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Code · REGISTER · 2007-05-14 · Office of Special Education and Rehabilitative Services, Department of Education · Notices

Notices. Notice of proposed priority

16,656 words·~76 min read·/register/2007/05/14/07-2386

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

BILLING CODE 4001-07-P DEPARTMENT OF EDUCATION Assistive Technology Act of 1998, As Amended—Assistive Technology Alternative Financing Program AGENCY: Office of Special Education and Rehabilitative Services, Department of Education. ACTION: Notice of proposed priority. SUMMARY: The Assistant Secretary for Special Education and Rehabilitative Services (OSERS) proposes a priority under section 4(b)(2)(D) of the Assistive Technology Act of 1998, as amended, administered by the Rehabilitation Services Administration (RSA). The Assistant Secretary may use the priority for competitions in fiscal year
(FY)2007 and later years. We take this action to focus Federal financial assistance on an identified area of national need. We intend the priority to support activities that increase the availability of, funding for, access to, and provision of assistive technology
(AT)devices and AT services. DATES: We must receive your comments on or before June 13, 2007. ADDRESSES: Address all comments about the proposed priority to Robert Groenendaal, U.S. Department of Education, 400 Maryland Avenue, SW., room 5019, Potomac Center Plaza, Washington, DC 20202-2550. Telephone:
(202)245-7393 or by e-mail: *robert.groenendaal@ed.gov.* You must include the term “AFP Priority” in the subject line of your electronic message. FOR FURTHER INFORMATION CONTACT: Robert Groenendaal. Telephone:
(202)245-7393, or via Internet: *robert.groenendaal@ed.gov.* If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service
(FRS)at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT . SUPPLEMENTARY INFORMATION: Invitation to Comment We invite you to submit comments regarding the proposed priority. We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from the proposed priority. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program. During and after the comment period, you may inspect all public comments about the proposed priority in room 5019, Potomac Center Plaza, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern Time, Monday through Friday of each week except Federal holidays. Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed priority. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT . Background Most individuals with disabilities do not have the private financial resources to purchase the AT they need. Currently, programs such as Medicaid, Medicare, and vocational rehabilitation cannot meet the growing demand for AT. Through services such as financial loans, alternative financing programs
(AFPs)offer individuals with disabilities affordable options that can significantly enhance their access to AT in a way that underscores independence and inclusion. The FY 2007 full-year Continuing Resolution provides funding for the Department to support the establishment, expansion, and administration of AFPs under section 4(b)(2)(D) of the Assistive Technology Act of 1998, as amended (AT Act). States and outlying areas operate AFPs in accordance with the requirements of title III of the Assistive Technology Act of 1998 as in effect on the day before the date of enactment of the 2004 amendments (referred to throughout this document as the “old AT Act”). The purpose of title III of the old AT Act is to maximize independence and participation in society by individuals with disabilities through AFPs. These programs offer alternatives to the traditional payment options of public assistance and out-of-pocket financing so that individuals with disabilities and their family members, guardians, advocates, and authorized representatives can purchase AT devices and services. Grantees operating AFPs must match their Federal grant amount; as provided for by the FY 2007 Continuing Resolution, which incorporates the requirements in the FY 2006 appropriations act relating to this program, the Federal share may not be more than 75 percent of the cost of AFPs featuring one or more alternative financing mechanisms for the purchase of AT devices and AT services. In order to maintain consistency among AFPs funded under this program, we are proposing substantially the same priority that was published for this program in the **Federal Register** on June 30, 2005 (70 FR 37794). We will announce the final priority in a notice in the **Federal Register** . We will determine the final priority after considering responses to this notice and other information available to the Department. This notice does not preclude us from proposing or using other priorities, subject to meeting applicable rulemaking requirements. Note: This notice does not solicit applications. In any year in which we choose to use the priority, we invite applications through a notice in the **Federal Register** . When inviting applications we designate the priority as absolute, competitive preference, or invitational. The effect of each type of priority follows: *Absolute priority:* Under an absolute priority we consider only applications that meet the priority (34 CFR 75.105(c)(3)). *Competitive preference priority:* Under a competitive preference priority we give competitive preference to an application by either
(1)awarding additional points, depending on how well or the extent to which the application meets the competitive priority (34 CFR 75.105(c)(2)(i)); or
(2)selecting an application that meets the competitive priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)). *Invitational priority:* Under an invitational priority we are particularly interested in applications that meet the invitational priority. However, we do not give an application that meets the invitational priority a competitive or absolute preference over other applications (34 CFR 75.105(c)(1)). Priority The Assistant Secretary proposes this priority to support AFPs that provide individuals with disabilities the funding for and provision of AT devices and services. In order to meet this priority, the State must establish or expand one or more of the following types of AFPs (section 301(b) of the old AT Act):
(1)A low-interest loan fund.
(2)An interest buy-down program.
(3)A revolving loan fund.
(4)A loan guarantee or insurance program.
(5)A program operated by a partnership among private entities for the purchase, lease, or other acquisition of AT devices or services.
(6)Another mechanism that meets the requirements of title III of the old AT Act and is approved by the Secretary. AFPs are designed to allow individuals with disabilities and their family members, guardians, advocates, and authorized representatives to purchase AT devices or services. If family members, guardians, advocates, and authorized representatives (including employers who have been designated by an individual with a disability as an authorized representative) receive AFP support to purchase AT devices or services, the purchase must be on behalf of an individual with a disability, i.e., the AT device or service that is purchased must be solely for the benefit of that individual. To be considered for funding, an applicant must identify the type or types of AFP to be supported by the grant and submit all of the following assurances in their entirety:
(1)*Nature of the Match:* An assurance that the State will provide the non-Federal share (not less than 25 percent) of the cost of the AFP in cash, from State, local, or private sources (sections 301(d) and 303(b)(1) of the old AT Act, as provided for by the 2007 Continuing Resolution, which incorporates requirements in the FY 2006 appropriations act relating to this program). An applicant must identify the amount of Federal funds the State is requesting, the amount of cash that the State will provide as a match, and the source of the cash.
(2)*Permanent Separate Account:* An assurance from the State that—
(a)All funds that support the AFP, including funds repaid during the life of the program, will be placed in a permanent separate account and identified and accounted for separately from any other fund;
(b)If the organization administering the program invests funds within this account, the organization will invest the funds in low-risk securities in which a regulated insurance company may invest under the law of the State; and
(c)The organization will administer the funds with the same judgment and care that a person of prudence, discretion, and intelligence would exercise in the management of the financial affairs of that person (section 303(b)(5) of the old AT Act). During the first 12-month budget period, a grantee must deposit its matching funds and its Federal award funds in the permanent and separate account.
(3)*Permanence of the Program:* An assurance that the AFP will continue on a permanent basis (section 303(b)(2) of the old AT Act). A State's obligation to implement the AFP consistent with all of the requirements, including reporting requirements, continues until there are no longer any funds available to operate the AFP and all outstanding loans have been repaid. If a State decides to terminate its AFP while there are still funds available to operate the program, the State must return the Federal share of the funds remaining in the permanent separate account to RSA (e.g., 75 percent if the original State to Federal match was 1 to 3) except for funds being used for grant purposes, such as loan guarantees for outstanding loans. However, before closing out its grant, the State also must return the Federal share of any principal and interest remitted to it on outstanding loans and any other funds remaining in the permanent separate account, such as funds being used as loan guarantees for those loans.
(4)*Consumer Choice and Control:* An assurance that, and information describing the manner in which, the AFP will expand and emphasize consumer choice and control (section 303(b)(3) of the old AT Act).
(5)*Supplement Not Supplant:* An assurance that the funds made available through the grant to support the AFP will be used to supplement and not supplant other Federal, State, and local public funds expended to provide alternative financing mechanisms (section 303(b)(4) of the old AT Act).
(6)*Contract With a Community-Based Organization:* An assurance that the State will enter into a contract with a community-based organization
(CBO)(including a group of CBOs) that has individuals with disabilities involved in organizational decision-making at all organizational levels, to administer the AFP. The contract must—
(a)Include a provision requiring that the program funds, including the Federal and non-Federal shares of the cost of the program, be administered in a manner consistent with the provisions of title III of the old AT Act;
(b)Include any provision the Secretary requires concerning oversight and evaluation necessary to protect Federal financial interests; and
(c)Require the CBO to enter into a contract, to expand opportunities under title III of the old AT Act and facilitate administration of the AFP, with commercial lending institutions or organizations or State financing agencies (section 304 of the old AT Act). During the first 12-month budget period, a grantee will enter into the contract with a CBO and ensure that the CBO has entered into the contract with the commercial lending institutions or organizations or State financing agencies.
(7)*Use and Control of Funds:* An assurance that—
(a)Funds comprised of the principal and interest from the account described in paragraph
(2)*Permanent Separate Account* of this priority will be available to support the AFP; and
(b)Any interest or investment income that accrues on or derives from those funds after the funds have been placed under the control of the organization administering the AFP, but before the funds are distributed for purposes of supporting the program, will be the property of the organization administering the program (section 303(b)(6) of the old AT Act). This assurance regarding the use and control of funds applies to all funds derived from the AFP including the original Federal award, the State matching funds, AFP funds generated by either interest bearing accounts or investments, and all principal and interest paid by borrowers of the AFP who are extended loans from the permanent separate account.
(8)*Indirect Costs:* An assurance that the percentage of the funds made available through the grant that is used for indirect costs will not exceed 10 percent (section 303(b)(7) of the old AT Act). For each 12-month budget period, grantees must recalculate their allowable indirect cost rate, which may not exceed 10 percent of the amount of funds in the permanent and separate account and any outstanding loans from that account.
