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Code · REGISTER · 2007-08-15 · Social Security Administration · Proposed Rules

Proposed Rules. Notice of proposed rulemaking

16,497 words·~75 min read·/register/2007/08/15/07-3958·

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

Agency: Social Security Administration
Action: Notice of proposed rulemaking
Citation: FR Doc. 07-3958 · RIN 0960-AG53 · Docket No. SSA-2007-0045 · 20 CFR 405

Summary

We propose to modify our disability administrative adjudication processes to suspend new claims to the Federal reviewing official (FedRO) level, now operating in the Boston region. Claims already received will continue to be processed by the FedRO and a related component of the disability determination process, the Medical and Vocational Expert System (MVES), commonly known as the Office of Medical and Vocational Expertise (OMVE). We also propose to remove the MVES/OMVE from the disability adjudication process for new claims. We are making these proposals to ensure that we continually improve our disability adjudication process. Lastly, we are requesting comments on using the MVES/OMVE to develop and manage a national registry of experts.

Dates

To be sure that we consider your comments on our proposed changes, we must receive them no later than September 14, 2007. However, we also invite comments by November 13, 2007 on the merits of a national registry of experts, including MVES/OMVE management of the registry, and the rates to be paid to the experts affiliated with the registry.

Supplementary Information

Electronic Version The electronic file of this document is available on the date of publication in the Federal Register at . Introduction We are dedicated to providing high-quality service to the American public. When in March 2006 we announced changes to our administrative review process for initial disability claims, we explained that we expected that the changes would improve disability service. Our commitment to continuous improvement in the way we process disability claims did not end with the publication of those rules as we continually explore ways to improve service to some of the most vulnerable in our society. We face, now and in the foreseeable future, significant challenges to our ability to provide the level of service that disability benefit claimants deserve because of the increased complexity of and growth in claims for those benefits. Consequently, we propose modifications to our administrative review process that will further help us evaluate changes put in place in March 2006 and help us provide accurate and timely service to claimants for Social Security disability benefits and supplemental security income payments based on disability or blindness. The importance of these disability benefits to the lives and subsistence of many Americans cannot be underestimated. Nearly 15 million disabled Social Security beneficiaries and supplemental security income recipients receive over $10 billion in Federal monthly payments. The adjudication of disability claims requires evaluating complex medical and vocational evidence. The number of claims and requests for hearings that we receive has continued to expand. In 2004-2006, we received an annual average of 2.6 million disability claims that required decisions on medical grounds, the most time and labor intensive basis for deciding such claims. Along with this expansion in the number of claims, there has been a concomitant increase in the number of hearing requests. Our hearing offices have received an average of over 564,000 titles II and XVI disability hearing requests each year from 2002 through 2006, a significant increase from the annual average of almost 472,000 hearing requests in 1997-2001. As these figures show, over the 5-year period from 2002 through 2006, we received each year over 90,000 more requests for titles II and XVI hearings than we annually received during the period from 1997 through 2001. The vast number of disability claims now filed each year, as well as other factors such as the expected increase in disability claims as the baby boomers move into their disability-prone years, probable limitations on our resources to process these claims, and the projected impending increase in filings for retirement and survivors benefits as baby boomers retire, will continue to place an even greater strain on the system. We expected that the spring 2006 changes to the administrative review process for initial disability claims would “improve the accuracy, consistency, and timeliness of decision-making throughout the disability determination process.” 71 FR 16424 (March 31, 2006). We planned a gradual roll-out of the changes so that we could determine their effect on the disability process overall. As we explained then, “Gradual implementation will allow us to monitor the effects that our changes are having on the entire disability determination process * * * We will carefully monitor the implementation process in the Boston region and quickly address any problems that may arise.” 71 FR at 16440-41. Based on initial reviews of the quick disability determination (QDD) and FedRO elements of that process, and mindful of the workload challenges that we now face—especially at the hearing level—we believe we need to modify some of the changes made last spring. As we explain in our recently published notice of proposed rulemaking on the QDD process (July 10, 2007; 72 FR 37496), we are proposing to retain and expand the QDD process, and, as we explain here, we propose to suspend new claims going through the FedRO and the MVES, organizationally known as the OMVE. However, claims already received will continue through the FedRO and MVES so we can continue to evaluate their effectiveness. These proposals are based on our commitment to outstanding service and to continuously improving our service as we realign our resources to ensure that we are capable of processing the current and anticipated number of disability claims and reducing the number of pending hearings. 1. Suspending OFedRO and MVES/OMVE Allows Reallocation of Resources to the Backlog at the Hearings Level In the March 2006 final rule, we replaced the State agency reconsideration level with a Federal adjudicative level, called the FedRO. Attorneys staff the FedRO positions, and they, along with the managerial, support, and administrative staff, make up the Office of the FedRO (OFedRO). OFedRO uses the MVES/OMVE to develop the medical and vocational evidence in the claims before them. The goal of FedRO and OMVE is to have this level of review help ensure more accurate and consistent decision making earlier in the process. We are continuing to evaluate the effect of these new components on our program and administrative functions. Our experience over the last year in the Boston region demonstrates that the administrative costs associated with OFedRO and its consequent use of the MVES/OMVE to develop medical and vocational evidence is greater over the foreseeable future than originally anticipated. We do not yet have sufficient results to fully evaluate the potential improvements in program efficacy that are the goals of the FedRO and OMVE. Therefore, we propose to suspend new claims going through the FedRO and OMVE, so that we can reallocate resources to reduce the backlog at the hearing level, while we evaluate the FedRO and OMVE through the processing of claims already received. Once this evaluation is completed and alternative approaches analyzed, we will make a decision whether to reinstate the processing of new claims at the FedRO or to pursue an alternative approach to improving the disability determination process. Under this proposal, we are amending part 405 with provisions that will suspend new claims to the OFedRO and MVES/OMVE. This change will allow us to continue to evaluate the FedRO and OMVE through the processing of claims already received. We expect to have approximately 15,500 cases pending FedRO review when this rule becomes effective. We will complete the processing of those pending cases, but will not assign to FedRO any more cases originally filed under the new process in Boston that otherwise would have been slated for FedRO review. Instead, if cases are at the initial level in Boston or not assigned to FedRO on the effective date of this rule, those cases will be assigned to State agencies for reconsidered determinations or to administrative law judges for hearing, whichever is applicable in that particular New England State. In other words, States in the Boston region, where the FedRO and MVES/OMVE are currently functioning, would return to the same process they were following before August 2006, whether that process was reconsideration under 20 CFR 404.907 and 416.1407 or the testing procedures under 20 CFR 404.906 and 416.1406. 2. Request for Comments on a National Registry of Experts Even though we propose to suspend new claims to the MVES/OMVE from the administrative review process under part 405 of our rules, we are considering using the MVES/OMVE in a more limited role to develop and manage a national registry of medical, psychological, and vocational experts to assist disability adjudicators in developing and/or clarifying information within the record. Once the MVES/OMVE has developed the registry, the MVES/OMVE would continue to manage the registry. Disability adjudicators at the State and Federal levels would be able to directly access the experts affiliated with the registry without having to go through the MVES/OMVE to arrange for expert assistance. We ask for comments on the merits of such a registry, including MVES/OMVE management of the registry, and the rates to be paid to the experts affiliated with the registry. Questions upon which you may wish to comment include, but are not limited to: What qualifications should experts on the national registry have? Should experts be required to have experience or training related to our disability programs? Should disability adjudicators be required to use the registry when they require expert assistance? Should we pay experts flat rates nationally or should the rates be based on locality? If rates are based on locality, what factors should we consider in setting those rates? Regardless of whether the rates we pay the experts are based on national or local rates, should we vary rates to account for the individual's level of expertise, and if so, how should that be done? Should