Rules and Regulations. Final rule

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BILLING CODE 4810-35-M DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 223 RIN 0596-AB70 Sale and Disposal of National Forest System Timber; Modification of Timber Sale Contracts in Extraordinary Conditions; Noncompetitive Sale of Timber AGENCY: Forest Service, USDA. ACTION: Final rule. SUMMARY: This final rule revises regulations at Title 36, Code of Federal Regulations, part 223, on noncompetitive disposal of timber and other forest products based on the Secretary of Agriculture's determination that extraordinary conditions exist.

A notice with request for comment on an interim final rule was published in the **Federal Register** on June 16, 2006. The Forest Service made appropriate changes to the rule in response to the public comments. DATE: This rule is effective November 19, 2007. ADDRESSES: The public may inspect comments received at Office of the Director, Forest Management Staff, Forest Service, USDA, 201 14th Street, SW., Washington, DC 20250. Visitors are encouraged to call ahead to

(202)205-1496 to facilitate entry to the building. FOR FURTHER INFORMATION CONTACT: Forest Management Staff personnel, Lathrop Smith

(202)205-0858, or Richard Fitzgerald

(202)205-1753. Individuals who use telecommunication devices for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. SUPPLEMENTARY INFORMATION: Background The National Forest Management Act (NFMA), codified in part at Title 16 U.S.C. 472a(d), requires the Secretary of Agriculture to advertise all sales of forest products unless the appraised value of the sale is less than $10,000, or the Secretary determines that extraordinary conditions exist, as defined by regulation. The requirement to advertise sales unless extraordinary conditions exist applies to the substitution of timber outside a sale contract area. Prior to NFMA, the Government Accountability Office (formerly the General Accounting Office) held that substitution of timber outside the contract area for timber in the contract area violated the Agency's authority to sell timber. 1 Since the passage of NFMA, but in the absence of a regulation defining “extraordinary conditions,” the Agriculture Board of Contract Appeals has decided similarly in several cases. 2 1 Letter to Mr. Secretary, 1973 WL 7905 (Comp. Gen.), B-177602 (1973). 2 See Appeal of Summit Contractors, 1986 WL 19566 (AGBCA), Nos. 81-252-1, No. 83-312-1 (Jan. 8, 1986), and Appeal of Jay Rucker, 1980 WL 2345 (AGBCA) Nos. 79-211A, 79-211B (June 11, 1980). See also, *Croman Corporation* v. *United States,* 31 Fed. Cl. 741, 746-47 (August 16, 1994). Before authorizing activities on National Forest System lands, the Forest Service must ensure compliance with applicable laws and regulations and with conditions on the ground at the time of the authorization. Even so, after entering into timber sale contracts, environmental changes may occur such as the listing of a new species on the endangered species list, or a catastrophic event may occur, such as a large wildfire, resulting in the need to modify the contracts. Also, court orders and decisions resulting from environmental litigation may require making changes to existing contracts even when those contracts are not specifically named in the litigation if they are similar to contracts that were named. When this occurs, it is essential for Forest Service officials to have flexibility to adjust management activities and contractual arrangements without incurring enormous financial liability associated with unilateral modifications or contract cancellations. At the time a sale is sold, there is no way to predict what future litigation or environmental changes may occur that will result in the sale contract needing to be changed. Each occurrence is a unique situation that constitutes an extraordinary condition. The Forest Service needs the ability to provide replacement timber or forest products for contracts that must be modified to prevent environmental degradation or resource damage, or as a result of administrative appeals, litigation, court orders, or catastrophic events that occur after contract award. Thus, the Forest Service promulgated an interim final rule, published June 16, 2006 (71 FR 34823), on noncompetitive sale of timber and other forest products based on the Secretary of Agriculture's determination that extraordinary conditions exist whenever a timber or forest products contract needs to be modified or canceled to address such unexpected changes. This benefits the Government by providing contracting officers with an opportunity to avert costly claims by providing replacement timber or forest products from outside the contract area when replacement timber is not available within the contract area. Replacement timber also helps maintain the industry infrastructure, which in turn will maintain forest management options. Response to Comments A 60-day comment period on the interim final rule was initiated on June 16, 2006, (71 FR 34823). Only two respondents replied. One respondent is an individual and the other respondent is a timber industry association. *Comment 1:* The constraints that the value of replacement material may not exceed the value of the material it is replacing by more than 10% or $10,000, whichever is less, are too restrictive and will hamper implementation and use of this valuable tool. On small amounts of replacement timber, 10% may represent a very small amount of money, and on large volumes the $10,000 may represent a small percentage of value. If one or both of these numbers has some basis in law and cannot be removed, the only fair way to deal with this situation is to have these be upper and lower limits. *Response 1:* The limitations were intended to reduce potential impacts to other purchasers while making the purchaser of a sale that must be modified or terminated whole. Replacement timber from outside the sale area will most likely come from some other sale that would otherwise be offered competitively on the open market. Offering substantially more replacement timber than the amount or value being deleted by a unilateral termination goes beyond making a purchaser whole, circumvents fair and open competition and could have detrimental consequences to other purchasers, the public, and Forest Service program objectives. For the following reasons the Forest Service agrees that the 10% limit is unnecessary but disagrees that the $10,000 limit is overly restrictive. The National Forest Management Act

(NFMA)requires advertising sales greater than $10,000 in appraised value unless the Secretary determines, as defined by regulation, that extraordinary conditions exist (16 U.S.C. 472a(d)). The intent of this rule is to establish the Secretary's determination of extraordinary conditions so that replacement timber of similar quantity and value can be obtained from outside the sale area without advertisement, even when its total value is greater than $10,000. The Forest Service recognizes, however, that exact matches with the original contract value, quantity and quality are unlikely and that a defined measure of acceptable deviation is necessary. The Forest Service believes that providing replacement timber volume with an appraised value of no more than $10,000 over the original contract value is an acceptable amount of deviation. The premise for this is that the original value of the timber being replaced was established after advertisement and the opportunity for competitive bidding in accordance with the advertisement and competition requirements of NFMA and its implementing regulations. Therefore, only the value of replacement timber exceeding the value of the original timber volume being replaced was not previously subject to advertisement and competition requirements. Advertisement and competition of the excess replacement timber is not required by NFMA or the regulations so long as the excess value remains at or below $10,000. The rules at 36 CFR 223.112 require that contract modifications must not be done in a manner that would be injurious to the United States. For the reasons stated above, the Forest Service believes that replacement timber valued at no more than $10,000 over the original contract value adequately accounts for differences in contract and replacement timber value and ensures that contracts are not modified in a manner that would be injurious to the United States. Imposing the $10,000 upper limit on the value of replacement timber establishes a reasonable and acceptable measure of deviation, prevents a purchaser from getting a potential windfall, and eliminates the need for the Forest Service to determine, on a case-by-case basis, the level of acceptable deviation that may result in a modification that is not injurious to the United States. The Forest Service does not believe this upper limit is overly restrictive and will retain it in the final rule. The Forest Service agrees, however, that the 10% limit imposed in the interim final rule is not necessary for determining an acceptable level of deviation, and for that reason, it will be eliminated from the final rule. The respondent suggested that if there was an upper limit there should be a corresponding lower limit on the value of replacement timber. For example, if $50,000 of replacement timber is needed, applying the $10,000 limit addressed above would require the value of replacement timber to be no less than $40,000. The Forest Service disagrees as this would have the effect of guaranteeing replacement timber which is simply an alternative remedy, when it is available, to liquidated damages addressed in the contracts. Although the rule provides broad authority for authorizing replacement timber for a variety of reasons, neither the rule nor the contracts require the Forest Service to provide, or the purchaser to agree to replacement timber. No changes are made in response to this portion of the comment. *Comment 2:* The Forest Service should clarify the standard used to determine what volume will be removed from a contract because of wildfire or similar catastrophic event. *Response 2:* The reference to catastrophic events in the interim final rule has led to confusion with some interpreting this to mean that the Forest Service would replace catastrophically damaged timber with comparable undamaged timber. This was not the intent. Replacement timber is only a remedy for a contract termination or partial termination under subsection B/BT8.34 Contract Termination. Replacement timber is not a remedy for a contract termination or partial termination under subsection B/BT8.22 Termination for Catastrophe. However, a single sale could be terminated under both B/BT8.22 and B/BT8.34. For example, a fire catastrophically damages 60% of a sale area including several uncut units and timber between those units. Pursuant to B/BT8.32 Modification for Catastrophe, the Forest Service and Purchaser try, but cannot reach agreement on a modification for harvesting the catastrophically affected timber, and elect termination under B/BT8.22. The remaining 40% of the sale was not damaged, includes “green” units that the purchaser wants to cut, and pursuant to B/BT8.32 Modification for Catastrophe the parties agree could be logged separately from the catastrophically damaged timber. But, the Forest Service determines that because of the changed conditions caused by the fire, harvesting the remaining green units will cause environmental degradation and starts the process to terminate that portion of the contract pursuant to B/BT8.34. Replacement timber from outside the sale area could be considered for the undamaged timber included under the B/BT8.34 termination but not for the damaged timber included under the B/BT8.22 termination. Although the catastrophic event caused the situation leading to a decision to terminate the undamaged portions of the sale, the actual reason to terminate is to prevent environmental degradation. Referencing catastrophic events in the rule is unnecessary and because the reference can be misinterpreted it has been eliminated in the final rule. Contracts awarded prior to the April 2004 version of the Timber Sale Contract do not contain references to replacement timber in event of a termination but the rule potentially could be applied to those contracts as well via a contract modification. The Forest Service agrees that more clarification of how the rule could be applied to those contracts would help and will do that with an amendment to the Timber Sale Administration Handbook FSH 2409.15. But no changes to the rule are needed to address this situation. *Comment 3:* Offering substitute timber outside the sale area specified in the contract is a common sense approach to meeting contractual obligations and maintaining an equitable balance of risk. Replacement timber will help maintain the industry infrastructure which will maintain forest management options. *Response 3:* The Forest Service agrees. No changes are made in response to this comment. *Comment 4:* The respondent opposed the determination of “extraordinary conditions” likening it to an environmental assault emanating from the U.S. Department of Agriculture and suggesting that the determination is based on the desires of lobbyists working for the timber industry in corrupt Washington. *Response 4:* The Forest Service disagrees that the determination of extraordinary conditions is made based on the desires of timber industry lobbyists. The determination has precedent supporting it. In 1996, the Secretary promulgated an interim final rule set out at 36 CFR 223.85(b), that defined extraordinary conditions for sales released pursuant to section 2001(k) of the 1995 Rescissions Act (61 FR 14618, April 3, 1996). The 1996 rule has reduced claims by allowing timber from outside the sale area specified in the contract to be substituted, without advertisement, on specific timber sales in Washington and Oregon affected by the 1995 Rescissions Act. A similar result is anticipated with this rule. The only impact of this determination is to allow replacement timber or other forest products without advertisement. The Forest Service may consider only such timber or forest products for replacement purposes for which the agency has completed the appropriate environmental analysis and made a decision to authorize its harvest. Additionally, any applicable comment, appeal, or objection process for the harvest must have been completed. No changes are made in response to this comment. *Comment 5:* Respondent supported the concept of replacement timber in lieu of contract cancellations noting that this will benefit the public by encouraging on-the-ground resource management while minimizing taxpayer burdens associated with damage claims. *Response 5:* The Forest Service agrees. No changes are made in response to this comment. *Comment 6:* Replacement timber will help maintain the industry infrastructure, which will in turn maintain forest management options. *Response 6:* The Forest Service agrees. No changes are made in response to this comment. Explanation of Revisions to 36 CFR Part 223, Subpart B The interim final rule in § 223.85(c), specified that extraordinary conditions, as provided for in 16 U.S.C. 472a(d), includes those conditions under which contracts for the sale or exchange of timber or other forest products must be suspended, modified, or terminated under the terms of such contracts to prevent environmental degradation or resource damage, or as the result of administrative appeals, litigation, court orders, or catastrophic events. The reference to catastrophic events in the interim final rule led to confusion with some interpreting this to mean that the Forest Service would replace catastrophically damaged timber with comparable undamaged timber. The intent was to address situations where harvesting the remaining green timber on a catastrophically damaged sale would result in environmental degradation or resource damage. In those situations, replacement timber would be an alternative to harvesting the remaining green timber or canceling the contract. The intent of the rule was not to replace catastrophically damaged timber with undamaged timber. The reference to catastrophically damaged timber has been removed in this final rule. Section 223.85(c), of the interim final rule specified that the value of replacement timber or forest products may not exceed the value of the material it is replacing by more than 10% or $10,000, whichever is less as determined by standard Forest Service appraisal methods. Based on comments received on the interim final rule, and further evaluation by the Forest Service, the 10% limit has been removed in the final rule. Section 223.85(c), of the interim final rule specified that the replacement timber or forest products must come from the same National Forest as the original contract. In some cases, several proclaimed National Forests have been combined under one Forest Supervisor for administration purposes. The term National Forest in this paragraph refers to an administrative unit headed by a single Forest Supervisor. This distinction has been added to the final rule. Regulatory Certifications Unfunded Mandates Reform Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the Agency has assessed the effects of this rule on State, local, and tribal governments and the private sector. This rule does not compel the expenditure of $100 million or more by any State, local, or tribal governments or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required. Regulatory Impact This rule has been reviewed under USDA procedures and Executive Order 12866, Regulatory Planning and Review, as amended by E.O. 13422 on January 23, 2007. The Office of Management and Budget

(OMB)has determined that this is not a significant rule. This rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This rule will not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this rule is not subject to OMB review under Executive Order 12866. Moreover, this rule has been considered in light of Executive Order 13272 regarding proper consideration of small entities and the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). A final regulatory flexibility assessment has been made and it has been determined that this action will not have a significant economic impact on a substantial number of small entities as defined by SBREFA. The rule has no adverse or special impacts on small business, small not-for-profit organizations, or small units of the Government because it imposes no additional requirements on the affected public. Environmental Impact Section 31.12 of Forest Service Handbook 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or impact statement “rules, regulations, or policies to establish Servicewide administrative procedures, program processes, or instructions.” The Agency's assessment is that this rule falls within this category of actions and that no extraordinary circumstances exist, and therefore, the preparation of an environmental assessment or environmental impact statement for this rule is not required. No Takings Implications This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12360, and it has been determined that the rule will not pose the risk of a taking of private property, as the rule is limited to the establishment of administrative procedures. Civil Justice Reform This rule has been reviewed under Executive Order 12988, Civil Justice Reform. After adoption of this rule,

(1)all State and local laws and regulations that conflict with this rule or that would impede full implementation of this rule will be preempted;

(2)no retroactive effect will be given to this rule; and

(3)this rule would not require the use of administrative proceedings before parties could file suit in court challenging its provisions. Federalism The Agency has considered this rule under the requirements of Executive Order 13132, Federalism. The Agency has made an assessment that the rule conforms with the federalism principles set out in this Executive order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Consultation and Coordination with Indian Tribal Governments This rule does not have tribal implications as defined by Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. Therefore, advance consultation with Tribes is not required. Controlling Paperwork Burdens on the Public This rule does not require any record keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 not already approved for use and, therefore, imposes no additional paperwork burden on the public. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, *et seq.* ) and implementing regulations at 5 CFR part 1320 do not apply. List of Subjects in 36 CFR Part 223 Administrative practice and procedures, Forests and forest products, Exports, Government contracts, National forests, Reporting and record keeping requirements. For the reasons set forth in the preamble, the Forest Service is amending part 223 of title 36 of the Code of Federal Regulations as follows: PART 223—SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER 1. The authority citation for part 223 continues to read as follows: Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, unless otherwise noted. Subpart B—Timber Sale Contracts 2. Revise § 223.85(c) to read as follows: § 223.85 Noncompetitive sale of timber.

(c)Extraordinary conditions, as provided for in 16 U.S.C. 472a(d), includes those conditions under which contracts for the sale or exchange of timber or other forest products must be suspended, modified, or terminated under the terms of such contracts to prevent environmental degradation or resource damage, or as the result of administrative appeals, litigation, or court orders. Notwithstanding the provisions of paragraph

(a)of this section or any other regulation in this part, when such extraordinary conditions exist on sales not addressed in paragraph

(b)of this section, the Secretary of Agriculture may allow forest officers to, without advertisement, modify those contracts by substituting timber or other forest products from outside the contract area specified in the contract for timber or forest products within the area specified in the contract. When such extraordinary conditions exist, the Forest Service and the purchaser shall make good faith efforts to identify replacement timber or forest products of similar volume, quality, value, access, and topography. When replacement timber or forest products agreeable to both parties is identified, the contract will be modified to reflect the changes associated with the substitution, including a rate redetermination. Concurrently, both parties will sign an agreement waiving any future claims for damages associated with the deleted timber or forest products, except those specifically provided for under the contract up to the time of the modification. If the Forest Service and the purchaser cannot reach agreement on satisfactory replacement timber or forest products, or the proper value of such material, either party may opt to end the search. Replacement timber or forest products must come from the same National Forest as the original contract. The term National Forest in this paragraph refers to an administrative unit headed by a single Forest Supervisor. Only timber or forest products for which a decision authorizing its harvest has been made and for which any applicable appeals or objection process has been completed may be considered for replacement pursuant to this paragraph. The value of replacement timber or forest products may not exceed the value of the material it is replacing by more than $10,000, as determined by standard Forest Service appraisal methods. Dated: October 12, 2007. Mark Rey, Under Secretary, Natural Resources and Environment. [FR Doc. E7-20625 Filed 10-18-07; 8:45 am] BILLING CODE 3410-11-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51, 60, 72, 78, 96, and 97 [EPA-HQ-OAR-2007-0012; FRL-8483-7] RIN 2060-A033 Revisions to Definition of Cogeneration Unit in Clean Air Interstate Rule (CAIR), CAIR Federal Implementation Plans, Clean Air Mercury Rule (CAMR); and Technical Corrections to CAIR, CAIR FIPs, CAMR, and Acid Rain Program Rules AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: The Clean Air Interstate Rule (CAIR), CAIR Federal Implementation Plans (FIPs), and Clean Air Mercury Rule

(CAMR)each include an exemption for cogeneration units that meet certain criteria. In light of information concerning biomass-fired cogeneration units that may not qualify for the exemption due to their particular combination of fuel and technical design characteristics, EPA is changing the cogeneration unit definition in CAIR, the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR, and the CAMR model cap-and-trade rule. Specifically, EPA is revising the calculation methodology for the efficiency standard in the cogeneration unit definition to exclude energy input from biomass making it more likely that units co-firing biomass will be able to meet the efficiency standard and qualify for exemption. Because this change will only affect a small number of relatively low emitting units, it will have little effect on the projected emissions reductions and the environmental benefits of these rules. If EPA finalizes the proposed CAMR Federal Plan, it intends to make the definitions in that rule conform to the CAMR model cap-and-trade rule and thus, with today's action. This action also clarifies the term “total energy input” used in the efficiency calculation and makes minor technical corrections to CAIR, the CAIR FIPs, CAMR, and the Acid Rain Program rules. DATES: The final rule is effective on November 19, 2007. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2007-0012. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air Docket is

(202)566-1742. FOR FURTHER INFORMATION CONTACT: For information concerning today's action, contact Elyse Steiner, Program Development Branch, Clean Air Markets Division (MC 6204J), EPA, Washington, DC 20460; telephone number

(202)343-9141; fax number

(202)343-2359; electronic mail address: *Steiner.elyse@epa.gov.* SUPPLEMENTARY INFORMATION: *Regulated Entities.* Categories and entities potentially regulated by this action include the following, which were previously identified by EPA as potentially regulated or affected by CAIR, the CAIR FIPs, or CAMR: Category NAICS code 1 Examples of potentially regulated entities Industry 221112 Fossil fuel-fired electric utility steam generating units. Federal government 2 221122 Fossil fuel-fired electric utility steam generating units owned by the Federal government. State/local/Tribal government 2 221122 Fossil fuel-fired electric utility steam generating units owned by municipalities. 921150 Fossil fuel-fired electric utility steam generating units in Indian country. 1 North American Industry Classification System. 2 Federal, State, or local government-owned and operated establishments are classified according to the activity in which they are engaged. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists examples of the types of entities EPA is now aware could potentially be regulated by this action. Other types of entities not listed could also be affected. To determine whether a facility is regulated, carefully examine the applicability provisions and definitions in CAIR, the CAIR FIPs, CAMR, and the proposed CAMR Federal Plan. 1 All references related to applicability and definitions for these rules have been provided in a single list only once and will not be referenced again in this action to avoid unnecessary repetition. 1 All applicability provisions and definitions can be found in the CFR or FR in the following locations: for CAIR and the CAIR model cap-and-trade rules, 40 CFR 51.123, 51.124, 96.102, 96.104, 96.202, 96.204, 96.302, and 96.304; for the CAIR FIP, 40 CFR 97.102, 97.104, 97.202, 97.204, 97.302, and 97.304; for CAMR and the CAMR model cap-and-trade rule, 40 CFR 60.24(h)(8), 60.4102, and 60.4104; and for the proposed CAMR Federal Plan, Proposed § 62.15902 and § 62.15904. As discussed below, EPA believes that the vast majority of biomass cogeneration units are operated by the pulp and paper industry. The following table identifies NAICS codes for entities in the pulp and paper industry. This table is not intended to be exhaustive, but rather the table may help identify entities potentially affected by today's action, although today's action may affect entities in other industries in addition to pulp and paper. Category NAICS code 1 Examples of potentially regulated entities Industry 22 Utilities. 322 Paper Manufacturing Facilities. 32213 Paperboard Mills. 322122 Newsprint Mills. 1 North American Industry Classification System. If you have questions regarding the applicability of this action to a particular entity, consult your EPA Regional Office or EPA's Clean Air Markets Division. *Worldwide Web.* In addition to being available in the docket, an electronic copy of this action will also be available on the Worldwide Web through EPA's Office of Air and Radiation. Following signature by the Administrator, a copy of this action will be posted on the CAIR and CAMR pages at *http://www.epa.gov/cair* and *http://www.epa.gov/camr.* *Outline.* The information presented in this preamble is organized as follows: I. Background A. Summary of This Action B. Background on CAIR, the CAIR FIPs, CAMR, and the Proposed CAMR Federal Plan C. Applicability Provisions for Cogeneration Units D. Reason for Changing Definition for Cogeneration Units II. EPA's Final Rule and Its Impacts A. Final Change for Cogeneration Units B. Emissions Impact of This Action C. State Emissions Budgets D. Impact of This Action on CAIR and CAMR Implementation III. Calculating Thermal Efficiency and Total Energy Input IV. Minor Corrections to CAIR and the Acid Rain Program Regulations V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act L. Judicial Review I. Background A. Summary of This Action In this rule, EPA is revising the definition of the term “cogeneration unit” in CAIR, the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR, and the CAMR Hg model cap-and-trade rule, and announcing its intention to use this revised definition in the CAMR Federal Plan if it is finalized. The CAIR model cap-and-trade rules and the CAIR FIPs apply to large fossil-fuel fired electric generating units with certain exceptions. The CAMR, CAMR Hg model cap-and-trade rule, and proposed CAMR Federal Plan address large coal-fired electric generating units with certain exceptions. The CAIR model cap-and-trade rules, CAIR FIPs, CAMR and CAMR Hg model cap-and-trade rule, and proposed CAMR Federal Plan all provide an exemption for cogeneration units meeting certain requirements. All four rules provide that in order to qualify for this exemption, a unit must, among other things, meet the definition of cogeneration unit in the rule. As finalized in all three rules and as proposed in the CAMR Federal Plan, a unit cannot meet the definition unless it meets a specified efficiency standard, i.e., the useful power plus one-half of useful thermal energy output of the unit must equal no less than a certain percentage of the total energy input or, in some cases, useful power must be no less than a certain percentage of total energy input. If a unit meets the definition of a cogeneration unit including the efficiency standard, then the unit may qualify for the exemption in these rules depending on whether it meets additional criteria. The efficiency standard, as originally written, was applied to all energy input to the unit regardless of fuel type. The criteria for qualifying as a cogeneration unit are discussed in more detail below. On August 4, 2006 EPA published a Notice of Data Availability for EGU NO X Annual and NO X Ozone Season Allocations for the Clean Air Interstate Rule Federal Implementation Plans Trading Programs (CAIR FIPs NODA) and accepted objections to the data through an electronic docket (71 FR 44283). During the period for submitting objections concerning the CAIR FIPs NODA, EPA received information concerning the application of the efficiency standard in the cogeneration unit definition (as defined in the CAIR FIPs) to biomass-fired cogeneration units and a request to extend the period for objections. Subsequently, EPA extended the period for objections—only for objections related to biomass cogeneration units—to June 1, 2007 (72 FR 7654). EPA treated the information that the Agency received concerning the application of the efficiency standard in the cogeneration unit definition to biomass-fired cogeneration units as a request for rulemaking to change the efficiency standard in the cogeneration unit definition and, in light of that information, proposed to revise the efficiency standard in the cogeneration unit definition in the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR, and the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan, so that, for boilers, energy input from only fossil fuel would be included in the efficiency calculation. EPA also took comments on excluding biomass fuel from the efficiency standard specifically, rather than only including fossil fuel input (72 FR 20471). The newly revised cogeneration unit definition is discussed in more detail in section II of today's preamble, below. This action also makes technical corrections to CAIR, CAIR Federal Implementation Plan, CAMR, and the Acid Rain Program rules. B. Background on CAIR, the CAIR FIPs, CAMR, and the Proposed CAMR Federal Plan CAIR and the CAIR FIPs On May 12, 2005, EPA published CAIR as a final rule entitled, “Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to NO X SIP Call” (70 FR 25162). CAIR requires reductions of NO X and/or SO 2 emissions that contribute significantly to nonattainment and maintenance problems in downwind States with respect to the national ambient air quality standards for fine particulate matter (PM 2.5 ) and 8-hour ozone to be made across 28 eastern States and the District of Columbia. The reductions are required in two phases. The first phase of NO X reductions starts in 2009 (covering 2009-2014) and the first phase of SO 2 reductions starts in 2010 (covering 2010-2014); the second phase of reductions for both NO X and SO 2 starts in 2015 (covering 2015 and thereafter). States must develop State Implementation Plans

