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Code · REGISTER · 2007-07-12 · Nuclear Regulatory Commission · Proposed Rules

Proposed Rules. Petition for rulemaking; notice of receipt

28,873 words·~131 min read·/register/2007/07/12/07-3383

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BILLING CODE 3410-02-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 [Docket No. PRM-50-87] Raymond A. Crandall; Receipt of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking; notice of receipt. SUMMARY: The Nuclear Regulatory Commission
(NRC)has received and requests public comment on a petition for rulemaking dated May 17, 2007, filed by Raymond A. Crandall (petitioner). The petition was docketed by the NRC and has been assigned Docket No. PRM-50-87. The petitioner is requesting that the NRC amend the regulations that govern domestic licensing of production and utilization facilities to eliminate the specific criteria related to the radiological doses for control room habitability at nuclear power plants. The petitioner believes that the current deterministic radiological dose requirements for control room habitability have resulted in several negative safety consequences, including an increased risk to public safety. DATES: Submit comments by September 25, 2007. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date. ADDRESSES: You may submit comments by any one of the following methods. Please include the following number (PRM-50-87) in the subject line of your comments. Comments on petitions submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission. *Mail comments to:* Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Attention: Rulemaking and Adjudications staff. *E-mail comments to: SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at
(301)415-1966. You may also submit comments via the NRC's rulemaking website at *http://ruleforum.llnl.gov.* Address comments about our rulemaking website to Carol Gallagher,
(301)415-5905; (e-mail *cag@nrc.gov* ). Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* Hand deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays. Publicly available documents related to this petition may be viewed electronically on the public computers located at the NRC Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at *http://ruleforum.llnl.gov.* Publicly available documents created or received at the NRC after November 1, 1999 are also available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to *pdr@nrc.gov.* For a copy of the petition, write to Michael T. Lesar, Chief, Rulemaking, Directives and Editing Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The petition is also available electronically in ADAMS at ML071490250. FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301-415-7163 or Toll-Free: 1-800-368-5642 or E-mail: *MTL@NRC.Gov.* SUPPLEMENTARY INFORMATION: Background The NRC has received a petition for rulemaking dated May 17, 2007, submitted by Raymond A Crandall (petitioner). The petitioner requests that the NRC amend 10 CFR Part 50, “Domestic Licensing of Production and Utilization Facilities.” Specifically, the petitioner requests that 10 CFR 50.67, “Accident source term” and “Criterion 19—Control room” in Appendix A to Part 50, “General Design Criteria for Nuclear Power Plants” be amended by eliminating the specific criteria related to the radiological doses for control room habitability at nuclear power plants. The NRC has determined that the petition meets the threshold sufficiency requirements for a petition for rulemaking under 10 CFR 2.802. The petition was docketed by the NRC as PRM-50-87 on May 25, 2007. The NRC is soliciting public comment on the petition for rulemaking. Discussion of the Petition The petitioner notes that the current regulations provide specific dose criteria, based on deterministic radiological dose analyses performed by the licensee and reviewed by the NRC staff for demonstrating the acceptability of the control room design for radiological release events. NRC regulatory guides and standard review plans provide the methodologies used to perform dose analyses that are incorporated into a licensee's site-specific technical specifications (TS). However, the petitioner believes that the deterministic dose analysis methodology and associated regulatory process has resulted in several negative safety consequences. The petitioner states that these consequences include:
(1)Control designs that are not optimum for ensuring continued control room habitability and may increase the probability of control room evacuation.
(2)Site procedures for mitigation of dose consequences to control room personnel that are not optimum for ensuring control room habitability and are inconsistent with more effective mitigation strategies.
(3)Unnecessary challenges to safety systems, such as increased challenges to the Emergency Diesel Generators if control room ventilation system fans are used early in an accident to meet analysis assumptions.
(4)TS action statement requirements that require a plant shutdown for failure to meet a control room dose analysis input assumption and result in a net increase in the risk to the public.
(5)TS surveillance requirements that cannot be cost-justified based on the risk significance that results in expenditures that could be used on risk-significant improvements. The petitioner believes the suggested amendments would eliminate the specific radiological dose acceptance criteria; the need for deterministic dose analyses; and the need for the associated regulatory process, including the TS imposed to ensure compliance. The petitioner also states that the proposed change does not eliminate the requirement for the control room to be designed to ensure safe conditions under accident conditions, but would eliminate what he believes are safety concerns with the current regulation. The petitioner states that because the primary objective of control room habitability is to ensure continuous occupancy, the primary focus should be on minimization of whole body doses from noble gases. The petitioner believes that the current regulation is inconsistent with the goal of allowing the control room operator to remain in the control room to mitigate accident consequences. He states that some common designs focus on compliance with existing criteria, such as a filtered air-intake pressurization design, and increase the probability that the control room will have to be evacuated. The petitioner has concluded that the current requirements and operational criteria are established to minimize the thyroid dose at the expense of increasing the whole body dose. The petitioner notes that the dose from increased iodine concentration can be mitigated by use of potassium iodide
(KI)or respiratory protection, but that the current requirements do not permit these mitigating techniques for radiological releases to be used in design analyses. The petitioner believes it is inconsistent that credit for respiratory protection is permitted in control room habitability toxic gas release evaluations, but not for design analyses. The petitioner also states that current procedures for dose mitigation are simplified to be consistent with the licensing basis hypothetical analysis and that these analyses have resulted in procedures that may not be an optimum mitigation strategy for more likely conditions. The petitioner believes that mitigation strategies should be based on overall risk reduction that would involve strategies for more likely conditions. The petitioner has concluded that the current mitigation strategies are based on one set of fixed hypothetical conditions that are unlikely as a result of the required deterministic dose analysis specified in the existing regulation. The petitioner states that procedures for dose mitigation must be consistent with the licensing basis and may not be the optimum mitigation strategy for the more likely conditions. The petitioner states that control room dose models do not model dispersion as a period during the day with higher concentrations while the plume is blowing towards the control room and then a period of zero concentration for the rest of the day. Instead, analysis methods simplify this effect by assuming that a lower concentration is present continuously. The petitioner states that if procedures were revised to include a purge mode strategy, a calculated increase in consequences in the simplistic design basis analysis would result. The petitioner states that the design requirements in the current regulations result in unnecessary challenges to safety systems. The petitioner cites an example during an assumed loss-of-coolant accident
(LOCA)and states that a common design requirement specifies that the normal control room ventilation must isolate when a safety injection or containment isolation signal occurs. The petitioner believes it would be more logical to delay control room isolation until radioactivity is detected in the control room or it is known that a radioactive plume is blowing towards the control room. The petitioner suggests that mitigating design strategies should be based on overall risk reduction designed for more likely conditions, not on one set of fixed hypothetical conditions that the petitioner believes is unlikely. The petitioner states that current radiological dose mitigation analyses also result in inappropriate TS action statements. The petitioner explains that radiological dose analyses differ from other types of engineering calculations. The petitioner states that even though most engineering analyses involve some amount of uncertainty, the results reasonably match what can be expected during a real event. The petitioner cites the thermal hydraulic analyses for an assumed LOCA event and explains that conservatism is built into the model, and that numerous assumptions go into the analysis to demonstrate that fuel damage will not occur due to overheating. The petitioner states that for other assumptions such as the temperature of the safety injection water or the flow rate of the safety injection pump, uncertainty is limited by specifying an acceptable value for such a parameter in the TS. The petitioner believes that TS requirements for a safety injection system that cannot meet design requirements impose a shutdown requirement. The petitioner states that a large break LOCA is usually the limiting accident for control room habitability design and that the associated radiological analysis requires multiple inputs, including the source term, which is the amount of radioactivity released from the reactor core that can reach the environment. The petitioner explains that the source term assumption can vary by many orders of magnitude and that total curies released is not the only consideration. The calculated and actual dose during an event depends on the nuclide mix of the release, decay time since reactor shutdown, the fraction of particulate nuclides that become airborne, and the chemical form of the source term. The petitioner also states that many uncertainties are considered in these models that include the removal mechanism for the various nuclides; the release pathway and forces that cause a release by that pathway; atmospheric dispersion; and dose modeling that depends on the size of an exposed individual, their breathing rate, biological removal mechanisms, etc. The petitioner believes that the combined probability of all assumptions being at the high end of uncertainty is so small that the design basis event will not be realistic and makes each assumption meaningless for predicting actual results. The petitioner cites the Three Mile Island accident as an example when the dose analysis input assumptions had no significance in predicting the actual consequences of the event. The petitioner states that for control room habitability TS, the analyses assumptions and results are even further removed from any significance because there is no direct public impact from not meeting control room habitability system requirements, any dose an operator receives can be mitigated by KI, and the dose limit is overly restrictive. The petitioner states that the potential indirect impact on public safety of having to evacuate the control room can be easily avoided, regardless of the control room habitability system status. The petitioner has concluded that this means “there is insignificant safety significance to the TS associated with control room habitability and yet there are shutdown requirements.” The petitioner notes that in the past, the NRC has specified on numerous occasions that the inability to meet the assumptions or criteria of control room habitability analyses has low safety significance. The petitioner states that the primary basis for the low safety significance was usually due to the existence of mitigating actions such as the issuance of KI tablets to ensure continued occupancy of the control room and to justify continued operation. The petitioner believes that to evaluate the net public safety risk associated with these TS shutdown requirements, small but quantifiable public risks associated with the shutdown of a nuclear power plant must be considered that include but are not limited to the:
(1)Risk associated with bringing the plant through a transient and another thermal cycle;
(2)Airborne pollutants released by the fossil units required to operate to make up for lost power; and
(3)Potential for challenging electric power grid stability with the public risk associated with the possibility of rolling blackouts or brownouts, or under the worst conditions of grid stability, the potential for a loss of offsite power at multiple nuclear power facilities. The petitioner states that the shutdown requirement increases the net public risk and has concluded that the shutdown requirement needs to be eliminated because it is only imposed as a “matter of compliance” that he believes results from the way the input assumptions are treated when using deterministic calculations. The petitioner also states that “individual input assumptions for radiological dose analyses have no significance in predicting reality or the acceptability of results. Even if actual conditions were such that one of the assumptions was non-conservative by a couple orders of magnitude, the ultimate result (in this case habitability of the control room) would still be acceptable due to the significant conservatisms in the other assumptions and the simplicity of effective mitigating actions such as the use of KI.” The petitioner states that although most control room habitability surveillances can be performed with minimal resources, licensees have been required to demonstrate the accuracy of the assumption on unfiltered inleakage using a tracer gas testing method that costs approximately $100,000 per test and cannot be justified. The petitioner believes these tests have demonstrated that although inleakage values assumed in the analyses were non-conservative, there was no safety significance and continued operation was justified. The petitioner has concluded that the expenditure for tracer gas testing could be better used for improvements that would likely be more beneficial to plant safety and, therefore, the required performance of this test could have a net negative safety consequence. The petitioner states that previous surveillances, such as a pressurization test, combined with lessons learned from tracer gas testing results in an effective preventative maintenance program to provide a cost-justified approach to ensure that there are no significant failures of the control room habitability boundary and an insignificant potential for control room evacuation. The Petitioner's Proposed Actions The petitioner suggests that the regulations should be revised to eliminate the specific radiological criteria for control room habitability. The petitioner believes this would result in the ability to revise the industry guidelines to eliminate the specified guidelines for performing deterministic dose analyses and eliminate all negative safety consequences discussed in the petition. Specifically, the petitioner recommends that 10 CFR 50.67(b)(2)(iii) and the second sentence of Criterion 19 of Appendix A to Part 50 that contain specific criteria for control room habitability be removed from the regulations. The petitioner suggests that the current guidelines be replaced with guidelines that he believes would ensure that the control room remains habitable under most postulated conditions, such as:
(1)The control room ventilation system should isolate on the detection of high radiation or toxic gas intake.
(2)The control room should have a minimum of one foot of concrete shielding (or equivalent) on all surfaces.
(3)Self Contained Breathing Apparatus (SCBAs) and KI tablets should be readily available for operator use. Operators should maintain training in SCBAs.
(4)Procedural controls to maintain a low leakage boundary, such as preventive maintenance/routine inspection of door seals and dampers should be implemented.
(5)Procedures should be developed to ensure control room purging is considered when the outside concentration is less than the inside concentration.
