailpiece must not contain more than 3 batteries or exceed 10 pounds. *[Add new 10.20.7 to read as follows:]* 10.20.7 Damaged or Recalled Batteries Damaged or recalled batteries are prohibited from mailing unless approved by the manager, Mailing Standards. *[Add new Exhibit 10.20.7 as follows:]* Exhibit 10.20.7 Lithium Battery Mailability Chart Primary lithium batteries (small non-rechargeable consumer-type batteries) Surface transportation Air transportation Mailpiece weight limit
(lb)International APO/FPO Without the equipment they operate (individual batteries) Mailable Prohibited 5 Prohibited. Packed with equipment but not installed in equipment Mailable Mailable 5 Mailable. Contained (properly installed) in equipment Mailable Mailable 5 Mailable. Note 1: Each primary cell must not contain more than 1g lithium content. Note 2: Each primary battery must not contain more than 2 g lithium content. Secondary lithium batteries (small rechargeable consumer-type batteries) Surface transportation Air transportation Mailpiece weight limit and battery limit International APO/FPO Without the equipment they operate (individual batteries) Mailable Mailable 10 lb (no more than 3 batteries) Mailable. Packed with equipment but not installed in equipment Mailable Mailable 10 lb (no more than 3 batteries) Mailable. Contained (properly installed) in equipment Mailable Mailable 10 lb (no more than 3 batteries) Mailable. Note 3: Each secondary cell must not contain more than 1.5 g equivalent lithium content. Note 4: Each secondary battery must not contain more than 8 g equivalent lithium content. Note 5: In addition to the 10 pound weight limit for secondary batteries, there is a limit of 3 batteries. 11.0 Other Restricted and Nonmailable Matter 11.17 Battery-Powered Devices *[Revise the first sentence in 11.17 to read as follows:]* Cells or batteries properly installed in equipment must be protected from damage and short circuit, and equipment containing cells or batteries must be equipped with an effective means of preventing accidental activation. * * * We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes if our proposal is adopted. Neva R. Watson, Attorney, Legislative. [FR Doc. E7-7817 Filed 4-24-07; 8:45 am] BILLING CODE 7710-12-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51, 60, 62, 63, 72, 78, 96, and 97 [EPA-HQ-OAR-2007-0012; FRL-8302-4] RIN 2060-A033 Revisions to Definition of Cogeneration Unit in Clean Air Interstate Rule (CAIR), CAIR Federal Implementation Plan, Clean Air Mercury Rule (CAMR), and CAMR Proposed Federal Plan; Revision to National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters; and Technical Corrections to CAIR and Acid Rain Program Rules AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: In 2005, EPA finalized the Clean Air Interstate Rule
(CAIR)to address emissions of nitrogen oxides (NO <sup>X</sup> ) and sulfur dioxide (SO <sup>2</sup> ) and the Clean Air Mercury Rule
(CAMR)to establish standards of performance for mercury
(Hg)for coal-fired electric utility steam generating units. Both CAIR and CAMR include model cap-and-trade rules that states may adopt to meet the applicable requirements. In 2006, EPA finalized the Federal Implementation Plan
(FIP)for CAIR and also proposed a Federal Plan for CAMR. All four rules include an exemption for certain cogeneration units. To qualify for this exemption, a unit must, among other things, meet an efficiency standard included in the cogeneration unit definition. Today, in light of information concerning existing biomass-fired cogeneration units that may not qualify for the exemption, EPA is proposing a change in the cogeneration unit definition in CAIR, the CAIR model cap-and-trade rules, the CAIR FIP, CAMR, and the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan. Specifically, EPA is proposing to revise the efficiency standard in the cogeneration unit definition so that the standard would apply, with regard to certain units, only to the fossil fuel portion of a unit's energy input. This change to the CAIR model cap-and-trade rules, CAIR FIP, CAMR, and proposed CAMR Federal Plan would likely make it possible for some additional units to qualify for the cogeneration unit exemption in these rules. Because it would only affect a small number of relatively low emitting units, this would have little effect on the projected emissions reductions and the environmental benefits of these rules. EPA is also considering revisions to the definition of “total energy input,” a term used in the efficiency standard. This action also proposes minor technical corrections to CAIR and the Acid Rain Program rules. Finally, this action proposes minor revisions to National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (“boiler MACT”). DATES: *Comments* . Comments must be received on or before June 11, 2007. If requested by May 7, 2007, a public hearing will be held on May 10, 2007 in Washington, DC. For additional information on a public hearing, *see* the SUPPLEMENTARY INFORMATION section of this preamble. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-HQ-OAR-2007-0012, by one of the following methods: A. *Federal Rulemaking Portal:* *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. B. *E-mail:* *A-AND-R-Docket@epa.gov* C. *Mail:* Air Docket, ATTN: Docket Number EPA-HQ-OAR-2007-0012, Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. D. *Hand Delivery:* EPA Docket Center, 1301 Constitution Avenue, NW., Room 3334, Washington, DC. 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-2007-0012. 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 *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* website 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 *http://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, and any form of encryption, and should be free of any defects or viruses. *Docket:* All documents in the docket are listed in the *http://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 in *http://www.regulations.gov* or in hard copy at the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, 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: For information concerning the proposed changes, contact Elyse Steiner, Program Development Branch, Clean Air Markets Division (MC 6204J), EPA, Washington, DC 20460; telephone number
(202)343-9141; fax number
(202)343-2359; electronic mail address: *Steiner.elyse@epa.gov* . SUPPLEMENTARY INFORMATION: *Regulated Entities.* Categories and entities potentially regulated by this action include the following: Category NAICS code 1 Examples of potentially regulated entities Industry 221112 Fossil fuel-fired electric utility steam generating units. Federal government 2 221122 Fossil fuel-fired electric utility steam generating units owned by the Federal government. State/local/Tribal government 2 221122 Fossil fuel-fired electric utility steam generating units owned by municipalities. 921150 Fossil fuel-fired electric utility steam generating units in Indian country. 1 North American Industry Classification System. 2 Federal, State, or local government-owned and operated establishments are classified according to the activity in which they are engaged. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists examples of the types of entities EPA is now aware could potentially be regulated by this action. Other types of entities not listed could also be affected. To determine whether a facility is regulated, carefully examine the applicability provisions and definitions in CAIR, the CAIR FIP, CAMR, and the proposed CAMR Federal Plan. 1 All references related to applicability and definitions for these rules have been provided in a single list only once and will not be referenced again in this proposal to avoid unnecessary repetition. 1 All applicability provisions and definitions can be found in the CFR or FR in the following locations: for *CAIR and the CAIR model cap-and-trade rules, 40 CFR* 51.123, 51.124, 96.102, 96.104, 96.202, 96.204, 96.302, and 96.304; for the *CAIR FIP, 40 CFR* 97.102, 97.104, 97.202, 97.204, 97.302, and 97.304; for CAMR and the CAMR model cap-and-trade rule, *40 CFR* 60.24(h)(8), 60.4102, and 60.4104; and for the proposed *CAMR Federal Plan, Proposed* § 62.15902 and § 62.15904. As discussed below, the pulp and paper industry raised concerns regarding whether biomass-fired cogeneration units could meet the definition of “cogeneration unit”. The following table identifies NAICS codes for entities in the pulp and paper industry. This table is not intended to be exhaustive, but rather the table may help identify entities potentially affected by today's action, although today's action may affect entities in other industries in addition to pulp and paper. Category NAICS code 1 Examples of potentially regulated entities Industry 22 Utilities. 322 Paper Manufacturing Facilities. 32213 Paperboard Mills. 322122 Newsprint Mills. 1 North American Industry Classification System. If you have questions regarding the applicability of this action to a particular entity, consult your EPA Regional Office or EPA's Clean Air Markets Division. *Worldwide Web.* In addition to being available in the docket, an electronic copy of this action will also be available on the Worldwide Web through EPA's Office of Air and Radiation. Following signature by the Administrator, a copy of this action will be posted on the CAIR and CAMR pages at *http://www.epa.gov/cair or http://www.epa.gov/camr* . *Public Hearing.* If requested, EPA will hold a public hearing on today's proposed rule. EPA will hold a hearing only if a party notifies EPA by May 7, 2007, expressing its interest in presenting oral testimony on issues addressed in today's proposed rule. Any person may request a hearing by calling Elyse Steiner at
(202)343-9141 before 5 p.m. on May 7, 2007. If a public hearing is held on today's notice, it will be held on May 10, 2007. Any person who plans to attend the hearing should visit the EPA's Web site at *http://www.epa.gov/cair* or *http://www.epa.gov/camr* or contact Elyse Steiner at
(202)343-9141 to learn if a hearing will be held, the location, and time that the hearing is scheduled to take place. Because the hearing will be held at a U.S. Government facility, everyone planning to attend should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. The hearing, if held, will be limited to the subject matter of this document. Each commenter's oral testimony will be limited to 5 minutes. EPA encourages commenters to provide written versions of their oral testimonies either electronically (on computer disk or CD ROM) or in paper copy. The public hearing schedule, including the list of speakers, will be posted on EPA's Web site at *http://www.epa.gov/cair* or *http://www.epa.gov/camr* . Verbatim transcripts and written statements will be included in the rulemaking docket. A public hearing would provide interested parties the opportunity to present data, views, or arguments concerning issues addressed in today's notice. EPA may ask clarifying questions during the oral presentations, but would not respond to the presentations or comments at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at a public hearing. *Outline.* The information presented in this preamble is organized as follows: I. Background A. Summary of This Proposed Action B. Background on CAIR, the CAIR FIP, CAMR, and the Proposed CAMR Federal Plan C. Applicability to Cogeneration Units D. Reason for Proposing a Change for Cogeneration Units II. EPA's Proposed Action and Its Impacts A. Proposed Change for Cogeneration Units B. Emissions Impact of Proposed Action C. State Emissions Budgets D. Impact of Proposed Action on CAIR and CAMR Implementation III. Minor Corrections to CAIR and the Acid Rain Program Regulations and Minor Revisions to the Boiler MACT A. CAIR and the Acid Rain Program Regulations B. Boiler MACT 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 and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Background A. Summary of This Proposed Action In this rule, EPA is proposing to revise the definition of the term “cogeneration unit” in CAIR, the CAIR model cap-and-trade rules, the CAIR FIP, CAMR and CAMR Hg model cap-and-trade rule, and the proposed CAMR Federal Plan. The CAIR model cap-and-trade rules and the CAIR FIP apply to large fossil-fuel fired electric generating units with certain exceptions. 2 The CAMR, CAMR Hg model cap-and-trade rule, and proposed CAMR Federal Plan address large coal-fired electric generating units with certain exceptions. 3 The CAIR model cap-and-trade rules, CAIR FIP, CAMR and CAMR Hg model cap-and-trade rule, and proposed CAMR Federal Plan all provide an exemption for cogeneration units meeting certain requirements concerning their level of electricity sales. All four rules provide that in order to qualify for this exemption, a unit must, among other things, meet the definition of cogeneration unit in the rule. In all four rules, a unit cannot meet the definition unless it meets a specified efficiency standard, i.e., the useful power plus one-half of useful thermal energy output of the unit must equal no less than a certain percentage of the total energy input or, in some cases, useful power must be no less than a certain percentage of total energy input. If a unit meets the definition of cogeneration unit including the efficiency standard, then the unit may qualify for the exemption in these rules depending on whether it meets additional criteria concerning the amount of electricity sales from the unit. The efficiency standard is applied to all energy input to the unit regardless of fuel type. The criteria for qualifying as a cogeneration unit are discussed in more detail below. 2 CAIR provides States flexibility in choosing a mechanism for achieving the required NO <sup>X</sup> and SO <sup>2</sup> emission reductions, including flexibility to choose which sources to control. CAIR includes model trading rules for regionwide, EPA-administered NO <sup>X</sup> and SO <sup>2</sup> emissions cap-and-trade programs, covering certain fossil-fuel-fired electric generating units, which States may choose to adopt in order to achieve the required reductions. If a State chooses to adopt the EPA-administered trading programs then it must control electric generating units, as defined in CAIR, and use the same applicability criteria as provided in the model cap-and-trade rules. The applicability criteria in the CAIR FIP are the same as in the model cap-and-trade rules. 3 CAMR provides States flexibility in choosing a mechanism for ensuring that mercury emissions do not exceed the State's allocated mercury emissions budget. All necessary reductions must, however, be from coal-fired electric generating units as defined in CAMR. CAMR includes a nationwide, EPA-administered Hg emissions cap-and-trade program, covering coal-fired electric generating units, which States may choose to adopt in order to achieve the required reductions. States may also choose an alternative approach so long as it ensures that the State mercury emissions budget is not exceeded. EPA proposes the same applicability requirements for the CAMR Federal Plan as set forth in CAMR. On August 4, 2006 EPA published a Notice of Data Availability for EGU NO <sup>X</sup> Annual and NO <sup>X</sup> Ozone Season Allocations for the Clean Air Interstate Rule Federal Implementation Plan Trading Programs (CAIR FIP NODA) (71 FR 44283). During the period for submitting objections concerning the CAIR FIP NODA, EPA received information concerning the application of the efficiency standard in the cogeneration unit definition (as defined in the CAIR FIP) to biomass-fired cogeneration units and a request to extend the period for objections. Subsequently, EPA extended the period for objections—only for objections related to biomass cogeneration units—to February 20, 2007 (72 FR 965). The period had previously been extended to October 5, 2006 for all objections and further extended to January 3, 2007 for objections concerning biomass cogeneration units. Certain biomass cogeneration unit owners and operators requested additional time to submit objections because of difficulties collecting information relating to the application of efficiency standards for cogeneration units (as defined in the CAIR FIP) to biomass cogeneration units. EPA is treating the information that the Agency received concerning the application of the efficiency standard in the cogeneration unit definition to biomass-fired cogeneration units as a request for rulemaking to change the efficiency standard in the cogeneration unit definition and, in light of that information, is proposing today to revise the efficiency standard in the cogeneration unit definition in the CAIR model cap-and-trade rules, the CAIR FIP, CAMR, and the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan, so that, in some cases, energy input from only fossil fuel would be included in the efficiency calculation. The proposed revised cogeneration unit definition is discussed in more detail in section II of today's preamble, below. The category of units addressed by today's proposal (existing biomass cogeneration units, as discussed further below) was brought to our attention by the pulp and paper industry. EPA requests comment on whether existing biomass cogeneration units in other identifiable industries, or cogeneration units burning other identifiable types of non-fossil fuels besides biomass, may have characteristics similar to those of existing biomass cogeneration units in the pulp and paper industry and would also be impacted by the proposed rule change. As discussed below, in today's action, EPA is requesting comment only on the efficiency standard in the cogeneration unit definition as applied to biomass cogeneration units and related definitions, on the definition of “total energy input” related to the efficiency standard as applied to all cogeneration units, on the minor technical corrections to CAIR and the Acid Rain Program Regulations, and on the minor revisions to the boiler MACT. We are not requesting or accepting comments on other parts of CAIR, the CAIR model trading rules, the CAIR FIP, CAMR, the CAMR model trading rule, or the CAMR Federal Plan proposal or reopening any issues decided in those actions for reconsideration or comment. As discussed further in section II of today's preamble, EPA estimated the total amount of NO <sup>X</sup> , SO <sup>2</sup> , and Hg emitted from units that might be affected by the proposed change to the cogeneration unit definition (i.e., units that may not be able to meet the efficiency standard as written and that are likely to be able to meet the standard if changed as proposed) and found the estimated emissions for this group of units to be very small compared to the size of the overall emission caps in CAIR and CAMR. This action also proposes minor technical corrections to CAIR and the Acid Rain Program rules. Finally, this action proposes minor revisions to National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters (“boiler MACT”). B. Background on CAIR, the CAIR FIP, CAMR, and the Proposed CAMR Federal Plan CAIR and the CAIR FIP On May 12, 2005, EPA published CAIR as a final rule entitled, “Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to NO <sup>X</sup> SIP Call” (70 FR 25162). CAIR requires reductions of NO <sup>X</sup> and/or SO <sup>2</sup> emissions that contribute significantly to nonattainment and maintenance problems in downwind States with respect to the national ambient air quality standards for fine particulate matter (PM <sup>2.5</sup> ) and 8-hour ozone to be made across 28 eastern States and the District of Columbia. The reductions are required in two phases. The first phase of NO <sup>X</sup> reductions starts in 2009 (covering 2009-2014) and the first phase of SO <sup>2</sup> reductions starts in 2010 (covering 2010-2014); the second phase of reductions for both NO <sup>X</sup> and SO <sup>2</sup> starts in 2015 (covering 2015 and thereafter). States must develop State Implementation Plans
(SIPs)to achieve the emission reductions required by CAIR and have flexibility to determine what measures to adopt to achieve the necessary reductions and which sources to control. One option is to control certain electric generating units. In CAIR, EPA provided model SO <sup>2</sup> and NO <sup>X</sup> cap-and-trade programs, covering fossil-fuel-fired electric generating units that States can choose to adopt to meet the emission reduction requirements in a flexible and highly cost-effective manner. On April 28, 2006, EPA published the FIP for CAIR as part of a final rule entitled, “Rulemaking on Section 126 Petition From North Carolina to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone; Revisions to the Clean Air Interstate Rule; Revisions to the Acid Rain Program” (71 FR 25328). The CAIR FIP was promulgated for all 28 States and the District of Columbia covered by CAIR and will ensure that the required emission reductions are achieved on schedule. As the control strategy for the FIP, EPA adopted the model SO <sup>2</sup> and NO <sup>X</sup> cap-and-trade programs for electric generating units that EPA provided in CAIR as a control option for States, with minor changes to account for Federal, rather than State, implementation. EPA intends to withdraw the FIP for any State in coordination with approval of that State's SIP that meets the CAIR requirements. CAMR and the Proposed CAMR Federal Plan On May 18, 2005, EPA published the CAMR as a final rule entitled “Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units; Final Rule” (70 FR 28606). CAMR established standards of performance for mercury for new and existing coal-fired electric generating units and requires mercury reductions nationwide. The reductions are required in two phases. The first phase starts in 2010 (covering 2010-2017); the second phase starts in 2018 (covering 2018 and thereafter). States must develop State Plans to achieve the mercury emission reductions required by CAMR and have flexibility to determine what measures to adopt to achieve the necessary reductions. Unlike CAIR, under which States may choose which sources to control, CAMR requires that States control mercury emissions from coal-fired electric generating units. In CAMR, EPA provided a model Hg cap-and-trade program covering coal-fired electric generating units that States can choose to adopt to meet the emission reduction requirements. On December 22, 2006, EPA published a proposed Federal Plan for CAMR in a proposed rule entitled, “Revisions of Standards of Performance for New and Existing Stationary Sources; Electric Utility Steam Generating Units; Federal Plan Requirements for Clean Air Mercury Rule; and Revisions of Acid Rain Program Rules” (71 FR 77100). The CAMR Federal Plan was proposed to implement the standards of performance for coal-fired electric generating units located in all States, the District of Columbia, and Indian Country covered by CAMR ( *see* 40 CFR 60.24(h)(1) listing the jurisdictions covered by CAMR) to ensure that the required emission reductions are achieved on schedule. As the control strategy for the Federal Plan, EPA proposed to adopt the model Hg cap-and-trade program for coal-fired electric generating units that EPA provided in CAMR as a control option for States, with minor changes to account for Federal, rather than State, implementation. EPA will not adopt the Federal Plan for any State with a timely submitted and approved State Plan that meets the CAMR requirements. EPA will withdraw the Federal Plan for any State after the Agency approves a State Plan that meets the CAMR requirements for that State. EPA will similarly withdraw the Federal Plan upon its approval of a Tribal Plan. C. Applicability to Cogeneration Units Applicability determinations under the CAIR model cap-and-trade rules, the CAIR FIP, CAMR and the proposed CAMR Federal Plan all turn, in part, on whether a unit meets the definition of “electric generating unit” in the rule. The CAIR model cap-and-trade rules and the CAIR FIP use a definition of “electric generating unit” that covers certain fossil-fuel-fired units while CAMR and the proposed CAMR Federal Plan use a similar definition that covers certain coal-fired units. The CAIR model cap-and-trade rules and the CAIR FIP apply to large fossil-fuel fired electric generating units with certain exceptions. The CAMR and the proposed CAMR Federal Plan apply to large coal-fired electric generating units with certain exceptions. The CAIR model cap-and-trade rules, CAIR FIP, CAMR and proposed CAMR Federal Plan all provide that certain units meeting the definition of a “cogeneration unit” may be excluded from the definition of “electric generating unit” and therefore exempt from the requirements of the rule (These rule provisions are commonly referred to as the cogeneration unit exemption). The cogeneration unit exemption is effectively the same under all of these rules. In order to fall within the definition of cogeneration unit under these rules, a unit must meet a specified efficiency standard, i.e., the useful power plus one-half of useful thermal energy output of the unit must equal no less than a certain percentage of the total energy input or, in some cases, useful power must be no less than a certain percentage of total energy input. If a unit meets the definition of cogeneration unit including the efficiency standard, then it may qualify for the cogeneration unit exemption in these rules depending on whether it meets additional criteria concerning the amount of electricity sales from the unit. The efficiency standard in the cogeneration unit definition is applied to all energy input to the unit regardless of fuel type. In order to qualify for the cogeneration unit exemption in these rules, the cogeneration unit must meet the following electricity sales criteria: A cogeneration unit qualifies for the exemption if the unit supplies in any calendar year no more than 1/3 of its potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale. CAIR and the CAIR FIP With certain exceptions, the CAIR model cap-and-trade rules and the CAIR FIP cover any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale. Similarly, CAIR refers to such units as electric generating units. CAIR, the CAIR model cap-and-trade rules, and the CAIR FIP define “cogeneration unit” as a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:
(1)Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and
(2)Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—
(i)For a topping-cycle cogeneration unit, 4 4 Topping-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy.