(SIPs)to achieve the emission reductions required by CAIR. Each State may determine what measures to adopt to achieve the necessary reductions and which sources to control. One option is to control certain electric generating units. In CAIR, EPA provided model SO 2 and NO X cap-and-trade programs, covering fossil-fuel-fired electric generating units that States can choose to adopt to meet the emission reduction requirements in a flexible and highly cost-effective manner. On April 28, 2006, EPA published the FIPs for CAIR as part of a final rule entitled, “Rulemaking on Section 126 Petition From North Carolina to Reduce Interstate Transport of Fine Particulate Matter and Ozone; Federal Implementation Plans To Reduce Interstate Transport of Fine Particulate Matter and Ozone; Revisions to the Clean Air Interstate Rule; Revisions to the Acid Rain Program” (71 FR 25328). The CAIR FIPs were promulgated for all 28 States and the District of Columbia covered by CAIR and will ensure that the required emission reductions are achieved on schedule. As the control strategy for the FIPs, EPA adopted the model SO 2 and NO X cap-and-trade programs for electric generating units that EPA provided in CAIR as a control option for States, with minor changes to account for Federal, rather than State, implementation. Following approval of a full SIP revision that meets with the requirements of CAIR, EPA intends to withdraw the FIPs for that State. CAMR and the Proposed CAMR Federal Plan On May 18, 2005, EPA published the CAMR as a final rule entitled “Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units; Final Rule” (70 FR 28606). CAMR established standards of performance for mercury for new and existing coal-fired electric generating units and requires mercury reductions nationwide. The reductions are required in two phases. The first phase starts in 2010 (covering 2010-2017); the second phase starts in 2018 (covering 2018 and thereafter). States must develop State Plans to achieve the mercury emission reductions required by CAMR and have flexibility to determine what measures to adopt to achieve the necessary reductions. Unlike CAIR, under which States may choose which sources to control, CAMR requires that States control mercury emissions from coal-fired electric generating units. In CAMR, EPA provided a model Hg cap-and-trade program covering coal-fired electric generating units that States can choose to adopt to meet the emission reduction requirements. On December 22, 2006, EPA published a proposed Federal Plan for CAMR in a proposed rule entitled, “Revisions of Standards of Performance for New and Existing Stationary Sources; Electric Utility Steam Generating Units; Federal Plan Requirements for Clean Air Mercury Rule; and Revisions of Acid Rain Program Rules” (71 FR 77100). The CAMR Federal Plan was proposed to implement the standards of performance for coal-fired electric generating units located in all States, the District of Columbia, and Indian Country covered by CAMR ( *See* 40 CFR 60.24(h)(1) listing the jurisdictions covered by CAMR) to ensure that the required emission reductions are achieved on schedule. As the control strategy for the Federal Plan, EPA proposed to adopt the model Hg cap-and-trade program for coal-fired electric generating units that EPA provided in CAMR as a control option for States, with minor changes to account for Federal, rather than State, implementation. EPA will not adopt the Federal Plan for any State for which EPA has approved a State Plan that meets the CAMR requirements before EPA promulgates the final Federal Plan. If EPA finalizes the Federal Plan, it will withdraw the Federal Plan promulgated for any State after the Agency approves a State Plan that meets the CAMR requirements for that State. EPA will similarly withdraw the Federal Plan upon its approval of a Tribal Plan. C. Applicability Provisions for Cogeneration Units Applicability determinations under the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR, the CAMR Hg model cap-and-trade rule, and the proposed CAMR Federal Plan all turn, essentially, on whether a unit is an electric generating unit. The CAIR model cap-and-trade rules and the CAIR FIPs have applicability provisions that cover certain fossil-fuel-fired units while CAMR, the CAMR Hg model cap-and-trade rule, and the proposed CAMR Federal Plan use a similar definition that covers certain coal-fired units. The CAIR model cap-and-trade rules and the CAIR FIPs apply to large fossil-fuel fired electric generating units with certain exceptions. The CAMR, the CAMR Hg model cap-and-trade rule, and the proposed CAMR Federal Plan apply to large coal-fired electric generating units with certain exceptions. The CAIR model cap-and-trade rules, CAIR FIPs, CAMR, the CAMR Hg model cap-and-trade rule, and proposed CAMR Federal Plan all provide that certain units meeting the definition of a “cogeneration unit” may be excluded from the definition of “electric generating unit,” or from the applicability provisions of the trading programs, and therefore may be exempt from the requirements of the rules (These rule provisions are commonly referred to as the cogeneration unit exemption). The cogeneration unit exemption is essentially the same under all of these rules. In order to qualify for the cogeneration unit exemption in these rules, the cogeneration unit must meet the following electricity sales criteria: A cogeneration unit qualifies for the exemption if the unit supplies in any calendar year no more than 1/3 of its potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale. In order to be a cogeneration unit, a unit must have equipment used to produce electricity and useful thermal energy through sequential use of energy and must meet a specified efficiency standard, i.e., the useful power plus one-half of useful thermal energy output of the unit must equal no less than a certain percentage of the total energy input or, in some cases, useful power must be no less than a certain percentage of total energy input. If a unit meets the definition of cogeneration unit including the efficiency standard, then it may qualify for the cogeneration unit exemption in these rules depending on whether it meets additional criteria concerning the amount of electricity sales from the unit. As originally written in these rules, the efficiency standard in the cogeneration unit definition applied to all energy input to the unit regardless of fuel type. That part of the cogeneration unit definition has been revised by today's action. If EPA finalizes the proposed CAMR Federal Plan, it intends to make the same revision in that rule. CAIR and the CAIR FIPs As originally issued, CAIR, the CAIR model cap-and-trade rules, and the CAIR FIPs defined “cogeneration unit” as a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:

(1)Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and

(2)Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—

(i)For a topping-cycle cogeneration unit,

(A)Useful thermal energy not less than 5 percent of total energy output; and

(B)Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input, if useful thermal energy produced is less than 15 percent of total energy output.

(ii)For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input. 2 2 Topping-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy. Bottoming-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production. Today's action modifies this definition of “cogeneration unit” to exclude energy input from biomass for existing and future boilers and provides a more specific definition of “total energy input” to be used in calculating thermal efficiency. CAMR and the Proposed CAMR Federal Plan With certain exceptions, CAMR defines electric generating unit

(EGU)as a stationary, coal-fired boiler or stationary, coal-fired combustion turbine in the State serving at any time, since the later of November 15, 1990 or the start-up of a unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale. The definition of “cogeneration unit” in CAMR, the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan, as originally issued, was identical to the cogeneration unit definition in CAIR, the CAIR model cap-and-trade rules, and the CAIR FIPs, except that the definition in the CAMR and related rules referred to stationary, coal-fired boilers or stationary, coal-fired combustion turbines where the definition in the CAIR-related rules refers to stationary, fossil-fuel-fired boilers or stationary, fossil-fuel-fired combustion turbines. If a unit meets the criteria concerning service of a generator (and so would otherwise be an electric generating unit) but qualifies as a cogeneration unit, then the unit may be excluded from the definition of electric generating unit, and as a result, excluded from the applicability provisions of the trading programs, and thus excluded from the regulatory requirements of the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR and the CAMR model cap-and-trade rule, and the proposed CAMR Federal Plan. In order to qualify for this exemption under these rules, the cogeneration unit must meet certain additional criteria. Specifically, as discussed above, a cogeneration unit qualifies for the exemption if the unit supplies in any calendar year no more than 1/3 of its potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale. D. Reason for Changing Definition for Cogeneration Units As noted above, the definition of “cogeneration unit” in CAIR, the CAIR model rules, the CAIR FIPs, CAMR and the CAMR model rule, contains an efficiency standard. The purpose of this efficiency standard in the cogeneration unit definition is to prevent a potential loophole where a unit might send only a nominal or insignificant amount of thermal energy to a process and not achieve significant efficiency gains through cogeneration, but still qualify as a cogeneration unit and potentially qualify for the cogeneration unit exemption discussed above. During the period for submitting objections concerning the CAIR FIPs NODA, EPA received information from commenters that suggested to EPA that the efficiency standard in the definition of cogeneration unit should be revised with regard to units co-firing biomass. The commenters also submitted information concerning the application of the efficiency standard to biomass-fired cogeneration units and stated that the existing rule “unfairly penalizes co-generation units that burn significant amounts of biomass.” The information indicates that many biomass cogeneration units may be unable to meet the efficiency standard because “biomass, when burned as a fuel, has a lower thermal efficiency for conversion to steam than fossil fuels, such as coal, oil and natural gas.” Previously, in developing CAIR, EPA indicated that it expected “most back pressure units burning * * * biomass to meet the efficiency standard” ( *see* Technical Support Document

(TSD)for CAIR on Cogeneration Unit Efficiency Calculations). 3 The Agency believed at the time that most biomass cogeneration units would meet the efficiency standard, and thus would be potentially exempt cogeneration units. EPA has since re-examined whether the efficiency standard is appropriate for all biomass-fired cogeneration units. 3 Cogeneration Unit Efficiencies Calculation, March 2005. OAR-2003-0053-2087 *http://epa.gov/cair/pdfs/tsd_cogen.pdf* . EPA believes that the vast majority of existing biomass cogeneration units are operated by the pulp and paper industry. 4 The biomass fuels typically fired by pulp and paper units are wood-based biomass and black liquor. 5 Both biomass fuels have relatively high moisture content that prevents them from burning as efficiently as coal and other fossil fuels. The moisture content of these biomass fuels can range from approximately 40 to over 60 percent. In comparison, the moisture content of bituminous coal is relatively low, less than 10 percent. Higher moisture content requires that more of the heating value of the fuel goes into evaporating that moisture during combustion. The evaporated moisture (and the heat used to evaporate it) escapes up the stack—subtracting from the efficiency of the unit. Therefore, the higher the moisture content in the biomass and the higher the proportion of biomass fuel used, the more difficult it will be for a unit to meet the efficiency standard in the cogeneration unit definition. Conversely, the greater the amount of heat input from fossil fuels, the easier it is for a unit to meet the efficiency standard because of the reduced need for energy to heat and vaporize the moisture in the fuel. 4 The pulp and paper industry raised concerns regarding biomass cogeneration units during the period for objections to the CAIR FIPs NODA. 5 Black liquor is spent pulping liquor, a byproduct of a pulping process used to separate the wood fibers used in papermaking from lignin and other wood solids. Certain additional factors may also contribute to lower efficiencies for existing biomass cogeneration units in the pulp and paper industry. EPA believes that, as compared to large electric power plants that are optimized for power generation, many of the existing process-optimized units in the pulp and paper industry use significantly lower design steam pressure and temperature conditions at the steam turbine inlet. For example, a large power plant turbine might be designed to use steam at 2,400 psig and 1,000 °F, whereas a steam turbine generator in a pulp and paper plant might be using steam at conditions below 900 psig and 800 °F. These lower steam conditions reduce the efficiency of the overall cogeneration cycle, which was optimized for process needs, not for electric power generation. Moreover, some steam turbine generators in the pulp and paper industry have been installed by retrofit—a circumstance that may have exacerbated the problem because the boiler was designed before cogeneration by the unit was contemplated and thus before the impact of the design on thermal efficiency became a consideration. In addition, existing biomass cogeneration units (boilers and steam turbines) in the pulp and paper industry generally are relatively small, and smaller units are typically less efficient than larger units. The existing smaller units generally do not incorporate high-efficiency design practices and their energy losses (such as radiation loss for a boiler and mechanical loss for a steam turbine-generator set) per unit of energy input are inherently higher. The combination of relatively high fuel moisture content and small boiler size results in efficiencies as low as 60 percent for the biomass boiler itself, compared to typical large fossil fuel-fired boiler efficiencies ranging to above 85 percent. In summary, EPA believes that biomass cogeneration units as a group have a particular set of characteristics that together may make it difficult for many units to meet the efficiency standard in the cogeneration unit definition unless the units co-fire significant amounts of fossil fuel, such as coal. These characteristics are: fuels with relatively high moisture content, units designed for relatively low pressure and temperature conditions for industrial processes, and relatively small boilers and steam turbines that are inherently less efficient due to their size. EPA recognizes that there are some existing biomass cogeneration units (e.g., those that co-fire coal, natural gas, or oil for a large portion of their heat input) that might be able to meet the efficiency standard, as discussed in the following section. The cogeneration unit definition finalized in the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR, the CAMR Hg model cap-and-trade rule and in the proposed CAMR Federal Plan includes all energy input in the efficiency calculation. EPA believes that the inclusion of energy input from all fuels—rather than from all fuels except biomass—has the unanticipated and unintended consequence of making it very difficult for existing biomass cogeneration units to qualify as cogeneration units unless they co-fire significant amounts of fossil fuel, such as coal. Preventing these existing units from qualifying as cogeneration units is not consistent with the purposes of the efficiency standard. These units were originally designed to, and still do, produce significant amounts of useful thermal energy (relative to their total energy output) and to achieve efficiency gains over non-cogeneration units. Under these circumstances, application of the original efficiency standard to existing biomass cogeneration units does not seem to promote the purposes of the standard. In addition, application of this standard as originally written had the paradoxical result that existing biomass cogeneration units burning greater amounts of fossil fuels (therefore likely having greater emissions) were much more likely to meet the efficiency requirement and thus qualify as cogeneration units exempt from emission limits under the CAIR model cap-and-trade programs and CAMR model cap-and-trade rule, while existing biomass cogeneration units burning less coal (therefore likely having lower emissions) were less likely to meet the requirement and qualify for the exemption. For these reasons, EPA is revising the efficiency standard in the cogeneration unit definition such that energy input from biomass fuels only may be excluded from the total energy input used to calculate efficiency for cogeneration units. The final change is discussed in more detail below. II. EPA's Final Action and Its Impacts A. Final Change for Cogeneration Units EPA is revising the efficiency standard in the cogeneration unit definition in CAIR, the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR and the CAMR model cap-and-trade rule to permit boilers to exclude energy input from biomass fuels in the efficiency calculation rather than include energy input from all fuels. EPA also intends to use this revised definition if it finalizes the CAMR Federal Plan. This revised definition will make it more likely that units burning biomass and cogenerating electricity and useful thermal energy will meet the efficiency standard and qualify as exempt cogeneration units under these rules. EPA has decided to revise the efficiency standard in the cogeneration unit definition to specifically exclude heat input from biomass fuel, rather than exclude all non-fossil fuel input. This approach was offered as an alternative from the main approach EPA proposed, which would have excluded heat input from any non-fossil fuel in the efficiency calculation. EPA explicitly requested comment on this alternative and, after considering the comments, decided that it was preferable to exclude only heat input from biomass fuels. This preferred approach more narrowly limits the exclusion of heat input from the non-fossil fuel (i.e., biomass) whose relatively high moisture content, combined with the other factors of biomass cogeneration discussed above (e.g., relatively low pressure and temperature unit design conditions and relatively small boilers and steam turbines) are the basis for EPA's revisions. Although EPA specifically requested comment concerning cogeneration units burning other identifiable types of non-fossil fuels and their characteristics, little additional information was received. The comments that were received provided neither adequate information about the composition and moisture content of other non-fossil fuels nor data on what type or how many units combust these other fuels. Information in the record provides no basis for determining that combustion of any non-fossil fuel other than biomass involves the particular combination of characteristics upon which the exclusion of biomass heat input in boilers is based or any other characteristics on which an expansion of the exclusion of heat input to other non-fossil fuels could be based. For these reasons, EPA is limiting the exclusion for boilers to heat input from biomass fuel only. This approach avoids expanding the change to the cogeneration unit exemption to units that cogenerate but combust other non-fossil fuels for which there is no basis in the record for excluding the heat input of such fuels from the efficiency calculation. With today's rule change, the efficiency calculation will be based on total energy input excluding input from biomass fuel. EPA requested comment on the definition of the term “biomass” that would be used solely for the purpose of identifying fuels excluded from heat input calculations covered by this rulemaking. Commenters provided a number of alternative suggestions to define the term “biomass” in response to EPA's request for input. EPA considered the various definitions and has determined that the following definition of “biomass” derived largely from the “biomass” definition in Section 932 of the Energy Policy Act of 2005 is appropriate for this action. The definition of “biomass” adapted in today's action depicts biomass as an energy source and an important renewable fuel supply. EPA notes that it is adopting this biomass definition only for purposes of the cogeneration definition in CAIR, CAMR and other related rules addressed in this rulemaking. It may not be the appropriate definition in other contexts or other rules. For the purposes of the cogeneration unit definition addressed in this rulemaking, the term “biomass” means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy;

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from nonmerchantable material, and that is:

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(ii)A wood material, including pallets, crates, dunnage, manufacturing and construction materials (other than pressure-treated, chemically-treated, or painted wood products), and landscape or right-of-way tree trimmings. EPA received a few comments expressing the view that EPA should not change the existing cogeneration unit definition for any units in order to more effectively protect the environment and human health. These comments asserted that the revision of the definition would have adverse impacts on the environment or human health. However, the commenters did not provide any support for these assertions. Commenters did not dispute EPA's reasons for making the change based on technical differences, fuel characteristics, and equipment design decisions. EPA examined the potential impacts of the revision and, as discussed below, determined that the estimated change in SO 2 , NO X , and Hg emissions due to this rule change is very small compared to the overall emission cap levels. For these reasons, EPA believes that the change in the cogeneration unit definition adopted in this rule is reasonable. The change to the efficiency standard made in today's rule will apply both to existing units and to new units that are constructed in the future. In the Notice of Proposed Rulemaking, EPA proposed to apply the revised standard only to existing units, but it also solicited comments on whether the efficiency standard should be applied to all units regardless of when construction on the unit commenced. After considering comments received, EPA has determined that it is appropriate to apply the revised efficiency standard to both existing and new units. EPA received several comments in support of revising the cogeneration unit definition for all units that co-fire biomass regardless of the date that they commenced construction based on the assertion that new units will face the same difficulties meeting the original efficiency standard as existing units. EPA notes that existing biomass-fired boilers do not generally operate as stand-alone units, but rather are generally part of an integrated facility that may include several boilers, common headers, and several steam turbine generators. Similarly, new biomass boilers are likely to be constructed to fit into an existing configuration of boilers and stream turbine generators. Consequently, even if new, stand-alone biomass boilers might theoretically be able to meet the original efficient standard, they are likely to be integrated with existing equipment, rather than operate as stand-alone equipment that can be designed without the limitations on efficiency that apply to existing boilers. EPA's previous analysis did not take this into account. Moreover, the combustion technology used in existing and new boilers is essentially the same. Therefore, many of the same factors (i.e., high moisture fuel, low pressure and temperature conditions, and small boilers and steam turbines) that make it difficult for existing biomass boilers to meet the original efficiency standard may well apply to new biomass boilers, whose design is limited by the need to be integrated into an existing facility. Because of the absence of information in the record about the design attributes of new biomass units that would support distinguishing between existing and new biomass boilers, EPA has decided to adopt the revised cogeneration unit definition for all boilers, regardless of their construction date. Further, this approach eliminates the need for a clear-cut distinction between new and existing units, which commenters noted could be complex and problematic, and may avoid discouraging the construction of new biomass cogeneration units and the increased use of biomass fuel for cogeneration. However, today's revision to the definition for all cogeneration units in CAIR and CAMR does not in any way change the meaning of the term “cogeneration” or any other provisions in the NSPS ( *See* 40 CFR 60.41Da). Under the revised cogeneration unit definition, “cogeneration unit” is defined, with regard to boilers, as a stationary, fossil-fuel-fired boiler (for the CAIR model rules and the CAIR FIPs) or stationary, coal-fired boiler (for CAMR, the CAMR Hg model cap-and-trade rule, and the proposed CAMR Federal Plan if it is finalized):

(1)Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and

(2)Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—

(i)For a topping-cycle cogeneration unit,

(A)Useful thermal energy not less than 5 percent of total energy output; and

(B)Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input from all fuel other than biomass, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input from all fuel other than biomass, if useful thermal energy produced is less than 15 percent of total energy output.

(ii)For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input from all fuel other than biomass. The revised definition does not apply to combustion turbines which combust gaseous fuel. For combustion turbines, the cogeneration unit definition—and the efficiency standard in particular—would remain as finalized in the CAIR model rules, the CAIR FIPs, CAMR, and the CAMR Hg model cap-and-trade rule and will not be revised in the CAMR Federal Plan, if finalized. Although EPA received some comments suggesting that the revised cogeneration unit definition should be extended to combustion turbines, EPA maintains that these comments are beyond the scope of this rulemaking. In the Notice of Proposed Rulemaking, EPA stated that it was proposing to apply the revised definition only to boilers, not to combustion turbines (See 72 FR 20471). Moreover, consistent with this, the record for the proposal did not include any information about combustion turbines burning biomass. EPA notes that, in order to be burned in a combustion turbine, the biomass first must be gasified, and the integration of biomass gasification with electric and steam generation by combustion turbines involves significantly different technology than that used in biomass-fired boilers. Consequently, the information concerning biomass boilers is not necessarily relevant to biomass combustion turbines. Under these circumstances, the comments supporting extension of the revised definition to combustion turbines are beyond the scope of the rulemaking. In addition, the commenters provided little or no information indicating whether biomass combustion turbines would have problems in meeting the efficiency standard and, if so, what would be the nature and extent of the problems and whether the problems would be the same as those for biomass boilers. In fact, EPA believes that there are currently no combustion turbines of this type in commercial use to serve as a basis for analysis of the likely characteristics and thermal efficiency of this type of unit. EPA, therefore, is not extending the revised cogeneration unit definition to turbines both because the comments are beyond the scope of the rulemaking and because there is essentially no record evidence concerning whether this type of unit would have difficulty meeting the original efficiency standard. Consistent with the proposal, EPA is finalizing this rule with the revised cogeneration unit definition applying only to boilers, not combustion turbines. The issue of revising the definition with regard to combustion turbines may be raised in the future if biomass combustion turbines are developed and built in the future and are shown to have difficulty meeting the efficiency standard. B. Emissions Impact of This Action During development of the proposal, EPA analyzed the emissions impact of the proposed action using the methodology explained below. For this analysis, EPA used Energy Information Administration

(EIA)data because detailed EPA data was not available. For the CAIR model rules and the CAIR FIPs, EPA generated an inventory of biomass cogeneration units that serve generators with nameplate capacity greater than 25 MW in CAIR states and then looked for units that would potentially be affected by a change in the efficiency standard and estimated the SO 2 and NO X emissions. For CAMR and the proposed CAMR Federal Plan, using EIA data EPA generated an inventory of cogeneration units burning both coal and biomass that serve a generator with nameplate capacity greater than 25 MW in CAMR states nationwide, and tried to identify units that might be affected and estimated the Hg emissions. 6 6 Technical Support Document: Methodology for Thermal Efficiency and Energy Input Calculations and Analysis of Biomass Cogeneration Unit Characteristics. EPA-HQ-OAR-2007-0012-0004.1 After publishing its biomass cogeneration unit inventories which identified units potentially affected by the proposed rule change, EPA received additional information from commenters about some of the units already on the list and about four additional units that have since been included in the list. EPA updated its inventory based on the input from American Forest and Paper Association's (AF&PA) member survey, and the results are summarized below in Table II-1. 7 For more information about how EPA identified biomass cogeneration units for the initial proposal analysis, refer to the proposal and its Technical Support Document (TSD), “Methodology for Thermal Efficiency and Energy Input Calculations and Analysis of Biomass Cogeneration Unit Characteristics” (April 2007). 7 Comment attachment submitted by Timothy G. Hunt, Senior Director, Air Quality Programs, American Forest and Paper Association (AF&PA). EPA-HQ-OAR-2007-0012-0014.1 As shown in Table II-1, emissions from units whose status under the CAIR model rules or the CAIR FIPs may be affected by the rule change are estimated to be on the order of 15,000 and 20,000 tons per year for SO 2 and NO X , respectively. These emissions are quite small compared to the size of the region-wide emission caps under CAIR, which are 1.5 and 1.3 million tons of NO X for the first and second phases of the annual NO X program, respectively, and 3.7 and 2.6 million tons of SO 2 for the first and second phases of the SO 2 program, respectively (i.e., for NO X , about 1.3 percent of the phase I cap and 1.5 percent of the phase II cap, and for SO 2 about 0.4 percent of the phase I cap and 0.6 percent of the phase II cap). 8 8 Arkansas is included in CAIR for the ozone-season NO X program only, not for the annual NO X and SO 2 programs. Because these NO X emission estimates include annual NO X emissions for units in Arkansas, the estimates slightly overstate the potential impact of the final rule change for units in Arkansas. Emissions from units whose status under CAMR, the CAMR Hg model cap-and-trade rule, or the proposed CAMR Federal Plan may be affected by the rule change are estimated to be on the order of 0.02 tons of Hg per year. These emissions are very small compared to the size of the nationwide emission caps under CAMR which are 38 and 15 tons of Hg for the first and second phases, respectively (i.e., less than 0.1 percent of the phase I cap and about 0.1 percent of the phase II cap). Another way to look at the magnitude of emissions represented by units that may be affected by today's rule change is to compare emissions from this group of units to emissions from biomass cogeneration units that we assumed were already exempt because they could meet the efficiency standard as previously written. Table II-2 shows estimated annual NO X , SO 2 , and Hg emissions for this group of units. (Note that this group excludes units that reported to EIA that they do not have the ability to sell power to the grid and units that reported the ability to sell power and whose historic sales exceed the electricity sales threshold for the exemption.) As shown in the table, the emissions from the group of units whose regulatory status we believe may change under today's rule change are considerably less than emissions from the group of biomass cogeneration units which we believe were already exempt from these rules because they meet the efficiency standard as previously written. EPA's analysis also suggests that, on average, the estimated emissions per unit are lower from the group whose regulatory status we believe may change compared to the group of units we believe were already exempt from these rules because they can meet the efficiency standard as previously written. It is expected that emission rates at units burning proportionally more biomass—which is the group whose regulatory status we believe will change—will generally be lower than emission rates at units burning less biomass. It is important to note that EPA emissions estimates in Tables II-1 and II-2 are based on a combination of EPA estimates and AF&PA member survey data concerning units that EPA anticipates may be affected by the rule change. Table II-1.—Estimate of Biomass Cogeneration Units Potentially Excluded From CAIR and CAMR by the Rule Change and Estimate of Their Emissions CAIR NO X CAIR SO 2 CAMR Hg Estimated number of units potentially affected by the rule change 39 39 5 Estimated annual emissions from units potentially affected by the rule change

(tons)19,800 14,900 0.02 (40 lbs) Table II-2.—Estimate of Biomass Cogeneration Units Assumed Excluded From Original CAIR and CAMR and Estimate of Their Emissions CAIR NO X CAIR SO 2 CAMR Hg Estimated number of units assumed to meet efficiency standard as written 54 42 30 Estimated annual emissions from units assumed to meet the efficiency standard as written

(tons)29,700 59,800 0.24 (480 lbs) Finally, units that might become exempt cogeneration units as a result of today's rule changes may be required to make emission reductions under programs other than CAIR or CAMR. These units will need to work with permitting authorities to determine whether they must comply with other regulatory rules. C. State Emissions Budgets EPA did not propose to change the NO X , SO 2 , or Hg State emission budgets under CAIR and CAMR, and is not changing those budgets in this final action. As discussed above, the estimated amount of emissions from units potentially affected by today's action is minimal compared to the size of the applicable region-wide

(CAIR)and nationwide

(CAMR)caps. Further, none of the units that EPA has identified as potentially affected by the rule change were included in the state budget calculations, as explained below. In addition, States have made significant progress toward the implementation of CAIR and CAMR based on the emission budgets that were established in those rules. Proposing and finalizing revised State emission budgets would take substantial effort by many States and EPA and considerably delay CAIR and CAMR implementation. The CAIR emission budgets are in 40 CFR 51.123(e)(2) and (q)(2) and 51.124(e)(2) and CAMR emission budgets are in 40 CFR 60.24(h)(3). Discussion of development of the CAIR and CAMR State emission budgets are in 70 FR 25162 and 70 FR 28606, respectively. Although EPA did not propose to change any state budgets in this action, the Agency did request comment on changing the budgets to reflect the proposed changes in the definition of cogeneration unit. EPA received some comments arguing that the state budgets should be reduced because more units may qualify for the cogeneration unit exemption. These comments did not provide specific suggestions regarding how the budgets should be reduced. Presumably, they would advocate eliminating any units from the budgets that were covered under the original rules but that qualify for exemption under this revision to those rules. However, upon closer inspection, none of the units expected to be affected by this change to the efficiency standard are among the CAIR and CAMR units included in the heat input inventories that were used to develop state budgets. 9 All of the biomass cogeneration units in the heat input inventories either