(6)Existing emergency filtration systems should be maintained to practical performance criteria. The petitioner also states that current TS for system performance would be eliminated and that the administrative portion of the TS could include a requirement to have a Control Room Habitability Program. The petitioner believes that because of the low public risk significance of being outside design guidelines in a Control Room Habitability Program, a plant shutdown would not be required if it is outside of the guidelines. Rather, the petitioner believes that the program could specify that timely actions should be taken to return the plant within the guidelines. If not complete within 30 days, the petitioner suggests that a special report would be sent to the NRC with a justification for continued operation and a proposed schedule for meeting the guidelines. The petitioner states that removing the specific dose criteria would not eliminate the need to perform quantitative analyses as required to demonstrate the acceptability for certain conditions. The petitioner also states that although the current regulation has no specific quantitative limits for toxic gases, the guidelines require quantitative analyses for toxic gas habitability assessments under certain conditions. The petitioner suggests that as an alternative to total removal of dose guidelines from the regulations, most of his concerns could be resolved if the dose criteria were based solely on the whole body dose from noble gases that he believes is the only possible dose impact that may result in control room evacuation. The petitioner suggests, as another option, that most of his concerns would be resolved if credit for SCBAs and/or KI was allowed in the analysis of the dose from iodine and particulates. The petitioner also proposes that the TS be revised to eliminate shutdown requirements for failure to meet control room habitability requirements. Dated at Rockville, Maryland, this 6th day of July 2007. For the Nuclear Regulatory Commission. J. Samuel Walker, Acting Secretary of the Commission. [FR Doc. E7-13539 Filed 7-11-07; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-147171-05] RIN 1545-BF34 Deductions for Entertainment Use of Business Aircraft; Correction AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Correction to notice of proposed rulemaking. SUMMARY: This document contains corrections to notice of proposed rulemaking that was published in the **Federal Register** on Friday, June 15, 2007 (72 FR 33169) relating to the use of business aircraft for entertainment. FOR FURTHER INFORMATION CONTACT: Michael A. Nixon at
(202)622-4930 or Lynne A. Camillo at
(202)622-6040 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background The notice of proposed rulemaking (REG-147171-05) that is the subject of this correction is under section 274(e) of the Internal Revenue Code. Need for Correction As published, the notice of proposed rulemaking (REG-147171-05) contains an error that may prove to be misleading and is in need of clarification. Correction of Publication Accordingly, the notice of proposed rulemaking (REG-147171-05) that was the subject of FR Doc. E7-11445 is corrected as follows: § 1.274-10 [Corrected] On page 33176, § 1.274-10(e)(1), column 2, lines 2 and 3 of the fourth full paragraph of the column, the language “General rule. Except as provided in paragraph (f)(4) of this section, for “ is corrected to read “General rule. For”. Lanita Van Dyke, Branch Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E7-13498 Filed 7-11-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF JUSTICE 28 CFR Part 75 [Docket No. CRM 104; AG Order No. 2888-2007] RIN 1105-AB18 Revised Regulations for Records Relating to Visual Depictions of Sexually Explicit Conduct AGENCY: Department of Justice. ACTION: Proposed rule. SUMMARY: This rule proposes to amend the record-keeping, labeling, and inspection requirements to account for changes in the underlying statute made by Congress in enacting the Adam Walsh Child Protection and Safety Act of 2006. DATES: Written comments must be received by September 10, 2007. ADDRESSES: Written comments may be submitted to: Andrew Oosterbaan, Chief, Child Exploitation and Obscenity Section, Criminal Division, United States Department of Justice, Washington, DC 20530; Attn: “Docket No. CRM 104.” Comments may be submitted electronically to: *Admin.ceos@usdoj.gov* or to *www.regulations.gov* by using the electronic comment form provided on that site. Comments submitted electronically must include Docket No. CRM 104 in the subject box. You may also view an electronic version of this rule at the *www.regulations.gov site.* Facsimile comments may be submitted to:
(202)514-1793. This is not a toll-free number. Comments submitted by facsimile must include Docket No. CRM 104 on the cover sheet. FOR FURTHER INFORMATION CONTACT: Andrew Oosterbaan, Chief, Child Exploitation and Obscenity Section, Criminal Division, United States Department of Justice, Washington, DC 20530;
(202)514-5780. This is not a toll-free number. SUPPLEMENTARY INFORMATION: The Child Protection and Obscenity Enforcement Act of 1988, Public Law 100-690, codified at 18 U.S.C. 2257, imposes certain name- and age-verification, record-keeping, and labeling requirements on producers of visual depictions of actual human beings engaged in actual sexually explicit conduct. Specifically, section 2257 requires producers of such material to “ascertain, by examination of an identification document containing such information, the performer's name and date of birth,” to “ascertain any name, other than the performer's present and correct name, ever used by the performer including maiden name, alias, nickname, stage, or professional name,” and to record and maintain this information. 18 U.S.C. 2257(b). Violations of these record-keeping requirements are criminal offenses punishable by imprisonment for not more than five years for a first offense and not more than 10 years for subsequent offenses. *See id.* 2257(i). Any matter containing such visual depictions must be labeled with a statement indicating where the records are located, and those records are subject to inspection by the government. *See id.* 2257(c), (e). These provisions supplement the federal statutory provisions criminalizing the production and distribution of materials visually depicting minors engaged in sexually explicit conduct. *See id.* 2251, 2252. The regulations in 28 CFR part 75 implement section 2257. On May 24, 2005, the Department of Justice (“the Department”) published a final rule that updated those regulations to account for changes in technology, particularly the Internet, and to implement the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, Public Law 108-21. *See* 70 FR 29607 (May 24, 2005). On July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Safety and Protection Act, Public Law 109-248 (“the Act”). As described in more detail below, the Act made a number of changes to section 2257. This proposed rule amends the regulations in part 75 to comport with these statutory changes. Need for the Rule In publishing the May 24, 2005, regulations, the Department explained the urgency of protecting children against sexual exploitation and, consequently, the need for more specific and clear regulations detailing the records and inspection process for sexually explicit materials to ensure the accurate identity and age of performers. The identity of every performer is critical to determining and ensuring that no performer is a minor. The key congressional concern, evidenced by the child exploitation statutory scheme, is that all such performers verifiably not be minors, *i.e.* , not be younger than 18. *See* 18 U.S.C. 2256(1), 2257(b)(1). Congress has recognized that minors warrant special concern in this area. Children are incapable of giving voluntary and knowing consent to perform, or to enter into contracts to perform, in visual depictions of sexually explicit conduct. In addition, children often are involuntarily forced to engage in sexually explicit conduct. For these reasons, visual depictions of sexually explicit conduct that involve persons under the age of 18 constitute child pornography. *See id.* 2256(8). The current regulations and this revised proposed rule provide greater details for the record-keeping and inspection process in order to ensure that minors are not exploited in visual depictions of actual sexually explicit conduct. Neither the current regulations nor this revised proposed rule restrict in any way the content of the depictions themselves. Instead, the rules clarify the identity verification, record-keeping, and labeling requirements pertaining to the depictions. By requiring producers to ascertain the age of performers in their depictions, and maintain records evidencing such compliance, the statute helps to ensure that producers will not exploit minors, either through carelessness, recklessness, or deliberate indifference. As for those who intentionally produce material depicting minors engaged in sexually explicit conduct, the statute and regulations either require them to maintain records of their crimes or provide an additional basis for prosecuting such individuals besides the applicable child-exploitation statutes. In addition, by confirming that the statute and regulations apply to “secondary producers,” the revised proposed rule will make it more difficult for the purveyors of such material to access the market. As the U.S. Court of Appeals for the DC Circuit explained in partially upholding the constitutionality of an earlier version of the regulations, one of the reasons for the regulations is “to deprive child pornographers of access to commercial markets by requiring secondary producers to inspect (and keep a record of) the primary producers' proof that the persons depicted were adults at the time they were photographed or videotaped.” *American Library Ass'n* v. *Reno,* 33 F.3d 78, 86 (DC Cir. 1994). The proposed revision of the existing regulations also reflect several significant changes to section 2257 made by the Act. First, the Act corrected an anomaly in the definition of “sexually explicit conduct” to which section 2257's requirements apply. Prior to the enactment of the Act, section 2257 referenced the definition of “sexually explicit conduct” for purposes of Chapter 110 of the U.S. Code in section 2256(2)(A) and listed four of the five categories of conduct included in that section. Section 2257 did not include “lascivious exhibition of the genitals or pubic area of a person.” 18 U.S.C. 2256(2)(A)(v). The Act revised section 2257 to include that category along with the others. *See* Adam Walsh Child Safety and Protection Act, Public Law 109-248, section 502(a)(4). Because part 75 defines “sexually explicit conduct” by referencing that term in section 2256(2)(A), part 75 will apply to depictions of the “lascivious exhibition of the genitals or pubic area of a person.” The proposed rule reflects this change by adding to the definitional section of the regulations at § 75.1(n). Although proposed part 75 applies to the “lascivious exhibition of the genitals or pubic area of a person,” it does not define this term beyond the language of section 2256(2)(A). Case law provides guidance as to the types of depictions that federal courts have considered as lascivious exhibition of the genitals or pubic area (hereinafter, “lascivious exhibition”), and the Department will rely on such precedent in the context of section 2257 investigations and prosecutions. The leading case is *United States* v. *Dost,* 636 F. Supp. 828 (S.D. Cal. 1986), *aff'd sub nom. United States* v. *Weigand,* 812 F.2d 1239 (9th Cir. 1987), which provides a list of factors for determining whether a visual depiction constitutes lascivious exhibition:
(1)Whether the focal point of the visual depiction is on the child's genitalia or pubic area;
(2)Whether the setting of the visual depiction is sexually suggestive, *i.e.* , in a place or pose generally associated with sexual activity;
(3)Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
(4)Whether the child is fully or partially clothed, or nude;
(5)Whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
(6)Whether the visual depiction is intended or designed to elicit a sexual response in the viewer. *Dost,* 636 F. Supp. at 832. Several courts of appeals have relied upon the *Dost* factors. *See, e.g., United States* v. *Knox,* 32 F.3d 733 (3d Cir. 1994); *United States* v. *Grimes,* 244 F. 3d 375 (5th Cir. 2001); *United States* v. *Wolf,* 890 F.2d 241 (10th Cir. 1989). It should be noted that, although these factors have been used to determine whether visual depictions of children constituted lascivious exhibition for purposes of criminal prosecution for violations of sections 2251, 2252, and 2252A of title 18, only the third factor is necessarily dependent on the age of the person depicted. The other factors provide guidance as to the types of depictions that would constitute lascivious exhibition for purposes of section 2257 and part 75, as well, even though those sections apply to any performers regardless of age. The applicability of part 75 to lascivious exhibition is prospective from the effective date of the Act. The rule therefore applies only to depictions whose original production date is on or after July 27, 2006. That is, records are not required to be maintained either by a primary producer or by a secondary producer for a visual depiction of lascivious exhibition, the original production date of which was prior to July 27, 2006. In the case of a secondary producer, this means that even if the secondary producer “produces” (as defined in the regulation) such a depiction on or after July 27, 2006, he need not maintain records if the original production date of the depiction is prior to that date. Along with adding the requirement that producers of lascivious exhibition maintain records under section 2257, the Act created a new section of the Federal criminal code, 18 U.S.C. 2257A. See Adam Walsh Child Safety and Protection Act, Public Law 109-248, section 503. Section 2257A requires that producers of visual depictions of simulated sexually explicit conduct maintain records documenting that performers in those depictions not be minors. It thus brings the record-keeping requirements in line with the definition of sexually explicit conduct in section 2256(2)(A), which includes both actual and simulated conduct. *See* 18 U.S.C. 2256(2)(A). The Department is preparing a separate rule to implement this section. In section 503, the Act also created an exemption from the record-keeping requirements of section 2257, to the extent it applies to lascivious exhibition, and of section 2257A. One part of this exemption states that section 2257 (to the extent it applies to lascivious exhibition) and section 2257A do not apply to matter that is
(i)Intended for commercial distribution,
(ii)is created as a part of a commercial enterprise by a person who certifies to the Attorney General that he regularly and in the normal course of business collects and maintains individually identifiable name and age information regarding all performers for purposes such as Federal and State tax, labor, and other laws, and
(iii)is not produced, marketed, or otherwise made available in circumstances such that an ordinary person would conclude that it is child pornography. *See* 18 U.S.C. 2257A(h)(1)(A). The other part of this exemption states that section 2257 (to the extent it applies to lascivious exhibition) and section 2257A do not apply to matter that is produced by someone subject to the Federal Communications Commission's authority to enforce federal bans on the broadcast of obscene, indecent, or profane programming, and is created as a part of a commercial enterprise by a person who certifies to the Attorney General that he regularly and in the normal course of business collects and maintains individually identifiable name and age information regarding all performers, for purposes such as Federal and State tax, labor, and other laws. See id. 2257A(h)(1)(B). The rule to implement section 2257A will also implement this exemption and the associated certification regime, which, as noted, will also apply to matter and producers covered by this proposed rule. Second, the Act revised the exclusions in the statute for the operations of Internet companies. Specifically, the Act amended section 2257 by excluding from the definition of “produces” the “provision of a telecommunications service, or of an Internet access service or Internet information location tool * * * or the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication.” These exclusions are based on the definitions in section 231 of the Communications Act of 1934, 47 U.S.C. 231. Third, the Act made several changes in the terminology of the statute. In subsection 2257(e)(1), it added at the end the following: “In this paragraph, the term ‘copy’ includes every page of a Web site on which matter described in subsection
(a)appears.” That change is reflected in the proposed rule at §§ 75.1(e)(3), 75.6(a), and 75.8(d). The change materially affects the regulations' labeling requirement as applied to Web sites. Section 75.8(d) of the current regulations permits a producer of a computer site of service or Web site to affix the label stating where the records required under the regulations are located “on its homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking a hypertext link that states, ‘18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.”’ Because of the change in the statute, the proposed rule eliminates this portion of the current regulations. The proposed rule requires, per the statute, that the statement describing the location of the records required by this part be affixed to every page of a Web site (controlled by the producer) on which visual depictions of sexually explicit conduct appear. Finally, the Act confirmed that the statute applies to secondary producers as currently (and previously) defined in the regulations. Specifically, the Act defines any of the following activities as “produces” for purposes of section 2257:
(i)Actually filming, videotaping, photographing, creating a picture, digital image, or digitally- or computer-manipulated image of an actual human being;
(ii)Digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct; or
(iii)Inserting on a computer site or service a digital image of, or otherwise managing the sexually explicit content, of a computer site or service that contains a visual depiction of, sexually explicit conduct * * *. 18 U.S.C. 2257(h)(2)(A), as amended. It excludes from the definition of “produces,” however, the following activities, in pertinent part:
(i)Photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;
(ii)Distribution;
(iii)Any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers * * *. *Id.* 2257(h)(2)(B), as amended. This language replaced the previous definition of “produces” in the statute, which stated, in pertinent part, as follows: [T]he term ‘produces’ means to produce, manufacture, or publish any book, magazine, periodical, film, video tape, computer generated image, digital image, or picture, or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted * * *. In enacting this language, Congress upheld the Department's consistently held position that the rule's requirements for secondary producers have been in effect since the rule's original publication. As explained by the sponsor of the Act in the House of Representatives: Congress previously enacted the PROTECT Act of 2003 against the background of Department of Justice regulations applying section 2257 to both primary and secondary producers. That fact, along with the Act's specific reference to the regulatory definition that existed at the time, reflected Congress' agreement with the Department of Justice's view that it already had the authority to regulate secondary procedures under the applicable law. A federal court in Colorado, however, recently enjoined the Department from enforcing the statute against secondary producers, relying on an earlier Tenth Circuit precedent holding that Congress had not authorized the Department to regulate secondary producers. These decisions conflicted with an earlier D.C. Circuit decision upholding Congress' authority to regulate secondary producers. Section 502 of the bill is meant to eliminate any doubt that section 2257 applies both to primary and secondary producers, and to reflect Congress' agreement with the regulatory approach adopted by the Department of Justice in enforcing the statute. Congressional Record, 109th Cong., 2d Sess., July 25, 2006, at H5725. Congress thus rejected the interpretation adopted by the court in *Sundance Assocs., Inc.* v. *Reno,* 139 F.3d 804 (10th Cir. 1998), in favor of the DC Circuit's decision upholding the application of the statute to secondary producers, *Am. Library Ass'n* v. *Reno,* 33 F.3d 78 (DC Cir. 1994). In upholding the constitutionality of the secondary-producer requirements, the DC Circuit both recognized the importance of these requirements and effectively rejected the argument that Congress lacked the authority to regulate secondary producers. In accordance with current law, the proposed rule retains July 3, 1995, as the effective date of the rule's requirements for secondary producers. (The current regulations, published in 2005, adopted July 3, 1995, as the effective date of enforcement of section 2257 based on the Court's order in *American Library Association* v. *Reno,* No. 91-0394