(A)Useful thermal energy not less than 5 percent of total energy output; and
(B)Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input, if useful thermal energy produced is less than 15 percent of total energy output.
(ii)For a bottoming-cycle cogeneration unit, 5 useful power not less than 45 percent of total energy input. 5 Bottoming-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production. CAMR and the Proposed CAMR Federal Plan With certain exceptions, CAMR defines electric generating unit
(EGU)as a stationary, coal-fired boiler or stationary, coal-fired combustion turbine in the State serving at any time, since the later of November 15, 1990 or the start-up of a unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale. An Hg Budget unit is an EGU that is subject to the requirements of the CAMR Hg Budget Trading Program under a State Plan approved by the Administrator as consistent with EPA's model Hg trading rule or under the proposed CAMR Federal Plan. The definition of “cogeneration unit” in CAMR, the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan is identical to the cogeneration unit definition in CAIR, the CAIR model cap-and-trade rules, and the CAIR FIP, except that the definition in the CAMR and related rules refers to stationary, coal-fired boilers or stationary, coal-fired combustion turbines where the definition in the CAIR-related rules refers to stationary, fossil-fuel-fired boilers or stationary, fossil-fuel-fired combustion turbines. If a unit meets the criteria concerning service of a generator (and so would otherwise be an electric generating unit) but qualifies as a cogeneration unit, then the unit may be excluded from the definition of electric generating unit in CAIR, or excluded from that definition and the regulatory requirements of the CAIR model cap-and-trade rules, the CAIR FIP, CAMR and the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan. In order to qualify for this exemption under these rules, the cogeneration unit must meet certain criteria concerning electricity sales from the unit. Specifically, as discussed above, a cogeneration unit qualifies for the exemption if the unit supplies in any calendar year no more than 1/3 of its potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale. D. Reason for Proposing a Change for Cogeneration Units The purpose of the efficiency standard in the cogeneration unit definition is to prevent a potential loophole where a unit might send only a nominal or insignificant amount of thermal energy to a process and not achieve significant efficiency gains through cogeneration, but still qualify as a cogeneration unit and potentially be excluded from the EGU definition, or from the applicability provisions, under the CAIR and CAMR and related rules. During the period for submitting objections concerning the CAIR FIP NODA, EPA received information that suggested to EPA that the efficiency standard in the definition of cogeneration unit should be revised. The information concerns the application of the efficiency standard to biomass-fired cogeneration units and says that the existing rule “unfairly penalizes co-generation units that burn significant amounts of biomass.” The information indicates that many biomass cogeneration units may be unable to meet the efficiency standard because “biomass, when burned as a fuel, has a lower thermal efficiency for conversion to steam than fossil fuels, such as coal, oil and natural gas.” Previously, in developing CAIR, EPA indicated that it expected “most back pressure units burning * * * biomass to meet the efficiency standard” ( *see* Technical Support Document
(TSD)for CAIR on Cogeneration Unit Efficiency Calculations). The Agency believed at the time that most existing biomass cogeneration units would meet the efficiency standard, and thus would be potentially exempt cogeneration units. EPA now is re-examining whether the efficiency standard is appropriate for all biomass-fired cogeneration units. EPA believes that the vast majority of existing biomass cogeneration units are operated by the pulp and paper industry. 6 The biomass fuels typically fired by pulp and paper units are wood-based biomass and black liquor. 7 Both biomass fuels have relatively high moisture content that prevents them from burning as efficiently as coal and other fossil fuels. The moisture content of these biomass fuels can range from approximately 40 to over 60 percent. In comparison, the moisture content of bituminous coal is relatively low, less than 10 percent. Higher moisture content requires that more of the heating value of the fuel goes into evaporating that moisture during combustion. The evaporated moisture (and the heat used to evaporate it) escapes up the stack—subtracting from the efficiency of the unit. Therefore, the higher the moisture content in the biomass and the higher the proportion of biomass fuel used, the more difficult it will be for a unit to meet the efficiency standard in the cogeneration unit definition. Conversely, the greater the amount of heat input from fossil fuels, the easier it is for a unit to meet the efficiency standard because of the reduced need for energy to heat and vaporize the moisture in the fuel. 6 The pulp and paper industry raised concerns regarding biomass cogeneration units during the period for objections to the CAIR FIP NODA. 7 Black liquor is spent pulping liquor, a byproduct of a pulping process used to separate the wood fibers used in papermaking from lignin and other wood solids. Certain additional factors may also contribute to lower efficiencies for existing biomass cogeneration units in the pulp and paper industry. EPA believes that, as compared to large electric power plants that are optimized for power generation, many of the existing process-optimized units in the pulp and paper industry use significantly lower design steam pressure and temperature conditions at the steam turbine inlet. For example, a large power plant turbine might be designed to use steam at 2,400 psig and 1,000 °F, whereas a turbine-generator in a pulp and paper plant might be using steam at conditions below 900 psig and 800 °F. These lower steam conditions reduce the efficiency of the overall cogeneration cycle, which was optimized for process needs, not for electric power generation. Moreover, many steam-turbine generators in the pulp and paper industry may have been installed by retrofit—a circumstance that may have exacerbated the problem because the boiler was designed before cogeneration by the unit was contemplated and thus before the impact of the design on thermal efficiency became a consideration. In addition, existing biomass cogeneration units (boilers and steam turbines) in the pulp and paper industry generally are relatively small, and smaller units are typically less efficient than larger units. The existing smaller units generally do not incorporate high-efficiency design practices and their energy losses (such as radiation loss for a boiler and mechanical loss for a turbine-generator set) per unit of energy input are inherently higher. The combination of relatively high fuel moisture content and small boiler size results in efficiencies as low as 60 percent for the biomass boiler itself, compared to typical large fossil fuel-fired boiler efficiencies ranging to above 85 percent. In summary, EPA believes that existing biomass cogeneration units as a group have a particular set of characteristics that together may make it difficult for many units to meet the efficiency standard in the cogeneration unit definition unless the units co-fire significant amounts of fossil fuel, such as coal. These characteristics are: Fuels with relatively high moisture content, units designed for relatively low pressure and temperature conditions for industrial processes, and relatively small boilers and steam turbines that are inherently less efficient due to their size. EPA recognizes that there are some existing biomass cogeneration units (e.g., those that co-fire coal, natural gas, or oil for a large portion of their heat input) that might be able to meet the efficiency standard, as discussed in the following section. The cogeneration unit definition finalized in the CAIR model cap-and-trade rules, the CAIR FIP, CAMR, and in the proposed CAMR Federal Plan, includes all energy input in the efficiency calculation. EPA believes that the inclusion of energy input from all fuels—rather than from fossil fuels only—has the unanticipated and unintended consequence of making it very difficult for existing biomass cogeneration units to qualify as cogeneration units unless they co-fire significant amounts of fossil fuel, such as coal. Preventing these existing units from qualifying as cogeneration units is not consistent with the purposes of the efficiency standard. These units were originally designed to and still do produce significant amounts of useful thermal energy (relative to their total energy output) and achieve efficiency gains over non-cogeneration units. Under these circumstances, application of the currently written efficiency standard to existing biomass cogeneration units does not seem to promote the purposes of the standard. In addition, application of this standard as written has the paradoxical result that existing biomass cogeneration units burning greater amounts of coal (therefore likely having greater emissions) are much more likely to meet the efficiency requirement and thus qualify as cogeneration units exempt from emission limits under the CAIR model cap-and-trade programs and CAMR model cap-and-trade rule, while existing biomass cogeneration units burning less coal (therefore likely having lower emissions) are less likely to meet the requirement and qualify for the exemption. For these reasons, EPA is proposing to revise the efficiency standard in the cogeneration unit definition such that energy input from only the fossil fuel portion of the input would be included in the efficiency calculation for existing units. The proposed change is discussed in more detail below. II. EPA's Proposed Action and Its Impacts A. Proposed Change for Cogeneration Units EPA is proposing today to revise the efficiency standard in the cogeneration unit definition in CAIR, the CAIR model cap-and-trade rules, the CAIR FIP, CAMR and the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan, to permit existing boilers to include only energy input from fossil fuel in the efficiency calculation rather than energy input from all fuels. This change would make it more likely that existing units burning biomass and cogenerating electricity and useful thermal energy could meet the efficiency standard and qualify as exempt cogeneration units under these rules. EPA proposes to change the cogeneration unit efficiency standard for boilers but not for combustion turbines because combustion turbines generally do not fire biomass. The proposed methodology for determining thermal efficiency of a cogeneration unit under a revised efficiency standard is set forth in detail in the Technical Support Document
(TSD)that accompanies this notice. Further, EPA requests comment on whether the efficiency standard in the cogeneration unit definition should be revised to include language explaining how to calculate a unit's “total energy input” or alternatively, whether the definition of “total energy input” itself should be revised. As discussed in the TSD, EPA recognizes that there may be alternative formulas for calculating a unit's total energy input, which is a critical value in determining its efficiency under either the existing or any revised efficiency standard. EPA requests comment on the TSD, including the methodology for determining efficiency and the formula for calculating total energy input. EPA also asks for comments on whether to revise the efficiency standard or revise the definition of “total energy input” currently in CAIR, the CAIR model cap-and-trade rules, the CAIR FIP, CAMR and CAMR Hg model cap-and-trade rule, and the proposed CAMR Federal Plan in order to specify the formula that should be used to calculate a unit's total energy input. EPA proposes to change the efficiency standard only for existing units because the Agency believes that units built in the future to cogenerate electricity and useful thermal energy (regardless of the percentage of heat input from biomass) can be designed to meet the efficiency standard as currently written. EPA proposes to change the efficiency standard only for units whose construction commenced on or before April 25, 2007 and units with equipment used in cogenerating where construction of such equipment commenced on or before April 25, 2007. If a unit that commenced construction on or before April 25, 2007 was not designed for cogeneration but is retrofitted for and commences cogeneration after that date, EPA proposes that such a unit be treated the same as a new cogeneration unit and so would be covered by the existing efficiency standard. EPA believes that with the proper planning and design decisions, these units are capable of operating more efficiently than those built before the efficiency standard became a consideration (i.e., on or before April 25, 2007). Retrofits can make use of available technology such as back pressure turbines that allow the unit to operate at higher efficiency, install equipment upgrades, and select adequate steam and temperature conditions. Further, these units are likely to have higher utilization after they commence cogeneration because they will get higher returns on investments by running the units more to make electricity for use on site, purchasing less electricity and/or selling some electricity to the grid. The increased utilization likely will result in greater emissions. Therefore, they should either be covered by the requirements of the cap-and-trade programs or operate efficiently enough to qualify for the cogeneration unit exemption. The Agency proposes a new definition for the term “construction commenced” ( *see* proposed regulatory text at end of preamble). The proposed definition is based on, and essentially combines, the definitions of “commenced” and “construction” in 40 CFR 60.2 (Standards of Performance for New Stationary Sources). As an alternative, EPA requests comment on using, as a basis for the new definition, the definition of “commence” in 40 CFR 52.21(b)(9) (Prevention of Significant Deterioration of Air Quality) and the definition of “construction” in 40 CFR 60.2. While the definition of “commenced” in 40 CFR 60.2 requires that the owner or operator start or be contractually obligated to start and complete within a reasonable time a continuous program of construction, the definition of “commence” in 40 CFR 52.21 is narrower and, for example, requires either the start of on-site (e.g., not just off-site construction of equipment) or a contractual obligation that cannot be cancelled or modified without substantial loss to the owner or operator. The proposed revision to the cogeneration unit definition would apply only to boilers where construction of the unit and of its cogeneration equipment commenced on or before the above-referenced cut-off date and would have the effect of applying the following definition to such boilers ( *see* also proposed regulatory text): Cogeneration unit means a stationary, fossil-fuel-fired boiler (for the CAIR model rules and the CAIR FIP) or stationary, coal-fired boiler (for CAMR and the proposed CAMR Federal Plan):
(1)Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and
(2)Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—
(i)For a topping-cycle cogeneration unit,
(A)Useful thermal energy not less than 5 percent of total energy output; and
(B)Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input from fossil fuel, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input from fossil fuel, if useful thermal energy produced is less than 15 percent of total energy output.
