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Code · REGISTER · 2007-04-26 · PROPOSED RULES · Unknown

Unknown. Final rule

37,488 words·~170 min read·/register/2007/04/26/07-2069·

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-2007-04-26.xml --- 72 80 Thursday, April 26, 2007 Contents Agriculture Agriculture Department See Cooperative State Research, Education, and Extension Service See Forest Service Alcohol Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 20869 E7-8002 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 20849-20851 E7-7976 E7-7977 Meetings:
National Institute for Occupational Safety and Health— Radiation and Worker Health Advisory Board; correction, 20851 E7-8077 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 20851 07-2062 Coast Guard Coast Guard RULES Drawbridge operations: Florida; correction, 20725-20726 E7-7949 Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.: Port Washington Harbor, Port Washington, WI, 20726-20728 E7-7948 NOTICES Committees; establishment, renewal, termination, etc.:
National Boating Safety Advisory Council, 20862-20863 E7-7947 Meetings: Lower Mississippi River Waterway Safety Advisory Committee, 20863 E7-7941 Reports and guidance documents; availability, etc.: High frequency radio broadcasts of marine weather forecasts and warnings; information request, 20863-20865 E7-7945 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 20814-20815 E7-8008 E7-8009 Commodity Commodity Futures Trading Commission PROPOSED RULES Commodity Exchange Act:
Intermediaries registration; online annual review requirement, 20788-20791 E7-8025 Cooperative Cooperative State Research, Education, and Extension Service RULES Grants: Small Business Innovation Research Grants Program; policy directive compliances, 20702-20712 E7-7934 Council Council on Environmental Quality NOTICES Reports and guidance documents; availability, etc.: National Environmental Policy Act processes; alignment with environmental management systems, 20848-20849 E7-7950 Defense Defense Acquisition Regulations System RULES Acquisition regulations:
Acquisition integrity; Government functions separation requirements, 20757-20758 E7-7911 Construction and service contracts; wage determinations, 20763-20764 E7-7908 Excessive pass-through charges, 20758-20761 E7-7905 Guam; military construction, 20764 E7-7912 Obsolete acquisition procedures removed, 20758 E7-7907 Small business programs, 20761-20763 E7-7906 Technical amendments, 20765 E7-7914 NOTICES Agency information collection activities; proposals, submissions, and approvals, 20840-20841 E7-7903 Defense Defense Department See Defense Acquisition Regulations System NOTICES Meetings;
Sunshine Act, 20840 07-2072 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 20841 E7-8005 Employee Employee Benefits Security Administration NOTICES Meetings: Employee Welfare and Pension Benefit Plans Advisory Council, 20870-20871 E7-7957 Employment Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.: Bartech Group, Inc., 20871 E7-7967 CERF Brothers Bag Co., Inc., 20871-20872 E7-7965 Douglas Quikut et al., 20872-20873 E7-7964 Enhanced Mfg.
Solutions, 20874 E7-7966 HSS Material Management Solutions, 20874 E7-7963 Oberle & Associates, Inc., 20874 E7-7969 Sara Lee, 20874 E7-7968 Grants and cooperative agreements; availability, etc.: YouthBuild Grants, 20874-20885 E7-7974 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Air pollution control; recreational engines and vehicles: All terrain vehicles; temporary exhaust emission test procedure option; extension, 20730-20735 07-2069 Air quality implementation plans; approval and promulgation; various States:
New Mexico, 20728-20730 E7-7896 PROPOSED RULES Air pollution control; recreational engines and vehicles: All terrain vehicles; exhaust emission test procedures, 20806-20809 07-2068 NOTICES Air programs: Ambient air monitoring reference and equivalent methods— Tanabyte Models 722, 723, 724, 725, or 726 Ambient Ozone Analyzer, 20846-20847 E7-7997 Water pollution control: National Pollutant Discharge Elimination System— Alaska; small suction dredge mining; general permit reissuance, 20847-20848 E7-7999 Environment Environmental Quality Council See Council on Environmental Quality Executive Executive Office of the President See Council on Environmental Quality FAA Federal Aviation Administration RULES Airworthiness directives:
Learjet, 20716-20718 E7-7640 Reims Aviation S.A., 20718-20720 E7-7641 PROPOSED RULES Airworthiness directives: AEROTECHNIC Vertriebs-u. Service GmbH, 20780-20782 E7-7993 Airbus, 20785-20787 E7-7998 Boeing, 20782-20785 E7-7978 Bombardier, 20777-20780 E7-7979 Learjet, 20775-20777 E7-8001 Airworthiness standards: Special conditions— Boeing Model 787-8 airplane, 20774-20775 E7-7840 Transport category airplanes— Airframe ice protection system; activation, 20924-20931 E7-7944 Restricted areas, 20787-20788 E7-8020 NOTICES Meetings:
RTCA, Inc., 20911-20912 07-2053 07-2054 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 20849 07-2084 Federal Emergency Federal Emergency Management Agency RULES Acquisition regulations; CFR chapter removed, 20757 E7-7971 Flood elevation determinations: Ohio, 20755-20757 E7-7970 Various States, 20735-20755 E7-7975 PROPOSED RULES Flood elevation determinations: Various States, 20810-20813 E7-7973 NOTICES Disaster and emergency areas: Indiana, 20865 E7-7972 Federal Energy Federal Energy Regulatory Commission RULES Electric utilities (Federal Power Act):
Nonoperating public utilities and licensees; accounting and reporting requirements, 20720-20723 E7-7771 Practice and procedure: Annual Electric Control and Planning Area Report (FERC Form No. 714); electronic filing requirement, 20723-20725 E7-7772 PROPOSED RULES Natural gas companies (Natural Gas Act and Energy Policy Act): Transparency provisions, 20791-20806 E7-7822 NOTICES Environmental statements; availability, etc.: Kinder Morgan Louisiana Pipeline LLC, 20843 E7-7982 Hydroelectric applications, 20843-20845 E7-7985 E7-7986 Meetings:
AES Sparrows Point LNG, LCC; technical conference, 20845-20846 E7-7983 Equitrans, L.P.; technical conference, 20846 E7-7988 Meetings; Sunshine Act, 20846 E7-7958 *Applications, hearings, determinations, etc.:* Allegheny Electric Cooperative, Inc., et al., 20841 E7-7984 Great Lakes Gas Transmission L.P., 20842 E7-7981 Petal Gas Storage, L.L.C., 20842 E7-7987 Western Gas Resources, Inc., et al., 20842-20843 E7-7989 Federal Highway Federal Highway Administration NOTICES Environmental statements; availability, etc.:
Warren County, IA, 20912 E7-7996 Federal Railroad Federal Railroad Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 20912-20913 E7-8018 Exemption petitions, etc.: Alton & Southern Railway, 20913-20914 E7-8023 Charlotte Area Transit System, 20914-20915 E7-8024 Morehead & South Fork Railroad, 20915 E7-8022 Fish Fish and Wildlife Service NOTICES Endangered and threatened species: Recovery plans— Northern spotted owl, 20865-20866 E7-8007 Southeastern beach mouse, etc., 5-year review, 20866-20868 E7-8006 Forest Forest Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 20814 E7-8027 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Indian Health Service See National Institutes of Health Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Indian Indian Health Service NOTICES Grants and cooperative agreements; availability, etc.:
Maternal and Child Health Program, 20851-20856 07-2051 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau International International Trade Administration NOTICES Antidumping: Corrosion resistant carbon steel flat products from— Korea, 20815-20816 E7-8016 Glycine from— Various countries, 20816-20820 E7-8017 Lemon juice from— Argentina, 20820-20830 E7-8015 Mexico, 20830-20836 E7-8019 Justice Justice Department See Alcohol, Tobacco, Firearms, and Explosives Bureau Labor Labor Department See Employee Benefits Security Administration See Employment and Training Administration See Mine Safety and Health Administration See Veterans Employment and Training Service NOTICES Grants and cooperative agreements; availability, etc.:
Combating Exploitive Child Labor Through Education, 20869-20870 E7-7962 Land Land Management Bureau NOTICES Meetings: Resource Advisory Councils— Boise District, 20868 07-2061 Oil and gas leases: North Dakota, 20868 E7-7942 Wyoming, 20868-20869 E7-7995 Mine Mine Safety and Health Administration NOTICES Safety standard petitions, 20885-20888 E7-8004 NASA National Aeronautics and Space Administration NOTICES Patent licenses; non-exclusive, exclusive, or partially exclusive: Endevco, 20888-20889 E7-8026 National Highway National Highway Traffic Safety Administration NOTICES Motor vehicle safety standards:
Nonconforming vehicles importation eligibility determinations, 20915-20916 E7-7936 NIH National Institutes of Health NOTICES Inventions, Government-owned; availability for licensing, 20856-20862 E7-7927 E7-7930 E7-7933 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone— Northern and pelagic shelf rockfish, 20773 07-2063 Atlantic highly migratory species— Atlantic commercial shark, 20765-20773 E7-8029 NOTICES Fishery conservation and management:
Alaska; fisheries of Exclusive Economic Zone— Bering Sea/Aleutian Islands nonpollock groundfish; longline catcher processor subsector reduction payments tender, 20836-20837 E7-7935 Marine mammals: Incidental taking; authorization letters, etc.— U.S. Army Engineer Corps.; Columbia River, Clatsop County, OR; South Jetty repairs; small numbers of marine mammals, 20837-20840 E7-8028 Nuclear Nuclear Regulatory Commission RULES Spent nuclear fuel and high-level radioactive waste; independent storage; licensing requirements:
Approved spent fuel storage casks; list, 20712-20716 E7-8033 NOTICES Meetings: Nuclear Waste Advisory Committee, 20889-20890 E7-8030 E7-8032 Reactor Safeguards Advisory Committee, 20890 E7-8031 Personnel Personnel Management Office RULES Allowances and differentials: Uniform allowance rate increase, 20701-20702 E7-7959 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Hazardous materials: Special permit applications; list, 20916-20918 E7-7938 Postal Postal Regulatory Commission NOTICES Meetings;
Sunshine Act, 20890 07-2086 SEC Securities and Exchange Commission NOTICES Joint Industry Plan: American Stock Exchange LLC et al., 20891-20901 E7-7953 Securities: Suspension of trading— Internetstudios.com, Inc. and World Cyberlinks Corp., 20901-20902 07-2074 Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 20902-20905 E7-7956 New York Stock Exchange LLC, 20905-20907 E7-7939 SBA Small Business Administration NOTICES Meetings: National Small Business Development Center Advisory Board, 20907 E7-8021 Surface Surface Transportation Board NOTICES Railroad operation, acquisition, construction, etc.:
Canadian Pacific Railway, 20918 E7-8010 Railroad services abandonment: CSX Transportation, Inc., 20918-20919 E7-8011 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Railroad Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board NOTICES Aviation proceedings: Certificates of public convenience and necessity and foreign air carrier permits; weekly applications, 20908-20911 E7-7992 Treasury Treasury Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 20919-20921 E7-8012 E7-8013 Customs U.S.
Customs and Border Protection NOTICES Customhouse broker license cancellation, suspension, etc., 20921 E7-7960 E7-7961 Veterans Veterans Employment and Training Service NOTICES Meetings: Veterans’ Employment Training and Employer Outreach Advisory Committee, 20888 E7-7775 Separate Parts In This Issue Part II Transportation Department, Federal Aviation Administration, 20924-20931 E7-7944 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 80 Thursday, April 26, 2007 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 591 RIN 3206-AL07 Allowances and Differentials AGENCY: Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management is issuing final regulations to increase the maximum annual uniform allowance rate from $400 to $800.
When civilian Federal employees are required to wear a uniform in the performance of their duties, agencies must pay a uniform allowance or furnish a uniform. DATES: The regulations are effective on May 29, 2007. FOR FURTHER INFORMATION CONTACT: Kevin Kitchelt, by telephone at
(202)606-2858; by fax at
(202)606-0824; or by e-mail at *pay-performance-policy@opm.gov.* SUPPLEMENTARY INFORMATION: On June 30, 2006, the Office of Personnel Management
(OPM)issued proposed regulations (71 FR 37507) to increase the maximum annual uniform allowance rate. Under 5 U.S.C. 5901, when civilian Federal employees are required to wear a uniform in the performance of their duties, agencies must pay a uniform allowance or furnish a uniform. OPM proposed to increase the maximum annual uniform allowance rate from $400 to $500. The 60-day comment period ended on August 29, 2006. During the comment period, OPM received comments from nine individuals, two labor organizations, one agency, and one professional association. The comments are addressed in this final rule. Increasing the Maximum Annual Uniform Allowance Rate Under 5 U.S.C. 5902, OPM may, from time to time, adjust the maximum annual uniform allowance granted to employees for the cost of their uniforms. The rate has not been increased since 1991. On June 30, 2006, OPM issued proposed regulations in 5 CFR 591.103 to increase the maximum annual uniform allowance rate from $400 to $500. OPM's proposed increase was based on the Bureau of Labor Statistics' Producer Price Index—Commodities (Seasonally Adjusted), which showed an increase of 24 percent between January 1991 and January 2005. Most of the commenters supported OPM's proposal to increase the maximum annual uniform allowance rate but suggested that the rate needed to be increased to an amount higher than $500. Two individuals objected to the proposed increase in the maximum annual uniform allowance rate. The commenters identified specific categories of employees in uniforms ( *e.g.* , firefighters) that require protective clothing which must meet certain professional standards. The commenters noted the protective clothing is expensive because the quality of such clothing is continuously improving due to technological advancements in the materials (i.e., Nomex) used to make it. The professional association recommended an increase to $800. We agree that expensive specialized clothing may be required for certain categories of employees and should be considered in determining a maximum annual uniform allowance rate. Therefore, we are amending 5 CFR 591.103 to provide a maximum annual uniform allowance rate of $800. Although agencies will now be permitted to pay an annual uniform allowance rate *up* to a maximum rate of $800 a year, it is not anticipated or expected that every employee who is required to wear a uniform will receive the maximum rate of $800 per year. Agencies are in the best position to identify and manage the specific uniform allowance needs of their employees. We note that although OPM has sole authority to adjust the maximum *annual* uniform allowance granted to employees for maintaining uniforms (5 U.S.C. 5902 and 5 CFR 591.103), agencies have discretionary authority to establish a higher *initial* maximum uniform allowance rate under 5 CFR 591.104. An agency must publish a notice in the **Federal Register** with a description and justification for establishing a higher *initial* maximum uniform allowance rate. One labor organization recommended that OPM require agencies to provide uniforms when the safety of the employee is involved. We have not adopted this recommendation because OPM does not have the authority to implement such a requirement. Under 5 U.S.C. 5901(a), an agency must determine whether to furnish a uniform or pay a uniform allowance to its employees who are required to wear a uniform. Agency Uniform Allowance Policy An individual recommended that agencies be required to establish a policy for paying uniform allowances to ensure that uniforms are maintained appropriately and the allowance is used solely to maintain uniforms. Although we believe agencies have already established such policies in writing or in practice, as we adopt a new annual uniform allowance rate that is twice the amount of the previous rate, we agree OPM's regulations should make this requirement explicit. We have added a new paragraph
(c)to 5 CFR 591.103 to require that any agency which provides a uniform allowance must establish policies to administer the uniform allowance program and such policies must contain uniform standards acceptable to the agency but we defer to agencies to develop specific provisions of the policy. At a minimum, OPM expects such policies will
(1)Identify the category of employees required to wear uniforms,
(2)establish requirements for determining the annual uniform allowance rate based on the specific uniform needs of each category of employees,
(3)require employees to provide evidence acceptable to the agency of the employee's purchase of one or more uniforms (e.g., receipts), and
(4)require employees to obtain uniforms that meet standards acceptable to the agency. Agencies may use any standards acceptable to them to determine uniform appearance, and any other specialized uniform requirements such as safety requirements, if appropriate. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal agencies and employees. List of Subjects in 5 CFR Part 591 Government employees, Travel and transportation expenses, Wages. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM is amending 5 CFR part 591 as follows: PART 591—ALLOWANCES AND DIFFERENTIALS Subpart A—Uniform Allowances 1. The authority citation for subpart A of part 591 continues to read as follows: Authority: 5 U.S.C. 5903; E.O. 12748, 3 CFR 1991 Comp., p. 316. Source: 59 FR 43705, Aug. 25, 1994, unless otherwise noted. 2. In § 591.103, paragraphs
(a)and
(b)are revised and a new paragraph
(c)is added to read as follows: § 591.103 Governmentwide maximum uniform allowance rate.
(a)Pay an allowance for a uniform not to exceed $800 a year; or
(b)Furnish a uniform at a cost not to exceed $800 a year.