(SS)(D.D.C. July 28, 1995)). The one exception is that the proposed rule would not penalize secondary producers for failing to maintain required records in connection with those acts of production that occurred prior to the effective date of the Act. While the law would permit the Department to apply the statute and regulations to actions that occurred prior to that date, the Department has determined that the rule shall not apply in such circumstances to avoid any conceivable *ex post facto* concern. In addition to implementing the changes in the statute described above, the proposed rule clarifies several other issues. First, it clarifies that primary producers may redact non-essential information from copies of records provided to secondary producers, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm name and age—such as drivers' license number or passport number—may not be redacted, so that its validity may be confirmed. Second, the proposed rule clarifies that producers of visual depictions performed live on the Internet need not maintain a copy of the full running-time of every such depiction. Rather, they may maintain a copy that contains running-time sufficient to identify each and every performer in the depiction and associate each and every performer with the records needed to confirm his or her age. Third, the proposed rule clarifies that, with regard to the government-issued photo identification required for records, a foreign-government-issued picture identification card is acceptable if the performer providing it is a foreign citizen and the producer maintaining the records produces the visual depiction of the performer in a foreign country, no matter whether the producer is a U.S. or foreign citizen. That is, a U.S. producer who produces a depiction of sexually explicit conduct while located in a foreign country may rely on a foreign-government-issued picture identification card of a performer in that depiction who is a foreign citizen. All other requirements of the regulations continue to apply *mutatis mutandis—i.e.* , the producer must examine and maintain a legible copy of the foreign-government-issued picture identification card in his records. Furthermore, a foreign-government-issued picture identification card is not sufficient to comply with the regulations for U.S. citizens, even when abroad. That is, if a U.S. producer travels to a foreign country to produce a depiction of sexually explicit conduct, all U.S. citizens performing in the depiction must have a U.S.-government-issued picture identification card, even though a foreign citizen performing in the same depiction may provide a foreign-government-issued picture identification card. And, as is the case in the current regulation, only a U.S.-government-issued picture identification card complies with the regulations in the United States, no matter whether a performer is a U.S. or foreign citizen. The regulation also states that producers of visual depictions made after July 3, 1995, the effective date of the regulations published in 1992, and before June 23, 2005, the effective date of the current regulations published in 2005, may rely on picture identification cards issued by private entities such as schools or private employers that were valid forms of required identification documentation under the provisions of part 75 in effect on the original production date. Finally, although it is not necessary to change the text of the regulations for this purpose, the Department hereby clarifies that a producer need not keep a copy of a URL hosting a depiction that the producer produced but over which he exercises no control. Regulatory Procedures Regulatory Flexibility Act The Department has drafted this proposed rule in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612. The Department drafted the rule to minimize its effect on small businesses while meeting its intended objectives. Based upon the preliminary information available to the Department through past investigations and enforcement actions involving the affected industry, the Department is unable to state with certainty that this rule, if promulgated as a final rule, will not have any effect on small businesses of the type described in 5 U.S.C. 601(3). Accordingly, the Department has prepared a preliminary Regulatory Flexibility Act analysis in accordance with 5 U.S.C. 604, as follows: A. Need for and Objectives of This Rule The identity of every performer is critical to determining and assuring that no performer is a minor. The key congressional concern, evidenced by the child exploitation statutory scheme, is that all such performers verifiably not be minors, *i.e.* , not younger than 18 years of age. *See* 18 U.S.C. 2256(1), 2257(b)(1). As discussed above, Congress has recognized that minors warrant special concern in this area. Children themselves are incapable of giving voluntary and knowing consent to perform or to enter into contracts to perform. In addition, children often are involuntarily forced to engage in sexually explicit conduct. For these reasons, visual depictions of sexually explicit conduct that involve persons under the age of 18 constitute unlawful child pornography. *See* 18 U.S.C. 2256(8). This proposed rule amends certain provisions of the existing regulations to conform to the Act, as described above. B. Description and Estimates of the Number of Small Entities Affected by This Rule A “small business” is defined by the Regulatory Flexibility Act (“RFA”) to be the same as a “small business concern” under the Small Business Act (“SBA”), 15 U.S.C. 632. Under the SBA, a “small-business concern” is one that:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)meets any additional criteria established by the SBA. *See* 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in 15 U.S.C. 632). Based upon the information available to the Department through past investigations and enforcement actions involving the affected industry, there are likely to be a number of small businesses that are producers of visual depictions of sexually explicit conduct as defined in the statute, as amended by the Act. Pursuant to the RFA, the Department requests affected small businesses to estimate what these regulations will cost as a percentage of their total revenues in order to enable the Department to ensure that small businesses are not unduly burdened. The proposed rule has no effect on State or local governmental agencies. C. Specific Requirements Imposed That Would Affect Private Companies The proposed rule modifies existing requirements for private companies with regard to visual depictions of sexually explicit conduct to ensure that minors are not used in such depictions. One of these requirements that would specifically affect private companies is Congress's expansion of the coverage of the definition of “sexually explicit conduct” to cover lascivious exhibition. Executive Order 12866 This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f). Accordingly this rule has been reviewed by the Office of Management and Budget. The benefit of the rule is that children will be better protected from exploitation in the production of visual depictions of sexually explicit conduct by ensuring that only those who are at least 18 years of age perform in such depictions. The costs to the industry include slightly higher record-keeping costs. The Department encourages all affected commercial entities to provide specific estimates, wherever possible, of the economic costs that this rule will impose on them. Executive Order 13132 This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Executive Order 12988 This rule meets the applicable standards set forth in § 3(a) and 3(b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 *et seq.* Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, codified at 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Paperwork Reduction Act This proposed rule modifies existing requirements to conform to newly enacted legislation. It contains a revised information collection that satisfies the requirements of existing regulations to clarify the means of maintaining and organizing the required documents. This information collection will be submitted to the Office of Management and Budget for regular approval and comments from the public, in accordance with the Paperwork Reduction Act of 1995. Any comments received during the comment period should address one or more of the following four points:
(1)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3)how to enhance the quality, utility, and clarity of the information to be collected; and
(4)how to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; *e.g.* , permitting electronic submission of responses. The Department of Justice has no way of estimating the annual cost burden because of the multitude of variables within the control of producers of depictions of actual sexually explicit conduct. In publishing the proposed rule for the current part 75, the Department estimated that there were 100,000 Web sites and 200 producers of DVDs, videos, and other images containing visual depictions of actually explicit conduct (as defined by the language of section 2257 at that time), constituting 2000 businesses. The Department invited comments on these estimates but received none. The Department estimates currently that there are 500,000 Web sites and at least 200 producers of DVDs, videos, and other images containing visual depictions of actually explicit conduct (as defined by the revised section 2257), constituting 5000 businesses. Again, the Department invites comments on these numbers. The Department also invites comments on the total number of visual depictions that will be subject to the proposed rule and the cost of compliance of the rule for each visual depiction. All comments and suggestions, or questions regarding additional information, should be directed to Andrew Oosterbaan, Chief, Child Exploitation and Obscenity Section, Criminal Division, United States Department of Justice, Washington, DC 20530;
(202)514-5780. This is not a toll-free number. Comments should also be sent to: Lynn Bryant, Clearance Officer, United States Department of Justice, Policy and Planning Staff, Justice Management Division, Patrick Henry Building, 601 D Street, NW., Washington, DC 20530. List of Subjects in 28 CFR Part 75 Crime, Infants and children, Reporting and recordkeeping requirements. Accordingly, for the reasons set forth in the preamble, part 75 of chapter I of title 28 of the Code of Federal Regulations is proposed to be amended as follows: PART 75—CHILD PROTECTION RESTORATION AND PENALTIES ENHANCEMENT ACT OF 1990 AND PROTECT ACT; RECORDKEEPING AND RECORD INSPECTION PROVISIONS 1. The authority citation for part 75 continues to read as follows: Authority: 18 U.S.C. 2257. 2. Amend § 75.1 by revising paragraphs (b), (c)(4), and (e), and adding new paragraphs
(m)and (n), to read as follows: § 75.1 Definitions.
(b)*Picture identification card* means a document issued by the United States, a State government or a political subdivision thereof, or a United States territory, that bears the photograph and the name of the individual identified, and provides sufficient specific information that the issuing authority can confirm its validity, such as a passport, Permanent Resident Card (commonly known as a “Green Card”), or other employment authorization document issued by the United States, a driver's license issued by a State or the District of Columbia, or another form of identification issued by a State or the District of Columbia; or, a foreign government-issued equivalent of any of the documents listed above when the person who is the subject of the picture identification card is a non-U.S. citizen located outside the United States at the time of original production and the producer maintaining the required records, whether a U.S. citizen or non-U.S. citizen, is located outside the United States on the original production date.
(c)* * *
(4)*Producer* does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following:
(i)Photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;
(ii)Distribution;
(iii)Any activity, other than those activities identified in pargraphs (c)(1) and
(2)of this section, that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;
(iv)The provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or
(v)The transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or alteration of the content of the communication; and
(e)*Copy,* when used:
(1)In reference to an identification document or a picture identification card, means a photocopy, photograph, or digitally scanned reproduction;
(2)In reference to a visual depiction of sexually explicit conduct, means a duplicate of the depiction itself ( *e.g.* , the film, the image on a Web site, the image taken by a webcam, the photo in a magazine);
(3)In reference to an image on a webpage for purposes of §§ 75.6(a) and 75.8(d), means every page of a Web site on which the image appears.
(m)*Date of original production* or *original production date* means the date the primary producer actually filmed, videotaped, or photographed, or created a digitally or computer-manipulated image, digital image, or picture, of the visual depiction of an actual human being engaged in actual sexually explicit conduct.
(n)*Sexually explicit conduct* has the meaning set forth in 18 U.S.C. 2256(2)(A). 3. Amend § 75.2 by revising paragraph (a)(1), adding two new sentences to the end of paragraph (b), revising paragraph (c), and adding a new paragraph (g), to read as follows: § 75.2 Maintenance of records.
(a)* * *
(1)The legal name and date of birth of each performer, obtained by the producer's examination of a picture identification card prior to production of the depiction. For any performer portrayed in such a depiction made after July 3, 1995, the records shall also include a legible hard copy of the identification document examined and, if that document does not contain a recent and recognizable picture of the performer, a legible hard copy of a picture identification card. For any performer portrayed in such a depiction after June 23, 2005, the records shall include a copy of the depiction and, where the depiction is published on an Internet computer site or service, a copy of any URL associated with the depiction. If no URL is associated with the depiction, the records shall include another uniquely identifying reference associated with the location of the depiction on the Internet. For any performer in a depiction performed live on the Internet, the records shall include a copy of the depiction with running-time sufficient to identify the performer in the depiction and to associate the performer with the records needed to confirm his or her age.
(b)* * * The copies of the records may be redacted to eliminate non-essential information, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm the name and age may not be redacted.
(c)The information contained in the records required to be created and maintained by this part need be current only as of the date of original production of the visual depiction to which the records are associated. If the producer subsequently produces an additional book, magazine, film, videotape, digitally- or computer-manipulated image, digital image, or picture, or other matter (including but not limited to Internet computer site or services) that contains one or more visual depictions of an actual human being engaged in actual sexually explicit conduct made by a performer for whom he maintains records as required by this part, the producer may add the additional title or identifying number and the names of the performer to the existing records maintained pursuant to § 75.2(a)(2). Producers of visual depictions made after July 3, 1995, and before June 23, 2005, may rely on picture identification cards that were valid forms of required identification documentation under the provisions of part 75 in effect during that time period.
(g)Records are not required to be maintained by either a primary producer or by a secondary producer for a visual depiction of sexually explicit conduct that consists only of lascivious exhibition of the genitals or pubic area of a person, and contains no other sexually explicit conduct, whose original production date was prior to July 27, 2006. 4. Amend § 75.6 by adding a new sentence at the end of paragraph
(a)and revising paragraph (b)(2), to read as follows: § 75.6 Statement describing location of books and records.
(a)* * * In this paragraph, the term ‘copy’ includes every page of a Web site on which a visual depiction of an actual human being engaged in actual sexually explicit conduct appears.
(b)* * *
(2)The date of original production of the matter; and, 5. Amend § 75.8 by revising paragraph
(d)to read as follows: § 75.8 Location of the statement.
(d)A computer site or service or Web address containing a digitally- or computer-manipulated image, digital image, or picture, shall contain the required statement on every page of a Web site on which a visual depiction of an actual human being engaged in actual sexually explicit conduct appears. Dated: July 5, 2007. Alberto R. Gonzales, Attorney General. [FR Doc. E7-13500 Filed 7-11-07; 8:45 am] BILLING CODE 4410-14-P DEPARTMENT OF DEFENSE Department of the Air Force 32 CFR Part 903 [Docket No. USAF-2007-0001] RIN: 0701-AA72 Air Force Academy Preparatory School AGENCY: DoD, USAF. ACTION: Proposed rule. SUMMARY: This proposed rule tells how to apply for the Air Force Academy Preparatory School. It also explains the procedures for selection, disenrollment, and assignment. This rule has been updated to identify USAFA's revised mission statement and the authority, add responsibilities, new selection criteria, and updates of associated Air Force Instructions. DATES: Interested parties should submit written comments on or before September 10, 2007. ADDRESSES: You may submit comments, identified by docket number and or RIN number and title, by any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number
(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://www.regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Mr. Scotty Ashley at
(703)695-3594, *scotty.Ashley@pentagon.af.mil* . SUPPLEMENTARY INFORMATION: Executive Order 12866, “Regulatory Planning and Review” It has been determined that 32 CFR part 903 is not a significant regulatory action. This rule does not:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;
(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of the recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4) It has been certified the 32 CFR part 903 does not contain a Federal Mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) It has been determined that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule * * *. Public Law 95-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) It has been certified that 32 CFR part 903 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). Federalism (Executive Order 13132) It has been certified that 32 CFR part 903 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(1)The States;
(2)The relationship between the National Government and the States; or
(3)The distribution of power and responsibilities among the various levels of government. List of Subjects in 32 CFR Part 903 Military academy, Military personnel. Therefore, for the reasons set forth in the preamble, 32 CFR part 903 is proposed to be revised to read as follows: PART 903—AIR FORCE ACADEMY PREPARATORY SCHOOL Sec. 903.1 Mission and responsibilities. 903.2 Eligibility requirements. 903.3 Selection criteria. 903.4 Application process and procedures. 903.5 Reserve enlistment procedures. 903.6 Reassignment of Air Force members to become cadet candidates at the Preparatory School. 903.7 Reassignment of cadet candidates who graduate from the Preparatory School with an appointment to U.S. Air Force Academy (USAFA). 903.8 Cadet candidate disenrollment. 903.9 Cadet records and reassignment forms. 903.10 Information collections, records, and forms or information management tools (IMTS). Authority: 5 U.S.C. 301, 10 U.S.C. 8013, and 10 U.S.C. 9331 (except as otherwise noted). Note: This part is derived from AFI 36-2021, September 12, 2006. Part 806 of this chapter states the basic policies and instructions governing the disclosure of records and tells members of the public what they must do to inspect or obtain copies of the material referenced herein. § 903.1 Mission and responsibilities.
(a)Mission. To motivate, prepare, and evaluate selected candidates in an educational, military, moral, and physical environment, to perform successfully and enhance diversity at USAFA.
(b)Responsibilities:
(1)Superintendent, USAFA (HQ USAFA/CC). Ensures adequate oversight of HQ USAFA/PL activities, administration, and resources. Means of oversight include but are not limited to:
(i)United States Air Force Academy Instruction (USAFAI) 36-3502, USAFA Assessment Board.
(ii)The Preparatory School Advisory Committee, as established in USAFAI 36-2013, Superintendent's Preparatory School Advisory Committee of the USAF Academy Preparatory School.
(iii)Annual Assessment, as established in Department of Defense
(DoD)Directive 1322.22, Service Academies.
(iv)Audits, Eagle Looks, and Unit Compliance Inspections.
(v)Special reviews and investigations as directed by HQ USAF.
(vi)USAFA Board of Visitors (BoV).
(2)HQ USAFA/PL Commander:
(i)Ensures the education and training programs satisfy the school's mission.
(ii)Informs HQ USAFA/RR of candidates' names, including essential categories, when each class enters.
(iii)Administers the disenrollment process. Notifies the Headquarters USAFA Superintendent (HQ USAFA/CC), and HQ USAFA/RR of all disenrollments.
(iv)Responsible, along with ARPC, for administering the oath of enlistment on the date of inprocessing. The effective date of enlistment is the date the applicant took the oath.
(3)Air Reserve Personnel Center (ARPC):
(i)Receives DD Form 1966, Record of Military Processing—Armed Forces of the United States, from select candidates upon inprocessing.
(ii)Reviews the DD Form 1966 for completion/acceptance.