(1)meet the original efficiency standard already based on EPA's analysis,

(2)do not sell power to the grid based on available data, or

(3)do not qualify for the cogeneration unit exemption because they exceed the limitation on electricity sales. In other words, since none of the units that EPA has identified as potentially affected by the rule change were even included in the state budget calculations to begin with, EPA has determined that it is not appropriate or necessary to recalculate the budgets. Therefore, and for the reasons discussed above in this section, EPA concludes that state budgets should not be recalculated. Finally, EPA will not be decreasing or increasing overall emissions cap levels or state budgets in response to any units (biomass or otherwise) that qualify or do not qualify for the cogeneration unit exemption at this late stage in the implementation of CAIR and CAMR. 9 Data for EGU NO X Annual and NO X Ozone Season Allocations for the Clean Air Interstate Rule Federal Implementation Plan Trading Programs. EPA-HQ-OAR-2004-0076-0230 CAMR Unit Hg Allocations ( *http://www.epa.gov/ttn/atw/utility/final_camr_unithgallo_oar-2002-0056-6155.xls* ) D. Impact of This Action on CAIR and CAMR Implementation In the proposal, the Agency recognized that finalizing this change in the cogeneration unit definition and in the applicability provisions of the CAIR model rules and CAMR and the CAMR Hg model cap-and-trade rule would require States to change CAIR SIPs and CAMR State Plans and that States have already made significant progress in developing these plans. In that context, the Agency has carefully considered the timing of the regulatory action in relation to the implementation timeline. The Agency understands that there may be implementation concerns regarding this action and requested comments on implementation concerns from the States. After considering comments received, EPA is finalizing a change to the cogeneration unit definition in the model trading rules and is setting a time frame within which States wanting to participate in the EPA-administered trading programs must revise their existing cogeneration unit definition to be the same as in the revised EPA rules. EPA will change the cogeneration unit definition in the CAIR model cap-and-trade rule, CAIR FIPs, and CAMR model cap-and-trade rule to reflect today's changes, and intends to change it if the Agency finalizes the CAMR Federal Plan. In the proposal, EPA requested comments on an alternative option whereby the Agency would modify CAIR to allow States intending to join the EPA-administered CAIR trading programs to choose which cogeneration unit definition to use. After considering the comments received, EPA has decided to require all CAIR states to change their rules so that definitions remain consistent across the CAIR region and consistent with CAMR regardless of whether they have existing biomass cogeneration units affected by this action. Whether or not a State has existing units affected by the revised definition, new units may be constructed in the future that may be affected. Therefore, EPA concludes that having uniform applicability provisions (including the definition of cogeneration unit) makes the CAIR trading program easier to administer and has the equitable result that the same types of facilities are covered in all States in the trading programs. In addition, EPA does not believe this will impose an undue burden on States because under this final action, all States will already have to go through the rulemaking process to incorporate other technical revisions related to the thermal efficiency standard (i.e., revisions to the definition of “total energy input”) for all cogeneration units (discussed below in Section III) and to make the necessary efficiency standard changes to CAMR for biomass cogeneration units. With regard to CAMR, EPA does not permit States to decide which definition of cogeneration unit to use for State Plans under CAMR. Because CAMR specifies the category of units from which States must obtain emission reductions (i.e., coal-fired electric generating units as defined in the rule), CAMR, all State Plans, and the CAMR Federal Plan, if finalized, must have the same cogeneration unit definition. EPA realizes that some States may have allocated allowances to cogeneration units that might not be required to hold allowances as a result of today's final action. The Agency believes that this could be addressed by the State's SIP revision or State Plan. For example, the SIP revision or State Plan adopting revisions making some units exempt from the allowance-holding requirement could require these units to surrender their allocations for inclusion in the State's new unit set-aside. If the State requires the unit to surrender their allocations, the SIP revision or State Plan should indicate how allowances would be handled. Note that a State could also choose to adopt this rule change but not to require the units to surrender allowances even though the units are no longer covered by the rule. EPA will continue to review SIPs and State Plans submitted with the original cogeneration unit definition and efficiency standard and, at this time, will not disapprove any plan based solely on the absence of the changes in today's rule. As explained above, States are still required to complete the rulemaking process to revise their SIPs and State Plans to incorporate the clarifying change to the thermal efficiency standard and total energy input calculations for all cogeneration units in addition to making the necessary cogeneration unit definition changes as they apply to units that co-fire biomass. Specifically, with regard to CAIR SIPs, EPA is taking the approach of setting a deadline for States to adopt the revisions to the cogeneration unit definition and the efficiency standard finalized in today's rule. In order to give States time to adopt these revisions, EPA is not requiring that CAIR SIPs providing for participation in the appropriate EPA-administered trading programs to include the revisions until January 1, 2009. This means that, for purposes of reviewing and approving such a CAIR SIP before January 1, 2009, EPA will not disapprove any plan based solely on the absence of the changes in today's rule. However, any CAIR SIP providing for participation in an EPA-administered trading program that is not approved before January 1, 2009 must include the revisions in order to be subsequently approved and any such CAIR SIP that is approved before January 1, 2009 without the revisions must be revised by January 1, 2009 to include the revisions. With regard to CAMR State Plans, EPA is taking the approach set forth in 40 CFR 60.23(a), which includes general procedures for incorporation in State Plans of revisions of EPA requirements for such plans. Under 40 CFR 60.23(a), when the requirements for State Plans are revised, a State must adopt and submit a revised State Plan consistent with the revised requirements within nine months after the revised requirements are published or within such other period specified by the Administrator. In order to give States time to adopt the revisions to the cogeneration unit definition and the efficiency standard finalized in today's rule, EPA is setting a deadline under 40 CFR 60.23(a) of January 1, 2010 for adoption and submission of revised CAMR State Plans (whether or not they involve participation in the EPA-administered Hg trading program) that include these revisions. III. Calculating Thermal Efficiency and Total Energy Input Today's action also adopts revisions to the definition of “total energy input,” a term which is used in calculating thermal efficiency of a unit. These minor technical revisions will help regulatory authorities, owners, and operators determine whether the unit qualifies for the cogeneration unit exemption in CAIR, the CAIR model cap-and-trade rules, the CAIR FIPs, CAMR, the CAMR Hg model cap-and-trade rule, and the proposed CAMR Federal Plan. In the proposal, EPA requested comments on revising the efficiency standard, or the definition of “total energy input,” to specify the formula for calculating a unit's total energy input (i.e., fuel heat input). The approach that EPA is adopting in today's rule applies to all efficiency calculations made to determine if a unit satisfies the efficiency standard in the cogeneration unit definition regardless of whether or not the unit excludes from its calculation the heat input from biomass fuels. However, consistent with this final action, the thermal efficiency calculation shall include in “total energy input” the energy input from all fuels combusted by the boiler, other than biomass. A critical value used in calculating a unit's efficiency under the thermal efficiency standard in the cogeneration unit definition is “total energy input.” As discussed above under the efficiency standard, a units' useful power plus one-half of useful thermal energy output must equal no less than a certain percentage of the total energy input or, in some cases, useful power must be no less than a certain percentage of total energy input. One of the first steps in determining a unit's total energy input is identifying the unit's fuel mix and the heat content or heating value of the fuel or fuels combusted by the unit. Heating value, commonly expressed in Btu, can be measured in several ways, but the most common are to use gross heat content (referred to as “higher heating value” or “HHV”) or to use net heat content (referred to as “lower heating value” or “LHV”). According to the Energy Information Administration

(EIA)of U.S. Department of Energy, higher heating value includes, while low heating value excludes, “the energy used to vaporize water (contained in the original energy form or created during the combustion process”). 10 10 *http://www.eia.doe.gov/glossary/glossary_h.htm* . The thermal efficiency standard originally adopted by EPA was based on the thermal efficiency standard adopted by the Federal Energy Regulatory Commission

(FERC)in determining whether a unit is a qualifying cogeneration unit under section (3)(18)(B) of the Federal Power Act (as amended by the Public Utility Regulatory Policy Act (PURPA)). However, EPA originally decided to make the thermal efficiency standard cover all fuels combusted by a unit, while the FERC limited application of the standard to natural gas and oil (See 70 FR 25277 and 18 CFR 292.205(a)(2) and (b)(1)). In today's action, of course, the thermal efficiency standard is being revised to exclude, for boilers, heat input from biomass. FERC's regulations that included the thermal efficiency standard stated that “energy input” in the form of natural gas and oil “is to be measured by the lower heating value of the natural gas or oil.” 18 CFR 292.202(m). As explained by FERC when it adopted these regulations in 1980 (45 FR 17959, 17962 (1980)): Lower heating values were specified in the proposed rules in recognition of the act that practical cogeneration systems cannot recover and use the latent heat of water vapor formed in the combustion of hydrocarbon fuels. By specifying that energy input to a facility excludes energy that could not be recovered, the Commission hoped that the proposed energy efficiency standards would be easier to understand and apply. Because the thermal efficiency standard on which EPA's thermal efficiency standard was based is premised on using lower heating value to determine total energy input, EPA interprets the thermal efficiency standard in the existing CAIR, CAIR model cap-and-trade rules, CAIR FIPs, CAMR, CAMR Hg model cap-and-trade rule, and the CAMR Federal Plan, if finalized, as similarly requiring the use of lower heating value of all fuels combusted at the unit in calculating a unit's total energy input. Further, although FERC regulations use lower heating value to measure a unit's energy input from natural gas and oil, the regulations do not specify a formula for calculating lower heating value. EPA proposed, and is adopting as final in today's action, a revision to the total energy input definition to add a specific formula for calculating lower heating value. Under this formula, the relationship between the lower heating value of a fuel and the higher heating value of that fuel is: LHV = HHV − 10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb HHV = higher heating value of fuel in Btu/lb W = Weight % of moisture in fuel H = Weight % of hydrogen in fuel EPA maintains that, while FERC regulations do not include a formula for lower heating value, the above-described formula is consistent with the FERC's approach of calculating lower heating value of fuels by excluding from the higher heating value of such fuels “the latent heat of water vapor formed in the combustion of hydrocarbon fuels.” ( *See* 45 FR 17962). As discussed above, EPA's efficiency standard is based on the efficiency standard in FERC regulations. Consequently, EPA interprets the existing CAIR, CAIR model cap-and-trade rules, CAIR FIPs, CAMR, CAMR Hg model cap-and-trade rule, and the CAMR Federal Plan, if finalized, to require use of this formula for calculating lower heating value for purposes of determining total energy input. EPA notes that this formula is consistent not only with the description of “lower heating value” by FERC, but also with EIA's above-discussed description of the term. EPA also notes that the formula reflects a standard approach to calculating lower heating value (See IFRF Combustion Handbook, *http://www.handbook.ifrf.net* (IFRF 1999-2000)). In order to clarify that total energy input must be based on the lower heating value and that lower heating value must be calculated using the above-described formula EPA proposed and is today finalizing, a revision to the total energy heat input definition to make explicit the requirement to use lower heating value calculated using this formula. The revised total energy heat input definition applies to the CAIR, CAIR model cap-and-trade rules, CAIR FIPs, CAMR (including the CAMR Hg model cap-and-trade rule), and, if finalized, the CAMR Federal Plan. These minor technical revisions to the definition clarify for regulatory authorities and unit owners and operators, the application of the cogeneration unit exemption EPA maintains that this formula, along with the change to the efficiency standard for units burning biomass, should be more than sufficient to address the concern that the original efficiency standard unfairly penalized units firing biomass. IV. Minor Corrections to CAIR and the Acid Rain Program Regulations In addition to the above-described rule revisions, EPA is finalizing certain minor corrections to CAIR, the CAIR model cap-and-trade rules, and the Acid Rain Program regulations. On April 28, 2006, EPA promulgated a final rule revising several definitions used in both the CAIR and in the CAIR model cap-and-trade rules. While the rule text in the April 28, 2006 final rule incorporated the revisions to the definitions in the CAIR model cap-and-trade rules, the final rule mistakenly did not also include rule text reflecting conforming changes to the definitions of the same terms in the CAIR, i.e., to the definitions for “Allocation or allocation”, “Combustion turbine”, “Nameplate capacity”, and “Maximum design heat input”. In today's action, EPA is implementing these conforming changes in the definitions for these terms in § 51.123(cc) and

(q)and § 51.124(q) for the reasons explained in the April 28, 2006 final action ( *See* 71 FR 25328). With regard to the CAIR model cap-and-trade rules, EPA finalizing a minor correction of the definition of “Permitting authority.” For all States subject to CAIR, this term is intended to include the agencies authorized to issue CAIR permits under the regulations approved by the Administrator for the EPA-administered CAIR cap-and-trade programs. Some States have incorporated by reference, or intend to incorporate by reference, the permitting provisions of the CAIR model cap-and-trade rules. However, many other States have promulgated, or intend to promulgate, their own permitting provisions concerning the processing and issuing of CAIR permits under the EPA-administered cap-and-trade programs. The existing definition refers only to permitting authorities issuing CAIR permits under the permitting provisions of the CAIR model cap-and-trade rules and not to permitting authorities governed by States' own permitting provisions that may be approved into SIPs by the Administrator under CAIR. Today's correction—i.e., the elimination of the references, in the current “Permitting authority” definition, to subparts CC, CCC, and CCCC of the CAIR model cap-and-trade rules—corrects this technical problem. With regard to the Acid Rain Program regulations, EPA is today making final minor corrections to two parts of the regulations. In Part 72, EPA is making a non-substantive correction in wording in the Certificate of Representation requirements so that the provision will have the same wording as comparable provisions in the CAIR model cap-and-trade rules. This will facilitate using a single Certificate of Representation form for all of these trading programs. In Part 78, EPA is instituting corrections that will make it clear that the administrative appeals procedures apply to all final actions of the Administrator under the EPA-administered cap-and-trade programs whether the programs are governed by the CAIR model cap-and-trade rule provisions that many States are incorporating by reference or whether the programs are governed by the State's own cap-and-trade rules approved by the Administrator. At this time, EPA is not finalizing the change to the boiler MACT that explicitly excludes from that rule “mercury budget units covered by 40 CFR part 60, subpart HHHH” (40 CFR 63.7491(c)) that was included in the proposal. Since the proposal was published, the boiler MACT has been vacated by the court (See *Natural Resources Defense Counsel* v. *EPA,* June 8, 2007), and EPA is in the process of re-developing a new regulation in response to the court decision. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order

(EO)12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review under the EO. This action makes relatively minor revisions to the definition of “cogeneration unit” in the CAIR model cap-and-trade rules, CAIR FIPs, CAMR, including the CAMR Hg model cap-and-trade rule. If EPA finalizes the proposed CAMR Federal Plan, it intends to make the same revisions in the final rule. It also makes some other minor, technical rule revisions to the CAIR, CAIR FIPs, CAMR, and the Acid Rain Program. For today's action, EPA is relying on the economic analysis conducted for CAIR and CAMR that are presented in the Regulatory Impact Analyses for those actions. B. Paperwork Reduction Act This action does not impose any new information collection burden. This action makes relatively minor revisions to the definition of “cogeneration unit” in the CAIR model cap-and-trade rules, CAIR FIPs, CAMR, including the model cap-and-trade rule, and announces its intent to make the same revisions if it finalizes the proposed CAMR Federal Plan. It also makes some other minor, technical rule revisions to the CAIR, CAIR FIPs, CAMR, and the Acid Rain Program. The paperwork reduction requirements for this action are satisfied through the Information Collection Requests

(ICRs)submitted to OMB for review and approval as part of CAIR and CAMR. The OMB has previously approved the information collection requirements contained in the existing CAIR, and CAMR regulations (70 FR 25313, May 12, 2005, 70 FR 28643, May 18, 2005 respectively) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* For the CAIR and CAMR ICRs, OMB has assigned control numbers 2060-0570 and 2060-0567, respectively (EPA No. 2152.02 and 2137.02). A copy of the OMB approved ICRs may be obtained from Susan Auby, Collection Strategies Division, U.S. Environmental Protection Agency (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling

(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR Part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as:

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, EPA has determined that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if, among other possibilities, the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. EPA is revising the thermal efficiency standard in the cogeneration unit definition, which exists in the CAIR model trading rules, CAIR FIPs, CAMR, including the CAMR Hg model trading rule, and proposed CAMR Federal Plan. As a result, some additional cogeneration units will likely be exempt from the CAIR FIPs, CAMR and the proposed CAMR Federal Plan. We have therefore concluded that the changes to the CAIR FIPs, CAMR, including the CAMR model trading rule, and the proposed CAMR Federal Plan in today's rule will not have any significant adverse impact on small entities and may relieve regulatory burden on some small entities that would have been subject to these programs in the absence of today's rule change. CAIR and the CAIR model trading rules do not establish requirements applicable to small entities and thus a regulatory flexibility analysis is not required for the revisions to the CAIR model trading rules. CAIR requires States to submit SIP revisions to achieve the necessary emission reductions and provides model trading rules that the States may adopt to achieve these reductions. However, because States have the discretion under CAIR to choose the sources to regulate and the emissions reductions to be achieved by the regulated sources, EPA cannot predict the effect of the change to the definition in the CAIR model rules on small entities. In States that choose to adopt the model rules with the modified definition of cogeneration unit, the likely result would be the exemption of some additional cogeneration units from the EPA-administered CAIR cap-and-trade programs. With regard to CAMR, the change to the cogeneration definition is likely to result in some additional cogeneration units becoming exempt from CAMR, as well as from the EPA-administered CAMR cap-and-trade program, including potentially some small entities. Because the change is likely to relieve regulatory burden, the change will not have a significant economic impact on a substantial number of small entities. The other rule revisions would not make any substantive changes in the requirements of the existing rules and, therefore, would not have any potential significant impacts on small entities. For these reasons, the Administrator certifies that the rule will not have a significant economic impact on a substantial number of small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) (UMRA), establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under UMRA section 202, 2 U.S.C. 1532, EPA generally must prepare a written statement, including a cost-benefit analysis, for any proposed or final rule that “includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more * * * in any one year.” A “Federal mandate” is defined under UMRA section 421(6), 2 U.S.C. 658(6), to include a “Federal intergovernmental mandate” and a “Federal private sector mandate.” A “Federal intergovernmental mandate,” in turn, is defined to include a regulation that “would impose an enforceable duty upon State, local, or Tribal governments,” except for, among other things, a duty that is “a condition of Federal assistance” (UMRA section 421(5)(A)(i)(I), 2 U.S.C. 658(5)(A)(i)). A “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector,” with certain exceptions (UMRA section 421(7)(A), 2 U.S.C. 658(7)(A)). Before promulgating an EPA rule for which a written statement is needed under UMRA section 202, UMRA section 205, 2 U.S.C. 1535, generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. EPA prepared a written statement meeting the requirements of section 202 of UMRA for the final CAIR and CAMR rulemaking processes. Most of the changes in today's action relate to the definition of cogeneration unit, which results in a minor change in the applicability criteria for the CAIR model trading rules, CAIR FIPs, CAMR, including the CAMR model trading rule, and the proposed CAMR Federal Plan that will not significantly alter the impacts of these rules. The other rule changes would make no significant, substantive changes in the requirements of the existing rules. Thus, the analyses already prepared for CAIR and CAMR are applicable to today's action. In summary, today's rule contains no Federal mandates for State, local, or tribal governments or the private sector because this action is likely to actually relieve regulatory burden by making more units eligible for the cogeneration unit exemption. Furthermore, as EPA stated in the final CAIR and CAMR, EPA is not directly establishing any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments. Thus, EPA is not obligated to develop under UMRA section 203 a small government agency plan. Furthermore, in a manner consistent with the intergovernmental consultation provisions of UMRA section 204, EPA carried out consultations with the governmental entities affected by this rule. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the EO to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This rule does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, EO 13132 does not apply to this final rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.” This final action does not have tribal implications as specified in EO 13175. Thus, Executive Order 13175 does not apply to this rule. G. *Executive Order 13045:* Protection of Children From Environmental Health and Safety Risks Executive Order 13045, entitled “Protection of Children from Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that

(1)is determined to be “economically significant” as defined under EO 12866 and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This final rule would result in little change in emissions levels and the environmental benefits projected in the final CAIR and CAMR because the likely effect of the rule would be to exempt a small number of units with a very small amount of emissions compared to the overall emissions caps. The health and safety risks are essentially unchanged from those analyzed in CAIR, the CAIR FIPs, CAMR, and the proposed CAMR Federal Plan. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus bodies. The NTTAA requires EPA to provide Congress, through OMB, with explanations when EPA decides not to use available and applicable voluntary consensus standards. This final action does not use any additional technical standards beyond those cited in the final CAIR and CAMR. Therefore, EPA is not considering the use of any additional voluntary consensus standards for this action. J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order

(EO)12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. In accordance with Executive Order 12898, EPA expects this rule to have no disproportionate negative impacts on minority or low income populations because the emissions reduced by CAIR and CAMR remain essentially the same. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective November 19, 2007. L. Judicial Review Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This Section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if

(i)the agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or

(ii)such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” Any final action related to CAIR and/or CAMR is “nationally applicable” within the meaning of section 307(b)(1). As an initial matter, through this rule, EPA interprets section 110 of the CAA, a provision which has nationwide applicability. In additions, CAIR applies to 28 States and the District of Columbia; and CAMR applies to all 50 States and the District of Columbia. CAIR and CAMR are also based on a common core of factual findings and analyses concerning the transport of pollutants between different States subject to CAIR and CAMR. Finally, EPA has established uniform approvability criteria that would be applied to all States subject to CAIR and CAMR. For these reasons, the Administrator also is determining that any final action regarding CAIR and/or CAMR is of nationwide scope and effect for purposes of section 307(b)(1). Thus, any petitions for review of final actions regarding this action must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final actions is published in the **Federal Register** . List of Subjects 40 CFR Part 51 Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Coal, Electric power plants, Intergovernmental relations, Metals, Natural gas, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 72 Acid rain, Air pollution control, Carbon dioxide, Electric utilities, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 78 Environmental protection, Acid rain, Administrative practice and procedure, Air pollution control, Electric utilities, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 96 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Air pollution, control, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 97 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Nitrogen oxides, Sulfur dioxide, Reporting and recordkeeping requirements. Dated: October 11, 2007. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, parts 51, 60, 72, 78, 96, and 97 of chapter 1 of title 40 of the Code of Federal Regulations are amended as follows: PART 51—[AMENDED] 1. The authority citation for Part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q. 2. Section 51.123 is amended as follows: a. By adding a sentence at the end of paragraph (o)(1); b. By adding a sentence at the end of paragraph (aa)(1); c. In paragraph (cc): i. In the definition of “Allocate or allocation”, by removing the word “source” and adding in its place the words “source or other entity”; ii. By adding in alphabetical order a new definition of “Biomass”; iii. In the definition of “Cogeneration unit”, by removing, in paragraph

(2)introductory text, the words “year after which” and adding in their place the words “year after the calendar year in which”, by removing the period at the end of paragraph (2)(ii) and adding a semicolon in its place, and by adding a new paragraph (3); iv. In paragraph

(2)of the definition of “Combustion turbine”, by removing the words “any associated heat recovery steam generator” and adding in their place the words “any associated duct burner, heat recovery steam generator,”; v. By revising the definition of “Maximum design heat input”; vi. In the definition of “Nameplate capacity”, by removing the words “other deratings) as specified” and adding in their place the words “other deratings) as of such installation as specified” and by removing the words “maximum amount as specified” and adding in their place the words “maximum amount as of such completion as specified”; and vii. By adding a sentence at the end of the definition of “Total energy input”; and d. In paragraph (ee)(1), by removing the words “State adopt” and adding in their place the words “State may adopt” and by adding a sentence at the end of paragraph to read as follows: § 51.123 Findings and requirements for submission of State implementation plan revisions relating to emissions of oxides of nitrogen pursuant to the Clean Air Interstate Rule. (o)(1) * * * Before January 1, 2009, a State's regulations shall be considered to be substantively identical to subparts AA through II of part 96 of this chapter, or differing substantively only as set forth in paragraph (o)(2) of this section, regardless of whether the State's regulations include the definition of “Biomass”, paragraph

(3)of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in § 96.102 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009. (aa)(1) * * * Before January 1, 2009, a State's regulations shall be considered to be substantively identical to subparts AAAA through IIII of part 96 of the chapter, or differing substantively only as set forth in paragraph (o)(2) of this section, regardless of whether the State's regulations include the definition of “Biomass”, paragraph

(3)of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in § 96.302 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009.

(cc)* * * *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(ee)* * *

(1)* * * Before January 1, 2009, a State's applicability provisions shall be considered to be substantively identical to § 96.304 of this chapter (with the expansion allowed under this paragraph) regardless of whether the State's regulations include the definition of “Biomass”, paragraph

(3)of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in § 97.102 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009. 3. Section 51.124 is amended as follows: a. By adding a sentence at the end of paragraph (o)(1); and b. In paragraph (q): i. In the definition of “Allocate or allocation”, by removing the word “source” and adding in its place the words “source or other entity”; ii. By adding in alphabetical order a new definition of “Biomass”; iii. In the definition of “Cogeneration unit”, by removing, in paragraph

(2)of the definition of “Combustion turbine”, by removing the words “any associated heat recovery steam generator” and adding in their place the words “any associated duct burner, heat recovery steam generator,”; v. By revising the definition of “Maximum design heat input”; vi. In the definition of “Nameplate capacity”, by removing the words “other deratings) as specified” and adding in their place the words “other deratings as of such installation as specified” and by removing the words “maximum amount as specified” and adding in their place the words “maximum amount as of such completion as specified”; and vii. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 51.124 Findings and requirements for submission of State implementation plan revisions relating to emissions of sulfur dioxide pursuant to the Clean Air Interstate Rule. (o)(1) * * * Before January 1, 2009, a State's regulations shall be considered to be substantively identical to subparts AAA through III of part 96 of the chapter, or differing substantively only as set forth in paragraph (o)(2) of this section, regardless of whether the State's regulations include the definition of “Biomass”, paragraph

(3)of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in § 96.202 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009.

(q)* * * *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Maximum design heat input* means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV − 10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. PART 60—[AMENDED] 4. The authority citation for Part 60 is revised to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 5. Section 60.24(h) is amended as follows: a. By adding a sentence at the end of paragraph (6)(1); and b. In paragraph (8): i. By adding in alphabetical order a new definition of “Biomass”; ii. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and replacing it with a semicolon and by adding a new paragraph (3); and iii. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 60.24 Emission standards and compliance schedules.