(9)*Administrative Policies and Procedures:* An assurance that the State and any CBO that enters into a contract with the State under title III of the old AT Act will submit to the Secretary the following policies and procedures for administration of the AFP:
(a)A procedure to review and process in a timely manner requests for financial assistance for immediate and potential technology needs, including consideration of methods to reduce paperwork and duplication of effort, particularly relating to need, eligibility, and determination of the specific AT device or service to be financed through the program.
(b)A policy and procedure to ensure that access to the AFP must be given to consumers regardless of type of disability, age, income level, location of residence in the State, or type of AT device or service for which financing is requested through the program.
(c)A procedure to ensure consumer-controlled oversight of the program (section 305 of the old AT Act). Grantees must submit the administrative policies and procedures required in this assurance within 12 months of the start of the grant.
(10)*Data Collection:* An assurance that the State will collect and report data requested by the Secretary in the format, with the frequency, and using the method established by the Secretary until there are no longer any funds available to operate the AFP and all outstanding loans have been repaid.
(11)*Collaboration With the Statewide AT Program:* An assurance that the AFP will enter into a written agreement with that State's statewide AT program supported under section 4 of the AT Act to coordinate activities appropriately. Executive Order 12866 This notice of proposed priority has been reviewed in accordance with Executive Order 12866. Under the terms of the order, we have assessed the potential costs and benefits of this regulatory action. The potential costs associated with the notice of proposed priority are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently. In assessing the potential costs and benefits—both quantitative and qualitative—of this notice of proposed priority we have determined that the benefits of the proposed priority justify the costs. We have also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions. Intergovernmental Review This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program. Applicability of Education Department General Administrative Regulations (EDGAR) to AFP In general, EDGAR would apply to this grant except to the extent it is inconsistent with the purpose of and intent of section 4(b)(2)(D) of the AT Act. Specifically, grantees would be exempt from section 80.21(i) regarding interest earned on advances and the addition method in section 80.25(g)(1). Also, sections 75.560-75.564 would not apply to the extent that these sections of EDGAR are inconsistent with the AFP requirement that indirect costs cannot exceed 10 percent. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the **Federal Register** , in text or Adobe Portable Document Format
(PDF)on the Internet at the following site: *http://www.ed.gov/news/fedregister* . To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at
(202)512-1530. Note: The official version of this document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html* . (Catalog of Federal Domestic Assistance Number 84.224C Assistive Technology Alternative Financing Programs) Program Authority: 29 U.S.C. 3001 *et seq.* Dated: May 9, 2007. Andrew J. Pepin, Executive Administrator, Office of Special Education and Rehabilitative Services. [FR Doc. E7-9222 Filed 5-11-07; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF EDUCATION Advisory Committee on Student Financial Assistance: Hearing AGENCY: Advisory Committee on Student Financial Assistance, Education. ACTION: Notice of an opening hearing. SUMMARY: This notice sets forth the schedule and proposed agenda of a forthcoming hearing of the Advisory Committee on Student Financial Assistance (The Advisory Committee). This notice also describes the functions of the Advisory Committee. Notice of this hearing is required under Section 10(a)(2) of the Federal Advisory Committee Act. This document is intended to notify the general public. Date and Time: Tuesday, June 5, 2007, beginning at 9 a.m. and ending at approximately 5 p.m. ADDRESSES: Holiday Inn on the Hill, Federal North Room, 415 New Jersey Avenue, NW., Washington DC 20001. FOR FURTHER INFORMATION CONTACT: Dr. Michelle Asha Cooper, Deputy Director, Advisory Committee on Student Financial Assistance, Capitol Place, 80 F Street, NW, Suite 413, Washington DC 20202-7582,
(202)219-2099. Individuals who use a telecommunications device for the deaf
(TDD)may call the Federal Information Relay Service
(FRS)at 1-800-877-8339. SUPPLEMENTARY INFORMATION: The Advisory Committee on Student Financial Assistance is established under Section 491 of the Higher Education Act of 1965 as amended by Public Law 100-50 (20 U.S.C. 1098). The Advisory Committee serves as an independent source of advice and counsel to the Congress and the Secretary of Education on student financial aid policy. Since its inception, the congressional mandate requires the Advisory Committee to conduct objective, nonpartisan, and independent analyses on important aspects of the student assistance programs under Title IV of the Higher Education Act, and to make recommendations that will result in the maintenance of access to postsecondary education for low- and middle-income students. In addition, Congress expanded the Advisory Committee's mission in the Higher Education Amendments of 1998 to include several important areas: access, Title IV modernization, distance education, and early information and needs assessment. Specifically, the Advisory Committee is to review, monitor and evaluate the Department of Education's progress in these areas and report recommended improvements to Congress and the Secretary. The Advisory Committee has scheduled this one-day hearing to discuss release of its new report related to its congressionally requested study to make textbooks more affordable (Textbook Study). This one-year study, was requested by the U.S. House of Representatives Committee on Education and Labor (formerly Education and the Workforce) to investigate further the problem of rising textbook prices and determine the impact of rising textbook prices on students' ability to afford a postsecondary education. In addition, other discussions will focus on two components of the Advisory Committee's three-year Innovative Pathways Study: Expected Family Contribution and early financial aid information. The proposed agenda includes expert testimony and discussions by prominent higher education community leaders, Congressional staff, state representatives, and institutions on
(a)the Advisory Committee's Textbook Study recommendations;
(b)legislative efforts to simplify the student aid application and delivery process; and
(c)the National Advising Corps. The Advisory Committee will also conduct a public comment and discussion session. Individuals who will need accommodations for a disability in order to attend the hearing (i.e., interpreting services, assistive listening devices, and/or materials in alternative format) should notify the Advisory Committee no later than Tuesday, May 29, 2007 by contacting Ms. Hope Gray at
(202)219-2099 or via e-mail at *hope.gray@ed.gov.* We will attempt to meet requests after this date, but cannot guarantee availability of the requested accommodation. The hearing site is accessible to individuals with disabilities. The Advisory Committee invites the public to submit written comments on the agenda topics to the following e-mail address: *ACSFA@ed.gov.* Information regarding the topics covered at the hearing will also be available on the Advisory Committee's Web site, *http://www.ed.gov/ACSFA.* We must receive your comments on or before Tuesday, May 29, 2007 to be included in the hearing materials. Space for the hearing is limited and you are encouraged to register early if you plan to attend. You may register by sending an email to the following address: *ACSFA@ed.gov* or *Tracy.Deanna.Jones@ed.gov.* Please include your name, title, affiliation, complete address (including internet and email address, if available), and telephone and fax numbers. If you are unable to register electronically, you may fax your registration information to the Advisory Committee staff office at
(202)219-3032. You may also contact the Advisory Committee staff directly at
(202)219-2099. The registration deadline is Tuesday, May 29, 2007. Records are kept for Advisory Committee proceedings, and are available for inspection at the Office of the Advisory Committee on Student Financial Assistance, Capitol Place, 80 F Street, NW.—Suite 413, Washington, DC from the hours of 9 a.m. to 5:30 p.m. Monday through Friday, except Federal holidays. Information regarding the Advisory Committee is available on the Committee's Web site, *http://www.ed.gov/ACSFA.* *Electronic Access to This Document:* You may view this document, as well as other documents of this Department published in the **Federal Register** , in text or Adobe Portable Document Format
(PDF)on the Internet at the following site: *http://www.ed.gov/news/fedregister/index.html.* To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free at 1-888-293-6498; or in the Washington DC area at
(202)512-1530. Note: The official version of this document is the document published in the **Federal Register** . Free Internet access to the official of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html.* Dated: May 9, 2007. William J. Goggin, Executive Director, Advisory Committee on Student Financial Assistance. [FR Doc. E7-9218 Filed 5-11-07; 8:45 am] BILLING CODE 4000-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP07-207-000] Colorado Interstate Gas Company; Notice of Application May 7, 2007. Take notice that on April 27, 2007, Colorado Interstate Gas Company (CIG), Post Office Box 1087, Colorado Springs, Colorado 80944, filed an application in Docket No. CP07-207-000, pursuant to section 7(c) of the Natural Gas Act for a certificate of public convenience and necessity authorizing its High Plains Expansion Project which consists of approximately 164 miles of 24- and 30-inch diameter pipeline, in four related pipeline segments, and metering facilities, with appurtenances, to be located in Adams, Morgan, and Weld Counties, Colorado. As part of the project, CIG is seeking authorization to implement new services and rates, and gas quality control rates and fuel charges. When completed, the pipeline facilities will transport and deliver up to 899,000 Dth per day of natural gas, all as more fully set forth in the application which is on file with the Commission and open for public inspection. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at *http://www.ferc.gov* using the “eLibrary” link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, please contact FERC Online Support at *FERCOnlineSupport@ferc.gov* or toll free at (866)208-3676, or for TTY, contact
(202)502-8659. Any questions regarding this Application should be directed to Richard Derryberry, Director, Regulatory Affairs, Colorado Interstate Gas Company, P. O. Box 1087, Colorado Springs, Colorado, 80944 at
(719)520-3788 or by fax at
(719)667-7534 or Craig V. Richardson, Vice President and General Counsel, Colorado Interstate Gas Company, P. O. Box 1087, Colorado Springs, Colorado, 80944 at (719)520-4829 or by fax at (719)520-4898. On October 6, 2006, the Commission staff granted CIG's request to utilize the National Environmental Policy Act
(NEPA)Pre-Filing Process and assigned Docket No. PF06-36-000 to staff activities involving the CIG's expansion project. Now, as of the filing of CIG's application on April 27, 2007, the NEPA Pre-Filing Process for this project has ended. From this time forward, CIG's proceeding will be conducted in Docket No. CP07-207-000, as noted in the caption of this Notice. Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment
(EA)and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement
(FEIS)or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA. There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the below listed comment date, file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC. 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made with the Commission and must mail a copy to the applicant and to every other party in the proceeding. Only parties to the proceeding can ask for court review of Commission orders in the proceeding. However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest. Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order. Motions to intervene, protests and comments may be filed electronically via the Internet in lieu of paper; see, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the “e-Filing” link. The Commission strongly encourages electronic filings. *Comment Date:* May 29, 2007. Kimberly D. Bose, Secretary. [FR Doc. E7-9192 Filed 5-11-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. TS06-11-001] Wabash Valley Power Association, Inc.; Notice of Filing May 7, 2007. Take notice that on November 20, 2006, Wabash Valley Power Association, Inc. filed a response to the Commission's letter Order issued October 19, 2006, explaining that it does not have access to transmission, customer or market information covered by section 358, 18 CFR 358, of the Commission's regulations. Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant and all the parties in this proceeding. The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at *http://www.ferc.gov* . Persons unable to file electronically should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at *http://www.ferc.gov* , using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov* , or call
(866)208-3676 (toll free). For TTY, call
(202)502-8659. *Comment Date:* 5 p.m. Eastern Time on May 15, 2007. Kimberly D. Bose, Secretary. [FR Doc. E7-9190 Filed 5-11-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. OR07-9-000] BP West Coast Products LLC, Complainant v. SFPP, L.P., Respondents; Notice of Complaint May 7, 2007. Take notice that on May 3, 2007, pursuant to Rule 206 of the Federal Energy Regulatory Commission's (Commission) Rules and Practice and Procedure, section 343.3 of the Commission's Procedural Rules, sections 1(5), 8, 9, 13, 15, and 16 of the Interstate Commerce Act, and section 1803 of the Energy Policy Act of 1992, BP West Coast Products LLC (Complainant) filed a formal complaint against SFPP, L.P. (Respondent) requesting the Commission to review and reject the Respondent's Ultra Low Sulfur Diesel surcharge submitted to the Commission on March 1, 2007, in Docket No. IS07-137-000, alleging it is contrary to the Commission's regulations and is in violation of the doctrine of retroactive ratemaking. The Respondent also requests the Commission to handle this Complaint under its fast track procedures. The Complainant states that copies of the Complaint were served on the Respondent. Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. The Respondent's answer and all interventions, or protests must be filed on or before the comment date. The Respondent's answer, motions to intervene, and protests must be served on the Complainants. The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at *http://www.ferc.gov* . Persons unable to file electronically should submit an original and 14 copies of the protest or intervention to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. This filing is accessible on-line at *http://www.ferc.gov* , using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov* , or call
(866)208-3676 (toll free). For TTY, call
(202)502-8659. *Comment Date:* 5 p.m. Eastern Time on May 23, 2007. Kimberly D. Bose, Secretary. [FR Doc. E7-9191 Filed 5-11-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings # 1 May 7, 2007. Take notice that the Commission received the following electric corporate filings: *Docket Numbers* : EC07-83-000. *Applicants:* Old Lane Commodities, LP. *Description* : Old Lane Commodities LP submits application for authorization under section 203 of the FPA for disposition of jurisdictional facilities. *Filed Date:* 4/27/2007. *Accession Number:* 20070501-0276. *Comment Date:* 5 p.m. Eastern Time on Friday, May 18, 2007. *Docket Numbers:* EC07-84-000. *Applicants* : ESI Altamont Acquisitions, Inc.; ESI Bay Area, Inc.; U.S. Bank National Association. *Description* : ESI Altamont Acquisitions, Inc et al submit a joint application for authorization to acquire interests in Electric Utility Companies and Request for Expedited Action. *Filed Date:* 4/27/2007. *Accession Number:* 20070501-0278. *Comment Date:* 5 p.m. Eastern Time on Friday, May 18, 2007. *Docket Numbers:* EC07-85-000. *Applicants* : Montana Acquisition Company LLC; Centennial Energy Resources LLC; Centennial Power, Inc.; San Joaquin Cogen, L.L.C.; Mountain View Power Partners, LLC; Rocky Mountain Power, Inc.; Colorado Power Partners; BIV Generation Company, L.L.C.; Hartwell Energy Limited Partnership. *Description* : Montana Acquisition Company LLC, et al submit a joint application under section 203 of the FPA and Request for Expedited Action. *Filed Date:* 5/4/2007. *Accession Number:* 20070504-5080. *Comment Date:* 5 p.m. Eastern Time on Friday, May 25, 2007. Take notice that the Commission received the following exempt wholesale generator filings: *Docket Numbers* : EG07-48-000. *Applicants:* Lock 7 Hydro Partners, LLC. *Description* : Lock 7 Hydro Partners, LLC submits a self-certification notice of exempt wholesale generator status. *Filed Date:* 4/27/2007. *Accession Number:* 20070427-5033. *Comment Date:* 5 p.m. Eastern Time on Friday, May 18, 2007. Take notice that the Commission received the following electric rate filings: *Docket Numbers* : ER95-1787-019. *Applicants:* Texaco Natural Gas Inc. *Description* : Texaco Natural Gas Inc. submits a notice of Non-Material Change in the Status of Facilities Relied Upon In Triennial Market-Power Review. *Filed Date:* 5/1/2007. *Accession Number:* 20070501-5047. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers* : ER98-2640-018; ER01-205-020; ER98-4590-016; ER99-1610-024. *Applicants* : Northern States Power Company and Northern States Power Company (Wisconsin); Xcel Energy Services Inc.; Public Service Company of Colorado; Southwestern Public Service Company. *Description* : Northern States Power Co., et al submit a change in Status Report in Compliance Filing with Order 652. *Filed Date:* 5/4/2007. *Accession Number:* 20070503-5092. *Comment Date:* 5 p.m. Eastern Time on Friday, May 25, 2007. *Docket Numbers:* ER02-2536-004. *Applicants:* Bank of America, N.A. *Description* : Bank of America, N.A. submits a notice of Non-Material Change in Status. *Filed Date:* 5/2/2007. *Accession Number:* 20070502-5010. *Comment Date:* 5 p.m. Eastern Time on Wednesday, May 23, 2007. *Docket Numbers:* ER07-272-001; ER07-283-001. *Applicants:* Southwest Power Pool, Inc. *Description* : Southwest Power Pool Inc submits a supplemental filing, to their 12/1/06 filing of two executed service agreements for Network Integration Transmission Service with Kansas Power Pool. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0161. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-304-001. *Applicants:* Southwest Power Pool, Inc. *Description* : Southwest Power Pool Inc submits a supplemental filing to its 12/7/06 filing of an executed service agreement for Network Integration Transmission Service with Oklahoma Gas & Electric Company. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0160. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-419-002. *Applicants:* PPL Electric Utilities Corporation. *Description* : PPL Electric Utilities Corporation submits a supplement to its 3/26/07 response to FERC's 2/22/07 letter order. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0185. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-676-001. *Applicants:* Tampa Electric Company. *Description:* Tampa Electric Company submits an amendment to its 3/29/07 filing. *Filed Date:* 4/30/2007. *Accession Number:* 20070503-0159. *Comment Date:* 5 p.m. Eastern Time on Monday, May 21, 2007. *Docket Numbers:* ER07-713-001. *Applicants:* Florida Power & Light Company. *Description* : Florida Power & Light Co submits revised Original Sheets 506 and 507 to its 4/5/07 filing and submits a correction to its 5/2/07 filing on 5/3/07. *Filed Date:* 5/2/2007; 5/3/07. *Accession Number:* 20070504-0226. *Comment Date:* 5 p.m. Eastern Time on Wednesday, May 23, 2007. *Docket Numbers:* ER07-719-001. *Applicants:* Xcel Energy Operating Companies. *Description* : Xcel Energy Operating Companies submits a correction to its 4/5/07 filing. *Filed Date:* 4/30/2007. *Accession Number:* 20070503-0158. *Comment Date:* 5 p.m. Eastern Time on Monday, May 21, 2007. *Docket Numbers:* ER07-805-000. *Applicants:* California Independent System Operator Corporation. *Description* : California Independent System Operator Corp submits an amendment to the ISO Tariff re April 2007 NERC/WECC Charge Invoicing Amendment. *Filed Date:* 4/27/2007. *Accession Number:* 20070501-0314. *Comment Date:* 5 p.m. Eastern Time on Friday, May 18, 2007. *Docket Numbers:* ER07-807-000. *Applicants:* Deseret Generation & Transmission Co-operative, Inc. *Description* : Deseret Generation & Transmission Co-operative, Inc submits its annual Informational Filing setting forth updated approved costs for member-owned generation resources for 2007. *Filed Date:* 4/27/2007. *Accession Number:* 20070501-0315. *Comment Date:* 5 p.m. Eastern Time on Friday, May 18, 2007. *Docket Numbers:* ER07-808-000. *Applicants:* Epic Merchant Energy CA, LLC. *Description* : EPIC Merchant Energy CA, LLC submits a petition for acceptance of initial tariff, waiver and blanket authority. *Filed Date:* 4/27/2007. *Accession Number:* 20070501-0313. *Comment Date:* 5 p.m. Eastern Time on Friday, May 18, 2007. *Docket Numbers:* ER07-820-000. *Applicants:* American Electric Power Service Corporation. *Description* : American Electric Power Service Corporation agent for AEP Texas Central Company submits a restated and amended interconnection agreement with Central Power and Light Company. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0156. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-821-000. *Applicants:* American Electric Power Service Corporation. *Description* : The American Electric Power Service Corporation agent for the AEP Operating Companies submits a new Interconnection and Local Delivery Service Agreement with the City of Westerville Ohio. *Filed Date:* 5/1/2007 *Accession Number* : 20070503-0157. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-822-000. *Applicants:* New England Power Pool Participants Committee. *Description* : New England Power Pool Participants Committee submits the signature pages of the New England Power Pool Agreement dated 9/1/71, as amended and executed by Horizon Power and Light LLC et al. *Filed Date* : 5/1/2007. *Accession Number:* 20070503-0155. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-823-000. *Applicants:* Commonwealth Edison Company. *Description* : Commonwealth Edison Company submits Notices of Cancellation of FERC Electric Tariff Rates 26, 27, and 28, rate schedules. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0154. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-824-000. *Applicants:* Tampa Electric Company. *Description* : Tampa Electric Company submits its Sixth Revised Sheet 70 and 71 to its First Revised Rate Schedule 62, to become effective 5/1/07. *Filed Date:* 4/30/2007. *Accession Number:* 20070503-0153. *Comment Date:* 5 p.m. Eastern Time on Monday, May 21, 2007. *Docket Numbers:* ER07-825-000. *Applicants:* California Power Exchange Corporation. *Description* : The California Power Exchange Corporation submits proposed amendments to its Rate Schedule 1 in order to recover projected expenses for the period 7/1/07 through 12/31/07. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0152. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-826-000. *Applicants:* Northwestern Wisconsin Electric Company. *Description* : Northwestern Wisconsin Electric Co submits a proposed rate change, Sixth Revised Rate Schedule FERC 2, to be effective 5/1/07. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0170. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-827-000. *Applicants:* Montana Generation, LLC. *Description* : Montana Generation, LLC submits a power purchase agreement to sell power to NorthWestern Corporation. *Filed Date:* 5/1/2007 *Accession Number* : 20070503-0173. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-828-000. *Applicants:* Southwest Power Pool, Inc. *Description* : Southwest Power Pool, Inc submits an executed service agreement for Network Integration Transmission Service with Public Service Co of Oklahoma et al. *Filed Date* : 5/1/2007. *Accession Number:* 20070503-0172. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-829-000. *Applicants:* MidAmerican Energy Company. *Description* : MidAmerican Energy Company submits a Confirmation Letter dated 4/27/07 with Montezuma Municipal Light and Power Plant. *Filed Date:* 5/2/2007. *Accession Number:* 20070503-0151. *Comment Date:* 5 p.m. Eastern Time on Wednesday, May 23, 2007. *Docket Numbers:* ER07-830-000. *Applicants:* Southern California Edison Company. *Description* : Southern California Edison Company submits Third Revised Sheet 54 et al to the Amended and Restated Eldorado System Conveyance and Co-Tenancy Agreement with Nevada Power Co et al. *Filed Date* : 5/1/2007. *Accession Number:* 20070503-0150. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-831-000. *Applicants:* MidAmerican Energy Company. *Description:* MidAmerican Energy Company submits First Revised Sheet 14, 19, 24, 25 and Original Sheet 19A and 25a to First Revised Rate Schedule 82 with Northwest Iowa Power Cooperative dated 4/27/07 under ER07-831. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0149. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-832-000. *Applicants:* MidAmerican Energy Company. *Description:* MidAmerican Energy Company submits a Network Integration Transmission Service Agreement and Network Operating Agreement with Central Iowa Power Cooperative dated 4/27/07 etc. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0148. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-833-000. *Applicants:* Wisconsin Electric Power Company. *Description:* Wisconsin Electric Power Co submits its Amendment 3 to the Joint Operation Agreement with Edison Sault Electric Co. *Filed Date:* 5/2/2007. *Accession Number:* 20070504-0227. *Comment Date:* 5 p.m. Eastern Time on Wednesday, May 23, 2007. *Docket Numbers:* ER07-834-000. *Applicants:* New York Independent System Operator, Inc. *Description:* New York Independent System Operator, Inc submits a revision to the liability limitation provisions contained in its OATT and Market Administration and Control Area Services Tariff. *Filed Date:* 5/1/2007. *Accession Number:* 20070503-0232. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* ER07-836-000. *Applicants:* Long Beach Generation LLC. *Description:* Long Beach Generation, LLC submits a Power Purchase Tolling Agreement with Southern California Edison Co dated 11/10/06. *Filed Date:* 5/3/2007. *Accession Number:* 20070504-0253. *Comment Date:* 5 p.m. Eastern Time on Thursday, May 24, 2007. *Docket Numbers:* ER07-837-000. *Applicants:* Southern Company Services, Inc. *Description:* Southern Company Services, Inc agent for Alabama Power Company et al submits an informational filing under its Open Access Transmission Tariff, Fourth revised Volume 5. *Filed Date:* 5/1/2007. *Accession Number:* 20070504-0252. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. Take notice that the Commission received the following public utility holding company filings: *Docket Numbers:* PH07-12-000. *Applicants:* Carlyle/Riverstone Global Energy and Power Fund II, L.P. *Description:* FERC Form 65 B—Waiver Notification of Carlyle/Riverstone Global Energy and Power Fund II, L.P. *Filed Date:* 5/1/2007. *Accession Number:* 20070501-5077. *Comment Date:* 5 p.m. Eastern Time on Tuesday, May 22, 2007. *Docket Numbers:* PH07-13-000. *Applicants:* SEMGROUP, L.P.; SEMSTREAM, L.P. *Description:* FERC Form 65 B—Waiver Notification of SemGroup, L.P., and SemStream, L.P. as a Single State Holding Company System. *Filed Date:* 5/2/2007. *Accession Number:* 20070502-5013. *Comment Date:* 5 p.m. Eastern Time on Wednesday, May 23, 2007. *Docket Numbers:* PH07-14-000. *Applicants:* Ritchie Capital Management, L.L.C. *Description:* FERC Form 65 B Waiver Notification of Ritchie Capital Management. *Filed Date:* 5/2/2007. *Accession Number:* 20070502-5023. *Comment Date:* 5 p.m. Eastern Time on Wednesday, May 23, 2007. *Docket Numbers:* PH07-15-000. *Applicants:* Ritchie Capital Management, L.L.C. *Description:* FERC Form 65 A Exemption Notification of Ritchie Capital Management. *Filed Date:* 5/2/2007. *Accession Number:* 20070502-5022. *Comment Date:* 5 p.m. Eastern Time on Wednesday, May 23, 2007. Any person desiring to intervene or to protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and § 385.214) on or before 5 p.m. Eastern time on the specified comment date. It is not necessary to separately intervene again in a subdocket related to a compliance filing if you have previously intervened in the same docket. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant. In reference to filings initiating a new proceeding, interventions or protests submitted on or before the comment deadline need not be served on persons other than the Applicant. The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at *http://www.ferc.gov.* To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests. Persons unable to file electronically should submit an original and 14 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First St., NE., Washington, DC 20426. The filings in the above proceedings are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed dockets(s). For assistance with any FERC Online service, please e-mail *FERCOnlineSupport@ferc.gov.* or call
(866)208-3676 (toll free). For TTY, call
(202)502-8659. Kimberly D. Bose, Secretary. [FR Doc. E7-9193 Filed 5-11-07; 8:45 am] BILLING CODE 6717-01-P ENVIRONMENTAL PROTECTION AGENCY [FRL-8314-3] California State Motor Vehicle Pollution Control Standards; California Heavy-Duty On-Highway Otto-Cycle Engines and Incomplete Vehicles Regulations; Within-the-Scope Request; Opportunity for Public Hearing AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of opportunity for public hearing and comment. SUMMARY: The California Air Resources Board
(CARB)has notified EPA that it has adopted amendments to the California heavy-duty otto-cycle regulations for 2004, 2005 through 2007, and for the 2008 and subsequent model years. Three different emissions standards apply to the 2004, 2005-2007, and 2008 model years respectively. By letter dated December 7, 2005, CARB submitted a request seeking EPA confirmation that its amendments affecting these model years be considered within-the-scope of previously granted waivers of preemption under section 209(b) of the Clean Air Act (CAA), 42 U.S.C. 7543(b). This notice announces that EPA has tentatively scheduled a public hearing concerning California's request and that EPA is accepting written comment on the request. DATES: EPA has tentatively scheduled a public hearing concerning CARB's request on June 13, 2007 beginning at 10 a.m. EPA will hold a hearing only if a party notifies EPA by June 4, 2007, expressing its interest in presenting oral testimony. By June 8, 2007, any person who plans to attend the hearing should call David Dickinson at
(202)343-9256 to learn if a hearing will be held. If EPA does not receive a request for a public hearing, then EPA will not hold a hearing, and instead consider CARB's request based on written submissions to the docket. Any party may submit written comments by July 13, 2007. ADDRESSES: EPA will make available for public inspection at the Air and Radiation Docket and Information Center written comments received from interested parties, in addition to any testimony given at the public hearing. The official public docket is the collection of materials that is available for public viewing at the Air and Radiation Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 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 and Radiation Docket is
(202)566-1743. The reference number for this docket is EPA-HQ-OAR-2006-0018. Parties wishing to present oral testimony at the public hearing should provide written notice to David Dickinson at the address noted below. If EPA receives a request for a public hearing, EPA will hold the public hearing at 1310 L St., NW., Washington, DC 20005 at 10 a.m. FOR FURTHER INFORMATION CONTACT: David Dickinson, Compliance and Innovative Strategies Division (6405J), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave, NW., Washington, DC 20460. Telephone:
(202)343-9256, Fax:
(202)343-2804, e-mail address: *Dickinson.David@EPA.GOV* . *Obtaining Electronic Copies of Documents:* Submit your comments, identified by Docket ID No. EPA-HQ-2005-0133, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: dickinson.david@epa.gov* . • *Fax:*
(202)343-2804. • *Mail:* U.S. Environmental Protection Agency, EPA West (Air Docket), 1200 Pennsylvania Ave., NW., Room B108, Mail Code 6102T, Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2005-0133. Please include a total of two copies. • *Hand Delivery:* EPA Docket Center, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No EPA-HQ-OAR-2005-0133. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *http://www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. Docket: All documents in the docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. SUPPLEMENTARY INFORMATION:
(A)*Background and Discussion:* Section 209(a) of the Clean Air Act, as amended (”Act”), 42 U.S.C. 7543(a), provides: No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No state shall require certification, inspection or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment. Section 209(b)(1) of the Act requires the Administrator, after notice and opportunity for public hearing, to waive application of the prohibitions of section 209(a) for any state that has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the state determines that the state standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards. California is the only state that is qualified to seek and receive a waiver under section 209(b). The Administrator must grant a waiver unless he finds that
(A)the determination of the state is arbitrary and capricious,
(B)the state does not need the state standards to meet compelling and extraordinary conditions, or
(C)the state standards and accompanying enforcement procedures are not consistent with section 202(a) of the Act. When EPA receives new waiver requests from CARB, EPA traditionally publishes a notice of opportunity for public hearing and comment and then publishes a decision in the **Federal Register** following the public comment period. In contrast, when EPA receives within the scope waiver requests from CARB, EPA usually publishes a decision in the **Federal Register** and concurrently invites public comment if an interested party is opposed to EPA's decision. Although CARB has submitted a within the scope waiver request, EPA invites comment on the following issues: Whether California's standards, within the context of a within the scope analysis
(a)Undermine California's previous determination that its standards, in the aggregate, are at least as protective of public health and welfare as comparable Federal standards,
(b)affect the consistency of California's requirements with section 202(a) of the Act, and
(c)raise new issues affecting EPA's previous waiver determinations. Please also provide comment that if CARB's standards were not found to be within the scope of previous waivers and instead required a full waiver analysis, whether