(iii)Completes the DD Form 4, Enlistment/Reenlistment Document Armed Forces of the United States, if DD Form 1966 is in order.
(iv)Responsible, along with USAFA/PL, for administering the oath of enlistment on the date of inprocessing. The effective date of enlistment is the date the applicant took the oath.
(v)Publishes reserve orders placing applicant on active duty for the purpose of attending Preparatory school. Preparatory school determines the date of call to active duty (usually date administered the oath). ARPC provides copies of orders to MPF on the date of inprocessing.
(4)10th Mission Support Squadron Military Personnel (10 MSS/DPM):
(i)Ensures Regular and Reserve Air Force personnel reassigned to the HQ USAFA/PL enter with the highest grade they had achieved as of their date of enrollment and retain their date of rank or effective date.
(ii)Maintains records on Cadet Candidates.
(iii)Processes separation orders for non-prior service members who complete the HQ USAFA/PL and accept an appointment to a U.S. Service Academy.
(iv)Prepares discharge orders for non-prior service members who are disenrolled or do not accept appointment to a U.S. Service Academy.
(v)Issues ID cards.
(5)Headquarters USAFA Admissions (HQ USAFA/RR):
(i)Notifies cadet candidates of their acceptance into HQ USAFA/PL. Includes an accept-or-decline form with acceptance letter and asks cadet candidates to return the form as soon as possible.
(ii)Issues “Invitation to Travel” letters to all accepted cadet candidates (including civilians, reservist and members of other services) inviting them to travel to the HQ USAFA/PL, enlist in the Air Force Reserve (if necessary), and attend the HQ USAFA/PL.
(iii)Sends a notice to non-selected service personnel and their servicing Military Personnel Flight (MPF). **Note:** The Air Force does not typically notify civilian applicants of their non-selection.
(iv)Provides 10 MSS/DPMA with the name, grade, social security number, mailing address, and unit of assignment for reassignment of all applicants on Air Force active duty who are accepted into HQ USAFA/PL.
(v)Sends DODMERB a data file listing all applicants that need a medical examination. DODMERB uses the data file to schedule necessary exams.
(6)Unit commanders of all Regular and Reserve Component Air Force personnel applying to the HQ USAFA/PL:
(i)Review each applicant's completed AF Form 1786, Application for Appointment to the United States Air Force Academy Under Quota Allotted to Enlisted Members of the Regular and Reserve Components of the Air Force, and determine if the applicant meets eligibility requirements.
(ii)Forward an endorsement of all applicants who meet eligibility requirements, together with AF Form 1786, through the MPF to: Headquarters USAFA Admission Selections (HQ USAFA/RRS), 2304 Cadet Drive, USAF Academy CO 80840-5025. The endorsement must include a comprehensive statement of the applicant's character, ability, and motivation to become a career officer. Verify statements in applications regarding service component, length of service, and date of birth from official records.
(iii)Notify HQ USAFA/RR immediately on determining that an applicant is no longer recommended for selection to the HQ USAFA/PL.
(7)Unit commanders of Regular or Reserve members of the Army, Navy, or Marine Corps and unit commanders of Army or Air National Guard members:
(i)Accept letters of application to the HQ USAFA/PL from unit personnel.
(ii)Complete an endorsement for all applicants who meet the eligibility requirements. Include in the endorsement a comprehensive statement of the applicant's character, ability, and motivation to become a career officer. Verify statements in applications regarding service component, length of service, and date of birth from official records. Send the endorsement and letter of application to HQ USAFA/RRS, 2304 Cadet Drive, USAF Academy CO 80840-5025.
(iii)Ensure that each applicant receives a release from active duty to attend the HQ USAFA/PL before sending the endorsement. In order to facilitate the accession of a National Guard (Air or Army) member into USAFA or HQ USAFA/PL, a DD Form 368, Request for Conditional Release, or AF Form 1288, Application for Ready Reserve Assignment, should be accomplished and forwarded to the losing Military Personnel Flight
(MPF)service for out-processing. Once the member has enlisted, the 10 MSS/DPM will contact the losing MPF. A copy of the DD Form 4 and orders will be provided to the losing ANG MPF by fax. In turn, the losing MPF will project the member's record in MilPDS based on the gaining PAS provided by the 10 MSS/DPM.
(iv)Notify HQ USAFA/RR immediately on determining that an applicant is no longer recommended for selection to the HQ USAFA/PL. § 903.2 Eligibility requirements.
(a)For admission to the HQ USAFA/PL, applicants must be:
(1)At least 17 and no more than 22 years old by 1 July of the year of admission.
(2)A citizen or permanent resident of the United States able to obtain citizenship (or Secretary of Defense waiver allowed by 10 U.S.C. 532(f)) by projected commissioning date.
(3)Unmarried and have no dependents.
(4)Of high moral character. Applicants must have no record of Uniform Code of Military Justice convictions or civil offenses beyond minor violations; no history of drug or alcohol abuse; and no prior behaviors, activities, or associations incompatible with USAF standards.
(5)Medically qualified for appointment to the U.S. Air Force Academy (USAFA).
(6)A member of the armed services or eligible to enlist in the U.S. Air Force Reserve.
(b)Normally, applicants must not have previously attended college on a full-time basis or attended a U.S. Service Academy or a U.S. Service Academy Preparatory School. The Headquarters USAFA Registrar's Office (HQ USAFA/RR) determines an applicant's status in this regard.
(c)Every applicant must be an active candidate in the USAFA admissions program, normally through one of following:
(1)Nominated by a source specified in public law.
(2)Identified by the USAFA as fulfilling institutional needs.
(d)Members of the Air Force Reserve or Air National Guard
(ANG)must agree to active duty service if admitted to the HQ USAFA/PL. Admitted ANG personnel first transfer to the Air Force Reserves before leaving their place of residence and being called to active duty.
(e)Regular and reserve members of the Armed Forces and the National Guard must have completed basic training.
(f)Regular members of the Armed Forces must have at least 1 year retainability when they enter the HQ USAFA/PL. § 903.3 Selection criteria.
(a)Cadet candidates for the HQ USAFA/PL are selected on the basis of demonstrated character, test scores, medical examination, prior academic record, recommendation of the organization commander (if prior service), and other similar reports or records. USAFA is authorized to make selections IAW SECAF guidance including but not limited to selection from among enlisted personnel and recruited athletes. Each applicant must:
(1)Achieve satisfactory scores on the Scholastic Aptitude Test
(SAT)or the American College Testing Program (ACT).
(2)Take and pass a medical evaluation administered through the Department of Defense Medical Evaluation Review Board (DODMERB).
(3)Have an acceptable academic record as determined by HQ USAFA/RR. Each applicant must furnish a certified transcript from each high school or civilian preparatory school attended. Applicants should send transcripts to HQ USAFA/RR, 2304 Cadet Drive, Suite 200, USAF Academy, CO 80840-5025.
(4)Take the Candidate Fitness Assessment.
(b)HQ USAFA/RR oversees the holistic review of each viable candidate's record by a panel. This holistic review may include consideration of factors that would enhance diversity at USAFA, such as unique academic abilities, language skills, demonstrated leadership skills, foreign cultural knowledge, athletic prowess, flying aptitude, uncommon life experiences, demonstrated moral or physical courage or other performance-based factors.
(c)HQ USAFA/RR also examines reports and records that indicate an applicant's aptitude, achievement, or ability to graduate from the HQ USAFA/PL in the selection process.
(d)HQ USAFA/RR includes Preparatory School selection guidelines in the “Criteria and Procedures for Air Force Academy Appointment, Class of 20XX” (Contract) and submits for Superintendent approval.
(e)For members of the Armed Forces and the National Guard, HQ USAFA/RR also considers letters of recommendation from applicants' unit commanders. § 903.4 Application process and procedures.
(a)Regular and Reserve members of the Air Force must send their applications to: HQ USAFA/RR, 2304 Cadet Drive, Suite 200, USAF Academy, CO 80840-5025, no later than 31 January for admission the following summer. Those otherwise nominated to the Air Force Academy, must complete all steps of admissions by 15 April.
(b)Regular and Reserve members of the Air Force must complete AF Form 1786 and submit it to their unit commander.
(c)Regular and Reserve members of the Army, Navy, or Marine Corps, as well as members of the National Guard, must submit a letter of application through their unit commander.
(d)Civil Air Patrol
(CAP)cadets send their applications to HQ USAFA/RR and must apply to CAP National Headquarters by 31 January for nomination.
(e)HQ USAFA/RR automatically considers civilian candidates for admission who have a nomination to the USAFA, but were not selected. § 903.5 Reserve enlistment procedures.
(a)Civilians admitted to the HQ USAFA/PL take the oath of enlistment on the date of their initial in-processing at the HQ USAFA/PL. Their effective date of enlistment is the date they take this oath.
(b)Civilians who enlist for the purpose of attending the HQ USAFA/PL will be awarded the rank of E-1. These cadet candidates are entitled to the monthly student pay at the same rate as USAFA cadets according to United States Code Title 37, Section 203. § 903.6 Reassignment of Air Force members to become cadet candidates at the Preparatory School. USAFA Prepatory School Enrollment for members selected from operational Air Force: Selected Regular Air Force members at technical training schools remain there in casual status until the earliest reporting date for the HQ USAFA/PL. Students must not leave their training school without coordinating with HQ USAFA/RR. § 903.7 Reassignment of cadet candidates who graduate from the Preparatory School with an appointment to USAFA. USAFA Cadet Enrollment for Cadet Candidates who graduate from the Prepatory School with an appointment to the USAFA:
(a)The Air Force releases cadet candidates entering the USAFA from active duty and reassigns them to active duty as Air Force Academy cadets, effective on their date of entry into the USAFA in accordance with one of these authorities:
(1)The Department of Air Force letter entitled Members of the Armed Forces Appointed to a Service Academy, 8 July 1957.
(2)Title 10, United States Code, Sections 516 and 523. Air Force Instruction
(AFI)36-3208, Administrative Separation of Airmen.
(b)The Air Force discharges active Reserve cadet candidates who enlisted for the purpose of attending the HQ USAFA/PL in accordance with AFI 36-3208 and reassigns them to active duty as Air Force Academy cadets, effective on their date of entry into the USAFA. § 903.8 Cadet candidate disenrollment.
(a)In accordance with AFI 36-3208, the Commander, HQ USAFA/PL, may disenroll a student who:
(1)Fails to meet and maintain HQ USAFA/PL educational, military, character, or physical fitness standards.
(2)Fails to demonstrate adaptability and suitability for participation in USAFA educational, military, character, or physical training programs.
(3)Displays unsatisfactory conduct.
(4)Fails to meet statutory requirements for admission to the USAFA, for example:
(i)Marriage or acquiring legal dependents.
(ii)Medical disqualification.
(iii)Refusal to serve as a commissioned officer in the U.S. Armed Forces.
(5)Requests disenrollment.
(b)The HQ USAFA/PL commander may also disenroll a student when it is determined that the student's retention is not in the best interest of the Government.
(c)The military personnel flight (10 MSS/DPM) processes Regular Air Force members for reassignment if:
(1)They are disenrolled from the HQ USAFA/PL.
(2)They fail to obtain or accept an appointment to a U.S. Service Academy.
(d)The Air Force reassigns Air Force Reserve cadet candidates who are disenrolled from the HQ USAFA/PL or who fail to obtain or accept an appointment to an U.S. Service Academy in either of two ways under AFI 36-3208:
(1)Discharges them from the United States Air Force without any further military obligation if they were called to active duty solely to attend the HQ USAFA/PL.
(2)Releases them from active duty and reassigns them to the Air Force Reserve Personnel Center if they were released from Reserve units to attend the HQ USAFA/PL.
(e)The National Guard (Army or Air Force) releases cadet candidates from active duty and reassigns them to their State Adjutant General.
(f)The Air Force reassigns Regular and Reserve personnel from other Services back to their unit of origin to complete any prior service obligation if:
(1)They are disenrolled from the HQ USAFA/PL.
(2)They fail to obtain or accept an appointment to the USAFA. § 903.9 Cadet records and reassignment forms.
(a)Headquarters USAFA Cadet Personnel (HQ USAFA/DPY) maintains records of cadet candidates who enter the USAFA until they are commissioned or disenrolled.
(b)10 MSS/DPM will send records of Regular Air Force personnel who enter one of the other Service Academies to HQ Air Force Personnel Center (HQ AFPC) for processing. § 903.10 Information collections, records, and forms or information management tools (IMTS).
(a)Information Collections. No information collections are created by this publication.
(b)Records. Ensure that all records created as a result of processes prescribed in this publication are maintained in accordance with AFMAN 37-123, Management of Records, and disposed of in accordance with the Air Force Records Disposition Schedule
(RDS)located at *https://webrims.amc.af.mil* .
(c)Forms or IMTs (Adopted and Prescribed).
(1)Adopted Forms or IMTs: AF IMT 847, Recommendation for Change of Publication. AF Form 1288, Application for Ready Reserve Assignment, AF Form 1786, Application for Appointment to the USAF Academy Under Quota Allotted to Enlisted Members of the Regular and Reserve Components of the Air Force, DD Form 4, Enlistment/Reenlistment Document—Armed Forces of the United States, DD Form 368, Request for Conditional Release, and DD Form 1966, Record of Military Processing—Armed Forces of the United States.