we build in an automatic adjustment for inflation and, if so, which measure would be most appropriate for this function? We would be very interested in your thoughts regarding these issues and request that they be submitted within 90 days of the publication of this notice. We will consider comments submitted within this time period as we continue to develop our plans for a national registry. We will not respond to these comments until such time as we may publish a notice of proposed rulemaking setting out more detailed plans for such a registry. Clarity of These Proposed Rules Executive Order 12866, as amended, requires each agency to write all rules in plain language. In addition to your substantive comments on these final rules, we invite your comments on how to make them easier to understand. For example: • Have we organized the material to suit your needs? • Are the requirements in the rules clearly stated? • Do the rules contain technical language or jargon that isn't clear? • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand? • Would more (but shorter) sections be better? • Could we improve clarity by adding tables, lists, or diagrams? • What else could we do to make the rules easier to understand? Regulatory Procedures Pursuant to sections 205(a), 702(a)(5), and 1631(d)(1) of the Social Security Act, 42 U.S.C. 405(a), 902(a)(5), and 1383(d)(1), we follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of our regulations. We ordinarily publish a notice of proposed rulemaking in the Federal Register and permit a 60-day comment period. This period, however, may be shortened when the agency finds good cause that a 60-day comment period would be impracticable, unnecessary, or contrary to the public interest and incorporates a statement of the finding and its reasons in the rule issued. For this proposed rule, we find that there is good cause for allowing a 30-day comment period on the issue of suspending OFedRO and MVES/OMVE (section 1 above) because we believe that it would be contrary to the public interest not to effectuate these rules as quickly as we can. However, if it appears that 30 days is not sufficient time to comment—for example, if the volume of comments indicates that there is great public interest in this rule—we will consider extending the comment period to 60 days. We intend to shift the resources required for the FedRO and MVES/OMVE to the effort to reduce the pending hearing requests to a manageable level. In order to shift those resources as quickly as we can, we must suspend new claims to the appeal procedure to the FedRO, and thereby, stem the flow of cases to the FedRO and the MVES/OMVE. Upon the effective date of the final rules, the first level of appeal would be reconsideration for any claimant who has not yet requested FedRO review, unless the State is a part of the prototype test in which case the first level of review would be to an administrative law judge. Claimants who have not yet been issued an initial determination would be advised in the initial determination notice that their first level of appeal would be reconsideration or a hearing, whichever applies. This would allow the FedRO and the MVES/OMVE to complete the processing of the cases in the pipeline, allow us to redirect resources to other tasks, including assisting us in reducing the backlog at the hearing level. However, we are providing a 90-day comment period on the issue of a national registry of experts (section 2 above). Executive Order 12866, as Amended We have consulted with the Office of Management and Budget (OMB) and determined that this proposed rule meets the criteria for an economically significant regulatory action under Executive Order 12866, as amended. Thus, it was reviewed by OMB. The Office of the Chief Actuary (OCACT) estimates that this rule will result in program savings of roughly $1.0 billion in OASDI benefit payments and cost of $0.1 billion in Federal SSI payments over the next 10 years, as shown below (in millions of dollars): Table 1.—Estimated Effect on OASDI and Federal SSI Benefit Payments of a Proposed Regulation Eliminating New Claims to the Federal Reviewing Official and Modifying the Role of the Medical and Vocational Expert System, Fiscal Years 2008-17 [In millions] Fiscal year OASDI SSI Total 2008 −$14 −$3 −$18 2009 −42 −9 −51 2010 −51 −8 −60 2011 −57 −15 −72 2012 −45 −6 −51 2013 −53 9 −44 2014 −122 22 −100 2015 −192 29 −163 2016 −248 40 −208 2017 −219 82 −137 Totals: 2008-12 −209 −41 −251 2008-17 −1,042 140 −902 Notes: 1. The estimates are based on the assumptions underlying the President's FY 2008 Budget. 2. Federal SSI payments due on October 1st in fiscal years 2012, 2017 and 2018 are included with payments for the prior fiscal year. 3. Totals may not equal sum of components due to rounding. Table 1 above presents the estimated short-range effects on OASDI benefit payments and Federal SSI payments that would result from implementation of this NPRM, measured relative to the baseline used for the President's Fiscal Year 2008 Budget and assuming that a final rule implementing these changes would become effective for initial determinations made on or after April 1, 2008. The FY 2008 Budget assumed that DSI would be gradually implemented at the pace of one region per year and be fully implemented for new claims in all regions by the beginning of FY 2016. For the 10 States where the Prototype determination process has been or is being tested, the effect of this NPRM would be to retain or restore the Prototype process so that the first level of appeal of an initial disability decision would be to an administrative law judge. As required by OMB Circular A-4 (available at ) , in Table 2, we have prepared an accounting statement showing the annualized economic impact of suspending new claims to the FedRO level. All estimated impacts are classified as transfers. Table 2.—Accounting Statement: Estimated Economic Impact of Suspending New Claims to the FedRO Level From 2008-2016 in 2007 Dollars Category Transfers Annualized Monetized Transfers $81.3 million (7% discount rate). $86.4 million (3% discount rate). From Whom To Whom? From SSA beneficiaries to the Social Security trust fund and the general fund. Suspending new claims going through the FedRO and OMVE will allow us to reallocate resources to reduce the backlog at the hearing level by holding more hearings and making system improvements to increase the efficiency of our hearings process. We will also continue to evaluate the FedRO and OMVE through the processing of claims already received. This evaluation will include an assessment of DSI, as the pilot is currently implemented in the Boston region, with existing claims. In the analysis we will analyze DSI's impact on the timeliness of disability determinations, on overall program costs, as well as its impact on the administrative costs required to implement this new process. Once this evaluation is complete and alternative approaches analyzed, we will make a decision whether to reinstate the processing of new claims into the FedRO or pursue an alternative approach to improving the disability determination process. Regulatory Flexibility Act We certify that this proposed rule, when published in final, will not have a significant economic impact on a substantial number of small entities as it affects only States and individuals. Therefore, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act These rules impose no new reporting or recordkeeping requirements requiring OMB clearance. Federalism Impact and Unfunded Mandates Impact We have reviewed this proposed rule under the threshold criteria of Executive Order 13132 and the Unfunded Mandates Reform Act and have determined that it does not have substantial direct effects on the States, on the relationship between the national government and the States, on the distribution of power and responsibilities among the various levels of government, or on imposing any costs on State, local, or tribal governments. This proposed rule does not affect the roles of the State, local, or tribal governments. However, the proposed rule takes administrative notice of existing statutes governing the roles and relationships of the State agencies with us with respect to disability determinations under the Act. (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006, Supplemental Security Income) List of Subjects in 20 CFR Part 405 Administrative practice and procedure; Blind, Disability benefits; Old-Age, Survivors, and Disability Insurance; Public assistance programs, Reporting and recordkeeping requirements; Social Security; Supplemental Security Income (SSI). Dated: August 7, 2007. Michael J. Astrue, Commissioner of Social Security. For the reasons set out in the preamble, we are amending subparts A and C of part 405 as set forth below: PART 405—ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INITIAL DISABILITY CLAIMS 1. The authority citation for part 405 continues to read as follows: Authority: Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221, 223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421, 423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b). Subpart A—[Amended] 2. Amend § 405.10 by adding paragraph (d) to read as follows: § 405.10 Medical and Vocational Expert System. (d) This section will no longer be effective on the same date as described in § 405.240(c) of this part unless the Commissioner decides that the Medical and Vocational Expert System should be continued and extends the sunset date as described in § 405.240(d) of this part by publishing a notice of proposed rulemaking in the Federal Register before that date. 3. Revise the appendix to subpart A of part 405 to read as follows: Appendix to Subpart A of Part 405—Claims That Will Be Handled Under the Procedures in This Part (a) We will apply the procedures in this part to disability claims (as defined in § 405.5) filed in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, or Connecticut. (b) If you move from one State to another after your disability claim has been filed, adjudicators at subsequent levels of review will apply the regulations that initially applied to the disability claim. For example, if you file a claim in a State in which we apply the procedures in this part, the procedures in this part will apply to the disability claim at subsequent levels of review, even if you move to a State where we would otherwise not apply these procedures. Conversely, if you