(h)* * * (6)(i) * * * Before January 1, 2009, a State's regulations shall be considered to be substantively identical to subpart HHHH of this part, or differing substantively only as set forth in paragraph (h)(6)(ii) of this section, regardless of whether the State's regulations include the definition of “Biomass”, paragraph

(3)of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in § 60.4102 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a State plan that revises the State's regulations to include such provisions. Submission to the Administrator of a State plan that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2010.

(8)* * * * * *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV − 10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. 6. Section 60.4102 is amended as follows: a. By adding in alphabetical order a new definition of “Biomass”; b. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and adding in its place a semicolon and by adding a new paragraph (3); and c. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 60.4102 Definitions. *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV − 10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. PART 72—PERMITS REGULATION 7. The authority citation for Part 72 is revised to read as follows: Authority: 42 U.S.C. 7601 and 7651 *et seq.* § 72.24 [Amended] 8. Section 72.24 is amended, in paragraph (a)(9) introductory text, by removing the words “life-of-the-unit, firm power contractual arrangements” and adding in their place the words “a life-of-the-unit, firm power contractual arrangement”. PART 78—APPEAL PROCEDURES 9. The authority citation for Part 78 is revised to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7411, 7426, 7601, and 7651, *et seq.* 10. Section 78.1 is amended by revising paragraph (a)(1) to read as follows: § 78.1 Purpose and scope. (a)(1) This part shall govern appeals of any final decision of the Administrator under subpart HHHH of part 60 of this chapter or State regulations approved under § 60.24(h)(6)(i) or

(ii)of this chapter, part 72, 73, 74, 75, 76, or 77 of this chapter, subparts AA through II of part 96 of this chapter or State regulations approved under § 51.123(o)(1) or

(2)of this chapter, subparts AAA through III of part 96 of this chapter or State regulations approved under § 51.124(o)(1) or

(2)of this chapter, subparts AAAA through IIII of part 96 of this chapter or State regulations approved under § 51.123(aa)(1) or

(2)of this chapter, or part 97 of this chapter; provided that matters listed in § 78.3(d) and preliminary, procedural, or intermediate decisions, such as draft Acid Rain permits, may not be appealed. All references in paragraph

(b)of this section and in § 78.3 to subpart HHHH of part 60 of this chapter, subparts AA through II of part 96 of this chapter, subparts AAA through III of part 96 of this chapter, and subparts AAAA through IIII of part 96 of this chapter shall be read to include the comparable provisions in State regulations approved under § 60.24(h)(6)(i) or

(ii)of this chapter, § 51.123(o)(1) or

(2)of this chapter, § 51.124(o)(1) or

(2)of this chapter, and § 51.123(aa)(1) or

(2)of this chapter, respectively. PART 96—[AMENDED] 11. The authority citation for Part 96 continues to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7601, and 7651, *et seq.* 12. Section 96.102 is amended as follows: a. By adding in alphabetical order a new definition of “Biomass”; b. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and adding a semicolon in its place and by adding a new paragraph (3); c. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CC of this part”; and d. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 96.102 Definitions. *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV − 10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. 13. Section 96.202 is amended as follows: a. By adding in alphabetical order a new definition of “Biomass”; b. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and adding a semicolon in its place and by adding a new paragraph (3); c. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCC of this part”; and d. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 96.202 Definitions. *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV−10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. 14. Section 96.302 is amended as follows: a. By adding in alphabetical order a new definition of “Biomass”; b. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and adding a semicolon its place and by adding a new paragraph (3); c. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCCC of this part”; and d. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 96.302 Definitions. *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV−10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. PART 97—[AMENDED] 15. The authority citation for Part 97 continues to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, *et seq.* 16. Section 97.102 is amended as follows: a. By adding in alphabetical order a new definition of “Biomass”; b. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and adding a semicolon in its place and by adding a new paragraph (3); c. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CC of this part”; and d. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 97.102 Definitions. *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV − 10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. 17. Section 97.202 is amended as follows: a. By adding in alphabetical order a new definition of “Biomass”; b. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and adding a semicolon in its place and by adding a new paragraph (3); c. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCC of this part”; and d. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 97.202 Definitions. *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV−10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. 18. Section 97.302 is amended as follows: a. By adding in alphabetical order a new definition of “Biomass”; b. In the definition of “Cogeneration unit”, by removing the period at the end of paragraph (2)(ii) and adding a semicolon in its place and by adding a new paragraph (3); c. In the definition of “Permitting authority”, by removing the words “in accordance with subpart CCCC of this part”; and d. By adding a sentence at the end of the definition of “Total energy input” to read as follows: § 97.302 Definitions. *Biomass* means—

(1)Any organic material grown for the purpose of being converted to energy;

(2)Any organic byproduct of agriculture that can be converted into energy; or

(3)Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i)A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(3)Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler. *Total energy input* means * * * Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows: LHV = HHV−10.55(W + 9H) Where: LHV = lower heating value of fuel in Btu/lb, HHV = higher heating value of fuel in Btu/lb, W = Weight % of moisture in fuel, and H = Weight % of hydrogen in fuel. [FR Doc. E7-20447 Filed 10-18-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2005-VA-0011; FRL-8484-5] Approval and Promulgation of Air Quality Implementation Plans; Commonwealth of Virginia; Control of Particulate Matter From Pulp and Paper Mills AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a State Implementation Plan

(SIP)revision submitted by the Commonwealth of Virginia. The revision pertains to amendments to an existing regulation to control particulate matter from pulp and paper mills. EPA is approving this SIP revision in accordance with the Clean Air Act (CAA). DATES: *Effective Date:* This final rule is effective on November 19, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2005-VA-0011. All documents in the docket are listed in the *http://www.regulations.gov* Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219. FOR FURTHER INFORMATION CONTACT: LaKeshia Robertson,

(215)814-2113, or by e-mail at *robertson.lakeshia@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background On July 3, 2007 (72 FR 36404), EPA published a notice of proposed rulemaking

(NPR)for the Commonwealth of Virginia. The NPR proposed approval of Virginia's plan to control particulate matter emissions from pulp and paper mills (9 VAC 5, Chapter 40, Article 13, Rule 4-13). The formal SIP revision was submitted by the Commonwealth of Virginia on June 21, 2005. Other specific requirements of Virginia's plan to control particulate matter from pulp and paper mills and the rational for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR. II. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information

(1)that are generated or developed before the commencement of a voluntary environmental assessment;

(2)that are prepared independently of the assessment process;

(3)that demonstrate a clear, imminent and substantial danger to the public health or environment; or

(4)that are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. * * *” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law. III. Final Action EPA is approving the amendments to an existing regulation (9 VAC 5, Chapter 40, Article 13, Rule 4-13) submitted on June 21, 2005 as a revision to the Virginia SIP. IV. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the amendments to Virginia's regulation to control particulate matter from pulp and paper mills, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements. Dated: October 10, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for 40 CFR part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart VV—Virginia 2. In § 52.2420, the table in paragraph

(c)is amended by revising the entries for Article 13 (title), 5-40-1660, 5-40-1670, 5-40-1750, and 5-40-1810 to read as follows: § 52.2420 Identification of plan.

(c)* * * EPA-Approved Virginia Regulations and Statutes State citation (9 VAC 5) Title/subject State effective date EPA approval date Explanation [former SIP citation] * * * * * * * Chapter 40 Existing Stationary Sources * * * * * * * Part II Emission Standards * * * * * * * Article 13 Emission Standards From Kraft Pulp and Paper Mills (Rule 4-13) 5-40-1660 Applicability and designation of affected facilities 04/01/99 10/19/07 [Insert page number where the document begins] 5-40-1670 Definitions 04/01/99 10/19/07 [Insert page number where the document begins] Added: Neutral sulfite semichemical pulping operation, New design recovery furnace, Pulp and paper mill, Semichemical pulping process; Revised: Cross recovery furnace, Straight kraft recovery furnace, Total reduced sulfur; Removed: Agreement * * * * * * * 5-40-1750 Compliance 04/01/99 10/19/07 [Insert page number where the document begins] * * * * * * * 5-40-1810 Permits 04/01/99 10/19/07 [Insert page number where the document begins] * * * * * * * [FR Doc. E7-20568 Filed 10-18-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2007-0173;FRL-8484-2] Determination of Attainment, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Redesignation of Central Indiana To Attainment of the 8-Hour Ozone Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: On March 26, 2007, the Indiana Department of Environmental Management

(IDEM)submitted a request for EPA approval of a redesignation of Boone, Hamilton, Hancock, Hendricks, Johnson, Madison, Marion, Morgan, and Shelby Counties (the Central Indiana Area) to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS). IDEM also requested EPA approval of an ozone maintenance plan for this area as a revision of the Indiana State Implementation Plan (SIP). The maintenance plan demonstrates maintenance of the ozone NAAQS in this area through 2020 and establishes 2006 and 2020 motor vehicle Volatile Organic Compounds

(VOC)and Nitrogen Oxides (NO X ) emission budgets for this area. EPA is making a determination that the Central Indiana Area has attained the 8-hour ozone NAAQS. EPA is approving, as a SIP revision, the State's ozone maintenance plan for this area. Indiana has satisfied the criteria for the redesignation of the Central Indiana Area to attainment of the 8-hour ozone NAAQS, and, therefore, EPA is approving Indiana's ozone redesignation request for this area. Further, EPA is approving, for purposes of transportation conformity, the VOC and NO X Motor Vehicle Emission Budgets (MVEBs) for 2006 and 2020 that are contained in the 8-hour ozone maintenance plan. EPA proposed these actions on July 31, 2007, and received only one comment in response supporting the proposed actions. DATES: This final rule is effective on October 19, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID NO. EPA-R05-OAR-2007-0173. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet, and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Edward Doty, Environmental Scientist, at

(312)886-6057 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6057, *doty.edward@epa.gov* . SUPPLEMENTARY INFORMATION: In the following, whenever “we,” “us,” or “our” are used, we mean the United States Environmental Protection Agency. Table of Contents I. What Is the Background for This Rule? II. What Comments Did We Receive on the Proposed Action? III. What Are Our Final Actions? IV. Statutory and Executive Order Review. I. What Is the Background for This Rule? The background for today's action is discussed in detail in EPA's July 31, 2007, proposed rule (72 FR 41658). In that proposed rule, we noted that, under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is attained in an area when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations is less than or equal to 0.08 parts per million parts of air

(ppm)at all ozone monitoring sites in the area. (See 69 FR 23857 (April 30, 2004)). The Clean Air Act

(CAA)requires EPA to designate as nonattainment any area that is violating the 8-hour ozone NAAQS based on three consecutive years of air quality monitoring data. EPA designated the Central Indiana Area as a nonattainment area for the 8-hour ozone NAAQS in a **Federal Register** notice published on April 30, 2004 (69 FR 23857). At the same time, EPA classified the Central Indiana Area as a subpart 1 8-hour ozone nonattainment area, based on quality assured air quality data for the period of 2001-2003. Under the CAA, a nonattainment area may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the air quality standard and if the area meets other redesignation requirements in section 107(d)(3)(E) of the CAA. On March 26, 2007, Indiana submitted a request for redesignation of the Central Indiana Area to attainment of the 8-hour ozone NAAQS. The redesignation request included three years of complete, quality-assured data for the period of 2004-2006, indicating attainment of the 8-hour ozone NAAQS (we have also reviewed available 2007 ozone data for this area, and, to date, have seen no violations of the 8-hour ozone standard). The redesignation request demonstrated that the Central Indiana Area had met the redesignation criteria contained in the CAA. The redesignation request included an ozone maintenance plan and documentation of 2006 and 2020 VOC and NO X MVEBs for this area. Our July 31, 2007, proposed rule (72 FR 41658) provides a discussion of how the Central Indiana Area and the State of Indiana have met the redesignation requirements for this area. On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (DC Cir. 2006). For the reasons set forth in the July 31, 2007, proposed rule, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. II. What Comments Did We Receive on the Proposed Action? EPA provided a 30-day review and comment period. The comment period closed on August 31, 2007. We received only one comment letter from the City of Indianapolis, which supported our proposed approval of Indiana's ozone redesignation request. III. What Are Our Final Actions? EPA is taking several related actions for the Central Indiana Area. First, EPA is making a determination that the Central Indiana Area has attained the 8-hour ozone standard. EPA is approving Indiana's ozone maintenance plan SIP revision for the Central Indiana Area. EPA is approving the State's request to change the legal designation of the Central Indiana Area from nonattainment to attainment of the 8-hour ozone NAAQS. Finally, for the Central Indiana Area, EPA is approving 2006 MVEBs of 54.32 tons VOC per day and 106.19 tons NO X per day and 2020 MVEBs of 29.52 tons VOC per day and 35.69 tons NO X per day. In accordance with 5 U.S.C. 553(d), EPA finds that there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the State of planning requirements for this 8-hour ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions. IV. Statutory and Executive Order Review Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” 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). Regulatory Flexibility Act This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. 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.* ). Unfunded Mandates Reform Act Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13175: Consultation and Coordination with Indian Tribal Governments This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Redesignation is an action that merely affects the status of a geographical area, and does not impose any new requirements on sources, or allows a State to avoid adopting or implementing additional requirements, and does not alter the relationship or distribution of power and responsibilities established in the Clean Air Act. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a State rule implementing a Federal Standard. National Technology Transfer Advancement Act In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area but does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. Paperwork Reduction Act 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.* ). Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review, nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to force its requirements. (See Section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile organic compounds. 40 CFR Part 81 Air pollution control, Environmental protection, National parks, Wilderness areas. Dated: October 10, 2007. Walter W. Kovalick, Jr., Acting Regional Administrator, Region 5. Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations are amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart P—Indiana 2. Section 52.777 is amended by adding paragraph

(jj)to read as follows: § 52.777 Control strategy: Photochemical oxidants (hydrocarbons).

(jj)Approval—On March 26, 2007, Indiana submitted a request to redesignate Boone, Hamilton, Hancock, Hendricks, Johnson, Madison, Marion, Morgan, and Shelby Counties (the Central Indiana Area) (Indianapolis ozone nonattainment area) to attainment of the 8-hour ozone National Ambient Air Quality Standard. As part of the redesignation request, the State submitted an ozone maintenance plan as required by section 175A of the Clean Air Act. Part of the section 175A maintenance plan includes a contingency plan. The ozone maintenance plan establishes 2006 motor vehicle emission budgets for the Central Indiana Area of 54.32 tons per day for volatile organic compounds

(VOC)and 106.19 tons per day for nitrogen oxides (NO X ) and 2020 motor vehicle emission budgets for the Central Indiana Area of 29.52 tons per day for VOC and 35.69 tons per day for NO X . PART 81—[AMENDED] 3. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 4. Section 81.315 is amended by revising the entries for Indianapolis, Indiana: in the table entitled “Indiana-Ozone (8-Hour Standard)” to read as follows: § 81.315 Indiana. Indiana—Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Classification Date 1 Type * * * * * * * Indianapolis, IN: October 19, 2007 Boone County Attainment Hamilton County Attainment Hancock County Attainment Hendricks County Attainment Johnson County Attainment Madison County Attainment Marion County Attainment Morgan County Attainment Shelby County Attainment * * * * * * * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E7-20569 Filed 10-18-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 and 81 [EPA-R03-OAR-2007-0344; FRL-8484-3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the Mercer County Portion of the Youngstown-Warren-Sharon, OH-PA 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a State Implementation Plan

(SIP)revision submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Mercer County portion of the Youngstown-Warren-Sharon, OH-PA 8-hour ozone nonattainment area (“Youngstown Area” or “Area”) be redesignated as attainment for the 8-hour ozone ambient air quality standard (NAAQS). The Area is comprised of Mercer County, Pennsylvania and Trumbull, Mahoning, and Columbiana Counties, Ohio. EPA is approving the ozone redesignation request for Mercer County. In a separate rulemaking action (72 FR 32190, June 12, 2007) EPA approved the ozone redesignation request for Trumbull, Mahoning, and Columbiana Counties, Ohio. In conjunction with its redesignation request, PADEP submitted a SIP revision consisting of a maintenance plan for Mercer County that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is approving the 8-hour maintenance plan. PADEP also submitted a 2002 base year inventory for Mercer County which EPA is approving. In addition, EPA is approving the adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the Mercer County maintenance plan for purposes of transportation conformity, and is approving those MVEBs. EPA is approving the redesignation request, and the maintenance plan and the 2002 base year emissions inventory as revisions to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA). DATES: *Effective Date:* This final rule is effective on November 19, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-0344. All documents in the docket are listed in the *www.regulations.gov* Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environment Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, PA 17105. FOR FURTHER INFORMATION CONTACT: Amy Caprio,

(215)814-2156, or by e-mail at *caprio.amy@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background On July 27, 2007 (72 FR 41246), EPA published a notice of proposed rulemaking

(NPR)for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's redesignation request, a SIP revision that establishes a maintenance plan for Mercer County that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation, and a 2002 base year emissions inventory. The formal SIP revisions were submitted by PADEP on March 27, 2007. Other specific requirements of Pennsylvania's redesignation request SIP revision for the maintenance plan and the rationales for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR. However, on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (D.C.Cir. 2006). On June 8, 2007, in * South Coast Air Quality Management Dist.* v. *EPA* , Docket No. 04-1201, in response to several petitions for rehearing, the D. C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the CAA as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; and

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. In addition the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour MVEBs until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. For the reasons set forth in the proposal, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests. In its proposal, EPA proposed to find that the area had satisfied the requirements under the 1-hour standard whether the 1-hour standard was deemed to be reinstated or whether the Court's decision on the petition for rehearing were modified to require something less than compliance with all applicable 1-hour requirements. Because EPA proposed to find that the area satisfied the requirements under either scenario, EPA is proceeding to finalize the redesignation and to conclude that the area met the requirements under the 1-hour standard applicable for purposes of redesignation under the 8-hour standard. These include the provisions of EPA's anti-backsliding rules, as well as the additional anti-backsliding provisions identified by the Court in its rulings. In its June 8, 2007 decision the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore, EPA finds that the area has met the anti-backsliding requirements, *see* 40 CFR 51.900 *et seq.* ; 70 FR 30592, 30604 (May 26, 2005) which apply by virtue of the area's classification for the 1-hour ozone NAAQS, as well as the four additional anti-backsliding provisions identified by the Court, or that such requirements are not applicable for purposes of redesignation. In addition, with respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8 decision clarified that for those areas with 1-hour MVEBs, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR Part 93. The court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. II. Final Action EPA is approving the Commonwealth of Pennsylvania's redesignation request, maintenance plan, and the 2002 base year emissions inventory because the requirements for approval have been satisfied. EPA has evaluated Pennsylvania's redesignation request that was submitted on March 27, 2007 and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that Mercer County has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of Mercer County from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the maintenance plan for Mercer County submitted on March 27, 2007 as a revision to the Pennsylvania SIP. EPA is also approving the MVEBs submitted by PADEP in conjunction with its redesignation request. In addition, EPA is approving the 2002 base year emissions inventory submitted by PADEP on March 27, 2007 as a revision to the Pennsylvania SIP. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for volatile organic compounds

(VOC)and nitrogen oxides (NO X ) in Mercer County for the 8-hour ozone maintenance plan are adequate and approved for conformity purposes. 1 As a result of our finding, Mercer County must use the MVEBs from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved MVEBs are provided in the following table: 1 EPA found the MVEBs for Trumbull, Mahoning, and Columbiana Counties, Ohio adequate in a Notice of Adequacy on April 18, 2007 (72 FR 19491). Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Summer Day

(tpsd)Budget year VOC NO X 2009 4.2 11.2 2018 2.6 4.9 Mercer County is subject to the CAA's requirement for the basic nonattainment areas until and unless it is redesignated to attainment. III. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the redesignation of Mercer County to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base year emission inventory, and the MVEBs identified in the maintenance plan, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Air pollution Control, National Parks, Wilderness Areas. Dated: October 10, 2007. William T. Wisniewski, Acting Regional Administrator, Region III. 40 CFR parts 52 and 81 are amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by adding an entry to the end of the table to read as follows: 52.2020 Identification of plan.

(e)* * *

(1)* * * Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation * * * * * * * 8-Hour Ozone Maintenance Plan and 2002 Base Year Emissions Inventory Mercer County 03/27/07 10/19/07 [Insert page number where the document begins] PART 81—[AMENDED] 3. The authority citation for Part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 4. In § 81.339, the table entitled “Pennsylvania—Ozone (8-Hour Standard)” is amended by revising the entry for the Youngstown-Warren-Sharon, OH-PA: Mercer County to read as follows: § 81.339 Pennsylvania. Pennsylvania—Ozone (8-Hour Standard) Designated Area Designation a Date 1 Type Category/Classification Date 1 Type * * * * * * * Youngstown-Warren-Sharon, OH-PA Area: Mercer County 11/19/07 Attainment * * * * * * * a Includes Indian County located in each county or area, except otherwise noted. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. E7-20567 Filed 10-18-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 229 [Docket No. FRA-2006-26174; Notice No. 2] RIN 2130-AB83 Locomotive Safety Standards; Sanders AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: FRA is revising the existing requirements related to sanders on locomotives. This rule modifies the existing regulations by permitting additional flexibility in the use of locomotives with inoperative sanders. The rule provides railroads the ability to better utilize their locomotive fleets while ensuring that locomotives are equipped with operative sanders in situations where they provide the most benefit from a safety and operational perspective. The rule also makes the regulations related to operative sanders more consistent with existing Canadian standards related to the devices. DATES: This final rule is effective December 18, 2007; petitions for reconsideration must be received on or before December 18, 2007. Petitions received after that date will be considered to the extent possible without incurring additional expense or delay. ADDRESSES: *Petitions for reconsideration:* Any petitions for reconsideration related to Docket No. FRA-2006-24838, may be submitted by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE., W12-140, Washington, DC 20590. • *Hand Delivery:* 1200 New Jersey Ave., SE., W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. • *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number

(RIN)for this rulemaking. Note that all comments received will be posted without change to *http://www.regulations.gov* including any personal information. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials. *Docket:* For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* at any time or to 1200 New Jersey Ave., SE., W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: George Scerbo, Office of Safety Assurance and Compliance, Motive Power & Equipment Division, RRS-14, Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6247), or Michael Masci, Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6037). SUPPLEMENTARY INFORMATION: I. Statutory and Regulatory Background FRA has broad statutory authority to regulate railroad safety. The Locomotive Inspection Act (formerly 45 U.S.C. 22-34, now 49 U.S.C. 20701-20703) was enacted in 1911. It prohibits the use of unsafe locomotives and authorizes FRA to issue standards for locomotive maintenance and testing. In order to further FRA's ability to respond effectively to contemporary safety problems and hazards as they arise in the railroad industry, Congress enacted the Federal Railroad Safety Act of 1970 (Safety Act) (formerly 45 U.S.C. 421, 431 *et seq.* , now found primarily in chapter 201 of Title 49). The Safety Act grants the Secretary of Transportation rulemaking authority over all areas of railroad safety (49 U.S.C. 20103(a)) and confers powers necessary to detect and penalize violations of any rail safety law. This authority was subsequently delegated to the FRA Administrator (49 CFR 1.49) (Until July 5, 1994, the Federal railroad safety statutes existed as separate acts found primarily in title 45 of the United States Code. On that date, all of the acts were repealed, and their provisions were recodified into title 49). Pursuant to its general statutory rulemaking authority, FRA promulgates and enforces rules as part of a comprehensive regulatory program to address the safety of railroad track, signal systems, communications, rolling stock, operating practices, passenger train emergency preparedness, alcohol and drug testing, locomotive engineer certification, and workplace safety. In the area of locomotive safety, FRA has issued regulations, found at 49 CFR part 229 (“part 229”), addressing topics such as inspections and tests, safety requirements for brake, draft, suspension, and electrical systems, and cabs and cab equipment. All references to parts and sections in this document shall be to parts and sections located in Title 49 of the Code of Federal Regulations. FRA continually reviews its regulations and revises them as needed to keep up with emerging technology. On July 12, 2004, the Association of American Railroads (AAR), on behalf of itself and its member railroads, petitioned the FRA to delete the requirement as contained in 49 CFR 229.131. The petition and supporting documentation asserted that contrary to popular belief, depositing sand on the rail will not have any significant influence on the emergency stopping distance of a train. Subsequent to the petition, FRA and interested industry members began identifying various issues related to locomotive safety standards with the intent that FRA would potentially address the issues through its Railroad Safety Advisory Committee (RSAC). II. RSAC Overview In March 1996, FRA established the RSAC, which provides a forum for developing consensus recommendations on rulemakings and other safety program issues. The Committee includes representation from all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows: American Association of Private Railroad Car Owners (AARPCO) American Association of State Highway & Transportation Officials (AASHTO) American Chemistry Council American Petrochemical Institute American Public Transportation Association

(APTA)American Short Line and Regional Railroad Association (ASLRRA) American Train Dispatchers Association

(ATDA)Amtrak Association of American Railroads

(AAR)Association of Railway Museums

(ARM)Association of State Rail Safety Managers (ASRSM) Brotherhood of Locomotive Engineers and Trainmen

(BLET)Brotherhood of Maintenance of Way Employes Division (BMWED) Brotherhood of Railroad Signalmen

(BRS)Federal Transit Administration (FTA)* High Speed Ground Transportation Association (HSGTA) International Association of Machinists and Aerospace Workers International Brotherhood of Electrical Workers

(IBEW)Labor Council for Latin American Advancement (LCLAA)* League of Railway Industry Women* National Association of Railroad Passengers

(NARP)National Association of Railway Business Women* National Conference of Firemen & Oilers National Railroad Construction and Maintenance Association National Railroad Passenger Corporation (Amtrak) National Transportation Safety Board (NTSB)* Railway Supply Institute

(RSI)Safe Travel America

(STA)Secretaria de Communicaciones y Transporte* Sheet Metal Workers International Association (SMWIA) Tourist Railway Association Inc Transport Canada* Transport Workers Union of America

(TWU)Transportation Communications International Union/BRC (TCIU/BRC) United Transportation Union

(UTU)———— * Indicates associate membership When appropriate, FRA assigns a task to the RSAC, and after consideration and debate, the RSAC may accept or reject the task. If a task is accepted, the RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the RSAC for a vote. If the proposal is accepted by a simple majority of the RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff has played an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal. If the working group or the RSAC is unable to reach consensus on recommendations for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings. III. Proceedings to Date On February 22, 2006, FRA presented, and the RSAC accepted, the task of reviewing existing locomotive safety needs and recommending consideration of specific actions useful to advance the safety of rail operations. The RSAC established the Locomotive Safety Standards Working Group (Working Group) to handle this task and develop recommendations for the full RSAC to consider. Members of the Working Group, in addition to FRA, included the following: APTA ASLRRA Amtrak AAR ASRSM BLET BMWE BRS BNSF Railway Company

(BNSF)California Department of Transportation Canadian National Railway

(CN)Canadian Pacific Railway

(CP)Conrail CSX Transportation

(CSXT)Florida East Coast Railroad General Electric

(GE)Genesee & Wyoming Inc. International Association of Machinists and Aerospace Workers IBEW Kansas City Southern Railway

(KCS)Long Island Rail Road Metro-North Railroad MTA Long Island National Conference of Firemen and Oilers Norfolk Southern Corporation