(c)Any agency which provides a uniform allowance under paragraph
(a)of this section must establish policies to administer the uniform allowance program, including uniform standards acceptable to the agency. [FR Doc. E7-7959 Filed 4-25-07; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF AGRICULTURE Cooperative State Research, Education, and Extension Service 7 CFR Part 3403 RIN 0524-AA31 Small Business Innovation Research Grants Program AGENCY: Cooperative State Research, Education, and Extension Service, USDA. ACTION: Final rule. SUMMARY: The Cooperative State Research, Education, and Extension Service (CSREES) is revising the Small Business Innovation Research
(SBIR)Grants Program Administrative Regulations to implement changes and be compliant with the Small Business Innovation Research Policy Directive (67 FR 60072, September 24, 2002). DATES: This rule is effective April 26, 2007. FOR FURTHER INFORMATION CONTACT: Dr. Deborah Sheely, Director, Integrated Programs, Competitive Programs Unit, Cooperative State Research, Education, and Extension Service, USDA, STOP 2241, 1400 Independence Avenue, SW., Washington, DC 20250-2241; Telephone:
(202)401-1924; E-mail: *dsheely@csrees.usda.gov.* SUPPLEMENTARY INFORMATION: Background and Purpose On May 18, 2006, CSREES published a Proposed Rule (71 FR 28780, May 18, 2006) to revise the Small Business Innovation Research Grants Program Administrative Regulations. In the Proposed Rule, CSREES invited comments which were due to the Agency contact by June 19, 2006. We did not receive any comments. In section 3403.8, we have deleted reference to “the project period normally should not exceed six months” in anticipation of potential changes of a similar requirement in the SBA Policy Directive. Changes were made to sections 3403.7 and 3403.8 in accordance with the new application forms. In section 3404.11, “resubmission” has been added as one of the factors in the final decisions that will be made by USDA. In 1982, Congress enacted the Small Business Innovation Development Act of 1982, Public Law 97-219 (15 U.S.C. 638), which established the Small Business Innovation Research
(SBIR)Program. The statutory purpose of the SBIR Program is to strengthen the role of innovative small business concerns in Federally-funded research and research and development (R/R&D). The SBIR Program is a phased process, uniform throughout the Federal Government, of soliciting proposals and awarding funding agreements for R/R&D to meet stated agency needs or missions. To stimulate and foster scientific and technological innovation, including increasing commercialization of Federal R/R&D, the program must follow a uniform competitive process. In December of 2000, Congress enacted the Small Business Innovation Research Program Reauthorization Act of 2000, Public Law 106-554. The Reauthorization Act extends the SBIR Program through September 30, 2008, and requires the Small Business Administration
(SBA)to clarify that rights to data generated during the performance of an SBIR award apply to all SBIR awards. In addition, the Act requires that each application for a Phase II award contain a succinct commercialization plan. On September 24, 2002, the SBA revised the SBIR Program Policy Directive to reflect statutory amendments to the SBIR Program, and provided guidance to Federal agencies for the general conduct of the program. The U.S. Department of Agriculture participates in the SBIR Program through the issuance of competitive research grants by CSREES. The Agency proposed revising the existing rule, at 7 CFR Part 3403, to comply with recent statutory revisions and changes to the SBA Policy Directive. The following definitions have been added to clarify the provisions and in compliance with the Policy Directive: Intellectual Property; Innovation; Joint Venture; Outcomes and Outputs; Authorized Departmental Officer; Authorized Organizational Representative; Essentially Equivalent Work; SBIR Technical Data Rights; SBIR Technical Data; SBIR Participants; Prototype; Research Project Grant; Small Business Concern; and Socially and Economically Disadvantaged Small Business Concern. In addition, in Part 3403.4, language was added to clarify the eligibility of Phase I recipients, specifically allowing those organizations receiving Phase I rights via successor-in-interest or novation agreements to be eligible to receive Phase II awards. In addition, language clarifying the timing of the submission of Phase II proposals during the funding cycle was added. In Part 3403.5 the mention of specific forms was deleted in anticipation of electronic submission of proposals. The requirement was inserted into Part 3403.7 that a small business concern that is submitting a proposal for a Phase I award must document the extent to which it was able to secure Phase III funding if it has received more than 15 Phase II awards during the preceding five years. Classification This rule has been reviewed under Executive Order 12866, and it has been determined that it is not a “significant regulatory action” rule because it will not have an annual effect on the economy of $100 million or more or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This rule will not create any serious inconsistencies or otherwise interfere with any actions taken or planned by another agency. It will not materially alter the budgetary impact of entitlements, grants, user fees or loan programs and does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or principles set forth in Executive Order No. 12866. Regulatory Flexibility Act Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), this rule will not have a significant economic impact on a substantial number of small entities for the rule only applies to awards issued under the SBIR program. CSREES issues SBIR awards to small business concerns (SBC). SBC means a concern that, on the date of award for both Phase I and Phase II funding agreements:
(1)Is organized for profit, with a place of business located in the United States, which operates primarily within the United States, or which makes a significant contribution to the United States economy through the payment of taxes or use of American products, materials or labor;
(2)is in the legal form of an individual proprietorship, partnership, limited liability company, corporation, joint venture, association, trust or cooperative, except that where the form is a joint venture, there can be no more than 49 percent participation by foreign business entities in the joint venture;
(3)is at least 51 percent owned and controlled by one or more individuals who are citizens of, or permanent resident aliens in, the United States, except in the case of a joint venture, where each entity in the venture must be 51 percent owned and controlled by one or more individuals who are citizens of, or permanent resident aliens in the United States; and
(4)has, including its affiliates, not more than 500 employees. The term “affiliates” is defined in greater detail in 13 CFR 121.103. The term “number of employees” is defined in 13 CFR 121.106. The Small Business Administration
(SBA)was given the responsibility of issuing policy directives for the general conduct of the SBIR Program. In September 1984, the SBA issued a Policy Directive, which was subsequently revised in January 1993. To implement statutory changes in the Reauthorization Act and to streamline the Policy Directive, SBA modified the Policy Directive in 2002 (67 FR 60072, Sept. 24, 2002). This rule is compliant with the 2002 Policy Directive. The 2002 Policy Directive provides guidance to the SBIR participatory Federal agencies for the general operation of the program. Since such agencies are compliant with the Policy Directive there is a reduction of burden inherent in the consistency amongst the agencies. Furthermore, awardees are able to use amounts awarded for indirect costs to meet the costs of implementing the regulations. In FY 2007 funds awarded by CSREES under the SBIR program are available to pay full allowable indirect costs. As of April 6, 2006, CSREES has 151 active SBIR awards which are subject to this rule. Paperwork Reduction Act In accordance with the Office of Management and Budget
(OMB)regulations (5 CFR part 1320) which implements the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that will be imposed in the implementation of this Final Rule have been approved under OMB No. 0524-0024, Grant Application Forms for the Small Business Innovation Research Grants Programs. Federalism We have analyzed this rule under Executive Order 13132, Federalism, and have determined that it does not have federalism implications to warrant the preparation of a Federalism assessment under that order. Intergovernmental Review The Department published notice of the exclusion of this program from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials in the Final Rule-Related Notice for 7 CFR part 3015, subpart V, (48 FR 29115, June 24, 1983). Environmental Impact Statement This proposed regulation does not significantly affect the environment. Therefore an environmental impact statement is not required under the National Environmental Policy Act of 1969, as amended. Regulatory Analysis This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. All State and local laws and regulations that are in conflict with this rule are preempted. No retroactive effect is to be given to this rule. This rule does not require administrative proceedings before parties may file suit in court. Unfunded Mandates Reform Act Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), the Department assessed the effects of this rulemaking action on State, local, and Tribal governments, and the public. This action does not compel the expenditure of $100 million or more by any State, local, or Tribal government, or anyone in the private sector. Therefore, a statement under section 202 of the Unfunded Mandates Reform Act of 1995 is not required. Consultation and Coordination with Indian Tribal Governments This rule does not have tribal implications and thus no further action is required under Executive Order 13175. Energy Supply The Final Rule is not a significant energy action for purposes of Executive Order 13211, Actions Concerning Regulations that Significantly Affect Supply (May 18, 2001). List of Subjects in 7 CFR Part 3403 Small Business Innovation Research, Small Business, Research, Research and Development. For the reasons stated in the preamble, CSREES revises 7 CFR part 3403 to read as follows: PART 3403—SMALL BUSINESS INNOVATION RESEARCH GRANTS PROGRAM Subpart A—General Information Sec. 3403.1 Applicability of regulations. 3403.2 Definitions. 3403.3 Eligibility requirements. Subpart B—Program Description 3403.4 Three-phase program. Subpart C—Preparation of Proposals 3403.5 Program solicitation. 3403.6 Content of proposals. 3403.7 Proposal format for phase I applications. 3403.8 Proposal format for phase II applications. Subpart D—Submission and Evaluation of Proposals 3403.9 Submission of proposals. 3403.10 Proposal review. 3403.11 Availability of information. Subpart E—Supplementary Information 3403.12 Terms and conditions of grant awards. 3403.13 Notice of grant awards. 3403.14 Use of funds; changes. 3403.15 Other Federal statutes and regulations that apply. 3404.16 Other considerations. Authority: 15 U.S.C. 638. Subpart A—General Information § 3403.1 Applicability of regulations.
(a)The regulations of this part apply to small business innovation research grants awarded under the general authority of section 630 of the Act making appropriations for Agriculture, Rural Development, and Related Agencies' programs for fiscal year ending 1987, and for other purposes as made applicable by section 101(a) of Pub. L. 99-591, 100 Stat. 3341, and the provisions of the Small Business Innovation Development Act of 1982, as amended (15 U.S.C. 638), and the Small Business Innovation Research Program Reauthorization Act of 2000, Pub. L. 106-554, which extends the SBIR Program through September 30, 2008. The Small Business Innovation Development Act of 1982, as amended, mandates that each Federal agency with an annual extramural budget for research or research and development in excess of $100 million participate in a Small Business Innovation Research
(SBIR)program by reserving a statutory percentage of its annual extramural budget for award to small business concerns for research or research and development in order to stimulate technological innovation, use small business to meet Federal research and development needs, increase private sector commercialization of innovations derived from Federal research and development, and foster and encourage the participation of socially and economically disadvantaged small business concerns and women-owned small business concerns in technological innovation. The Department will participate in this program through the issuance of competitive research grants which will be administered by the Office of Extramural Programs, CSREES.
(b)The regulations of this part do not apply to research grants awarded by the Department under any other authority. § 3403.2 Definitions. As used in this part: *Ad hoc reviewers* means experts or consultants, qualified by training and experience in particular scientific or technical fields to render expert advice on the scientific technical merit of the grant applications in those fields, who review on an individual basis one or several of the eligible proposals submitted to this program in their area of expertise and who submit to the Department written evaluations of such proposals. *Applicant* is the organizational entity that, at the time of award, will qualify as a small business concern and that submits a grant application for a funding agreement under the SBIR Program. *Authorized departmental officer*
(ADO)means the Secretary or any employee of the Department who has the authority to issue or modify grant instruments on behalf of the Secretary. The ADO is also referred to as the Funding Agreement Officer. *Authorized organizational representative*
(AOR)means the president, director, or chief executive officer or other designated official of the applicant organization who has the authority to commit the resources of the organization. *Budget Period* means the interval of time into which the project period is divided for budgetary and reporting purposes. *Commercialization* is the process of developing marketable products or services and producing and delivering products or services for sale (whether by the originating party or by others) to Government or commercial markets. *CSREES* means the Cooperative State Research, Education and Extension Service. *Department* means the U.S. Department of Agriculture. *Essentially equivalent work* occurs when:
(1)Substantially the same research is proposed for funding in more than one grant application submitted to the same Federal agency;
(2)Substantially the same research is submitted to two or more different Federal agencies for review and funding consideration; or
(3)A specific research objective and the research design for accomplishing an objective are the same or closely related in two or more proposals or awards, regardless of the funding source. *Funding agreement* is any contract, grant, or cooperative agreement entered into between any Federal agency and any small business concern for the performance of experimental, developmental, or research work, including products or services funded in whole or in part by the Federal Government. *A grant* is a financial assistance mechanism providing money, property, or both to an eligible entity to carry out the approved project or activity, and substantial programmatic involvement by Government is not anticipated. *Grantee* means the small business concern designated in the grant award document as the responsible legal entity to whom the grant is awarded under this part. *Innovation* is something new or improved, having marketable potential including:
(1)Development of new technologies;
(2)Refinement of existing technologies; or
(3)Development of new applications for existing technologies. *Intellectual property* means the separate and distinct types of intangible property that are referred to collectively as “intellectual property,” including but not limited to: Patents, trademarks, copyrights, trade secrets, SBIR technical data (as defined in this section), ideas, designs, know-how, business, technical and research methods, other types of intangible business assets, and all types of intangible assets either proposed or generated by a small business concern as a result of its participation in the SBIR Program. *Joint venture* is an association of concerns with interests in any degree or proportion by way of contract, express or implied, consorting to engage in and carry out a single specific business venture for joint profit, for which purpose they combine their efforts, property, money, skill, or knowledge, but not on a continuing or permanent basis for conducting business generally. A joint venture is viewed as a business entity in determining power to control its management. *Outcomes* are the measure of long-term, eventual, program impact. *Outputs* are the measures of near-term program impact. *Peer review group* means experts or consultants, qualified by training and experience in particular scientific or technical fields to give expert advice on the scientific and technical merit of grant applications to those fields, who assemble as a group to discuss and evaluate all of the eligible proposals submitted to this program in their area of expertise. *Principal investigator/project director* is the one individual designated by the applicant to provide the scientific and technical direction to a project supported by the funding agreement. *Professional Employer Organization* is an organization that provides an integrated approach to the management and administration of the human resources and employer risk of its clients, by contractually assuming substantial employer rights, responsibilities, and risk, through the establishment and maintenance of an employer relationship with the workers assigned to its clients. *Program solicitation* is a formal request for proposals whereby an agency notifies the small business community of its research or research and development needs and interests in broad and selected areas, as appropriate to the agency, and requests proposals from small business concerns in response to these needs and interests. *Project period* means the total length of time that is approved by the Department for conducting the research project as outlined in an approved grant application. *Prototype* is a model of something to be further developed, which includes designs, protocols, questionnaires, software, and devices. *Research or research and development* (R/R&D) means any activity which is:
(1)A systematic, intensive study directed toward greater knowledge or understanding of the subject studied;
(2)A systematic study directed specifically toward applying new knowledge to meet a recognized need; or
(3)A systematic application of knowledge toward the production of useful materials, devices, and systems or methods, including design, development, and improvement of prototypes and new processes to meet specific requirements. *Research project grant* means the award by the Department of funds to a grantee to assist in meeting the costs of conducting for the benefit of the public an identified project which is intended and designed to establish, discover, elucidate, or confirm information or the underlying mechanisms relating to a research topic area identified in the annual solicitation of applications. *SBIR Participants* are business concerns that have received SBIR awards or that have submitted SBIR proposals/applications. *SBIR Technical Data* is defined as all data generated during the performance of an SBIR award. *SBIR Technical Data Rights* are the rights a small business concern obtains in data generated during the performance of any SBIR award that an awardee delivers to the Government during or upon completion of a Federally-funded project, and to which the government receives a license. *Small business concern*
(SBC)means a concern that, on the date of award for both Phase I and Phase II funding agreements:
(1)Is organized for profit, with a place of business located in the United States, which operates primarily within the United States, or which makes a significant contribution to the United States economy through the payment of taxes or use of American products, materials or labor;
(2)Is in the legal form of an individual proprietorship, partnership, limited liability company, corporation, joint venture, association, trust or cooperative, except that where the form is a joint venture, there can be no more than 49 percent participation by foreign business entities in the joint venture;
(3)Is at least 51 percent owned and controlled by one or more individuals who are citizens of, or permanent resident aliens in, the United States, except in the case of a joint venture, where each entity in the venture must be 51 percent owned and controlled by one or more individuals who are citizens of, or permanent resident aliens in the United States; and
(4)Has, including its affiliates, not more than 500 employees. The term “affiliates” is defined in greater detail in 13 CFR 121.103. The term “number of employees” is defined in 13 CFR 121.106. *Socially and economically disadvantaged small business concern* is defined in 13 CFR part 124-8(A) Business Development/Small Disadvantaged Business Status Determinations, § 124.103 (Who is socially disadvantaged?) and § 124.104 (Who is economically disadvantaged?). *United States* means the 50 states, the territories and possessions of the Federal Government, the Commonwealth of Puerto Rico, the District of Columbia, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau. *Women-owned small business concern* means a small business concern that is at least 51 percent owned by one or more women, or in the case of any publicly owned business, at least 51 percent of the stock is owned by women, and women control the management and daily business operations. § 3403.3 Eligibility requirements.
(a)*Eligibility of organization.*
(1)To receive SBIR funds, each awardee of a SBIR Phase I or Phase II must qualify as a small business concern.
(2)For Phase I, a minimum of two-thirds of the research or analytical effort, as measured by the budget, must be performed by the awardee. Occasionally, deviations from this requirement may occur, and must be approved in writing by the ADO after consultation with the agency SBIR National Program Leader.
(3)For Phase II, a minimum of one-half of the research or analytical effort, as measured by the budget, must be performed by the awardee. Occasionally, deviations from this requirement may occur, and must be approved in writing by the ADO after consultation with the agency SBIR National Program Leader.
(4)For both Phase I and Phase II, the primary employment of the principal investigator must be with the SBC at the time of award and during the conduct of the proposed project. Primary employment means that more than one-half of the principal investigator's time is spent in the employ of the SBC. This precludes full-time employment with another organization. Occasionally, deviations from this requirement may occur, and must be approved in writing by the ADO after consultation with the agency SBIR National Program Leader. Further, an SBC may replace the principal investigator on an SBIR Phase I or Phase II award, subject to approval in writing by the ADO after consultation with the SBIR National Program Leader. For purposes of the SBIR Program, personnel obtained through a Professional Employer Organization or other similar personnel leasing company must be considered employees of the awardee. This is consistent with SBA's size regulations, 13 CFR 121.106—Small Business Size Regulations.
(5)For both Phase I and Phase II, the R/R&D must be performed in the United States. However, based on a rare and unique circumstance, ADO approval may be granted to perform a particular portion of the research or research and development work outside of the United States, for example, if a supply of material or other item or project requirement is not available in the United States. The ADO, after consultation with the agency SBIR National Program Leader, must approve each such specific condition in writing.
(b)[Reserved]. Subpart B—Program Description § 3403.4 Three-phase program. The Small Business Innovation Research Grants Program is carried out in three separate phases described in this section. The first two phases are designed to assist USDA in meeting its research or research and development objectives and will be supported with SBIR Program funds. The purpose of the third phase is to pursue the commercial applications or objectives of the research carried out in Phases I and II through the use of private or Federal non-SBIR funds.
(a)*Phase I.* Phase I involves a solicitation of grant applications (hereinafter referred to as proposals) to conduct feasibility-related experimental research and development related to described agency requirements. These requirements, as defined by agency topics contained in the solicitation, may be general or narrow in scope, depending on USDA needs. The object of this phase is to determine the scientific and technical merit and feasibility of the proposed effort and the quality of performance of the small business concern with a relatively small agency investment before consideration of further Federal support in Phase II.
(b)*Phase II* is the principal research or research and development effort in which the results from Phase I are expanded upon and further pursued, normally for a period not to exceed 24 months. Only SBIR awardees in Phase I are eligible to participate in Phase II. This includes those awardees identified via a “novated” or “successor in interest” or similarly-revised funding agreement, or those that have reorganized with the same key staff, regardless of whether they have been assigned a different tax identification number. For each Phase I project funded, the awardee may apply for a Phase II award only once. Phase I awardees who for valid reasons cannot apply for Phase II support in the next fiscal year funding cycle may normally apply for support no later than the second fiscal year funding cycle.
(c)*Phase III* refers to work that derives from, extends, or logically concludes effort(s) performed under prior SBIR funding agreements, but is funded by sources other than the SBIR Program. Phase III work is typically oriented towards commercialization of SBIR research or technology. This portion of a project is funded by a non-SBIR source through the use of a follow-on funding commitment. A follow-on funding commitment is an agreement between the small business concern and a provider of the follow-on capital for a specified amount of funds to be made available to the small business concern for future development of their effort upon achieving certain mutually agreed upon technical objectives. Subpart C—Preparation of Proposals § 3403.5 Program solicitation.
(a)*Phase I.* A program solicitation requesting Phase I proposals will be prepared each fiscal year in which funds are made available for this purpose. This solicitation will contain information sufficient to enable eligible applicants to prepare grant proposals and will include descriptions of specific research topic areas which the Department will support during the fiscal year involved. A notice of solicitation, and the entire contents of the program solicitation will be published, at a minimum, on the agency's Web site.
(b)*Phase II.* For each fiscal year in which funds are made available for this purpose, the Department will send correspondence requesting Phase II proposals from the Phase I grantees eligible to apply for Phase II funding in that fiscal year. The correspondence will contain information sufficient to enable eligible applicants to prepare grant proposals. § 3403.6 Content of proposals.