(ii)For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input from fossil fuel. This revised definition would not apply to boilers failing to meet the commence construction requirements. For such units the cogeneration unit definition—and the efficiency standard in particular—would remain as finalized in the CAIR model rules, the CAIR FIP and CAMR, and in the proposed CAMR Federal Plan. Nor would the revised definition apply to combustion turbines. For combustion turbines (regardless of their commence construction dates) the cogeneration unit definition—and the efficiency standard in particular—would remain as finalized in the CAIR model rules, the CAIR FIP and CAMR, and in the proposed CAMR Federal Plan. However, as discussed above, EPA is also requesting comment on revising the efficiency standard, or the definition of “total energy input,” to specify the formula for calculating a unit's total energy input. Any such revision would be applicable in determining the efficiency of all units under the cogeneration unit definition whether or not the units are biomass cogeneration units that would be covered by a limitation on the categories of fuel included in determining energy input. Although EPA proposes to revise the cogeneration unit definition only for boilers where construction of the units and their cogeneration equipment commenced on or before April 25, 2007, the Agency requests comment on the choice of the cut-off date for the revised cogeneration unit definition, whether any specific, different cut-off date should be used, and whether the cogeneration unit definition should be revised for all units regardless of their commence construction dates. Additionally, EPA requests comment on not changing the cogeneration unit definition at all. EPA also requests comment on an alternative proposal that would revise the efficiency standard in the cogeneration unit definition to specifically exclude heat input from biomass fuel, rather than revising the standard to include heat input from fossil fuel only. This alternative proposal would narrowly limit the exclusion of heat input to the non-fossil fuel (i.e., biomass) whose high moisture content, combined with the other factors discussed above (e.g., relatively low pressure and temperature unit design conditions and relatively small boilers and steam turbines), would be the basis for EPA's proposed exemption. The heat input from other non-fossil fuels (e.g., non-fossil-fuel process gases) that lack the same level of moisture and that may not be predominantly used in these types of units would not be excluded from the efficiency calculation. This would avoid expanding the cogeneration unit exemption to units that cogenerate but lack the unique combination of characteristics on which EPA proposes to base the exemption. The efficiency calculation would be based on total energy input excluding input from biomass fuel. EPA requests comment on using the following definition of the term “biomass” in 26 U.S.C. 48B(c)(4), which was added to the Internal Revenue Code by Section 1307 of the Energy Policy Act of 2005 (Pub. L. 109-58), for purposes of the alternative proposed revision to the efficiency standard: *Biomass* means:
(1)Any agricultural or plant waste;
(2)Any byproduct of wood or paper mill operations, including lignin in spent pulping liquors; and
(3)Any other products of forestry maintenance;
(4)Provided that the term ‘Biomass’ does not include paper that is commonly recycled. The Agency also requests comment on whether a different definition of biomass should be used for this alternative proposal. B. Emissions Impact of Proposed Action EPA analyzed the emissions impact of this proposed action using the methodology explained below. For this analysis, EPA used Energy Information Administration
(EIA)data because detailed EPA data was not available. Most units potentially affected by today's proposed rule change have not been required to report to EPA in the past under existing programs such as the Acid Rain Program or the NO <sup>X</sup> SIP Call. While EPA has data about many of these sources as part of the National Emission Inventory (NEI), the NEI does not provide information at the unit level necessary to determine if units are cogenerating or selling electricity to the grid. Therefore, NEI data is not sufficient to make estimates regarding which units might be affected by today's proposed rule change. We used EIA data to determine which units would potentially be affected and to estimate the potential impacts of the proposed change. For the CAIR model rules and the CAIR FIP, we generated a list of biomass cogeneration units that serve generators with nameplate capacity greater than 25 MW in CAIR states. We assumed that all of these units could potentially be included in the CAIR and CAIR FIP trading programs because any biomass unit might use fossil fuel for start-up, combustion stabilization, or enhancement of electricity and steam production. From this list we removed units that reported to EIA that they do not have the ability to sell power to the grid; we assumed that these units would not be affected by the proposed revision to the cogeneration unit definition because they are not producing electricity for sale and would not be potentially included in the CAIR and CAIR FIP trading programs. We also removed from the list some units that reported having the ability to sell power to the grid; because their historical electricity sales data reported to EIA indicated sales above the threshold in the cogeneration unit definition 8 (i.e., more than 1/3 potential electric output capacity or 219,000 MWh supplied to a utility power generation system for sale), we assumed these units would not qualify for the cogeneration unit exemption even with the proposed revision of the cogeneration unit definition. For the remaining units on the list, based on fuel use data from EIA and assumed performance of the units with various fuels, we analyzed whether these units are likely to meet the efficiency standard in the cogeneration unit definition as currently written. We removed from the list any units that our analysis indicated are likely to meet the efficiency standard as written because their status under the CAIR model cap-and-trade rules or the CAIR FIP would not be affected by the proposed change. 8 Analysis of electricity sales data was based on two years of data, 1999 and 2000. After taking the above steps, the remaining units on the list are ones that may be affected by the proposed rule change, i.e., units that we assumed would not be exempt from state rules incorporating the CAIR model trading rules or the CAIR FIP trading programs as written, but that could become exempt if the proposed rule change is finalized as proposed. We estimated annual NO <sup>X</sup> and SO <sup>2</sup> emissions from this remaining group of units. *See* Table II-1. For CAMR and the proposed CAMR Federal Plan, using EIA data we generated a list of cogeneration units burning both coal and biomass that serve a generator with nameplate capacity greater than 25 MW in CAMR states, i.e., nationwide. Then we took the same steps as described above for the CAIR analysis, with the remaining units being ones that may be affected by the proposed rule change, i.e., units that we assumed would not be exempt from CAMR or the CAMR Federal Plan as written but may become exempt with the proposed rule change. We estimated annual Hg emissions from this remaining group of units. *See* Table II-1. As shown in the table, emissions from units whose status under the CAIR model rules or the CAIR FIP may be affected by the proposed rule change are estimated to be on the order of 25,000 tons per year for both NO <sup>X</sup> and SO <sup>2</sup> . These emissions are quite small compared to the size of the regionwide emission caps under CAIR, which are 1.5 and 1.3 million tons of NO <sup>X</sup> for the first and second phases of the annual NO <sup>X</sup> program, respectively, and 3.7 and 2.6 million tons of SO <sup>2</sup> for the first and second phases of the SO <sup>2</sup> , program, respectively (i.e., for NO <sup>X</sup> , about 1.6 percent of the phase I cap and 1.9 percent of the phase II cap, and for SO <sup>2</sup> about 0.6 percent of the phase I cap and 0.9 percent of the phase II cap). 9 9 Arkansas is included in CAIR for the ozone-season NO <sup>X</sup> program only, not for the annual NO <sup>X</sup> and SO <sup>2</sup> programs. Because these NO <sup>X</sup> emission estimates include annual NO <sup>X</sup> emissions for units in Arkansas, the estimates slightly overstate the potential impact of the proposed rule change for units in Arkansas. Emissions from units whose status under CAMR or the proposed CAMR Federal Plan may be affected by the proposed rule change are estimated to be on the order of 0.02 tons of Hg per year. These emissions are very small compared to the size of the nationwide emission caps under CAMR which are 38 and 15 tons of Hg for the first and second phases, respectively (i.e., less than 0.1 percent of the phase I cap and about 0.1 percent of the phase II cap). Another way to look at the magnitude of emissions represented by units that may be affected by the proposed rule change is to compare emissions from this group of units to emissions from biomass cogeneration units that we assumed are already exempt because they can meet the efficiency standard as currently written. Table II-2 shows estimated annual NO <sup>X</sup> , SO <sup>2</sup> , and Hg emissions for this group of units. (Note that this group excludes units that reported to EIA that they do not have the ability to sell power to the grid and units that reported the ability to sell power and whose historic sales exceed the electricity sales threshold for the exemption.) As shown in the table, the emissions from the group of units whose regulatory status we assumed would change under this proposed rule change are less than emissions from the group of biomass cogeneration units who we assumed are already exempt from these rules because they can meet the efficiency standard as currently written. EPA's analysis also suggests that, on average, the estimated emissions per unit are lower from the group whose regulatory status we assumed would change compared to the group we assumed are already exempt from these rules because they can meet the efficiency standard. It is expected that emission rates at units burning proportionally more biomass—which is the group whose regulatory status we assumed would change—will generally be lower than emission rates at units burning less biomass. It is important to note that EPA emissions estimates in Tables II-1 and II-2 are based on a rough estimate of the universe of units that might be affected by the proposed rule change. More detailed information for each unit is necessary in order to make a definitive determination as to whether the particular unit would be able to meet the efficiency standard as written or as proposed to be modified. Table II-1.—Estimate of Biomass Cogeneration Units Potentially Excluded From CAIR and CAMR by Proposed Rule Change and Estimate of Their Emissions CAIR NO <sup>X</sup> CAIR SO <sup>2</sup> CAMR Hg Estimated number of units potentially affected by proposed rule change 55 46 6 Estimated annual emissions from units potentially affected by proposed rule change
(tons)24,200 23,800 0.02 (40 lbs) Table II-2.—Estimate of Biomass Cogeneration Units Assumed Excluded From CAIR and CAMR and Estimate of Their Emissions CAIR NO <sup>X</sup> CAIR SO <sup>2</sup> CAMR Hg Estimated number of units assumed to meet efficiency standard as written 31 28 30 Estimated annual emissions from units assumed to meet the efficiency standard as written
(tons)22,000 59,200 0.24 (480 lbs) Finally, units that might become exempt cogeneration units if today's proposed rule changes are finalized may be required to make emission reductions under programs other than CAIR or CAMR. Federal requirements exist to protect areas of most concern, including Best Available Retrofit Technology
(BART)requirements for sources in proximity to specially protected Class 1 areas. A review of available information indicates that the majority (about two-thirds) of the cogeneration units that may be affected by the proposed rule change may be required to install NO <sup>X</sup> and SO <sup>2</sup> controls in response to BART requirements. It is also likely that biomass cogeneration units that co-fire coal that may become exempt units under today's proposed rule change will be required to comply with the boiler MACT requirements, which include mercury emission limits. C. State Emissions Budgets EPA does not propose to change the NO <sup>X</sup> , SO <sup>2</sup> , or Hg State emission budgets under CAIR and CAMR. As discussed above, the estimated amount of emissions from units potentially affected by today's proposed action is minimal compared to the size of the applicable regionwide
(CAIR)and nationwide
(CAMR)caps. In addition, States have made significant progress toward the implementation of CAIR and CAMR based on the emission budgets that were established in those rules. Proposing and finalizing revised State emission budgets would take substantial effort by many States and EPA and considerably delay CAIR and CAMR implementation in order to make slight reductions in emissions caps. The CAIR emission budgets are in 40 CFR 51.123(e)(2) and (q)(2) and 51.124(e)(2) and CAMR emission budgets are in 40 CFR 60.24(h)(3). Discussion of development of the CAIR and CAMR State emission budgets are in 70 FR 25162 and 70 FR 28606, respectively. The Agency also seeks comment on changing the budgets to reflect this change in the definition of cogeneration unit. D. Impact of Proposed Action on CAIR and CAMR Implementation The Agency recognizes that States have made significant progress toward the implementation of CAIR and CAMR and that finalizing this proposed change in the cogeneration unit definition and in the applicability provisions of the CAIR model rules and CAMR would require States to change CAIR SIPs and CAMR State Plans. If EPA finalizes today's proposed rule change, we will carefully consider the timing of the regulatory action in relation to the implementation timeline. The Agency understands that there may be implementation concerns regarding today's proposal and seeks comments on what those implementation concerns are. The Agency is particularly interested in comments regarding timing of this action in relation to implementation activities. EPA realizes that some States may allocate allowances to cogeneration units that might be affected by today's proposal before the proposal is finalized. If the proposal is finalized, some such units may no longer be required to hold allowances. The Agency believes that this could be addressed by the State's SIP revision or State Plan. For example, the SIP revision or State Plan adopting revisions making some units exempt from the allowance-holding requirement could require the affected units to surrender their allocations for inclusion in the State's new unit set-aside. If the State would require the unit to surrender their allocations, the SIP revision or State Plan should indicate how allowances would be handled. Note that a State could also choose not to require the units to surrender allowances even though the units were no longer covered by the rule. A State has flexibility to choose how it allocates allowances, although the allocations must be consistent with the State's approved allocation methodology. EPA seeks comment on the potential impact of the revision of the cogeneration unit definition and the applicability provisions on the allowance allocation process. EPA is also seeking comment on an alternative proposal whereby the Agency would modify the CAIR to allow States intending to join the EPA-administered CAIR trading programs to choose which cogeneration unit definition to use. The CAIR currently allows States to join the EPA-administered trading programs only if they adopt the model rules with limited modifications. Under this alternative proposal, EPA would change the cogeneration unit definition in the model trading rules, but allow States to join the EPA-administered trading programs even if they continued to use the existing cogeneration unit definition in the model trading rules. Thus, States could participate in the EPA-administered trading programs regardless of whether they choose to use the definition as currently written or any revised definition that may be finalized in this rulemaking. In the CAIR FIP, EPA would change the cogeneration unit definition as proposed today. Under this alternative, a State that chose to use the cogeneration unit definition as currently written would not need to revise the definition in the State's CAIR SIP. This could lead to slightly different applicability provisions among the States. EPA recognizes that some States may have laws that prohibit the State from having more stringent requirements than the requirements mandated by EPA (as discussed above, EPA believes that the proposed change would have only a slight impact on emissions). EPA seeks comment on whether this alternative would ease any implementation concerns. Although this alternative would provide an additional area of flexibility for States in the CAIR model cap-and-trade rules, EPA does not contemplate adding this flexibility to the abbreviated SIP revision option that was finalized in the CAIR FIP. If EPA changes the cogeneration unit definition in the CAIR FIP as proposed, States that chose to use an abbreviated SIP revision to allocate allowances under a FIP could modify their allocation method to accommodate the revised FIP cogeneration unit definition if they chose to do so. EPA does not propose under this alternative that States could decide which definition of cogeneration unit to use for State Plans under CAMR, however, because CAMR specifies the category of units from which States must obtain emission reductions (coal-fired electric generating units as defined in the rule) in contrast to CAIR where States have flexibility in the choice of sources to control. The Agency seeks comment on whether this flexibility could or should be an alternative for CAMR State Plans. (In any case, EPA does not contemplate this alternative as an added flexibility for States to implement under the proposed CAMR Federal Plan.) Similar to States under the CAIR FIP, States may choose their allocation method for allowances under the CAMR proposed Federal Plan using a State allocation methodology. III. Minor Corrections to CAIR and the Acid Rain Program Regulations and Minor Revisions to the Boiler MACT A. CAIR and the Acid Rain Program Regulations In addition to the above-described rule revisions, EPA is proposing certain minor corrections to CAIR, the CAIR model cap-and-trade rules, and the Acid Rain Program regulations. On April 28, 2006, EPA promulgated a final rule revising several definitions used in both the CAIR and in the CAIR model cap-and-trade rules. While the rule text in the April 28, 2006 final rule incorporated the revisions to the definitions in the CAIR model cap-and-trade rules, the final rule mistakenly did not also include rule text reflecting conforming changes to the definitions of the same terms in the CAIR, i.e., to the definitions for “Allocation or allocation”, “Combustion turbine”, “Nameplate capacity”, and “Maximum design heat input”. EPA proposes in today's action to implement these conforming changes in the definitions for these terms in § 51.123(cc) and
(q)and § 51.124(q) for the reasons explained in that final action. With regard to the CAIR model cap-and-trade rules, EPA is proposing a minor correction of the definition of “Permitting authority”. For all States subject to CAIR, this term is intended to include the agencies authorized to issue CAIR permits under the regulations approved by the Administrator for the EPA-administered CAIR cap-and-trade programs. Some States have incorporated by reference, or intend to incorporate by reference, the permitting provisions of the CAIR model cap-and-trade rules. However, many other States have promulgated, or intend to promulgate, their own permitting provisions concerning the processing and issuing of CAIR permits under the EPA-administered cap-and-trade programs. The existing definition refers only to permitting authorities issuing CAIR permits under the permitting provisions of the CAIR model cap-and-trade rules and not to permitting authorities governed by States' own permitting provisions that may be approved into SIPs by the Administrator under CAIR. Today's proposed correction—i.e., the elimination of the references, in the current “Permitting authority” definition, to subparts CC, CCC, and CCCC of the CAIR model cap-and-trade rules—would correct this technical problem. With regard to the Acid Rain Program regulations, EPA is today proposing minor corrections to two parts of the regulations. In Part 72, EPA is proposing a non-substantive correction in wording in the Certificate of Representation requirements so that the provision would have the same wording as comparable provisions in the CAIR model cap-and-trade rules. This would facilitate using a single Certificate of Representation form for all of these trading programs. In Part 78, EPA is proposing corrections that would make it clear that the administrative appeals procedures apply to all final actions of the Administrator under the EPA-administered cap-and-trade programs whether the programs are governed by the CAIR model cap-and-trade rule provisions that many States are incorporating by reference or whether the programs are governed by the State's own cap-and-trade rules approved by the Administrator. B. Boiler MACT EPA is also proposing in today's action a change to clarify the provision in the boiler MACT that explicitly excludes from that rule “mercury budget units covered by 40 CFR part 60, subpart HHHH” (40 CFR 63.7491(c)). EPA intended to exclude from the boiler MACT all units subject to CAMR (i.e., all electric generating units (EGU's) as defined in CAMR) and not just those units (i.e., Hg Budget units) that become subject to the EPA-administered Hg Budget Trading Program under 40 CFR part 60, subpart HHHH ( *see* 71 FR 77109 explaining that EPA had amended the boiler MACT to exclude “units subject to CAMR”). All EGUs under CAMR, whether covered by a State Plan that adopts the Hg Budget Trading Program or that adopts other controls that meet CAMR requirements, are subject to the State EGU Hg budgets established by CAMR. In excluding EGUs from the boiler MACT, EPA did not intend to distinguish among EGUs based on whether the State in which an EGU is located is participating in the Hg Budget Trading Program. Under today's proposal, EGUs (i.e., Hg Budget units) in States participating in that program would continue to be excluded from the boiler MACT, and the regulatory language would be revised to include, in the exclusion, all EGUs covered by CAMR. In order to properly characterize all of the units that EPA originally intended to exclude, EPA proposes essentially to replace, in 40 CFR 63.7491(c), the term “Mercury Budget Unit” by the broader term “Electric Generating Unit”. IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order
(EO)12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review under the EO. This action proposes relatively minor revisions to the definition of “cogeneration unit” in the CAIR model cap-and-trade rules, CAIR FIP, CAMR, including the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan. It also proposes some other minor, technical rule revisions to the CAIR, the Acid Rain Program, and the boiler MACT. For today's action, EPA is relying on the economic analysis conducted for CAIR, CAMR, and the boiler MACT that are presented in the Regulatory Impact Analyses for those actions. B. Paperwork Reduction Act This action does not impose any new information collection burden. This action proposes relatively minor revisions to the definition of “cogeneration unit” in the CAIR model cap-and-trade rules, CAIR FIP, CAMR, including the model cap-and-trade rule, and the proposed CAMR Federal Plan. It also proposes some other minor, technical rule revisions to the CAIR, the Acid Rain Program, and the boiler MACT. The paperwork reduction requirements for this action are satisfied through the Information Collection Requests