(a)CARB's determination that its standards, in the aggregate, are at least as protective of public health and welfare as applicable federal standards is arbitrary and capricious,
(b)California needs separate standards to meet compelling and extraordinary conditions, and
(c)California's standards and accompanying enforcement procedures are consistent with section 202(a) of the Act. Procedures for Public Participation In recognition that public hearings are designed to give interested parties an opportunity to participate in this proceeding, there are no adverse parties as such. Statements by participants will not be subject to cross-examination by other participants without special approval by the presiding officer. The presiding officer is authorized to strike from the record statements that he or she deems irrelevant or repetitious and to impose reasonable time limits on the duration of the statement of any participant. If a hearing is held, the Agency will make a verbatim record of the proceedings. Interested parties may arrange with the reporter at the hearing to obtain a copy of the transcript at their own expense. Regardless of whether a public hearing is held, EPA will keep the record open until July 13, 2007. Upon expiration of the comment period, the Administrator will render a decision on CARB's request based on the record of the public hearing, if any, relevant written submissions, and other information that he deems pertinent. Persons with comments containing proprietary information must distinguish such information from other comments to the great possible extent and label it as “Confidential Business Information” (CBI). If a person making comments want EPA to base its decision in part on a submission labeled CBI, then a non-confidential version of the document that summarizes the key data or information should be submitted for the public docket. To ensure that proprietary information is not inadvertently placed in the docket, submissions containing such information should be sent directly to the contact person listed above and not to the public docket. Information covered by a claim of confidentiality will be disclosed by EPA only to the extent allowed and by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies the submission when EPA receives it, EPA will make it available to the public without further notice to the person making comments. Dated: May 8, 2007. Elizabeth Craig, Acting Assistant Administrator, Office of Air and Radiation. [FR Doc. E7-9207 Filed 5-11-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OECA-2007-0291; FRL-8309-2] Enhancing Environmental Outcomes From Audit Policy Disclosures Through Tailored Incentives for New Owners; Notice AGENCY: Environmental Protection Agency. ACTION: Notice; request for comment. SUMMARY: The Environmental Protection Agency (“EPA” or “the Agency”) requests comment on whether and to what extent the Agency should consider offering tailored incentives to encourage new owners of regulated entities to discover, disclose, correct, and prevent the recurrence of environmental violations. The Agency is considering whether actively encouraging such disclosures has the potential to yield significant environmental benefit, since new owners may be particularly well-situated and highly motivated to focus on, and invest in, making a clean start for their new facilities by addressing environmental noncompliance. Any tailored incentives for new owners would be beyond those offered as EPA is currently implementing EPA's April 11, 2000 policy on “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations,” commonly referred to as the “Audit Policy” (65 FR 19618). These incentives would be designed to enhance implementation of the Audit Policy and encourage its use in the new owner context, but would not constitute a change to the Policy overall. After the comment period closes, the Agency plans to review all comments and decide whether to develop a pilot program to test the policy of offering tailored incentives to encourage new owners to self-audit and disclose under the Audit Policy. Should the Agency decide to proceed, EPA would then publish a second **Federal Register** notice to seek comment on a proposed pilot program. After a second round of public comment, the Agency would publish in the **Federal Register** : The final description of the pilot program; an announcement of its start date; and a description of how its success in achieving increased self-auditing and disclosure and significant improvement to the environment will be evaluated. DATES: EPA urges interested parties to comment in writing on the issues raised in this notice. Comments must be received by EPA at the address below no later than July 13, 2007. Comments may also be communicated orally at two public meetings EPA will hold during the comment period. The first meeting is scheduled for Washington, DC at the J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW., on June 12, 2007. The second one is scheduled for San Francisco at the Palace Hotel, 2 New Montgomery St., on June 20, 2007. Both meetings will begin at 10 a.m. and end at 4 p.m. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2007-0291, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: docket.oeca@epa.gov* , Attention Docket ID No. EPA-HQ-OECA-2007-0291. • *Fax:*
(202)566-9744, Attention Docket ID No. EPA-HQ-OECA-2007-0291. • *Mail:* Enforcement and Compliance Docket Information Center, Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OECA-2007-0291. • *Hand Delivery:* Enforcement and Compliance Docket Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B 3334, 1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center 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 Reading Room is
(202)566-1744, and the telephone number for the Enforcement and Compliance Docket is
(202)566-1927. 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-OECA-2007-0291. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov.* 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 Enforcement and Compliance Docket Information Center in the EPA Docket Center (EPA/DC), EPA West, Room B 3334, 1301 Constitution Avenue, NW., Washington, DC. The EPA Docket Center 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 Reading Room is
(202)566-1744, and the telephone number for the Enforcement and Compliance Docket is
(202)566-1927. FOR FURTHER INFORMATION CONTACT: For further information, contact Caroline Makepeace of EPA's Office of Civil Enforcement, Special Litigation and Projects Division, at
(202)564-6012 or *makepeace.caroline@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Introduction On April 11, 2000, EPA issued its revised final policy on “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations,” commonly referred to as the “Audit Policy” (65 FR 19618). The purpose of the Audit Policy is to enhance protection of human health and the environment by encouraging regulated entities to voluntarily discover, disclose, correct and prevent the recurrence of violations of Federal environmental law. Benefits available to entities that make disclosures under the terms of the Audit Policy include reductions in the amount of civil penalties and a determination not to recommend criminal prosecution of disclosing entities. The Audit Policy program has been a successful effort to date, resolving disclosed violations with over 3,000 entities. However, more than half of these disclosures have involved reporting violations which, while important for public information and safety purposes, may not produce significant reductions in pollutant emissions once the violations are corrected. Consistent with EPA's strategic plan, the Agency's goal is to increase the number of self-disclosures that have the potential to yield significant environmental benefits while effecting compliance with Federal environmental requirements. EPA's recent experience with corporate-wide auditing agreements following a corporate merger or acquisition has heightened the Agency's interest in exploring whether encouraging new owners of regulated facilities to discover, disclose, correct, and prevent the recurrence of environmental violations would help EPA meet this goal. New owners may be particularly well-situated and highly motivated to invest in making a “clean start” for their new facilities by: Doing thorough self-audits of their new facilities; disclosing any violations found; promptly correcting the violations; and making the substantial improvements that will enhance their ability to remain in compliance going forward. Nevertheless, certain disincentives may stand in the way of new owners that may be interested in taking these steps, and there may be equitable reasons for considering particular incentives to encourage self-auditing and disclosure at the time a new owner takes control. The Agency is interested in developing this idea because of its potential to enhance EPA's efforts to effectively utilize scarce government resources by securing significant environmental improvement as quickly as possible. The Agency is also interested in whether offering tailored incentives in the new owner context may have unintended adverse consequences with respect to, for example, discouraging appropriate due diligence, timely compliance and a level playing field, or other negative effects. The Agency seeks comment on the potential for any positive or negative results that might come from providing such tailored incentives. The Agency also requests comment on how EPA could most efficiently determine who is a bona-fide new owner, and how the Agency should evaluate whether such incentives are successful in securing the prompt correction of environmental violations and significant improvement to the environment. While EPA does not intend to amend the Audit Policy, the Agency is considering ways to enhance its implementation and encourage its greater use in new owner situations, particularly with regard to the disclosure and correction of violations that may yield significant pollutant reductions. Today, EPA issues this Notice signaling its intent to consider offering tailored incentives to self-report under the current Audit Policy for new owners of regulated facilities. The purpose of this notice is to
(1)solicit information to be used in helping EPA better understand and formulate decisions about key issues; and