(NS)Public Service Commission of West Virginia Rail America, Inc. Southeastern Pennsylvania Transportation Agency SMWIA STV, Inc. Tourist Railway Association Inc. Transport Canada Union Pacific Railroad

(UP)UTU Volpe Center Wabtech Corporation Watco Companies The task statement approved by the full RSAC sought immediate action from the Working Group regarding the need for and usefulness of the existing regulation related to locomotive sanders. The task statement established a target date of 90 days for the Working Group to report back to the RSAC with recommendations to revise the existing regulatory sander provision. The Working Group conducted two meetings that focused almost exclusively on the sander requirement. The meetings were held on May 8-10, 2006, in St. Louis, Missouri, and on August 9-10, 2006, in Fort Worth, Texas. Minutes of these meetings have been made part of the docket in this proceeding. After broad and meaningful discussion related to the potential safety and operational benefits provided by equipping locomotives with operative sanders, the Working Group reached consensus on a recommendation for the full RSAC. On September 21, 2006, the full RSAC unanimously adopted the Working Group's recommendation on locomotive sanders as its recommendation to FRA. The RSAC recommendation included the Working Group's consensus rule text, and requested that FRA draft a regulatory proposal related to the use of sanders on locomotives performing switching service at outlying locations. The Working Group's discussion of outlying locations was based on an apparent need to distinguish locations that did not have sufficient access to a sand delivery system from those that do have such access. FRA reviewed and accepted the RSAC's recommendation and developed a regulatory proposal based on that recommendation. The specific regulatory language recommended by the RSAC was amended slightly for clarity and consistency, and FRA independently developed proposed provisions related to the use of sanders on locomotives used in switching service at outlying locations. On March 6, 2007, FRA published a Notice of Proposed Rulemaking (NPRM). *See* 72 FR 9904. FRA solicited written comments from the public in the NPRM in accordance with the Administrative Procedure Act (5 U.S.C. 553). Consideration of public comment allows FRA to access additional viewpoints from interested parties and include them when appropriate. By the close of the comment period on May 7, 2007, two sets of comments were received. Comments were received on May 4, 2007 from the BLET, and on May 7, 2007 from the AAR. The comments can be classified into three general categories:

(1)Responses to specific requests for comments that were made in the NPRM;

(2)inquiries regarding the treatment of locomotives that switch position en route changing between lead and trailing positions in the consist under paragraph 229.131(b)(1) and (b)(2); and,

(3)remarks concerning the portions of the NPRM that were developed independently by FRA (the definition of sand delivery system and paragraph 229.131(c)(1)). In order to further clarify written comments received during the comment period, comments were discussed by the Working Group at the June 8, 2007 meeting in Chicago. The discussion, although limited in scope, furthered FRA's understanding of the written comments that were received. Obviously, there can be a tremendous benefit to clarity when in-person oral communication is permitted, including:

(1)An opportunity for a party to refine a comment based on one or more questions from the Agency or other party;

(2)observations of verbal tone and physical expressions that facilitate better understanding; and

(3)an opportunity to accommodate a party that is more effective at communicating orally than it is in writing. Based on its thorough review, FRA addresses each of the comments in the relevant regulatory paragraphs of the section-by-section analysis provided below. FRA continues to agree with the Working Group's determination that locomotive sanders provide limited safety benefits and that the primary benefits derived from the devices are operational. Accordingly, this final rule retains the NPRM's goal of preserving the limited safety benefits of the devices while addressing the overly restrictive nature of the existing provision. This rule provides appropriate relief from the existing requirement by creating a more precise standard. The final rule requires sander maintenance based on operational realities instead of the current time-based standard. The final rule provides relief according to specific identified operational conditions. The rule distinguishes between the following conditions: lead and non-lead locomotives; locomotives in road service and switching service; and, locomotives at locations with or without a sand delivery system. These distinctions better reflect current railroad operations while maintaining the current level of safety provided by sanders. The rule also harmonizes the sander requirement with the existing Canadian requirements by placing a fourteen-day limit on service for lead locomotives in road service with inoperative sanders. Throughout the preamble discussion of this rule, FRA refers to comments, views, suggestions, or recommendations made by members of the Working Group. When using this terminology, FRA is referring to views, statements, discussions or positions identified or contained in the minutes of the Working Group meetings. These documents have been made part of the docket in this proceeding and are available for public inspection as discussed in the ADDRESSES portion of this document. These points are discussed to show the origin of certain issues and the course of discussions on those issues at the working group level. We believe this helps illuminate factors FRA has weighed in making its regulatory decisions, and the logic behind those decisions. The reader should keep in mind, of course, that only the full RSAC makes recommendations to FRA, and it is the consensus recommendation of the full RSAC on which FRA is acting. IV. Technical Background The NPRM provided a comprehensive technical discussion addressing the usefulness of sand in the operation of locomotives. *See* 72 FR 9906-08. The discussion evaluated: the effect of sand on adhesion, and braking distance; as well as the current use of sand as instructed by railroad operating rules and training. The discussion demonstrates that having operative sanders benefits the locomotive, and that the benefit could be realized while allowing greater operational flexibility. Two expected benefits from the use of sand concern extended range dynamic braking and lite locomotives. FRA expects the use of sand in conjunction with extended range dynamic braking will provide some benefit. Extended range dynamic braking is currently used extensively to slow trains and (with rolling resistance and perhaps the independent brake) bring them to a stop. Locomotive engineers may utilize dynamic brakes rather than the automatic train brake, where possible, in order to conserve fuel and avoid undesired emergency brake applications. FRA also expects that sand applied on multiple axles could be an important contributor to maintaining satisfactory stopping distances of lite locomotive consists under unfavorable conditions (wet rail, etc.). Locomotives are frequently moved in order to reposition power throughout the fleet. For these lite locomotives, sand will remain on the rail long enough to assist adhesion between the wheels and the rail for a lite locomotive consist. FRA does not believe it is necessary to reiterate the technical discussion in this final rule and directs parties interested in that discussion to the NPRM. *See* 72 FR 9906-08. V. Current Regulatory Impediments Relaxing the locomotive sanding requirement will maintain safety and will allow railroads to better utilize their locomotive fleets. The current requirement allows a locomotive found with a defective sander to continue in service to the next forward location where repairs can be made or the next calendar day inspection, whichever occurs first. Under the new requirement contained in this final rule, a lead locomotive in an over-the-road train may continue to be utilized by the railroad for up to fourteen days; in the case of a trailing locomotive, it may continue to be utilized by the railroad until placed in a facility with a sand delivery system or departure from an initial terminal. The final rule recognizes the reality that sanding may reach optimal effectiveness even where one or more locomotive sanders in a consist is inoperative. Locomotives are routinely equipped with two sanders at each end. Often a consist will contain multiple locomotives. Each locomotive in a multiple-locomotive consist distributes sand to the rail. As a result, when each of the locomotives in a multiple locomotive consist are operating with all sanders operative, the train potentially distributes more sand to the rail than it will utilize. At that point, the effect of the sand on the train would be the same if one or two sanders in the consist were inoperative. Requirements for sanders can be traced back to the steam locomotive era. At that time, sanding the rail was thought to enhance adhesion between the steam locomotive wheel and the rail. Modern diesel locomotives rely on wheel slip and wheel creep devices, as well as sand, to provide adhesion between the wheel and rail. Where sanders are inoperative on a diesel locomotive, the total loss of adhesion would be less than it would have been for a steam locomotive. Notably, any reduced adhesion would limit the ability of the locomotive to pull its train. Loss of the ability to pull the train is a productivity concern that is not being addressed by this final rule. This final rule also recognizes the fact that sanding the rail in braking mode provides little additional adhesion to a train, because train handling depends primarily on train brakes to maintain train dynamics. The locomotive braking has limited effect. As stated in the technical discussion contained in the NPRM, by the time the locomotives in the consist have passed over the sanded rail, little to no sand remains on the rail and little or no benefit is provided to train braking. VI. Section-by-Section Analysis Amendments to 49 CFR Part 229 Section 229.5 Definitions FRA is adding the term “sand delivery system” in this section. The term will mean a permanently stationed or fixed device designed to deliver sand to locomotive sand boxes that do not require the sand to be manually delivered or loaded. A sand delivery system will be considered permanently stationed if it is at a location at least five days a week for at least eight hours per day. FRA is also adding the term “initial terminal.” The definition of this term will be identical to that currently contained in 49 CFR 232.5 and 238.5. The term will mean “a location where a train is originally assembled.” Section 229.9 Movement of Non-Complying Locomotives FRA is amending this section to exempt locomotives operated under paragraphs 229.131(b) and (c)(1) from the movement for repair provision contained in § 229.9. In general, § 229.9 currently provides movement for repair requirements for equipment found with non-complying conditions under part 229. Paragraphs 229.131(b) and (c)(1) in this rule contain specific requirements relating to the movement and continued use of locomotives with defective sander equipment. Because the paragraphs specifically address movement for repair, applying § 229.9 would be superfluous or conflicting, and is no longer necessary. FRA is also making a clarifying amendment to this section of part 229. Section 229.9 currently contains the following exception that reads: “[e]xcept as provided in * * * 229.125(h).” The exception relates to locomotive auxiliary lights and although a correct citation when originally inserted into the regulations, later amendments to that section resulted in redesignation of the paragraphs. The exception should refer to § 229.125(g). Like § 229.131(b) and (c)(1), § 229.125(g) sets forth movement for repair requirements specific to that section. Consequently, FRA is making this clarification in this regulatory proceeding. Section 229.131 Sanders *Paragraph (a).* This paragraph establishes a general requirement that locomotives be equipped with operative sanders before departing an initial terminal. Any time a locomotive is in use before leaving the initial terminal, it will be required to have operative sanders. The term “in use” has been consistently applied to mean when a locomotive is capable of being used. Thus, the locomotive does not have to actually be used to be in use. Examples of a locomotive in use are when a locomotive has been inspected, or a locomotive is on a ready track. FRA agrees with the RSAC's recommendation that the initial terminal would be an appropriate place to initially require operative sanders, because it is a place where sander maintenance can usually be accomplished without imposing a significant burden on the railroad. In many instances, locations where trains are initiated are equipped with sand delivery systems and are capable of making repairs to the sander mechanisms. FRA notes that this rule will permit locomotives to be released from daily locomotive inspections with inoperative sanders. However, the rule will require sanders to be repaired or handled for repair under § 229.9 if defective when the locomotive is preparing to depart from an initial terminal. In instances where repairs cannot be performed, a locomotive may be dispatched from an initial terminal but only under the strict provisions contained in § 229.9. Thus, the locomotive could only continue in use to the nearest forward location where necessary repairs could be effectuated or to the locomotive's next calendar day inspection, whichever occurs first. FRA further notes that if a locomotive is at an initial terminal for its train and that location has a sand delivery system or is otherwise capable of making sander repairs, then the locomotive may not legally depart that location with inoperative sanders. FRA also intends to make clear that a locomotive's sanders will only be considered operative if appropriate amounts of sand are deposited on each rail in front of the first power operated wheel set in the direction of movement. FRA recognizes that this rule will be less restrictive than the movement for repair provisions currently contained in § 229.9. In most instances, locomotives will likely encounter an initial terminal less frequently than a daily inspection. This will facilitate more efficient railroad operations. Under the current provision, a railroad will take a locomotive out of service when a sander defect is found at the daily inspection. By requiring operative sanders less frequently, the new requirement allows the railroad to keep the locomotive in service for longer periods of time. With more locomotives in service, the railroad will be able to better utilize its power throughout its fleet. *Paragraph (b).* This paragraph contains the requirements for handling locomotives used in road service where sanders become inoperative after departure from an initial terminal. Road service will be distinguished from yard service because the type of service affects the need for sand. Locomotives performing road service will likely be in longer trains and run at higher speeds than those performing switching service. The existing definition of switching service, as it appears in §§ 229.5 and 232.5, provides background for the distinction between road service and switching service. Switching service means “assembling cars for train movements * * * or moving rail equipment in connection with work service that does not constitute a train movement.” Any movement that is not considered “switching service” would be considered “road service.” Therefore, any service which constitutes a “train movement” would be considered “road service” for purposes of this section. The preamble to the final rule related to part 232 (66 FR 4104, January 17, 2001) contains detailed discussion of the factors that are to be considered when determining what constitutes a “train movement.” *See* 66 FR 4148-49. *Paragraph (b)(1).* This paragraph establishes requirements related to lead locomotives being used in road service where sanders are discovered to be inoperative after departure from an initial terminal. Once inoperative sanders are discovered on these locomotives, there are four triggers that will determine how long a lead locomotive will be permitted to remain in service with inoperative sanders. The triggers are: the next initial terminal; a location where it is placed in a facility with a sand delivery system; its next periodic inspection under § 229.23; or fourteen calendar days from the date the sanders are first discovered to be inoperative, whichever occurs first. FRA agrees with the Working Group's determination that the four triggering events will ensure that sanders are repaired in a timely fashion while providing railroads the ability to better utilize their locomotive fleets. Under the existing rule, a locomotive can move only until the next daily inspection with inoperative sanders. Utilizing four different triggers allows the railroad a greater degree of operational flexibility. Each trigger provides a logical point at which sander maintenance should and can be conducted without impacting a railroad's operation to a significant degree. The initial terminal is an appropriate place to require operative sanders for the reasons stated in paragraph 229.131(a). When a locomotive is placed in a facility that has a sand delivery system it is appropriate to require a railroad to provide sander maintenance. Placed in a facility is intended to mean actually placed on trackage with access to the sand delivery system, and not merely passing through a location with a sand delivery system on the premises. Similarly, when a locomotive is given its required periodic inspection it is expected that the location will be capable of providing repairs and additional sand to the locomotive sanders with little burden. Permitting a lead locomotive to remain in service for no longer than fourteen days is reasonable as it permits the locomotive to reach the destination of a long-distance train run, ensures timely repairs to the sanders, and is more consistent with the current Canadian requirement. One commenter sought clarification on how FRA will enforce this rule when a lead locomotive is switched to a trailing position en route. As three of the triggering events are identical for both lead and trailing locomotives, they would be equally applicable to either type of locomotive and further clarification is unnecessary. With regard to how the calendar-day triggering event will be applied, FRA agrees that further clarification would be beneficial. After a lead locomotive is switched to a trailing position, the days will continue to be counted pursuant to the fourteen day requirement (along with the three other triggers) of this paragraph. For example, if locomotive XYZ-12345 is operating in the lead position and is found to have an inoperative sander on Monday June 25, the calculation of days pursuant to this paragraph begins on that day. Monday, June 25 is day one. On Tuesday, June 26, locomotive XYZ-12345 is switched to a trailing position in the consist. While in a trailing position, the days continue to be counted. Tuesday, June 26 is counted as day two. Under this scenario, the fourteenth calendar day for locomotive XYZ-12345 is Sunday July 8. Therefore, if the inoperative sander is not repaired prior to being used on or after July 9, the operating railroad would be in violation of this paragraph. Comments were also received regarding the definition of sand delivery system. One commenter suggested adding a requirement to have each railroad identify to FRA all facilities that fit within the definition, and obtain permission from FRA to close the facility or reduce hours. While this comment is insightful, FRA believes that the commenter's suggested requirement would be inconsistent with the spirit of the RSAC's consensus rule text. The rule aims to maintain safety while better accommodating current operational realities by providing more flexibility when appropriate. Adding this requirement would create a more rigid process that would significantly increase the burden on both FRA and the railroads with a marginal effect on safety. According to the rule that was proposed, railroads will be required to repair inoperative sanders when the locomotive is placed in a facility equipped with a sand delivery system. Formally identifying and changing locations through an approval process would cause delay. The delay would adversely affect operations and inhibit appropriate flexibility. Another commenter sought clarification regarding two related issues:

(1)Whether a mobile unit, for example a mobile truck, could be considered a sand delivery system; and,

(2)how the five day per week, eight hour per day, requirement will be calculated? The rule does not provide for special treatment for mobile units. Any unit that fits the definition will be treated as a sand delivery system, including mobile units. Railroads are expected to utilize all available information to accurately anticipate which locations will be equipped with a sand delivery system for each week. At a minimum, locations where on average a sand delivery system is permanently stationed (i.e. is at the location at least five days per week for at least eight hours per day) over the previous four weeks, would be determined to be a location equipped with a sand delivery system for the following week. This determination may be refuted by the railroad with additional information. *Paragraph (b)(2).* This paragraph contains the requirements for handling trailing locomotives that are being used in road service when sanders are discovered to be inoperative after departure from an initial terminal. Once inoperative sanders are discovered, the rule sets forth three triggering events that will determine how long a trailing locomotive will be permitted to remain in service with inoperative sanders. The triggering events in this paragraph are identical to those in paragraph (b)(1) except for the elimination of the fourteen day requirement. FRA agrees with the Working Group's determination that the need to provide sand to a trailing locomotive is less critical than it is for a lead locomotive. The engineer operating the train or locomotive consist may be more familiar with the lead locomotive than with the trailing locomotive. The engineer is likely to be operating from the lead locomotive, and thus, that locomotive is less likely to be switched out of the consist while moving over the road. The term “trailing locomotive,” as used in this paragraph, specifically refers to a locomotive that is located behind the lead locomotive in a train or locomotive consist. The NPRM specifically included “distributed power locomotives.” A distributed power locomotive, as defined in § 229.5, is a locomotive that is part of a distributed power system that provides control to a number of locomotives dispersed in a consist from command signals originating in the lead locomotive. Distributed power locomotives are also trailing locomotives because they are located behind the lead locomotive in the train. FRA sought and received comments concerning the relevance of listing “trailing locomotives” and “distributive power locomotives” in the rule text. Both commenters confirmed that distributive power locomotives are a type of trailing locomotive. Thus, distributive power locomotives are covered by this paragraph whether or not they are specifically mentioned, because they are covered by the term “trailing locomotive.” FRA believes that it is unnecessary to list both terms and is removing the words “distributive power locomotive” in the final rule. One commenter asked how FRA will enforce this rule when a trailing locomotive is switched to the lead en route. FRA agrees that this issue will benefit from clarification. A locomotive will be considered a lead locomotive anytime it is placed in the lead position of the consist. If a locomotive is switched into the lead en route, and the sanders are known to be inoperative, the fourteen day requirement prescribed in paragraph (b)(1) applies to that locomotive (along with the three other triggers contained in paragraph (b)(1)) starting on the day when it is switched to the lead. For purposes of counting the amount of days that the locomotive has been in the lead, the calendar day that the locomotive is switched into the lead will count as day one. The date that the locomotive is placed in the lead is required to be recorded on that locomotive's bad order tag. Updating the bad order tag on the day that the locomotive is switched to the lead, to reflect the date that the locomotive was switched to the lead, will ensure that the railroad and FRA will be able to conveniently know the status of that locomotive relative to the requirements of this rule. *Paragraph (c).* This paragraph establishes requirements for handling locomotives used in switching service where sanders become inoperative. The Working Group and the full RSAC recommended that the use of sand on locomotives performing switching service should be distinguished from locomotives being used in road service as described above in paragraph (b). Included as part of the RSAC's recommendation to FRA in this area, was a request that FRA unilaterally develop criteria for the handling of locomotives being used in switching service that experience inoperative sanders. The request specifically related to the identification of what constitutes locomotives at “outlying locations” and the identification of the triggering events for repairing inoperative sanders on such locomotives. FRA accepted this recommendation. FRA considered the discussions and views provided by members of the Working Group when developing this portion of the rule. Rather than attempt to define what constitutes an “outlying location,” FRA believes that the most appropriate method of distinguishing between switching locomotives and the locations where they operate, is to base the determination on the existence of a sand delivery system at the location. FRA believes that locomotives being used in switching service at a location with a sand delivery system should be able to be maintained and handled for repair in a more timely manner, with less disruption to railroad operations, than locomotives being used in switching service at locations without sand delivery systems. If there is no sand delivery system at a location, then the railroad is required to send maintenance vehicles or crews to the location or is required to move the locomotive to another location to effectuate necessary repairs. This can have a significant impact on the efficiency and continuity of switching operations at certain locations. Thus, paragraphs (c)(1) and (c)(2) separate the requirements for maintaining the sanders on locomotives being used in switching service based on the presence of a sand delivery system at the location where the locomotive is being used. *Paragraph (c)(1).* This paragraph contains requirements for handling locomotives being used in switching service at locations that are not equipped with a sand delivery system. In order to remain consistent with the overall design of the recommendation submitted by the RSAC, FRA believes that some operational flexibility needs to be provided to locomotives being used in switching service at locations not capable of quickly delivering sand or making necessary repairs. As noted above, the simplest way of making this determination is based on whether or not the location has a sand delivery system. FRA believes that seven days is a reasonable amount of time to permit railroads to provide necessary sander attention to a locomotive being used in switching service at a location that does not have a sand delivery system. This amount of time is consistent and within the time frame in which locomotives used in switching service will need some other type of maintenance or attention, most likely re-fueling. The seven day mark appears to be a reasonable outer-limit for the requirement. The second triggering event in this paragraph is if the locomotive becomes due for its periodic inspection pursuant to § 229.23 of this part. In the NPRM, FRA solicited and received comments on this paragraph. While one commenter agreed that the proposed seven day time-line was reasonable; another commenter suggested dividing the requirement into two distinct groups to allow for more precise treatment. The commenter explained that a requirement based on a given number of days would be appropriate for the inoperative sanders that are inoperative because they lack sand, however, sanders that are inoperative due to a mechanical defect should be repaired sooner if mechanical forces have an opportunity to inspect the locomotive. This suggestion has some merit, but would likely overburden enforcement resources. Dividing the requirement into two categories would add another layer of complexity to the rule. Enforcing two separate categories would raise additional issues that require further FRA investigation. For example, FRA would need to find out why the sander is inoperative in order to determine how to properly enforce the requirement. FRA believes that the less complex scheme from the proposed rule will be more effective. *Paragraph (c)(2).* This paragraph establishes requirements for handling locomotives used in switching service at locations equipped with a sand delivery system. FRA agrees with the opinions of the Working Group and full RSAC that sanders on these types of locomotives can be maintained with little burden on a railroad's operation as they are already at the location where sand can be delivered and effective repairs can be effectuated. Therefore, FRA accepts the RSAC's recommendation and retains the existing requirements applicable to these locomotives. Consequently, when sanders become inoperative on these locomotives they will have to be handled in accordance with the provisions contained in § 229.9. *Paragraph (d).* This paragraph will ensure that any locomotive with inoperative sanders is properly tagged under the tagging provisions contained in § 229.9(a). As paragraphs

(b)and (c)(1) provide railroads with more flexibility with regard to using a locomotive with inoperative sanders than what is currently permitted by § 229.9, FRA wants to ensure that proper notification and records are maintained on in-service locomotives with inoperative sanders. Thus, FRA will require that locomotives operating with defective sanders be tagged in accordance with the provisions contained in § 229.9(a). This will also ensure that the individuals operating the locomotive are fully informed as to the fact that the locomotive they are operating does not have working sanders. VII. Regulatory Impact and Notices Executive Order 12866 and DOT Regulatory Policies and Procedures This rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; February 26, 1979). FRA has prepared and placed in the docket a regulatory analysis addressing the economic impact of this rule. Document inspection and copying facilities are available at 1120 Vermont Avenue, 7th Floor, Washington, DC 20590. Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Federal Railroad Administration, 1200 New Jersey Ave., SE., W12-140, Washington, DC 20590. As part of the regulatory impact analysis, FRA has assessed quantitative measurements of cost and benefit streams expected from the adoption of this rule. For the twenty year period the estimated quantified costs are minimal. For this same period the estimated quantified benefits have a Net Present Value of $70.6 million. The major benefits anticipated from implementing this rule include: A reduction in the number of times locomotives have sand loaded or the number of times the sanders are made operative. This reduction produces a reduction in injuries related to the operation of filling sand boxes on the locomotive and the number of missed days related to these injuries. Finally, the rule would harmonize the sander requirement with the Canadian rule by placing a fourteen day limit on service for lead locomotives being used in road service with inoperative sanders. Regulatory Flexibility Act and Executive Order 13272 The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) and Executive Order 13272 require a review of proposed and final rules to assess their impact on small entities. FRA has prepared and placed in the docket an Analysis of Impact on Small Entities

(AISE)that assesses the small entity impact of this rule. Document inspection and copying facilities are available at the Federal Docket Management Facility located at 1200 New Jersey Ave., SE., W12-140, Washington, DC 20590. Docket material is also available for inspection on the Internet at *http://www.regulations.gov.* Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. FRA-2005-23080. “Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration

(SBA)has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a railroad business “line-haul operation” that has fewer than 1,500 employees and a “switching and terminal” establishment with fewer than 500 employees. SBA's “size standards” may be altered by Federal agencies, in consultation with SBA and in conjunction with public comment. Pursuant to that authority FRA has published a final statement of agency policy that formally establishes “small entities” as being railroads that meet the line-haulage revenue requirements of a Class III railroad. *See* 68 FR 24891 (May 9, 2003). Currently, the revenue requirements are $20 million or less in annual operating revenue. The $20 million limit is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment (49 CFR part 1201). The same dollar limit on revenues is established to determine whether a railroad shipper or contractor is a small entity. For this rule over 600 railroads could potentially be affected. The rule will impact all locomotives except those propelled by steam power. Given this application, only railroads that operate steam locomotives exclusively, will be unaffected. For those railroads that will be affected the impact will be minimal, if any. The focus is on permitting additional flexibility in the use of locomotives with inoperative sanders. It is anticipated that the additional flexibility will produce mostly positive impacts, i.e., savings and injury reductions. The AISE developed in connection with this Final Rule concludes that this rule will not have a significant economic impact on a substantial number of small entities. Thus, FRA certifies that this rule is not expected to have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act or Executive Order 13272. In order to determine the significance of the economic impact for the final rule's Regulatory Flexibility Act requirements, FRA invited comments in the NPRM. No comments were received. Paperwork Reduction Act The rule contains a substantive change of one section of the existing regulation, § 229.131. The modification would not change the current information collection activity. The information collection burden associated with the final rule already exists under § 229.9. OMB clearance for the current rule has been granted and no further approval is sought at this time. FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. The OMB control number assigned for information collection related to this rule is OMB No. 2130-0004. Federalism Implications FRA has analyzed this rule in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications. *See* 64 FR 43255. This rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. This rule will not have federalism implications that impose any direct compliance costs on State and local governments. FRA notes that the RSAC, which endorsed and recommended the majority of the rule to FRA, has as permanent members two organizations representing State and local interests: AASHTO and the Association of State Rail Safety Managers (ASRSM). Both of these State organizations concurred with the RSAC recommendation endorsing this rule. The RSAC regularly provides recommendations to the FRA Administrator for solutions to regulatory issues that reflect significant input from its State members. To date, FRA has received no indication of concerns about the Federalism implications of this rulemaking from these representatives or of any other representatives of State government. Consequently, FRA concludes that this rule has no federalism implications, other than the preemption of state laws covering the subject matter of this rule, which occurs by operation of law under 49 U.S.C. 20106 whenever FRA issues a rule or order. Environmental Impact FRA has evaluated this regulation in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* ), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this regulation is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:

(c)Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment. * * * The following classes of FRA actions are categorically excluded: * * * * *

(20)Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation. In accordance with section 4(c) and

(e)of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this regulation is not a major Federal action significantly affecting the quality of the human environment. Unfunded Mandates Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $132,300,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This rule will not result in the expenditure, in the aggregate, of $132,300,000 or more in any one year, and thus preparation of such a statement is not required. Privacy Act FRA wishes to inform all potential petitioners for reconsideration that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; pages 19477-78) or you may visit *http://www.regulations.gov* . List of Subjects in 49 CFR Part 229 Locomotives, Railroad safety, and Sanders. The Final Rule For the reasons discussed in the preamble, FRA amends part 229 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows: PART 229—[AMENDED] 1. The authority citation for part 229 continues to read as follows: Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143, 20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), (m). 2. Section 229.5 is amended by adding alphabetically the definitions of “initial terminal” and “sand delivery system” to read as follows: § 229.5 Definitions. *Initial terminal* means a location where a train is originally assembled. *Sand delivery system* means a permanently stationed or fixed device designed to deliver sand to locomotive sand boxes that do not require the sand to be manually delivered or loaded. A sand delivery system will be considered permanently stationed if it is at a location at least five days a week for at least eight hours per day. 3. Section 229.9 is amended by revising paragraph

(a)introductory text to read as follows: § 229.9 Movement of non-complying locomotives.