(2)Prescribed Forms or IMTs: No forms or IMTs are prescribed by this publication. Bao-Anh Trinh, Air Force Federal Register Liaison Officer, Department of the Air Force. [FR Doc. E7-13250 Filed 7-11-07; 8:45 am] BILLING CODE 5001-05-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AM40 Provision of Hospital Care and Medical Services During Certain Disasters or Emergencies AGENCY: Department of Veterans Affairs (VA). ACTION: Proposed rule. SUMMARY: The Department of Veterans Affairs
(VA)proposes to establish regulations regarding the provision of hospital care and medical services under the VA Emergency Preparedness Act of 2002 to individuals responding to, involved in, or otherwise affected by certain disasters or emergencies (including individuals who otherwise do not have VA eligibility for such care and services). DATES: *Comment Date:* Comments must be received on or before September 10, 2007. ADDRESSES: Written comments may be submitted through *http://www.Regulations.gov* ; by mail or hand-delivery to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to
(202)273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AM40—Provision of Hospital Care and Medical Services During Certain Disasters or Emergencies.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call
(202)273-9515 for an appointment. In addition, during the comment period, comments may be viewed online in *http://www.Regulations.gov* through the Federal Docket Management System (FDMS). FOR FURTHER INFORMATION CONTACT: Tony A. Guagliardo, Director, Business Policy, Chief Business Office (163), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202)254-0384. (This is not a toll free number.) SUPPLEMENTARY INFORMATION: This document proposes to amend the VA “Medical” regulations in 38 CFR part 17 by adding a new § 17.86 and by making technical amendments in § 17.102. As indicated in paragraph
(a)of proposed § 17.86, this proposed rule would implement the provisions of Public Law 107-287, the VA Emergency Preparedness Act of 2002, regarding hospital care and medical services provided to individuals responding to, involved in, or otherwise affected by certain disasters or emergencies (including individuals who otherwise do not have VA eligibility for such care and services). These provisions are codified as 38 U.S.C. 1785. Paragraphs
(b)and
(c)of proposed § 17.86 would reflect the provisions of 38 U.S.C. 1785, which provide that during and immediately following a disaster or emergency VA may furnish hospital care and medical services to individuals (including those who otherwise do not have VA eligibility for such care and services) responding to, involved in, or otherwise affected by: • A major disaster or emergency declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 *et seq.* ) (“Stafford Act”), or • A disaster or emergency in which the National Disaster Medical System established pursuant to section 2811(b) of the Public Health Service Act (42 U.S.C. 300hh-11(b)) is activated either by the Secretary of Health and Human Services under paragraph (3)(A) of that section or as otherwise authorized by law. Paragraph
(d)of proposed § 17.86 would define “hospital care” and “medical services” according to the existing definitions in 38 U.S.C. 1701(5) and 1701(6). Under paragraph
(e)of proposed § 17.86, charges for care and services furnished to an officer or employee of a department or agency of the United States (other than VA) or to a member of the Armed Forces would be calculated in accordance with the provisions of § 17.102(h). Section 1785 states that VA shall be reimbursed for the cost of any care or services furnished to an officer or employee of a department or agency of the United States (other than VA) or to a member of the Armed Forces at rates agreed upon based on the cost of the care or service provided. An established system for charging for care and services provided to beneficiaries of the Department of Defense or other Federal agencies is already in place in § 17.102(c), (e), and (h). The cost of such care is charged at rates agreed upon in a sharing agreement described in § 17.102(e), or pursuant to the cost-based system described in § 17.102(h). In accordance with § 17.102(h), which provides authority to periodically do so, the Office of Management and Budget
(OMB)and VA have published a document in the “Notices” section of the **Federal Register** entitled “Cost-Based and Interagency Billing Rates for Medical Care or Services Provided by the Department of Veterans Affairs,” 70 FR 66,866—66,868 (November 3, 2005). If the head of another Federal agency or the Secretary of a branch of the Armed Forces seeks VA hospital care or medical services for an officer, employee, or member, this cost-based system is the agreed-upon method for calculating the cost of such care or service unless the care provided falls within an existing sharing agreement as described in § 17.102(e). Section 1785 is silent regarding charges to other individuals ( *i.e.* , other than the Federal officers or employees or members of the Armed Forces discussed in the immediately preceding paragraph of this preamble) that are eligible for such care and services under section 1785 but would not otherwise be eligible for such care and services as VA beneficiaries. This issue is discussed in the legislative history of the VA Emergency Preparedness Act of 2002 in S. Rep. No. 107-229 (July 31, 2002), a report of the Senate Committee on Veterans' Affairs. The report states, at 9: “[Section 1785] would also allow VA to receive reimbursement for the cost of services provided to employees of other Federal agencies or departments, to be credited to the facility that provided care. VA would not be required to charge other individuals for emergency care offered during a disaster.” The language of the statute, when considered with this legislative history, suggests that Congress did not intend to require VA to seek reimbursement for hospital care or medical services provided to other individuals during a covered disaster or emergency. However, in addition to the statutory language in section 1785, VA's current appropriation act impacts the question of reimbursement for care provided to individuals who are not otherwise eligible for hospital care or medical services at VA expense. VA appropriation acts (including the appropriation act for fiscal year 2006, Pub. L. 109-114) have historically included a provision stating (with certain exceptions) that no appropriated funds shall be available “for hospitalization or examination of any persons” (Pub. L. 109-114, sec. 204) unless reimbursement for such care is made to the medical services account at rates set by the Secretary. In the appropriation act for fiscal year 2006 there are three exceptions. The first exception is care provided to “beneficiaries entitled under the laws bestowing such benefits to veterans.” In this preamble we use the phrase “VA beneficiaries” to refer to individuals eligible for hospitalization and medical care under the laws bestowing those benefits to veterans. The other two exceptions are persons receiving care under 5 U.S.C. 7901-7904 (employee services) or under the Stafford Act. This means that unless there has been a Presidential declaration under the Stafford Act, VA must seek reimbursement for the hospital care and medical services provided under section 1785 to persons who are not VA beneficiaries. Not all care authorized under 38 U.S.C. 1785 is provided under the Stafford Act. Section 1785 authorizes VA to provide care during a disaster or emergency declared under the Stafford Act or during activation of the National Disaster Medical System
(NDMS)pursuant to section 2811(b) of the Public Health Service Act. Activation of the NDMS may take place without a Presidential declaration of a major disaster or emergency, and in that case would be without a Stafford Act declaration. If the care provided to other individuals ( *i.e.* , individuals other than the Federal officers or employees, members of the Armed Forces, or VA beneficiaries) does not fall under the Stafford Act (for example, if NDMS is activated without a Stafford Act declaration), the appropriation language referenced above compels VA to seek reimbursement for the care provided under 38 U.S.C. 1785 to individuals who are not otherwise eligible for hospital care or medical services at VA expense. Other than officers or employees of a non-VA department or agency of the United States, or members of the Armed Forces, those individuals would generally include, *e.g.* , an individual who is not a veteran or a veteran's child, survivor, or dependent; an individual who is a veteran but who is not eligible for enrollment in the VA healthcare system under 38 U.S.C. 1705 and § 17.36; or an individual who is a veteran's child, survivor, or dependent but who is not eligible for such care and services at VA expense under any laws regarding certain categories of those persons. Paragraph
(e)of proposed § 17.86 would provide a process for billing such individuals (other than officers or employees of a non-VA department or agency of the United States, or members of the Armed Forces) pursuant to § 17.102(h). Besides the situation where the care provided to such other individuals does not fall under the Stafford Act, situations arise where the care does fall under the Act but VA does not receive reimbursement from any other-than-VA Federal department or agency. In such situations, VA seeks reimbursement from the individual. This has been long-standing VA practice and we propose to incorporate this practice in paragraph
(e)by stating that “[o]ther individuals who receive hospital care or medical services under this section are responsible for the cost of the hospital care or medical services when charges are mandated by Federal law (including applicable appropriation acts) *or when the cost of care or services is not reimbursed by other-than-VA Federal departments or agencies.”* (Emphasis added.) Under paragraph
(e)of proposed § 17.86, the charges would be calculated in accordance with the provisions of § 17.102(h). (This document proposes to make technical changes to update the provisions of § 17.102(h) by removing “Cost Distribution Report”, a report which documented costs through September, 2004, and by adding, in its place, “Monthly Program Cost Report (MPCR)”, the report that VA currently uses for purposes of § 17.102(h). This document also proposes to make in § 17.102(h) clarifying technical changes in the description of the report's contents regarding outpatient care. Changes that this document is proposing to make to § 17.102 for other reasons are described below in this preamble.) Paragraph
(h)of § 17.102 provides a mechanism for charges to be based on the MPCR, which sets forth the actual basic costs and per diem rates by type of inpatient care, and actual basic costs and rates for outpatient care per visit or prescription filled, with additions based on: • Factors for depreciation of buildings and equipment, • Central Office overhead, • Interest on capital investment, and • Standard fringe benefit costs covering government employee retirement and disability costs. The formula in § 17.102(h) provides an appropriate method for calculating charges for services provided under 38 U.S.C. 1785 during certain disasters or emergencies. As noted earlier, this formula is already used to charge for care to beneficiaries of the Department of Defense and other Federal agencies. It is also used to calculate charges for individuals who receive emergency hospital care or medical services on a humanitarian basis (38 U.S.C. 1784). Further, it is based on the cost of the care provided to non-otherwise-eligible beneficiaries, thereby ensuring that the medical services account is reimbursed for the cost of care provided, as required by the current appropriation act. The last sentence of paragraph
(e)of proposed § 17.86 notes that VA would bill in accordance with § 17.102(h) “without applying the exception provided in the first paragraph of § 17.102.” The exception provided in the first paragraph of § 17.102 is a reference to the possible applicability of § 17.101, a regulation covering the collection or recovery by VA for medical care and services described in 38 U.S.C. 1729. The exception in the first sentence of § 17.102 would not be applicable in any situation where care is provided under section 1785, as veterans would be receiving hospital care and medical services pursuant to section 1785 rather than section 1729. Paragraph
(f)of proposed § 17.86 would clarify that VA may furnish care and services under § 17.86 to a veteran without regard to whether he or she is enrolled in the VA healthcare system. Paragraph
(f)would reflect the provisions of 38 U.S.C. 1785(c), which state that VA may furnish care and services under section 1785 to an individual who is a veteran without regard to whether the veteran is enrolled in the VA patient enrollment system under 38 U.S.C. 1705. Section 1785(c) concerns the relationship of section 1785 and certain already existing provisions of law. It clarifies the possible impact of section 1705(c)(1) on section 1785. A provision in section 1705(c)(1) states that VA may not provide hospital care or medical services to certain veterans under 38 U.S.C. 1710 (the statutory authorization that is a key basis for VA's provision of hospital care and medical services to veterans through its medical benefits package) unless those veterans have enrolled in the system of patient enrollment mandated by section 1705(a). VA's regulation at 38 CFR 17.36 reflects this requirement and states that except in limited circumstances, a veteran must be enrolled in the VA healthcare system as a condition for receiving hospital care and medical services provided through VA's medical benefits package. The language in 38 U.S.C. 1705(c)(1) and the implementing regulations at 38 CFR 17.36, if the clarifying language in paragraph
(c)had not been included in section 1785, could have led to an anomalous situation where VA would have been authorized to provide care to all individuals affected by a Presidentially-declared major disaster or emergency, or a disaster or emergency in which NDMS is activated, except certain veterans who were not previously enrolled for VA healthcare. Section 1785(c) addresses this unique situation, clarifying that a veteran is not ineligible for care or services under section 1785 merely because the veteran (either because his or her priority group is not eligible for enrollment at the time, or because he or she elected not to enroll for VA benefits) is not enrolled in the VA healthcare system. This proposed rule would make a technical change to the existing regulations in § 17.102 regarding the authority to provide humanitarian care under 38 U.S.C. 1784. The current cross-reference to the regulation authorizing emergency hospital care on a humanitarian basis is incorrect. 38 CFR 17.102(b)(1) refers to care or services rendered as a humanitarian service “under § 17.43(c)(1).” There is no § 17.43(c)(1) in title 38 CFR. The cross-reference listed in § 17.102(b)(1) should be to § 17.43(b)(1), rather than to § 17.43(c)(1). The proposed rule reflects this technical correction. In addition, to conform to the provisions of new § 17.86, this proposed rule would amend § 17.102(h) by adding a reference to § 17.86. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, and tribal governments, or the private sector. Paperwork Reduction Act of 1995 This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by OMB unless OMB waives such review, as any regulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this proposed rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Regulatory Flexibility Act The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. In addition to affecting individuals, this document would affect mainly large insurance companies. Further, where small entities would be involved, they would not be impacted significantly since an inconsequential portion of their business would be with VA. Accordingly, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.005, Grants to States for the Construction of State Homes; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care. List of Subjects in 38 CFR Part 17 Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and Dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans. Approved: March 30, 2007. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set forth in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as follows: PART 17—MEDICAL 1. The authority citation for part 17 continues to read as follows: Authority: 38 U.S.C. 501, 1721, and as noted in specific sections. 2. Add an undesignated center heading and § 17.86 to read as follows: Care During Certain Disasters and Emergencies § 17.86 Provision of hospital care and medical services during certain disasters and emergencies under 38 U.S.C. 1785.
(a)This section sets forth regulations regarding the provision of hospital care and medical services under 38 U.S.C. 1785.
(b)During and immediately following a disaster or emergency referred to in paragraph
(c)of this section, VA under 38 U.S.C. 1785 may furnish hospital care and medical services to individuals (including those who otherwise do not have VA eligibility for such care and services) responding to, involved in, or otherwise affected by that disaster or emergency.
(c)For purposes of this section, a “disaster” or “emergency” means:
(1)A major disaster or emergency declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.)(“Stafford Act”); or
(2)A disaster or emergency in which the National Disaster Medical System established pursuant to section 2811(b) of the Public Health Service Act (42 U.S.C. 300hh-11 (b)) is activated either by the Secretary of Health and Human Services under paragraph (3)(A) of that section or as otherwise authorized by law.
(d)For purposes of paragraph
(b)of this section, the terms “hospital care” and “medical services” have the meanings given such terms by 38 U.S.C. 1701(5) and 1701(6).
(e)Unless the cost of care is charged at rates agreed upon in a sharing agreement as described in § 17.102(e), the cost of hospital care and medical services provided under this section to an officer or employee of a department or agency of the United States (other than VA) or to a member of the Armed Forces shall be calculated in accordance with the provisions of § 17.102(c) and (h). Other individuals who receive hospital care or medical services under this section are responsible for the cost of the hospital care or medical services when charges are mandated by Federal law (including applicable appropriation acts) or when the cost of care or services is not reimbursed by other-than-VA Federal departments or agencies. When individuals are responsible under this section for the cost of hospital care or medical services, VA will bill in the amounts calculated in accordance with the provisions of § 17.102(h), without applying the exception provided in the first paragraph of § 17.102.