(a)The proposed research must be responsive to one of the USDA program interests stated in the research topic descriptions of the program solicitation.
(b)Proposals must cover only scientific/technological research activities. A small business concern must not propose product development, technical assistance, demonstration projects, classified research, or patent applications. Many of the research projects supported by the SBIR program lead to the development of new products based upon the research results obtained during the project. However, projects that seek funding solely for product development where no research is involved, i.e., funds are needed to permit the development of a project based on previously completed research, will not be accepted. Literature surveys should be conducted prior to preparing proposals for submission and must not be proposed as a part of the SBIR Phase I or Phase II effort. Proposals principally for the development of proven concepts toward commercialization or for market research should not be submitted since such efforts are considered the responsibility of the private sector and therefore are not supported by USDA.
(c)A proposal must be limited to only one topic. The same proposal may not be submitted under more than one topic as defined in the solicitation. However, an organization may submit separate proposals on the same topic. Where similar research is discussed under more than one topic, the proposer should choose that topic whose description appears most relevant to the proposer's research concept. USDA will not consider funding duplicate (essentially equivalent work) proposals. In addition, essentially equivalent work funded by another entity will be returned to the applicant without review. § 3403.7 Proposal format for phase I applications.
(a)The following items relate to Phase I applications. Further instructions or descriptions for these items as well as any additional items to be included will be provided in the annual solicitation, as necessary.
(1)*SF-424 R&R Cover.* Applicants must submit basic proposal identification information on the first page of the proposals. Applicants must also certify on the first page of the proposals that they meet the definition of a small business concern as stated in the solicitation, and must certify as to whether or not they qualify as socially and economically disadvantaged small business concerns, or women-owned small business concerns.
(2)*Project Summary/Abstract.* The technical abstract should include a brief description of the problem or opportunity, project objectives, and a description of the effort. Anticipated results and potential commercial applications of the proposed research also should be summarized in the space provided. Keywords should characterize the most important aspects of the project. The project summary of successful proposals may be published by USDA and therefore should not contain proprietary information.
(3)*Project Narrative.* The main body of the proposal should include:
(i)Identification and significance of the problem or opportunity.
(ii)Background and rationale.
(iii)Relationship with future research or research and development.
(iv)Phase I technical objectives.
(v)Phase I work plan.
(vi)Related research or research and development.
(vii)References. For each reference cited in the Proposal, provide the complete name for each author, the date of publication, the full title of the article, name of the journal, etc.
(4)*Key personnel and bibliography.* Identify key personnel involved in the effort, including information on their directly related education and experience. For each key person, provide a chronological list of the most recent representative publications in the topic area.
(5)*Facilities and equipment.* Describe the types, location, and availability of instrumentation and physical facilities necessary to carry out the work proposed. Items of equipment to be purchased must be fully justified under this section.
(6)*Outside services.* Involvement of university or other consultants in the planning and research stages of the project as consultants or through subcontracting arrangements is permitted and may be particularly helpful to small business concerns that have not previously received Federal research awards. If such involvement is intended, it should be described in detail.
(7)*Satisfying the public interest.* Specify how the proposed research will satisfy one or more of the following objectives:
(i)Develops sustainable agriculture production systems;
(ii)Protects natural resources and the environment;
(iii)Creates a safe, nutritious and affordable food supply;
(iv)Develops value-added food and non-food products from agricultural materials;
(v)Enhances global competitiveness; and
(vi)Enhances economic opportunity and quality of life, especially for people in rural areas.
(8)*Potential post applications.* Briefly describe the commercialization potential of the proposed research. Indicate whether and by what means there appears to be a potential for the Federal Government to use the proposed research. Include a brief description of the proposing company (e.g., date founded, number of employees) and its field of interest. What are the major competitive products in this field, and what advantages will the proposed research have over existing technology (in application, performance, technique, efficiency or cost)?
(9)*Similar Proposals or Awards.*
(i)WARNING—While it is permissible with proposal notification to submit identical proposals containing a significant amount of essentially equivalent work for consideration under numerous Federal program solicitations, it is unlawful to enter into funding agreements requiring essentially equivalent work. If there is any question concerning this, it must be disclosed to the soliciting agency or agencies before award. If an applicant elects to submit identical proposals or proposals containing a significant amount of essentially equivalent work under other Federal program solicitations, a statement must be included in each such proposal indicating:
(A)Name and address of the agency(ies) to which the proposal was submitted, or will be submitted, or from which an award is expected or has been received.
(B)Date of actual or anticipated proposal submission or date of award, as appropriate.
(C)Title of proposal or award, identifying number assigned to the solicitation or proposal by the agency involved, and the date the proposal(s) were submitted or the award was received.
(D)Applicable research topic area for each proposal submitted or award received.
(E)Titles of research projects.
(F)Name and title of principal investigator for each proposal submitted or award received.
(ii)*USDA will not make awards that duplicate research funded (or to be funded) by other Federal agencies.*
(10)*Cost breakdown on proposal budget.* Complete a budget form for the phase under which you are currently applying. (An applicant for Phase I funding should not submit both Phase I and Phase II budgets.) A budget narrative with supporting detail for each budget category must be included.
(11)*Special Considerations* . If the proposed research will include laboratory animals or human subjects at risk, the applicant may be required to have the research plan reviewed and approved by an Institutional Animal Care and Use Committee (IACUC) or Institutional Review Board
(IRB)prior to commencing actual substantive work. If such approval is required, USDA may not release funds for the award until proper documentation is submitted and accepted by USDA. It is suggested that applicants contact local universities, colleges, or nonprofit research organizations which have established reviewing mechanisms to have this service performed.
(12)*Proprietary information.*
(i)If proprietary information is provided by an applicant in a proposal which constitutes a trade secret, proprietary commercial or financial information, confidential personal information, or data affecting the national security, it will be treated in confidence to the extent permitted by law. This information must be clearly marked by the applicant with the term “confidential proprietary information” and the following legend must appear on the title page of the proposal: “These data shall not be disclosed outside the Government and shall not be duplicated, used, or disclosed in whole or in part for any purpose other than evaluation of this proposal. If a funding agreement is awarded to this applicant as a result of or in connection with the submission of these data, the Government shall have the right to duplicate, use, or disclose the data to the extent provided in the funding agreement and pursuant to applicable law. This restriction does not limit the Government's right to use information contained in the data if it is obtained from another source without restriction. The data subject to this restriction are contained on pages __ of this proposal.”
(ii)USDA, by law, is required to make the final decision as to whether the information is required to be kept in confidence. Information contained in unsuccessful proposals will remain the property of the applicant. However, USDA will retain for three years one copy of all proposals received; extra copies will be destroyed. Public release of information for any proposal submitted will be subject to existing statutory and regulatory requirements. Any proposal which is funded will be considered an integral part of the award and normally will be made available to the public upon request through the Freedom of Information Act, except for designated proprietary information.
(iii)The inclusion of proprietary information is discouraged unless it is necessary for the proper evaluation of the proposal. If proprietary information is to be included, it should be limited, set apart from other text on a separate page, and keyed to the text by numbers. It should be confined to a few critical technical items which, if disclosed, could jeopardize the obtaining of foreign or domestic patents. Trade secrets, salaries, or other information which could jeopardize commercial competitiveness should be similarly keyed and presented on a separate page. Proposals or reports which attempt to restrict dissemination of large amounts of information may be found unacceptable by USDA.
(13)*Rights in data developed under SBIR funding agreement.* The legend (or statements) in the SBIR datarights clause included in the SBIR award must be affixed to any submissions of technical data. Where such legend is affixed, rights in technical data, including software developed under the terms of any funding agreement resulting from a proposal submitted in response to the program solicitation shall remain with the grantee. The Government may not use, modify, reproduce, release, perform, display, or disclose technical data or computer software marked with this legend for 4 years. After expiration of the 4-year period, the Government has a royalty-free license to use, and to authorize others to use on its behalf, these data for Government purposes, and is relieved of all disclosure prohibitions and assumes no liability for unauthorized use of these data by third parties, except that any such data that is also protected and referenced under a subsequent SBIR award shall remain protected through the protection of that subsequent SBIR award.
(14)*Patents and Inventions.* Allocation of rights to inventions shall be in accordance with 35 U.S.C. 202 through 206 and the Department of Commerce implementing regulations entitled “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms under Government Grants, Contracts and Cooperative Agreements” at 37 CFR part 401. These regulations provide that small businesses normally may retain the principal worldwide patent rights to any invention developed with USDA support. USDA receives a royalty-free license for Federal Government use, reserves the right to require the patentee to license others in certain circumstances, and requires that anyone exclusively licensed to sell the invention in the United States must normally manufacture it domestically. To the extent authorized by 35 U.S.C. 205, USDA will not make public any information disclosing a USDA-supported invention for a four-year period. SBIR awardees must report inventions to the awarding agency within two months of the inventor's report to the awardee. The reporting of inventions shall be made through submission to Interagency Edison as specified in the terms and conditions of the grant.
(15)*Organizational management information.* Before the award of an SBIR funding agreement, USDA requires the submission of certain organizational management, personnel, and financial information to assure responsibility of the applicant. This information is not required unless a project is recommended for funding, and then it is submitted on a one-time basis only. However, new information should be submitted if a small business concern has undergone significant changes in organization, personnel, finance or policies, including those relating to civil rights.
(16)*Documentation of commercialization record of firms with multiple phase II awards.* A small business concern submitting a proposal for a Phase I award that has received more than 15 Phase II SBIR awards during the preceding five fiscal years must document the extent to which it was able to secure Phase III funding to develop concepts resulting from previous Phase II SBIR awards.
(b)[Reserved]. § 3403.8 Proposal format for phase II applications.
(a)The following items relate to Phase II applications. Further instructions or descriptions for these items as well as any additional items to be included will be identified in the annual program solicitation as necessary. See § 3403.9.
(1)*SF-424 R&R cover sheet.* Follow instructions found in § 3403.7(a)(1).
(2)*Project summary.* Follow instructions found at § 3403.7(a)(2).
(3)*Phase I results.* The proposal should contain an extensive section that lists Phase I objectives and makes detailed presentation of the Phase I results. This section should establish the degree to which Phase I objectives were met and feasibility of the proposed research project was established.
(4)*Proposal.* Since Phase II is the principal research and development effort, proposals should be more comprehensive than those submitted under Phase I. However, the outline and information contained in § 3403.7(a)(3)-(9) and § 3403.7(a)(11)-(14) should be followed, tailoring the information requested to the Phase II project.
(5)*Cost breakdown on proposal budget.* For Phase II, a detailed budget is required for each year of requested support. In addition, a summary budget is required detailing the requested support for the overall project period. A budget narrative, with supporting budget detail for each budget category must be included.
(6)*Organizational management information.* Each Phase II awardee will be asked to submit an updated statement of financial condition (such as the latest audit report, financial statements or balance sheet) and report any changes in management or principals.
(7)*Commercialization Plan.* A succinct commercialization plan must be included in each SBIR Phase II proposal moving toward commercialization. Elements of a commercialization plan may include the following:
(i)*Company information.* Focused objectives/core competencies; size; specialization area(s); products with significant sales; and history of previous Federal and non-Federal funding; regulatory experience; and subsequent commercialization.
(ii)*Customer and competition.* Clear description of key technology objectives, current competition, and advantages compared to competing products or services; description of hurdles to acceptance of the innovation.
(iii)*Market.* Milestone, target dates, analyses of market size, and estimated market share after first year sales and after five years; explanation of plan to obtain market share.
(iv)*Intellectual property.* Patent status, technology lead, trade secrets or other demonstration of a plan to achieve sufficient protection to realize the commercialization state and attain at least a temporary competitive advantage.
(v)*Financing.* Plans for securing necessary funding in Phase III.
(vi)*Assistance and mentoring.* Plans for securing needed technical or business assistance through mentoring, partnering, or through arrangements with state assistance programs, Small Business Development Centers, Federally-funded research laboratories, manufacturing extension Partnership Centers, or other assistance providers.
(8)*Data Collection.* Each Phase II applicant will be required to provide information to the Tech-Net Database System ( *http://technet.sba.gov* ) per OMB No. 3245-03356. The following are examples of the data to be entered by applicants into Tech-Net:
(i)Any business concern or subsidiary established for the commercial application of a product or service for which an SBIR award is made;
(ii)Revenue from the sale of new products or services resulting from the research conducted under each Phase II award;
(iii)Additional investment from any source, other than Phase I or Phase II awards, to further the research and development conducted under each Phase II award; and
(iv)Updates to information in the Tech-Net database for any prior Phase II award received by the small business concern.
(b)[Reserved]. Subpart D—Submission and Evaluation of Proposals § 3403.9 Submission of proposals. The SBIR program solicitation for Phase I proposals and the correspondence requesting Phase II proposals will provide the deadline date for submitting proposals, and instructions for submitting the proposal to CSREES for funding consideration. § 3403.10 Proposal review.
(a)The receipt of all proposals will be acknowledged.
(b)All Phase I and II proposals will be evaluated and judged on a competitive basis. Proposals will be initially screened to determine responsiveness. Proposals passing this initial screening will be technically evaluated by scientists to determine the most promising technical and scientific approaches. Each proposal will be judged on its own merit. USDA is under no obligation to fund any proposal or any specific number of proposals in a given topic. It also may elect to fund several or none of the proposed approaches to the same topic or subtopic.
(c)Phase I and II proposal evaluation criteria will be published in the “Method of Selection and Evaluation Criteria” section of the program solicitation.
(d)External peer reviewers may be used during the technical evaluation stage of this process. Selections will be made from among recognized specialists who are uniquely qualified by training and experience in their respective fields to render expert advice on the merit of proposals received. It is anticipated that such experts will include those located in universities, government, and nonprofit research organizations. If possible, USDA intends that peer review groups shall be balanced with minority and female representation and with an equitable age distribution.
(e)Reviewers will base their conclusions and recommendations on information contained in the Phase I or Phase II proposal. It cannot be assumed that reviewers are acquainted with any experiments referred to within a proposal, with key individuals, or with the firm itself. Therefore, the proposals should be self-contained and written with the care and thoroughness accorded papers for publication.
(f)Final decisions will be made by USDA based upon the rating assigned by reviewers in consideration of the technical and commercial potential of the application, duplication of research, any critical USDA requirements, resubmission and budget limitation. In the event that two or more proposals are of approximately equal merit, the existence of a cooperative research and development agreement (CRADA) with a USDA laboratory will be an important consideration. The existence of a follow-on funding commitment for continued development in Phase III will also be an important consideration. The value of any commitment will depend upon the degree of financial commitment made by investors, with the maximum value resulting from a signed agreement with reasonable terms for an amount at least equal to funding requested from USDA in Phase II. § 3403.11 Availability of information. Information regarding the peer review process will be made available to the extent permitted under the Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a), the SBIR Policy Directive, and implementing Departmental and other Federal regulations. Implementing Departmental regulations are found at 7 CFR part 1. Subpart E—Supplementary Information § 3403.12 Terms and conditions of grant awards. Within the limit of funds available for such purposes, the Authorized Departmental Officer shall make research project grants to those responsible, eligible applicants whose proposals are judged most meritorious in the announced program areas under the evaluation criteria and procedures set forth in the annual program solicitation. The beginning of the project period shall be no later than September 30 of the Federal fiscal year in which the project is approved for support. All funds granted under this part shall be expended solely for the purpose for which funds are granted in accordance with the approved application and budget, the regulations of this part, the terms and conditions of award, the Federal Acquisition Regulations (48 CFR part 31), and the Department's Uniform Federal Assistance Regulations (7 CFR part 3015). § 3403.13 Notice of grant awards.
(a)The grant award document may include the following:
(1)Legal name and address of performing organization or institution;
(2)Title of project;
(3)Name and institution of Project Director's chosen to direct and control approved activities;
(4)Identifying grant number assigned by the Department;
(5)Project period, specifying the amount of time the Department intends to support the project;
(6)Total amount of Departmental financial assistance approved for the project period;
(7)Legal authority(ies) under which the grant is awarded;
(8)Appropriate Catalog of Federal Domestic Assistance
(CFDA)number;
(9)Applicable award terms and conditions;
(10)Approved budget plan for categorizing allocable project funds to accomplish the stated purpose of the grant award; and
(11)Other information or provisions deemed necessary by CSREES to carry out its respective granting activities or to accomplish the purpose of a particular grant.
(b)[Reserved]. § 3403.14 Use of funds; changes.
(a)*Delegation of fiscal responsibility.* Unless the terms and conditions of the grant state otherwise, the grantee may not in whole or in part delegate or transfer to another person, institution, or organization the responsibility for use or expenditure of grant funds.
(b)*Changes in Project Plans.*
(1)The permissible changes by the grantee, Project Director, or other key project personnel in the approved project grant shall be limited to changes in methodology, techniques, or other similar aspects of the project to expedite achievement of the project's approved goals. If the grantee or the Project Director
(PD)is uncertain as to whether a change complies with this provision, the question must be referred to the Authorized Departmental Officer
(ADO)for a final determination. The signatory of the award document is the ADO, not the program contact.
(2)Changes in approved goals or objectives shall be requested by the grantee and, in consultation with the CSREES SBIR National Program Leader, approved in writing by the ADO prior to effecting such changes. In no event shall requests for such changes be approved which are outside the scope of the original approved project.
(3)Changes in approved project leadership or the replacement or reassignment of other key project personnel shall be requested by the grantee and, in consultation with the CSREES SBIR National Program Leader, approved in writing by the ADO prior to effecting such changes.
(4)Transfers of actual performance of the substantive programmatic work in whole or in part and provisions for payment of funds, whether or not Federal funds are involved, shall be requested by the grantee and, in consultation with the CSREES SBIR National Program Leader, approved in writing by the ADO prior to effecting such transfers, unless prescribed otherwise in the terms and conditions of the grant.
(c)*Changes in Project Period.* The project period may be extended by CSREES without additional financial support, for such additional period(s) as the ADO determines may be necessary to complete or fulfill the purposes of an approved project provided Federal funds remain. Any extension of time shall be conditioned upon prior request by the grantee and approval in writing by the ADO unless otherwise noted in the award terms and conditions. In such cases the extension will not normally exceed 12 months. The Phase I award will still be limited to the approved award amount, and the submission of a Phase II proposal will normally be delayed by no more than one year. The extension allows the grantee to continue expending the remaining Federal funds for the intended purpose over the extension period. In instances where no Federal funds remain, it is unnecessary to approve an extension since the purpose of the extension is to continue using Federal funds. The grantee may opt to continue the Phase I project after the grant's termination and closeout, however, the grantee would have to do so without additional Federal funds. In the latter case, no communication with USDA is necessary.