file a claim in a State where we do not apply the procedures in this part, we will adjudicate the claim using the procedures in part 404 or 416 of this chapter, as appropriate, even if you subsequently move to a State where we would otherwise apply the procedures in this part. Subpart C—[Amended] 4. Add § 405.240 to read as follows: § 405.240 Sunset of this Subpart. (a) If you have filed a request for review by a Federal reviewing official on or before the effective date of this section, the Federal reviewing official will review and issue a decision on your claim. (b) If you have not filed a request for review by a Federal reviewing official on or before the effective date of this section and you have received an initial determination under subpart B of this part, we will process any request for additional administrative review filed after the effective date as either a request for reconsideration by the State agency or a request for hearing before an administrative law judge if your State uses the testing procedures under §§ 404.906 and 416.1406 of this title. (c) This subpart will no longer be effective the day after a Federal reviewing official issues a decision on the last of the claims accepted for review under paragraph (a) of this section. (d) If compelling evidence shows that the Federal reviewing official process is efficient, effective, and sustainable given available Agency resources, the Commissioner may reinstate the Federal reviewing official process by publishing a notice of proposed rulemaking in the Federal Register . [FR Doc. E7-16071 Filed 8-14-07; 8:45 am] BILLING CODE 4191-02-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 97 [EPA-R06-OAR-2007-0651; FRL-8455-1] Approval and Promulgation of Implementation Plans; Louisiana; Clean Air Interstate Rule Nitrogen Oxides Trading Programs AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a revision to the Louisiana State Implementation Plan (SIP) submitted by the State of Louisiana on July 12, 2007, as the Louisiana Clean Air Interstate Rule (CAIR) Nitrogen Oxides (NO X ) Trading Programs abbreviated SIP. We are proposing to approve Louisiana's CAIR NO X Annual and Ozone Season Abbreviated SIP revision in parallel with the Louisiana Department of Environmental Quality's (LDEQ) rulemaking activities (“parallel processing”). The abbreviated SIP revision includes the Louisiana methodology for allocation of annual and ozone season NO X allowances. EPA is proposing to determine that the Louisiana CAIR NO X Trading Programs abbreviated SIP revision satisfies the applicable requirements of a CAIR abbreviated SIP revision. EPA is also proposing to approve revisions to the Louisiana SIP that establish administrative reporting requirements for all Louisiana CAIR programs; these revisions were submitted on September 22, 2006, as part of the Louisiana CAIR Sulfur Dioxide (SO 2 ) Trading Program SIP. EPA is also proposing that the Louisiana CAIR NO X Annual and Ozone Season Abbreviated SIP will satisfy Louisiana's Clean Air Act (CAA) Section 110(a)(2)(D)(i) obligations to submit a SIP revision that contains adequate provisions to prohibit air emissions from adversely affecting another State's air quality through interstate transport. The intended effect of this action is to reduce NO X emissions from the State of Louisiana that are contributing to nonattainment of the 8-hour ozone and PM 2.5 National Ambient Air Quality Standards (NAAQS or standard) in downwind states. This action is being taken under section 110 of the CAA. DATES: Comments must be received on or before September 14, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-OAR-2007-0651, by one of the following methods: (1) : Follow the on-line instructions for submitting comments. (2) E-mail: Mr. Jeff Robinson at . Please also cc the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below. (3) U.S. EPA Region 6 “Contact Us” Web site: . Please click on “6PD” (Multimedia) and select “Air” before submitting comments. (4) Fax: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), at fax number 214-665-6762. (5) Mail: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. (6) Hand or Courier Delivery: Mr. Jeff Robinson, Chief, Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-2007-0651. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information through or e-mail, if you believe that it is CBI or otherwise protected from disclosure. The Web site is an “anonymous access” system, which means that 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 , 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 along with any disk or CD-ROM submitted. 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 . Docket: All documents in the docket are listed in the index. Although listed in the index, some information is not publicly available, e.g., CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in or in hard copy at the Air Permits Section (6PD-R), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733. The file will be made available by appointment for public inspection in the Region 6 FOIA Review Room between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal holidays. Contact the person listed in the FOR FURTHER INFORMATION CONTACT paragraph below to make an appointment. If possible, please make the appointment at least two working days in advance of your visit. A 15 cent per page fee will be charged for making photocopies of documents. On the day of the visit, please check in at the EPA Region 6 reception area on the seventh floor at 1445 Ross Avenue, Suite 700, Dallas, Texas. The State submittal related to this SIP revision, and which is part of the EPA docket, is also available for public inspection at the State Air Agency listed below during official business hours by appointment: Louisiana Department of Environmental Quality, Office of Environmental Quality Assessment, 602 N. Fifth Street, Baton Rouge, Louisiana 70802. FOR FURTHER INFORMATION CONTACT: If you have questions concerning today's proposal, please contact Ms. Adina Wiley (6PD-R), Air Permits Section, Environmental Protection Agency, Region 6, 1445 Ross Avenue (6PD-R), Suite 1200, Dallas, TX 75202-2733. The telephone number is (214) 665-2115. Ms. Wiley can also be reached via electronic mail at . SUPPLEMENTARY INFORMATION: Throughout this document, wherever any reference to “we,” “us,” or “our” is used, we mean EPA. Table of Contents I. What Action Is EPA Proposing? II. What Is the Regulatory History of CAIR and the CAIR FIP? III. What Are the General Requirements of CAIR and the CAIR FIP? IV. What Are the Types of CAIR SIP Submittals? V. What Is EPA's Analysis of Louisiana's CAIR NO X Annual and Ozone Season Abbreviated SIP Revision? A. State Budgets for NO X Annual and Ozone Season Allowance Allocations B. CAIR NO X Annual and Ozone Season Cap-and-Trade Programs C. Applicability Provisions for Non-EGU NO X SIP Call Sources D. NO X Annual and Ozone Season Allowance Allocations E. Allocation of NO X Allowances From the Compliance Supplement Pool F. Individual Opt-In Units VI. What Is EPA's Analysis of the Section 110(a)(2)(D)(i) Requirements? VII. Proposed Action VIII. Statutory and Executive Order Reviews I. What Action Is EPA Proposing? On July 12, 2007, the State of Louisiana requested that EPA parallel process an abbreviated revision to the Louisiana SIP in conjunction with the LDEQ's rulemaking activities. The SIP revision consists of new regulations that establish the NO X annual and ozone season allocation methodologies that are to be used instead of the Federal allocations in the Louisiana CAIR NO X Annual and Ozone Season Federal Implementation Plans (FIP). The affected state regulations that we are proposing to approve today as part of the Louisiana CAIR NO X Trading Programs abbreviated SIP are enacted at Louisiana Administrative Code, Title 33, Part III, Chapter 5, Sections 506(A) and (B) (LAC 33:III.506(A) and (B)). EPA is proposing to determine that the Louisiana CAIR NO X Trading Programs abbreviated SIP revision satisfies the applicable requirements of a CAIR abbreviated SIP revision at 40 CFR 51.123(p)(1) and (ee)(2). We are also at this time proposing to approve revisions to the Louisiana SIP at LAC 33:III.506 (D) and (E), submitted September 22, 2006, that establish administrative reporting requirements germane to all Louisiana CAIR programs. We had deferred action on these subsections in the Louisiana CAIR SO 2 rulemaking until we had the opportunity to review and act upon the Louisiana CAIR NO X programs (see 72 FR 39741). The provisions of the Louisiana CAIR NO X Annual and Ozone Season FIP at 40 CFR 52.984 require owners or operators of NO X sources located in Louisiana to meet the Federal NO X annual and ozone season trading programs found at 40 CFR part 97. These Federal trading programs' rules include provisions at 40 CFR 97.144(a) and 97.343(a) that if EPA approves the Louisiana abbreviated SIP revision for NO X annual and ozone season allocation methodologies, then the Federal NO X annual and ozone season allocation methodologies no longer apply. If EPA approves the Louisiana NO X annual and ozone season allocation methodologies into the Louisiana SIP, then EPA under 40 CFR 52.984, 97.144(a), and 97.343(a) will not make allocations for the CAIR NO X sources in Louisiana; the LDEQ will allocate NO X annual and ozone season allowances using the Louisiana SIP rules. Consequently, if EPA approves the Louisiana abbreviated SIP revision, EPA is not required to take any rulemaking action to change the Federal CAIR NO X Annual and Ozone Season trading programs in 40 CFR part 97 or to change the Louisiana CAIR FIP for NO X annual and ozone season emissions in 40 CFR 52.984. Rather EPA, by ministerial action, will note in Appendix A.1. to Subpart EE of 40 CFR Part 97, that Louisiana has an approved SIP revision for NO X annual allowances. Similarly, EPA will note in Appendix A to Subpart EEEE of 40 CFR Part 97, that Louisiana has an approved SIP revision for NO X ozone season allowances. Since the Federal CAIR NO X Annual and Ozone Season trading programs' rules provide for automatic revision of the Louisiana CAIR FIP for NO X annual and ozone season emissions upon approval of such an abbreviated SIP revision, the Louisiana rules for NO X annual and ozone season allowance allocations would apply, rather than the Federal rules governing allocations, upon the effective date of approval. In addition, EPA is also proposing