(a)Except as provided in paragraphs (b), (c), § 229.125(g), and § 229.131(b) and (c)(1), a locomotive with one or more conditions not in compliance with this part may be moved only as a lite locomotive or a dead locomotive after the carrier has complied with the following: 4. Section 229.131 is revised to read as follows: § 229.131 Sanders.

(a)Prior to departure from an initial terminal, each locomotive, except for MU locomotives, shall be equipped with operative sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement or shall be handled in accordance with the requirements contained in § 229.9.

(b)A locomotive being used in road service with sanders that become inoperative after departure from an initial terminal shall be handled in accordance with the following:

(1)A lead locomotive being used in road service that experiences inoperative sanders after departure from an initial terminal may continue in service until the earliest of the following occurrences:

(i)Arrival at the next initial terminal;

(ii)arrival at a location where it is placed in a facility with a sand delivery system;

(iii)the next periodic inspection under § 229.23; or

(iv)fourteen calendar days from the date the sanders are first discovered to be inoperative; and

(2)A trailing locomotive being used in road service that experiences inoperative sanders after departure from an initial terminal may continue in service until the earliest of the following occurrence:

(i)Arrival at the next initial terminal;

(ii)arrival at a location where it is placed in a facility with a sand delivery system; or

(iii)the next periodic inspection under § 229.23.

(c)A locomotive being used in switching service shall be equipped with operative sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement. If the sanders become inoperative, the locomotive shall be handled in accordance with the following:

(1)A locomotive being used in switching service at a location not equipped with a sand delivery system may continue in service for seven calendar days from the date the sanders are first discovered inoperative or until its next periodic inspection under § 229.23, which ever occurs first; and

(2)A locomotive being used in switching service at locations equipped with a sand delivery system shall be handled in accordance with the requirements contained in § 229.9.

(d)A locomotive being handled under the provisions contained in paragraph

(b)and (c)(1) of this section shall be tagged in accordance with § 229.9(a). Issued in Washington, DC, on October 16, 2007. Joseph H. Boardman, Federal Railroad Administrator. [FR Doc. E7-20656 Filed 10-18-07; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 RIN 0648-XD25 Fisheries of the Northeastern United States; Atlantic Surfclam and Ocean Quahog Fisheries; Suspension of Minimum Atlantic Surfclam Size Limit for Fishing Year 2008 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; suspension of the Atlantic surfclam minimum size limit. SUMMARY: NMFS suspends the minimum size limit of 4.75 inches (120 mm) for Atlantic surfclams for the 2008 fishing year. This action is taken under the authority of the implementing regulations for this fishery, which allow for the annual suspension of the minimum size limit based upon set criteria. The intended effect is to relieve the industry from a regulatory burden that is not necessary, as the majority of surfclams harvested are larger than the minimum size limit. DATES: Effective January 1, 2008, through December 31, 2008. ADDRESSES: Written inquiries may be sent to Patricia A. Kurkul, Regional Administrator, National Marine Fisheries Service, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930-2298. FOR FURTHER INFORMATION CONTACT: Brian R. Hooker, Fishery Policy Analyst,

(978)281-9220; fax

(978)281-9135. SUPPLEMENTARY INFORMATION: Section 648.72(c) of the regulations implementing the Fishery Management Plan

(FMP)for the Atlantic Surfclam and Ocean Quahog Fisheries allows the Administrator, Northeast Region, NMFS (Regional Administrator) to suspend annually, by publication of a notification in the **Federal Register** , the minimum size limit for Atlantic surfclams. This action may be taken unless discard, catch, and biological sampling data indicate that 30 percent of the Atlantic surfclam resource is smaller than 4.75 inches (120 mm) and the overall reduced size is not attributable to harvest from beds where growth of the individual clams has been reduced because of density-dependent factors. At its June 2007 meeting, the Mid-Atlantic Fishery Management Council voted to recommend that the Regional Administrator suspend the minimum size limit for the 2008, 2009, and 2010 fishing years. In accordance with the provisions of the FMP, the Regional Administrator will publish the suspension of the surfclam minimum size if the proportion of undersized surfclams is under 30 percent of the total surfclam landings for each fishing year. Commercial surfclam data for 2007 were analyzed to determine the percentage of surfclams that were smaller than the minimum size requirement. The analysis indicated that 8.99-percent of the overall commercial landings were composed of surfclams that were less than 4.75 inches (120 mm). Based on these data, the Regional Administrator adopts the Council's recommendation and suspends the minimum size limit for Atlantic surfclams from January 1 through December 31, 2008. Classification This action is authorized by 50 CFR part 648 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: October 12, 2007. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-20639 Filed 10-18-07; 8:45 am] BILLING CODE 3510-22-S 72 202 Friday, October 19, 2007 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-29316; Directorate Identifier 2007-CE-078-AD] RIN 2120-AA64 Airworthiness Directives; Eclipse Aviation Corporation Model EA500 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to supersede Airworthiness Directive

(AD)2007-13-11, which applies to all Eclipse Aviation Corporation (Eclipse) Model EA500 airplanes. AD 2007-13-11 was prompted by reports of loss of primary airspeed indication due to freezing condensation within the pitot system. AD 2007-13-11 requires operational limitations consisting of operation only in day visual flight rules (VFR), allowing only a VFR flight plan, and maintaining operation with two pilots. Since we issued AD 2007-13-11, Eclipse has developed a design modification to the pitot/angle-of-attack

(AOA)system to eliminate the possibility of freezing condensation within the pitot/AOA system. Eclipse is incorporating this modification during production on Model EA500 airplanes starting with serial number (S/N) 000065. Consequently, this proposed AD would limit the applicability to airplanes under S/N 000065 and require incorporating the modification. This proposed AD would also retain the operating limitations in AD 2007-13-11 until the modification is incorporated. We are proposing this AD to prevent long-term reliance on special operating limitations when a design change exists that would eliminate the need for the operating limitations. Incorporating the proposed modification would prevent loss of air pressure in the pitot system, which could cause erroneous AOA and airspeed information with consequent loss of control. DATES: We must receive comments on this proposed AD by December 18, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Fax:*

(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Eclipse Aviation Corporation, 2503 Clark Carr Loop, SE., Albuquerque, NM 87105, fax: 505-241-8802; e-mail: *customercare@eclipseaviation.com* . FOR FURTHER INFORMATION CONTACT: Al Wilson, Flight Test Pilot, Airplane Certification Office, FAA, 2601 Meacham Blvd., Fort Worth, Texas 76137-4298; telephone:

(817)222-5146; fax:

(817)222-5960. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-29316; Directorate Identifier 2007-CE-078-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion Reports of three instances of loss of primary airspeed indication due to freezing condensation within the pitot system on Eclipse Model EA500 airplanes caused us to issue AD 2007-13-11, Amendment 39-15115 (72 FR 34363, June 22, 2007). The loss of air pressure in the pitot system could cause the stall warning to become unreliable and the stick pusher, overspeed warning, and autopilot to not function. The concern is heightened by the aerodynamic characteristics of the Eclipse Model EA500 airplane, which relies on the stall warning and the stick pusher to alert the pilot prior to the loss of aircraft control. The standby airspeed is reliable and not affected by this failure mode. AD 2007-13-11 currently requires the following on all Eclipse Model EA500 airplanes: • Incorporating information into the Limitations section of the airplane flight manual

(AFM)requiring operation only in day VFR; • Allowing only a VFR flight plan; and • Maintaining operation with two pilots. AD 2007-13-11 was considered an interim action until Eclipse could develop a design modification to the pitot/AOA system that will eliminate the possibility of freezing condensation within the pitot/AOA system. Eclipse has now developed this design modification and it is being incorporated at the factory during production on Model EA500 airplanes starting with S/N 000065. We have determined that continued reliance on operating limitations carries an unnecessary safety risk when there is a known design change to eliminate the need for the operating limitations. Incorporating the proposed modification would prevent loss of air pressure in the pitot system, which could cause erroneous AOA and airspeed information with consequent loss of control. Relevant Service Information We have reviewed Eclipse Aviation Alert Service Bulletin Number SB 500-34-005, Rev B, issued July 10, 2007. The service information describes procedures for upgrading the pitot/AOA system and modifying the related tubing assembly, which terminates the operating limitations required in AD 2007-13-11 when incorporated. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would supersede AD 2007-13-11 with a new AD that would change the Applicability section and would require you to incorporate the design modification of the pitot/AOA system. This proposed AD would also retain the operating limitations in AD 2007-13-11 until the modification is incorporated. This proposed AD would require you to use the service information described previously to perform these actions. Costs of Compliance We estimate that this proposed AD would affect 64 airplanes in the U.S. registry. We estimate the following costs to do the proposed modification: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 30 work-hours × $80 per hour = $2,400 $7,000 $9,400 $601,600 Warranty credit will be given to the extent specified in the service bulletin. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone

(800)647-5527) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Airworthiness Directive

(AD)2007-13-11, Amendment 39-15115 (72 FR 34363, June 22, 2007), and adding the following new AD: **Eclipse Aviation Corporation:** Docket No. FAA-2007-29316; Directorate Identifier 2007-CE-078-AD. Comments Due Date

(a)We must receive comments on this airworthiness directive

(AD)action by December 18, 2007. Affected ADs

(b)This AD supersedes AD 2007-13-11, Amendment 39-15115. Applicability

(c)This AD applies to Model EA500 airplanes, serial numbers 000001 through 000064, that are certificated in any category. Unsafe Condition

(d)Reports of three instances of loss of primary airspeed indication due to freezing condensation within the pitot system prompted us to issue AD 2007-13-11. This AD results from Eclipse developing a design modification to the pitot/angle-of-attack

(AOA)system that eliminates the possibility of freezing condensation within the pitot/AOA system. Eclipse is incorporating this modification during production on Model EA500 airplanes starting with serial number 000065. We are issuing this AD to prevent long-term reliance on special operating limitations when a design change exists that would eliminate the need for the operating limitations. Incorporating the modification would prevent loss of air pressure in the pitot system, which could cause erroneous AOA and airspeed information with consequent loss of control. Compliance

(e)To address this problem, you must do the following, unless already done: Actions Compliance Procedures

(1)Incorporate the following into the Limitations section of the airplane flight manual (AFM):

(i)“Operate Only in Day Visual Flight Rules (VFR);”

(ii)“File Only a VFR Flight Plan;” and

(iii)“Operate with Two Pilots at All Times.” Before further flight after June 27, 2007 (the effective date of AD 2007-13-11). The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may insert the information into the AFM as specified in paragraph (e)(1) of this AD. You may insert a copy of this AD into the Limitations section of the AFM to comply with this action. Make an entry into the aircraft records showing compliance with this portion of the AD in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9).

(2)Incorporate the design modification to the pitot/AOA system. When incorporated, this design modification terminates the Airplane Flight Manual

(AFM)operational limitations required in paragraph (e)(1) of this AD. Within the next 60 days after the effective date of this AD. Following Eclipse Aviation Alert Service Bulletin Number SB 500-34-005, Rev B, issued July 10, 2007. Alternative Methods of Compliance (AMOCs)

(f)The Manager, Fort Worth Airplane Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Al Wilson, Flight Test Pilot, 2601 Meacham Blvd., Fort Worth, Texas 76137-4298; telephone:

(817)222-5146; fax:

(817)222-5960. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector

(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.

(g)AMOCs approved for AD 2007-13-11 are approved for this AD. Related Information

(h)To get copies of the service information referenced in this AD, contact Eclipse Aviation Corporation, 2503 Clark Carr Loop, SE, Albuquerque, NM 87105, fax: 505-241-8802; e-mail: *customercare@eclipseaviation.com.* To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov.* The docket number is Docket No.FAA-2007-29316; Directorate Identifier 2007-CE-078-AD. Issued in Kansas City, Missouri, on October 15, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-20630 Filed 10-18-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-29342; Directorate Identifier 2007-SW-08-AD] RIN 2120-AA64 Airworthiness Directives; MD Helicopters, Inc. Model 600N Helicopters AGENCY: Federal Aviation Administration, DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: This document proposes superseding an existing airworthiness directive

(AD)for MD Helicopters, Inc.

(MDHI)Model 600N helicopters. That AD currently requires interim initial and repetitive inspections of tailboom parts, installing six inspection holes in the aft fuselage skin panels, installing tailboom attachment bolt washers, modifying both access covers, and replacing broken attachment bolts. The current AD also provides for modifying the fuselage aft section as an optional terminating action. This proposal would mandate modifying the fuselage aft section within the next 24 months to strengthen the tailboom attachment fittings and upper longerons. The actions specified by the proposed AD are intended to prevent failure of the tailboom attachment fittings, separation of the tailboom from the helicopter, and subsequent loss of control of the helicopter. DATES: Comments must be received on or before December 18, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may get the service information identified in this proposed AD from MD Helicopters Inc., Attn: Customer Support Division, 4555 E. McDowell Rd., Mail Stop M615, Mesa, Arizona 85215-9734, telephone 1-800-388-3378, fax 480-346-6813, or on the web at *www.mdhelicopters.com.* You may examine the comments to this proposed AD in the AD docket on the Internet at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Jon Mowery, Aviation Safety Engineer, FAA, Los Angeles Aircraft Certification Office, Airframe Branch, 3960 Paramount Blvd., Lakewood, California 90712, telephone

(562)627-5322, fax

(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any written data, views, or arguments regarding this proposed AD. Send your comments to the address listed under the caption ADDRESSES . Include the docket number “FAA-2007-29342, Directorate Identifier 2007-SW-08-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed rulemaking. Using the search function of our docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent or signed the comment. You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://www.regulations.gov.* Examining the Docket You may examine the docket that contains the proposed AD, any comments, and other information in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone

(800)647-5527) is located in Room W12-140 on the ground floor of the West Building at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. Discussion On April 20, 2006, we issued AD 2006-08-12, Amendment 39-14569 (71 FR 24808, April 27, 2006), which superseded AD 2001-24-51, Amendment 39-12706 (67 FR 17934, April 12, 2002). AD 2001-24-51 required inspecting both the upper tailboom attachment fittings, nut plates, and both angles for a crack or thread damage, and repairing or replacing any cracked or damaged part. That AD also required replacing the upper right tailboom attachment bolt with a new bolt. That AD required if the attachment bolt was broken replacing the three remaining attachment bolts with airworthy attachment bolts. Adding a washer to each bolt and modifying both access covers was also required. Thereafter, inspecting the upper tailboom attachments at intervals not to exceed 25 hours time-in-service and repairing or replacing any cracked part was required. Superseding AD 2006-08-12 requires installing six inspection holes in the aft fuselage skin panels, inspecting the tailboom attachment fittings and parts, and replacing or modifying certain parts as necessary. That action was prompted by an accident involving a Model 600N helicopter. The requirements of that AD are intended to prevent failure of the tailboom and subsequent loss of control of the helicopter. On January 12, 2004, MDHI issued Technical Bulletin

(TB)TB600N-007 specifying procedures, tooling, replacement parts, and supplies needed for modifying the fuselage aft section and tailboom. TB600N-007R1, dated April 13, 2006, superseded TB600N-007 to correct some tooling, replacement parts, and supplies. TB600N-007R2, dated October 5, 2006, superseded TB600N-007R1 to correct tooling part numbers and re-sequence some assembly steps. These TBs specify that any aircraft complying with any of these revisions meets the intent of the other TBs. In AD 2006-08-12, we incorporated by reference TB600N-007R1, dated April 13, 2006. Since issuing that AD, MDHI has issued TB600N-007R2, dated October 5, 2006 (TB), which updates previous issues by further specifying procedures for modifying the fuselage aft section to strengthen the tailboom attachment fittings and upper longerons. This latest revision continues to caution that a high level of sheet metal expertise and experience is required to perform this modification. This previously described unsafe condition is likely to exist or develop on other helicopters of the same type design. Therefore, the proposed AD would supersede AD 2006-08-12 to require within the next 24 months, modifying the fuselage aft section to strengthen tailboom attach fittings and upper longerons, which would constitute terminating action for this unsafe condition. We estimate that this proposed AD would affect 18 helicopters of U.S. registry, and the proposed actions would take about 322 work hours to modify each helicopter at an average labor rate of $80 per work hour. Required parts would cost about $14,960 per helicopter. The manufacturer states in its TB that those complying with the TB within 3 years of the issue date are eligible for special pricing and technical assistance. Based on these figures, we estimate the total cost impact of the proposed AD on U.S. operators to be $732,960, assuming no special pricing from the manufacturer. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. Additionally, this proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a draft economic evaluation of the estimated costs to comply with this proposed AD. See the DMS to examine the draft economic evaluation. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. Section 39.13 is amended by removing Amendment 39-14569, AD 2006-08-12, (71 FR 24808, April 27, 2006), and by adding a new airworthiness directive (AD), to read as follows: **MD Helicopter, Inc.:** Docket No. FAA-2007-29342, Directorate Identifier 2007-SW-08-AD. Supersedes AD 2006-08-12, Amendment 39-14569, Docket No. FAA-2006-24518, Directorate Identifier 2006-SW-10-AD. *Applicability:* Model 600N helicopters, serial numbers with a prefix “RN” and 003 through 058, that have not been modified in the fuselage aft section to strengthen the tailboom attachments and longerons per MD Helicopters

(MDHI)Technical Bulletin

(TB)TB600N-007, dated January 12, 2004; TB600N-007R1, dated April 13, 2006, or TB600N-007R2, dated October 5, 2006, certificated in any category. *Compliance:* Required within the next 24 months, unless accomplished previously. To prevent failure of the tailboom attachment fittings, separation of the tailboom from the helicopter, and subsequent loss of control of the helicopter, do the following:

(a)Modify the fuselage aft section to strengthen the tailboom attach fittings and upper longerons by following paragraph 2, Accomplishment Instructions, of MDHI TB600N-007R2, dated October 5, 2006, except you are not required to contact the manufacturer. This modification to the fuselage aft section is terminating action for the requirements of this AD.

(b)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Contact the Manager, Los Angeles Aircraft Certification Office, FAA, ATTN: Jon Mowery, Aviation Safety Engineer, Airframe Branch, 3960 Paramount Blvd., Lakewood, California 90712, telephone

(562)627-5322, fax

(562)627-5210, for information about previously approved alternative methods of compliance. Issued in Fort Worth, Texas, on October 10, 2007. Scott A. Horn, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E7-20680 Filed 10-18-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0056; Directorate Identifier 2007-SW-06-AD] RIN 2120-AA64 Airworthiness Directives; Eurocopter France Model EC130 B4 Helicopters AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive

(AD)for Eurocopter France Model EC130B4 helicopters. This proposed AD results from mandatory continuing airworthiness information

(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The aviation authority of France, with which we have a bilateral agreement, states in the MCAI: This Airworthiness Directive

(800)647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Ed Cuevas, Aviation Safety Engineer, FAA, Rotorcraft Directorate, Safety Management Group, Fort Worth, Texas 76193-0111, telephone

(817)222-5355, fax

(817)222-5961. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0056; Directorate Identifier 2007-SW-06-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued an MCAI in the form of EASA Airworthiness Directive No. F-2005-190, dated November 23, 2005 (referred to after this as “the MCAI”), to correct an unsafe condition for this French-certificated product. The MCAI states: This Airworthiness Directive

(AD)is issued following the discovery of several cases of loosened rivets in the tube-to-flange attachment of the tail rotor drive center section shaft. In one case, this loosening of rivets was associated with a crack in the tube which started from a loosened-rivet hole. These occurrences can lead to failure of the tail rotor drive center section shaft. You may obtain further information by examining the MCAI and service information in the AD docket. Relevant Service Information Eurocopter has issued Alert Service Bulletin No. 65A002, dated November 16, 2005. The actions described in the MCAI are intended to correct the same unsafe condition as that identified in the service information. FAA's Determination and Proposed Requirements This product has been approved by the aviation authority of France, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, we have been notified of the unsafe condition described in the MCAI and the service information. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in the “FAA Differences” section in the proposed AD. Costs of Compliance We estimate that this proposed AD would affect 68 helicopters of U.S. registry and that it would take about 1 work-hour per helicopter to determine if there are any cracks or loosened rivets in the tube-to-flange attachment of the tail rotor drive center section shaft and to determine if the No. 1 bearing is out-of-perpendicularity. Also, we estimate that it would take about 4 work-hours per helicopter to remove and replace any nonconforming parts. The average labor rate is $80 per work-hour. Required parts would cost about $15,007 per helicopter if replacing a tail rotor drive center section shaft is necessary. Based on these figures, we estimate the cost to inspect the fleet of helicopters to be $5,440. Assuming 3 helicopters are found to have nonconforming parts, we estimate the costs to replace these parts to be $45,981, resulting in the total cost of the proposed AD on U.S. operators to be $51,421. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Eurocopter France:** Docket No. FAA-2007-0056; Directorate Identifier 2007-SW-06-AD. Comments Due Date

(a)We must receive comments by November 19, 2007. Other Affected ADs

(b)None. Applicability

(c)This AD applies to Model EC130 B4 helicopters, with a tail rotor drive center section shaft, part number (P/N) 350A340202; and bearing, P/N 593404, certificated in any category. Reason

(d)The mandatory continuing airworthiness information

(MCAI)states: This Airworthiness Directive

(e)Within 50 hours time-in-service

(TIS)or 3 months, whichever occurs first, unless already done, do the following actions.

(1)Inspect for cracks or loosened rivets in the tube-to-flange attachment of the tail rotor drive center section shaft and inspect the perpendicularity of bearing No. 1 in compliance with the Accomplishment Instructions, paragraph 2.B.2., of Eurocopter Alert Service Bulletin No. 65A002, dated November 16, 2005 (ASB).

(2)If a crack or loosened rivet is found, replace the tail rotor drive center section shaft before further flight.

(3)If the out-of perpendicularity of the bearing is more than 0.1 mm, apply the corrective procedure described in the Accomplishment Instructions, paragraph 2.B.2., of the ASB. Differences Between the FAA AD and the MCAI

(f)None. Subject

(g)Air Transport Association of America

(ATA)Code 65, Tail rotor drive—tail rotor drive shaft. Other Information

(h)The following provisions also apply to this AD:

(1)Alternative Methods of Compliance (AMOCs): The Manager, Safety Management Group, Rotorcraft Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Ed Cuevas, Aviation Safety Engineer, Fort Worth, Texas 76193-0111, telephone

(817)222-5355, fax

(817)222-5961.

(2)Airworthy Product: Use only FAA-approved corrective actions. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent) if the State of Design has an appropriate bilateral agreement with the United States. You are required to assure the product is airworthy before it is returned to service.