(d)*Changes in approved budget.* Changes in an approved budget must be requested by the grantee and approved in writing by the ADO prior to instituting such changes if the revision will involve transfers or expenditures of amounts requiring prior approval as set forth in the applicable Federal cost principles, Departmental regulations, or grant award.
(e)*Use of Change of Name and Novation Agreement.*
(1)Occasionally, after an award has been made the name of the Awardee may change. CSREES requires execution of a “Change of Name Agreement” in such instances. The specific circumstances of each situation will determine which kind of agreement should be executed. This decision will be determined by the ADO.
(i)A Change of Name Agreement is a legal instrument executed by the Awardee and the Government that recognizes a change of the legal name of the Awardee without disturbing the original rights and obligations of the parties. If only a change of the Awardee's name is involved and the Government's and Awardee's rights and obligations remain unaffected, the parties should execute an agreement to reflect the name change.
(ii)In order to execute the actual Change of Name Agreement with USDA, the Awardee is required to submit the following information:
(A)The document effecting the name change, authenticated by a proper official of the State having jurisdiction;
(B)The opinion of the Grantee's legal counsel stating that the change of name was properly effected under applicable law and showing the effective date;
(C)A list of all affected awards between the Grantee and CSREES.
(iii)When CSREES is notified that a change of name has taken place, the ADO will request the aforementioned information from the Grantee. Upon receipt and review of this information, parties will properly execute a Change of Name Agreement and the appropriate changes will be made to the Agency's records. The following suggested format for an agreement may be adapted for specific cases: CHANGE OF NAME AGREEMENT THE ABC CORPORATION (Grantee), a corporation duly organized and existing under the laws of ______ (insert State), and the COOPERATIVE STATE RESEARCH, EDUCATION, AND EXTENSION SERVICE, USDA (Government) enter into this Agreement as of ______ (insert date when the change of name became effective under applicable State law).
(a)THE PARTIES AGREE TO THE FOLLOWING FACTS: 1. The Government, represented by the ADO, has entered into certain awards with XYZ CORPORATION, namely ______ (insert award number or delete “namely” and insert “as shown in the attached list marked `Exhibit A' and incorporated in this Agreement by reference.”) The term “the awards,” as used in this Agreement, means the above awards and all other awards, including all modifications, made by the Government and the Grantee before the effective date of this Agreement (whether or not performance and payment have been completed and releases executed if the Government or the Grantee has any remaining rights, duties, or obligations under these awards.) 2. The XYZ CORPORATION, by an amendment to its certificate of incorporation, dated ____, 20__, has changed its corporate name to ABC CORPORATION. 3. This amendment accomplishes a change of corporate name only and all rights and obligations of the Government and of the Grantee under the awards are unaffected by this change. 4. Documentary evidence of this change of corporate name has been filed with the Government.
(b)IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT: 1. The awards covered by this Agreement are amended by substituting the name “ABC CORPORATION” for the name “XYZ CORPORATION” wherever it appears in the awards; and 2. Each party has executed this Agreement as of the day and year first above written. COOPERATIVE STATE RESEARCH, EDUCATION, AND EXTENSION SERVICE, USDA BY: TITLE: ABC CORPORATION BY: TITLE: CERTIFICATE I, ______, certify that I am the Secretary of ABC CORPORATION, that ______ , who signed this Agreement for this corporation, was then ______ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporation powers. WITNESS MY HAND, and the seal of this corporation, this ___ day of ______, 20__. BY: (CORPORATE SEAL)
(2)From time to time the legal entity performing the research under the award may have to be changed. In such instances, USDA will ensure that all parties properly execute a Novation Agreement (Successor in Interest Agreement).
(i)A Novation Agreement is a legal instrument executed by the Grantee (transferor), the successor in interest (transferee), and the Government by which, among other things, the transferor guarantees performance of the award, the transferee assumes all obligations under the award, and the Government recognizes the transfer of the award and related assets. This occurs when the third party's interest in the award arises out of the transfer of all the Grantee's assets or the entire portion of the assets involved in performing the award. Examples include, but are not limited to: the sale of these assets with a provision for assuming liabilities; the transfer of these assets incident to a merger or corporate consolidation; and the incorporation of a proprietorship or partnership, or the formation of a partnership.
(ii)When a Grantee asks the Government to recognize a successor in interest, the responsible ADO shall obtain the following from the Grantee:
(A)An authenticated copy of the instrument effecting the transfer of assets; e.g., bill of sale, certificate of merger, contract, deed, agreement, or court decree;
(B)A list of all affected awards;
(C)A certified copy of each resolution of the corporate parties' boards of directors authorizing the transfer of assets;
(D)A certified copy of the minutes of each corporate party's stockholder meeting necessary to approve the transfer of assets;
(E)The opinion of legal counsel for the transferor and transferee stating that the transfer was properly effected under applicable law and the effective date of transfer;
(F)An authenticated copy of the transferee's certificate and articles of incorporation, if a corporation was formed for the purpose of receiving the assets involved in performing the Government award;
(G)Evidence of transferee's capability to perform the award; and
(H)Balance sheets of the transferor and transferee as of the dates immediately before and after the transfer of assets, certified for accuracy by independent accountants.
(iii)The ADO will review the Agency's financial records concerning the correct cash-on-hand balances held by the transferor to ensure that they are properly accounted for in the transfer process. If recognizing a successor in interest to a Government award is consistent with the Government's interest, the ADO will prepare a Novation Agreement for execution by all three parties. The agreement will provide that:
(A)The transferee assumes all the transferor's obligations under the award(s);
(B)The transferor waives all rights under the award against the Government;
(C)The transferor guarantees performance of the award by the transferee (a satisfactory performance bond may be accepted instead of the guarantee); and
(D)Nothing in the agreement shall relieve the transferor or transferee from compliance with any Federal law.
(E)The following suggested format for an agreement may be adapted for specific cases: NOVATION AGREEMENT (SUCCESSOR IN INTEREST AGREEMENT) THE ABC CORPORATION (Transferor), a corporation duly organized and existing under the laws of ______ (insert state) with its principal office in ______ (insert city); the XYZ CORPORATION (Transferee), a corporation duly organized and existing under the laws of ______ (insert state) with its principal office in ______ (insert city); and the COOPERATIVE STATE RESEARCH, EDUCATION, AND EXTENSION SERVICE, USDA (Government) enter into this Agreement as of ______ (insert the date transfer of assets became effective under applicable State law).
(a)THE PARTIES AGREE TO THE FOLLOWING FACTS: 1. The Government, represented by the ADO has entered into certain awards with the Transferor, namely: ______ (insert award number or delete “namely” and insert “as shown in the attached list marked ‘Exhibit A’ and incorporated in this Agreement by reference.”) The term “the awards,” as used in this Agreement, means the above awards and all other awards, including all modifications, made between the Government and Transferor before the effective date of this Agreement (whether or not performance and payment have been completed and releases executed if the Government or the Transferor has any remaining rights, duties, or obligations under these awards.) Included in the term “award” are also all modifications made under the terms and conditions of these awards between the Government and the Transferor, on or after the effective date of this Agreement. 2. As of ______, 20__, the Transferor has transferred to the Transferee all the assets of the Transferor by virtue of a ______ (insert terms or legal transaction involved) between the Transferor and the Transferee. 3. The Transferee has acquired all the assets of the Transferor by virtue of the above transfer. 4. The Transferee has assumed all obligations and liabilities of the Transferor under the awards by virtue of the above transfer. 5. The Transferee is in a position to fully perform all obligations that may exist under the awards. 6. It is consistent with the Government's interest to recognize the Transferee as the successor party to the awards. 7. Evidence of the above transfer has been filed with the Government.
(b)IN CONSIDERATION OF THESE FACTS, THE PARTIES AGREE THAT BY THIS AGREEMENT: 1. The Transferor confirms the transfer to the Transferee, and waives any claims and rights against the Government that it now has or may have in the future in connection with the awards. 2. The Transferee agrees to be bound by and to perform each award in accordance with the conditions contained in the awards. The Transferee also assumes all obligations and liabilities of, and all claims against, the Transferor under the awards as if the Transferee were the original party to the awards. 3. The Transferee ratifies all previous actions taken by the Transferor with respect to the awards, with the same force and effect as if the action had been taken by the Transferee. 4. The Government recognizes the Transferee as the Transferor's successor in interest in and to the awards. The Transferee by this Agreement becomes entitled to all rights, titles, and interests of the Transferor in and to the awards as if the Transferee were the original party to the awards. Following the effective date of this Agreement, the term Grantee, as used in the awards, shall refer to the Transferee. 5. Except as expressly provided in this Agreement, nothing in it shall be construed as a waiver of any rights of the Government against the Transferor. 6. All payments and reimbursements previously made by the Government to the Transferor, and all other previous actions taken by the Government under the awards, shall be considered to have discharged those parts of the Government's obligations under the awards. All payments and reimbursements made by the Government after the date of this Agreement in the name of or to the Transferor shall have the same force and effect as if made to the Transferee, and shall constitute a complete discharge of the Government's obligations under the awards, to the extent of the amounts paid or reimbursed. 7. The Transferor and the Transferee agree that the Government is not obligated to pay or reimburse either of them for, or otherwise give effect to, any costs, taxes, or other expenses, or any related increases, directly or indirectly arising out of or resulting from the transfer or this Agreement, other than those that the Government in the absence of this transfer or Agreement would have been obligated to pay or reimburse under the terms of the awards. 8. The Transferor guarantees payment of all liabilities and the performance of all obligations that the Transferee
(i)assumes under this Agreement or
(ii)may undertake in the future should these awards be modified under their terms and conditions. The Transferor waives notice of, and consents to, any such future modifications. 9. The awards shall remain in full force and effect, except as modified by this Agreement. Each party has executed this Agreement as of the day and year first above written. COOPERATIVE STATE RESEARCH, EDUCATION AND EXTENSION SERVICE, USDA BY: TITLE: ABC CORPORATION BY: TITLE: XYZ CORPORATION BY: TITLE: CERTIFICATE I, ______, certify that I am the Secretary of ABC CORPORATION, that ______, who signed this Agreement for this corporation, was then______ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporation powers. WITNESS MY HAND, and the seal of this corporation, this ______day of ______, 20__ . BY: (CORPORATE SEAL) CERTIFICATE I, ______, certify that I am the Secretary of XYZ CORPORATION, that ______, who signed this Agreement for this corporation, was then______ of this corporation; and that this Agreement was duly signed for and on behalf of this corporation by authority of its governing body and within the scope of its corporation powers. WITNESS MY HAND, and the seal of this corporation, this ______day of ______, 20__ . BY: (CORPORATE SEAL) § 3403.15 Other Federal statues and regulations that apply. Several other Federal statutes and regulations apply to grant proposals considered for review or to research project grants awarded under this part. These include but are not limited to: 7 CFR part 1, subpart A—USDA implementation of the Freedom of Information Act. 7 CFR part 1c—USDA implementation of the Federal Policy for the Protection of Human Subjects. 7 CFR part 3—USDA implementation of the Debt Collection Act. 7 CFR part 15, subpart A—USDA implementation of Title VI of the Civil Rights Act of 1964, as amended. 7 CFR part 331 and 9 CFR part 121—USDA implementation of the Agricultural Bioterrorism Protection Act of 2002. 7 CFR part 3015—USDA Uniform Federal Assistance Regulations, implementing OMB directives (i.e., OMB Circular Nos. A-21 and A-122) and incorporating provisions of 31 U.S.C. 6301-6308 (formerly the Federal Grant and Cooperative Agreement Act of 1977, Pub. L. 95-224), as well as general policy requirements applicable to recipients of Departmental financial assistance. 7 CFR part 3017—USDA implementation of Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants). 7 CFR part 3018—USDA implementation of Restrictions on Lobbying. Imposes prohibitions and requirements for disclosure and certification related to lobbying on recipients of Federal contracts, grants, cooperative agreements, and loans. 7 CFR part 3019—USDA implementation of OMB Circular A-110, Uniform Administrative Requirements for Grants and Other Agreements With Institutions of Higher Education, Hospitals, and Other Nonprofit Organizations. 7 CFR part 3052—USDA implementation of OMB Circular No. A-133, Audits of States, Local Governments, and Non-profit Organizations. 7 CFR part 3407—CSREES procedures to implement the National Environmental Policy Act of 1969, as amended. 9 CFR parts 1, 2, 3, and 4—USDA implementation of the Act of August 24, 1966, Pub. L. 89-544, as amended (commonly known as the Laboratory Animal Welfare Act). 48 CFR part 31—Contract Cost Principles and Procedures of the Federal Acquisition Regulations. 29 U.S.C. 794 (section 504, Rehabilitation Act of 1973) and 7 CFR part 15b (USDA implementation of statute)—prohibiting discrimination based upon physical or mental handicap in Federally assisted programs. 35 U.S.C. 200 et seq.—Bayh-Dole Act, controlling allocation of rights to inventions made by employees of small business firms and domestic nonprofit organizations, including universities, in Federally assisted programs (implementing regulations are contained in 37 CFR part 401). § 3403.16 Other considerations. The Department may, with respect to any research project grant, impose additional conditions prior to or at the time of any award when, in the Department's judgment, such conditions are necessary to assure or protect advancement of the approved project, the interests of the public, or the conservation of grant funds. Done at Washington, DC, on this 22nd day of April, 2007. Colien Hefferan, Administrator, Cooperative State Research, Education, and Extension Service. [FR Doc. E7-7934 Filed 4-25-07; 8:45 am] BILLING CODE 3410-22-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 72 RIN 3150-AH98 List of Approved Spent Fuel Storage Casks: HI-STORM 100 Revision 3 AGENCY: Nuclear Regulatory Commission. ACTION: Final rule. SUMMARY: The Nuclear Regulatory Commission
(NRC)is amending its regulations by revising the Holtec International HI-STORM 100 cask system listing within the “List of approved spent fuel storage casks” to include Amendment No. 3 to Certificate of Compliance Number 1014. Amendment No. 3 revises Technical Specification
(TS)3.1.3, to eliminate cooling of the Multi-Purpose Canister
(MPC)cavity prior to reflood with water, as part of cask unloading operations; TS 3.3.1, to allow linear interpolation between minimal soluble boron concentrations, for certain fuel enrichments in the MPC-32/32F; Appendix B, Section 1 to the CoC, to make modifications to the definitions of fuel debris, damaged fuel assembly, and non-fuel hardware; and Appendix B, Section 2 to the CoC, to permit the storage of pressurized water reactor fuel assemblies with annular fuel pellets in the top and bottom 12 inches of the active fuel length. Other changes are made to incorporate minor editorial corrections. This final rule allows the holders of power reactor operating licenses to store spent fuel in this approved cask in accordance with the revised conditions, under the NRC's general license provisions. DATES: The final rule is effective on May 29, 2007. ADDRESSES: Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), Room O1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents can be viewed and downloaded electronically via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov* . Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html* . From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are any problems in accessing the documents located in ADAMS, contact the NRC PDR Reference staff at
(800)397-4209,
(301)415-4737, or by e-mail to *pdr@nrc.gov* . FOR FURTHER INFORMATION CONTACT: Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6219, e-mail: *jmm2@nrc.gov* . SUPPLEMENTARY INFORMATION: Background Section 218(a) of the Nuclear Waste Policy Act of 1982 (NWPA), as amended, requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.” To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR Part 72 entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks,” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on May 1, 2000 (65 FR 25241) that approved the HI-STORM 100 cask system design, and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as Certificate of Compliance Number (CoC No.) 1014. Discussion On November 7, 2005, and as supplemented on April 30, 2006, the certificate holder, Holtec International, submitted an application to the NRC to amend the HI-STORM 100 cask system. The application requested changes to eliminate cooling of the MPC cavity prior to reflood with water as part of cask unloading operations; changes to allow linear interpolation between minimal soluble boron concentrations for certain fuel enrichments in the MPC-32/32F; modifications to the definitions of fuel debris, damaged fuel assembly, and non-fuel hardware; changes to permit the storage of pressurized water reactor fuel assemblies with annular fuel pellets in the top and bottom 12 inches of the active fuel length; and other changes to incorporate minor editorial corrections. No other changes to the HI-STORM 100 cask system were requested in this application. The NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety and the environment will be adequately protected. The NRC published a direct final rule (71 FR 60659; October 16, 2006) and the companion proposed rule (71 FR 60672) in the **Federal Register** to amend the HI-STORM 100 cask system listing in 10 CFR 72.214 to include the changes requested by Holtec International as Amendment No. 3 to CoC No. 1014. The comment period ended on November 15, 2006. One comment letter was received on the proposed rule. The comments contained within the letter were considered to be significant and adverse and warranted withdrawal of the direct final rule. A notice of withdrawal was published in the **Federal Register** on December 27, 2006 (71 FR 77586). Additionally, the NRC staff is amending the TS to remove non-fuel hardware from the definition of fuel debris, as discussed in the response to Comment C.1 in the preamble. The safety evaluation report
(SER)has been modified to describe the NRC's staff's determination. The NRC finds that the Holtec International HI-STORM cask system, as designed and when fabricated and used in accordance with the conditions specified in its CoC, meets the requirements of 10 CFR Part 72. Thus, use of the Holtec International HI-STORM cask system, as approved by the NRC, will provide adequate protection of public health and safety and the environment. With this final rule, the NRC is approving the use of the Holtec International HI-STORM 100 cask system under the general license in 10 CFR Part 72, Subpart K, by holders of power reactor operating licenses under 10 CFR Part 50. Simultaneously, the NRC is issuing a final SER and CoC that will be effective on May 29, 2007. Single copies of the CoC and SER are available for public inspection and/or copying for a fee at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Copies of the public comments are available for review in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Discussion of Amendments by Section Section 72.214 List Of Approved Spent Fuel Storage Casks Certificate No. 1014 is revised by adding the effective date of Amendment Number 3. Summary of Public Comments on the Proposed Rule The NRC received one comment letter on the proposed rule from Public Citizen and the Nuclear Information and Resource Service. Copies of the public comment letter are available for review in the NRC's Public Document Room, O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Comments on the Holtec HI-STORM 100 Cask System Revision 3 The commenters provided specific comments on Holtec's TS. To the extent possible, the comments on a particular subject are grouped together. The listing of the Holtec HI-STORM 100 cask system within 10 CFR 72.214, “List of approved spent fuel storage casks,” has not been changed as a result of the public comments. A review of the comments and the NRC staff's responses follow: A. Holtec's Proposal To Eliminate Cooling of the MPC Cavity Prior to Reflood With Water as Part of Cask Unloading Operations Comment A.1: The commenters stated that if adequate cooling is not done prior to reflooding with water during cask unloading, the casks could experience brittle fracturing caused by a sudden temperature change from hot to cold. The fracturing could be in addition to the brittle fracturing already introduced into the casks by forced cooling during their original manufacture. The commenters stated that forced cooling violates NRC regulations and applicable ASME and ANSI codes. Response: The Holtec spent fuel canisters are fabricated from austenitic stainless steel. This is an extremely tough material with excellent ductility at all temperatures. Also, this material does not have a ductile-to-brittle transformation temperature that is typical of some other types of steel. Hence, this material and the casks which are fabricated from it are not susceptible to any kind of brittle fracture as suggested by the comment. For the design environmental temperatures, the range varies from -40 degrees F to 775 degrees F for the MPC, and this range of temperatures formed the design bases for the MPC of the cask system. The structural analyses performed for the cask system considered this range of temperatures. There are no heating or cooling rate restrictions imposed by any regulatory or code requirement for this material or for this application. Comment A.2: The commenters stated that during welding, the strength of the material decreases dramatically with the increased temperature of the material. After welding, Federal regulations require cooling at 100 degrees F without forced cooling. They further stated that if the material does not cool properly, voids inside the heated zones caused by welding could remain and cause cracking in the future, and that these cracks may not be detected by testing that is performed immediately after cooling. The commenters believed that the potential delayed cracking is the reason why Federal regulations require specific tests to assess whether the material's strength, which is reduced by welding, is returned to its original design strength. The commenters believed that such cracking is also why forced cooling, such as immersion in water baths or forced air fan cooling, is not allowed by NRC regulations and applicable ASME and ANSI codes. Response: As stated in the response to Comment A.1, above, there is no regulatory or code requirement or restriction for heating or cooling rates for austenitic stainless steel, nor is there any need to impose such requirements. Further, cooling rates as alluded to by the commenters only apply during post-weld heat treatment (PWHT). PWHT is not required by the ASME code for this material, nor is it desirable because of the deleterious effect the PWHT temperatures would have upon the fuel payload. The part of the cask which is welded while the cask is in the loading pool is some distance from the surface of the loading pool during welding of the closure lid. Any potential “forced cooling” effect by the pool water would be negligible compared to the normally occurring cooling effect which arises from the thermal mass of the structural lid which is being welded. Likewise, the inert gas purge which is employed during welding is just sufficient to displace any hydrogen which may evolve from the fuel payload. It also provides a backing gas to protect the root pass of the weld from oxidation. It is insufficient to provide any significant cooling effect. To provide any significant cooling would require a gas flow such that welding would not be possible. No credible delayed cracking mechanism exists for this material, unlike the situation for other types of steel. Given this, the excellent ductility of the material, and the lack of any kind of ductile-to-brittle transformation for the material, no suggested “brittle fracturing” mechanism is credible. Comment A.3: The commenters stated that nine quality assurance