(2)provide notification of open meetings at which EPA hopes to hear from the public on these issues. Copies of the Agency's current Audit Policy may be found on the EPA's Web site at *http://www.epa.gov/compliance/incentives/auditing/auditpolicy.html.* B. Background and History of the Audit Policy 1. Overview of the Audit Policy The Audit Policy provides incentives for regulated entities to detect, promptly disclose, expeditiously correct, and prevent the recurrence of violations of federal environmental requirements. The Audit Policy contains nine conditions, and entities that meet all of them are eligible for 100% mitigation of any gravity-based civil penalties that otherwise could be assessed in settlement. (“Gravity-based” penalty refers to that portion of the civil penalty over and above the portion that represents the entity's economic gain from noncompliance, known as the “economic benefit.”) Regulated entities that do not meet the first condition—systematic discovery of violations—but meet the other eight conditions are eligible for 75% mitigation of any gravity-based penalties. For criminal matters, EPA will generally elect not to recommend criminal prosecution by the Department of Justice (“DOJ”) or any other prosecuting authority for a disclosing entity that meets at least conditions two through nine (i.e., regardless of whether it meets the systematic discovery requirement) as long as its self-policing, discovery and disclosure were conducted in good faith and the entity adopts a systematic approach to preventing recurrence of the violation. The Audit Policy includes important safeguards to deter violations and protect the environment. For example, the Audit Policy requires entities to act to prevent recurrence of violations and to remedy any environmental harm that may have occurred. Repeat violations, those that result in actual harm to the environment, and those that may present an imminent and substantial endangerment are not eligible for relief under the Audit Policy. Entities and individuals also remain criminally liable for violations that result from conscious disregard of or willful blindness to their obligations under the law. The Audit Policy and related documents are available on the Internet at *http://www.epa.gov/compliance/incentives/auditing/auditpolicy.html* . Additional guidance for implementing the Policy in the context of criminal violations can be found at *http://www.epa.gov/compliance/resources/policies/incentives/auditing/auditcrimvio-mem.PDF* . 2. How EPA Implements its Voluntary Disclosure Programs EPA's voluntary disclosure policies 1 are designed to provide major incentives for regulated entities that voluntarily discover, promptly disclose, and expeditiously correct violations, rendering formal EPA investigation and enforcement action unnecessary in most instances. The policies safeguard human health and the environment by providing incentives for regulated entities to come into compliance with the federal environmental laws and regulations, and enable efficient use of scarce government resources. 1 Besides the Audit Policy, EPA also implements another voluntary disclosure policy: The Small Business Compliance Policy (65 FR 19630), published April 11, 2000. Most self-disclosures come into the Agency on a single facility basis. However, the Agency sometimes enters into an audit agreement under which the disclosing entity commits to undertake a comprehensive multimedia audit that will be conducted at a number of its facilities over an agreed-upon time frame. Corporate auditing agreements allow companies to plan a corporate-wide audit with advance understanding between the company and EPA regarding the scope of the audit, schedules (audit, reporting, and correction of violations), whether resolution will be judicial or administrative, and any other expectations. Such agreements also offer the potential for significant environmental benefit while providing greater certainty to companies about their environmental liabilities. Thus, EPA encourages companies with multiple facilities to take advantage of the Agency's Audit Policy through use of such corporate auditing agreements. Once a regulated entity notifies EPA, in writing, of potential violations, EPA evaluates the discovery, disclosure, and correction of the violations against the criteria set forth in the Audit Policy, or if applicable, the Small Business Compliance Policy, and determines the appropriate enforcement response. If the disclosure does not meet the conditions of the applicable policy or the disclosing entity does not provide sufficient information to EPA to allow the Agency to make this determination, then the matter is handled under the appropriate medium-specific penalty policies, which often accommodate penalty mitigation for voluntary disclosures. The enforcement response for the vast majority of voluntary disclosures is a Notice of Determination (“NOD”) for cases involving no assessment of penalties. EPA retains its discretion to assess any economic benefit that may have been realized as a result of noncompliance. If the regulated entity has gained significant economic benefit, or if it failed to meet all the conditions of the applicable policy, then a civil penalty may be sought in an administrative or judicial action. Overall, the Agency's voluntary disclosure programs continue to have positive results. The Audit and Small Business Compliance Policies have encouraged voluntary self-policing while preserving fair and effective enforcement and their use has been widespread. As of October 1, 2006, regulated entities and organizations have resolved actual or potential violations at 9,255 facilities. Thus, the solicitation of comments on tailored incentives for new owners does not signal any intention to shift course regarding the Agency's position on self-policing and voluntary disclosures, but instead represents an attempt to enhance implementation of the Audit Policy, and encourage its increased use in the new owner context. As mentioned in the Introduction, EPA's interest in exploring this approach stems in part from recent experiences in the Agency's current implementation of the Audit Policy. In the last few years, EPA has entered into corporate auditing agreements with several companies following a merger or acquisition valued at over $1 billion. These corporate auditing agreements provided a unique opportunity for companies to use self-disclosures to make a “clean start” with regard to environmental compliance. The Agency recognizes that taking steps to further encourage audit agreements in this context could offer the potential to garner significant environmental benefit. 3. How the Audit Policy Currently Applies to New Owners On April 30, 2007, EPA issued the “Audit Policy: Frequently Asked Questions (2007)” which recognizes that owners of newly acquired facilities are uniquely situated to examine and improve performance at newly acquired facilities. Specifically, the 2007 Frequently Asked Questions provides that: • New owners may be eligible for penalty mitigation under the Audit Policy for violations at newly acquired facilities which are discovered as part of a compliance examination agreed to be undertaken prior to the 1st annual certification under Title V of the Clean Air Act, or which are disclosed before that time. Generally, Clean Air Act
(CAA)violations discovered during activities supporting Title V certification requirements are not eligible for penalty mitigation under the Policy. Condition 2 of the Audit Policy requires that disclosed violations must not be discovered through a legally mandated monitoring or sampling requirement prescribed by statute or regulation; therefore, examination of CAA compliance accompanying a Title V annual certification is not voluntary. 2 However, EPA wants to encourage new owners to examine facility operations to determine compliance, correct violations, and upgrade deficient equipment and practices. Thus, for new owners that in good faith undertake such efforts and inform the Agency of such actions, either by disclosure in writing or entry into an audit agreement with EPA prior to submission of the facility's first annual Title V certification under new ownership, the violations disclosed would be considered voluntarily discovered for purposes of the Audit Policy. 2 Under the regulations governing CAA Title V permit applications and annual compliance certifications, any application, form, report or compliance certification is required to contain a certification by a responsible official of the truth, accuracy and completeness of information contained in such documents. The regulations further provide that “[t]his certification and any other certification required under this part shall state that, based on information and belief formed after reasonable inquiry, the statements and information in the document are true, accurate, and complete.” 40 CFR 70.5(d). The 2007 Frequently Asked Questions also provides that: • New owners may be eligible for penalty mitigation under the Audit Policy for violations at newly acquired facilities irrespective of the disclosing entity's compliance history at other facilities. EPA's primary interest is to encourage owners of newly acquired facilities to undertake a comprehensive examination of and improvements to a facility's environmental compliance and its compliance management systems. Notwithstanding a new owner's history of violations at its other facilities, if its efforts to examine and improve upon an acquired facility's environmental operations are thorough and are likely to result in improved compliance, EPA's intent is to encourage such examinations. The Audit Policy: Frequently Asked Questions
(2007)can be found on the Internet at *http://www.epa.gov/compliance/incentives/auditing/auditpolicy.html* . C. Role of Benefit Recapture in the Auditing Context The imposition of civil penalties that recapture the economic benefit of noncompliance is the cornerstone of the EPA's civil penalty program. Benefit recapture was adopted in 1984, and it has served the Agency and the public well. Benefit recapture has also been a part of the Audit Policy since it was first issued, on the premise that, even in self-audit and disclosure situations, penalties should not be reduced below the level necessary to recapture economic benefit when a violator has achieved an economic advantage over its complying competitors. Accordingly, the Audit Policy provides that EPA reserves the right to assess any economic benefit which may have been realized as a result of noncompliance, even where the entity meets all other Audit Policy conditions. The Audit Policy further provides that the Agency may also waive the economic benefit component of the penalty where the Agency determines that the economic benefit is insignificant (65 FR 19620). Violators obtain an economic benefit from violating the law by delaying compliance, avoiding compliance or obtaining an unfair competitive advantage. When violators delay compliance, they have the use of the money that should have been spent on compliance to put into profit-making investments. Put simply, violators “gain” the interest on the amount of money that should have been invested in pollution control equipment. A typical example is where a factory delays installation of a required waste water treatment facility. If the waste water treatment facility costs $1,000,000 to install, and the violator waits three years past the required date to comply, the violator has saved about $236,000 by delaying compliance. 3 3 This number was generated by the current version of the BEN computer model using the following assumptions:
(1)The violator was in the average maximum tax bracket;
(2)the violator's cost of money (i.e., the discount/compound rate) was 7.9%; and
(3)inflation was based on the Plant Cost Index published in Chemical Engineering magazine. The BEN computer model can be found at *http://www.epa.gov/compliance/civil/econmodels/index.html* . A second type of economic benefit is derived when a violator not only delays but avoids the costs it would have incurred if it had complied in a timely manner. A typical example would be where a factory avoids the operation and maintenance costs for the above-mentioned waste water treatment plant for the three years the polluter was out of compliance. If the facility's annual operation and maintenance costs are $100,000, then the violator probably saved about $200,000 by avoiding the operation and maintenance costs for three years (again assuming the violator is in the top tax bracket). The third type of economic benefit is derived from the violator obtaining an unfair competitive advantage. For example, where a violator is selling banned products (e.g., DDT), any money made from the sale of this banned pesticide would be illegal. 