(f)VA may furnish care and services under this section to a veteran without regard to whether that individual is enrolled in the VA healthcare system under 38 U.S.C. 1705 and § 17.36 of this part. (Authority: 38 U.S.C. 501, 1785) § 17.102 [Amended] 3. Amend § 17.102 by: a. In paragraph (b)(1), removing “§ 17.43(c)(1)” and adding, in its place, “§ 17.43(b)(1)”. b. In the first sentence of paragraph (h), adding “§ 17.86 and under” after “charges under”; removing “Cost Distribution Report” and adding, in its place, “Monthly Program Cost Report (MPCR)”; and removing “and outpatient visit” and adding, in its place, “, and actual basic costs and rates for outpatient care visits or prescriptions filled”. c. In the fifth sentence of paragraph (h), removing “Cost Distribution Report” and adding, in its place, “MPCR”. [FR Doc. E7-13278 Filed 7-11-07; 8:45 am] BILLING CODE 8320-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2007-0359-200716; FRL-8338-8] Approval of Implementation Plans of Alabama: Clean Air Interstate Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a revision to the Alabama State Implementation Plan
(SIP)submitted on March 7, 2007. This revision addresses the requirements of EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005, and subsequently revised on April 28, 2006, and December 13, 2006. The Alabama Department of Environmental Management
(ADEM)also previously submitted a final submittal dated June 16, 2006, which was subsequently updated in a prehearing request for parallel processing on November 16, 2006, to comply with EPA's revisions to the model rule. Alabama's final March 7, 2007, submittal replaces the State's June 16, 2006, and November 16, 2006, submittals. EPA is proposing to determine that the SIP revision fully implements the CAIR requirements for Alabama. Therefore, as a consequence of the SIP approval, EPA will also withdraw the CAIR Federal Implementation Plans (CAIR FIPs) concerning sulfur dioxide (SO <sup>2</sup> ), nitrogen oxides (NO <sup>X</sup> ) annual and NO <sup>X</sup> ozone season emissions for Alabama. The CAIR FIPs for all states in the CAIR region were promulgated on April 28, 2006, and subsequently revised on December 13, 2006. CAIR requires states to reduce emissions of SO <sup>2</sup> and NO <sup>X</sup> that significantly contribute to nonattainment of, and interfere with maintenance of, the national ambient air quality standards (NAAQS) for fine particulates and/or ozone in any downwind state. CAIR establishes state budgets for SO <sup>2</sup> and NO <sup>X</sup> and requires states to submit SIP revisions that implement these budgets in states that EPA concluded did contribute to nonattainment in downwind states. States have the flexibility to choose which control measures to adopt to achieve the budgets, including participating in the EPA-administered cap-and-trade programs. In the SIP revision that EPA is proposing to approve, Alabama would meet CAIR requirements by participating in the EPA-administered cap-and-trade programs addressing SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. DATES: Comments must be received on or before August 13, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2007-0359, by one of the following methods: 1. *www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. E-mail: *harder.stacy@epa.gov.* 3. Fax: 404-562-9019. 4. Mail: “EPA-R04-OAR-2007-0359,” Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. Hand Delivery or Courier: Ms. Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. *Instructions:* Direct your comments to Docket ID No. “EPA-R04-OAR-2007-0359.” 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 through *www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information, unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* Docket: All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding federal holidays. FOR FURTHER INFORMATION CONTACT: Ms. Stacy Harder, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is
(404)562-9042. Ms. Harder can also be reached via electronic mail at *harder.stacy@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Actions Is EPA Proposing to Take? II. What Is the Regulatory History of CAIR and the CAIR FIPs? III. What Are the General Requirements of CAIR and the CAIR FIPs? IV. What Are the Types of CAIR SIP Submittals? V. Analysis of Alabama's CAIR SIP Submittal A. State Budgets for Allowance Allocations B. CAIR Cap-and-Trade Programs C. Applicability Provisions for non-EGU NO <sup>X</sup> SIP Call Sources D. NO <sup>X</sup> Allowance Allocations E. Allocation of NO <sup>X</sup> Allowances From Compliance Supplement Pool F. Individual Opt-in Units VI. Proposed Actions VII. Statutory and Executive Order Reviews I. What Action Is EPA Proposing to Take? EPA is proposing to approve a revision to Alabama's SIP, submitted on March 7, 2007. In its SIP revision, Alabama would meet CAIR requirements by requiring certain electric generating units
(EGUs)to participate in the EPA-administered State CAIR cap-and-trade programs addressing SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. EPA is proposing to determine that the SIP, as revised, will meet the applicable requirements of CAIR. Any final action approving the SIP will be taken by the Regional Administrator for Region 4. As a consequence of the SIP approval, the Administrator of EPA will also issue a final rule to withdraw the FIPs concerning SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions for Alabama. This action will delete and reserve 40 CFR 52.54 and 40 CFR 52.55. The withdrawal of the CAIR FIPs for Alabama is a conforming amendment that must be made once the SIP is approved because EPA's authority to issue the FIPs was premised on a deficiency in the SIP for Alabama. Once the SIP is fully approved, EPA no longer has authority for the FIPs. Thus, EPA will not have the option of maintaining the FIPs following the full SIP approval. Accordingly, EPA does not intend to offer an opportunity for a public hearing or an additional opportunity for written public comment on the withdrawal of the FIPs. EPA will take action in a separate rulemaking regarding revisions to Chapters 335-3-1 and 335-3-17. II. What Is the Regulatory History of CAIR and the CAIR FIPs? The CAIR rule was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 states and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the national ambient air quality standards (NAAQS) for fine particles (PM <sup>2.5</sup> ) and/or 8-hour ozone in downwind states in the eastern part of the country. As a result, EPA required those upwind states to revise their SIPs to include control measures that reduce emissions of SO <sup>2</sup> , which is a precursor to PM <sup>2.5</sup> formation, and/or NO <sup>X</sup> , which is a precursor to both ozone and PM <sup>2.5</sup> formation. For jurisdictions that contribute significantly to downwind PM <sup>2.5</sup> nonattainment, CAIR sets annual state-wide emission reduction requirements (i.e., budgets) for SO <sup>2</sup> and annual state-wide emission reduction requirements for NO <sup>X</sup> . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets state-wide emission reduction requirements for NO <sup>X</sup> for the ozone season (May 1st to September 30th). Under CAIR, states may implement these reduction requirements by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures. CAIR explains to subject states what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act
(CAA)with regard to interstate transport with respect to the 8-hour ozone and PM <sup>2.5</sup> NAAQS. EPA made national findings, effective on May 25, 2005, that the states had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, three years after the promulgation of the 8-hour ozone and PM <sup>2.5</sup> NAAQS. These findings started a two-year clock for EPA to promulgate a FIP to address the requirements of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a FIP anytime after such findings are made and must do so within two years, unless a SIP revision correcting the deficiency is approved by EPA before the FIP is promulgated. On April 28, 2006, EPA promulgated FIPs for all states covered by CAIR in order to ensure the emissions reductions required by CAIR are achieved on schedule. Each CAIR state is subject to the FIPs until the state fully adopts, and EPA approves, a SIP revision meeting the requirements of CAIR. The CAIR FIPs require EGUs to participate in the EPA-administered CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs, as appropriate. The CAIR FIP SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the FIP and SIP trading programs means that these trading programs will work together to create effectively a single trading program for each regulated pollutant (SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season) in all states covered by the CAIR FIP or SIP trading program for that pollutant. The CAIR FIPs also allow states to submit abbreviated SIP revisions that, if approved by EPA, will automatically replace or supplement certain CAIR FIP provisions (e.g., the methodology for allocating NO <sup>X</sup> allowances to sources in the state), while the CAIR FIP remains in place for all other provisions. On April 28, 2006, EPA published two additional CAIR-related final rules that added the States of Delaware and New Jersey to the list of states subject to CAIR for PM <sup>2.5</sup> and announced EPA's final decisions on reconsideration of five issues, without making any substantive changes to the CAIR requirements. III. What Are the General Requirements of CAIR and the CAIR FIPs? CAIR establishes state-wide emission budgets for SO <sup>2</sup> and NO <sup>X</sup> and is to be implemented in two phases. The first phase of NO <sup>X</sup> reductions starts in 2009 and continues through 2014, while the first phase of SO <sup>2</sup> reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO <sup>X</sup> and SO <sup>2</sup> starts in 2015 and continues thereafter. CAIR requires states to implement the budgets by either:
(1)Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or
(2)adopting other control measures of the state's choosing and demonstrating that such control measures will result in compliance with the applicable state SO <sup>2</sup> and NO <sup>X</sup> budgets. The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that states must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs. With two exceptions, only states that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for states that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for states that include all non-EGUs from their NO <sup>X</sup> SIP Call trading programs in their CAIR NO <sup>X</sup> ozone season trading programs. IV. What Are the Types of CAIR SIP Submittals? States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most states will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such states, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, states may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of or in conjunction with, as appropriate, the corresponding provisions of the CAIR FIPs (e.g., the NO <sup>X</sup> allowance allocation methodology). A state submitting a full SIP revision may either adopt regulations that are substantively identical to the model rules or incorporate by reference the model rules. CAIR provides that states may only make limited changes to the model rules, if the states want to participate in the EPA-administered trading programs. A full SIP revision may change the model rules only by altering their applicability and allowance allocation provisions to: 1. Include NO <sup>X</sup> SIP Call trading sources that are not EGUs under CAIR in the CAIR NO <sup>X</sup> ozone season trading program; 2. Provide for state allocation of NO <sup>X</sup> annual or ozone season allowances using a methodology chosen by the state; 3. Provide for state allocation of NO X annual allowances from the compliance supplement pool
(CSP)using the state's choice of allowed, alternative methodologies; or 4. Allow units that are not otherwise CAIR units to opt individually into the CAIR SO 2 , NO X annual, or NO X ozone season trading programs under the opt-in provisions in the model rules. An approved CAIR full SIP revision addressing EGUs' SO 2 , NO X annual, or NO X ozone season emissions will replace the CAIR FIP for that state for the respective EGU emissions. V. Analysis of Alabama's CAIR SIP Submittal A. State Budgets for Allowance Allocations The CAIR NO X annual and ozone season budgets were developed from historical heat input data for EGUs. Using these data, EPA calculated annual and ozone season regional heat input values, which were multiplied by 0.15 pounds per million British thermal units (lb/mmBtu), for phase 1, and 0.125 lb/mmBtu, for phase 2, to obtain regional NO X budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the state NO X annual and ozone season budgets from the regional budgets using state heat input data adjusted by fuel factors. The CAIR state SO 2 budgets were derived by discounting the tonnage of emissions authorized by annual allowance allocations under the Acid Rain Program under title IV of the CAA. Under CAIR, each allowance allocated in the Acid Rain Program for the years in phase 1 of CAIR (2010 through 2014) authorizes 0.5 ton of SO 2 emissions in the CAIR trading program, and each Acid Rain Program allowance allocated for the years in phase 2 of CAIR (2015 and thereafter) authorizes 0.35 ton of SO 2 emissions in the CAIR trading program. In this action, EPA is proposing approval of Alabama's SIP revision that adopts the budgets established for the State in CAIR, *i.e.* , 69,020 (2009-2014) and 57,517 (2015-thereafter) tons for NO X annual emissions, 34,510 (2009-2014) and 29,146 (2015-thereafter) tons for NO X ozone season emissions, and 157,582 (2010-2014) and 110,307 (2015-thereafter) tons for SO 2 emissions. Alabama's SIP revision sets these budgets as the total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs. B. CAIR Cap-and-Trade Programs The CAIR NO X annual and ozone-season model trading rules both largely mirror the structure of the NO X SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO X annual and ozone-season model rules are similar, there are some differences. For example, the NO X annual model rule (but not the NO X ozone season model rule) provides for a compliance supplement pool (CSP), which is discussed below and under which allowances may be awarded for early reductions of NO X annual emissions. As a further example, the NO X ozone season model rule reflects the fact that the CAIR NO X ozone season trading program replaces the NO X SIP Call trading program after the 2008 ozone season and is coordinated with the NO X SIP Call program. The NO X ozone season model rule provides incentives for early emissions reductions by allowing banked, pre-2009 NO X SIP Call allowances to be used for compliance in the CAIR NO X ozone-season trading program. In addition, states have the option of continuing to meet their NO X SIP Call requirement by participating in the CAIR NO X ozone season trading program and including all their NO X SIP Call trading sources in that program. The provisions of the CAIR SO 2 model rule are also similar to the provisions of the NO X annual and ozone season model rules. However, the SO 2 model rule is coordinated with the ongoing Acid Rain SO 2 cap-and-trade program under CAA title IV. The SO 2 model rule uses the title IV allowances for compliance, with each allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO 2 cap-and-trade program, with each such allowance authorizing 1 ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO 2 cap-and-trade program. EPA also used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than state implementation. The CAIR model SO 2 , NO X annual, and NO X ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs. In the SIP revision, Alabama chooses to implement its CAIR budgets by requiring EGUs to participate in EPA-administered cap-and-trade programs for SO 2 , NO X annual, and NO X ozone season emissions. Alabama has adopted a full SIP revision that adopts, with certain allowed changes discussed below, the CAIR model cap-and-trade rules for SO 2 , NO X annual, and NO X ozone season emissions. C. Applicability Provisions for non-EGU NO X SIP Call Sources In general, the CAIR model trading rules apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 Megawatt electrical
(MWe)producing electricity for sale. States have the option of bringing in, for the CAIR NO X ozone season program only, those units in the state's NO X SIP Call trading program that are not EGUs as defined under CAIR. EPA advises states exercising this option to add the applicability provisions in the state's NO X SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in order to include in the CAIR NO X ozone season trading program all units required to be in the state's NO X SIP Call trading program that are not already included under 40 CFR 96.304. Under this option, the CAIR NO X ozone season program must cover all large industrial boilers and combustion turbines, as well as any small EGUs ( *i.e.