(QA)violations affecting Holtec casks at the U.S. Tool and Die factory in Pittsburgh, PA, were identified by a former senior lead QA inspector for Commonwealth Edison/Exelon and his QA team in June and July 2000. The major QA violations included regulatory code violations, weld flaws, design flaws, and manufacturing flaws that call into question the structural integrity of the Holtec shipping containers, especially under transport accident conditions. The commenters stated that an NRC Region III dry cask inspector shared the concerns about the QA violations, and that despite this, NRC failed to address these issues. Response: Region III forwarded the allegations raised by the former senior lead QA inspector for Commonwealth Edison/Exelon and his QA team in June and July 2000 to the former Spent Fuel Project Office
(SFPO)at NRC Headquarters in memoranda dated February 20, 2002, and April 19, 2002. SFPO staff reviewed his allegations and concluded that there were no safety-significant problems with Holtec's QA program, and more importantly, that there were no identified defects in any casks previously manufactured. When the former senior lead QA inspector for Commonwealth Edison/Exelon asserted that NRC did not adequately address his issues, the NRC 's independent Office of the Inspector General
(OIG)conducted an investigation. The OIG report, dated July 27, 2004 (available on the NRC website: *http://www.nrc.gov/reading-rm.html* ), concluded that:
(1)The NRC staff did not fail to provide adequate oversight of Holtec and U.S. Tool and Die;
(2)the NRC appropriately inspected those companies, found deficiencies, and verified that corrective actions were taken;
(3)NRC's handling of the allegations from the former senior lead QA inspector for Commonwealth Edison/Exelon was appropriate; and
(4)the NRC conducted a timely inspection and had a valid basis to determine that no safety significant problems existed. B. Holtec's Proposal To Allow Linear Interpolation Between Minimal Soluble Boron Concentrations for Certain Fuel Enrichments in the MPC-32/32F Comment: The commenters stated that boron concentrations must be maintained very carefully given the risk of inadvertent criticality due to the fissile materials (such as U-235 and Pu-239) still present in the irradiated fuel. They stated that the NRC should not allow rollbacks on criticality safety regulations. Response: During the review of the proposed amendment the staff carefully considered the additional risk of an inadvertent criticality given a corresponding reduction in the soluble boron levels based on enrichment. The original requirement to load any fuel over 4.1 weight percent uranium-235 as if it were 5.0 weight percent uranium-235 fuel was extremely conservative. Based on the study performed in the license amendment request, staff finds that linear interpolation of the soluble boron levels is conservative in this instance and continues to provide an ample margin of safety against inadvertent criticality. C. Holtec's Proposal To Modify the Definitions of Fuel Debris, Damaged Fuel Assembly, and Nonfuel Hardware Comment C.1: The commenters stated that fuel debris and damaged fuel assemblies are among the most risky high-level radioactive waste to handle, store, transport, and dispose of, because the integrity of the fuel cladding has been ruined. They stated that radioactive particles and gases and entire nuclear fuel pellets are able to escape the fuel rods, worsening contamination of the Holtec inner canister and cask systems. They believed this could increase radiation doses for nuclear workers and the public as well as increase criticality risks in certain accident scenarios such as underwater submersions. Thus, the commenters believe that the definitions of these terms should not be modified. Response: In its review of the final rule that added the Holtec HI-STORM 100 cask system to the listing in 10 CFR 72.214 (65 FR 25241; May 1, 2000), the staff found that fuel debris, as defined in that amendment, can be stored safely in the HI-STORM 100 cask system. The basis for the staff's finding is explained in the SER for that final rule. The current amendment does propose, however, to expand the definition of fuel debris to include additional materials. In response to the comment, staff reevaluated this proposal and determined that expanding the definition of fuel debris to include containers or structures that are supporting intact or damaged fuel assembly parts is acceptable, as stated in the SER. However, staff determined that expanding the definition of fuel debris to include non-fuel hardware in order to permit storage of non-fuel hardware separately from (i.e., not within) a fuel assembly was not acceptable, and modified the Technical Specifications to remove non-fuel hardware from the definition of fuel debris. The SER has been modified to describe the staff's determination. Comment C.2: The commenters stated that the nonfuel hardware is a hazardous material due to the radioactive contamination and radioactive activation it has experienced and presents a danger to workers and the public. Response: In its review of Amendment 1 to the HI-STORM 100 cask system (67 FR 46369; July 15, 2002), the staff found that non-fuel hardware, as defined in that amendment, can be stored safely in the HI-STORM 100 cask system. The basis for the staff's finding is explained in the SER for that previous amendment. The current amendment proposes to add neutron source assemblies
(NSA)to the definition of allowable non-fuel hardware and limits the number and the locations of NSAs to one per MPC stored in one of the four center-most fuel basket positions. Also, the staff found in its review that the shielding source term for an NSA is bounded by the shielding source terms of the cask contents approved in the previous amendment. Thus, the staff finds the cask system can safely store non-fuel hardware as defined in the current amendment. D. Holtec's Proposal To Permit the Storage of Pressurized Water Reactor
(PWR)Fuel Assemblies With Annular Fuel Pellets in the Top and Bottom 12 Inches of the Active Fuel Length Comment: The commenters expressed concern that permitting the storage of PWR fuel assemblies with annular fuel pellets in the top and bottom 12 inches of the active fuel length would risk increasing doses to nuclear workers and the public during cask loading, handling, storage, transport, and disposal operations. They stated that this storage should not be allowed by NRC. Response: The current amendment proposes to modify the allowable PWR contents to included PWR assemblies containing annular fuel pellets in the top and bottom 12 inches of the active fuel length. NRC staff considered the difference between annular and solid fuel pellets in this part of the fuel from two aspects—source term and shielding—and concluded that the effect would not be noticeable. The annular pellet would produce a smaller source term than the solid pellet, since there is less fuel in the annular pellet, though the difference would be small, considering the lower burnup that the ends of the active fuel experience and the fact that the majority of fissions occur in the outer portions of a fuel pellet. Also, while solid pellets may be more effective than annular pellets as shielding, the amount of shielding provided by the MPC lid and the cask lid would make this effect small. Thus, the staff finds that the cask system can safely store PWR assemblies with annular pellets in the top and bottom 12 inches of the active fuel length. Summary of Final Revisions In Appendix B to the CoC, Section 1.0, Definitions, the TS has been revised in response to Comment C.1. to remove non-fuel hardware from the definition of fuel debris. The SER has also been revised to document this change. Voluntary Consensus Standards The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is revising the HI-STORM 100 cask system design listed in 10 CFR 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that contains generally applicable requirements. Agreement State Compatibility Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the **Federal Register** on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954 (AEA), as amended, or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State. Finding of No Significant Environmental Impact: Availability Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. This final rule amends the CoC for the HI-STORM 100 cask system within the list of approved spent fuel storage casks that power-reactor licensees can use to store spent fuel at reactor sites under a general license. Amendment No. 3 modifies the present cask system design by revising TS 3.1.3 to eliminate cooling of the MPC cavity prior to reflood with water as part of cask unloading operations; TS 3.3.1 to allow linear interpolation between minimal soluble boron concentrations for certain fuel enrichments in the MPC-32/32F; Appendix B, Section 1 to the CoC, to make modifications to the definitions of fuel debris, damaged fuel assembly, and non-fuel hardware; and Appendix B, Section 2 to the CoC, to permit the storage of pressurized water reactor fuel assemblies with annular fuel pellets in the top and bottom 12 inches of the active fuel length. Other changes are made to incorporate minor editorial corrections. The environmental assessment
(EA)and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the EA and finding of no significant impact are available from Jayne M. McCausland, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6219, e-mail *jmm2@nrc.gov* . Paperwork Reduction Act Statement This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0132. Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number. Regulatory Analysis On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR Part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power-reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On May 1, 2000 (65 FR 25241), the NRC issued an amendment to Part 72 that approved the HI-STORM 100 cask system design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214. On November 7, 2005, and as supplemented on April 30, 2006, the certificate holder, Holtec International, submitted an application to the NRC to amend the HI-STORM 100 cask system. The amendment revises TS 3.1.3 to eliminate cooling of the MPC cavity prior to reflood with water as part of cask unloading operations; TS 3.3.1 to allow linear interpolation between minimal soluble boron concentrations for certain fuel enrichments in the MPC-32/32F; Appendix B, Section 1 to the CoC, to make modifications to the definitions of fuel debris, damaged fuel assembly, and non-fuel hardware; and Appendix B, Section 2 to the CoC, to permit the storage of pressurized water reactor fuel assemblies with annular fuel pellets in the top and bottom 12 inches of the active fuel length. Other changes are made to incorporate minor editorial corrections. The alternative to this action is to withhold approval of this amended cask system design. Withholding approval, in the absence of any safety reason for doing so, would not comply with the requirements of sections 218(a) and 133 of the Nuclear Waste Policy Act. Approval of the final rule is consistent with previous NRC actions. Further, the final rule will have no adverse effect on public health and safety. This final rule has no significant identifiable impact or benefit on other Government agencies. Based on this discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended. Regulatory Flexibility Certification Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and Holtec International. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121. Backfit Analysis The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this final rule because this amendment does not involve any provisions that would impose backfits as defined. Therefore, a backfit analysis is not required. Congressional Review Act Under the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget. List of Subjects in 10 CFR Part 72 Administrative practice and procedure, Criminal penalties, Manpower training programs, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR Part 72. PART 72—LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-RELATED GREATER THAN CLASS C WASTE 1. The authority citation for Part 72 continues to read as follows: Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-10 (42 U.S.C. 2014, 2021, 2021b, 2111). Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198). 2. In § 72.214, Certificate of Compliance 1014 is revised to read as follows: § 72.214 List of approved spent fuel storage casks. Certificate Number: 1014. Initial Certificate Effective Date: June 1, 2000. Amendment Number 1 Effective Date: July 15, 2002. Amendment Number 2 Effective Date: June 7, 2005. Amendment Number 3 Effective Date: May 29, 2007. SAR Submitted by: Holtec International. SAR Title: Final Safety Analysis Report for the HI-STORM 100 Cask System. Docket Number: 72-1014. Certificate Expiration Date: June 1, 2020. Model Number: HI-STORM 100. Dated at Rockville, Maryland, this 13th day of April, 2007. For the Nuclear Regulatory Commission. Luis A. Reyes, Executive Director for Operations. [FR Doc. E7-8033 Filed 4-25-07; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27980; Directorate Identifier 2007-NM-066-AD; Amendment 39-15033; AD 2007-09-03] RIN 2120-AA64 Airworthiness Directives; Learjet Model 45 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule; request for comments. SUMMARY: The FAA is adopting a new airworthiness directive
(AD)for certain Learjet Model 45 airplanes. This AD requires deactivating the auxiliary power unit (APU), capping/plugging the fuel lines to the APU, and removing the APU fuel shutoff valve. This AD results from reports of fuel leaking from the APU fuel shutoff valve into a flammable fluid fire protection area that is also interconnected with the main landing gear's wheel well bay. We are issuing this AD to prevent fuel leaking from the fuel shutoff valve of the APU, which could result in an uncontrollable fire and adversely affect the airplane's continued safe flight and landing. DATES: This AD becomes effective May 11, 2007. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of May 11, 2007. We must receive comments on this AD by June 25, 2007. ADDRESSES: Use one of the following addresses to submit comments on this AD. • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • Fax:
(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: James P. Galstad, Aerospace Engineer, Mechanical Systems and Propulsion Branch, ACE-116W, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita, Kansas 67209; telephone
(316)946-4135; fax
(316)946-4107. SUPPLEMENTARY INFORMATION: Discussion We have received a report indicating that there have been 16 occurrences of fuel leaking from the fuel shutoff valve of the auxiliary power unit (APU), on Model 45 airplanes in the field and on the production line. Epoxy was used in the valve to seal or adhere certain components of the valve. The epoxy was found to have been improperly prepared and/or applied, which allowed fuel to leak out through and/or around the electrical switch and connector in the bottom of the valve. Some valves were also found to have internal leaks due to fuel-soaked silicone sealant that had expanded into the electrical switch's location. The APU's fuel shutoff valve leaks fuel into a flammable fluid fire protection area that is also interconnected with the main landing gear's wheel well bay. This condition, if not corrected, could result in an uncontrollable fire, which could adversely affect the airplane's continued safe flight and landing. Relevant Service Information We have reviewed Bombardier Alert Service Bulletin A45-49-11, dated March 26, 2007. The service bulletin describes procedures for deactivating the APU, capping/plugging the fuel lines to the APU, and removing the APU fuel shutoff valve. Deactivating the APU also involves attaching inoperative APU placards in various locations. The service bulletin also describes procedures for sending the removed APU shutoff valves and compliance information to Learjet. FAA's Determination and Requirements of This AD The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. For this reason, we are issuing this AD to prevent fuel leaking from the fuel shutoff valve of the APU, which could result in an uncontrolled fire and adversely affect the airplane's continued safe flight and landing. This AD requires accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and the Service Bulletin.” Differences Between the AD and the Service Bulletin Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for returning the APU's fuel shutoff valve to Learjet, this AD does not require that action. Operators should also note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for submitting a compliance response form for recording compliance with the service bulletin, this AD does not require that action. Interim Action This AD is considered to be interim action. The manufacturer has advised us that it currently is developing a modification that will address the unsafe condition addressed by this AD. Once this modification is approved, we may consider additional rulemaking. FAA's Determination of the Effective Date Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists to make this AD effective in less than 30 days. Comments Invited This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any relevant written data, views, or arguments regarding this AD. Send your comments to an address listed in the ADDRESSES section. Include “Docket No. FAA-2007-27980; Directorate Identifier 2007-NM-066-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the AD that might suggest a need to modify it. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **2007-09-03 LEARJET:** Amendment 39-15033. Docket No. FAA-2007-27980; Directorate Identifier 2007-NM-066-AD. Effective Date
(a)This AD becomes effective May 11, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Learjet Model 45 airplanes, certificated in any category; serial numbers 45-005 through 45-321, equipped with an auxiliary power unit (APU). Unsafe Condition
(d)This AD results from reports of fuel leaking from the APU fuel shutoff valve into a flammable fluid fire protection area that is also interconnected with the main landing gear's wheel well bay. We are issuing this AD to prevent fuel leaking from the fuel shutoff valve of the APU, which could result in an uncontrollable fire and adversely affect the airplane's continued safe flight and landing. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Deactivation of the APU and Removal of the APU Fuel Shutoff Valve
(f)Within 50 flight hours after the effective date of this AD, deactivate the APU, cap/plug the fuel lines to the APU, and remove the APU fuel shutoff valve, in accordance with the Accomplishment Instructions of Bombardier Alert Service Bulletin A45-49-11, dated March 26, 2007. Differences From the Service Information
(g)Although Bombardier Alert Service Bulletin A45-49-11, dated March 26, 2007, specifies to submit certain information to the manufacturer and send the APU fuel shutoff valve to Learjet, this AD does not include those requirements. Special Flight Permit
(h)Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished, provided the APU is not used. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Material Incorporated by Reference
(j)You must use Bombardier Alert Service Bulletin A45-49-11, dated March 26, 2007, to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of this document in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Learjet, Inc., One Learjet Way, Wichita, Kansas 67209-2942, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Issued in Renton, Washington, on April 16, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7640 Filed 4-25-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26690 Directorate Identifier 2006-CE-088-AD; Amendment 39-15032; AD 2007-09-02] RIN 2120-AA64 Airworthiness Directives; REIMS AVIATION S.A. Model F406 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: We are adopting a new airworthiness directive
(AD)for the products listed above. This AD results from mandatory continuing airworthiness information
(MCAI)issued by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: During maintenance, cracks have been discovered about the left and right rib at the connection of the center wing and the fuselage localized at the fuselage station FS160.80. Cracks spread in the rib could result in structural failure. We are issuing this AD to require actions to correct the unsafe condition on these products. DATES: This AD becomes effective May 31, 2007. On May 31, 2007 the Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, Room PL-401, Washington, DC. FOR FURTHER INFORMATION CONTACT: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4144; fax:
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. The streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Discussion We issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the **Federal Register** on February 23, 2007 (72 FR 8134). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states that: During maintenance, cracks have been discovered about the left and right rib at the connection of the center wing and the fuselage localized at the fuselage station FS160.80. Cracks spread in the rib could result in structural failure. Comments We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public. Conclusion We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD. Costs of Compliance We estimate that this AD will affect 7 products of U.S. registry. We also estimate that it will take about 70 work-hours per product to comply with basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $4,750 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $72,450 or $10,350 per product. In addition, we estimate that any necessary follow-on actions would take about 10 work-hours and require parts costing $1,000, for a cost of $1,800 per product. We have no way of determining the number of products that may need these actions. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket. Examining the AD Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone
(800)647-5227) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **2007-09-02 REIMS AVIATION S.A.:** Amendment 39-15032; Docket No. FAA-2006-26690; Directorate Identifier 2006-CE-088-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective May 31, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to REIMS AVIATION S.A. Model F406 airplanes, serial numbers F406-0001 through F406-0089 and serial number F406-0091, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 57: Wings. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: During maintenance, cracks have been discovered about the left and right rib at the connection of the center wing and the fuselage localized at the fuselage station FS160.80. Cracks spread in the rib could result in structural failure. Actions and Compliance
(f)Unless already done, do the following actions:
(1)Within the next 600 hours time-in-service or the next 12 months after the effective date of this AD, whichever occurs first, and thereafter repetitively during a period not to exceed 12 months, inspect the ribs in accordance with REIMS AVIATION INDUSTRIES Service Bulletin No. F406-54 REV 1, dated November 9, 2004.