(ICRs)submitted to OMB for review and approval as part of CAIR, CAMR and the boiler MACT. The OMB has previously approved the information collection requirements contained in the existing CAIR, CAMR, and boiler MACT regulations (70 FR 25313, May 12, 2005, 70 FR 28643, May 18, 2005, and 70 FR 55248 September 13, 2004, respectively) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* For the CAIR and CAMR ICRs, OMB has assigned control numbers 2060-0570 and 2060-0567, respectively (EPA No. 2152.02 and 2137.02). OMB also has previously approved the information collection requirements contained in the existing boiler MACT regulations and has assigned OMB control number 2060-0551 (EPA No. 2028.02). A copy of the OMB approved ICRs may be obtained from Susan Auby, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460 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 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 will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(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 today's proposed rule on small entities, EPA has determined 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, among other possibilities, the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. EPA is proposing to revise the thermal efficiency standard in the cogeneration unit definition, which exists in the CAIR model trading rules, CAIR FIP, CAMR, including the CAMR model trading rule, and proposed CAMR Federal Plan. As a result, some additional cogeneration units will likely be exempt from the CAIR FIP, CAMR and the proposed CAMR Federal Plan. We have therefore concluded that the changes to the CAIR FIP, CAMR, including the CAMR model trading rule, and the proposed CAMR Federal Plan in today's proposed rule will not have any significant adverse impact on small entities and may relieve regulatory burden on some small entities that would have been subject to these programs in the absence of today's proposed rule change. CAIR and the CAIR model trading rules do not establish requirements applicable to small entities and thus a regulatory flexibility analysis is not required for the revisions to the CAIR model trading rules. CAIR requires States to submit SIP revisions to achieve the necessary emission reductions and provides model trading rules that the States may adopt to achieve these reductions. However, because States have the discretion under CAIR to choose the sources to regulate and the emissions reductions to be achieved by the regulated sources, EPA cannot predict the effect of the change to the definition in the CAIR model rules on small entities. In States that choose to adopt the model rules with the modified definition of cogeneration unit, the likely result would be the exemption of some additional cogeneration units from the EPA-administered CAIR cap-and-trade programs. With regard to CAMR, the change to the cogeneration definition is likely to result in some additional cogeneration units becoming exempt from CAMR, as well as from the EPA-administered CAMR cap-and-trade program, including potentially some small entities. Because the change is likely to relieve regulatory burden, the change will not have a significant economic impact on a substantial number of small entities. The proposed technical changes to the boiler MACT clarify that any EGU subject to CAMR (whether or not the EGU is in a State that is participating in the EPA-administered Hg cap-and-trade program) is excluded from the boiler MACT. This change will not have any significant adverse impact on small entities and may relieve regulatory burden on some small entities that would have been subject to the boiler MACT in the absence of today's proposed rule change. The other proposed rule revisions would not make any substantive changes in the requirements of the existing rules and, therefore, would not have any potential impacts on small entities. We continue to be interested in the potential impacts of the proposed rule 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 (Pub. L. 104-4) (UMRA), establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under UMRA section 202, 2 U.S.C. 1532, EPA generally must prepare a written statement, including a cost-benefit analysis, for any proposed or final rule that “includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more * * * in any one year.” A “Federal mandate” is defined under UMRA section 421(6), 2 U.S.C. 658(6), to include a “Federal intergovernmental mandate” and a “Federal private sector mandate.” A “Federal intergovernmental mandate,” in turn, is defined to include a regulation that “would impose an enforceable duty upon State, local, or Tribal governments,” except for, among other things, a duty that is “a condition of Federal assistance” (UMRA section 421(5)(A)(i)(I), 2 U.S.C. 658(5)(A)(i)). A “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector,” with certain exceptions (UMRA section 421(7)(A), 2 U.S.C. 658(7)(A)). Before promulgating an EPA rule for which a written statement is needed under UMRA section 202, UMRA section 205, 2 U.S.C. 1535, 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. EPA prepared a written statement meeting the requirements of section 202 of UMRA for the final CAIR and CAMR and boiler MACT rulemaking processes. Most of the changes proposed in today's action relate to the definition of cogeneration unit, which results in a minor change in the applicability criteria for the CAIR model trading rules, CAIR FIP, CAMR, including the CAMR model trading rule, and the proposed CAMR Federal Plan that will not significantly alter the impacts of these rules. The technical change proposed for the boiler MACT in today's action relates to the exclusion of EGUs and makes that exclusion consistent with the intended scope of the boiler MACT. The other proposed rule changes would make no substantive changes in the requirements of the existing rules. Thus, the analyses already prepared for CAIR, CAMR, and the boiler MACT are applicable to today's action. In summary, today's rule contains no Federal mandates for State, local, or tribal governments or the private sector because this action is likely to actually relieve regulatory burden by making more units eligible for the cogeneration unit exemption. Furthermore, as EPA stated in the final CAIR and CAMR, EPA is not directly establishing any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments. Thus, EPA is not obligated to develop under UMRA section 203 a small government agency plan. Furthermore, in a manner consistent with the intergovernmental consultation provisions of UMRA section 204, EPA carried out consultations with the governmental entities affected by this rule. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (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 EO 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.” This proposed rule does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, EO 13132 does not apply to this proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This proposal does not have “Tribal implications” as specified in EO 13175. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, entitled “Protection of Children from Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that
(1)is determined to be “economically significant” as defined under EO 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, Section 5-501 of the EO directs the Agency to 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. This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This proposed rule would result in little change in emissions levels and the environmental benefits projected in the final CAIR and CAMR because the likely effect of the proposed rule would be to exempt a small number of units with a very small amount of emissions compared to the overall emissions caps. Similarly, the proposed change to the boiler MACT would result in little change in emissions levels and projected environmental benefits. The health and safety risks are essentially unchanged from those analyzed in CAIR, the CAIR FIP, CAMR, the proposed CAMR Federal Plan, and the boiler MACT. The public is invited to submit or identify peer-reviewed studies and data, of which EPA may not be aware, that assessed results of early life exposure to SO <sup>2</sup> , NO <sup>X</sup> or Hg. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA requires EPA to provide Congress, through OMB, with explanations when EPA decides not to use available and applicable voluntary consensus standards. This proposed action does not propose the use of any additional technical standards beyond those cited in the final CAIR, CAMR and boiler MACT. Therefore, EPA is not considering the use of any additional voluntary consensus standards for this action. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” requires Federal agencies to consider the impact of programs, policies, and activities on minority populations and low-income populations. According to EPA guidance, 10 agencies are to assess whether minority or low-income populations face risks or a rate of exposure to hazards that are significant and that “appreciably exceed or is likely to appreciably exceed the risk or rate to the general population or to the appropriate comparison group.” (EPA, 1998) 10 U.S. Environmental Protection Agency, 1998. Guidance for Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analyses. Office of Federal Activities, Washington, DC, April, 1998. In accordance with Executive Order 12898, EPA expects this proposal to have no disproportionate negative impacts on minority or low income populations because the emissions reduced by CAIR and CAMR remain essentially the same. List of Subjects 40 CFR Part 51 Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Coal, Electric power plants, Intergovernmental relations, Metals, Natural gas, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 62 Environmental protection, Air pollution control, Hazardous Substances, Reporting and recordkeeping requirements. 40 CFR Part 63 Administrative practice and procedure, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. 40 CFR Part 72 Acid rain, Air pollution control, Carbon dioxide, Electric utilities, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 78 Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Electric utilities, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 96 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Air pollution, control, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 97 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen oxides, Sulfur dioxide, Reporting and recordkeeping requirements. Dated: April 16, 2007. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, parts 51, 60, 62, 63, 72, 78, 96, and 97 of chapter 1 of title 40 of the Code of Federal Regulations are proposed to be amended as follows: PART 51—[AMENDED] 1. The authority citation for part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q. 2. Section 51.123(cc) is amended as follows: a. In the definition of “Allocate or allocation”, by revising the word “source” to read “source or other entity”; b. In the definition of “Cogeneration unit”, by revising, in paragraph (2), the words “calendar year after which” to read “calendar year after the calendar year in which” and by adding a new paragraph (3); c. In paragraph
(2)of the definition of “Combustion turbine”, by revising the words “any associated heat recovery steam generator” to read “any associated duct burner, heat recovery steam generator,”; d. By revising the definition of “Maximum design heat input”; e. In the definition of “Nameplate capacity”, by revising the words “other deratings) as specified” to read “other deratings as of such installation as specified” and by revising the words “maximum amount as specified” to read “maximum amount as of such completion as specified”; and f. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 51.123 Findings and requirements for submission of State implementation plan revisions relating to emissions of oxides of nitrogen pursuant to the Clean Air Interstate Rule.
(cc)* * * *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this paragraph, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. *Maximum design heat input* means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit. 3. Section 51.124(q) is amended as follows: a. In the definition of “Allocate or allocation”, by revising the word “source” to read “source or other entity”; b. In the definition of “Cogeneration unit”, by revising, in paragraph (2), the words “calendar year after which” to read “calendar year after the calendar year in which” and by adding a new paragraph (3); c. In paragraph
(2)of the definition of “Combustion turbine”, by revising the words “any associated heat recovery steam generator” to read “any associated duct burner, heat recovery steam generator,”; d. By revising the definition of “Maximum design heat input”; e. In the definition of “Nameplate capacity”, by revising the words “other deratings) as specified” to read “other deratings as of such installation as specified” and by revising the words “maximum amount as specified” to read “maximum amount as of such completion as specified”; and f. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 51.124 Findings and requirements for submission of State implementation plan revisions relating to emissions of sulfur dioxide pursuant to the Clean Air Interstate Rule.
(q)* * * *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this paragraph, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. *Maximum design heat input* means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit. PART 60—[AMENDED] 4. The authority citation for part 60 is revised to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 5. Section 60.24(h)(8) is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); and b. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 60.24 Emission standards and compliance schedules.
(h)* * *
(8)* * * *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this paragraph, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. 6. Section 60.4102 is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); and b. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 60.4102 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. PART 62—[AMENDED] 7. The authority citation for Part 62 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 8. Section 62.15902 as proposed on December 22, 2006 (71 FR 77110) is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); and b. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 62.15902 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 9. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 10. Section 63.7491 is amended by revising paragraph
(c)to read as follows: § 63.7491 Are any boilers or process heaters not subject to this subpart?
(c)An electric utility steam generating unit (including a unit covered by 40 CFR part 60, subpart Da) or an electric generating unit as defined in 40 CFR 60.24(h)(8) (including a Hg Budget unit covered by the provisions of a State Plan approved under 40 CFR 60.24(h)(6)). PART 72—PERMITS REGULATION 11. The authority citation for part 72 is revised to read as follows: Authority: 42 U.S.C. 7601 and 7651 *et seq.* 12. Section 72.24 is amended, in paragraph (a)(9) introductory text, by revising the words “life-of-the-unit, firm power contractual arrangements” to read “a life-of-the-unit, firm power contractual arrangement”. PART 78—APPEAL PROCEDURES 13. The authority citation for part 78 is revised to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7411, 7426, 7601, and 7651, *et seq.* 14. Section 78.1 is amended by revising paragraph (a)(1) to read as follows: § 78.1 Purpose and scope. (a)(1) This part shall govern appeals of any final decision of the Administrator under subpart HHHH of part 60 of this chapter or State regulations approved under § 60.24(h)(6)(i) or
(ii)of this chapter, subpart LLL of part 62 of this chapter, part 72, 73, 74, 75, 76, or 77 of this chapter, subparts AA through II of part 96 of this chapter or State regulations approved under § 51.123(o)(1) or
(2)of this chapter, subparts AAA through III of part 96 of this chapter or State regulations approved under § 51.124(o)(1) or
(2)of this chapter, subparts AAAA through IIII of part 96 of this chapter or State regulations approved under § 51.123(aa)(1) or
(2)of this chapter, or part 97 of this chapter; *provided* that matters listed in § 78.3(d) and preliminary, procedural, or intermediate decisions, such as draft Acid Rain permits, may not be appealed. All references in paragraph
(b)of this section and in § 78.3 subpart HHHH of part 60 of this chapter, to subparts AA through II of part 96 of this chapter, subparts AAA through III of part 96 of this chapter, and subparts AAAA through IIII of part 96 of this chapter shall be read to include the comparable provisions in State regulations approved under § 60.24(h)(6)(i) or
(ii)of this chapter, § 51.123(o)(1) or
(2)of this chapter, § 51.124(o)(1) or
(2)of this chapter, and § 51.123(aa)(1) or
(2)of this chapter, respectively. PART 96—[AMENDED] 15. The authority citation for part 96 continues to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7601, and 7651, *et seq.* 16. Section 96.102 is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); b. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CC of this part”; and c. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 96.102 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. 17. Section 96.202 is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); b. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCC of this part”; and c. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 96.202 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007 and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. 18. Section 96.302 is amended as follows: a. In the definition of “Cogeneration unit”, a new paragraph (3); b. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCCC of this part”; and c. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 96.302 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. 19. The authority citation for part 97 continues to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, *et seq.* 20. Section 97.102 is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); b. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CC of this part”; and c. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 97.102 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Commencing construction* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. 21. Section 97.202 is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); b. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCC of this part”; and c. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 97.202 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. 22. Section 97.302 is amended as follows: a. In the definition of “Cogeneration unit”, by adding a new paragraph (3); b. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCCC of this part”; and c. By adding in alphabetical order a new definition of “Construction commenced” to read as follows: § 97.302 Definitions. *Cogeneration unit* means * * *
(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input only from fossil fuel if the unit is a boiler—
(i)For which construction commenced on or before April 25, 2007; and
(ii)Having equipment used to produce electricity and useful thermal energy through sequential use of energy, for which construction commenced on or before April 25, 2007. *Construction commenced* means, with regard to a boiler or equipment under paragraph
(3)of the definition of *Cogeneration unit* in this section, that the owner or operator has undertaken, or entered into a contractual obligation to undertake and complete within a reasonable time, a continuous program of fabrication, erection, or installation of the boiler or equipment. [FR Doc. E7-7536 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R08-OAR-2006-0163; FRL-8305-2] Approval and Promulgation of Air Quality Implementation Plans; State of Montana; Missoula Carbon Monoxide Redesignation to Attainment, Designation of Areas for Air Quality Planning Purposes, and Approval of Related Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve State Implementation Plan
(SIP)revisions submitted by the State of Montana. On May 27, 2005, the Governor of Montana submitted a request to redesignate the Missoula “moderate” carbon monoxide
(CO)nonattainment area to attainment for the CO National Ambient Air Quality Standard (NAAQS). The Governor also submitted a CO maintenance plan which includes transportation conformity motor vehicle emission budgets
(MVEB)for 2000, 2010, and 2020. In addition, EPA is proposing to approve CO periodic emission inventories for 1993 and 1996 for the Missoula nonattainment area that the State had previously submitted. This action is being taken under section 110 of the Clean Air Act. DATES: Comments must be received on or before May 25, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2006-0163, by one of the following methods: — *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. — *E-mail:* *videtich.callie@epa.gov* and *fiedler.kerri@epa.gov.* — *Fax:*
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). — *Mail:* Callie A. Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. — *Hand Delivery:* Callie A. Videtich, Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-OAR-2006-0163. 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 *http://www.regulations.gov* or e-mail. The *http://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 *http://www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Kerri Fiedler, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone
(303)312-6493, and e-mail at: *fiedler.kerri@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. General Information II. What is the purpose of this action? III. What is the State's process to submit these materials to EPA? IV. EPA's Evaluation of the Missoula Redesignation Request and Maintenance Plan V. EPA's Evaluation of the Transportation Conformity Requirements VI. Consideration of Section 110(l) of the Clean Air Act VII. Proposed Action VIII. Statutory and Executive Order Reviews Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i)The words or initials *Act* or *CAA* mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii)The words *EPA, we, us* or *our* mean or refer to the United States Environmental Protection Agency.
(iii)The initials *NAAQS* mean National Ambient Air Quality Standard.
(iv)The initials *SIP* mean or refer to State Implementation Plan.
(v)The word *State* means the State of Montana, unless the context indicates otherwise. I. General Information (a). What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI* . Do not submit this information to EPA through *http://www.regulations.gov* or e-mail. 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. (b). *Tips for Preparing Your Comments.* When submitting comments, remember to: A. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). B. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. C. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. D. Describe any assumptions and provide any technical information and/or data that you used. E. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. F. Provide specific examples to illustrate your concerns, and suggest alternatives. G. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. Make sure to submit your comments by the comment period deadline identified. II. What is the purpose of this action? In this action, we are proposing approval of a change in the legal designation of the Missoula area from nonattainment for CO to attainment. We're proposing approval of the year 2000 attainment emission inventory and the maintenance plan that is designed to keep the area in attainment for CO for the next 13 years. We're also proposing approval of the transportation conformity motor vehicle emission budgets
(MVEB)for 2000, 2010, and 2020, and we're proposing approval of the 1993 and 1996 CO periodic emission inventories. We originally designated Missoula as nonattainment for CO under the provisions of the 1977 CAA Amendments (see 43 FR 8962, March 3, 1978). On November 15, 1990, the Clean Air Act Amendments of 1990 were enacted (Pub. L. 101-549, 104 Stat. 2399, codified at 42 U.S.C. 7401-7671q). Under section 107(d)(1)(C) of the Clean Air Act (CAA), we designated the Missoula area as nonattainment for CO because the area had been designated as nonattainment before November 15, 1990. Under section 186 of the CAA, Missoula was classified as a “moderate” CO nonattainment area with a design value less than or equal to 12.7 parts per million (ppm), and was required to attain the CO NAAQS by December 31, 1995. See 56 FR 56694, November 6, 1991. Further information regarding this classification and the accompanying requirements are described in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990.” See 57 FR 13498, April 16, 1992. Under the CAA, we can change designations if acceptable data are available and if certain other requirements are met. See CAA section 107(d)(3)(D). Section 107(d)(3)(E) of the CAA provides that the Administrator may not promulgate a redesignation of a nonattainment area to attainment unless:
(i)The Administrator determines that the area has attained the national ambient air quality standard;
(ii)The Administrator has fully approved the applicable implementation plan for the area under CAA section 110(k);
(iii)The Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
(iv)The Administrator has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and,
(v)The State containing such area has met all requirements applicable to the area under section 110 and part D of the CAA. Before we can approve the redesignation request, we must decide that all applicable SIP elements have been fully approved. Approval of the applicable SIP elements may occur simultaneously with our final approval of the redesignation request. That's why we are also proposing approval of the 1993 and 1996 CO periodic emission inventories and the year 2000 emission inventory. III. What is the State's process to submit these materials to EPA? Section 110(k) of the CAA addresses our actions on submissions of revisions to a SIP. The CAA requires States to observe certain procedural requirements in developing SIP revisions for submittal to us. Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to us. The Missoula City-County Air Pollution Control Board (MCCAPCB) held a public hearing for the Missoula CO redesignation request and the maintenance plan on November 18, 2004. The MCCAPCB adopted the Missoula CO redesignation request and maintenance plan on March 7, 2005. The Missoula CO redesignation request and maintenance plan were then forwarded to the Montana Department of Environmental Quality
(MDEQ)for the State to conduct its public hearing. The MDEQ held a public hearing for the Missoula CO redesignation request and the maintenance plan on April 22, 2005 after which the SIP materials were forwarded to the Governor for his submittal to EPA. These SIP revision materials were submitted by the Governor to us on May 27, 2005. We have evaluated the Governor's submittal and have concluded that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. By operation of law, under section 110(k)(1)(B) of the CAA, the Governor's May 27, 2005, submittal became complete on November 27, 2005. IV. EPA's Evaluation of the Missoula Redesignation Request and Maintenance Plan Under the CAA, we can change designations of areas if acceptable data are available and if certain other requirements are met. See CAA section 107(d)(3)(D). We have reviewed the Missoula area's redesignation request and maintenance plan (section 2.0) and believe that approval of the request is warranted, consistent with the requirements of CAA section 107(d)(3)(E) as presented in our section II above. As we noted above, before we can approve the redesignation request, we must decide that all applicable SIP elements have been fully approved. Approval of the applicable SIP elements may occur simultaneously with final approval of the redesignation request. That's why we are also proposing to approve the 1993 and 1996 periodic emission inventories and the year 2000 attainment inventory (to also suffice as the 1999 periodic emission inventory.) The following are descriptions of how the section 107(d)(3)(E) requirements are being addressed.
(a)Redesignation Criterion: The Area Must Have Attained the Carbon Monoxide
(CO)NAAQS Section 107(d)(3)(E)(i) of the CAA states that for an area to be redesignated to attainment, the Administrator must determine that the area has attained the applicable NAAQS. As described in 40 CFR 50.8, the national primary ambient air quality standards for carbon monoxide are 9 parts per million (10 milligrams per cubic meter) for an 8-hour average concentration not to be exceeded more than once per year, and 35 parts per million (40 milligrams per cubic meter) for a 1-hour average concentration not to be exceeded more than once per year. 40 CFR 50.8 continues by stating that the levels of CO in the ambient air shall be measured by a reference method based on 40 CFR part 50, Appendix C, and designated in accordance with 40 CFR part 53 or an equivalent method designated in accordance with 40 CFR part 53. Attainment of the CO standards is not a momentary phenomenon based on short-term data. Instead, we consider an area to be in attainment if each of the CO ambient air quality monitors in the area doesn't have more than one exceedance of the relevant CO standard over a one-year period. See 40 CFR 50.8 and 40 CFR 50, Appendix C. If any monitor in the area's CO monitoring network records more than one exceedance of the relevant CO standard during a one-year calendar period, then the area is in violation of the CO NAAQS. In addition, our interpretation of the CAA and EPA national policy 1 has been that an area seeking redesignation to attainment must show attainment of the CO NAAQS for at least a continuous two-year calendar period. In addition, the area must also continue to show attainment through the date that we promulgate the redesignation in the **Federal Register** . 1 Refer to EPA's September 4, 1992, John Calcagni policy memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment.” Montana's CO redesignation request for the Missoula area is based on an analysis of quality assured ambient air quality monitoring data that are relevant to the redesignation request. As presented in section 2.1.1 of the maintenance plan, ambient air quality monitoring data for consecutive calendar years 2000 through 2003 show a measured exceedance rate of the CO NAAQS of 1.0 or less per year, per monitor, in the Missoula nonattainment area. Further, we have reviewed ambient air quality data from 2004 through December 2006 and the Missoula area continues to show attainment of the CO NAAQS. All of these data were collected and analyzed as required by EPA (see 40 CFR 50.8 and 40 CFR 50, Appendix C) and have been archived by the State in our Air Quality System
(AQS)national database. Therefore, we believe the Missoula area has met the first component for redesignation: demonstration of attainment of the CO NAAQS. We note that the State has also committed, in the maintenance plan, to continue the necessary operation of the CO monitor in compliance with all applicable Federal regulations and guidelines.