to approve a revision to Louisiana's SIP to address the “good neighbor” provisions of section 110(a)(2)(D)(i) of the CAA. This section of the Act requires each State to submit a SIP that prohibits emissions that could adversely affect another State. The SIP must prevent sources in the State from emitting pollutants in amounts which will: (1) Contribute significantly to downwind nonattainment of the national ambient air quality standards (NAAQS), (2) interfere with maintenance of the NAAQS, (3) interfere with provisions to prevent significant deterioration of air quality, and (4) interfere with efforts to protect visibility. Why are we “parallel processing” and how does it work? The Louisiana CAIR NO X Annual and Ozone Season FIP includes a NO X allowance recordation deadline of September 30, 2007, at 40 CFR 97.153 and 97.353. As explained in the preamble of our April 28, 2006, promulgation of the CAIR FIPs, EPA will only record State allowance allocations if EPA has approved a full or abbreviated SIP for the State which specifies the allocation methodology (see 71 FR 25354). The State of Louisiana requested parallel processing of the Louisiana CAIR NO X Trading Program Abbreviated SIP revision to expedite federal approval of the Louisiana NO X annual and ozone season allocation methodology. In order to expedite review, approval of this revision is being proposed under a procedure called “parallel processing” whereby EPA proposes rulemaking action concurrently with the State's procedures for amending its regulations (40 CFR part 51, Appendix V, section 2.3). If the State's proposed revision is substantially changed, EPA will evaluate those subsequent changes and may publish another notice of proposed rulemaking. If no substantial changes are made, EPA will publish a final rulemaking on the revisions after responding to any submitted comments. Final rulemaking action by EPA will occur only after the SIP revision has been fully adopted by Louisiana and submitted formally to EPA for incorporation into the SIP. In addition, any action by the State resulting in undue delay in the adoption of the rules may results in a re-proposal altering the approvability of the SIP revision. II. What Is the Regulatory History of CAIR and the CAIR FIP? EPA promulgated the CAIR 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 2.5 ) 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 2 , which is a precursor to PM 2.5 formation, and/or NO X , which is a precursor to both ozone and PM 2.5 formation. For jurisdictions that contribute significantly to downwind PM 2.5 nonattainment, CAIR sets annual State-wide emission reduction requirements (i.e., budgets) for SO 2 and annual State-wide emission reduction requirements for NO X . Similarly, for jurisdictions that contribute significantly to 8-hour ozone nonattainment, CAIR sets statewide emission reduction requirements for NO X for the ozone season (defined at 40 CFR 97.302 as May 1st to September 30th). Under CAIR, States may implement these emission budgets by participating in the EPA-administered cap-and-trade programs or by adopting and submitting for EPA approval any other control measures. EPA found that Louisiana significantly contributed to nonattainment of the 8-hour ozone standard in Texas and the PM 2.5 standard in Alabama, resulting in Louisiana being subject to the SO 2 , NO X annual, and NO X ozone season requirements of CAIR. Louisiana submitted a SIP revision addressing the SO 2 requirements of CAIR on September 22, 2006. We approved this SIP revision through a direct final action on July 20, 2007 (72 FR 39741). 1 Today we are proposing to approve the abbreviated SIP revision addressing the Louisiana NO X annual and ozone season requirements of CAIR with this rulemaking. There are no punitive consequences for Louisiana failing to submit SO 2 , NO X Annual, and NO X Ozone Season CAIR SIPs. 1 Louisiana is subject to the CAIR SO 2 Federal Implementation Plan at 40 CFR 52.985 until EPA's final action becomes effective on the Louisiana CAIR SO 2 Trading Program SIP revision. If no adverse comments are received on our direct final action by August 20, 2007, the Louisiana CAIR SO 2 Trading Program will be effective on September 18, 2007. We are not accepting comments on the Louisiana CAIR SO 2 Trading Program in this action; if you would like to comment on the Louisiana CAIR SO 2 Trading Program please follow the instructions at 72 FR 39741, Docket ID No. EPA-06-OAR-2006-0849. CAIR sets forth what must be included in SIPs to address the requirements of section 110(a)(2)(D) of the Act with regard to interstate transport for the 8-hour ozone and PM 2.5 NAAQS. EPA made national findings (70 FR 21147), effective May 25, 2005, that the affected 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 2.5 NAAQS. These May 25, 2005, findings started a 2-year clock for EPA to promulgate a FIP to address the requirements of section 110(a)(2)(D), including the “good neighbor provision” at section 110(a)(2)(D)(i) which applies to interstate transport of certain emissions. 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 August 15, 2006, EPA issued guidance for SIP submissions that states should use to address the requirements of section 110(a)(2)(D)(i) for the 8-hour ozone and PM 2.5 NAAQS. 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. See 40 CFR 52.35 and 52.36. Each CAIR State is subject to the FIP until the State fully adopts, and EPA approves, a SIP revision meeting the requirements of CAIR. The CAIR FIPs require certain EGUs to participate in the EPA-administered CAIR SO 2 , NO X Annual, and NO X Ozone Season trading programs, as appropriate, found at 40 CFR part 97. The CAIR FIPs' SO 2 , NO X Annual, and NO X Ozone Season trading programs impose essentially the same requirements as, and are integrated with, the respective CAIR SIP trading programs. The integration of the CAIR 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 2 , NO X annual, and NO X ozone season) in all States covered by the CAIR FIPs' or SIPs' 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 the corresponding CAIR FIP provisions (e.g., the methodology for allocating NO X allowances to sources in the state), while the CAIR FIPs remain in place for all other provisions. See 40 CFR 51.123(p)(1)-(3) and (ee)(1)-(3), 71 FR 25328 and 25339 (April 28, 2006). On April 28, 2006, EPA published two more CAIR-related final rules that added the States of Delaware and New Jersey to the list of States subject to CAIR for PM 2.5 and announced EPA's final decisions on reconsideration of five issues without making any substantive changes to the CAIR requirements. On December 13, 2006, EPA published minor, non-substantive revisions that serve to clarify CAIR and the CAIR FIP. III. What Are the General Requirements of CAIR and the CAIR FIP? CAIR establishes State-wide emission budgets for SO 2 and NO X and is to be implemented in two phases. The first phase of NO X reductions starts in 2009 and continues through 2014, while the first phase of SO 2 reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO X and SO 2 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 2 and NO X 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. The December 13, 2006, revisions to CAIR and the CAIR FIPs were non-substantive and, therefore, do not affect EPA's evaluation of a State's SIP revision. 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 X SIP Call trading programs in their CAIR NO X ozone season trading programs. Louisiana was not subject to the NO X SIP Call; therefore, the second exception is not applicable. 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. The provisions in the abbreviated SIP revision, if approved into a State's SIP, will not replace that State's CAIR FIP; however, the requirements for the CAIR FIPs at 40 CFR part 52 incorporate the provisions of the Federal CAIR trading programs in 40 CFR part 97. The Federal CAIR trading programs in 40 CFR part 97 provide that whenever EPA approves an abbreviated SIP revision, the provisions in the abbreviated SIP revision will be used in place of or in conjunction with, as appropriate, the corresponding provisions in 40 CFR part 97 of the State's CAIR FIP (e.g., the NO X allowance allocation methodology). A State submitting an abbreviated SIP revision, may submit limited SIP revisions to tailor the CAIR FIP's cap-and-trade programs to the state submitting the revision. An abbreviated SIP revision may establish certain applicability and allowance allocation provisions instead of or in conjunction with the corresponding provisions in the CAIR FIP's rules in that State. Specifically, an abbreviated SIP revision may: (1) Include NO X SIP Call trading sources that are not EGUs under CAIR in the CAIR FIP's NO X Ozone Season trading program; (2) Provide for allocation of NO X annual or ozone season allowances by the State, rather than the Administrator, and using a methodology chosen by the State; (3) Provide for allocation of NO X annual allowances from the CSP by the State, rather than by the Administrator, and 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 FIP's cap-and-trade programs under the opt-in provisions in the CAIR FIP's rules. With approval of an abbreviated SIP revision, the State's CAIR FIP remains in place, as tailored to sources in that State by the approved SIP revision. Abbreviated SIP revisions can be submitted in lieu of, or as part of, CAIR full SIP revisions. States may want to designate part of their full SIP as an abbreviated SIP for EPA to act on first when the timing of the State's submission might not provide EPA with sufficient time to approve the full SIP prior to the deadline for recording NO X allocations. This will help ensure that the elements of the trading programs where flexibility is allowed are implemented according to the State's decisions. Submission of an abbreviated SIP revision does not preclude future submission of a CAIR full SIP revision. In this case, Louisiana submitted an abbreviated SIP revision that addresses the allocation methodology for the NO X Annual and Ozone Season programs. Louisiana previously submitted a full SIP revision to address the SO 2 requirements of CAIR. V. What Is EPA's Analysis of Louisiana's CAIR NO X Annual and Ozone Season Abbreviated SIP Revision? A. State Budgets for NO X Annual and Ozone Season Allowance Allocations The CAIR NO X annual and ozone season budgets for Louisiana 