4 4 For a more detailed discussion of how economic benefit is created, *see* **Federal Register** Notice of August 25, 2005, entitled “Calculation of the Economic Benefit of Noncompliance in EPA's Civil Penalty Enforcement Cases” (70 FR 50326). D. Why is EPA Currently Considering Tailoring Incentives for Audit Policy Disclosures for New Owners of Regulated Entities? As previously stated, one of EPA's main goals is to secure the prompt correction of environmental violations and achieve significant improvements to the environment as expeditiously as possible. A number of factors, including the Agency's recent experience with corporate auditing agreements following large mergers and acquisitions, have highlighted the promising opportunity presented by encouraging new owners of regulated facilities to discover, disclose, correct, and prevent the recurrence of environmental violations. It is reasonable to surmise that new owners may be particularly well-situated and highly motivated to focus on and invest in making a “clean start” for their new facilities and thus may be willing to conduct thorough self-audits of their new facilities, disclose any violations found, promptly correct the violations, and make the significant improvements that will enhance compliance going forward. If former owners were not timely about a facility's compliance obligations, the new owners may want to make a clean break with the past and get their newly acquired facilities into compliance promptly. It is possible that new owners may see the benefits of quickly assessing and working to limit their company's liability, and a firm with a widely-respected compliance record may want to ensure that any new acquisition develops a similarly positive record. Although some anecdotal accounts suggest that, in recent years, new owners have often had to make purchasing decisions based upon more limited information about environmental compliance issues than may have been available in the past, there has likely been at least some opportunity for pre-acquisition due diligence review. Even somewhat limited due diligence findings could help trigger a new owner's interest in more comprehensively assessing the facility's environmental status and exposure. New facility managers may also have access to new infusions of capital, which could enable the sort of improvements that yield significant benefit to the environment. The Agency recognizes, however, that certain disincentives may stand in the way of new owners who are interested taking advantage of the Audit Policy. New owners may still have to pay substantial civil penalties under the Audit Policy, as only the gravity portion of the penalty can currently be mitigated. It stands to reason that new owners may be uncomfortable about calling EPA's attention to compliance issues at their newly acquired facilities when they themselves may not be fully aware of all the compliance issues presented. Particularly when many and/or complex facilities are involved, it may indeed be difficult for new owners to have a reasonable idea of the full spectrum of compliance issues. In addition, the Agency's experience with implementing the Audit Policy, especially with regard to corporate auditing agreements, suggests that one of the major reasons a company may be hesitant to self-audit and disclose under the Audit Policy is uncertainty about how the Agency will treat such self-disclosures. One of the Agency's current goals is to provide greater overall certainty and consistency in the Audit Policy's implementation, and the recently-issued Audit Policy: Frequently Asked Questions
(2007)should help to resolve such concerns generally. Nevertheless, there is likely still some hesitation on the part of new owners to self-disclose violations, because they worry about exactly how such disclosures will be handled by the Agency. Encouraging new owners with tailored incentives that help address some of their concerns or alleviate some of their costs, in the context of a well-defined program that provides greater certainty about the handling of disclosures, may make the difference in their willingness to come forward and to commit to improving their environmental compliance and reducing their environmental footprint. There is a strong equitable argument that a new owner should not be penalized for economic benefit relating to violations that arose when a facility was not under the new owner's control, if that new owner is willing to promptly address violations and make changes to ensure the facility stays in compliance in the future. The Agency is also interested in exploring the idea of tailored incentives because it may present an opportunity to enhance EPA's efforts to effectively utilize scarce government resources, by securing high quality environmental improvements and achieving the most significant environmental benefit more quickly than might otherwise occur. Nevertheless, the Agency is also aware that such incentives may have unintended adverse consequences with respect to, for example, discouraging appropriate due diligence, timely compliance and a level playing field, or other negative effects, and EPA intends to consider the potential for such negative results as well. E. Objectives of Any Potential Pilot Program If, after review and consideration of all comments on this concept and on any draft incentive policy, the Agency decides it makes sense to test the approach of tailoring incentives to encourage new owners to utilize the Audit Policy, EPA would then develop a pilot program. Such a pilot program would be evaluated after three years and would be designed with four main objectives in mind: 1. The program should increase the number of self-audits and disclosures that yield significant environmental benefits. 2. The program should be transparent and straightforward. There should be clarity about the program's goals and how the Agency will handle those firms that self-audit and disclose violations, and the program should have sufficient safeguards to ensure that only bona-fide new owners participate. 3. The program should be efficient to administer. EPA must develop a program that can be effective with the limited resources available to administer it. For instance, EPA does not envision analyzing the various financial details of each merger or acquisition. 4. The program should also have minimal transaction costs for the regulated entities participating in the program. While the compliance costs for the firms participating may be substantial, the actual participation in the program should be cost-effective. II. Issues The Agency is seeking comment limited to:
(1)Whether EPA should offer tailored incentives to encourage new owners of regulated entities to discover, disclose, correct and prevent environmental violations;
(2)how should the Agency determine who is a new owner;
(3)what incentives should the Agency consider offering in order to encourage new owners to self-audit and disclose; and
(4)if such tailored incentives are offered, what measures should the Agency use in determining whether and to what extent self-audits and disclosures from new owners are achieving significant improvements to the environment. A. Should the Agency Offer Tailored Incentives to Encourage New Owners of Regulated Entities to Self-Audit and Disclose Violations? Are tailored incentives needed and/or appropriate to encourage self-audits and disclosures by new owners of regulated entities? Do the circumstances of new ownership warrant special consideration or handling, if the new owner was not responsible for creating a violation and there exists potentially significant environmental benefit that could result from new owners' disclosures and correction of violations? Or, does the Audit Policy as currently implemented already offer sufficient incentives to induce new owners to undertake self-audits and disclosures? 1. Due Diligence in Mergers and Acquisitions Anecdotal accounts suggest that, in today's merger and acquisition market, acquiring firms often have to make decisions about a target acquisition under tight deadlines and with relatively minimal information about an entity's environmental compliance status or problems. These accounts indicate that the traditional paradigm of assuming that due diligence review will yield full knowledge to the purchaser about any potential acquisition may not be accurate in many current mergers and acquisitions. EPA suspects that the amount of environmental compliance due diligence varies greatly depending on the industrial sector involved, or on whether a certain target facility's or company's environmental compliance is likely to present an important or material issue (e.g., environmental compliance would be more germane to the purchase of a chemical company than of a financial services firm). EPA seeks comment on the extent to which pre-acquisition due diligence reviews reveal environmental noncompliance (as opposed to environmental contamination and remedial liability). Providing tailored incentives to self-audit and disclose could potentially improve environmental compliance in these situations by encouraging in-depth auditing after purchase. On the other hand, providing such incentives could cause sellers to further delay or avoid compliance (i.e., a firm might be tempted to sell off a unit to another business in its noncompliant state rather than bring that unit into compliance), or could have the unintended effect of encouraging buyers to perform inadequate due diligence. EPA seeks comment on whether it would be appropriate to require that new owners have performed a certain level of pre-acquisition due diligence to qualify for tailored incentives, and if so, what that level should be? The Agency also seeks comment on the potential effects on environmental compliance and on due diligence reviews that might result from offering tailored incentives for new owners. 2. Purchase Price Calculation If, as the anecdotal reports mentioned above would indicate, the due diligence that potential buyers perform may have substantial gaps with regard to information about environmental compliance issues, what is the effect on acquisition negotiations? If an acquiring company had perfect information, presumably it would adjust its offered purchase price to account for any anticipated environmental liabilities associated with the target firm. But, without good information, the buyer's offer may not reflect adjustments for the cost of environmental noncompliance. EPA seeks comment on the extent to which environmental noncompliance liabilities (as distinguished from environmental remediation liabilities) are reflected in purchase price, and whether tailored incentives should take this into account. 3. Indemnification Agreements Between Purchaser and Seller The Agency is aware that, in acquisition situations, sellers may indemnify purchasers across a broad range of issues, including environmental liability. If a selling firm has indemnified the purchaser for violations which are ultimately disclosed by the new owner, are tailored incentives to self-report needed at all? On the other hand, the mere existence of an indemnification agreement does not insulate the purchaser from liability. Given the Agency's interest in encouraging appropriate accountability and buyer/seller agreements on environmental compliance issues, how should EPA take indemnification agreements into account in designing any tailored incentives? Should the existence or terms of an indemnification agreement have any bearing on a new owner's eligibility for tailored incentives and, if so, how? The Agency seeks comment on all the questions above. 4. Other Requirements for Incentives Should the Agency consider other eligibility criteria or participation requirements if a program to offer tailored incentives is developed? B. What Constitutes a “New Owner” for Purposes of Being Offered Tailored Incentives under the Audit Policy? If EPA develops a pilot program offering incentives to new owners, the Agency's goal would be to ensure that only bona-fide new owners can participate. There should be no possibility that a firm could evade significant environmental liabilities by making superficial changes designed to make it appear as if the regulated entity has a new owner. The Agency believes that, in the context of eligibility for tailored incentives, only “arm's length” transactions can produce “new owners.” However, the Agency does not have the resources necessary to delve into complex corporate structures and histories to make determinations about the authenticity of new ownership in the context of such Audit Policy self-disclosures. The Agency seeks comment on a clear, straightforward and easily administered approach to determining “new ownership” and eligibility for tailored incentives, and on the specific questions posed below. 1. What should a company need to provide to demonstrate to the Agency that it is a bona-fide “new owner?” What should the standard be, to demonstrate “new ownership” in this context? Should the Agency require each company to self-certify to the government that it is indeed a bona-fide new owner, and eligible for tailored incentives? If a self-certification is appropriate in this situation, what should it contain? Should other proof be offered along with the self-certification? 2. How long after an acquisition is an owner still “new” for the purpose of being offered tailored incentives? The Agency is seeking a clear approach to use in making such determinations. While EPA wants to encourage new owners to avail themselves of this process, there must be a time limit for the new owners to address environmental violations that began prior to their assuming ownership. Otherwise, the Audit Policy's goal of encouraging regulated entities to self-audit and promptly correct noncompliance could be undermined. 3. How should the Agency treat different acquisition transactions? Should the Agency make any distinctions between acquisitions and mergers? How should EPA handle disclosures by reorganized companies that emerge from Chapter 11 bankruptcy? Should companies in which the controlling interest is purchased by a new firm with no plans to participate in management or operations be eligible for incentives? How should the Agency treat companies that are purchased by their employees, who were employed by the company when noncompliance began? C. What Incentives Should the Agency Consider to Encourage New Owners to Self-Disclose? EPA is also inviting comment on what tailored incentives might be appropriate to encourage self-auditing and disclosures from new owners. EPA has identified three major potential incentives:
(1)Reducing civil penalties beyond what the current Audit Policy provides, by reducing any economic benefit portion of the penalty;
(2)allowing Audit Policy consideration of violations which would otherwise be ineligible, because their discovery is legally mandated and thus not discovered voluntarily; and
(3)providing recognition from the Agency to new owners who self-audit and disclose under the Audit Policy. EPA is seeking comment on these three possible incentives as well as on any alternative approaches that might be effective. Commenters suggesting other incentives are requested to clearly describe those incentives and how they would function in the Audit Policy context. In addition, there are some specific questions associated with the three potential incentives suggested above on which EPA is seeking comment: 1. How should economic benefit be calculated for disclosures by new owners? a. When should the clock start running when calculating economic benefit? The current practice is to calculate economic benefit forward from the date a violation first occurred. This method can result in benefit calculations so large that they serve as a disincentive to self-report, especially in the context of certain types of statutory violations, which may be longstanding and require multi-million dollar capital and operating cost expenditures to remedy. Additionally, most new owners would be averse to paying significant economic benefit amounts when they were not in control of the facility when the violations occurred and had little or no knowledge of them at the time of purchase. An alternative method of calculating benefit in the new owner context would be to commence calculating economic benefit from the date the facility was acquired; another possibility might be to use the date the post-acquisition audit was completed. If the latter, how long should a new owner be given to complete the audit? Another approach might be to give the new owner a reasonable time after acquisition to put on controls, particularly where those controls are complex, and to calculate benefits for delays beyond the reasonable period. b. Should the economic benefit calculation take into account whether and the extent to which the seller has indemnified the buyer? As discussed above, in Section II.A.3.of this Notice, the Agency is aware that, in many acquisition situations, the seller has indemnified the new owner from liability from a whole host of issues, often including certain environmental liabilities. The Agency seeks comment specifically on whether such indemnification arrangements should have any bearing on the calculation of penalties for economic benefit, as a potential incentive. c. In calculating economic benefit, should the Agency allow the new owner to offset the cost of the audit? Some self-audits can be expensive, particularly for large, complex facilities. One incentive might be to offset the cost of the audit from the economic benefit calculation. A fair, objective and efficient way of establishing the cost of the audit would be critical to this approach, especially when an audit has been performed by the company itself, rather than by an outside third-party auditor. 2. Should EPA allow consideration under the Audit Policy of violations which might otherwise be excluded, when the disclosures come from new owners? As described in Section I.B.3.of this Notice, EPA's recently issued Audit Policy: Frequently Asked Questions
(2007)makes new owners eligible for Audit Policy penalty mitigation for violations at newly acquired facilities, when the violations are discovered as part of a compliance examination agreed to be undertaken prior to the first annual certification under Title V of the Clean Air Act, or are disclosed to EPA before that time. An additional suggested incentive is to allow consideration under the Audit Policy of certain other violations (e.g., Risk Management Program
(RMP)under CAA 112(r)(7)) which may otherwise be ineligible for Audit Policy penalty mitigation. As noted above, Condition 2 of the Audit Policy requires that disclosed violations must not be discovered through a legally mandated monitoring or sampling requirement prescribed by statute or regulation. Therefore, for example, examination pursuant to a RMP Triennial Audit would not normally be considered voluntary. Since EPA wants to encourage new owners to examine compliance and operations at their newly-acquired facilities, correct violations and upgrade deficient equipment and practices, should new owners that in good faith undertake a RMP triennial Audit and inform the Agency of violations, which existed prior to acquisition and are discovered through the audit, be eligible for Audit Policy consideration? Are there other similar categories of violations disclosed by new owners that should be eligible for Audit Policy consideration? 3. Should the Agency provide recognition to new owners who self-audit and disclose under the Audit Policy? Would positive recognition by the Agency, commending a new owner's willingness to voluntarily audit and disclose, encourage a company to undertake such actions? One suggestion has been to create and publicize a list that recognizes companies that have stepped forward to examine compliance and operations at their newly acquired facilities, correct violations and upgrade deficient equipment and practices. What sort of recognition, if any, would be most desirable? D. Measures of Success If the Agency decides to develop a policy for tailored incentives for new owners, EPA intends to develop a three-year pilot program to test the effectiveness of such incentives. In order to objectively, effectively and promptly evaluate the pilot program and this approach, EPA must have already identified clearly measurable outcomes and efficient assessment methodologies. The main goal of this program, and the most important measure of success, would be to show that compliance with environmental laws and regulations has improved, and that significant environmental benefit has been attained. However, there are different approaches for determining how well these goals have been met. What measures of success should the Agency adopt for the evaluation of a pilot program? Important outcomes to consider could be the number of disclosures made under the pilot program, the significance of the violations involved, and the significance of the pollutant reductions that can be attributed to or associated with these disclosures. Transparency of the program, efficiency in administration, and low transaction costs are also issues to be considered in evaluating the tailored incentive approach. EPA is seeking comment on any potential measures, and on the methodologies necessary to accurately measure them. III. Public Process As part of EPA's effort to obtain input on whether to offer tailored incentives for new owners self-disclosing under the Audit Policy, the Agency is planning to hold two public comment sessions. At those two meetings, interested parties may attend and provide oral and written comments on the issues. The first meeting is scheduled for Washington, DC at the J.W. Marriott Hotel, 1331 Pennsylvania Ave., NW., on June 12, 2007. The second one is scheduled for San Francisco at the Palace Hotel, 2 New Montgomery St., on June 20, 2007. Both meetings will begin at 10 a.m. and end at 4 p.m. The Agency is especially interested in comments relating to the issues specified in this Notice. After the comment period closes, the Agency plans to review and consider all comments. If EPA decides to develop a pilot program offering tailored incentives to new owners beyond those currently available under the Audit Policy, the Agency would then publish a second **Federal Register** notice to seek comment on such a proposed pilot program. After a second round of public comment, the Agency would publish in the **Federal Register** : The final description of the pilot program; an announcement of its start date; and a description of how its success in achieving increased self-auditing and disclosure and significant improvement to the environment will be evaluated. EPA encourages parties of all interests, including State and local government, industry, not-for-profit organizations, municipalities, public interest groups and private citizens to comment, so that the Agency can hear from as broad a spectrum as possible. IV. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the Notice; Request for Comments 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. • Explain why you agree or disagree; suggest alternatives and language. • Describe any assumptions and provide any technical information and/or data that you used. • If possible, provide any pertinent information about the context for your comments (e.g., the size and type of acquisition transaction you have in mind). • 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. • Submit your comments on time. Dated: April 30, 2007. Granta Y. Nakayama, Assistant Administrator, Office of Enforcement and Compliance Assurance. [FR Doc. E7-9197 Filed 5-11-07; 8:45 am] BILLING CODE 6560-50-P EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Notice of Sunshine Act Meeting Agency Holding the Meeting: Equal Employment Opportunity Commission. FEDERAL REGISTER Citation of Previous Announcement: 72 FR 26115, Tuesday, May 8, 2007. Previously Announced Date and Time of Meeting: Wednesday, May 16, 2007, 9:30 a.m. Eastern Time. Change in the Meeting: *Open Session* : Item Nos. 3. Full-Service Publication Storage and Distribution Center Contract has been removed from the Agenda. Contact Person for More Information: Stephen Llewellyn, Acting Executive Officer, on
(202)663-4070. Dated: May 10, 2007. Stephen Llewellyn, Acting Executive Officer, Executive Secretariat. [FR Doc. 07-2386 Filed 5-10-07; 8:45 am]
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  • 34 CFR 79
  • Pub. L. 100-50
  • 18 CFR 358
  • 40 CFR 2
  • 40 CFR 70.5(d)
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C.F.R.§ 75.105
Fed. Reg.Notices
U.S.C.§ 3001
U.S.C.§ 1098
C.F.R.§ 157.9
C.F.R.§ 385.214
C.F.R.§ 157.10
C.F.R.§ 385.2001
Cite34 CFR 79
Pub. L.Pub. L. 100-50
Cite18 CFR 358
Cites 16 · showing 12Cited by 0 across 0 sources
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