(b)Redesignation Criterion: The Area Must Have Met All Applicable Requirements Under Section 110 and Part D of the CAA and Title II of the CAA To be redesignated to attainment, section 107(d)(3)(E)(v) requires that an area must meet all applicable requirements under section 110 and part D of the CAA. We interpret section 107(d)(3)(E)(v) to mean that for a redesignation to be approved by us, the State must meet all requirements that applied to the subject area prior to or at the time of the submission of a complete redesignation request. In our evaluation of a redesignation request, we don't need to consider other requirements of the CAA that became due after the date of the submission of a complete redesignation request. 1. CAA Section 110 Requirements On January 10, 1980, we approved revisions to Montana's SIP as meeting the requirements of section 110(a)(2) of the CAA (see 45 FR 2034). Although section 110 of the CAA was amended in 1990, most of the changes were not substantial. Thus, we have determined that the SIP revisions approved in 1980 continue to satisfy the requirements of section 110(a)(2). In addition, we have analyzed the SIP elements we are approving as part of this action, and we have determined they comply with the relevant requirements of section 110(a)(2). 2. Part D Requirements Before the Missoula “moderate” CO nonattainment area may be redesignated to attainment, the State must have fulfilled the applicable requirements of part D. Under part D, an area's classification indicates the requirements to which it will be subject. Subpart 1 of part D sets forth the basic nonattainment requirements applicable to all nonattainment areas, whether classified or nonclassifiable. Subpart 3 of part D contains specific provisions for “moderate” CO nonattainment areas. The relevant subpart 1 requirements are contained in sections 172(c) and 176. Our General Preamble (see 57 FR 13529, 13533, April 16, 1992) provides EPA's interpretations of the CAA requirements for “moderate” CO areas. The General Preamble (see 57 FR 13530, et seq.) provides that the applicable requirements of CAA section 172 are 172(c)(3) (emissions inventory), 172(c)(5) (new source review permitting program), 172(c)(7) (the section 110(a)(2) air quality monitoring requirements), and 172(c)(9) (contingency measures). It is also worth noting that we interpreted the requirements of sections 172(c)(2) (reasonable further progress—RFP) and 172(c)(6) (other measures) as being irrelevant to a redesignation request because they only have meaning for an area that is not attaining the standard. See EPA's September 4, 1992, memorandum entitled, “Procedures for Processing Requests to Redesignate Areas to Attainment”, and the General Preamble, 57 FR at 13564, dated April 16, 1992. Finally, the State has not sought to exercise the options that would trigger sections 172(c)(4) (identification of certain emissions increases) and 172(c)(8) (equivalent techniques). Thus, these provisions are also not relevant to this redesignation request. The relevant subpart 3 provisions were created when the CAA was amended on November 15, 1990 and appear in section 187 of the CAA. The new CAA requirements for a CO nonattainment area, classified as “moderate” with a design value of 12.7 ppm or less, that are applicable to Missoula are a 1990 base year inventory (CAA section 187(a)(1)), contingency provisions (CAA section 187(a)(3)), and periodic emission inventories (CAA section 187(a)(5)). A. Relevant CAA subpart 1 requirements. 1. Emissions Inventory. For the CAA section 172(c)(3) emissions inventory requirement, the State submitted a 1990 base year CO emissions inventory for the Missoula area on July 18, 1995 which met the requirements of section 172(c)(3) of the CAA. We approved this inventory on December 15, 1997 (62 FR 65613). 2. New Source Review
(NSR)and Prevention of Significant Deterioration (PSD). For the CAA section 172(c)(5) New Source Review
(NSR)requirements, the CAA requires all nonattainment areas to meet several requirements regarding NSR, including provisions to ensure that increased emissions will not result from any new or modified stationary major sources and a general offset rule. The State of Montana has a fully-approved NSR program (60 FR 36715, July 18, 1995.) The State also has a fully approved PSD program (60 FR 36715, July 18, 1995) that will apply, instead of nonattainment NSR, if we approve the redesignation to attainment. 3. Air Quality Monitoring Requirements. For the CAA section 172(c)(7) provisions (compliance with the CAA section 110(a)(2) Air Quality Monitoring Requirements), our interpretations are presented in the General Preamble (57 FR 13535). CO nonattainment areas are to meet the “applicable” air quality monitoring requirements of section 110(a)(2) of the CAA. We have determined that the Missoula area has met the applicable air quality monitoring requirements of section 110(a)(2) of the CAA. See our descriptions in section IV.A above. 4. Contingency Measures. Section 172(c)(9) of the CAA requires the submittal of contingency measures to be implemented in the event that an area fails to make reasonable further progress or to attain the NAAQS by the date applicable (which for a CO nonattainment area, with a design value of less than 12.7 ppm, was December 31, 1995.) To meet this requirement the State submitted a contingency measure, involving residential woodburning devices, on March 2, 1994. We approved this CO contingency measure on December 13, 1994 (59 FR 64133). 5. Conformity. Section 176 of the CAA contains requirements related to conformity. Although EPA's regulations (see 40 CFR 51.390) require that states adopt transportation conformity provisions in their SIPs for areas designated nonattainment or subject to an EPA-approved maintenance plan, we have decided that a transportation conformity SIP is not an applicable requirement for purposes of evaluating a redesignation request under section 107(d) of the CAA. This decision is reflected in EPA's 1996 approval of the Boston carbon monoxide redesignation. (See 61 FR 2918, January 30, 1996.) B. Relevant CAA subpart 3 requirements. 1. Emissions Inventory. For the CAA section 187(a)(1) emissions inventory requirement, the State submitted a 1990 base year CO emissions inventory for the Missoula area on July 18, 1995 which met the requirements of section 187(a)(1) of the CAA. We approved this inventory on December 15, 1997 (62 FR 65613). 2. Periodic emission inventories. For the CAA section 187(a)(5) periodic emissions inventory requirement, the State submitted CO periodic emission inventories
(PEI)for 1993 and 1996 on January 27, 2000. In addition, the State submitted a year 2000 CO emission inventory, on July 19, 2004, that qualifies for the 1999 PEI and is also the basis for the attainment year 2000 CO emission inventory that is part of the State's Missoula CO maintenance plan. We have reviewed these CO periodic emission inventories and have determined they contain comprehensive information with respect to point, area, non-road, and on-road mobile sources and were prepared in accordance with EPA guidance. We are proposing approval of the 1993 PEI, the 1996 PEI, and the year 2000 attainment inventory (for the 1999 PEI requirement) in conjunction with this action's proposed approval of the Missoula CO redesignation to attainment and maintenance plan. 3. CAA Title II requirements. The relevant CAA Title II requirement is contained in section 211(m)(1) which requires the implementation of an oxygenated fuels program for CO areas with a design value of 9.5 ppm or greater. A. Title II, Part A of the CAA: Oxygenated fuels program (CAA section 211(m)(1)). Section 211(m)(1) of the CAA requires the submittal of a SIP revision to implement an oxygenated fuels program for CO nonattainment areas with a design value of 9.5 ppm or greater. To address this requirement, the State submitted a SIP revision on November 6, 1992 for the implementation of an oxygenated fuels program in Missoula County. EPA approved this SIP revision on November 8, 1994 (see 59 FR 55585).
(c)Redesignation Criterion: The Area Must Have a Fully Approved SIP Under Section 110(k) of the CAA Section 107(d)(3)(E)(ii) of the CAA states that for an area to be redesignated to attainment, it must be determined that the Administrator has fully approved the applicable implementation plan for the area under section 110(k). As noted above, EPA previously approved SIP revisions based on the pre-1990 CAA as well as SIP revisions required under the 1990 amendments to the CAA. In this action, EPA is proposing approval of the Missoula area's 1993 periodic CO emissions inventory, the 1996 periodic CO emissions inventory, and the 2000 CO emission inventory (as meeting the 1999 periodic emissions inventory requirement). Thus, with our final approval of these SIP revisions, we will have fully approved the Missoula area's CO element of the SIP under section 110(k) of the CAA.
(d)Redesignation Criterion: The Area Must Show That the Improvement in Air Quality Is Due to Permanent and Enforceable Emissions Reductions Section 107(d)(3)(E)(iii) of the CAA provides that for an area to be redesignated to attainment, the Administrator must determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan, implementation of applicable Federal air pollutant control regulations, and other permanent and enforceable reductions. The CO emissions reductions for the Missoula area, that are further described in section 2.3 of the maintenance plan, were achieved primarily through an oxygenated fuels program, Federal Motor Vehicle Control Program, residential woodburning regulations, changes in the transportation infrastructure involving the reconstruction of the Brooks/South/Russell (B/S/R) intersection, and outdoor open burning regulations. These five control strategies are fully discussed in section 2.3 of the maintenance plan and are summarized below. 1. Oxygenated Fuels. As described in section 2.3.2.1 of the maintenance plan, since November of 1992, all gasoline sold within the Missoula CO nonattainment area must have a minimum oxygen content of 2.7% by weight from November 1st through the last day of February each year. The use of oxygenates in gasoline helps provide additional oxygen in the fuel for better combustion of the fuel in the engine and a decrease in tailpipe CO emissions. 2. Federal Motor Vehicle Control Program (FMVCP). Section 2.3.2.2 of the maintenance plan discusses the FMVCP which involves Federal provisions that require vehicle manufacturers to meet more stringent vehicle emission limitations for new vehicles in future years. These emission limitations are phased in (as a percentage of new vehicles manufactured) over a period of years. As new, lower emitting vehicles replace older, higher emitting vehicles (“fleet turnover”), emission reductions are realized for a particular area such as Missoula. 3. Residential Woodburning. As described in section 2.3.2.3 of the maintenance plan, in order to reduce the amount of CO emissions from residential woodburning, Missoula adopted progressively more stringent solid fuel burning device regulations. Currently, the only new solid fuel burning devices permitted in Missoula are pellet stoves and the regulations also require that most woodstoves be removed at the time of sale of a property. 4. Transportation Infrastructure. Section 2.3.2.4 of the maintenance plan describes the changes in transportation infrastructure that specifically address the B/S/R intersection. Violations of the CO NAAQS were occurring at the B/S/R intersection in the 1980s and an initial intersection reconstruction was completed in 1985. This effort involved restricting left turn lanes and adding right turn and departure lanes. The CO designation of nonattainment for Missoula in 1991 was again tied to monitoring data near the B/S/R intersection. The final reconstruction project involved the realignment of South Avenue such that South Avenue no longer enters the intersection. This construction effort was scheduled to be completed by the end of 2005. The South Avenue realignment simplified the intersection, reducing the projected peak-hour delay from 120 seconds to 20 seconds, and also allowed for the synchronization of all traffic lights along Brooks Street from Reserve to Mount. This reduces congestion along the whole corridor. 5. Outdoor Burning. Section 2.3.2.5 of the maintenance plan describes the provisions of Missoula's outdoor burning regulations. These regulations reduce the impact of outdoor burning, especially during December, January, and February, by requiring a permit for each burn, allowing only the burning of untreated lumber and natural vegetation, requiring burners to call the Outdoor Burning Hotline to confirm if any burning or air quality restrictions are in effect, establishing burning seasons to reduce the generation of smoke, and prohibiting outdoor burning during December, January, and February except for ceremonial bonfires, emergency burning, and essential wintertime burning. We have evaluated the various Local, State, and Federal control measures, the original 1990 base year CO emission inventory (62 FR 65613, December 15, 1997), the 1993 periodic CO emission inventory, the 1996 periodic CO emission inventory, and the 2000 attainment year CO inventory that was provided with the State's May 27, 2005 submittal and have concluded that the improvement in air quality in the Missoula nonattainment area has resulted from emission reductions that are permanent and enforceable.
(e)Redesignation Criterion: The Area Must Have a Fully Approved Maintenance Plan Under Section 175A of the CAA Section 107(d)(3)(E)(iv) of the CAA provides that for an area to be redesignated to attainment, the Administrator must have fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the promulgation of the redesignation, the State must submit a revised maintenance plan that demonstrates continued attainment for a subsequent ten-year period following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures, with a schedule for adoption and implementation, that are adequate to assure prompt correction of a violation. In addition, we issued further maintenance plan interpretations in the “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992), “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Supplemental” (57 FR 18070, April 28, 1992), and the EPA guidance memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” from John Calcagni, Director, Air Quality Management Division, Office of Air Quality and Planning Standards, to Regional Air Division Directors, dated September 4, 1992. In this **Federal Register** action, EPA is proposing approval of the maintenance plan for the Missoula nonattainment area because we have determined, as detailed below, that the State's maintenance plan meets the requirements of section 175A and is consistent with the documents referenced above. Our analysis of the pertinent maintenance plan requirements, with reference to the Governor's May 27, 2005, submittal, is provided as follows: 1. Emissions Inventories—Attainment Year and Projections EPA's interpretations of the CAA section 175A maintenance plan requirements are generally provided in the General Preamble (see 57 FR 13498, April 16, 1992) and the September 4, 1992, Calcagni Memorandum referenced above. Under our interpretations, areas seeking to redesignate to attainment for CO may demonstrate future maintenance of the CO NAAQS either by showing that future CO emissions will be equal to or less than the attainment year emissions or by providing a modeling demonstration. The maintenance plan that the Governor submitted on May 27, 2005, includes comprehensive inventories of CO emissions for the Missoula area. These inventories include emissions from stationary point sources, area sources, non-road mobile sources, and on-road mobile sources. The maintenance plan uses a year 2000 attainment inventory and includes interim-year projections with a final maintenance year of 2020. More detailed descriptions of the 2000 attainment year inventory and the projected inventories are documented in section 2.5.1, section 2.5.2.2, and Appendix D of the maintenance plan. The State's submittal contains detailed emission inventory information that was prepared in accordance with EPA guidance. Summary emission figures from the 2000 attainment year, the interim projected years, and the final maintenance year of 2020 are provided in Table IV-1 below. Table IV-1.—CO Emission Inventories for the Missoula Area [All figures in tons per day of CO] Year 2000 2005 2010 2015 2020 Point Sources 0.30 0.33 0.37 0.41 0.46 Area Sources 6.62 6.37 6.10 5.88 5.69 Non-Road Mobile Sources 5.06 5.73 6.14 6.52 7.01 On-Road Mobile Sources 44.86 32.73 27.10 24.97 22.98 Total 56.83 45.16 39.71 37.78 36.14 2. Demonstration of Maintenance—Projected Inventories and CAL3QHC Intersection Modeling As we presented above, total CO emissions were projected forward by the State for the years 2005, 2010, 2015, and 2020. We note the State's approach for developing the projected inventories follows EPA guidance on projected emissions and we believe they are acceptable. 2 Further information regarding these CO emission inventories is also provided in section 2.5.2.2 and in Appendix D of the maintenance plan. The projected inventories show that CO emissions are not estimated to exceed the 2000 attainment level during the time period of 2000 through 2020 and, therefore, the Missoula area has satisfactorily demonstrated maintenance. In addition to the emission inventory projections, the State also performed “hot-spot” modeling to evaluate predicted CO concentrations at the B/S/R intersection. This effort involved the CAL3QHC-R intersection model and considered meteorological data, relevant CO emission contributions from point, area, non-road, and on-road sources, and information specific to the B/S/R intersection such as traffic patterns and intersection geometry. Consistent with EPA guidance, the State modeled CO concentrations at 60 receptor sites around the intersection and at the location of the CO ambient air quality monitoring site at the B/S/R intersection. The years modeled were 2000, 2005, 2010, and 2020. We note this modeling effort was consistent with our modeling guidance. 2 “Use of Actual Emissions in Maintenance Demonstrations for Ozone and Carbon Monoxide
(CO)Nonattainment Areas”, signed by D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993. The results of the State's modeling for 2000, 2005, 2010, and 2020 are presented in section 2.5.2.1 and Appendix C of the maintenance plan and in Table IV-2 below. Table IV-2.—CAL3QHC-R Modeled CO Concentrations for the B/S/R Intersection [All values are in parts per million] 2000 2005 2010 2020 First Maximum 8-hour CO Value 11.8 8.9 5.4 4.5 Second Maximum 8-hour CO Value 10.7 8.0 4.4 3.6 First Maximum 8-hour CO Value at the Monitor Location 7.0 5.4 3.2 2.5 Second Maximum 8-hour CO Value at the Monitor Location 6.7 5.1 2.9 2.4 As shown, the CAL3QHC-R model predicted an exceedance of the CO NAAQS in 2000 at a modeling receptor location near the intersection. We consider this to be a conservative estimate by the model. For comparison, for 2000 the model predicted first maximum 8-hour and second maximum 8-hour CO concentrations of 7.0 and 6.7 ppm, respectively, at the ambient air quality monitoring site. However, actual ambient air quality data from the monitor for 2000 were a first maximum 8-hour value of 3.9 ppm and second maximum 8-hour value of 3.3 ppm (ref. section 2.1.1 and Figure 2-3 of the maintenance plan.) Based on the information provided in sections 2.5.2.1 and 2.5.2.2, the maintenance plan concludes that maintenance of the CO NAAQS is demonstrated. Specifically, the actual monitored values for 2000 indicate no exceedances of the CO NAAQS for the Missoula area, the modeled CO values for 2005, 2010, and 2020 are less than the 8-hour CO NAAQS (9.0 ppm), and, as stated earlier in this action, predicted CO emissions for 2005, 2010, and 2020 are all less than the attainment year levels of 2000. We have reviewed the State's CAL3QHC-R modeling data and results and the attainment year and projected years CO emission inventory information, and have concluded that the State has satisfactorily demonstrated maintenance of the CO NAAQS through 2020. 3. Monitoring Network and Verification of Continued Attainment Continued attainment of the CO NAAQS in the Missoula area depends, in part, on the State's efforts to track indicators throughout the maintenance period. This requirement is met in section 2.5.3 of the Missoula CO maintenance plan. In section 2.5.3 the State commits to review mobile source emission inventory data and compare that information to the emission inventory data in the Missoula CO maintenance plan. In section 2.5.3 the State also commits to continue the operation of the CO monitor in the Missoula area, specifically at the B/S/R intersection, and to annually review this monitoring network and make changes as appropriate. Based on the above, we are approving these commitments as satisfying the relevant requirements and note that this approval will render the State's commitments federally enforceable. 4. Contingency Plan Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions. To meet this requirement, the State has identified appropriate contingency measures along with a schedule for the development and implementation of such measures. As stated in section 2.5.5 and 2.5.5.4 of the Missoula CO maintenance plan, the contingency measures for the Missoula area will be triggered by a violation of the CO NAAQS. Section 2.5.5.4 states that contingency measures contained in the Missoula City-County Air Pollution Control Plan will be implemented within 60 days of notification by the MDEQ and EPA that the area has violated the CO NAAQS. If those measures are not adequate, the Missoula City-County Air Pollution Control Board (MCCAPCB), in conjunction with the Air Quality Advisory Council (AQAC), will initiate a process to begin evaluating potential contingency measures. The Missoula City-County Health Department (MCCHD) and the AQAC will present recommendations to the MCCAPCB within 180 days of notification. The MCCAPCB will then hold a public hearing to consider the contingency measures recommended, along with any other contingency measures that the MCCAPCB believes may be appropriate to effectively address the violation of the CO NAAQS. The necessary contingency measures will be adopted and implemented within one year of the MCCHD being notified of the CO NAAQS violation. The potential contingency measures that are identified in section 2.5.5.1 of the Missoula CO maintenance plan include