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 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 Louisiana NO X annual and ozone season budgets from the regional budgets using Louisiana heat input data adjusted by fuel factors. The CAIR SIP requirements and the Louisiana CAIR NO X Annual FIP establish the NO X annual budgets for Louisiana as 35,512 tons of NO X annual emissions for 2009-2014 and 29,593 tons of NO X annual emissions in 2015 and thereafter. Louisiana's submitted rules at LAC 33:III.506(A)(2) establish that the total amount of NO X annual allowances allocated per control period shall not exceed the CAIR NO X annual budget at 40 CFR 97.140. Therefore, the annual budgets as listed in 40 CFR 51.123 and 97.140 (35,512 tons in 2009-2014 and 29,593 tons in 2015 and thereafter) continue to apply. The CAIR SIP requirements and the Louisiana CAIR NO X Ozone Season FIP establish the NO X ozone season budgets for Louisiana as 17,085 tons of NO X ozone season emissions for 2009-2014 and 14,238 tons of NO X ozone season emissions in 2015 and thereafter. Louisiana's rules at LAC 33:III.506(B)(2) establish that the total amount of NO X ozone season allowances allocated per control period shall not exceed the CAIR NO X ozone season budget at 40 CFR 97.340. Therefore the ozone season budgets as listed in 40 CFR 51.123 and 97.340 (17,085 tons in 2009-2014 and 14,238 tons in 2015 and thereafter) continue to apply. The Louisiana abbreviated SIP revision, being proposed today, does not affect the budgets for the NO X annual and ozone season programs. These budgets are total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs under the Louisiana CAIR NO X Annual and Ozone Season FIPs. In short, the Louisiana abbreviated SIP revision only affects allocations of NO X annual and ozone season allowances under the established budgets. B. CAIR NO X Annual and Ozone Season Cap-and-Trade Programs The CAIR NO X Annual and Ozone Season FIPs for the States 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 FIPs are similar, there are some differences. For example, the NO X Annual FIPs provide 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. EPA used the CAIR model trading rules as the basis for the SO 2 , NO X annual, and NO X ozone season trading programs incorporated by reference into the States' CAIR FIPs. The CAIR FIPs' trading programs' 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 trading, and NO X ozone season trading rules and the respective CAIR FIPs' trading programs are designed to work together as integrated SO 2 , NO X annual, and NO X ozone season trading programs. Louisiana is subject to the CAIR FIPs for 8-hour ozone and PM 2.5 . These CAIR FIPs for Louisiana, at 40 CFR 52.984 and 52.985, require owners or operators of each NO X and SO 2 CAIR source located in Louisiana to meet the requirements of the Federal CAIR NO X Annual, NO X Ozone Season, and SO 2 trading programs in 40 CFR part 97. Consistent with the flexibility given to States, States may submit abbreviated SIP revisions that will replace or supplement, as appropriate, certain provisions of its CAIR FIPs' trading programs. The July 12, 2007, submission from Louisiana is such an abbreviated SIP revision and is for the NO X annual and ozone season trading programs. Louisiana submitted a full SIP revision for the SO 2 trading program on September 22, 2006. C. Applicability Provisions for Non-EGU NO X SIP Call Sources In general, the CAIR FIPs' trading programs 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. Because Louisiana was not included in the NO X SIP Call trading program, Louisiana does not have or need the option of expanding the applicability provisions of the CAIR NO X Ozone Season Trading Program to include non-EGU NO X SIP Call sources. D. NO X Annual and Ozone Season Allowance Allocations Under the NO X allowance allocation methodology in the CAIR model trading rules and in the CAIR FIPs' trading programs, 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 FIPs' NO X Annual and Ozone Season trading programs 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. The CAIR FIPs' provisions provide States with the flexibility to establish a different NO X allowance allocation methodology that will be used to allocate allowances to sources in a State 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. Consistent with the flexibility given to States in their CAIR FIPs' provisions, Louisiana has chosen to replace the provisions of the Louisiana CAIR NO X Annual and Ozone Season FIPs concerning the allocation of NO X annual and ozone season allowances with its own methodology. The LDEQ requested assistance from the Louisiana Public Service Commission (LPSC) to determine the impact of CAIR implementation on Louisiana electricity ratepayers. Through this study and extensive stakeholder involvement, LDEQ developed and approved regulations that will allocate NO X allowances at no cost to the CAIR subject units in Louisiana. Accordingly, the LDEQ has approved provisions establishing the NO X annual and ozone season allocation methodologies at LAC Title 33, Part III, Chapter 5, Sections 506 (A) and (B), respectively. Section 506(A) establishes the allocation methodology for the NO X annual allowances. This section replaces 40 CFR 97.141 and 97.142 as promulgated by EPA on April 28, 2006. All remaining provisions of the Federal NO X Annual Trading Program at 40 CFR Part 97, Subparts AA-HH continue to apply to Louisiana CAIR sources. Similarly, Section 506(B) establishes the allocation methodology for the NO X ozone season allowances. Section 506(b) replaces 40 CFR 97.341 and 97.342 as promulgated by EPA on April 28, 2006. All remaining provisions of the Federal NO X Ozone Season Trading Program at 40 CFR Part 97, Subparts AAAA-HHHH continue to apply to CAIR-subject sources in Louisiana. The Louisiana NO X annual and ozone season allocation methodologies are structured identically. The CAIR units in Louisiana are first divided into non-utility or utility unit categories. Non-utility units are those electric generating units that have not been certified by the LPSC or approved by a municipal authority, a process under which the unit is certified as being in the public convenience and necessity. Utility units are those units identified by the LPSC or a municipal authority as electric generating units that produce power for the public convenience and necessity. The utility unit category is further subdivided based on number of years of operating data before the allocation submittal deadline to EPA. The utility units without three years of operating data prior to the allocation submittal deadline to EPA are allocated allowances as certified units. All other utility units with three or more years of operating data are allocated allowances as utility units. After determining the non-utility or utility status of a unit, the LDEQ proceeds with the calculation of allowances; the non-utility unit allocations are made first under both the annual and ozone season trading programs. The allocation methodology for non-utility units is found at sections 506(A)(2)(a) and 506(B)(2)(a). For the NO X annual trading program, the non-utility unit NO X allowances will equal the average of the actual NO X annual emissions of the three calendar years immediately preceding the year in which the allocations are submitted to EPA. For the NO X ozone season trading program, the non-utility unit NO X allowances equal the average of the actual NO X ozone season emissions of the three calendar years immediately preceding the year that allocations are submitted to EPA. The actual NO X emissions data used in both the annual and ozone season trading programs is the emissions inventory data reported pursuant to LAC 33:III.919; if emissions inventory data is not available then data from the Acid Rain Program will be substituted. The exception is that the allowances submitted to EPA in 2007 will be based on emissions inventory data from 2002, 2003, and 2004. Once the non-utility unit allowances have been subtracted from the total state budget identified in sections 506(A)(2) and (B)(2), the utility units are allocated allowances proportionally based on heat input data. Certified units (utility units with less than three years of operating data before the allocation submittal deadline) are allocated based on converted heat input as specified in section 506(A)(2)(b) and 506(B)(2)(b). A certified unit will be allocated allowances for the control period in which the unit will begin operation and for each successive control period for which no NO X allowances have been previously allocated until three years of operating data are available before the allocation submittal deadline. The converted heat input for the certified unit is calculated from the gross electrical output as stated in the documentation for the LPSC or municipal authority certification process. Utility units (those units with three or more years of operating data before the allocation submittal deadline) are allocated allowances based on the adjusted heat input according to sections 506(A)(2)(c) and 506(B)(2)(c). The exception is that the allowances submitted to EPA in 2007 will use the average of the control period adjusted heat input data from 2002, 2003, and 2004. The unit's adjusted heat input is calculated by multiplying the control period heat input for the unit by 100 percent if the unit is coal-fired, by 60 percent if the unit is oil-fired, and by 40 percent if the unit is not coal- or oil-fired. A unit's control period heat input, status as coal-fired or oil-fired, and total tons of NO X emissions during a control period are determined in accordance with 40 CFR Part 97 and reported pursuant to LAC 33:III.919. Sections 506(A)(3) and (B)(3) establish the dates by which the LDEQ must submit NO X annual and ozone season allocations to EPA for recordation in CAIR compliance accounts. No later than April 30, 2007, the LDEQ submits to EPA the CAIR NO X annual and ozone season allowance allocations for the control periods 2009, 2010, and 2011. By October 31, 2008, for the year 2012, and by October 31 of each year thereafter, the LDEQ will submit to EPA the NO X annual and ozone season allowance allocations for the control period in the fourth year after the year of the applicable deadline for allocation submission. LDEQ submitted NO X annual and ozone season allowances for control periods 2009, 2010, and 2011 on April 27, 2007. The Louisiana abbreviated SIP revision, being proposed today, satisfies the requirements for abbreviated SIP allocation flexibility at 51.123(p)(1) and (ee)(2). The provisions discussed above ensure that the LDEQ will not allocate more than the state budget in any given control period and that the allocations are submitted to EPA by the allocation submittal deadline. E. Allocation of NO X Allowances from the Compliance Supplement Pool The CSP provides 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 State's share of the projected emission reductions under CAIR; Louisiana's share of the CSP is 2,251 NO X allowances. 