* units serving a generator with a nameplate capacity of 25 MWe or less) that the state currently requires to be in the NO X SIP Call trading program. Alabama has chosen to expand the applicability provisions of the CAIR NO X ozone season trading program to include all non-EGUs in the State's NO X SIP Call trading program. D. NO X Allowance Allocations Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO X annual and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIP also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions. States may establish in their SIP submissions a different NO X allowance allocation methodology that will be used to allocate allowances to sources in the states, if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO X allowance allocation methodologies, states have flexibility with regard to: 1. The cost to recipients of the allowances, which may be distributed for free or auctioned; 2. The frequency of allocations; 3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and 4. The use of allowance set-asides and, if used, their size. Alabama has chosen to replace the provisions of the CAIR NO X annual model trading rule concerning the allocation of NO X annual allowances with its own methodology. Alabama has chosen to distribute NO X annual allowances based upon allocation methods for existing, replacement, and new units. ADEM defines a baseline NO X unit as one that commenced operation on, or before January 1, 2004, or submitted an acceptable application to the Department before August 1, 2005. For the control periods in 2009 through 2014, ADEM will allocate NO X allowances to baseline CAIR units based in an amount equaling 0.15 lb/mmBtu, or the unit's permitted NO X limit, whichever amount is less, multiplied by the heat input and an adjustment ratio (to ensure that the total number of CAIR NO X Ozone Season allowances allocated under this paragraph equals the number of tons of CAIR NO X Ozone Season emissions in the State trading program budget) and rounded to the nearest whole NO X allowance as appropriate. For units with multiple allowable emissions limits, the allowances may be calculated based on actual operating data. For each control period in 2015 and thereafter, ADEM will allocate allowances equaling 0.125 lb/mmBtu, or the unit's NO X limit, whichever is less, multiplied by the heat input and an adjustment ratio. A replacement unit is defined as a NO X unit, or the portion of a NO X unit, which replaces a baseline unit at the same facility, and has the same or greater maximum design heat input capacity. Allowances will be allocated for replacement units after all baseline units have received allowances. These allowances will be distributed from the Retired Unit Allowance Pool. After all baseline and replacement units have received allocations, ADEM will allocate allowances to new units from allowances remaining in the Retired Unit Allowance Pool. ADEM defines a new unit as one that does not meet the definition for an existing unit or a replacement unit. New unit allocations, for each applicable control period, will be equal to 0.15 lb/mmBtu or the unit's permitted NO X limit, whichever is less, multiplied by the heat input and an adjustment ratio and rounded to the nearest whole NO X allowance as appropriate. Allowances were to be allocated by October 31, 2006, for control periods of 2009, 2010 and 2011. Allowances will be allocated by October 31, 2008, for control periods 2012, 2013 and 2014. By October 31, 2011, and subsequently, on October 31 of every third year thereafter, NO X allowance allocations will be submitted for the control periods in the three years that are four, five, and six years, respectively, after the year of the applicable deadline for submission. Alabama has chosen not to use set-asides in their NO X annual allocations. Alabama has chosen to replace the provisions of the CAIR NO X ozone season model trading rule concerning allowance allocations with its own methodology. Alabama has chosen to distribute NO X annual allowances based upon allocation methods for existing, replacement, and new units. ADEM defines a baseline NO X unit as one that commenced operation on, or before January 1, 2004, or submitted an acceptable application to the Department before August 1, 2005. For the control periods in 2009 through 2014, ADEM will allocate NO X allowances to baseline CAIR units based in an amount equaling 0.15 lb/mmBtu (0.17 lb/mmBtu, if the unit's maximum design heat input is greater than 250 mmBtu/hr), or the unit's permitted NO X limit, whichever amount is less, multiplied by the heat input and an adjustment ratio (to ensure that the total number of CAIR NO X Ozone Season allowances allocated under this paragraph equals the number of tons of CAIR NO X Ozone Season emissions in the State trading program budget) and rounded to the nearest whole NO X allowance as appropriate. For units with multiple allowable emissions limits, the allowances may be calculated based on actual operating data. For each control period in 2015 and thereafter, ADEM will allocate allowances equaling 0.125 lb/mmBtu, or the unit's NO X limit, whichever is less, multiplied by the heat input and an adjustment ratio. A replacement unit is defined as one which replaces a baseline ozone season unit at the same facility, and has the same or greater maximum design heat input. A new unit is defined as a unit that does not meet the definition of either an existing unit or a replacement unit. NO X ozone season allowances were to be allocated by October 31, 2006, for control periods 2009, 2010, and 2011. Only the difference between the ozone season allowance allocations and the 2009 budget trading program will be submitted in 2009. By October 31, 2008, allocations for 2012, 2013, and 2014 will be submitted. Finally, by October 31, 2011, and October 31 of every third year thereafter, allocations will be submitted for control periods in the three years that are four, five, and six years after the applicable deadline for submission. Alabama has chosen not to use set-asides in their ozone season allocations. E. Allocation of NO X Allowances From Compliance Supplement Pool CAIR establishes a CSP to provide an incentive for early reductions in NO X annual emissions. The CSP consists of 200,000 CAIR NO X annual allowances of vintage 2009 for the entire CAIR region, and a state's share of the CSP is based upon the projected magnitude of the emission reductions required by CAIR in that State. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO X reductions during 2007 or 2008 beyond what is required by any applicable state or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls. The CAIR annual NO X model trading rule establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in the states. Alabama has chosen to modify the provisions of the CAIR NO X annual model trading rule concerning the allocation of allowances from the CSP. Alabama has chosen to distribute CSP allowances using an allocation methodology that allows the Department to allocate up to 10,166 additional CAIR NO X allowances for the control period in 2009. CAIR NO X units that achieve emissions reductions in 2007 and 2008, that are not necessary to comply with applicable emissions limitations during those years, may request early reduction credits. The units requesting CSP allocations must submit a request by May 1, 2009, to ADEM. Sources are eligible to receive CSP allowances only to the extent that that the total number of allowances issued does not exceed 15 percent of the total number of NO X allowances issued to that unit from the initial allowance allocation. Any remaining CSP allowances after the initial distribution will be allocated to eligible units on a pro rata basis, provided that no unit is issued more allowances than the early reduction credits requested by that unit in accordance with ADEM's CSP provisions. F. Individual Opt-In Units The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet the monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015. States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decline to adopt the opt-in provisions at all. Alabama has chosen to allow non-EGUs meeting certain requirements to opt into the CAIR NO <sup>X</sup> annual trading program, including both of the opt-in allocation methods in the model rule. Alabama has chosen to allow non-EGUs meeting certain requirements to opt into the CAIR NO <sup>X</sup> ozone season trading program, including both of the opt-in allocation methods in the model rule. Alabama has chosen to allow certain non-EGUs to opt into the CAIR SO <sup>2</sup> trading program, and has chosen to incorporate the Federal rule by reference. VI. Proposed Actions EPA is proposing to approve Alabama's full CAIR SIP revision submitted on March 7, 2007. Under this SIP revision, Alabama is choosing to participate in the EPA-administered cap-and-trade programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. The SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO <sup>X</sup> annual and NO <sup>X</sup> ozone season emissions, and 40 CFR 51.124(o), with regard to SO <sup>2</sup> emissions. EPA is proposing to determine that the SIP, as revised, will meet the requirements of CAIR. As a consequence of the SIP approval, the Administrator of EPA will also issue, without providing an opportunity for a public hearing or an additional opportunity for written public comment, a final rule to withdraw the CAIR FIPs concerning SO <sup>2</sup> , NO <sup>X</sup> annual and NO <sup>X</sup> ozone season emissions for Alabama. That withdrawal will delete and reserve 40 CFR 52.54 and 40 CFR 52.55. VII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve State law as meeting Federal requirements and would impose no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this action proposes to approve pre-existing requirements under State law and would not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposal also does not have tribal implications because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it would not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard and will result, as a consequence of that approval, in the Administrator's withdrawal of the CAIR FIP. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it would approve a State rule implementing a Federal Standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Authority: 42 U.S.C. 7401 *et seq.* Dated: July 3, 2007. J.I. Palmer Jr., Regional Administrator, Region 4. [FR Doc. E7-13543 Filed 7-11-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2007-0167-200720 FRL-8338-9] Approval of Implementation Plans of Mississippi: Clean Air Interstate Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a revision to the Mississippi State Implementation Plan
(SIP)submitted on January 16, 2007. This revision addresses the requirements of EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005, and subsequently revised on April 28, 2006, and December 13, 2006. EPA is proposing to determine that the SIP revision fully implements the CAIR requirements for Mississippi. Therefore, as a consequence of the SIP approval, EPA will also withdraw the CAIR Federal Implementation Plans (CAIR FIPs) concerning sulfur dioxide (SO <sup>2</sup> ), nitrogen oxide (NO <sup>X</sup> ) annual, and NO <sup>X</sup> ozone season emissions for Mississippi. The CAIR FIPs for all States in the CAIR region were promulgated on April 28, 2006, and subsequently revised on December 13, 2006. CAIR requires states to reduce emissions of SO <sup>2</sup> and NO <sup>X</sup> that significantly contribute to nonattainment of, and interfere with maintenance of, the national ambient air quality standards (NAAQS) for fine particulates and/or ozone in any downwind state. CAIR establishes State budgets for SO <sup>2</sup> and NO <sup>X</sup> and requires states to submit SIP revisions that implement these budgets in states that EPA concluded did contribute to nonattainment in downwind states. States have the flexibility to choose which control measures to adopt to achieve the budgets, including participating in the EPA-administered cap-and-trade programs. In the SIP revision that EPA is proposing to approve, Mississippi would meet CAIR requirements by participating in the EPA-administered cap-and-trade programs addressing SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. DATES: Comments must be received on or before August 13, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-OAR-2007-0167, by one of the following methods: 1. *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. 2. E-mail: *LeSane.Heidi@epa.gov.* 3. Fax: 404-562-9019. 4. Mail: EPA-R04-OAR-2007-0167 Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. 5. Hand Delivery or Courier: Heidi LeSane, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R04-OAR-2007-0167. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit through *http://www.regulations.gov* or e-mail, information that you consider to be CBI or otherwise protected. 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 and any form of encryption and should be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the electronic docket are listed in the *http://www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays. FOR FURTHER INFORMATION CONTACT: If you have questions concerning today's proposal, please contact Heidi LeSane at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. The telephone number is 404-562-9074. Ms. LeSane can also be reached via electronic mail at *LeSane.Heidi@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Proposing to Take? II. What Is the Regulatory History of CAIR and the CAIR FIPs? III. What Are the General Requirements of CAIR and the CAIR FIPs? IV. What Are the Types of CAIR SIP Submittals? V. Analysis of Mississippi's CAIR SIP Submittal A. State Budgets for Allowance Allocations B. CAIR Cap-and-Trade Programs C. Applicability Provisions for non-EGU NO <sup>X</sup> SIP Call Sources D. NO <sup>X</sup> Allowance Allocations E. Allocation of NO <sup>X</sup> Allowances From Compliance Supplement Pool F. Individual Opt-in Units VI. Proposed Actions VII. Statutory and Executive Order Reviews I. What Action Is EPA Proposing To Take? EPA is proposing to approve a revision to Mississippi's SIP, submitted on January 16, 2007. In its SIP revision, Mississippi would meet CAIR requirements by requiring certain electric generating units
(EGUs)to participate in the EPA-administered State CAIR cap-and-trade programs addressing SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. EPA is proposing to determine that the SIP, as revised, will meet the applicable requirements of CAIR. Any final action approving the SIP will be taken by the Regional Administrator for Region 4. As a consequence of the SIP approval, the Administrator of EPA will also issue a final rule to withdraw the FIPs concerning SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions for Mississippi. This action will delete and reserve 40 CFR 52.1284 and 40 CFR 52.1285. The withdrawal of the CAIR FIPs for Mississippi is a conforming amendment that must be made once the SIP is approved because EPA's authority to issue the FIPs was premised on a deficiency in the SIP for Mississippi. Once the SIP is fully approved, EPA no longer has authority for the FIPs. Thus, EPA will not have the option of maintaining the FIPs following the full SIP approval. Accordingly, EPA does not intend to offer an opportunity for a public hearing or an additional opportunity for written public comment on the withdrawal of the FIPs. II. What Is the Regulatory History of CAIR and the CAIR FIPs? CAIR was published by EPA on May 12, 2005 (70 FR 25162). In this rule, EPA determined that 28 States and the District of Columbia contribute significantly to nonattainment and interfere with maintenance of the national ambient air quality standards (NAAQS) for fine particles (PM <sup>2.5</sup> ) and/or 8-hour ozone in downwind States in the eastern part of the country. As a result, EPA required those upwind States to revise their SIPs to include control measures that reduce emissions of SO <sup>2</sup> , which is a precursor to PM <sup>2.5</sup> formation, and/or NO <sup>X</sup> , which is a precursor to both ozone and PM <sup>2.5</sup> formation. For jurisdictions that contribute significantly to downwind PM <sup>2.5</sup> nonattainment, CAIR sets annual State-wide emission reduction requirements (i.e., budgets) for SO <sup>2</sup> and annual State-wide emission reduction requirements for NO <sup>X</sup> . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets State-wide emission reduction requirements for NO <sup>X</sup> for the ozone season (May 1st to September 30th). Under CAIR, States may implement these reduction requirements by participating in the EPA-administered cap-and-trade programs or by adopting any other control measures. CAIR explains to subject States what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Clean Air Act
(CAA)with regard to interstate transport with respect to the 8-hour ozone and PM <sup>2.5</sup> NAAQS. EPA made national findings, effective on May 25, 2005, that the states had failed to submit SIPs meeting the requirements of section 110(a)(2)(D). The SIPs were due in July 2000, 3 years after the promulgation of the 8-hour ozone and PM <sup>2.5</sup> NAAQS. These findings started a 2-year clock for EPA to promulgate a FIP to address the requirements of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a FIP anytime after such findings are made and must do so within two years, unless a SIP revision correcting the deficiency is approved by EPA before the FIP is promulgated. On April 28, 2006, EPA promulgated FIPs for all states covered by CAIR in order to ensure the emissions reductions required by CAIR are achieved on schedule. Each CAIR State is subject to the FIPs until the State fully adopts, and EPA approves, a SIP revision meeting the requirements of CAIR. The CAIR FIPs require EGUs to participate in the EPA-administered CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs, as appropriate. The CAIR FIP SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the FIP and SIP trading programs means that these trading programs will work together to create effectively a single trading program for each regulated pollutant (SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season) in all states covered by the CAIR FIP or SIP trading program for that pollutant. The CAIR FIPs also allow states to submit abbreviated SIP revisions that, if approved by EPA, will automatically replace or supplement certain CAIR FIP provisions (e.g., the methodology for allocating NO <sup>X</sup> allowances to sources in the State), while the CAIR FIP remains in place for all other provisions. On April 28, 2006, EPA published two additional CAIR-related final rules that added the States of Delaware and New Jersey to the list of states subject to CAIR for PM <sup>2.5</sup> and announced EPA's final decisions on reconsideration of five issues, without making any substantive changes to the CAIR requirements. III. What Are the General Requirements of CAIR and the CAIR FIPs? CAIR establishes State-wide emission budgets for SO <sup>2</sup> and NO <sup>X</sup> and is to be implemented in two phases. The first phase of NO <sup>X</sup> reductions starts in 2009 and continues through 2014, while the first phase of SO <sup>2</sup> reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO <sup>X</sup> and SO <sup>2</sup> starts in 2015 and continues thereafter. CAIR requires states to implement the budgets by either:
(1)Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or
(2)adopting other control measures of the State's choosing and demonstrating that such control measures will result in compliance with the applicable State SO <sup>2</sup> and NO <sup>X</sup> budgets. The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that states must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs. With two exceptions, only states that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for states that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for states that include all non-EGUs from their NO <sup>X</sup> SIP Call trading programs in their CAIR NO <sup>X</sup> ozone season trading programs. IV. What Are the Types of CAIR SIP Submittals? States have the flexibility to choose the type of control measures they will use to meet the requirements of CAIR. EPA anticipates that most states will choose to meet the CAIR requirements by selecting an option that requires EGUs to participate in the EPA-administered CAIR cap-and-trade programs. For such States, EPA has provided two approaches for submitting and obtaining approval for CAIR SIP revisions. States may submit full SIP revisions that adopt the model CAIR cap-and-trade rules. If approved, these SIP revisions will fully replace the CAIR FIPs. Alternatively, states may submit abbreviated SIP revisions. These SIP revisions will not replace the CAIR FIPs; however, the CAIR FIPs provide that, when approved, the provisions in these abbreviated SIP revisions will be used instead of or in conjunction with, as appropriate, the corresponding provisions of the CAIR FIPs (e.g., the NO <sup>X</sup> allowance allocation methodology). A State submitting a full SIP revision may either adopt regulations that are substantively identical to the model rules, or incorporate by reference the model rules. CAIR provides that states may only make limited changes to the model rules if the states want to participate in the EPA-administered trading programs. A full SIP revision may change the model rules only by altering their applicability and allowance allocation provisions to: 1. Include NO <sup>X</sup> SIP Call trading sources that are not EGUs under CAIR in the CAIR NO <sup>X</sup> ozone season trading program; 2. Provide for State allocation of NO <sup>X</sup> annual or ozone season allowances using a methodology chosen by the State; 3. Provide for State allocation of NO <sup>X</sup> annual allowances from the compliance supplement pool