(3)Reporting Requirements: For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget

(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information

(i)MCAI European Aviation Safety Agency

(EASA)Airworthiness Directive No. F-2005-190, Revision A, dated November 23, 2005, and Eurocopter Alert Service Bulletin No. 65A002, dated November 16, 2005, contain related information. Issued in Fort Worth, Texas, on October 11, 2007. David A. Downey, Manager, Rotorcraft Directorate, Aircraft Certification Service. [FR Doc. E7-20684 Filed 10-18-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 740, 742, 744, 748, 754, 764 and 772 [Docket No. 0612242559-7061-01] RIN 0694-AD94 Mandatory Electronic Filing of Export and Reexport License Applications, Classification Requests, Encryption Review Requests, and License Exception AGR Notifications AGENCY: Bureau of Industry and Security, Commerce. ACTION: Proposed rule. SUMMARY: This proposed rule would require that export and reexport license applications, classification requests, encryption review requests, License Exception AGR notifications and related documents be submitted to the Bureau of Industry and Security

(BIS)via its Simplified Network Application Process (SNAP-R) system. This requirement would not apply to applications for Special Comprehensive Licenses or in certain situations in which BIS would authorize paper submissions. DATES: Comments must be received by December 18, 2007. ADDRESSES: Comments on this proposed rule may be submitted via *http://www.regulations.gov.* Scroll down to the heading “Search Documents.” At Step 1, select “Documents Accepting Comments” then, at Optional Step 2, select from the pull down menu “Bureau of Industry and Security” and click on the “Submit” button. On the resulting screen, select docket number BIS-2007-0002. Click on the yellow comment icon. You may either type your comments directly on the on-line comment form or “attach” a file containing your comments. Regulations.gov accepts most popular document file formats. Comments may also be e-mailed to BIS at publiccomments@bis.doc.gov (please refer to regulatory identification number

(RIN)0694-AD94 in the subject line) or submitted on paper to Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, Room H2705, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230. Please refer to RIN 0694-AD94 in all paper comments. FOR FURTHER INFORMATION CONTACT: William Arvin e-mail *warvin@bis.doc.gov* or tel. 202 482 2440. SUPPLEMENTARY INFORMATION: Background BIS administers a system of export and reexport controls in accordance with the Export Administration Regulations (EAR). In doing so, BIS requires that parties wishing to engage in certain transactions apply for licenses, submit encryption review requests, or submit certain notifications to BIS. BIS also reviews, upon request, specifications of various items and determines their proper classification under the EAR. Currently members of the public submit these applications, requests and notifications to BIS in one of three ways: via SNAP-R, via BIS's Electronic License Application Information Network (ELAIN), or via the paper BIS Multipurpose Application Form BIS 748-P and its two appendices, the BIS 748-P A (item appendix) and the BIS 748-P B (end user appendix). In many instances, BIS needs additional documents to act on the submission. For documents that relate to paper submissions, the documents can be mailed or delivered to BIS with the BIS 748-P form. For submissions made electronically via ELAIN, the documents must be sent to BIS separately and matched up with the application when they arrive. In 2006, BIS made a number of improvements its then existing Simplified Network Application Processing system (SNAP), and designated this improved version as “SNAP-R”. The improvements include the ability to include documents related to a submission in the form of PDF (portable document format) files as “attachments” to the submission. Other improvements include a feature that allows BIS personnel to request additional information from the submitting party and for the party to submit that information in a manner that ties the chain of communication to the submission. BIS believes that use of SNAP-R will reduce processing times and simplify compliance with and administration of export controls. SNAP-R provides not only improved efficiency in submission and processing, but improved end-user security through rights management and an updated application and security infrastructure. Therefore, BIS proposes to require that all export and reexport license applications (other than Special Comprehensive License applications), classification requests, encryption review requests, License Exception AGR notifications, and “attached” related documents be submitted to BIS via its Simplified Network Application Process (SNAP-R) system unless BIS authorizes paper submissions. This proposed rule would also set the criteria by which BIS would authorize paper submissions and would terminate use of ELAIN. This proposed rule would make no changes to the procedures by which the public requests advisory opinions because such requests are not processed via either the paper form 748-P or either of BIS's existing electronic systems. Changes Proposed To Be Made by This Rule The changes that this proposed rule would make center on part 748 of the EAR, which sets forth the principal procedures governing the submission of the applications, review requests and notifications that would be affected by this proposed rule. The changes would appear in § 748.1—“General provisions,” § 748.3—“Classification requests, advisory opinions, and encryption review requests,” and in § 748.6—“General instructions for license applications.” The rule would also make conforming changes to a number of EAR provisions that currently employ language related to the paper forms. Substantive Changes Section 748.1 would be revised to emphasize electronic filing over paper and to set forth the basic requirement that license applications (other than Special Comprehensive License applications), encryption review requests, License Exception AGR notifications, and classification requests and any accompanying documents must be submitted via SNAP-R unless BIS authorizes submission via paper. Revised section 748.1 would continue to specify that for paper submissions, only original BIS paper forms may be used and that reproductions or facsimiles are not acceptable. Section 748.1 would also set forth the criteria under which BIS would authorize paper submissions. Those criteria are:

(1)BIS has received no more than one submission from the party in the twelve months immediately preceding the current submission, *i.e.* , the combined total of the party's license applications (other than Special Comprehensive Licenses), encryption review requests, License Exception AGR notifications, and classification requests could not exceed one;

(2)the party does not have access to the Internet;

(3)BIS has rejected the party's electronic filing registration or revoked its eligibility to file electronically;

(4)BIS has requested that the party submit on paper for a particular transaction; or

(5)BIS has determined that urgency, a need to implement government policy or a circumstance outside the submitting party's control justify allowing paper submissions on a particular instance. Parties who wished to submit on paper would submit the BIS Form 748-P. In addition to the information relevant to the substance of the submission itself, the submitter would be required to include, either on the form or as an attachment, a statement explaining which of the five foregoing criteria justify a paper submission and supporting information. If BIS agreed that at least one of the criteria were met, it would process the submission in accordance with its regular procedures. If BIS found that none of the criteria provided by the submitter was met, it would return the form without action and inform the submitter of the reason for rejecting the request to file on paper. A decision by BIS to reject the request to file on paper is subject to appeal under part 756 of the EAR. This proposed rule also would move the address for paper submissions from § 748.2 to § 748.1. Section 748.3 would be revised to replace instructions about where and how to submit classification requests, with a reference to the procedures in § 748.1. Section 748.3 would continue to state requirements about the kinds of information that must be included in classification requests. Section 748.6 would be revised to require that any documents submitted in support of any license application submitted via SNAP-R be submitted via the SNAP-R system as PDF (portable document format) files. Section 748.6 also would be revised to remove the statement that application control numbers are preprinted on the paper forms. The paper forms will continue to bear a preprinted application control number, but for electronic submissions, application control numbers are communicated to the submitter electronically once BIS accepts the submission. Conforming Changes A number of EAR provisions currently state that a particular submission must be made on the BIS 748-P paper form or state that it must be either on the 748-P or its electronic equivalent. If such a provision refers to a classification request or encryption review request, this proposed rule would revise that provision to state that the submission must be made in accordance with §§ 748.1 and 748.3. If such a provision refers to a license application (other than a Special Comprehensive License application), this proposed rule also would revise that provision to state that the submission must be in accordance with §§ 748.1, 748.4 and 748.6. The changes described in this paragraph would be made in: • § 740.8(b)(2), relating to classification requests pursuant to License Exception “Key Management Infrastructure (KMI)”; • § 740.9(a)(4)(i) and (iii), relating to authorizations to sell or dispose of or to retain abroad more than one year items exported under License Exception “Temporary imports, exports and reexports (TMP)”; • § 740.12(a)(2)(iii)(C), relating to applications to exceed the frequency limits for individual gift parcels under license exception “Gift parcels and humanitarian donations (GFT)”; • § 740.17(d)(1), relating to the submission of encryption review requests under License Exception “Encryption commodities and software” (ENC); • § 742.15(b)(2)(i), relating to submission of review requests for certain encryption items; Supplement No. 6 to part 742, relating to submission of review requests for certain “mass market” encryption commodities and software; • § 754.2(g)(1), relating applications for export of certain California crude oil; • § 754.4(d)(1), relating to applications to export unprocessed Western Red Cedar; and • § 764.7(b)(2)(i), relating to applications to take certain actions with respect to certain items in Libya. This proposed rule would replace the requirement to use the form BIS 748-P in § 740.18(c)(2) when submitting notice to the government in advance of shipments under License Exception “Agricultural Commodities (AGR)” with a requirement to submit such notices in accordance with § 748.1 of the EAR. This proposed rule also would replace references to the BIS 748-P Multipurpose Application Form with the word “application” in provisions that describe certain information that must be submitted with particular types of license applications. This change emphasizes that the same information is required regardless of whether an application is submitted on paper or electronically. The change described in this paragraph would be made in: • § 744.21(d), relating to applications to export or reexport certain items to known military end-uses in the People's Republic of China; • § 748.4(b)(2)(ii), relating to written authority of certain agents to submit on a principal's behalf; • § 754.4(d)(2) and (d)(3), relating to applications for export of unprocessed western red cedar; • § 754.5(b)(2), relating to applications to export horses by sea; and • § 772.1, definition of “Other party authorized to receive license.” This proposed rule also would remove the reference to date time stamping in § 754.2(g)(5)(i) by BIS of applications to export crude oil because that process occurs only with paper applications. However, the proposed rule would retain the policy in § 754.2(g)(5)(i) of issuing licenses for approved applications in the order in which the applications are received. This proposed rule would also change the reference currently found in § 748.3 to the section containing the address for submitting advisory opinion requests from 748.2 to 748.1. Public Comments BIS will consider all comments received on or before December 18, 2007. BIS will consider comments received after that date if possible but cannot assure such consideration. All public comments on this proposed rule must be in writing (writing includes electronic submission of comments via *www.regulations.gov* or e-mail directly to BIS) and will be a matter of public record, available for public inspection and copying on the *www.regulations.gov* Web site under docket number BIS-2007-0002. Rulemaking Requirements 1. This rule has been determined to be significant for purposes of Executive Order 12866. 2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget

(OMB)Control Number. This regulation involves collections previously approved by the OMB under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. This proposed rule would require persons seeking authorization to submit paper filings to state, either in the additional information block on the paper form or an attachment, which of the criteria for paper submissions they meet and the reasons therefore. BIS believes that requests seeking authorization to submit paper filings would impose a minimal burden on applicants as the information requirements are small and the number of requests is expected to be low. Applicants making a request would identify one or more of the 5 criteria under which BIS would authorize a paper submission, and provide the factual basis for the authorization to submit on paper. BIS estimates that only a small number of submissions will seek authorization to file on paper. Based on current information on submissions, more than 85% of all submissions affected by this rule are currently transmitted to BIS via SNAP-R. Therefore, BIS estimates that this requirement will make no material change of the estimated time of 58 minutes needed to prepare and submit a BIS-748. Send comments regarding these burden estimates or any other aspect of these collections of information, including suggestions for reducing the burden, to David Rostker, OMB Desk Officer, by e-mail at *david_rostker@omb.eop.gov* or by fax to

(202)395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, P.O. Box 273, Washington, DC 20044. 3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132. 4. The Chief Counsel for Regulation of the Department of Commerce has certified to the Counsel for Advocacy of the Small Business Administration that this proposed rule would not have a significant economic impact on a substantial number of small entities. Number of Small Entities Affected BIS does not collect data on the size of entities that file these submissions. However, based on the information that it does possess, BIS believes that fewer than 1340 small entities are likely to be affected by this rule. BIS arrived at this conclusion by identifying all of the entities that filed two or more submissions during the period from January 1, 2006 through December 31, 2006. A total of 1592 such entities were identified. BIS determined that 252 of these are not small entities because they could be identified through open public sources as having more than $100 million in annual sales or more than 5,000 employees or because they are United States Government agencies. Because many industries may be involved in exporting, BIS could not directly relate its data to the “Small Business Size Standards Matched to North American Industry Classification System” (the Standards Table) published by the Small Business Administration (SBA). However, BIS notes that the Standards Table designates business as small based on either sales or number of employees, depending on the industry. The maximum annual sales and maximum number of employees listed in that document are $31 million and 1,500, respectively. Both numbers are far below the threshold selected by BIS in arriving at the number of 1340 as the maximum number of small entities likely to be affected by this rule. Quite likely many of the 1340 remaining entities would be larger than the largest business listed in the Standards Table. In addition, most of the categories in the Standards Table for which the sales limit is more than $6.5 million are unlikely to be impacted by this rule because they are unlikely to engage in export or reexport transactions that require specific authorization from BIS. Examples of small entities at the higher end of the range of the Standards Table include, Forest Fire Suppression—$16.5 million, New Single-Family Housing Construction Contractors—$31.0 million and Gasoline Stations with Convenience Stores—$25.0 million. Burden Incurred Some entities might incur no additional burden because of this rule. These are the entities whose submissions require no accompanying documents, those who are already creating the documents in PDF and those who are already creating the documents using software that is capable of producing the same documents in PDF. BIS does not have data on the number of entities that would incur no burden, but based on a sample of submissions of the type to which this proposed rule would apply for the period October 15, 2006 through March 9, 2007, BIS estimates that about 48 percent of the submissions would not require any accompanying documents. Some entities might incur only a software acquisition burden because of this rule. These are the entities whose accompanying documents are already created using software that cannot produce PDF files directly, but that can produce such files with additional software that the entity can purchase. BIS estimates that such an entity with a small operation would incur an initial expense of approximately $325 to acquire that software necessary to comply with this rule. This estimate is based on the price of Adobe Acrobat® Standard Edition ($299) as posted on the Adobe Corporation Web site on December 27, 2006, plus any taxes or shipping charges. Some entities might need to scan paper documents and convert them to PDF files. Such entities would have three alternatives: Pay someone else to scan and convert the documents; acquire a scanner with built-in PDF capability; or acquire hardware and software to scan in and convert the documents. An entity with a small number of documents to scan probably would find it most economical to pay someone else to scan the paper documents and convert them to PDF files. After reviewing some prices charged in the Washington area, BIS estimates that the costs would range from about $19 to about $31 to convert eight pages of paper documents to PDF format. In some instances, the entity could utilize software that comes bundled with a scanner to comply with this requirement. In such instances, BIS estimates that the entity would incur an initial cost of approximately $500 (to purchase the scanner) to comply with this rule. In some cases, particularly if the entity has to scan numerous complex paper documents, the costs could be higher. BIS estimates that the initial costs for an entity facing such a situation would be approximately $900. This estimate is based on a price of $300 for Adobe Acrobat® Standard Edition software, $500 for a scanner, and $100 for taxes and shipping charges. Entities that have to scan paper documents may incur labor costs to scan and convert the documents to PDF. BIS estimates that scanning and converting a document page would take from 2 minutes to 10 minutes per page depending on the scanner and computer performance. BIS recently sampled the submissions that had accompanying documents for the months of February and March 2006. A total of 703 submissions had accompanying documents. Some submissions had only one accompanying page. The average number of accompanying pages for these 703 submissions was 8.5 and the largest number of accompanying pages for any one submission was 284. However, BIS has no way of determining which attachments could be generated electronically and which would require scanning. Assuming an average of 8.5 pages per document and labor costs for documents at $15 per hour, this cost could range from about $0.50 for one accompanying page that took two minutes to scan to $720 for a 284-page document that took 10 minutes per page to scan. Assuming an average scanning time of 5 minutes per page and an 8.5 as the average number of pages scanned, the average estimated labor cost for scanning would be $10.63. Cost Reductions To Offset the Burdens A party not using the electronic “attachment” feature of SNAP-R would have to submit any required documents by paper. In many instances, such a party would incur labor costs to copy the documents that are comparable to those incurred when scanning a document to produce a PDF file. For such parties, any increased scanning costs incurred by using SNAP-R would be offset by decreased copying costs. Electronic filing can reduce costs in other ways as well. Currently, in many instances, attachments are submitted to BIS by overnight courier. Electronic filing would eliminate these courier costs. Collectively, the 1592 entities that made two or more submissions in 2006 provided 22,223 submissions. The largest number from any one submitter was 911, the smallest number from any one submitter was 2, and the average number per submitter was 14. Assuming an average cost of $20.00 to submit documents by courier, and further assuming that about 52 percent of the submissions required accompanying documents, the aggregate savings provided by electronic submission of accompanying documents would be $231,119 for the largest submitter, $146 for a submitter of the average number of submissions and $20 for a submitter of 2 submissions. In addition SNAP-R will provide the submitter with automatic confirmation of receipt of the documents by BIS. In many instances, couriers charge extra for delivery confirmation. Further savings would be achieved if a particular set of documents applied to more than one submission. A party using SNAP-R would need to submit the documents only once and could reference them in subsequent submissions to which they apply whereas a party submitting via paper would have to submit new paper copies each time. Applicants for successive export licenses to ship the same items repeatedly could experience substantial savings from this feature of SNAP-R. The SNAP-R system groups all communications between exporter and BIS for each electronic application, including supporting documents so that they can be viewed from within the SNAP-R application by all authorized personnel of the submitter. This feature allows for easier reassignment of work when necessary due, for example, to employee absences, resignations, or retirements, than a system in which users have to manage their own documentation and transcribe their communications with the licensing officers and correlate those communications with paper submissions of supporting documents. Electronic filing can reduce costs to the submitters and to the government by reducing paper handling and delays incurred when moving paper through the system. Currently, BIS uses an electronic system to process all submissions that are subject to this proposed rule, whether it receives the submission on paper or electronically. However, if the attachments are on paper, delays ensue as paper documents are moved to the technical personnel in BIS and in other government agencies whereas electronic attachments can be transmitted to the appropriate personnel almost instantly. Electronic attachments are likely to reduce the total time from submission to final decision by several days. Although the benefit of faster processing times is difficult to quantify, the information that BIS possesses indicates that, in the aggregate, the potential benefit is quite large. In calendar year 2006, BIS processed 18,941 license applications with an aggregate value of $36 billion. Assuming a six percent annual rate of return for alternative investments, the opportunity cost of holding $36 billion worth of merchandise in inventory while waiting for a government decision on whether the transaction may proceed would be $2.16 billion annually or $5.9 million per day. Dividing $5.9 million by the number of applications, 18,941, provides an inferred average opportunity cost of $311 for each day that processing of an application is delayed. Conclusion BIS is unable to determine whether or not the number of small entities likely to be affected by this is rule is substantial. However, for any small entities that are affected, the savings from re-use of documents for multiple submissions, reduced courier fees and faster processing times are likely to fully or partially compensate for the cost of compliance with this rule. Thus the economic impact of this rule on such entities is not significant. List of Subjects 15 CFR Parts 740 and 748 Administrative practice and procedure, Exports, Reporting and recordkeeping requirements. 15 CFR Part 742 Exports, Terrorism. 15 CFR Part 744 Exports, Reporting and recordkeeping requirements, Terrorism 15 CFR Part 754 Agricultural commodities, Exports, Forests and forest products, Horses, Petroleum, Reporting and recordkeeping requirements. 15 CFR Part 764 Administrative practice and procedure, Exports, Law enforcement, Penalties. 15 CFR Part 772 Exports. Accordingly, parts 740, 742, 748, 754, 764 and 772 of the Export Administration Regulations (15 CFR 730-774) are proposed to be amended as follows: PART 740—[AMENDED] 1. The authority citation for 15 CFR part 740 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; Sec. 901-911, Pub. L. 106-387; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 2. In § 740.8 revise paragraph (b)(2) to read as follows: § 740.8 Key management infrastructure (KMI).

(b)*Eligible commodities and software* . * * *

(2)For such classification requests, indicate “License Exception KMI” in Block 9 on the application. Submit the request to BIS in accordance with §§ 748.1 and 748.3 of the EAR and send a copy of the request to: Attn: ENC Encryption Request Coordinator, 9800 Savage Road, Suite 6940, Fort Meade, MD 20755-6000 3. In § 740.9 revise the first sentences of paragraphs (a)(4)(i) and (a)(4)(iii) to read as follows: § 740.9 Temporary imports, exports and reexports (TMP).

(a)* * *

(4)* * *

(i)*Permanent export or reexport* . If the exporter or the reexporter wishes to sell or otherwise dispose of the commodities or software abroad, except as permitted by this or other applicable License Exception, the exporter or reexporter must request authorization by submitting a license application to BIS in accordance with §§ 748.1, 748.4 and 748.6 of the EAR. * * *

(iii)*Authorization to retain abroad beyond one year* . If the exporter wishes to retain a commodity or software abroad beyond the 12 months authorized by paragraph

(a)of this section, the exporter must request authorization by submitting a license application in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS 90 days prior to the expiration of the 12 month period. * * * 4. In § 740.12, revise paragraph (a)(2)(iii)(C) to read as follows: § 740.12 Gift parcels and humanitarian donations (GFT).

(a)* * *

(2)* * * (iii)* * *

(C)Parties seeking authorization to exceed these frequency limits due to compelling humanitarian concerns (e.g., for certain gifts of medicine) should submit a license application in accordance with §§ 748.1, 748.4 and 748.6 of the EAR to BIS with complete justification. 5. In § 740.17 revise the paragraph (d)(1) to read as follows: § 740.17 Encryption commodities and software (ENC).

(d)* * *

(1)*Instructions for requesting review.* Review requests submitted to BIS must be submitted as described in §§ 748.1 and 748.3 of the EAR. See paragraph (e)(5)(ii) of this section for the mailing address for the ENC Encryption Request Coordinator. To ensure that your review request is properly routed, insert the phrase “License Exception ENC” in Block 9 (Special Purpose) of the application. Also, place an “X” in the box marked “Classification Request” in Block 5 (Type of Application) of Form BIS-748P or select “Commodity Classification” if filing electronically. Neither the electronic nor paper forms provide a separate block to check for the submission of encryption review requests. Failure to properly complete these items may delay consideration of your review request. 6. In § 740.18 revise paragraph (c)(2) to read as follows: § 740.18 Agricultural commodities (AGR).

(c)*Prior notification.* * * *

(2)Procedures. You must provide prior notification of exports and reexports under License Exception AGR by submitting a completed application in accordance with § 748.1 of the EAR. The following blocks must be completed, as appropriate: Blocks 1, 2, 3, 4, 5 (by marking box 5 “Other”), 14, 16, 17, 18, 19, 21, 22 (a), (e), (f), (g), (h), (i), (j), 23, and 25 according to the instructions described in Supplement No. 1 to part 748 of the EAR. If your commodity is fertilizer, western red cedar or live horses, you must confirm that BIS has previously classified your commodity as EAR99 by placing the Commodity Classification Automatic Tracking System (CCATS) number in Block 22(d). BIS will not initiate the registration of an AGR notification unless the application is complete. PART 742—[AMENDED] 7. The authority citation for 15 CFR part 742 continues to read as follows: Authority: 50 U.S.C. App. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 22 U.S.C. 3201 *et seq.* ; 42 U.S.C. 2139a; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; Sec. 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of October 27, 2006, 71 FR 64109 (October 31, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 8. In § 742.5, revise paragraph (b)(2)(i) to read as follows: § 742.15 Encryption items.

(b)*Notification and review requirements for encryption items controlled under ECCN 5A992, 5D992 or 5E992.* * * * *(2) Review requirement for mass market encryption commodities and software exceeding 64 bits:* * * *

(i)*Procedures for requesting review.* To request review of your mass market encryption products, you must submit to BIS and the ENC Encryption Request Coordinator the information described in paragraphs

(a)through

(e)of Supplement No. 6 to this part 742, and you must include specific information describing how your products qualify for mass market treatment under the criteria in the Cryptography Note (Note 3) of Category 5, Part 2 (“Information Security”), of the Commerce Control List (Supplement No. 1 to part 774 of the EAR). Submit review requests to BIS in accordance with §§ 748.1 and 748.3 of the EAR. To ensure that your review request is properly routed, insert the phrase “Mass market encryption” in Block 9 (Special Purpose) and place an “X” in the box marked “Classification Request” in Block 5 (Type of Application)—Block 5 does not provide a separate item to check for the submission of encryption review requests. Failure to properly complete these items may delay consideration of your review request. Submissions to the ENC Encryption Request Coordinator should be directed to the mailing address indicated in § 740.17(e)(5)(ii) of the EAR. BIS will notify you if there are any questions concerning your request for review (e.g., because of missing or incomplete support documentation). 9. In Supplement No. 6 to Part 742 revise the first sentence to read as follows: Supplement No. 6 to Part 742—Guidelines for Submitting Review Requests for Encryption Items Review requests for encryption items must include all of the documentation described in this supplement and submitted to BIS in accordance with §§ 748.1 and 748.3 of the EAR. * * * PART 744—[AMENDED] 10. The authority citation for part 744 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 22 U.S.C. 3201 *et seq.* ; 42 U.S.C. 2139a; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 12947, 60 FR 5079, 3 CFR, 1995 Comp., p. 356; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13099, 63 FR 45167, 3 CFR, 1998 Comp., p. 208; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; E.O. 13224, 66 FR 49079, 3 CFR, 2001 Comp., p. 786; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of October 27, 2006, 71 FR 64109 (October 31, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 11. Revise § 744.21(d) to read as follows: § 744.21 Restrictions on certain military end-uses in the People's Republic of China.

(d)*License application procedure.* When submitting a license application pursuant to this section, you must state in the “additional information” block of the application that “this application is submitted because of the license requirement in § 744.21 of the EAR (Restrictions on Certain Military End-uses in the People's Republic of China).” In addition, either in the additional information block or in an attachment to the application, you must include all known information concerning the military end-use of the item(s). If you submit an attachment with your license application, you must reference the attachment in the “additional information” block of the application. PART 748—[AMENDED] 12. The authority citation for 15 CFR part 748 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 13. In § 748.1, revise paragraph

(a)and add a paragraph

(d)to read as follows: § 748.1 General provisions.

(a)*Scope.* In this part, references to the Export Administration Regulations or EAR are references to 15 CFR chapter VII, subchapter C. The provisions of this part involve requests for classifications and advisory opinions, export license applications, encryption review requests, reexport license applications, and certain license exception notices subject to the EAR. All terms, conditions, provisions, and instructions, including the applicant and consignee certifications, contained in such form(s) are incorporated as part of the EAR. For the purposes of this part, the term “application” refers to both electronic applications and the Form BIS-748P: Multipurpose Application.

(d)*Electronic Filing Required.* All export and reexport license applications (other than Special Comprehensive License Applications), encryption review requests, license exception AGR notifications, and classification requests and their accompanying documents must be filed via BIS's Simplified Network Application Processing system (SNAP-R), unless BIS authorizes submitting such applications via the paper forms BIS 748-P (Multipurpose Application Form), BIS-748P-A (Item Appendix) and BIS-748P-B, (End-User Appendix). Only original paper forms may be used. Facsimiles or reproductions are not acceptable.

(1)*Reasons for authorizing paper submissions.* BIS will process paper applications notices or requests if the submitting party meets one or more of the following criteria:

(i)BIS has received no more than one submission ( *i.e.* the total number of export license applications, reexport license applications, encryption review requests, license exception AGR notifications, *and* classification requests) from that party in the twelve months immediately preceding its receipt of the current submission;

(ii)The party does not have access to the Internet;

(iii)BIS has rejected the party's electronic filing registration or revoked its eligibility to file electronically;

(iv)BIS has requested that the party submit a paper copy for a particular transaction; or

(v)BIS has determined that urgency, a need to implement U.S. government policy or a circumstance outside the submitting party's control justify allowing paper submissions in a particular instance.

(2)*Procedure for requesting authorization to file paper applications, notifications, or requests.* The applicant must state in Block 24 or as an attachment to the paper application (Form BIS 748-P) which of the criteria in paragraph (d)(1) of this section it meets and the facts that support such statement. Submit the completed application, notification or request to Bureau of Industry and Security, U.S. Department of Commerce, P.O. Box 273, Washington, DC 20044 (U.S. Mail deliveries only) or to Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Pennsylvania, NW., Room H2705, Washington, DC 20230.

(3)*BIS decision.* If BIS authorizes or requires paper filing pursuant to this section, it will process the application, notification or request in accordance with Part 750 of the EAR. If BIS rejects a request to file using paper, it will return the Form BIS-748P and all attachments to the submitting party without action and will state the reason for the rejection. § 748.2 [Amended] 14. In § 748.2, remove paragraph (c). 15. In § 748.3, revise paragraph

(b)introductory text, paragraph (b)(2), and the first sentence of paragraph

(c)to read as follows: § 748.3 Classification requests, advisory opinions, and encryption review requests.

(b)*Classification requests.* Submit classification requests in accordance with the procedures in § 748.1.

(2)When submitting a classification request, you must complete Blocks 1 through 5, 14, 22(a), (b), (c), (d), and (i), 24, and 25 on the application. You must provide a recommended classification in Block 22(a) and explain the basis for your recommendation based on the technical parameters specified in the appropriate ECCN in Block 24. If you are unable to determine a recommended classification for your item, include an explanation in Block 24, identifying the ambiguities or deficiencies that precluded you from making a recommended classification. See Supplement No. 1 to this part for information to be included in blocks other than Block 24.

(c)*Advisory Opinions.* Advisory opinion requests must be in writing and be submitted to the address listed in § 748.1(d)(2). * * * 16. In § 748.4(b)(2)(ii) revise the first sentence to read as follows: § 748.4 Basic guidance related to applying for a license.

(b)* * *

(2)* * *

(ii)*Application.* Block 7 of the application (documents on file with applicant) must be marked “other” and Block 24 (Additional information) must be marked “748.4(b)(2)” to indicate that the power of attorney or other written authorization is on file with the agent. * * * 17. In § 748.6, revise paragraph (a), the first sentence of paragraph

(b)and paragraph

(e)to read as follows: § 748.6 General instructions for license applications.

(a)*Instructions.* General instructions for filling out license applications are in Supp. No. 1 to this part. Special instructions for applications involving certain transactions are listed in § 748.8 and described fully in Supp. No. 2 to this part.

(b)*Application Control Number.* Each application has an application control number. * * *

(e)*Attachments to applications.* Documents required to be submitted with applications filed via SNAP-R must be submitted as PDF files using the procedures described in SNAP-R. Documents required to be submitted with paper applications must bear the application control number to which they relate and, if applicable, be stapled to the paper form. Where necessary, BIS may require you to submit additional information beyond that stated in the EAR confirming or amplifying information contained in your license application. PART 754—[AMENDED] 18. The authority citation for 15 CFR part 754 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 30 U.S.C. 185(s), 185(u); 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; E.O. 11912, 41 FR 15825, 3 CFR, 1976 Comp., p. 114; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 19. In § 754.2, revise paragraphs (g)(1) and (g)(5)(i) to read as follows: § 754.2 Crude oil.