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 ademonstration of need for an extension of the 2009 deadline for implementing emission controls. The CAIR and the Louisiana CAIR NO X Annual FIP's provisions allocate 2,251 NO X allowances to the Louisiana CSP (under 40 CFR 51.123 and 97.143) and establish 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 those States. Consistent with the flexibility given to States in the CAIR FIPs, Louisiana has chosen not to modify the CSP allocation methodology in the CAIR NO X annual federal trading program. Therefore, EPA will continue to administer the CSP allocations pursuant to the methodology at 40 CFR 97.143. F. Individual Opt-In Units The opt-in provisions of CAIR and the States CAIR FIPs' provisions allow for 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 programs. 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 reporting 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 that 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. The rules for each of the States' CAIR FIPs' trading programs include opt-in provisions that are essentially the same as those in the respective CAIR SIP model rules, except that the States' CAIR FIPs' opt-in provisions become effective in a State only if the State's abbreviated SIP revision adopts the opt-in provisions. The State may adopt the opt-in provisions entirely or may adopt them but exclude one of the allowance allocation methodologies. The State also has the option of not adopting any opt-in provisions in the abbreviated SIP revision and thereby providing for its CAIR FIP's trading programs to be implemented in the State without the ability for units to opt into the programs. Consistent with the flexibility given to States in the FIPs' provisions, Louisiana has chosen not to allow non-EGUs to participate in the Louisiana CAIR FIP NO X Annual and Ozone Season trading programs. VI. What Is EPA's Analysis of the Section 110(a)(2)(D)(i) Requirements? The Louisiana CAIR NO X Trading Program abbreviated SIP revision submitted on July 12, 2007, also addressed the requirements of section 110(a)(2)(D)(i) of the CAA with respect to 8-hour ozone and PM 2.5 . This SIP revision contains provisions that address significant contribution, interference with maintenance, prevention of significant deterioration, and protection of visibility by following approaches described and explained in EPA's August 15, 2006 memorandum, “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards.” Louisiana addresses the “significant contribution” and “interference with maintenance” requirements by complying with the requirements of CAIR. EPA promulgated CAIR on May 12, 2005, and concluded that the States will meet their section 110(a)(2)(D)(i) obligations to address the “significant contribution” and “interference with maintenance” requirements by complying with the CAIR requirements. Louisiana has addressed these first two elements by requiring Louisiana CAIR sources to participate in the EPA-administered NO X annual, NO X ozone season, and SO 2 cap-and-trade programs; Louisiana incorporated by reference the CAIR model rules for the SO 2 Trading program and has submitted an abbreviated SIP revision that establishes the NO X annual and ozone season allocation methodologies for use in the Louisiana CAIR NO X annual and ozone season FIP. Participation in the NO X annual, NO X ozone season, and SO 2 trading programs will reduce emissions from the state that would contribute significantly to nonattainment or interfere with the maintenance of the ozone and particulate matter NAAQS in any downwind state. Louisiana addresses the “prevention of significant deterioration” requirement through their Prevention of Significant Deterioration (PSD) and New Source Review (NSR) programs. Section 110(a)(2)(D)(i)(II) requires States to submit SIPs that contain adequate provisions prohibiting “any source or other type of emission activity within the State from emitting any air pollutant in amounts which will * * * interfere with measures required to be included in the applicable implementation plan for any other State * * * to prevent significant deterioration of air quality.” For ozone, Louisiana has confirmed that major sources in Louisiana are subject to the approved PSD and NSR programs that implement the ozone standard. Additionally, Louisiana has promulgated rule revisions to address requirements of the Phase II Ozone Rule, and this rule is included in the State's 2006 General SIP revisions proposed on April 20, 2007. For PM 2.5 standards, Louisiana has confirmed that major sources in Louisiana are subject to the approved PSD and NSR programs implemented in accordance with EPA's interim guidance which allows the use of PM 10 as a surrogate for PM 2.5 in the PSD and NSR programs. Louisiana addresses the “protection of visibility” requirement through the regional haze program. Section 110(a)(2)(D)(i)(II) contains a requirement for all States to submit SIPs that contain adequate provisions prohibiting “any source or other type of emission activity within the State from emitting any air pollutant in amounts which will * * * interfere with measures required to be included in the applicable implementation plan for any other State * * * to protect visibility.” EPA has previously found that all States contain sources whose emissions are reasonably anticipated to impact visibility adversely in one or more Class I areas. Pursuant to this finding, States are currently under an obligation to submit SIPs that contain measures to address regional haze, including a long-term strategy to address visibility impairment for each Class I area which may be affected by emissions from a State. The States and Regional Planning Organizations are currently engaged in the task of identifying those Class I areas impacted by each State's emissions and developing strategies for addressing regional haze to be included in the States' regional haze SIPs. These SIP submissions are due no later than December 17, 2007. Louisiana intends to submit a regional haze SIP by the submittal deadline to satisfy its obligation to “protect visibility” under section 110(a)(2)(D)(i). As a result, EPA believes that it is currently premature to determine whether State SIPs for 8-hour ozone or PM 2.5 contain adequate provisions to prohibit emissions that interfere with SIP measures in other States designed to protect visibility. Accordingly, EPA believes that Louisiana does not need to make a substantive SIP submission to address the “protect visibility” requirement of section 110(a)(2)(D)(i)(II) for the 8-hour ozone and PM 2.5 NAAQS at this point in time. VII. Proposed Action EPA is proposing to approve a revision to the Louisiana SIP, the Louisiana CAIR NO X Trading Programs Abbreviated SIP revision, submitted on July 12, 2007, by the State of Louisiana (LAC 33:III.506(A) and (B)). We are also proposing to approve revisions to the Louisiana SIP establishing administrative reporting requirements for all Louisiana CAIR programs; these revisions were submitted with the Louisiana CAIR SO 2 Trading Program on September 22, 2006 (LAC 33:III.506(D) and (E)). Louisiana is covered by the CAIR NO X Annual and Ozone Season FIPs, which require participation in the EPA-administered CAIR FIP cap-and-trade programs for NO X annual and ozone emissions. Under this abbreviated SIP revision and consistent with the flexibility given to Louisiana in its CAIR NO X Annual and Ozone Season FIPs' provisions, the Louisiana provisions for allocating allowances under the Louisiana CAIR FIPs' NO X annual and ozone season trading program are proposed as part of the Louisiana SIP. EPA has determined that the abbreviated SIP revision meets the applicable requirements in 40 CFR 51.123(p)(1) and (ee)(2) with regard to NO X annual and ozone season allowance allocations. EPA is not proposing any changes to the Louisiana CAIR NO X Annual and Ozone Season FIPs' provisions, except to the extent that if we finalize the proposed Louisiana CAIR NO X Trading Programs abbreviated SIP, then EPA, by ministerial action, will note in Appendix A.1. to Subpart EE of 40 CFR Part 97, that Louisiana has an approved SIP revision providing for NO X annual allowance allocations. Similarly, EPA will note in Appendix A to Subpart EEEE of 40 CFR Part 97, that Louisiana has an approved SIP revision providing for NO X ozone season allowance allocations. Since 40 CFR part 97 provides for automatic revision of the Louisiana CAIR FIP for NO X annual and ozone season emissions (under 40 CFR 52.984) upon approval of such an abbreviated SIP revision, the Louisiana rules for NO X annual and ozone season allowance allocations would apply, rather than the Federal rules governing allocations, upon the effective date of approval. EPA is also proposing that this revision adequately addresses the required elements of 110(a)(2)(D)(i), with the exception of the protect visibility requirement. This requirement will be re-evaluated after the regional haze SIP revision is completed and submitted to EPA. VIII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason and because this action will not have a significant, adverse effect on the supply, distribution, or use of energy, 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 imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This proposed action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard and indicates that approval will result in ministerial changes to the appropriate appendices of the CAIR FIP's trading rules, and does not alter the relationship or the distribution of power and responsibilities established in the Act. The EPA interprets Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it would approve a state rule implementing a Federal standard. Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Because this proposed rule merely approves a state rule implementing a Federal standard, EPA lacks the discretionary authority to modify today's regulatory decision on the basis of environmental justice considerations. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (1 5 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. 40 CFR Part 97 Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements. Authority: 42 U.S.C. 7401 et seq. Dated: August 7, 2007. Richard E. Greene, Regional Administrator, EPA Region 6. [FR Doc. E7-16044 Filed 8-14-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [FRL-8455-4] Arkansas: Final Authorization of State Hazardous Waste Management Program Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The State of Arkansas has applied to EPA for Final Authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA proposes to grant Final Authorization to the State of Arkansas. In the “Rules and Regulations” section of this Federal Register , EPA is authorizing the changes by an immediate final rule. EPA did not make a proposal prior to the immediate final rule because we believe this action is not controversial and do not expect comments that oppose it. We have explained the reasons for this authorization in the preamble to the immediate final rule. Unless we get written comments which oppose this authorization during the comment period, the immediate final rule will become effective on the date it establishes, and we will not take further action on this proposal. If we receive comments that oppose this action, we will withdraw the immediate final rule and it will not take effect. We will then respond to public comments in a later final rule based on this proposal. You may not have another opportunity for comment. If you want to comment on this action, you must do so at this time. DATES: Send your written comments by September 14, 2007. ADDRESSES: Send written comments to Alima Patterson, Region 6, Regional Authorization Coordinator (6PD-O), Multimedia Planning and Permitting Division, at the address shown below. You can examine copies of the materials submitted by the State of Arkansas during normal business hours at the following locations: EPA, Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733, phone number (214) 665-8533; Arkansas Department of Environmental Quality 8101 Interstate 30, Little Rock, Arkansas 72219-8913, (501) 682-0876. Comments may also be submitted electronically or through hand delivery/courier; please follow the detailed instructions in the ADDRESSES section of the immediate final rule which is located in the Rules section of this Federal Register . FOR FURTHER INFORMATION CONTACT: Alima Patterson (214) 665-8533. SUPPLEMENTARY INFORMATION: For additional information, please see the immediate final rule published in the “Rules and Regulations” section of this Federal Register . Dated: July 25, 2007. Lawrence E. Starfield, Acting Regional Administrator, Region 6. [FR Doc. E7-16012 Filed 8-14-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MM Docket No. 99-325; FCC 07-33] Digital Audio Broadcasting Systems and Their Impact on the Terrestrial Radio Broadcast Service AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Commission proposes rules to address issues that were left unresolved in the Commission's Second Report and Order, FCC 07-33. Specifically, the Commission seeks comment on how to ensure that the amount of subscription-based radio service is limited, whether the Commission can and should impose spectrum fees on portions of the digital bandwidth used by broadcasters to provide subscription services, whether statutory requirements and subscription regulations should apply to subscription-based services, whether any new public interest requirements should be imposed on digital audio broadcasters, whether enhanced public disclosure rules should apply to radio stations, and whether the rules regarding unattended stations should be reviewed and modified. DATES: Comments for this proceeding are due on or before October 15, 2007; reply comments are due on or before November 13, 2007. ADDRESSES: You may submit comments, identified by MM Docket No. 99-325, by any of the following methods: • Federal eRulemaking Portal: . Follow the instructions for submitting comments. • Federal Communications Commission's Web site: . Follow the instructions for submitting comments. • People With Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Ann Gallagher, of the Media Bureau, Audio Division, (202) 418-2716, or Brendan Murray, of the Media Bureau, Policy Division, (202) 418-2120. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking, FCC 07-33, adopted on March 22, 2007, and released on May 31, 2007. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). Initial Paperwork Reduction Act of 1995 Analysis This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 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). Summary of the Notice of Proposed Rulemaking 1. Preserving the existing system of free over-the-air terrestrial radio service as radio stations convert to digital broadcasting remains important. In order to accomplish this goal, we seek comment on how to ensure that the amount of subscription-based radio services is limited. For example, should we implement a requirement which states that no more than 20 to 25 percent of a station's digital capacity be devoted to subscription services? In the digital television context, we have not imposed a specific cap on the amount of subscription services that could be offered. Rather, we have permitted television stations to use their digital capacity for any purpose as long as they transmit at least one over-the-air video program signal at no direct charge to viewers. This estimate is based on current analog FM SCA usage and the scalability of the digital stream in 1 kbps or smaller increments. How should any limitation on digital subscription services be specified—in terms of occupied bandwidth, or in terms of total digital capacity? Would limiting digital subscription services to 20 to 25 percent be sufficient to ensure that the free over-the-air radio service is not compromised? Should there be different rules for NCE radio stations? What kinds of subscription services do radio stations, both NCE and commercial, plan to offer once they commence digital broadcasting? For example, iBiquity states that it will continue to develop new applications for DAB including store and replay, on-demand services, and a “buy button.” iBiquity has not made it clear whether these services would be offered on a subscription basis. Would any subscription services be broadcast services? With regard to DTV, Congress explicitly authorized the Commission to permit digital television stations to offer ancillary and supplementary subscription-based services. Given that there is no similar statutory provision for DAB, we will proceed cautiously to ensure that free over-the-air service is preserved. We note that radio stations are permitted to offer subscription services during the pendency of this Second Further Notice of Proposed Rulemaking, but are put on notice that we will adopt new rules in this area that may affect such offerings. 2. In the DAB FNPRM, we sought comment on whether we can and should impose spectrum fees for that portion of digital bandwidth used by broadcasters to provide subscription services. Given that we are further considering the issues surrounding the provision of subscription services, we now seek additional input from the public on the fee issue. With regard to DTV, Congress authorized the Commission to impose a fee on certain ancillary or supplementary services. The Commission subsequently adopted a rule requiring DTV licensees to pay a fee of five percent of the gross revenues derived from all ancillary or supplemental services that are feeable, as defined by the rules. Given that no express statutory authority exists in the DAB context, do we have the authority to impose a five percent or other fee based on the Commission's jurisdiction ancillary to its regulation of broadcasting? Can we, therefore, impose a similar fee for subscription digital radio? What limits should we place on subscription services, particularly if we are unable to impose a fee? Should broadcasters have to provide a free digital stream at least equal in quality to the best subscription service if they decide to provide a subscription service? 3. In the Second Report and Order (published elsewhere in this issue), we rule that several statutory requirements and Commission regulations would apply to all free over-the-air digital programming streams. Here, we seek comment on whether those same requirements, as outlined in Section D.1, above, should apply to subscription services. We note that the Commission has applied certain public interest obligations to other subscription services, including cable television and satellite radio, pursuant to our authority to regulate subscription services ancillary to the regulation of broadcasting. We tentatively conclude that we should apply the requirements outlined above to subscription services offered by terrestrial radio stations, and that we have the statutory authority to do so. We seek comment on this tentative conclusion. 4. As stated above, the Commission must ensure that broadcast radio and television stations serve the “public interest, convenience and necessity.” To ensure that broadcasters serve the public interest, convenience and necessity, the Commission requires licensees to comply with various program-related and operational duties. Broadcasters, for example, are required to air programming responsive to community needs and interests and have other service obligations. We will continue to enforce our statutory mandate to ensure that broadcasters serve the public interest, and remind broadcasters of the importance of meeting their existing public interest obligations. As stated above, IBOC provides broadcasters the potential for a more flexible and dynamic use of the radio spectrum and raises questions about the nature of program-related and operating obligations in digital broadcasting because the scope of those responsibilities has not been defined. Certain parties have proposed new public interest requirements for DAB, while others have argued that there is no reason to change our existing rules. We seek comment on whether we should adopt any new public interest requirements for digital audio broadcasters. 