(CSP)using the State's choice of allowed, alternative methodologies; or 4. Allow units that are not otherwise CAIR units to opt individually into the CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, or NO <sup>X</sup> ozone season trading programs under the opt-in provisions in the model rules. An approved CAIR full SIP revision addressing EGUs' SO <sup>2</sup> , NO <sup>X</sup> annual, or NO <sup>X</sup> ozone season emissions will replace the CAIR FIP for that State for the respective EGU emissions. V. Analysis of Mississippi CAIR SIP Submittal A. State Budgets for Allowance Allocations The CAIR NO <sup>X</sup> annual and ozone season budgets were developed from historical heat input data for EGUs. Using these data, EPA calculated annual and ozone season regional heat input values, which were multiplied by 0.15 pounds per million British thermal units (lb/mmBtu), for phase 1, and 0.125 lb/mmBtu, for phase 2, to obtain regional NO <sup>X</sup> budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the State NO <sup>X</sup> annual and ozone season budgets from the regional budgets using State heat input data adjusted by fuel factors. The CAIR State SO <sup>2</sup> budgets were derived by discounting the tonnage of emissions authorized by annual allowance allocations under the Acid Rain Program under title IV of the CAA. Under CAIR, each allowance allocated in the Acid Rain Program for the years in phase 1 of CAIR (2010 through 2014) authorizes 0.5 ton of SO <sup>2</sup> emissions in the CAIR trading program, and each Acid Rain Program allowance allocated for the years in phase 2 of CAIR (2015 and thereafter) authorizes 0.35 ton of SO <sup>2</sup> emissions in the CAIR trading program. In this action, EPA is proposing approval of Mississippi's SIP revision that adopts the budgets established for the State in CAIR, i.e., 17,807 (2009-2014) and 14,839 (2015-thereafter) tons for NO <sup>X</sup> annual emissions, 8,714 (2009-2014) and 7,262 (2015-thereafter) tons for NO <sup>X</sup> ozone season emissions and 33,763 (2010-2014) and 23,634 (2015-thereafter) tons for SO <sup>2</sup> emissions. Mississippi's SIP revision sets these budgets as the total amount of allowances available for allocation for each year under the EPA-administered cap-and-trade program. B. CAIR Cap-and-Trade Programs The CAIR NO <sup>X</sup> annual and ozone-season model trading rules both largely mirror the structure of the NO <sup>X</sup> SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO <sup>X</sup> annual and ozone-season model rules are similar, there are some differences. For example, the NO <sup>X</sup> annual model rule (but not the NO <sup>X</sup> ozone season model rule) provides for a CSP, which is discussed below and under which allowances may be awarded for early reductions of NO <sup>X</sup> annual emissions. As a further example, the NO <sup>X</sup> ozone season model rule reflects the fact that the CAIR NO <sup>X</sup> ozone season trading program replaces the NO <sup>X</sup> SIP Call trading program after the 2008 ozone season and is coordinated with the NO <sup>X</sup> SIP Call program. The NO <sup>X</sup> ozone season model rule provides incentives for early emissions reductions by allowing banked, pre-2009 NO <sup>X</sup> SIP Call allowances to be used for compliance in the CAIR NO <sup>X</sup> ozone-season trading program. In addition, states have the option of continuing to meet their NO <sup>X</sup> SIP Call requirement by participating in the CAIR NO <sup>X</sup> ozone season trading program and including all their NO <sup>X</sup> SIP Call trading sources in that program. The provisions of the CAIR SO <sup>2</sup> model rule are also similar to the provisions of the NO <sup>X</sup> annual and ozone season model rules. However, the SO <sup>2</sup> model rule is coordinated with the ongoing Acid Rain SO <sup>2</sup> cap-and-trade program under CAA title IV. The SO <sup>2</sup> model rule uses the title IV allowances for compliance, with each allowance allocated for 2010-2014 authorizing only 0.50 ton of emissions and each allowance allocated for 2015 and thereafter authorizing only 0.35 ton of emissions. Banked title IV allowances allocated for years before 2010 can be used at any time in the CAIR SO <sup>2</sup> cap-and-trade program, with each such allowance authorizing 1 ton of emissions. Title IV allowances are to be freely transferable among sources covered by the Acid Rain Program and sources covered by the CAIR SO <sup>2</sup> cap-and-trade program. EPA also used the CAIR model trading rules as the basis for the trading programs in the CAIR FIPs. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than state implementation. The CAIR model SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs. In the SIP revision, Mississippi chooses to implement its CAIR budgets by requiring EGUs to participate in EPA-administered cap-and-trade programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. Mississippi has adopted a full SIP revision that adopts, with certain allowed changes discussed below, the CAIR model cap-and-trade rules for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. C. Applicability Provisions for Non-EGU NO X SIP Call Sources In general, the CAIR model trading rules apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale. States have the option of bringing in, for the CAIR NO <sup>X</sup> ozone season program only, those units in the State's NO <sup>X</sup> SIP Call trading program that are not EGUs as defined under CAIR. EPA advises states exercising this option to add the applicability provisions in the State's NO <sup>X</sup> SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in order to include in the CAIR NO <sup>X</sup> ozone season trading program all units required to be in the State's NO <sup>X</sup> SIP Call trading program that are not already included under 40 CFR 96.304. Under this option, the CAIR NO <sup>X</sup> ozone season program must cover all large industrial boilers and combustion turbines, as well as any small EGUs (i.e. units serving a generator with a nameplate capacity of 25 MWe or less) that the State currently requires to be in the NO <sup>X</sup> SIP Call trading program. Because Mississippi was not included in the NO <sup>X</sup> SIP Call trading program, Mississippi did not have the option of expanding the applicability provisions of the CAIR NO <sup>X</sup> ozone season trading program. D. NO X Allowance Allocations Under the NO <sup>X</sup> allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO <sup>X</sup> annual, and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIP also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions. States may establish in their SIP submissions a different NO <sup>X</sup> allowance allocation methodology that will be used to allocate allowances to sources in the states, if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO <sup>X</sup> allowance allocation methodologies, states have flexibility with regard to: 1. The cost to recipients of the allowances, which may be distributed for free or auctioned; 2. The frequency of allocations; 3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and 4. The use of allowance set-asides and, if used, their size. Mississippi has not chosen to replace the provisions of the CAIR NO <sup>X</sup> annual model trading rule concerning the allocation of NO <sup>X</sup> annual allowances with its own methodology. Mississippi has not chosen to replace the provisions of the CAIR NO <sup>X</sup> ozone season model trading rule concerning allowance allocations with its own methodology. E. Allocation of NO X Allowances from Compliance Supplement Pool The CAIR establishes a CSP to provide an incentive for early reductions in NO <sup>X</sup> annual emissions. The CSP consists of 200,000 CAIR NO <sup>X</sup> annual allowances of vintage 2009 for the entire CAIR region, and a State's share of the CSP is based upon the projected magnitude of the emission reductions required by CAIR in that State. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO <sup>X</sup> reductions during 2007 or 2008 beyond what is required by any applicable State or Federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls. The CAIR annual NO <sup>X</sup> model trading rule establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in the States. Mississippi has not chosen to modify the provisions of the CAIR NO <sup>X</sup> annual model trading rule concerning the allocation of allowances from the CSP. Mississippi has chosen to distribute CSP allowances using the allocation methodology provided in 40 CFR 96.143 and has adopted this section by reference. F. Individual Opt-In Units The opt-in provisions of the CAIR SIP model trading rules allow certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and recording requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015. States have several options concerning the opt-in provisions. States may adopt the CAIR opt-in provisions entirely or may adopt them but exclude one of the methodologies for allocating allowances. States may also decline to adopt the opt-in provisions at all. Mississippi has chosen to allow non-EGUs meeting certain requirements to opt into the CAIR trading programs by adopting by reference EPA's model rule provisions for opt-in units in the CAIR SO <sup>2</sup> , CAIR NO <sup>X</sup> annual, and CAIR NO <sup>X</sup> ozone season trading programs. VI. Proposed Actions EPA is proposing to approve Mississippi's full CAIR SIP revision submitted on January 16, 2007. Under this SIP revision, Mississippi is choosing to participate in the EPA-administered cap-and-trade programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. The SIP revision meets the applicable requirements in 40 CFR 51.123(o) and (aa), with regard to NO <sup>X</sup> annual and NO <sup>X</sup> ozone season emissions, and 40 CFR 51.124(o), with regard to SO <sup>2</sup> emissions. EPA is proposing to determine that the SIP, as revised, will meet the requirements of CAIR. As a consequence of the SIP approval, the Administrator of EPA will also issue, without providing an opportunity for a public hearing or an additional opportunity for written public comment, a final rule to withdraw the CAIR FIPs concerning SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions for Mississippi. This action will delete and reserve 40 CFR 52.1284 and 40 CFR 52.1285. VII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely proposes to approve State law as meeting Federal requirements and would impose no additional requirements beyond those imposed by State law. Accordingly, the Administrator certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this action proposes to approve pre-existing requirements under State law and would not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affected small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposal also does not have tribal implications because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State rule implementing a Federal standard and will result, as a consequence of that approval, in the Administrator's withdrawal of the CAIR FIP. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it would approve a State rule implementing a Federal Standard. In reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Authority: 42 U.S.C. 7401 *et seq.* Dated: July 3, 2007. J.I. Palmer Jr., Regional Administrator, Region 4. [FR Doc. E7-13567 Filed 7-11-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter I [MB Docket No. 07-57; FCC 07-119] Applications for Consent to the Transfer of Control of Licenses, XM Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio Inc., Transferee AGENCY: Federal Communications Commission. ACTION: Proposed rule; comments requested. SUMMARY: Sirius Satellite Radio Inc. and XM Satellite Radio Holdings Inc. submitted applications seeking permission to transfer control of Commission licenses and authorizations held by XM and Sirius to a single, combined entity. The proposed transfer conflicts with language which prohibits such a combination in an earlier Commission order. The Notice of Proposed Rulemaking (“NPRM”) seeks comment on whether the language in question constitutes a binding Commission rule and, if so, whether the Commission should waive, modify, or repeal the prohibition in the event that the Commission determines that the proposed merger, on balance, would serve the public interest. DATES: Interested parties may file comments on the NPRM on or before August 13, 2007, and reply comments on or before August 27, 2007. ADDRESSES: Copies of the NPRM may be accessed from the Internet homepage of the Federal Communications Commission via the following hyperlink: *http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-119A1.pdf* . Comments may be filed using:
(1)The Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. *See Electronic Filing of Documents in Rulemaking Proceedings* , 63 FR 24121, May 1, 1998. • *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. *People with Disabilities:* To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). FOR FURTHER INFORMATION CONTACT: Rosemary C. Harold,
(202)418-7200, Royce Sherlock,
(202)418-7030, or Marcia Glauberman,
(202)418-7046, of the Media Bureau. SUPPLEMENTARY INFORMATION: The NPRM was adopted by the Commission on June 25, 2007, and released on June 27, 2007. *Initial Regulatory Flexibility Certification.* Pursuant to the Regulatory Flexibility Act, the Commission certifies that the outcome of this rulemaking will not have a significant economic impact on a substantial number of small entities. Currently, only XM and Sirius hold licenses to provide SDARS service. Because SDARS service requires significant capital for operation, the Commission believes it is unlikely that a small entity, as defined by the Small Business Administration, would have the financial wherewithal to become an SDARS licensee. 1 1 The small business size standard for the census category, “Radio Networks,” which includes radio satellite broadcasting, is $6.5 million or less in receipts, per year. See 13 CFR 121.201, NAICS code 51511. *Paperwork Reduction Act.* The NPRM does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Thus, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. See 44 U.S.C. 3506(c)(4). *Ex Parte Information.* This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission's rules. *See generally* 47 CFR 1.1202, 1.1203, and 1.1206(a). Federal Communications Commission. William F. Caton, Deputy Secretary. [FR Doc. E7-13485 Filed 7-11-07; 8:45 am] BILLING CODE 6712-01-P 72 133 Thursday, July 12, 2007 Notices DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket # AMS-FV-2007-0008; FV-06-310] United States Standards for Grades of Florida Avocados AGENCY: Agricultural Marketing Service, USDA. ACTION: Reopening and extension of the comment period. SUMMARY: Notice is hereby given that the comment period on possible revisions to the United States Standards for Grades of Florida Avocados is reopened and extended. DATES: Comments must be received by August 13, 2007. ADDRESSES: Interested persons are invited to submit written comments on the Internet at: *http://www.regulations.gov* or the Standardization Section, Fresh Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture; 1400 Independence Ave. SW., Room 1661 South Building, Stop 0240, Washington, DC 20250-0240; or fax
(202)720-8871. Comments should make reference to the dates and page number of this issue of the **Federal Register** and will be made available for public inspection in the above office during regular business hours. FOR FURTHER INFORMATION CONTACT: Vincent J. Fusaro, Standardization Section, Fresh Products Branch,
(202)720-2185. The United States Standards for Grades of Florida Avocados are available through the Fresh Products Branch Web site at: *http://www.ams.usda.gov/standards/stanfrfv.htm.* SUPPLEMENTARY INFORMATION: A notice was published in the **Federal Register** on March 29, 2007, (72 FR 14709), requesting comments on the possible revision of the United States Standards for Grades of Florida Avocados. The proposed revision would modify the title of the standard by deleting “Florida,” to make the standards generic to cover all avocados. The comment period ended May 29, 2007. A comment was received on behalf of a foreign government expressing the need for additional time to comment. They requested an extension to the comment period to allow further review of the proposed revisions and their potential impact. After reviewing the request, AMS is reopening and extending the comment period in order to allow sufficient time for interested persons, including growers, packers, and trade groups to file comments. Authority: 7 U.S.C. 1621-1627. Dated: July 9, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-13549 Filed 7-11-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Forest Service Alpine County, CA, Resource Advisory Committee
(RAC)AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: Pursuant to the authorities in the Federal Advisory Committees Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393) the Alpine County Resource Advisory Committee
(RAC)will meet on Thursday, July 17, 2007 at 18:00 at the Diamond Valley School for business meetings. The purpose of the meeting is to discuss issues relating to implementing the Secure Rural Schools and Community Self-Determination Act of 2000 (Payment to States) and expenditure of Title II funds. The meetings are open to the public. DATES: Thursday, July 17, 2007 at 18:00 hours. ADDRESSES: The meeting will be held at the Diamond Valley School, 35 Hawkside Drive, Markleeville, California 96120. Send written comments to Franklin Pemberton, Alpine County RAC coordinator, c/o USDA Forest Service, Humboldt-Toiyabe N.F., Carson Ranger District 1536 So. Carson Street, Carson City, NV 89701. FOR FURTHER INFORMATION CONTACT: Alpine Co. RAC Coordinator, Franklin Pemberton at
(775)884-8150; or Gary Schiff, Carson District Ranger and Designated Federal Officer, at
(775)884-8100, or electronically to *fpemberton@fs.fed.us.* SUPPLEMENTARY INFORMATION: The Meeting is open to the public. Council discussion is limited to Forest Service staff and Council members. However, persons who wish to bring urban and community forestry matters to the attention of the council may file written statements with the Council staff before and after the meeting. Dated: July 3, 2007. Edward Monnig, Forest Supervisor, Humboldt-Toiyabe N.F. [FR Doc. 07-3383 Filed 7-11-07; 8:45 am]
Connectionstraces to 42
Traces to 42 documents
CFR
U.S. Code
38 references not yet in our index
  • 10 CFR 50
  • 26 CFR 1
  • 28 CFR 75
  • Pub. L. 100-690
  • Pub. L. 108-21
  • Pub. L. 109-248
  • 33 F.3d 78
  • 636 F. Supp. 828
  • 812 F.2d 1239
  • 32 F.3d 733
  • 244 F.3d 375
  • 890 F.2d 241
  • 18 USC 2257A
  • 18 USC 2257A(h)(1)(A)
  • 139 F.3d 804
  • 5 USC 601-612
  • 32 CFR 903
  • Pub. L. 104-4
  • Pub. L. 96-354
  • Pub. L. 95-511
  • 10 USC 9331
  • 38 CFR 17
  • Pub. L. 107-287
  • Pub. L. 109-114
  • 5 USC 7901-7904
  • 44 USC 3501-3521
  • 40 CFR 52
  • 40 CFR 96
  • 40 CFR 96.304
  • 40 CFR 75
  • 40 CFR 52.1285
  • 40 CFR 96.143
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 47 CFR 1.1202
  • 7 USC 1621-1627
  • Pub. L. 92-463
  • Pub. L. 106-393
Citation graph
cites case law
Proposed Rules
Petition for rulemaking; notice of receipt
C.F.R.§ 50.67
C.F.R.§ 2.802
U.S.C.§ 2257
U.S.C.§ 2256
U.S.C.§ 231
U.S.C.§ 601
U.S.C.§ 604
U.S.C.§ 632
Fed. Reg.Notices
F. App'x33 F.3d 78
F. Supp.636 F. Supp. 828
F. App'x812 F.2d 1239
Cites 80 · showing 12Cited by 0 across 0 sources
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