(2)If cracks are found during any inspection required by this AD, before further flight, do the actions prescribed in chapters 1D and 2E of the REIMS AVIATION INDUSTRIES Service Bulletin No. F406-54 REV 1, dated November 9, 2004. Note 1: We have established the repetitive inspection times of this AD so that they may coincide with annual inspections. FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, ATTN: Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4144; fax:
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Direction générale de l'aviation civile (DGAC), which is the aviation authority for France, AD No. F-2004-114 R1, dated January 5, 2005; and REIMS AVIATION INDUSTRIES Service Bulletin No. F406-54 REV 1, dated November 9, 2004, for related information. Material Incorporated by Reference You must use REIMS AVIATION INDUSTRIES Service Bulletin No. F406-54 REV 1, dated November 9, 2004, to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact REIMS AVIATION INDUSTRIES, 51360 PRUNAY-FRANCE.
(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Room 506, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html* . Issued in Kansas City, Missouri, on April 13, 2007. Charles L. Smalley, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-7641 Filed 4-25-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 101 and 141 [Docket No. RM07-2-000; Order No. 694] Accounting and Reporting Requirements for Nonoperating Public Utilities and Licensees Issued April 19, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule. SUMMARY: In this Final Rule, the Federal Energy Regulatory Commission (Commission) is amending its accounting and reporting regulations to require public utilities and licensees to continue to follow the Commission's Uniform System of Accounts (USofA) and to file annual and quarterly financial reports when they have ceased making jurisdictional sales of electric energy, or providing jurisdictional transmission service, but continue collecting amounts pursuant to a Commission-accepted tariff or rate schedule, or a Commission order. The Final Rule will close a gap in the Commission's regulations which apply now only to operating public utilities and licensees, and which provide information necessary to the Commission's regulatory responsibilities. DATES: *Effective Date:* The rule will become effective May 29, 2007. FOR FURTHER INFORMATION CONTACT: Jane Stelck, Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6648, *jane.stelck@ferc.gov.* SUPPLEMENTARY INFORMATION: *Before Commissioners:* Joseph T. Kelliher, Chairman; Suedeen G. Kelly; Marc Spitzer; Philip D. Moeller; and Jon Wellinghoff. I. Introduction 1. On December 21, 2006, the Commission issued a Notice of Proposed Rulemaking
(NOPR)that proposed to amend its accounting and reporting regulations, in Parts 101 and 141, to require public utilities and licensees to continue to follow the Commission's Uniform System of Accounts (USofA) and to file annual and quarterly financial reports when they have ceased making jurisdictional sales of electric energy, or providing jurisdictional transmission service, but continue collecting amounts pursuant to a Commission-accepted tariff or rate schedule, or a Commission order. 1 The NOPR also sought comments regarding the applicability of Part 125, Preservation of Records of Public Utilities and Licensees, to public utilities or licensees which have ceased operations, but continue to collect amounts pursuant to a Commission-approved tariff or rate schedule, or a Commission order. 1 *Accounting and Reporting Requirements For Nonoperating Public Utilities and Licensees* , 72 FR 922 (Jan. 9, 2007), FERC Stats. & Regs. ¶ 32,610 (2006). 2. The Final Rule adopts the proposed revisions to Parts 101 and 141 contained in the NOPR. The Final Rule requires that companies who cease operating but continue collecting amounts pursuant to a Commission-accepted tariff or rate schedule, or a Commission order, continue to comply with Parts 101 and 141. The Final Rule finds that there is no need to adopt changes to Part 125 of the Commission's regulations. II. Discussion 3. Parts 101 and 141 of the Commission's regulations require public utilities and licensees whose sales or transmission service exceed certain prescribed levels to follow the USofA and to file annual and quarterly financial reports, Forms No. 1, 1-F, and 3-Q, respectively. Under the Commission's existing regulations, public utilities and licensees are relieved of these accounting and reporting requirements when they cease making sales for resale or providing transmission. This is true even when these nonoperating entities continue to collect amounts pursuant to a Commission-approved tariff or rate schedule, or a Commission order. Therefore, the Commission cannot oversee, monitor, or audit costs that provide information necessary to the Commission's oversight responsibilities and the protection of the public interest under the existing regulations. 4. As discussed in the NOPR, 2 in recent years, this accounting and reporting gap has been highlighted when, for example, nuclear generating plants shut down but continue to collect decommissioning and other administrative costs under a Commission-accepted tariff or rate schedule, or a Commission order. 3 The amounts collected by these companies are material and may span a decade or longer. 4 The occurrence of these and the potential occurrence of similar circumstances impede the Commission's ability to collect information, monitor, or audit the underlying costs when accounting and reporting requirements no longer apply. The Commission has a continuing need to have access to books and records and to receive periodic financial reports for any jurisdictional entity, even when that entity has ceased operations but continues to collect amounts pursuant to a Commission-accepted tariff or rate schedule, or a Commission order. Without Commission oversight, customers and ratepayers cannot be assured that these billings are just and reasonable. For these reasons, we find that, nonoperating entities' compliance with Part 101 and reporting information in these financial reports is necessary to enable the Commission to fulfill its statutory responsibilities under the Federal Power Act (FPA). 5 In addition, the information, because it is publicly available, will allow customers, state commissions, and others to evaluate the amounts charged. 2 NOPR at P 5. 3 *See, e.g., Connecticut Yankee Atomic Power Company,* 92 FERC ¶ 61,005
(2000)(approving decommissioning cost collections.) 4 For example, Connecticut Yankee collected $16.7 million per year in decommissioning funds from 2000 to 2004 and $93 million in 2005 and 2006. *Id.* 5 16 U.S.C. 824 *et seq.* III. The Final Rule 6. The Final Rule adopts the proposed changes outlined in the NOPR. A new category, designated nonoperating, is added to the General Instructions of Part 101, to the classification of utilities subject to compliance with the USofA. Sections 141.1, 141.2, and 141.400 of the Commission's regulations are revised to require nonoperating public utilities and licensees whose operations have ceased but who continue to collect amounts pursuant to a Commission tariff or rate schedule, or a Commission order, to continue to comply with the Commission's reporting requirements. 7. The NOPR also sought comments on the continued applicability of Part 125 of the Commission's regulations, which sets forth record retention requirements for public utilities and licensees. The NOPR stated that a reasonable interpretation of Part 125 is that the requirements of that part continue to apply to nonoperating public utilities and licensees who continue to collect amounts pursuant to a Commission-approved tariff or rate schedule, or Commission order. 6 The Final Rule similarly adopts this reading of Part 125, and it is unnecessary to makes changes to Part 125. 6 *See* NOPR at P 7. IV. Comments 8. Comments on the NOPR were filed jointly by Yankee Atomic Electric Company, Connecticut Yankee Atomic Power Company, and Maine Yankee Atomic Power Company (jointly, Yankee Companies), and by the Connecticut Department of Public Utility Control, The Maine Public Utilities Commission and The Maine Office of Public Advocate (jointly, New England Parties). Neither the Yankee Companies nor the New England Parties object to the proposed regulations, but both parties express concern regarding additional costs that might be incurred and the effect on consumers who will ultimately pay the costs. The New England Parties state that the NOPR “may provide needed insight into the expenditures of non-operating plants” but state that it might increase the companies' operating costs. The New England Parties request that the Commission exempt the Yankee Companies from the instant accounting requirements. 9. The Yankee Companies also state that they concur with the Commission's interpretation of Part 125 and its conclusion that no revisions to that part are necessary. The Yankee Companies state that they will continue to abide by Part 125 as they have done since ceasing operations. 10. Where a company ceases operations but continues to collect costs pursuant to a Commission-approved tariff or rate schedule, or a Commission order, it is only proper that the affected company be obligated to continue maintaining their accounts pursuant to the USofA, and continue filing quarterly and annual financial reports with the Commission. 7 At this time, however, any costs associated with meeting such requirements are unknown; thus, only a potential impact on rates exists. 8 Moreover, any company affected by this Final Rule would, at the time it ceases operations, already be in compliance with the USofA and the Commission's financial reporting requirements. Thus, any burden imposed by this Final Rule is likely to be comparatively minimal. 9 Finally, given the Commission's regulatory responsibilities, the benefits of closing this regulatory gap far outweigh the comparatively minimal costs that are likely to arise from compliance. 7 Yankee Companies have agreed to file FERC Form No. 1 as part of a settlement recently approved by the Commission. *See Connecticut Yankee Atomic Power Co.* , 117 FERC ¶ 61,192 (2006). 8 *See Virginia State Corp. Comm'n* v. *FERC* , 468 F.3d 845, 847 (D.C. Cir. 2006) (“Petitioners’ claim of a rate effect is belied by the proposition that ‘[a]ccounting practices are not controlling for rate making purposes,' ” (citing *Consolidated Gas Supply Corp.* , 14 FERC ¶ 61,029 at 61,054
(1981)and *Williston Basin Interstate Pipeline Co.* , 56 FERC ¶ 61,104 at 61,370-71 (1991)). 9 Even the Yankee Companies, who would be most affected because they have not been operating for some time, offer an estimated cost of only “at least $30,000 annually” for each Yankee company. Comparatively speaking, this is not a large sum. In fact, moreover, they also state that what they currently report to the Commission does “not differ substantially” from what they will now be required to submit to the Commission. *See* Yankee Companies' comments at 2-3. V. Information Collection Statement 11. The collections of information referenced in this Final Rule have been submitted to the Office of Management and Budget
(OMB)for review under section 3507(d) of the Paperwork Reduction Act of 1995. 10 OMB's regulations require OMB to approve certain information collection requirements imposed by agency rule. 11 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this Final Rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number or the Commission had provided a justification as to why the control number should be displayed. 10 * See* 44 U.S.C. 3507(d). 11 5 CFR 1320.11. 12. Persons wishing to comment on the collection of information may do so by contacting the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503, Attention: Desk Officer for the Federal Energy Regulatory Commission; phone: 202-395-4650, fax: 202-395-7285. *Title:* FERC Form No. 1, “Annual report of Major electric utilities, licensees, and others”; FERC Form No. 1-F, “Annual report for Nonmajor public utilities and licensees”; FERC Form No. 3-Q, “Quarterly financial report of electric utilities, licensees, and natural gas companies”; and FERC-555, “Preservation of Records of Public Utilities and Licensees, Natural Gas Companies, and Oil Pipeline Companies”. *Action:* Proposed information collections. *OMB Control Nos.* 1902-0021; 1902-0029; 1902-0205; and 1902-0098. *Respondents:* Business or others for profit. *Frequency of responses:* Annually and quarterly. *Necessity of the Information:* This Final Rule amends the Commission's accounting and reporting regulations, in Parts 101 and 141, to require public utilities and licensees to continue to follow the Commission's USofA and to file annual and quarterly financial reports when they have ceased making jurisdictional sales of electric energy, or providing jurisdictional transmission service, but continue to collect amounts pursuant to a Commission-accepted tariff or rate schedule, or Commission order. The Final Rule closes a gap in the Commission's regulations which apply now only to operating public utilities and licensees. Without the changes made in the Final Rule, the Commission cannot oversee, monitor, or audit costs that provide information necessary to the Commission's oversight responsibilities and the protection of the public interest. VI. Environmental Analysis 13. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 12 No environmental consideration is necessary for the promulgation of a rule that addresses information gathering, analysis, and dissemination, 13 and, also, that addresses accounting. 14 This Final Rule addresses information gathering, analysis, and accounting requirements. Therefore, the Final Rule falls within categorical exemptions provided in the Commission's regulations. Consequently, neither an Environmental Impact Statement nor an Environmental Assessment is required. 12 *See Regulations Implementing the National Environmental Policy Act* , Order No. 486, 52 FR 47897 (Dec. 17, 1987) FERC Stats. & Regs. ¶ 30,783 (1987). 13 *See* 18 CFR 380.4(a)(5). 14 *See* 18 CFR 380.4(c)(16). VII. Regulatory Flexibility Act 14. The Regulatory Flexibility Act of 1980
(RFA)15 generally requires a description and analysis of the effect that a Final Rule will have on small entities or a certification that a rule will not have a significant economic impact on a substantial number of small entities. 15 *See* 5 U.S.C. 601-12. 15. The Commission concludes that this Final Rule will not have such an impact on a substantial number of small entities. Because most public utilities and licensees do not fall within the definition of “small entity,” the Commission certifies that this Final Rule will not have a significant impact on a substantial number of small entities. VIII. Document Availability 16. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( *http://www.ferc.gov* ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 17. From the Commission's Home Page on the Internet, this document is available in the Commission's document management system, e-Library. The full text of this document is available on e-Library in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in e-Library, type the docket number excluding the last three digits of this document in the docket number field. 18. User assistance is available for e-Library and the Commission's Web site during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at *FERCOn-lineSupport@ferc.gov* ) or the Public Reference Room at 202-502-8371, TTY 202-502-8659 (e-mail at *public.reference@ferc.gov* ). IX. Effective Date and Congressional Notification 19. This Final Rule will take effect May 29, 2007. 20. The Commission has determined with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB Final Rule is not a major rule within the meaning of section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 16 The Commission will submit the Final Rule to both houses of Congress and the Government Accountability Office. 16 5 U.S.C. 801. List of Subjects 18 CFR Part 101 Electric power, Electric utilities, Reporting and recordkeeping requirements, Uniform System of Accounts. 18 CFR Part 141 Electric power, Reporting and recordkeeping requirements. By the Commission. Philis J. Posey, Deputy Secretary. In consideration of the foregoing, the Commission amends parts 101 and 141 of Title 18 of the Code of Federal Regulations, as set forth below: PART 101—UNIFORM SYSTEM OF ACCOUNTS PRESCRIBED FOR PUBLIC UTILITIES AND LICENSEES SUBJECT TO THE PROVISIONS OF THE FEDERAL POWER ACT 1. The authority citation for part 101 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352, 7651-7615o. 2. Amend part 101, General Instructions, 1. *Classification of Utilities,* to add a new paragraph A.(3) and to revise the first sentence in paragraph B to read as follows: General Instructions Classification of Utilities A. * * *
(3)*Nonoperating.* Utilities and licensees formerly designated as Major or Nonmajor that have ceased operation but continue to collect amounts pursuant to a Commission-accepted tariff or rate schedule, or a Commission order. B. This system applies to Major, Nonmajor, and Nonoperating utilities and licensees. * * * PART 141—STATEMENTS AND REPORTS (SCHEDULES) 3. The authority citation for part 141 continues to read as follows: Authority: 15 U.S.C. 79; 16 U.S.C. 791a-828c, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. 4. Revise § 141.1(b)(1)(i) to read as follows: § 141.1 FERC Form No. 1, Annual report of Major electric utilities, licensees and others.
(b)*Filing requirements* —(1) *Who must file* —(i) *Generally* . Each Major and each Nonoperating (formerly designated as Major) electric utility (as defined in part 101 of Subchapter C of this chapter) and other entity, *i.e.* , each corporation, person or licensee as defined in section 3 of the Federal Power Act (16 U.S.C. 792 *et seq.* ), including any agency, authority, or other legal entity or instrumentality engaged in generation, transmission, distribution, or sale of electric energy, however produced, throughout the United States and its possessions, having sales or transmission service equal to Major or Nonoperating (formerly designated as Major) as defined above, whether or not the jurisdiction of the Commission is otherwise involved, shall prepare and file electronically with the Commission the FERC Form No. 1 pursuant to the General Instructions set out in that form. 5. Revise § 141.2(b)(1)(i) to read as follows: § 141.2 FERC Form No. 1-F, Annual report for Nonmajor public utilities and licensees.
(b)*Filing Requirements* —(1) *Who Must File* —(i) *Generally* . Each Nonmajor and each Nonoperating (formerly designated as Nonmajor) public utility and licensee as defined by the Federal Power Act, which is considered Nonmajor as defined in Part 101 of this chapter, shall prepare and file with the Commission an original and conformed copies of FERC Form No. 1-F pursuant to the General Instructions set out in that form. 6. In § 141.400, revise paragraphs (b)(1)(i), (b)(2) introductory text, and (b)(3) introductory text to read as follows: § 141.400 FERC Form No. 3-Q, Quarterly financial report of electric utilities, licensees, and natural gas companies.
(b)*Filing Requirements* —(1) *Who must file* —(i) *Generally.* Each electric utility and each Nonoperating (formerly designated as Major or Nonmajor) electric utility (as defined in part 101 of subchapter C of this chapter) and other entity, *i.e.* , each corporation, person, or licensee as defined in section 3 of the Federal Power Act (16 U.S.C. 792 *et seq.* ), including any agency or instrumentality engaged in generation, transmission, distribution, or sale of electric energy, however produced, throughout the United States and its possessions, having sales or transmission service, whether or not the jurisdiction of the Commission is otherwise involved, must prepare and file with the Commission FERC Form No. 3-Q pursuant to the General Instructions set out in that form.