(a)expanding the 2.7% oxygenated fuels program in Missoula County to months outside of the current program time frame of November 1st through the end of February,
(b)further restricting woodstove burning,
(c)increasing the oxygenated fuels content to 3.1% by weight, and
(d)constructing transportation projects and implementing transportation control measures. A more complete description of the triggering mechanism and these contingency measures can be found in section 2.5.5 of the Missoula CO maintenance plan. Based on the above, we find that the contingency plan provided in the Missoula CO maintenance plan meets the requirements of section 175A(d) of the CAA. 5. Subsequent Maintenance Plan Revisions In accordance with section 175A(b) of the CAA, the MCCHD and MDEQ have committed to submit a revised maintenance plan eight years after our approval of the redesignation. This provision for revising the maintenance plan is contained in section 2.5.7 of the Missoula CO maintenance plan. V. EPA's Evaluation of the Transportation Conformity Requirements One key provision of our conformity regulation requires a demonstration that emissions from the transportation plan and Transportation Improvement Program are consistent with the emissions budget(s) in the SIP (40 CFR sections 93.118 and 93.124). The emissions budget is defined as the level of mobile source emissions relied upon in the attainment or maintenance demonstration to maintain compliance with the NAAQS in the nonattainment or maintenance area. The rule's requirements and EPA's policy on emissions budgets are found in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62193-96) and in the sections of the rule referenced above. Section 2.5.6 of the Missoula CO maintenance plan defines the CO motor vehicle emissions budgets in the Missoula CO maintenance area as 44.86 tons per day for 2005 through 2009, 43.22 tons per day for 2010 through 2019, and 42.67 tons per day for 2020 and beyond. As we explain more fully below, we view these as the budgets for 2000, 2010, and 2020 respectively. Under our conformity rules, a motor vehicle emissions budget is established for a given year, not for a range of years. This is because the motor vehicle emissions budget reflects the inventory value for motor vehicle emissions in a given year, plus, potentially, any safety margin in that year. (We explain the concept of safety margin more fully below.) It is not possible to specify the same motor vehicle emissions budget for a range of years absent specific analysis supporting the derivation of that budget for each year in the range. As a practical matter, this is not usually important because our conformity rules also say that a motor vehicle emissions budget for a particular year applies for conformity analyses of emissions in that year and all subsequent years before the next budget year. See 40 CFR 93.118(b)(1)(ii) (“Emissions in years for which no motor vehicle emissions budget(s) are specifically established must be less than or equal to the motor vehicle emissions budget(s) established for the most recent prior year.”). The maintenance plan's “2005 through 2009” motor vehicle emissions budget in fact is derived directly from the year 2000 inventory value for on-road vehicle emissions. It is apparent from the maintenance plan that MCCHD and MDEQ were not relying on 2005 inventory numbers to establish the “2005 through 2009” budget, and thus, it is not truly a 2005 budget. We assume the maintenance plan designates this as a 2005 to 2009 budget because the maintenance plan was adopted in 2005, and the years 2000 through 2004 had already passed. However, because it was derived from 2000 values, the “2005 through 2009” budget is actually a 2000 budget, and we will refer to it as such in the remainder of this proposal. Consistent with our discussion above, the 2000 budget applies for conformity analyses of emissions in the year 2000 and all subsequent years before the next budget year; i.e., since the next budget year is 2010, the 2000 budget applies for analyses of years 2000 through 2009. Similarly, the “2010 through 2019” and “2020 and beyond” budgets were derived from, respectively, 2010 and 2020 inventory values for on-road vehicle emissions and available safety margin. Thus, we will refer to these as the 2010 and 2020 budgets in the remainder of this proposal. For the Missoula CO maintenance plan, the “safety margin” is the difference between the attainment year
(2000)total emissions and the projected future year's total emissions. Part or all of the safety margin may be added to projected mobile source CO emissions to arrive at a motor vehicle emissions budget to be used for transportation conformity purposes. The safety margins, less one ton per day, were added to projected mobile source CO emissions for 2010, and 2020. The derivation and determination of safety margins and motor vehicle emissions budgets for the Missoula CO maintenance plan is further illustrated in Table V-1 below and in section 2.5.6, Table 2-7 of the maintenance plan: Table V-1.—Mobile Sources Emissions, Safety Margins, and Motor Vehicle Emissions Budgets in Tons of CO per Day
(TPD)Year Mobile sources emissions
(TPD)Total emissions
(TPD)Math Margin of safety
(TPD)Motor vehicle emissions budget
(TPD)2000 44.86 56.83 N/A 44.86 2010 27.10 39.71 56.83-39.71 = 17.12 17.12−1 = 16.12 27.10+16.12 = 43.22 16.12 43.22 2020 22.98 36.14 56.83−36.14 = 20.69 20.69−1 = 19.69 22.98+19.69 = 42.67 19.69 42.67 Note: N/A = Not Applicable. Our analysis indicates that the above figures are consistent with maintenance of the CO NAAQS throughout the maintenance period. Therefore, we are approving the 44.86 tons per day budget for 2000, 43.22 tons per day budget for 2010, and 42.67 tons per day budget for 2020 for the Missoula area. Pursuant to section 93.118(e)(4) of EPA's transportation conformity rule, as amended, EPA must determine the adequacy of submitted mobile source emissions budgets. EPA reviewed the Missoula CO maintenance plan budgets for adequacy using the criteria in 40 CFR 93.118(e)(4), and determined that the budgets were adequate for conformity purposes. EPA's adequacy determination was made in a letter to the MDEQ on May 4, 2006, and was announced in the **Federal Register** on June 1, 2006 (71 FR 31181). As a result of this adequacy finding, the budgets took effect for conformity determinations in the Missoula area on June 16, 2006. However, we are not bound by that determination in acting on the maintenance plan. 3 3 In its adequacy determination, EPA listed and found adequate budgets for 2005, 2010, and 2021. The listed years should have been 2000, 2010, and 2020, consistent with our discussion above. Assuming we do not change this proposal in response to public comment, the final approved budgets will be for years 2000, 2010, and 2020. VI. Consideration of Section 110(l) of the Clean Air Act Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress towards attainment of a NAAQS or any other applicable requirement of the CAA. The Missoula CO maintenance plan will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA. VII. Proposed Action In this action, EPA is proposing approval of the request for redesignation from nonattainment to attainment for CO for the Missoula area, the Missoula area's maintenance plan, the 1993 PEI, the 1996 PEI, the year 2000 attainment inventory (which fulfills the 1999 PEI obligation), and the transportation conformity CO motor vehicle emission budgets of 44.86 tons per day for 2000, 43.22 tons per day for 2010, and 42.67 tons per day for 2020. Submit your comments, identified by Docket ID No. EPA-R08-OAR-2006-0163, by one of the methods identified above at the front of this proposed rule. In deciding on our final action, we will consider your comments if they are received before May 25, 2007. EPA will address all public comments in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. VIII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have 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 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule 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 proposes to approve a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. 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 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Reporting and recordkeeping requirements. 40 CFR Part 81 Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: April 17, 2007. Kerrigan G. Clough, Acting Regional Administrator, Region 8. [FR Doc. E7-7900 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 70 [EPA-R03-OAR-2007-0254; FRL-8304-9] State Operating Permits Program; Maryland; Revision to the Acid Rain Regulations AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA proposes to approve the operating permit program revision submitted by the State of Maryland for the purpose of amending the Code of Maryland Administrative Regulations' (COMAR) incorporation by reference citations to ensure that future changes to the Federal Acid Rain program will continue to be incorporated into Maryland's regulations. In the Final Rules section of this **Federal Register** , EPA is approving the State's operating permit program revision submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. DATES: Comments must be received in writing by May 25, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0254 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail:* *campbell.dave@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0254, David Campbell, Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-0254. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: Paul Arnold,
(215)814-2194, or by e-mail at *arnold.paul@epa.gov.* SUPPLEMENTARY INFORMATION: For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this **Federal Register** publication. Dated: April 17, 2007. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E7-7920 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 174 and 180 [EPA-HQ-OPP-2005-0117; FRL-7742-3] Proposed Administrative Revisions to Plant-Incorporated Protectant Tolerance Exemptions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to move existing active and inert ingredient plant-incorporated protectant tolerance exemptions from 40 CFR part 180 (Tolerances and Exemptions from Tolerances for Pesticide Chemicals in Food) to 40 CFR part 174 (Procedures and Requirements for Plant-Incorporated Protectants) subpart W (Tolerances and Tolerance Exemptions). EPA is also proposing some conforming changes to the text of the individual exemptions, so that they are consistent with part 174, as well as some minor technical corrections to the wording of certain individual exemptions. This action is administrative in nature and no substantive changes are intended. We are proposing these administrative revisions to plant-incorporated protectant tolerance exemptions to take into account the promulgation of 40 CFR part 174, 66 FR 37814, July 19, 2001. DATES: Comments, identified by docket ID number EPA-HQ-OPP-2005-0117, must be received on or before May 25, 2007. ADDRESSES: Submit your comments, identified by docket identification
(ID)number EPA-HQ-OPP-2005-0117, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket telephone number is
(703)305-5805. *Instructions* : Direct your comments to docket ID number EPA-HQ-OPP-2005-0117. EPA's policy is that all comments received will be included in the docket without change and may be made available on-line 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 regulations.gov or e-mail. The Federal regulations.gov website 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 regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the 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 docket index available in regulations.gov. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov web site to view the docket index or access available documents. 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 in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Building), 2777 S. Crystal Drive, Arlington, VA. The hours of operation of this Docket Facility are from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Mike Mendelsohn, Biopesticides and Pollution Prevention Division
(BPPD)(7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)308-8715; fax number:
(703)308-8715; e-mail address: *mendelsohn.mike@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in [insert appropriate cite to either another unit in the preamble or a section in a rule]. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. What Should I Consider as I Prepare My Comments for EPA? 1. * Submitting CBI* . Do not submit this information to EPA through www.regulations.gov or e-mail. 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. 2. * Tips for preparing your comments* . When submitting comments, remember to: i. Identify the document by docket ID number and other identifying information (subject heading, **Federal Register** date and page number). ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. iv. Describe any assumptions and provide any technical information and/or data that you used. v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. vi. Provide specific examples to illustrate your concerns and suggest alternatives. vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. viii. Make sure to submit your comments by the comment period deadline identified. II. Background In 2001, EPA published a final rule, establishing certain basic parameters of its regulatory program under FIFRA for a specific class of pesticide products—plant-incorporated protectants. (66 FR 37772, July 19, 2001). EPA defined these products as pesticidal substances, along with the genetic material necessary to produce them, when produced and used in living plants, As part of that rule, EPA changed the name of this type of pesticide from “plant-pesticide” to “plant-incorporated protectant.” EPA also established a new part in the Code of Federal Regulations
(CFR)specifically for plant-incorporated protectants. In the same issue of the **Federal Register** , EPA established a blanket tolerance exemption for all residues of nucleic acids that are part of a plant-incorporated protectant. (66 FR 37817, July 19, 2001). See 40 CFR 174.475. In this notice, the Agency is proposing to make minor technical changes to conform the wording of certain individual tolerance exemptions with the above regulations. This action is being proposed under sections 408 (e)(1)(B) of the Federal Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a (e)(1)(B). Section 408(e)(1)(B)provides that the Administrator may issue a regulation modifying an exemption of a pesticide chemical residue from the requirement of a tolerance. 21 U.S.C. 346a (e)(1)(B). Because EPA is making no substantive modifications to the tolerance exemptions, the Agency has not made separate findings regarding the safety of the individual exemptions. EPA believes that the safety standard is applicable only where the Agency takes affirmative action to either substantively modify the tolerance exemption, or has reviewed the tolerance exemption and determined to leave it in effect. EPA is taking neither action in this notice, but is merely making technical modifications to conform the wording of the individual exemptions to wording that is consistent with the surrounding regulations. A. What Action is the Agency Taking? In 2001, EPA published a final rule, establishing certain basic parameters of its regulatory program under FIFRA for a specific class of pesticide products—plant-incorporated protectants. (66 FR 37772, July 19, 2001). EPA defined these products as pesticidal substances, along with the genetic material necessary to produce them, when produced and used in living plants, As part of that rule, EPA changed the name of this type of pesticide from “plant-pesticide” to “plant-incorporated protectant.” EPA also established a new part in the Code of Federal Regulations
(CFR)specifically for plant-incorporated protectants. In the same issue of the **Federal Register** , EPA established a blanket tolerance exemption for all residues of nucleic acids that are part of a plant-incorporated protectant. (66 FR 37817, July 19, 2001). See 40 CFR 174.475. In this notice, the Agency is proposing to make minor technical changes to conform the wording of certain individual tolerance exemptions with the above regulations. The Agency is proposing to move the following tolerance exemptions listed under 40 CFR part 180 (Tolerances and Exemptions from Tolerances for Pesticide Chemicals in Food) to 40 CFR part 174 in order to consolidate all plant-incorporated protectant specific regulations in the same part. Old Section Redesignated as New section 180.1134 174.521 180.1147 174.509 180.1151 174.522 180.1155 174.510 180.1173 174.511 180.1174 174.523 180.1182 174.512 180.1183 174.513 180.1184 174.514 180.1185 174.515 180.1186 174.516 180.1190 174.524 180.1192 174.517 180.1214 174.518 180.1215 174.519 180.1216 174.525 180.1217 174.520 180.1249 174.526 180.1252 174.527 The Agency is also proposing to make some conforming changes to the wording of the exemptions, so that they are consistent with the provisions already in part 174. These changes consist of revising the term “plant-pesticides” in these exemptions to “plant-incorporated protectants” and changing the term “vegetative insecticidal protein” to the more broad term “plant-incorporated protectant.” Further, for these exemptions, as well as those found under 40 CFR 174.452, 174.453, 174.454, 174.455, 174.456, 174.457, and 174.458 (proposed to be redesignated as §§ 174.501, 174.502, 174.503, 174.504, 174.505, 174.506, and 174.528, respectively) EPA is also proposing to delete the references to the “genetic material necessary for its production” and “regulatory regions,” as well as the definitions of these terms, from individual tolerance exemptions. As noted in Unit II.A., EPA established a blanket tolerance exemption for nucleic acids, which includes the residues of genetic material necessary for the production of pesticidal substances in living plants, and residues of the genetic material necessary to produce any inert ingredient. See 40 CFR 174.475 (proposed to be redesignated as § 174.507). Retaining the references to the genetic material necessary for the production of the individual substances, and to regulatory regions in the text of the individual exemptions would be wholly duplicative of 40 CFR 174.475, and has the potential to cause confusion as to the intended scope of that provision. Accordingly, the Agency is removing these references. These deletions will in no way affect the legal status of such residues, given the provisions at 40 CFR 174.475. Similarly, inclusion of the definitions of these terms in the individual exemptions becomes unnecessary once the exemptions are moved to part 174, as the terms are defined at § 174.3, which is generally applicable to all regulations contained in part 174. Moreover, the wording of the definitions varies slightly between some of the individual tolerance exemptions. While the Agency does not believe that there is any substantive difference between the different formulations, to avoid any confusion, EPA has chosen to delete the definitions from the individual tolerance exemptions. The deletion of these definitions from the individual tolerance exemptions will in no way affect the legal status of the residues exempted. Further, for these exemptions and for 40 CFR 174.451 *Scope and Purpose* , (proposed to be redesignated as § 174.500) EPA is proposing to change the terms “plant raw agricultural commodities,” “Raw agricultural commodities,” “raw agricultural commodities, in food, and in animal feeds,” “plant RACs,” and “plant commodities” to read “food commodities.” While the Agency does not believe that there is any substantive difference between the different formulations, to avoid any confusion, EPA is proposing to use the one term “food commodities.” This change will in no way affect the legal status of the residues exempted. EPA is proposing to change the term “delta-endotoxin” to “Cry protein” and to remove any subspecies designations for *Bacillus thuringiensis* PIPs. The terms “delta-endotoxin” and “Cry protein” are redundant. While the Agency does not believe that there is any substantive difference between these different formulations, to avoid any confusion, EPA has chosen to use the one term “Cry protein” without a subspecies designation. This change will in no way affect the legal status of the residues exempted. EPA is proposing to add the term “enzyme” to descriptions of current PIP inert ingredients to clarify the function of these proteins and make classification easier for the layman. While the Agency does not believe that there is any substantive difference between these and the current naming formulations, to clarify the function of these proteins and make classification easier for the layman, EPA has chosen to add the term “enzyme.” This change will in no way affect the legal status of the residues exempted. EPA is proposing to update *Bacillus thuringiensis* derived plant-incorporated protectant exemptions to conform to updated nomenclature as determined by the Bacillus thuringiensis Pesticidal Crystal Proteins Nomenclature Committee, a non-governmental scientific committee, *http://www.biols.susx.ac.uk/home/Neil_Crickmore/Bt/.* The changes will standardize the tolerance exemption descriptions by listing the “residues of” portion of the exemption first and by listing field corn, sweet corn, and popcorn as corn; corn, field; corn, sweet; and corn, pop. Those changes will in no way affect the legal status of the residues exempted. EPA is proposing to redesignate § 180.1183, *Potato Leaf Roll Virus Resistance Gene (also known as orf1/orf2 gene) and the genetic material necessary for its production* , as § 174.513 and to add language to the exemption to clarify that residues in or on all food commodities are covered under this regulation. The phrase “in or on all raw agricultural commodities” was inadvertently excluded from the regulatory text of this exemption. However, the preamble to the rule clearly stated the Agency's intention to exempt residues of this product in or on all raw agricultural commodities. See 62 FR 43650, August 15, 1997. In addition, EPA's findings and supporting analyses concerning the safety of these residues addressed residues in or on all raw agricultural commodities. The inclusion of the phrase “all food commodities” in the individual tolerance exemption will in no way affect the legal status of the residues covered by the regulation. Finally, EPA proposing to redesignate § 180.1174, *CP4 Enolpyruvylshikimate-3-phosphate (CP4 EPSPS) and the genetic material necessary for its production in all plants* , as § 174.523 and to add language to the exemption to clarify that this PIP inert ingredient is a synthase. The word “synthase” corresponds to the last “S” in “CP4 EPSPS” and was inadvertently excluded from the exemption. However, the proposed rule clearly stated “synthase” in describing the ingredient. See 60 FR 54689, October 25, 1995. The inclusion of the phrase “synthase” in the individual tolerance exemption will in no way affect the legal status of the residues covered by the regulation. The specific tolerance exemptions EPA is proposing to move to part 174, as they currently appear in the CFR, follow immediately below. The proposed revised tolerance language appears at the end of the document, as proposed regulatory text. While EPA believes that it has accurately transferred each of the tolerance exemptions included in this proposed rule, the Agency would appreciate readers notifying EPA of discrepancies, omissions or technical problems by submitting them to the address or e-mail address under FOR FURTHER INFORMATION CONTACT . B. What is the Agency's Authority for Taking this Action? This action is being proposed under sections 408 (e)(1)(B) of the Federal Food, Drug and Cosmetic Act (FFDCA), 21 U.S.C. 346a (e)(1)(B). Section 408(e)(1)(B) provides that the Administrator may issue a regulation modifying an exemption of a pesticide chemical residue from the requirement of a tolerance, 21 U.S.C. 346a (e)(1)(B). III. Statutory and Executive Order Reviews A. Executive Order 12866 Under Executive Order 12866, 58 FR 51735, October 4, 1993, the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector 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 the Executive Order. It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. B. 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 will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:
(1)a small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(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 today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities since this action is administrative in nature and no substantive changes are being made. IV. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the Agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects 40 CFR Part 174 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements, Plant-incorporated protectants. 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: April 12, 2007. Janet L. Andersen, Director, Biopesticides and Pollution Prevention Division, Office of Pesticide Programs. Therefore, Title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: PART 180 —[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a, and 371. 2. In the following table, the sections in the first column are transferred to 40 CFR part 174, subpart W and redesignated as the sections in the second column. Old Section Redesignated as New section 180.1134 174.521 180.1147 174.509 180.1151 174.522 180.1155 174.510 180.1173 174.511 180.1174 174.523 180.1182 174.512 180.1183 174.513 180.1184 174.514 180.1185 174.515 180.1186 174.516 180.1190 174.524 180.1192 174.517 180.1214 174.518 180.1215 174.519 180.1216 174.525 180.1217 174.520 180.1249 174.526 180.1252 174.527 §§ 180.1227 and 180.1242 [Removed] 3. Section 180.1227 and 180.1242 are removed. PART 174 —[AMENDED] 4. The authority citation for part 174 continues to read as follows: Authority: 7 U.S.C. 136 - 136y; 21 U.S.C. 346a and 371. § 174.21 [Amended] 5. Section 174.21 is amended as follows: i. In paragraph
(b)by revising the reference “§§ 174.475 through 174.479” to read “§§ 174.507 through 174.508.” ii. In paragraph
(c)by revising the reference “§§ 174.485 through 174.490” to read “§ 174.705.” §§ 174.475 and 174.479 [Redesignated as §§ 174.507 and 174.508] 6. Sections 174.475 and 174.479 are redesignated as §§ 174.507 and 174.508, respectively. §§ 174.480 and 174.485 [Redesignated as §§ 174.700 and 174.705] 7. Sections 174.480 and 174.485 are redesignated as § 174.700 and § 174.705, respectively and remain in subpart X. 8. Sections 174.451, 174.452, 174.453, 174.454, 174.455, 174.456, and 174.457 are redesignated as §§ 174.500, 174.501, 174,502, 174.503, 174.504, 174.505, and 174.506, respectively, and revised to read as follows: § 174.500 Scope and purpose. This subpart lists the tolerances and exemptions from the requirement of a tolerance for residues of plant-incorporated protectants in or on food commodities. § 174.501 Bacillus thuringiensis VIP3A protein; temporary exemption from the requirement of a tolerance. Residue of *Bacillus thuringiensis* VIP3A protein are temporarily exempt from the requirement of a tolerance when used as a plant-incorporated protectant in cotton seed, cotton oil, cotton meal, cotton hay, cotton hulls, cotton forage, and cotton gin byproducts. This temporary exemption from the requirement of a tolerance expires May 1, 2007. § 174.502 Bacillus thuringiensis Cry1A.105 protein in corn; temporary exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1A.105 protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. This temporary exemption from the requirement of a tolerance will permit the use of the food commodities in this paragraph when treated in accordance with the provisions of the experimental use permit 524-EUP-97 which is being issued under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136). This temporary exemption from the requirement of a tolerance expires and is revoked June 30, 2009; however, if the experimental use permit is revoked, or if any experience with or scientific data on this pesticide indicate that the tolerance is not safe, this temporary exemption from the requirement of a tolerance may be revoked at any time. § 174.503 Bacillus thuringiensis Cry2Ab2 protein in corn; temporary exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry2Ab2 protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. This temporary exemption from the requirement of a tolerance will permit the use of the food commodities in this paragraph when treated in accordance with the provisions of the experimental use permit 524-EUP-97 which is being issued under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136). This temporary exemption from the requirement of a tolerance expires and is revoked June 30, 2009; however, if the experimental use permit is revoked, or if any experience with or scientific data on this pesticide indicate that the tolerance is not safe, this temporary exemption from the requirement of a tolerance may be revoked at any time. § 174.504 Bacillus thuringiensis Cry1F protein in cotton; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1F protein in cotton are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in food and feed commodities of cotton. § 174.505 Bacillus thuringiensis modified Cry3A protein (mCry3A) in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* modified Cry3A protein (mCry3A) in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. § 174.506 Bacillus thuringiensis Cry34Ab1 and Cry35Ab1 proteins in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry34Ab1 and Cry35Ab1 proteins in corn are exempted from the requirement of a tolerance when used as plant-incorporated protectants in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. 9. Newly redesignated §§ 174.509 through 174.527 are revised to read as follows: § 174.509 Bacillus thuringiensis Cry3A protein; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry3A protein are exempted from the requirement of a tolerance when used as a plant-incorporated protectant in potatoes. § 174.510 Bacillus thuringiensis Cry1Ac protein in all plants; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1Ac protein in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectants in all food commodities. § 174.511 Bacillus thuringiensis Cry1Ab protein in all plants; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1Ab protein in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectants in all food commodities. § 174.512 Coat Protein of Potato Virus Y; exemption from the requirement of a tolerance. Residues of Coat Protein of Potato Virus Y are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.513 Potato Leaf Roll Virus Resistance Gene (also known as orf1/orf2 gene); exemption from the requirement of a tolerance. An exemption from the requirement of a tolerance is established for residues of the plant-incorporated protectant Potato Leaf Roll Virus Resistance Gene (also known as orf1/orf2 gene) in or on all food commodities. § 174.514 Coat Protein of Watermelon Mosaic Virus-2 and Zucchini Yellow Mosaic Virus; exemption from the requirement for a tolerance. Residues of Coat Protein of Watermelon Mosaic Virus-2 and Zucchini Yellow Mosaic Virus are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.515 Coat Protein of Papaya Ringspot Virus; exemption from the requirement of a tolerance. Residues of Coat Protein of Papaya Ringspot Virus are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.516 Coat protein of cucumber mosaic virus; exemption from the requirement of a tolerance. Residues of Coat Protein of Cucumber Mosaic Virus are exempt from the requirement of a tolerance when used as a plant-incorporated protectant in or on all food commodities. § 174.517 Bacillus thuringiensis Cry9C protein in corn; exemption from the requirement of a tolerance. The plant-incorporated protectant *Bacillus thuringiensis* Cry9C protein in corn is exempted from the requirement of a tolerance for residues, only in corn used for feed; as well as in meat, poultry, milk, or eggs resulting from animals fed such feed. § 174.518 Bacillus thuringiensis Cry3Bb1 protein in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry3Bb1 protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectants in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. § 174.519 Bacillus thuringiensis Cry2Ab2 protein in cotton; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry2Ab2 protein in cotton is exempt from the requirement of a tolerance when used as a plant-incorporated protectant in the food and feed commodities, cotton seed, cotton oil, cotton meal, cotton hay, cotton hulls, cotton forage, and cotton gin byproducts. § 174.520 Bacillus thuringiensis Cry1F protein in corn; exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Cry1F protein in corn are exempt from the requirement of a tolerance when used as plant-incorporated protectants in the food and feed commodities of corn; corn, field; corn, sweet; and corn, pop. § 174.521 Neomycin phosphotransferase II; exemption from the requirement of a tolerance. Residues of the neomycin phosphotransferase II (NPTII) enzyme are exempted from the requirement of a tolerance in all food commodities when used as a plant-incorporated protectant inert ingredient. § 174.522 Phosphinothricin Acetyltransferase (PAT); exemption from the requirement of a tolerance. Residues of the Phosphinothricin Acetyltransferase
(PAT)enzyme are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. § 174.523 CP4 Enolpyruvylshikimate-3-phosphate (CP4 EPSPS) synthase in all plants; exemption from the requirement of a tolerance. Residues of the CP4 Enolpyruvylshikimate-3-phosphate (CP4 EPSPS) synthase enzyme in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. § 174.524 Glyphosate Oxidoreductase GOX or GOXv247 in all plants; exemption from the requirement of a tolerance. Residues of the Glyphosate Oxidoreductase GOX or GOXv247 enzyme in all plants are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. § 174.525 E. coli B-D-glucuronidase enzyme as a plant-incorporated protectant inert ingredient; exemption from the requirement of a tolerance. Residues of *E. coli* B-D-glucuronidase enzyme are exempt from the requirement of a tolerance when used as a plant-incorporated protectant inert ingredient in all food commodities. § 174.526 Hygromycin B phosphotransferase
(APH4)marker protein in all plants; exemption from the requirement of a tolerance. Residues of the Hygromycin B phosphotransferase
(APH4)enzyme in all plants are exempt from the requirement of a tolerance when used as a plant-incorporated protectant inert ingredient in cotton. § 174.527 Phosphomannose isomerase in all plants; exemption from the requirement of a tolerance. Residues of the phosphomannose isomerase
(PMI)enzyme in plants are exempt from the requirement of a tolerance when used as plant-incorporated protectant inert ingredients in all food commodities. 10. Section 174.458 is redesignated as § 174.528 and revised to read as follows: § 174.528 Bacillus thuringiensis Vip3Aa20 protein; temporary exemption from the requirement of a tolerance. Residues of *Bacillus thuringiensis* Vip3Aa20 protein in corn are temporarily exempt from the requirement of a tolerance when used as a plant-incorporated protectant in the food and feed commodities of corn; corn, field; corn, sweet; corn, pop. This temporary exemption from the requirement of tolerance will permit the use of the food commodities in this paragraph when treated in accordance with the provisions of the experimental use permit 67979-EUP-6, which is being issued in accordance with the provisions of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136). This temporary exemption from the requirement of a tolerance expires and is revoked March 31, 2008; however, if the experimental use permit is revoked, or if any experience with or scientific data on this pesticide indicate that the temporary tolerance exemption is not safe, this temporary exemption from the requirement of a tolerance may be revoked at any time. [FR Doc. E7-7767 Filed 4-24-07; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 101 [WT Docket No. 07-54; RM-11043; FCC 07-38] Amendment of the Commission's Rules To Modify Antenna Requirements for the 10.7-11.7 GHz Band AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, we seek comment on modifying the Commission's Rules to permit the installation of smaller antennas by Fixed Service
(FS)operators in response to a petition for rulemaking filed by FiberTower, Inc. (FiberTower). In particular, we seek comment on whether these modifications would serve the public interest by facilitating the efficient use of the 11 GHz band while protecting other users in the band from interference due to the use of smaller antennas. DATES: Comments must be filed on or before May 25, 2007, and reply comments must be filed on or before June 11, 2007. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. You may submit comments, identified by WT Docket No. 07-54, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • *People with Disabilities:* Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Brian Wondrack at 202-418-2487. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's * Notice of Proposed Rule Making, * released March 27, 2007. The complete text of this document, including attachments and related Commission documents, is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of the *Notice of Proposed Rulemaking* and related Commission documents may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-5563, or you may contact BCPI at its Web site *http://www.BCPIWEB.com* . When ordering documents from BCPI please provide the appropriate FCC document number, for example, FCC 07-38. The *Notice of Proposed* *Rulemaking* is available on the Commission's Web site: *http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-38A1.doc* . Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using:
(1)The Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. *See Electronic Filing of Documents in Rulemaking Proceedings,* 63 FR 24121 (1998). • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov* . Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). I. Summary of Notice of Proposed Rulemaking 1. In the *Notice of Proposed Rule Making* ( *NPRM* ), the Commission, in response to a petition filed by FiberTower, Inc., initiates a rulemaking proceeding to establish a full record and determine whether to adopt modifications to part 101 of the Commission's Rules to permit the installation of smaller antennas by Fixed Service
(FS)operators in the 10.7-11.7 GHz (11 GHz) band. Specifically, the *NPRM* seeks comment on whether the proposed rule modifications to the antenna standards and coordination procedures in part 101 serve the public interest by facilitating the efficient use of the 11 GHz band while protecting other users in the band from interference due to the use of smaller antennas. 2. *Background.* The 11 GHz band is allocated within the United States on a co-primary basis to the Fixed Services (FS), licensed under part 101 of the Commission's Rules, 47 CFR part 101, and to the Fixed Satellite Service (FSS), licensed under part 25 of the Commission's Rules, 47 CFR part 25. Specifically, in the United States, the 11 GHz band is used by the FS for Local Television Transmission Service (LTTS), Private Operational Fixed Point to Point Microwave, and Common Carrier Fixed Point-to-Point Microwave operations. Although the 11 GHz band is allocated internationally for FSS on a primary basis, the use of the FSS downlink band at 11 GHz is limited, within the United States, to international systems, *i.e.* , other than domestic systems, pursuant to 47 CFR 2.106 NG104. The Commission's purpose in adopting such a restriction was to protect incumbent microwave operations and licensees in the 11 GHz band. 3. On July 14, 2004, FiberTower filed a petition for rulemaking proposing amendments to the antenna standards and coordination procedures governing the use microwave antennas in the 11 GHz band in order to maximize the efficient use of the spectrum. The antenna standards, which are set-forth in 47 CFR 101.115(b), are designed to maximize the use of microwave spectrum, including the 11 GHz band, while avoiding interference between operators and other users in the band. FiberTower proposed changes to those parameters that would permit the use of FS antennas with reduced mainbeam gain, increased beamwidth, and modified sidelobe suppression in the 11 GHz band, thereby effectively permitting the use of 0.61 meter antennas as an optional alternative to the 1.22 meter antennas that meet the existing technical parameters for FS in the 11 GHz band. The coordination procedures, which are set-forth in 47 CFR 101.103, exist to establish interference standards applicable to the operation of FS antennas in the 11 GHz band. FiberTower proposed amendments to the coordination procedures to protect other users in the 11 GHz band from experiencing any greater interference from a FS licensee's use of a 0.61 meter antenna than would be experienced if the FS licensee were using a 1.22 meter antenna. 4. *Need for the Rule Changes.* In the *NPRM* , the Commission concludes that the public interest would be served by initiating a proceeding to consider the possibility of modifying the Commission's Rules to permit the installation of 0.61 meter antennas in the 11 GHz band. The Commission finds that review the technical specifications for the 11 GHz band is appropriate at this time. The Commission notes that the specifications that limit the size of FS antennas in the 11 GHz band reflect the technical sophistication of the communications equipment and the needs of the various users of the band at the time that the rules were adopted. The Commission further notes that it adopted similar technical specifications that effectively limited the size of antennas used in other bands, including those used by satellite, but has since reconsidered many of those antenna specifications in light of the technological evolution of communications equipment. 5. The Commission tentatively concludes that the shared nature of the 11 GHz band does not preclude the Commission from facilitating the efficient use of the 11 GHz band by permitting FS users to erect 0.61 meter antennas while appropriately protecting other users in the band from harmful interference associated with the use of smaller antennas. The Commission explained in the *NPRM* that, although the 11 GHz band is shared on a co-primary basis with the FSS, domestic use of the 11 GHz band by the FSS has been limited, to date, because the Commission has sought to protect the use and expansion of terrestrial microwave services within the band. The Commission emphasized that its Rules explicitly limit satellite use of the 11 GHz band to international systems and that the Commission's intent and effect in adopting footnote NG104 was to limit the expansion of FSS in the 11 GHz band and protect the future use of the band for FS. However, the Commission invites comments on its tentative conclusion. 6. *Antenna Standards.* Antenna standards are designed to maximize the use of microwave spectrum, including the 11 GHz band, while avoiding interference between operators and other users in the band. The Commission recognizes that the proposed use of smaller, lower-gain antennas will result in more radio frequency energy being transmitted in directions away from the actual point-to-point link on account of the relaxed radiation suppression on angles away from the centerline of the main beam as well as because users of 0.61 meter antennas will have to transmit with approximately 4.5 dB more power in order to overcome the reduced main beam gain. The Commission seeks to ensure that any proposed changes to the Commission's Rules appropriately protect other users in the band from interference due to the operation of 0.61 meter antennas. The *NPRM* seeks comment on whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the risk of interference. The Commission seeks specific comment on the “White Paper Report on Proposed Changes to Small Antenna Standards in the 11 GHz Band” submitted by Alcatel in support of the FiberTower Petition because it suggests that the impact of deploying 0.61 meter antennas in the 11 GHz band will be minimal. The Commission also requests that parties comment on the extent to which the rules proposed by FiberTower mitigate or obviate interference concerns, or propose additional options to mitigate interference, such as a power or EIRP tradeoff. 