5. In the context of examining possible changes to television station public interest obligations in the digital environment, the Commission is considering whether the current requirements pertaining to television stations' public inspection files are sufficient to ensure that the public has adequate access to information on how the stations are serving their communities. As we undertake an examination of possible changes to radio station public interest obligations in the digital environment, we believe it is also appropriate to consider whether the current requirements for radio stations' public inspection files are sufficient to ensure that the public has adequate access to information on how these stations are serving their communities. In the Enhanced Disclosure NPRM, we proposed that television broadcast station licensees should use a standardized form to provide information on how the station serves the public interest in a variety of areas, and that the form should be provided on a quarterly basis and maintained in the station's public inspection file in place of the currently required issues/programs lists. We also proposed to enhance the public's ability to access public interest information by requiring licensees to make the contents of their public inspection files, including the form, available on the station's or a state broadcasters association's Internet Web site. We seek comment on whether we should consider applying such rules to radio stations, whether operating in analog or digital. Would the benefits or burdens of requiring the public inspection file to also be placed on the Internet be the same, lesser, or greater for radio stations than for television stations? In what specific ways, if any, should the rules differ for radio? Are there ways we can reduce the burden on small radio stations? I. Procedural Matters A. Filing Requirements 6. Ex Parte Rules. The Second Further Notice of Proposed Rulemaking in this proceeding will be treated as a “permit-but-disclose” subject to the “permit-but-disclose” requirements under Section 1.1206(b) of the Commission's rules. Ex parte presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one-or two-sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in Section 1.1206(b). 7. Comments and Reply Comments. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) the Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: or the Federal eRulemaking Portal: . 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 , 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 must 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 or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). 8. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. Persons with disabilities who need assistance in the FCC Reference Center may contact Bill Cline at (202) 418-0267 (voice), (202) 418-7365 (TTY), or . These documents also will be available from the Commission's Electronic Comment Filing System. Documents are available electronically in ASCII, Word 97, and Adobe Acrobat. Copies of filings in this proceeding may be obtained from Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554; they can also be reached by telephone, at (202) 488-5300 or (800) 378-3160; by e-mail at ; or via their Web site at . To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to or call the Consumer and Governmental Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (TTY). 9. Additional Information. For additional information on this proceeding, contact Ann Gallagher, , of the Media Bureau, Audio Division, (202) 418-2716 or Brendan Murray, , of the Media Bureau, Policy Division, (202) 418-2120. B. Initial and Final Regulatory Flexibility Analysis 10. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatory flexibility analysis be prepared for notice and comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). By the issuance of this Second Further Notice of Proposed Rulemaking, we seek comment on the impact our suggested proposals would have on small business entities. 11. Act. As required by the Regulatory Flexibility Act, the Commission has prepared a Final Regulatory Flexibility Analysis (“FRFA”) relating to this Second Report and Order and First Order on Reconsideration. C. Paperwork Reduction Act Analysis This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 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). Initial Regulatory Flexibility Analysis 12. As required by the Regulatory Flexibility Act of 1980, as amended, the Commission has prepared this Initial Regulatory Flexibility Analysis of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Second Further Notice of Proposed Rulemaking . Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the Second Further Notice of Proposed Rulemaking. The Commission will send a copy of this entire Second Further Notice of Proposed Rulemaking (“FNPRM”), including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the Second Further Notice of Proposed Rulemaking and the IRFA (or summaries thereof) will be published in the Federal Register . 13. Need for, and Objectives of, the Proposed Rules . The Second FNPRM has been initiated to obtain further comments concerning the development and implementation of terrestrial digital audio broadcasting. Because free over-the-air terrestrial broadcasting is in the public interest, and because spectrum is a limited resource, in the Second FNPRM the Commission seeks comment on how to limit ancillary subscription services provided by radio stations converting to the IBOC DAB format so that terrestrial radio broadcasting remains an essentially free over-the-air service. The Commission also seeks comment on, inter alia, the application of several statutory and regulatory public interest requirements to subscription services. 14. Legal Basis. The authority for this Second Further Notice of Proposed Rulemaking is contained in Sections 1, 2, 4(i), 303, 307, 312(a)(7), 315, 317, 507, and 508 of the Communications Act of 1934, 47 U.S.C 151, 152, 154(i), 303, 307, 312(a)(7), 315, 317, 508, and 509. 15. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small organization,” and “small governmental entity.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”). 16. Radio Stations . The proposed rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $6.5 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on March 31, 2005, about 10,840 (95%) of 11,410 commercial radio stations have revenue of $6.5 million or less. We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action. 17. Electronics Equipment Manufacturers. The rules adopted in this proceeding will apply to manufacturers of DAB receiving equipment and other types of consumer electronics equipment. The appropriate small business size standard is that which the SBA has established for radio and television broadcasting and wireless communications equipment manufacturing. This category encompasses entities that primarily manufacture radio, television, and wireless communications equipment. Under this standard, firms are considered small if they have 1000 or fewer employees. Census Bureau data for 2002 indicate that, for that year, there were a total of 1,041 establishments in this category. Of those, 1,023 had employment under 1,000. Given the above, the Commission estimates that the great majority of equipment manufacturers affected by these rules are small businesses. 18. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. The proposed rules on subscription services may impose additional reporting or recordkeeping requirements on existing radio stations, depending upon how the Commission decides to limit subscription services. We seek comment on the possible burden these requirements would place on small entities. Also, we seek comment on whether a special approach toward any possible compliance burdens on small entities might be appropriate. 19. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 20. In the Second Report and Order , the Commission permits radio stations to offer high quality digital radio signals, multicast digital audio programming streams, and datacasting. In the Second Further Notice of Proposed Rulemaking , the Commission seeks comment on what limitations on ancillary subscription services are necessary and appropriate to ensure the viability of free over-the-air radio broadcasting. This is an issue of first impression for the Commission; there is no history that indicates whether limits on ancillary subscription services will be adverse or beneficial to small businesses. Therefore, we make no judgment on whether limits on ancillary subscription services will adversely affect small business. We welcome commenters to address whether limits on ancillary subscription services will have any adverse effects on small businesses. 21. Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission's Proposals. None. 22. The Commission will send a copy of the Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking , including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking and FRFA (or summaries thereof) will also be published in the Federal Register . II. Ordering Clauses 23. Accordingly, it is ordered , pursuant to the authority contained in Sections 1, 2, 4(i), 303, 307, 312, 315, 317, 507, and 508 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, 312, 315, 508, and 509, this Second Report and Order First Order on Reconsideration and Second Further Notice of Proposed Rulemaking is adopted. 24. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Report and Order First Order on Reconsideration and Second Further Notice of Proposed Rulemaking including the Initial and Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. List of Subjects in 47 CFR Part 73 Digital television, Radio. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. 07-3958 Filed 8-14-07; 8:45 am]

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  • 20 CFR 405
  • 40 CFR 97
  • 40 CFR 97.144(a)
  • 40 CFR 97.153
  • 40 CFR 51
  • 40 CFR 97.302
  • 40 CFR 52
  • 40 CFR 97.140
  • 40 CFR 97.340
  • 40 CFR 96
  • 40 CFR 97.141
  • 40 CFR 97.341
  • 40 CFR 97.143
  • 40 CFR 75
  • Pub. L. 104-4
  • 5 USC 272
  • 40 CFR 271
  • 47 CFR 73
  • Pub. L. 104-13
  • Pub. L. 107-198
  • 47 CFR 1.415
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Fed. Reg.Proposed Rules
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Cite40 CFR 97
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