(2)Each Major and Nonoperating (formerly designated as Major) (as defined in part 101 of subchapter C of this chapter) public utility and licensee must file the quarterly financial report form as follows:
(3)Nonmajor and Nonoperating (formerly designated as Nonmajor) public utilities and licensees must file the quarterly financial report form as follows: [FR Doc. E7-7771 Filed 4-25-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 141 and 385 [Docket No. RM07-14-000; Order No. 695] Electronic Filing of FERC Form No. 714 Issued April 19, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule. SUMMARY: In this Final Rule, the Federal Energy Regulatory Commission (Commission) is amending its regulations to provide for electronic filing of the FERC Form No. 714, Annual Electric Control and Planning Area Report. Paper filings will no longer be accepted. No substantive changes are being made to the information reported in the FERC Form No. 714; however, the Commission has made minor formatting changes to the form to facilitate the development of the form submission software. Finally, as an administrative revision, the term “Control Area” will be changed to “Balancing Authority Area,” in line with current industry practice. In a separate notice, a forty-five day extension, to July 16, 2007, will be granted this first year under the new system to allow additional time to file. DATES: Effective Date: The Final Rule will become effective May 29, 2007. FOR FURTHER INFORMATION CONTACT: Lawrence Greenfield (Legal Information), Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, Telephone:
(202)502-6415, E-mail: *lawrence.greenfield@ferc.gov* . Patricia W. Morris (Technical Information), Division of Administration, Budget and Strategic Planning, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, Telephone:
(202)502-8730, E-mail: *patricia.morris@ferc.gov* . Craig Hill (Software Information), Division of Administration, Budget and Strategic Planning, Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, Telephone:
(202)502-8621, E-mail: *craig.hill@ferc.gov* . SUPPLEMENTARY INFORMATION: *Before Commissioners:* Joseph T. Kelliher, Chairman; Suedeen G. Kelly; Marc Spitzer; Philip D. Moeller; and Jon Wellinghoff. 1. The Federal Energy Regulatory Commission is amending its regulations to provide for electronic filing of the FERC Form No. 714, Annual Electric Control and Planning Area Report (Form 714). 1 Paper filings will no longer be accepted. No substantive changes are being made to the information reported in the Form 714; however, the Commission has made minor formatting changes to the form to facilitate the development of form submission software. Finally, as an administrative revision, the term “Control Area” will be changed to “Balancing Authority Area,” in line with current industry practice. In a separate notice, a forty-five day extension, to July 16, 2007, will be granted this first year under the new system to allow additional time to file. 1 *See* 18 CFR 141.51. Background 2. Form 714 gathers utility operating and planning information, primarily on a control area basis, 2 for the purpose of evaluating utility operations with regard to mergers and dispositions, jurisdictional services, jurisdictional rates, energy market oversight, and wholesale market changes in light of evolving competitive forces. 2 In line with electric industry developments, “Control Area” will changed to “Balancing Authority Area.” 3. Form 714 is submitted annually by approximately 173 utilities who operate balancing authority areas and planning areas. Currently, Form 714 is submitted in a paper format. Discussion 4. The Commission's regulations provide for electronic filing, using web-enabled software technology, of numerous reports currently submitted by entities subject to Commission jurisdiction, some of which are: FERC Form No. 1, Annual Report of Major Electric Utilities, Licensees and Others; FERC Form No. 516, Electric Quarterly Report; FERC Form No. 423, Monthly Report of Cost and Quality of Fuels for Electric Plants; FERC Form No. 3Q, Quarterly Financial Report of Electric Utilities, Licensees, and Natural Gas Companies; and FERC Form No. 60, Annual Report of Centralized Service Companies. 3 The electronic filing of these reports yields significant benefits, including reduced cost of data entry and retrieval, overall reduction of reporting burden, faster and more precise data validation, more timely analysis and publication of data, and increased data analysis capability. 4 And, in general, filers and users alike agree that electronic filing of these reports yields significant benefits in terms of process simplification and savings of time and expense. 5 3 *See* , *e.g.,* 18 CFR 385.2011. 4 See, *e.g.,* *Electronic Filing of FERC Form No. 1,* Order No. 574,. 60 FR 1716 (Jan. 5, 1995), FERC Stats. & Regs. ¶31,013 at 31,257 (1995). 5 *Id.* at 31,256-57. 5. With respect to Form 714, the Commission seeks similar benefits. The Commission, therefore, will require utilities to file the Form 714 electronically, using the Commission's web-enabled software, beginning with the 2006 reporting year, to be filed this first year by an extended filing date of July 16, 2007. 6. In addition, the term “Control Area” will be changed to “Balancing Authority Area” in the title and throughout the form and instructions in keeping with this change in industry. By using either term, the Commission is referring to the area operator that is responsible for matching generation and load, that is responsible for maintaining scheduled interchange with other Balancing Authority Areas, and that is responsible for maintaining the frequency in real-time of the electric power system. 7. No substantive changes are being made to the information reported in Form 714. However, the Commission will make minor formatting changes to Form 714 to facilitate the development of the form submission software. These minor changes will include updating certain attachments so that the data is reported in a structured format, updating the General Instructions to Form 714 to clarify that the respondents will no longer file paper copies of Form 714, but rather the respondents will be required to use the Commission's form submission software to file the information, and lastly allowing only utilities subject to the reporting requirements to submit a Form 714 via the software. Ergo, the Commission will not register the software to a regional transmission system organization operator who is not a Balancing Authority Area operator or Planning Area operator. Entities that are neither Balancing Authority Area operators nor Planning Area operators, but who are authorized by their members to compile Form 714 data on their behalf, are required to make the data available to their Balancing Authority Area operators or Planning Area operators in order that those area operators may file the data with the Commission. 8. In a separate notice, filers will be directed to the Commission's Web site where instructions will be provided concerning how a utility may register as a respondent and download the form submission software for use in filing Form 714. Information Collection Statement 9. Office of Management and Budget
(OMB)regulations require OMB to approve certain information collection requirements imposed by an agency. 6 The Final Rule will not change the reporting requirements in Form 714. This rule, therefore, is not subject to OMB review. The Commission is submitting a copy of the Final Rule to OMB for information purposes only. When the collection is next up for OMB renewal (2009), the Commission will report a reduction in burden
(1)Due to a reduction in the number of filers from the previous 250 to the current 173, a result of the formation of regional transmission organizations (and other similar entities) encompassing numerous former Control Areas (Balancing Authority Areas) and
(2)due to the switch from a paper and diskette filing to an all-electronic filing. 6 5 CFR 1320.11. 10. Interested persons may obtain information on these reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 [Attn: Michael Miller, Information Services Division
(202)502-8415, fax:
(202)273-0873]. Comments on the requirements of this rule can be sent to the Office of Information and Regulatory Affairs of OMB [Attn: Desk Officer for the Federal Energy Regulatory Commission; phone,
(202)395-4650, fax:
(202)395-7285, e-mail: *oira_submission@omb.eop.gov* ]. Environmental Analysis 11. Commission regulations require that an Environmental Assessment or an Environmental Impact Statement be prepared for any Commission action that may have a significant adverse effect on the human environment. 7 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. No environmental consideration is necessary for the promulgation of a rule concerning information gathering, analysis or dissemination, or that is merely procedural. 8 Because the electronic filing requirement for Form 714 adopted in this Final Rule concerns information gathering, and is procedural, no environmental consideration is necessary. 7 *Regulations Implementing the National Environmental Policy Act,* Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783
(1987)( *codified at* 18 CFR Part 380). 8 18 CFR 380.4(a)(2)(ii), (5). Regulatory Flexibility Act Certification 12. The Regulatory Flexibility Act of 1980
(RFA)9 generally requires either a description and analysis of a rule that will have a significant economic impact on a substantial number of small entities or a certification that the rule will not have a significant economic impact on a substantial number of small entities. Most utilities to which this Final Rule applies would not fall within the RFA's definition of small entity. 10 Consequently, the Commission certifies that this Final Rule will not have a “significant economic impact on a substantial number of small entities.” 9 5 U.S.C. 601-12. 10 5 U.S.C. 601(3), *citing* to section 3 of the Small Business Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a “small business concern” as a business that is independently owned and operated and that is not dominant in its field of operation. The Small Business Size Standards component of the North American Industry Classification System (NAICS) defines a small electric utility as one that, including its affiliates, is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and whose total electric output for the preceding fiscal year did not exceed four million MWh. 13 CFR 121.201. Document Availability 13. In addition to publishing the full text of this document in the **Federal Register** , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( *http://www.ferc.gov* ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426. 14. From the Commission's Home Page on the Internet, this information is available in the Commission's document management system, eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 15. User assistance is available for eLibrary and the Commission's Web site during normal business hours. For assistance, please contact FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at *FERCOn-lineSupport@ferc.gov* ) or the Public Reference Room at 202-502-8371, TTY 202-502-8659 (e-mail at *public.referenceroom@ferc.gov).* Administrative Findings and Effective Date 16. The Administrative Procedure Act
(APA)11 requires rulemakings to be published in the **Federal Register** . The APA also mandates that an opportunity for comments be provided when an agency promulgates regulations. However, notice and comment are not required under the APA when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary or contrary to the public interest. 12 11 5 U.S.C. 551-59. 12 5 U.S.C. 553(B); *See* , *e.g.,* *Mid-Tex Electric Cooperative, Inc.* v. *FERC,* 822 F.2d 1123 (D.C. Cir. 1987). 17. The Commission finds that notice and comment are unnecessary for this rulemaking. As explained above, this Final Rule is merely procedural in nature. The Commission is not substantively revising the information utilities file in the Form 714. The Commission is merely requiring electronic filing of the Form 714 using software analogous to software developed by the Commission for the collection of other information from the same utilities that currently file Form 714, *e.g.* , Forms 1, 3Q and 516. 18. This Final Rule is effective May 29, 2007. Congressional Notification 19. The provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 13 regarding Congressional review of Final Rules do not apply to this Final Rule, because the rule concerns agency procedure and practice and will not substantially affect the substantive rights of non-agency parties. 14 13 5 U.S.C. 801. 14 5 U.S.C. 804(3)(B). List of subjects 18 CFR Part 141 Electric power, Reporting and recordkeeping requirements. 18 CFR Part 385 Administrative practice and procedure, Electric power, Penalties, Pipelines, Reporting and recordkeeping requirements. By the Commission. Philis J. Posey, Deputy Secretary. In consideration of the foregoing, the Commission amends parts 141 and 385, Chapter I, Title 18, Code of Federal Regulations, as follows: PART 141—STATEMENTS AND REPORTS (SCHEDULES) 1. The authority citation for part 141 continues to read as follows: Authority: 15 U.S.C. 79; 16 U.S.C. 791a-828c, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. 2. In § 141.51, the section heading, and paragraphs (a)(1) and
(c)are revised to read as follows: § 141.51 FERC Form No. 714, Annual Electric Balancing Authority Area and Planning Area Report.
(a)*Who must file.*
(1)Any electric utility, as defined by section 3(4) of the Public Utility Regulatory Policies Act, 16 U.S.C. 2602, operating a balancing authority area, and any group of electric utilities, which by way of contractual arrangements operates as a single balancing authority area, must complete and file the applicable schedules in FERC Form No. 714 with the Federal Energy Regulatory Commission.
(c)*What to file.* FERC Form No. 714, Annual Electric Balancing Authority Area and Planning Area Report, must be filed with the Federal Energy Regulatory Commission as prescribed in § 385.2011 of this chapter and as indicated in the General Instructions set out in this form. PART 385—RULES OF PRACTICE AND PROCEDURE 3. The authority citation for part 385 continues to read as follows: Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C.791a-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 42 U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988). 4. In § 385.2011, paragraph (a)(10) is added and paragraph (c)(3) is revised to read as follows: § 385.2011 Procedures for filing on electronic media (Rule 2011).
(a)* * *
(10)FERC Form No. 714, Annual Electric Balancing Authority Area and Planning Area Report.
(c)* * *
(3)With the exception of the FERC Form Nos. 1, 2, 2-A, 6, 60, and 714, the electronic media must be accompanied by the traditional prescribed number of paper copies. [FR Doc. E7-7772 Filed 4-25-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD07-06-050] RIN 1625-AA09 Drawbridge Operation Regulation; Venetian Causeway
(West)Drawbridge, Atlantic Intracoastal Waterway, Mile 1088.6, and Venetian Causeway
(East)Drawbridge, Biscayne Bay, Miami, Miami-Dade County, FL; Correction AGENCY: Coast Guard, DHS. ACTION: Final rule; correction. SUMMARY: On April 16, 2007, the Coast Guard published in the **Federal Register** a final rule that changes the operating regulations governing the Venetian Causeway
(West)drawbridge, Atlantic Intracoastal Waterway, mile 1088.6, and Venetian Causeway
(East)drawbridge, Biscayne Bay, Miami, Miami-Dade County, Florida. Inadvertently, under the second amendatory instruction, the wrong section number was used in the section heading. This document corrects that incorrect section number. DATES: This rule is effective May 16, 2007. FOR FURTHER INFORMATION CONTACT: Mr. Michael Lieberum, Seventh Coast Guard District, Bridge Branch, telephone number 305-415-6744. SUPPLEMENTARY INFORMATION: In the final rule, published on April 16, 2007, (72 FR 18885), the Coast Guard changed the operating schedule of the Venetian Causeway
(West)Drawbridge, Atlantic Intracoastal Waterway, Mile 1088.6, and Venetian Causeway
(East)Drawbridge, Biscayne Bay, Miami, Miami-Dade County, FL. In the second amendatory instruction, the amendatory instruction directs a revision to § 117.261, however, in the heading to the section being revised, the section number is listed as § 117.287, even though the heading used is that listed for § 117.261 (Atlantic Intracoastal Waterway from St. Mary's to Key Largo). This correction fixes the error in the section number listed in the section heading. PART 117—[CORRECTED] In FR Doc. E7-7157 published on April 16, 2007, (72 FR 18885), make the following correction. On page 18886, in the third column, change the section heading under amendatory instruction 2 to read as follows: § 117.261 Atlantic Intracoastal Waterway from St. Marys River to Key Largo. Dated: April 19, 2007. Steve Venckus, Chief, Office of Regulations and Administrative Law. [FR Doc. E7-7949 Filed 4-25-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-07-015] RIN 1625-AA00 Safety Zone; Port Pirate Festival Fireworks, Port Washington Harbor, Port Washington, WI AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone in Port Washington Harbor, Port Washington, WI. This zone is intended to restrict vessels from a portion of Port Washington Harbor and Lake Michigan during the Port Pirate Festival fireworks display. This temporary safety zone is necessary to protect spectators and vessels from the hazards associated with fireworks displays. DATES: This rule is effective from 8 p.m. to 11 p.m. (local) on June 2, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD09-07-015 and are available for inspection or copying at U.S. Coast Guard Sector Lake Michigan, 2420 South Lincoln Memorial Drive, Milwaukee, Wisconsin 53207, between 8:30 a.m. (local) and 3:00 p.m. (local), Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Chief Warrant Officer Brad Hinken, U.S. Coast Guard Sector Lake Michigan, Prevention Department, 2420 South Lincoln Memorial Drive, Milwaukee, Wisconsin 53207,
(414)747-7154. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event. Background and Purpose This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Lake Michigan has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks. Discussion of Rule A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Port Pirate Festival fireworks display. The fireworks display will occur between 8 p.m. (local) and 11 p.m. (local) on June 2, 2007. The safety zone for the fireworks will encompass all waters of Port Washington Harbor and Lake Michigan within the arc of a circle with a 1000-foot radius from the fireworks launch site located in position 43°23′07″ N, 087°51′54″ W (NAD 83). All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This determination is based on the minimal time that vessels will be restricted from the zone and the zone is an area where the Coast Guard expects insignificant adverse impact to mariners from the zone's activation. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of Port Washington Harbor at Port Washington, WI, between 8 p.m. (local) and 11 p.m. (local) on June 2, 2007. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only three hours for one event. Vessel traffic can safely pass outside the safety zone during the event. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Lake Michigan to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that this safety zone and fishing rights protection need not be incompatible. We have also determined that this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Nevertheless, Indian tribes that have questions concerning the provisions of this rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedure; and related management system practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This event establishes a safety zone; therefore paragraph (34)(g) of the Instruction applies. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T09-015 to read as follows: § 165.T09-015 Safety zone; Port Pirate Festival Fireworks, Port Washington Harbor, Port Washington, WI.
(a)*Location.* The following area is a temporary safety zone: All waters of Port Washington Harbor and Lake Michigan within the arc of a circle with a 1000-foot radius from the fireworks launch site located in position 43°23′07″ N, 087°51′54″ W (NAD 83).
(b)*Effective period.* This regulation is effective from 8 p.m. to 11 p.m. (local), on June 2, 2007.
(c)*Regulations.*
(1)In accordance with the general regulations in section 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan, or his designated on-scene representative.
(2)This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or his designated on-scene representative.
(3)The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4)Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Lake Michigan or his on-scene representative. Dated: April 17, 2007. Bruce C. Jones, Captain, U.S. Coast Guard, Captain of the Port Lake Michigan. [FR Doc. E7-7948 Filed 4-25-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2006-0568; FRL-8305-1] Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Albuquerque/Bernalillo County; Prevention of Significant Deterioration
(PSD)and New Source Review AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The EPA is approving revisions to the State Implementation Plan
(SIP)for the Albuquerque/Bernalillo County, New Mexico, area that were adopted on December 14, 2005, and submitted to EPA by the Governor of New Mexico on May 24, 2006. The SIP revisions modify the PSD and Nonattainment New Source Review
(NNSR)regulations in the SIP. They were submitted to make the area's PSD and NNSR rules consistent with the Federal PSD and NNSR revised regulations, which were promulgated by EPA on December 31, 2002, (67 FR 80186), and reconsidered with minor changes on November 7, 2003, (68 FR 63021), (collectively, the “2002 New Source Review
(NSR)Reform rules”). The revisions include provisions for baseline emissions calculations, an actual-to-projected-actual methodology for calculating emissions changes, options for plantwide applicability limits, and recordkeeping and reporting requirements. The EPA is approving these revisions pursuant to section 110, part C, and part D of the Federal Clean Air Act. DATES: This final rule is effective on May 29, 2007. ADDRESSES: The EPA has established a docket for this action under Docket ID Number EPA-R06-OAR-2006-0568. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 Freedom of Information Act Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. There will be a 15 cent per page fee for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas. The State submittal is also available for public inspection at the State Air Agency listed below during official business hours by appointment: Albuquerque Environmental Health Department, Air Pollution Control Division, One Civic Plaza, Albuquerque, New Mexico 87103. FOR FURTHER INFORMATION CONTACT: Mr. Stanley M. Spruiell, Air Permits Section (6PD-R), Environmental Protection Agency, Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733, telephone
(214)665-7212; fax number
(214)665-7263; or e-mail address *spruiell.stanley@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document, any reference to “we,” “us,” or “our” means EPA. Outline I. What Action Is EPA Taking? II. Statutory and Executive Order Reviews I. What Action Is EPA Taking? The EPA is taking final action to approve the SIP revisions that the Governor of New Mexico submitted May 24, 2006. This submittal consists of revisions to two regulations that are already part of the Albuquerque/Bernalillo County SIP. The affected regulations are: 20.22.60 New Mexico Administrative Code
(NMAC)(Permitting in Nonattainment Areas) and 20.22.61 NMAC (Prevention of Significant Deterioration). These revisions update the Albuquerque/Bernalillo County Air Quality Control Board
(AQCB)NNSR and PSD regulations to ensure that the regulations are consistent with the 2002 New Source Review Reform Rules. The SIP revision also includes other non-substantive changes to AQCB's PSD and NNSR rules needed to update the regulatory citations, make clarifying revisions to the regulatory text, correct typographical errors, and ensure that the regulations are consistent with all current Federal requirements for PSD and NNSR. These non-substantive changes do not change the regulatory requirements. On February 15, 2007 (72 FR 7361), we published our proposed approval of this SIP revision. The February 15, 2007, proposal provided detailed information about the Albuquerque/Bernalillo County SIP revisions that are being approved today. The proposal also provided a detailed analysis of EPA's rationale for approving the Albuquerque/Bernalillo County SIP revisions. In the proposal, we provided opportunity for public comment on the proposed action. The public comment period for this proposed rulemaking ended March 19, 2007. We received no comments, adverse or otherwise, on the proposed rulemaking. We are therefore finalizing our proposed approval without changes. For more details on this submittal, please refer to the proposed rulemaking and to the Technical Support Document, which is in the docket for this action. The EPA is also making a non-substantive administrative change to the title of the second table under 40 CFR 52.1620(c), which incorporates the SIP-approved Albuquerque/Bernalillo County regulations. The title of this table currently is “EPA Approved Albuquerque/Bernalillo County, NN Regulations.” The EPA is changing this title to “EPA Approved Albuquerque/Bernalillo County, NM Regulations.” II. Statutory and Executive Order Reviews 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 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on: One or more Indian tribes, the relationship between the Federal Government and Indian tribes, or 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, the relationship between the national government and the States, or 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 standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. The EPA interprets Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it approves a State program. Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Because this rule merely approves a State rule implementing a Federal standard, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations. 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.* ). 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. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). 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 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: April 17, 2007. Richard E. Greene, Regional Administrator, Region 6. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart GG—New Mexico 2. Section 52.1620 is amended as follows: a. The title of the second table in paragraph
(c)is revised to read: “EPA Approved Albuquerque/Bernalillo County, NM Regulations” b. The second table in § 52.1620(c) entitled “EPA Approved Albuquerque/Bernalillo County, NM Regulations” is amended as follows: i. By revising the entry for Part 60 (20.11.60). ii. By revising the entry for Part 61 (20.11.61). The amendments read as follows: § 52.1620 Identification of plan.