7. In addition to seeking comments on interference issues generally, the Commission also seeks comment on specific interference issues. For example, the Commission inquires whether an earth station operator could face a situation in which it experiences harmful interference as a result of the aggregate effect of several nearby FS antennas, even if each antenna standing alone would not create a problem. The Commission asks parties to comment on whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the risk of aggregate interference, especially to earth stations. The Commission invites parties to suggest ways to avoid or mitigate instances of aggregate interference, if they were to occur. The *NPRM* specifically suggests that parties discuss the sufficiency of existing industry practices, coordination requirements, and interference criteria to address the possibility or occurrence of aggregate interference. 8. The Commission also seeks comment on whether the size of the equipment and the technical characteristics of the antenna patterns make the 0.61 meter antenna more difficult to point accurately. The Commission specifically asks parties to address whether the use of smaller antennas in the 11 GHz band significantly increases the risk of interference to other users in the band due to accuracy errors in pointing the 0.61 meter antennas. The Commission therefore invites parties to discuss the likelihood, effect, and addressability of pointing errors and to comment on how the Commission has approached similar issues concerning interference due to pointing errors in the past. 9. *Coordination Procedures.* Coordination procedures, set-forth in 47 CFR 101.103, exist to establish interference standards applicable to the operation of FS antennas in the 11 GHz band. The FiberTower Petition proposes amendments to the coordination requirements in 47 CFR 101.103 to protect other users in the 11 GHz band from experiencing any greater interference from the use of a 0.61 meter antenna than would be experienced by the use of a 1.22 meter antenna. Specifically, pursuant to the proposed amendments, if either an FS applicant that is attempting to frequency coordinate a 1.22 meter (or larger) antenna for use in the 11 GHz band or an FSS applicant for an earth station in the 11 GHz band predicts received interference from an FS licensee or prior applicant using a 0.61 meter antenna in the 11 GHz band, it may require the FS licensee or prior applicant using the 0.61 meter antenna to reduce predicted interference to levels no higher than would be predicted from the use of a 1.22 meter antenna. In addition, the proposed amendments only permit the FS licensee or prior applicant using a 0.61 meter antenna in the 11 GHz band to object to a prior coordination notice if it would have actual grounds to object to predicted interference if it were using a 1.22 meter antenna at the same site, polarization, frequency, bandwidth, and orientation. 10. The Commission seeks comment on whether these amendments strike the appropriate balance between efficient spectrum use and interference protection in the 11 GHz band and requests that parties address precedent where the Commission has amended technical rules to permit the use of smaller antennas. The Commission invites parties to comment on whether the Commission's rules and industry practices are sufficient to allow parties to resolve instances where 0.61 meter antennas cause more interference than otherwise would be caused by 1.22 meter antennas. 11. Accordingly, the Commission seeks comment on whether the proposed amendments to the part 101 antenna standards and coordination requirements would facilitate the efficient use of the 11 GHz band by affording FS licensees the flexibility to install 0.61 meter antennas in the 11 GHz band while appropriately protecting other users in the band from interference. The Commission also seeks comment on whether these changes will facilitate a range of fixed microwave applications—including those that support third generation mobile services—that are not currently being accommodated in the 11 GHz band under the existing rules governing use of the band. II. Initial Regulatory Flexibility Analysis 12. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking ( *NPRM* ). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the *NPRM* provided in paragraph 29 of the *NPRM* . The Commission will send a copy of the *NPRM* , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the *NPRM* and IRFA (or summaries thereof) will be published in the **Federal Register** . A. Need for, and Objectives of, the Proposed Rules 13. In this *NPRM* , we seek comment on a petition for rulemaking filed by FiberTower, Inc. (FiberTower) on July 14, 2004. The FiberTower Petition requests that the Commission initiate a rulemaking to amend the technical parameters in §§ 101.103 and 101.115 of the Commission's rules that establish interference protection for operators in the 10.7-11.7 GHz (11 GHz) band in order to permit the use of 0.61 meter (“two-foot”) antennas as an optional alternative to the 1.22 meter (“four-foot”) antennas that meet the existing technical parameters for Fixed Microwave Service in the 11 GHz band. Specifically, the FiberTower Petition proposes changes to the technical parameters in § 101.115 of the Commission's rules to permit the use of Fixed Service
(FS)antennas with reduced mainbeam gain, increased beamwidth, and modified sidelobe suppression in the 11 GHz band. The FiberTower Petition also proposes amendments to § 101.103 of the Commission's rules to protect other users in the 11 GHz band from experiencing any greater interference from the use of a 0.61 meter antenna than would be experienced by the use of a 1.22 meter antenna. 14. We seek comment in this *NPRM* on modifying the Commission's rules to permit the installation of 0.61 meter antennas in the 11 GHz band, while appropriately protecting other users in the band. Such action could serve the public interest by facilitating the efficient use of the 11 GHz band. We tentatively conclude that the shared nature of the 11 GHz band does not preclude the Commission from facilitating the efficient use of the 11 GHz band by permitting FS users to erect 0.61 meter antennas. However, we also wish to ensure that any proposed changes to the Commission's rules appropriately protect other users in the band from increased interference due to the use of 0.61 meter antennas. To this end, we seek comments on particular interference concerns as well as on the more general issue of whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the likelihood of interference. B. Legal Basis 15. The proposed action is authorized pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, and 333. C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 16. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the SBA. 17. Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2002, there were approximately 1.6 million small organizations. The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small. 18. *Fixed Microwave Services.* Microwave services include common carrier, private-operational fixed, and broadcast auxiliary radio services. At present, there are approximately 36,708 common carrier fixed licensees and 59,291 private operational-fixed licensees and broadcast auxiliary radio licensees in the microwave services. The Commission has not yet defined a small business with respect to microwave services. For purposes of the FRFA, we will use the SBA's definition applicable to Cellular and other Wireless Telecommunications companies— *i.e.* , an entity with no more than 1,500 persons. Census Bureau data for 2002 show that there were 1,397 firms in this category that operated for the entire year. Of this total, 1,378 firms had employment of 999 or fewer employees, and 19 firms had employment of 1,000 employees or more. Thus, under this size standard, the majority of firms can be considered small. We note that the number of firms does not necessarily track the number of licensees. We estimate that all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition. 19. *Satellite Telecommunications and Other Telecommunications.* There is no small business size standard developed specifically for providers of international service. The appropriate size standards under SBA rules are for the two broad census categories of “Satellite Telecommunications” and “Other Telecommunications.” Under both categories, such a business is small if it has $13.5 million or less in average annual receipts. 20. The first category of Satellite Telecommunications “comprises establishments primarily engaged in providing point-to-point telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” For this category, Census Bureau data for 2002 show that there were a total of 371 firms that operated for the entire year. Of this total, 307 firms had annual receipts of under $10 million, and 26 firms had receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Satellite Telecommunications firms are small entities that might be affected by our action. 21. The second category of Other Telecommunications “comprises establishments primarily engaged in
(1)Providing specialized telecommunications applications, such as satellite tracking, communications telemetry, and radar station operations; or
(2)providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” For this category, Census Bureau data for 2002 show that there were a total of 332 firms that operated for the entire year. Of this total, 259 firms had annual receipts of under $10 million and 15 firms had annual receipts of $10 million to $24,999,999. Consequently, we estimate that the majority of Other Telecommunications firms are small entities that might be affected by our action. 22. *Space Stations (Geostationary).* Commission records reveal that there are 15 space station licensees. We do not request nor collect annual revenue information, and thus are unable to estimate of the number of geostationary space stations that would constitute a small business under the SBA definition cited above, or apply any rules providing special consideration for Space Station (Geostationary) licensees that are small businesses. 23. *Fixed Satellite Transmit/Receive Earth Stations.* Currently there are approximately 3,390 operational fixed-satellite transmit/receive earth stations authorized for use in the C- and Ku-bands. The Commission does not request or collect annual revenue information, and thus is unable to estimate the number of earth stations that would constitute a small business under the SBA definition. D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements 24. This *NPRM* proposes no new reporting or recordkeeping requirements. This *NPRM* proposes amendments to the Commission's rules to afford licensees in the Fixed Microwave Services
(FS)with the flexibility to use a 0.61 meter antenna in the 11 GHz band as an optional alternative to the 1.22 meter antenna that meets the existing technical parameters for FS in the 11 GHz band. The proposed amendments would apply equally to large and small entities and benefit all FS licensees by reducing the burden of seeking individual waivers to permit the use of 0.61 meter antennas in the 11 GHz band. The Commission requests comment on how these proposed rules may be modified to reduce the burden on small entities and still meet the objectives of the proceeding. E. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered 25. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others):
(1)The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance rather than design standards; and
(4)an exemption from coverage of the rule, or any part thereof for small entities. 26. As noted above, this *NPRM* proposes rules to permit the use of 0.61 meter antennas as an optional alternative to the 1.22 meter antennas that meet the existing technical parameters for FS in the 11 GHz band. Because the proposed rules seek to provide FS licensees in the 11 GHz with additional flexibility, FS licensees retain the option of continuing to employ 1.22 meter antennas that meet the existing technical parameters for FS in the 11 GHz band. Thus, this proposed action would provide an additional option to all licensees, including small entity licensees. In this *NPRM* , we seek comment on this proposed action. Such action could serve the public interest by facilitating the efficient use of the 11 GHz band. The proposed rules could promote the efficient use of the spectrum and provide for a wide range of fixed microwave applications that are not currently being provided for in the 11 GHz band for financial, aesthetic, and regulatory reasons. The proposed rules could therefore open up economic opportunities to a variety of spectrum users, including small businesses. Indeed, a number of the commenting parties to support the proposed rules identify themselves as small businesses. 27. This *NPRM* seeks comments on particular interference concerns as well as on the more general issue of whether the use of 0.61 meter antennas by FS licensees in the 11 GHz band will adversely affect other users in the band by increasing the likelihood of interference. The Commission invites comment on any additional significant alternatives parties believe should be considered and on how the approach outlined in the *NPRM* will impact small entities. The Commission will continue to examine alternatives in the future with the objectives of eliminating unnecessary regulations and minimizing any significant economic impact on small entities. F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule 28. None. III. Ordering Clauses 29. Pursuant to sections 1, 2, 4(i), 7, 10, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332 and 333 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 157, 160, 201, 214, 301, 302, 303, 307, 308, 309, 310, 319, 324, 332, 333, that this Notice of Proposed Rulemaking is hereby ADOPTED. 30. *Notice is hereby given* of the proposed regulatory changes described in this Notice, and that comment is sought on these proposals. 31. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send *shall send* a copy of this NPRM, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 101 Communications equipment, Radio, Reporting and recordkeeping requirements. Federal Communications Commission. Marlene H. Dortch, Secretary. Proposed Rules For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 101 as follows: PART 101—FIXED MICROWAVE SERVICES 1. The authority citation for part 101 continues as follows: Authority: 47 U.S.C. 154, 303. 2. Section 101.103 is amended by adding a new paragraph
(j)to read as follows: § 101.103 Frequency coordination procedures.
(j)*Coordination of small antennas in the 10.7-11.7 GHz band.*
(1)A licensee or prior applicant using an antenna smaller than 1.22 meters (4 feet) in diameter may object to a prior coordination notice only
(i)If it has actual grounds to object because of predicted interference, and
(ii)To the extent it would have grounds to object if it were using a 1.22 meter antenna at the same site, polarization, frequency, bandwidth, and orientation.
(2)A Fixed Service applicant attempting to frequency coordinate an antenna of 1.22 meters in diameter or larger, or an applicant for a Fixed Satellite Service earth station, that predicts received interference from a licensee or prior applicant using an antenna smaller than 1.22 meters in diameter, can require the licensee or prior applicant to reduce the predicted interference to levels no higher than would be predicted from antenna of 1.22 meters in diameter. 3. Section 101.115 is amended by revising the entry “10,700 to 11,700 5 ” to the table following paragraph (b)(2) to read as follows: § 101.115 Directional antennas.
(b)* * *
(2)* * * Frequency
(MHz)Category Maximum beam-width to 3 dB pts Minimum antenna Gain
(dBi)Minimum radiation suppression to angle in degrees from centerline of main beam in decibels 5° to 10° 10° to 15° 15° to 20° 20° to 30° 30° to 100° 100° to 140° 140° to 180° * * * * * * * 10,700-11,700* A 3.5 33.5 18 24 28 32 35 55 55 B 3.5 33.5 17 24 28 32 35 40 45 * * * * * * * [FR Doc. E7-7796 Filed 4-24-07; 8:45 am] BILLING CODE 6712-01-P 72 79 Wednesday, April 25, 2007 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request —Food Stamp Program, Form FNS-46, Issuance Reconciliation Report AGENCY: Food and Nutrition Service, USDA. ACTION: Notice. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collections. DATES: Written comments must be received on or before June 25, 2007. ADDRESSES: 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 of the proposed collection of information, including the validity of the methodology and assumptions used;
(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 those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Mandy Briggs, Chief, Electronic Benefits Transfer Branch, Benefit Redemption Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Mandy Briggs at
(703)305-1863 or via e-mail to *BRDHQ-WEB@fns.usda.gov* . All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5 p.m., Monday through Friday) at 3101 Park Center Drive, Alexandria, Virginia 22302, Room 403. All responses to this notice will be summarized and included in the request for OMB approval. All comments will be a matter of public record. FOR FURTHER INFORMATION CONTACT: Requests for additional information or copies of this information collection should be directed to Mandy Briggs, Chief, Electronic Benefits Transfer Branch at
(703)305-2523. SUPPLEMENTARY INFORMATION: *Title:* Issuance Reconciliation Report. *OMB Number:* 0584-0080. *Form Number:* FNS-46. *Expiration Date:* December 31, 2007. *Type of Request:* Revision of a currently approved collection. *Abstract:* Section 7(d) of the Food Stamp Act of 1977, as amended, (the Act) (7 U.S.C. 2016(d), requires State agencies to report on their benefits issuance operations not less than monthly. Section 11(a) of the Act (7 U.S.C. 2020(a)) requires State agencies to assume responsibility for the issuance, control, and accountability of benefits. Regulations at 7 CFR 274.4(a) and 274.4(b)(2) require State agencies to account for all issuance through the reconciliations process and to submit a report on this process using Form FNS-46, Issuance Reconciliation Report. These reports must be submitted to the Food and Nutrition Service
(FNS)monthly and must reach FNS no later than 90 days following the end of each report month. The FNS-46 report reflects the total issuance, returns, and unauthorized issuance amounts resulting in the net Federal obligation. The proposed revision to the information collection burden associated with Form FNS-46, Issuance Reconciliation Report, reflects a reduction because of the requirement in Section 7(i) of the Act, (7 U.S.C. 2016(i)) for State agencies to change from coupon to EBT systems. As States implemented their EBT systems, they generally reduced their issuance reconciliation points to a single location. Therefore, the number of respondents and responses declined as the number of States with EBT systems increased. *Respondents:* State and local government employees or contractors. *Estimated Number of Respondents:* 54. *Number of Responses per Respondent:* 12. *Estimated Time per Response:* 8 hours. *Estimated Total Annual Burden on Respondents:* 5,184 hours. Dated: April 17, 2007. Roberto Salazar, Administrator, Food and Nutrition Service. [FR Doc. E7-7881 Filed 4-24-07; 8:45 am] BILLING CODE 3410-30-P CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD Sunshine Act Meeting—May 9, 2007—7 p.m. In connection with its investigation into the cause of a November 22, 2006, explosion and fire at the CAI/Arnel manufacturing facility in Danvers, Massachusetts, the United States Chemical Safety and Hazard Investigation Board
(CSB)announces that it will convene a community meeting on May 9, 2007 starting at 7 p.m. in the Grand Ballroom at the Sheraton Ferncroft Resort, 50 Ferncroft Road, Danvers, MA 01923. At the meeting CSB staff will present to the Board the preliminary results of their investigation into this incident. There will be a public comment period after the investigators' presentation. During the early morning hours of November 22, a powerful explosion destroyed the CAI/Arnel manufacturing facility in Danvers, Massachusetts. Scores of nearby homes and businesses were damaged, some beyond repair. A number of residents were hospitalized. There were no injuries in the plant, which was unoccupied at the time. After the staff presentation, the Board will allow a time for public comment. Following the conclusion of the public comment period, the Board will consider whether the preliminary facts presented necessitate any recommendations prior to the final completion of the Board's investigative report. All staff presentations are preliminary and are intended solely to allow the Board to consider in a public forum the issues and factors involved in this case. No factual analyses, conclusions or findings should be considered final. Only after the Board has considered a final staff presentation and approved the staff report next year will there be an approved final record of this incident. The meeting will be open to the public. Please notify CSB if a translator or interpreter is needed, at least 5 business days prior to the public meeting. For more information, please contact the Chemical Safety and Hazard Investigation Board at
(202)261-7600, or visit our Web site at: *http://www.csb.gov.* Christopher W. Warner, General Counsel. [FR Doc. 07-2064 Filed 4-23-07; 2:56 pm]
Connectionstraces to 63
Traces to 63 documents
U.S. Code
CFR
88 references not yet in our index
  • 6 CFR 27
  • Pub. L. 109-295
  • 6 CFR 27.200(b)
  • 26 CFR 1
  • T.D. 9315
  • Rev. Proc. 2000-42
  • Rev. Rul. 99-5
  • 38 CFR 21
  • 44 USC 3501-3521
  • 5 USC 601-612
  • 40 CFR 70
  • Pub. L. 104-4
  • 40 CFR 158
  • 40 CFR 180
  • 40 CFR 174
  • 40 CFR 178
  • 40 CFR 2
  • 40 CFR 174.475
  • 40 CFR 174.501
  • 40 CFR 174.507
  • 40 CFR 174.451
  • 40 CFR 166
  • Pub. L. 104-113
  • 47 CFR 22
  • 5 CFR 535
  • Pub. L. 108-411
  • EO 13415
  • 5 CFR 575
  • 8 CFR 204.5(m)
  • 8 CFR 214.2(r)(2)
  • Pub. L. 101-649
  • 104 Stat. 4978
  • Pub. L. 108-99
  • 117 Stat. 1176
  • Pub. L. 103-141
  • 107 Stat. 1488
  • 8 CFR 204.5(m)(2)
  • 8 CFR 214.2(b)(1)
  • 8 CFR 103
  • 52 Stat. 1060
+ 48 more
Citation graph
cites case law
Unknown
Notice
U.S.C.§ 7805
C.F.R.§ 21.4266
C.F.R.§ 21.4209
U.S.C.§ 1532
Fed. Reg.Notices
U.S.C.§ 605
U.S.C.§ 2141
U.S.C.§ 501
U.S.C.§ 3675
Cite6 CFR 27
Pub. L.Pub. L. 109-295
Cite6 CFR 27.200(b)
Cites 151 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.