(c)* * * EPA-Approved Albuquerque/Bernalillo County, New Mexico Regulations State citation Title/subject State submittal/ effective date EPA approval date Explanation * * * * * * * New Mexico Administrative Code Title 20—Environmental Protection, Chapter 11—Albuquerque/Bernalillo County Air Quality Control Board * * * * * * * Part 60 (20.11.60) Permitting in Nonattainment Areas 12/14/05 4/26/07 [Insert FR page number where document begins] Part 61 (20.11.61) Prevention of Significant Deterioration 12/14/05 4/26/07 [Insert FR page number where document begins] * * * * * * * [FR Doc. E7-7896 Filed 4-25-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 1051 [EPA-HQ-OAR-2006-0858; FRL-8305-8] RIN 2060-A035 Extension of Temporary Exhaust Emission Test Procedure Option for All Terrain Vehicles AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. SUMMARY: In a rule published November 8, 2002, EPA promulgated new emission standards for recreational vehicles beginning in model year 2006. This included a newly regulated class of nonroad vehicles/engines commonly referred to as all-terrain vehicles. In that rulemaking, a temporary provision was included allowing manufacturers to test all-terrain vehicles over a steady-state, engine-based, duty cycle for exhaust emissions prior to the 2009 model year in lieu of the transient, chassis-based, Federal Test Procedure which was effective for 2006 and later model years. In this rulemaking we are taking direct final action to extend the availability of this temporary provision for in some cases up to an additional six model years. More specifically, manufacturers would have to certify exhaust emission engine families representing not less than 50 percent of their US-directed production on the Federal Test Procedure in model year 2014 and 100 percent in 2015. Manufacturers with only one all terrain vehicle exhaust emission engine family would not be required to use the Federal Test Procedure until the 2015 model year. For those manufacturers who have not yet done so, this will allow additional time to certify to the previously promulgated Federal Test Procedure-based emission standards using either contract facilities or by obtaining in-house capability. DATES: This direct final rule is effective on June 25, 2007, without further notice, unless we receive adverse comments by May 29, 2007 or a request for a public hearing by May 11, 2007. If EPA receives such comments or such a request, 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 No. EPA-HQ-OAR-2005-0858, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • E-mail: *a-and-r-docket@epa.gov* • Fax:
(202)566-1741 • Mail: Environmental Protection Agency, Mail Code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC, 20460. Please include two copies. • Hand Delivery: EPA Docket Center (Air Docket), U.S. Environmental Protection Agency, EPA West Building, 1301 Constitution Avenue, NW., Room: 3334 Mail Code: 6102T, 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-2006-0858. 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 infonnation whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the EPA Docket Center, EPA/DC, 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: Michael Samulski, Assessment and Standards Division, Office of Transportation and Air Quality, 2000 Traverwood Drive, Ann Arbor, MI, 48105; telephone number:
(734)214-4532; fax number:
(734)214-4050; email address: *samulski.michael@epa.gov* . SUPPLEMENTARY INFORMATION: I. Why is EPA Using a Direct Final Rule? EPA is publishing this rule without a prior proposal because we view this action as noncontroversial and anticipate no adverse comment. However, in the “Proposed Rules” section of today's **Federal Register** publication, we are publishing a separate document that will serve as the proposal to adopt the provisions in this Direct Final Rule if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment or a request for public hearing, we will publish a timely withdrawal in the **Federal Register** informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule. II. Does This Action Apply to Me? This action will affect companies that manufacture and certify all-terrain vehicles for sale in the United States. Category NAICS code a Examples of potentially affected entities Industry 336999 Snowmobiles and all-terrain vehicle manufacturers. Industry 421110 Independent commercial importers of vehicles and parts. a North American Industry Classification System (NAICS). To determine whether particular activities may be affected by this action, you should carefully examine the regulations. You may direct questions regarding the applicability of this action as noted in FOR FURTHER INFORMATION CONTACT . III. What Should I Consider as I Prepare My Comments for EPA? A. *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. *B. Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number). • 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. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • 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. IV. Summary of Rule The current exhaust emission standards for all-terrain vehicles
(ATVs)are based on the use of the chassis-based transient emission test cycle used for Class I highway motorcycles. These emission standards first took effect in the 2006 model year. As an option, section 1051.145(b) of the regulations includes a temporary provision which allows ATV manufacturers to certify their products for exhaust emissions over a steady-state, engine-based, duty cycle. This option is now in place for model years 2006-2008, inclusive. This option has existed in California since 1997 and it is permanently available under the California regulations. Until recently, for their California certification most manufacturers have elected to use the optional engine cycle. EPA included the optional test cycle in its rule because it enabled the implementation of emission controls for ATVs several years earlier than otherwise would have been possible if ATV manufacturers had been required to certify their products on the chassis-based FTP. For many manufacturers, additional lead time would have been required to procure and install the necessary chassis dynamometers and related emissions measurement equipment, train technicians, and then to certify their products on this chassis cycle. In this rulemaking, we are extending the availability of this option for reasons described below. The steady-state duty cycle, often referred to as J1088, has six modes and was originally developed to represent the operation of small utility engines. It only includes engine operation at idle and one other speed. During the course of the original rulemaking, EPA expressed its concern that the J1088 test cycle misses substantial portions of typical ATV operation. EPA stated that it preferred using the transient motorcycle FTP as the basis for the test procedures and emission standards in a long-term ATV program. However, many manufacturers expressed support for the long-term use of the optional test procedure to certify their engines, as was allowed in California, primarily due to costs associated with installing chassis dynamometer facilities capable of meeting FTP requirements. EPA recognized the manufacturers' interests regarding facility costs associated with FTP testing for ATVs. During the rulemaking, EPA discussed the possibility of developing a new test cycle specifically for ATVs. EPA discussed its intent to work with all interested parties to determine whether a new test cycle and accompanying standards would be appropriate. By finalizing the temporary J1088 option, EPA provided time to develop, and if appropriate, adopt and implement an alternative to the FTP that meets the needs of the Agency, manufacturers, and other parties. EPA indicated that it would consider extending the availability of the J1088 option beyond the 2008 model year, if necessary, to give more time to adopt changes to the ATV test cycle. Soon after the final rule was published for the ATV emission standards, EPA entered a memorandum of understanding
(MOU)with the California Air Resources Board, the Motorcycle Industry Council, and the Specialty Vehicle Institute of America, regarding ATV test cycle development and implementation with the goal of developing and implementing a test cycle for ATVs that would be agreed to by all participants. In response to the MOU, the manufacturers collected data on ATV operating characteristics in the field (speed, load, etc.) in an attempt to better inform the signatories to the MOU on the operating characteristics of these vehicles. This data was provided to EPA in November 2005 together with a manufacturer concept on a possible steady state test cycle derived from this field data and some data comparing emissions on this cycle to those on the FTP. This information is available in the public docket for this rulemaking. EPA very carefully considered the data and analyses provided by the manufacturers with the core question being whether ATV operation is fundamentally steady-state or transient in nature. Beyond this, EPA fully considered the steady-state test cycle put forth by the manufacturers. However, EPA is concerned that much of the possible operating range of ATV engines was not covered in the test cycle proposed by the manufacturers and that transient operation is not represented at all. In an effort to at least partially resolve this matter, EPA put forth the idea of adding Not-To-Exceed requirements to the industry cycle such as required in other EPA rules where steady-state testing is prescribed. However, EPA and the industry could not agree on a concept or appropriate multipliers. Thus, EPA believes it is time to close deliberations on a new emissions test cycle, leaving in place the current provision that the FTP and the emission standards promulgated in 2002 would take effect if an alternative test cycle was not implemented. While many manufacturers have already certified on the FTP, the manufacturers involved in the MOU postponed investing in the chassis dynamometer testing facilities needed for the FTP in the good faith hope that an engine dynamometer based alternative cycle could be developed. Since this will not be the case, it is appropriate to determine how much lead time is needed to complete full transition to the FTP in an orderly manner. Time is not now available to procure and implement the chassis dynamometer and meet the emission standards called for by EPA's 2009 requirement. EPA believes that a period of five additional model years is appropriate before FTP-based testing should be mandated and that one additional model year is needed to accommodate a phase-in and small business interests. As mentioned in the summary above, exhaust emission engine families representing at least 50 percent of US-directed production would have to be certified on the FTP in the 2014 model year with the remainder in 2015 model year. Manufacturers with only one exhaust emission engine family in the 2014 model year would not be required to comply until the 2015 model year. To allow for the use of current emission sampling practices used with the J1088 cycle, this action also extends the availability of raw gas sampling. It will be available for use with the J1088 cycle as long as the J1088 cycle can be used for ATV exhaust emission certification. In determining how much lead time is needed EPA considered the following factors. Time is needed to build chassis test facilities, procure and install chassis dynamometers and related emission test equipment, train personnel on use of this equipment, conduct the development work needed to meet the emission standards, and ultimately to certify. Generally speaking, the first two items would take approximately 36 months to complete, the next two would take about 24 months, and the last step, certification, about 12 months. Thus, products would be ready for the 2014 model year. The original rule provided six years of lead time for the FTP requirement. It was promulgated in late 2002 and absent a change in the test cycle would be required for the 2009 model year (mid-late 2008). Thus five of the six years have passed. During this timeframe large manufacturers would also have to acquire the facilities and equipment to run the required production line testing programs beginning in the 2014 model year. It is worth noting that in the 2007 model year many small volume manufacturers, almost exclusively from Asia, have certified using the FTP. However, information available to EPA suggests that most of these manufacturers avoided installing new equipment either by using time available on co-located or nearby chassis dynamometers used for motorcycle development or by contracting with one of a few contract labs in the Asia. Generally, such options are not readily available to the larger volume manufacturers who have not yet pursued chassis dynamometer facilities for certification of their ATVs and who must have production line testing capability as well. EPA does not expect that this revision to the regulation will have an adverse cost impact to the manufacturers beyond that envisioned in the original rule. It will give manufacturers additional time to use current practices while moving toward mandatory use of the FTP for ATV emissions certification. We expect this extension will help to ensure compliance costs are minimized and that the emission reductions identified in the 2002 rule are achieved. Even the J1088 test cycle has reduced emissions significantly by eliminating ATVs powered by high emitting two-stroke engines as a new product offering. Adopting the FTP will help to ensure robust emission control in ATVs using 4-stroke engines by including consideration of transient operation and vehicle/engine operation over a wider variety of conditions than that seen in the J1088 cycle. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. This direct final rule merely gives an extension of time in which a temporary optional test duty cycle may be used. There are no costs associated with this rule beyond those envisioned in the original rule. B. Paperwork Reduction Act This direct final rule does not include any new collection requirements, as it acts to extend the availability of an existing temporary test procedure option. There are no new paperwork requirements associated with this rule. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this direct final rule. For purposes of assessing the impacts of this final rule on small entities, a small entity is defined as:
(1)A small business that meet the definition for business based on SBA size standards 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-far-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, EPA has concluded 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 proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This direct final rule merely gives an extension of time in which a temporary optional test duty cycle may be used. We have therefore concluded that today's final rule will relieve regulatory burden for all small entities and will not have a significant economic impact on a substantial number of small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “federal mandates” that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation of why such an alternative was adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. This rule contains no federal mandates for state, local, or tribal governments as defined by the provisions of Title II of the UMRA. The rule imposes no enforceable duties on any of these governmental entities. Nothing in the rule would significantly or uniquely affect small governments. EPA has determined that this rule contains no federal mandates that may result in expenditures of more than $100 million to the private sector in any single year. This direct final rule merely gives an extension of time in which a temporary optional test duty cycle may be used. The requirements of UMRA therefore do not apply to this action. 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 Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the regulation. Section 4 of the Executive Order contains additional requirements for rules that preempt State or local law, even if those rules do not have federalism implications (i.e., the rules 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). Those requirements include providing all affected State and local officials notice and an opportunity for appropriate participation in the development of the regulation. If the preemption is not based on express or implied statutory authority, EPA also must consult, to the extent practicable, with appropriate State and local officials regarding the conflict between State law and Federally protected interests within the agency's area of regulatory responsibility. This 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. This direct final rule merely gives an extension of time in which a temporary optional test duty cycle may be used. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This rule does not uniquely affect the communities of Indian Tribal Governments. Further, no circumstances specific to such communities exist that would cause an impact on these communities beyond those discussed in the other sections of this rule. This direct final merely gives an extension of time in which a temporary optional test duty cycle may be used. 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, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that
(1)is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, Section 5-501 of the Order 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 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 direct final gives an extension of time in which a temporary optional test duty cycle may be used beyond that time period prescribed in the original rule. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This direct final rule merely gives an extension of time in which a temporary optional test duty cycle may be used. I. National Technology Transfer and Advancement Act 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) directs EPA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (such as materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This direct final rule does not involve technical standards. This direct final rule merely gives an extension of time in which a temporary optional test duty cycle may be used. Thus, we have determined that the requirements of the NTTAA do not apply. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This direct final rule merely gives an extension of time in which a temporary optional test duty cycle may be used before it expires. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as amended 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 Congress and the Comptroller General of the United States. We 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 before publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This direct final rule is effective on June 25, 2007. L. Statutory Authority The statutory authority for this action comes from section 213 of the Clean Air Act as amended (42 U.S.C. 7547). This action is a rulemaking subject to the provisions of Clean Air Act section 307(d). See 42 U.S.C. 7607(d): List of Subjects in 40 CFR Part 1051 Environmental protection, Air pollution control, Exhaust emission testing, Recreational vehicle, All-terrain vehicle. Dated: April 19, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows: PART 1051—CONTROL OF EMISSIONS FROM RECREATIONAL ENGINES AND VEHICLES 1. The authority citation for part 1051 continues to read as follows: Authority: 42 U.S.C. 7401-7671q. 2. Section 1051.145 is amended by revising paragraphs
(b)introductory text and (e)(2) to read as follows: § 1051.145 What provisions apply only for a limited time?
(b)*Optional emission standards for ATVs* . To meet ATV standards for model years before 2014, you may apply the exhaust emission standards by model year in paragraph (b)(1) of this section while measuring emissions using the engine-based test procedures in 40 CFR part 1065 instead of the chassis-based test procedures in 40 CFR part 86. In model year 2014 you may apply this provision for exhaust emission engine families representing up to 50 percent of your U.S.-directed production. This provision is not available in the 2015 or later-model years. If you certify only one ATV exhaust emission engine family in the 2014 model year this provision is available for that family in the 2014 model year.
(e)* * *
(2)*ATV* . You may use the raw sampling procedures described in 40 CFR part 90 or 91 for ATVs certified using engine-based test procedures as specified in § 1051.615 before the 2015 model year. You may use these raw sampling procedures for any ATVs certified using engine-based test procedures as specified in paragraph
(b)of this section. [FR Doc. 07-2069 Filed 4-25-07; 8:45 am]
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89 references not yet in our index
  • 5 CFR 591
  • 5 CFR 591.103
  • 5 CFR 591.104
  • 3 CFR 1991
  • 7 CFR 3403
  • Pub. L. 97-219
  • Pub. L. 106-554
  • 5 CFR 1320
  • 7 CFR 3015
  • Pub. L. 104-4
  • Pub. L. 99-591
  • 13 CFR 124
  • 37 CFR 401
  • 7 CFR 1
  • 48 CFR 31
  • 7 CFR 3
  • 7 CFR 15
  • 7 CFR 331
  • 9 CFR 121
  • 31 USC 6301-6308
  • Pub. L. 95-224
  • 7 CFR 3017
  • 7 CFR 3018
  • 7 CFR 3019
  • 7 CFR 3052
  • 7 CFR 3407
  • Pub. L. 89-544
  • 10 CFR 72
  • 10 CFR 50
  • Pub. L. 104-113
  • 10 CFR 51
  • 13 CFR 121
  • 68 Stat. 929
  • 83 Stat. 444
  • Pub. L. 86-373
  • 73 Stat. 688
  • 88 Stat. 1242
  • Pub. L. 95-601
  • 92 Stat. 2951
  • Pub. L. 102-486
+ 49 more
Citation graph
cites case law
Unknown
Final rule
U.S.C.§ 5901
U.S.C.§ 5902
U.S.C.§ 5903
U.S.C.§ 638
Fed. Reg.Notices
U.S.C.§ 605
C.F.R.§ 121.103
C.F.R.§ 121.106
Fed. Reg.Proposed Rules
F. App'x468 F.3d 845
F. App'x822 F.2d 1123
Cite5 CFR 591
Cites 159 · showing 12Cited by 0 across 0 sources
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