(g)*Exports of certain California crude oil.* * * *

(1)Applicants must submit their applications in accordance with §§ 748.1, 748.4 and 748.6 of the EAR.

(5)* * *

(i)BIS will issue licenses for approved applications in the order in which the applications are received, with the total quantity authorized for any one license not to exceed 25 percent of the annual authorized volume of California heavy crude oil. 20. In § 754.4, revise paragraphs (d)(1), (d)(2), and the introductory text of paragraph (d)(3) to read as follows: § 754.4 Unprocessed Western Red Cedar.

(d)* * *

(1)Applicants requesting to export unprocessed western red cedar must apply for a license in accordance § 748.1, 748.4 and 748.6 of the EAR, submit any other documents as may be required by BIS, and submit a statement from an authorized representative of the exporter, reading as follows: I,

(Name)(Title) of (Exporter) HEREBY CERTIFY that to the best of my knowledge and belief the (Quantity) (cubic meters or board feed scribner) of unprocessed western red cedar timber that (Exporter) proposes to export was not harvested from State or Federal lands under contracts entered into after October 1, 1979. Signature Date

(2)In Blocks 16 and 18 of the application, “Various” may be entered when there is more than one purchaser or ultimate consignee.

(3)For each application submitted, and for each export shipment made under a license, the exporter must assemble and retain for the period described in part 762 of the EAR, and produce or make available for inspection, the following: 21. In § 754.5 revise the second sentence of paragraph (b)(2) to read as follows: § 754.5 Horses for export by sea.

(b)* * *

(2)* * * You must provide a statement in the additional information section of the application certifying that no horse under consignment is being exported for the purpose of slaughter. 22. In Supplement No. 2 to Part 754, revise the text to footnote number 2 in the table to read as follows: Supplement No. 2 to Part 754—Western Red Cedar 2 Report commodities on license applications in the units of quantity indicated. PART 764—[AMENDED] 23. The authority citation for 15 CFR part 764 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 24. In § 764.7, revise the second sentence of paragraph (b)(2)(i) to read as follows: § 764.7 Activities involving items that may have been illegally exported or reexported to Libya.

(b)* * *

(2)* * *

(i)* * * License applications should be submitted in accordance with §§ 748.1, 748.4 and 748.6 of the EAR, and should fully describe the relevant activity within the scope of § 764.2(e) of this part which is the basis of the application. * * * PART 772—[AMENDED] 25. The authority citation for 15 CFR part 772 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 26. In § 772.1 revise the second sentence of the definition of the term “Other party authorized to receive license.” § 772.1 Definitions of terms as used in the Export Administration Regulations (EAR). *Other party authorized to receive license.* * * * If a person and address is listed in Block 15 of the application, the Bureau of Industry and Security will send the license to that person instead of the applicant. Dated: October 15, 2007. Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. E7-20655 Filed 10-18-07; 8:45 am] BILLING CODE 3510-33-P 72 202 Friday, October 19, 2007 Notices DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0102] Notice of Decision To Issue Permits for the Importation of Eggplant and Okra From Ghana Into All Areas of the United States and the Importation of Peppers From Ghana Into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public of our decision to begin issuing permits for the importation of eggplant and okra from Ghana into all areas of the United States and the importation of peppers from Ghana into the continental United States. Based on the findings of a pest risk analysis, which we made available to the public for review and comment through a previous notice, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of eggplant, okra, and peppers from Ghana. DATES: *Effective Date:* October 19, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(301)734-8758. SUPPLEMENTARY INFORMATION: Under the regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 through 319.56-47, referred to below as the regulations), the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture prohibits or restricts the importation of fruits and vegetables into the United States from certain parts of the world to prevent plant pests from being introduced into and spread within the United States. Section 319.56-4 of the regulations contains a performance-based process for approving the importation of commodities that, based on the findings of a pest risk analysis, can be safely imported subject to one or more of the designated phytosanitary measures listed in paragraph

(b)of that section. Under that process, APHIS publishes a notice in the **Federal Register** announcing the availability of the pest risk analysis that evaluates the risks associated with the importation of a particular fruit or vegetable. Following the close of the 60-day comment period, APHIS may begin issuing permits for importation of the fruit or vegetable subject to the identified designated measures if:

(1)No comments were received on the pest risk analysis;

(2)the comments on the pest risk analysis revealed that no changes to the pest risk analysis were necessary; or

(3)changes to the pest risk analysis were made in response to public comments, but the changes did not affect the overall conclusions of the analysis and the Administrator's determination of risk. In accordance with that process, we published a notice 1 in the **Federal Register** on July 18, 2007 (72 FR 39379-39380, Docket No. APHIS-2007-0102), in which we announced the availability, for review and comment, of a pest risk analysis that evaluates the risks associated with the importation of eggplant and okra from Ghana into all areas of the United States and the importation of peppers from Ghana into the continental United States. We solicited comments on the notice for 60 days ending on September 17, 2007. We did not receive any comments. 1 To view the notice and the pest risk analysis, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0102.* Therefore, in accordance with the regulations in § 319.56-4(c)(2)(ii), we are announcing our decision to begin issuing permits for the importation of eggplant and okra from Ghana into all areas of the United States and the importation of peppers from Ghana into the continental United States subject to the following phytosanitary measures: • The eggplant, okra, and peppers must be treated, in Ghana, with irradiation using a minimum absorbed dose of 400 Gy and subject to other requirements of 7CFR part 305. • Each consignment of eggplant, okra, and peppers must be accompanied by a phytosanitary certificate issued by Ghana's national plant protection organization stating that the consignment received irradiation treatment with 400 Gy as the minimum absorbed dose. In the case of eggplant, the phytosanitary certificate must also include an additional declaration that reads “The fruit in this consignment was inspected and found free of *Eutetranychus orientalis* .” • The eggplant, okra, and peppers may be imported in commercial consignments only. • The eggplant, okra, and peppers will be subject to standard port-of-entry inspection upon arrival in the United States and must be free of quarantine pests. These conditions will be listed in the fruits and vegetables manual (available at *http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/fv.pdf* ). In addition to those specific measures, the eggplant, okra, and peppers will be subject to the general requirements listed in § 319.56-3 that are applicable to the importation of all fruits and vegetables. Done in Washington, DC, this 15th day of October 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-20674 Filed 10-18-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0100] Notice of Decision To Issue Permits for the Importation of Husked, Silk-Free Baby Corn From Kenya Into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public of our decision to begin issuing permits for the importation into the continental United States of husked, silk-free baby corn from Kenya. Based on the findings of a pest risk analysis, which we made available to the public for review and comment through a previous notice, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of husked, silk-free baby corn from Kenya. DATES: *Effective Date:* October 19, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(1)No comments were received on the pest risk analysis;

(2)the comments on the pest risk analysis revealed that no changes to the pest risk analysis were necessary; or

(3)changes to the pest risk analysis were made in response to public comments, but the changes did not affect the overall conclusions of the analysis and the Administrator's determination of risk. In accordance with that process, we published a notice 1 in the **Federal Register** on July 18, 2007 (72 FR 39380-39381, Docket No. APHIS=2007=0100), in which we announced the availability, for review and comment, of a pest risk analysis that evaluates the risks associated with the importation into the continental United States of husked, silk-free baby corn from Kenya. We solicited comments on the notice for 60 days ending on September 17, 2007. We did not receive any comments. 1 To view the notice and the pest risk analysis, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2007-0100.* Therefore, in accordance with the regulations in § 319.56-4(c)(2)(ii), we are announcing our decision to begin issuing permits for the importation into the continental United States of husked, silk-free baby corn from Kenya subject to the following phytosanitary measures: • Each consignment of husked, silk-free baby corn must be accompanied by a phytosanitary certificate issued by Kenya's national plant protection organization to document that the commodity has been inspected and found free of pests. • The husked, silk-free baby corn may be imported in commercial consignments only. • The husked, silk-free baby corn will be subject to standard port-of-entry inspection upon arrival in the United States and must be free of quarantine pests. These conditions will be listed in the fruits and vegetables manual (available at *http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/fv.pdf* ). In addition to those specific measures, the husked, silk-free baby corn will subject to the general requirements listed in § 319.56-3 that are applicable to the importation of all fruits and vegetables. Done in Washington, DC, this 15th day of October 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-20677 Filed 10-18-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0099] Notice of Decision To Issue Permits for the Importation of Peeled Baby Carrots From Kenya Into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public of our decision to begin issuing permits for the importation into the continental United States of peeled baby carrots from Kenya. Based on the findings of a pest risk analysis, which we made available to the public for review and comment through a previous notice, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of peeled baby carrots from Kenya. DATES: *Effective Date:* October 19, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(1)No comments were received on the pest risk analysis;

(2)the comments on the pest risk analysis revealed that no changes to the pest risk analysis were necessary; or

(NPPO)and found free of pests, including *Meloidogyne ethiopica.* • Kenya's NPPO must issue a phytosanitary certificate for each consignment to assure that the commodity has been inspected and found free of pests. An additional declaration is also required that reads, “Peeled baby carrots in this consignment have been inspected and found free of *Meloidogyne ethiopica* .” • The peeled baby carrots may be imported in commercial consignments only. • The peeled baby carrots will be subject to standard port-of-entry inspection upon arrival in the United States and must be free of quarantine pests. These conditions will be listed in the fruits and vegetables manual (available at *http://www.aphis.usda.gov/import_export/plants/manuals/ports/downloads/fv.pdf* ). In addition to those specific measures, the peeled baby carrots will be subject to the general requirements listed in § 319.56-3 that are applicable to the importation of all fruits and vegetables. Done in Washington, DC, this 15th day of October 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-20678 Filed 10-18-07; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service [Docket No. APHIS-2007-0101] Notice of Decision To Issue Permits for the Importation of Ribes Species Fruits From South Africa Into the Continental United States AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice. SUMMARY: We are advising the public of our decision to begin issuing permits for the importation into the continental United States of *Ribes* species fruits (i.e., currants and gooseberries) from South Africa. Based on the findings of a pest risk analysis, which we made available to the public for review and comment through a previous notice, we believe that the application of one or more designated phytosanitary measures will be sufficient to mitigate the risks of introducing or disseminating plant pests or noxious weeds via the importation of *Ribes* species fruits from South Africa. DATES: *Effective Date:* October 19, 2007. FOR FURTHER INFORMATION CONTACT: Ms. Sharon Porsche, Import Specialist, Commodity Import Analysis and Operations, Plant Health Programs, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737-1231;

(1)No comments were received on the pest risk analysis;

(2)the comments on the pest risk analysis revealed that no changes to the pest risk analysis were necessary; or

(NOFA)to Invite Applications for the American Indian Credit Outreach Initiative AGENCY: Farm Service Agency, USDA. ACTION: Notice. SUMMARY: The Farm Service Agency

(FSA)is requesting applications for competitive cooperative agreement funds for Fiscal Year

(FY)2008 for the credit outreach initiative targeted to American Indian farmers, ranchers, and youth residing primarily on Indian reservations within the contiguous United States. FSA anticipates the availability of $933,120 in funding. This request for applications is being made prior to passage of a final appropriations bill to allow applicants sufficient time to submit proposals, give the Agency maximum time to process applications, and permit continuity of this program. FSA requests proposals from eligible nonprofit organizations, land-grant institutions, and federally-recognized Indian tribal governments interested in a competitively-awarded cooperative agreement to create and implement a mechanism that will provide credit outreach and promotion, pre-loan education, one-on-one loan application preparation assistance and other related services as proposed by the successful applicant that are specific to FSA's Agricultural Credit Programs. DATES: Applications must be completed and submitted to the Agency no later than November 19, 2007. Late applications will not be accepted and will be returned to the applicant. Applicants must ensure that the service used to deliver the application can do so by the deadline. Due to recent security concerns, packages sent to the Agency by mail have been delayed several days or even weeks. ADDRESSES: Submit applications and other required materials by mail to: Mike Hill, Director, Outreach Staff, Farm Service Agency, USDA, STOP 0511, Suite 508 Portals Building, 1400 Independence Avenue, SW., Washington, DC 20250-0511. FOR FURTHER INFORMATION CONTACT: Mike Hill,

(202)690-1098; e-mail: *mike.hill@wdc.usda.gov.* SUPPLEMENTARY INFORMATION: Purpose of Solicitation This solicitation is issued under 7 U.S.C. 2204b(b)(4), which authorizes the Secretary of Agriculture to enter into cooperative agreements to improve the coordination and effectiveness of Federal programs affecting rural areas. The principal objective of this cooperative agreement is to continue a national outreach program that enables American Indian farmers, ranchers, and youth primarily located on Indian reservations in the contiguous United States to understand and have access to the various FSA Agriculture Credit Programs. Eligibility Information All proposed approaches must have, within three months upon acceptance of award:

(1)A data tracking system that thoroughly records all credit outreach specific activities and has the ability to provide detailed statistical information on an ad hoc basis, that must also be functional on a real-time basis as well as being available online through the Internet, and

(2)The applicant must demonstrate its ability to learn to deliver these credit outreach services utilizing the FSA online Farm Business Plan software program. Proposals must demonstrate innovative and unique ways of ensuring that American Indians:

(1)Will be provided a targeted promotional campaign about,

(2)Have ready access to,

(3)Are educated about, and

(4)Can obtain one-on-one assistance specific to the various FSA Agricultural Credit Programs. Background Today, American Indians own and control approximately 56 million acres of agricultural lands held in trust by the United States Government and administered, for the most part, by the Bureau of Indian Affairs

(BIA)of the Department of the Interior. Land-based agricultural enterprises are considered the primary source of revenue for most tribes, due in large part to their severe isolation from any urban type industrial development activities. Thus, protecting this resource is an important function of the elected tribal officials charged with operating business activities that take place within reservations. The United States Department of Agriculture

(USDA)provides farmers and ranchers technical, financial, and educational resources. American Indian agricultural producers on reservations have long been less able to benefit from USDA services. Since 1987, changes, such as Farm Bills with Indian-specific language, have begun to close some of the gaps created by American Indians' lack of access to USDA's programs and services. As positive as these changes were, they did not fully address an implementation plan or the funds needed to carry out implementation of sorely needed agribusiness education and direct services to American Indian Reservation farmers and ranchers. American Indian agribusinesses, as well as individual Indians, have consistently reported that the primary need in Indian agriculture was access to the capital required to own and operate their own farms or ranches. Therefore, FSA created and implemented this mechanism to provide credit outreach and other related services related to FSA's Agricultural Credit Programs as a way to resolve some of the credit needs of Indian agriculture. Definitions The following definitions are applicable to this Notice. *Agency or FSA.* The United States Department of Agriculture Farm Service Agency. *Farm land.* Land used for commercial agriculture crops, poultry and livestock enterprises, or aquaculture. *Federally-Recognized Indian Tribal Government.* The governing body or a governmental agency of any Indian tribe, band, nation, or other organized group or community (including any Native village as defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602) certified by the Secretary of the Interior as eligible for the special programs and services provided through the Bureau of Indian Affairs. *Land Grant Institutions.*

(1)A 1994 institution (as defined in section 2 of the Agricultural Research, Extension, and Education Reform Act of 1998 (7 U.S.C. 7601)), or an 1890 institution.

(2)An Indian tribal community college or an Alaska Native cooperative college.

(3)A Hispanic-serving institution (as defined in section 1404 of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3103)). *Non-Profit Organization.* Any corporation, trust, association, cooperative, or other organization that:

(1)Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest;

(2)Is not organized primarily for profit; and

(3)Must be an organization that is recognized by the Internal Revenue Service as being certified as 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)). Recipient Eligibility Requirements Applicants must either be a non-profit organization, a federally recognized Indian tribe, or a land grant institution as defined above. Applications without sufficient information to determine their eligibility will not be considered. Proposal Preparation A proposal must contain an original and two copies of the following (contact Mike Hill (see FOR FURTHER INFORMATION CONTACT above) if you need help getting the forms): 1. Form SF-424, “Application for Federal Assistance.” 2. Form SF-424A, “Budget Information—Non-Construction Programs.” 3. Form SF-424B, “Assurances—Non-Construction Programs.” 4. *Table of Contents* —For ease of locating information, each proposal must contain a detailed Table of Contents immediately following the required Federal forms. The Table of Contents should include page numbers for each component of the proposal. Pagination should begin immediately following the Table of Contents. 5. *Proposal Summary* —A summary of the Project Proposal, not to exceed one page, that includes the title of the project, a description of the project (including goals and tasks to be accomplished), the names of the individuals responsible for conducting and completing the tasks, and the expected time frame for completing all tasks (which should not exceed twelve months). 6. *Eligibility* —A detailed discussion, not to exceed two pages, describing how the applicant meets the definition of land grant institution, non-profit organization, or Federally recognized Indian tribal government. In addition, the applicant must describe all other collaborative organizations that may be involved in the project. 7. *Proposal Narrative* —The narrative portion of the project proposal must be in a font such as Times New Roman (12 pt.) or comparable font and must include the following:

(a)*Project Title* —The title of the proposed project must be brief, not to exceed 100 characters, yet represent the major thrust of the project.

(b)*Information Sheet* —A separate one page information sheet that lists each of the seven evaluation criteria listed in this NOFA (see the “Evaluation Criteria and Weights” section below) followed by the page numbers of all relevant material and documentation contained in the proposal that address or support that criteria.

(c)*Goals and Objectives of the Project* —A clear statement of the ultimate goals and objectives of the project must be presented.

(d)*Evaluation Criteria* —Each of the seven evaluation criteria listed in this NOFA (see the “Evaluation Criteria and Weights” section below) must be addressed specifically and individually by category. These criteria should be in narrative form with any specific supporting documentation attached as addenda and should be placed directly following the proposal narrative. If other materials, including financial statements, will be used to support any evaluation criteria it should also be placed directly following the proposal narrative. The applicant must also propose and delineate significant agency participation in the project. Amount of Award The amount of funds expected to be available for FY 2008 is approximately $933,120 based on historical fund levels. If actual funding differs from this amount, the Agency will publish a separate Notice of Funds Availability. Number of Awards Only one cooperative agreement will be awarded. Eligible Cooperative Agreement Fund Uses Cooperative agreement funds may be used to cover allowable costs incurred by the recipient and approved by the Agency. Allowable costs are governed by 7 CFR parts 3015, 3016, and 3019, as applicable, and applicable Office of Management and Budget Circulars. Ineligible Fund Uses Cooperative agreement funds must not be used to:

(1)Plan, repair, rehabilitate, acquire, or construct a building or facility (including a processing facility);

(2)Purchase, rent, or install fixed equipment, including mobile and other processing equipment;

(3)Pay for the preparation of the grant application;

(4)Pay expenses not directly related to the funded venture (for example, cooperative agreement funds cannot be used to support the organization's general operations);

(5)Fund political or lobbying activities;

(6)Pay costs incurred prior to receiving this Cooperative Agreement;

(7)Fund any activity prohibited by 7 CFR parts 3015, 3016, and 3019, as applicable; and

(8)Fund architectural or engineering design work for a specific physical facility. Evaluation Criteria, Proposal Review A National Office panel of USDA employees will review applications for eligibility, completeness, and responsiveness to this NOFA. Incomplete or non-responsive applications will be returned to the applicant and not evaluated further. If the submission deadline has not expired and time permits, ineligible applications may be returned to the applicants for possible revision. The proposal will be evaluated using the criteria specified below. Failure to address any one of the criteria will disqualify the application. All proposals must be in compliance with this NOFA and applicable statutes. Prior to technical examination, a preliminary review will be made by FSA Outreach Staff for responsiveness to this solicitation. Proposals that do not fall within the solicitation guidelines or are otherwise ineligible will be eliminated from competition. All responsive proposals will be reviewed by a panel of reviewers using the evaluation criteria stated below. The selected USDA employee reviewers will be chosen to provide maximum expertise and objective judgment in the evaluation of proposals. Evaluated proposals will be ranked by the FSA Outreach Staff based on the evaluation criteria and weights listed below. Final approval of those proposals will be made by the Administrator of FSA, subject to the availability of funding. Evaluation Criteria and Weight All responsive proposals will be reviewed based on the following seven criteria:

(1)*Applicant's Commitment and Resources (15 points)* —The standard evaluates the degree to which the organization is committed to the project, and the experience, qualifications, competency, and availability of personnel and resources to direct and carry out the project. In addition, the applicant must demonstrate its ability to deliver credit outreach services utilizing the FSA online Farm Business Plan software program immediately upon acceptance of any financial award.

(2)*Feasibility and Policy Consistency (20 points)* —The standard evaluates the degree to which the proposal clearly describes its objectives and evidences a high level of feasibility. This criterion relates to the adequacy and soundness of the proposed approach to the solution of the problem and evaluates the plan of operation, timetable, evaluation, and dissemination plans.

(3)*Detailed Description of Collaborative Partnerships, if any, and Program Recipients (20 points)* —This standard evaluates the degree to which the proposal reflects partnerships and collaborative initiatives with other agencies or organizations to enhance the quality and effectiveness of the program. Additionally, the areas and number of underserved American Indian farmers, ranchers, and youth who would benefit from the services offered will be evaluated.

(4)*Outreach to Socially Disadvantaged American Indian Applicants (10 points)* —This standard evaluates the degree to which the proposal contains detailed programs to reach persons identified as socially disadvantaged American Indian farmers, ranchers, and youth. The proposal will be evaluated for its potential for encouraging and assisting socially disadvantaged American Indian farmers, ranchers, and youth to utilize the various FSA agriculture credit programs. Elements considered include impact, continuation plans, innovation, and expected products and results.

(5)*Innovative Strategies (25 points)* —This standard evaluates the degree to which the proposal reflects innovative strategies for reaching the population targeted in the proposal and achieving the project objectives. Elements also evaluated include date tracking and innovative solutions. For data tracking, the standard evaluates evidence that the applicant has the ability to put in place a data tracking system that can thoroughly record all credit outreach specific related activities and the ability to provide detailed statistical information on an ad hoc basis, with additional evidence supporting its ability to function on a real-time basis as well its ability to be available online through the Internet. For innovative solutions, the standard evaluates originality, practicality, and creativity in proposing ways to develop and test innovative solutions to existing or anticipated credit issues or problems of socially disadvantaged American Indian farmers, ranchers, and youth. The proposal will be reviewed for its responsiveness to the need to provide socially disadvantaged American Indian farmers, ranchers, and youth with promotion, relevant information, and direct assistance in applying for and receiving FSA agriculture credit, and other essential information to enhance participation in agricultural programs and conduct a successful farming or ranching operation.

(6)*Overall Quality of the Proposal (5 points)* —This standard evaluates the degree to which the proposal complies with this NOFA and is of high quality. Elements considered include adherence to instructions, accuracy and completeness of forms, clarity and organization of ideas, thoroughness and sufficiency of detail in the budget narrative, specificity of allocations between targeted areas if the proposal addresses more than one area, and completeness of vitae for all key personnel associated with the project.

(7)*Accuracy of Proposed Budget and Justification (5 points)* —This standard evaluates the accuracy of the proposed budget and the accompanying budget justification and should sufficiently provide the reviewer with a detailed description of each budget category that includes categorical subtotals as well as an attached budget justification that clearly defines and explains each and every proposed budget line item. Selection Process When the reviewers have completed their individual evaluations, the panel reviewers, based on the individual reviews, will make recommendations to the Administrator that one responsive proposal be approved for support from available funds. Prior to award, the Administrator reserves the right to negotiate with an applicant whose project is recommended for funding regarding project revisions (for example, change in scope of work or the Agency's significant involvement), funding level, or period of support. A proposal may be withdrawn at any time before a final funding decision is made. Cooperative Agreement Awards Within the limit of funds available for such purpose, the Administrator will enter into a cooperative agreement with the successful applicant. The date specified by the Administrator as the effective date of the award will not be later than 12 months after the project is approved for support and funds are appropriated for such purpose, unless otherwise permitted by law. When To Submit an Application The deadline for receipt of all applications is November 19, 2007. The Agency will not accept any application received after the deadline. Cooperator Requirements Cooperators will be required to do the following: • Sign required Federal grant-making forms including: ○ Form AD-1047, Certification Regarding Debarment, Suspension, and Other Responsibility Matters—Primary Covered Transactions; ○ Form AD-1048, Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions; ○ Form AD-1049, Certification Regarding Drug-Free Workplace Requirements (Grants); and ○ Form RD 400-4, Assurance Agreement (Civil Rights). • Use Standard Form 270, Request for Advance or Reimbursement to request payments. • Submit a Standard Form 269, Financial Status Report, and list expenditures according to agreed upon budget categories on a semi-annual basis. A semi-annual financial report is due within 45 days after the first 6-month project period and an annual financial report is due within 60 days after the second 6-month project period. • Submit quarterly performance reports that compare accomplishments to the objectives; if established objectives are not met, discuss problems, delays, or other problems that may affect completion of the project; establish objectives for the next reporting period; and discuss compliance with any special conditions on the use of awarded funds. • Maintain a financial management system that is acceptable to the Agency. • Submit a final project performance report. • Sign an agency approved cooperative agreement (an example of which is provided at the end of this notice). Other Federal Statutes and Regulations That Apply In addition to the requirements provided in this notice, other Federal statutes and regulations apply to proposals considered for review and to our cooperative agreement awarded. These include, but are not limited to: • 7 CFR part 15, subpart A, Nondiscrimination in Federally-Assisted Programs of the Department of Agriculture—Effectuation of Title VI of the Civil Rights Act of 1964; • 7 CFR part 3015, Uniform Federal Assistance Regulations; • 7 CFR part 3016, Uniform Administrative Regulations for Grants and Cooperative Agreements to State and Local Governments; • 7 CFR parts 3017 and 3021, Governmentwide Debarment and Suspension (Non-procurement) and Governmentwide Requirements for Drug-Free Workplace (Grants); • 7 CFR part 3018, New Restrictions on Lobbying; • 7 CFR part 3019, Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-profit Organizations; and • 7 CFR part 3052, Audits of States, Local Governments, and Non-Profit Organizations. Paperwork Reduction Act The Paperwork Reduction Act does not apply to this NOFA because the program does not receive applications from more than 10 persons covered by 5 CFR 1320.3(c). Signed in Washington, DC, on October 5, 2007. Teresa C. Lasseter, Administrator, Farm Service Agency. United States Department of Agriculture Farm Service Agency Cooperative Agreement—American Indian Outreach Initiative This Cooperative Agreement (Agreement) dated____, between________(Cooperator), and the United States of America, acting through the Farm Service Agency of the Department of Agriculture (the Agency, or Grantor), for $____ in cooperative agreement funds under the program, delineates the agreement of the parties. Now, therefore, in consideration of the cooperative agreement; The parties agree that:

(1)All the terms and provisions of the Notice entitled “Notice of Funds Availability

(NOFA)Inviting Applications for the American Indian Credit Outreach Initiative,” published in the **Federal Register** on October 19, 2007 and the application submitted by the Grantee for this Agreement, including any attachments or amendments, are incorporated and included as part of this Agreement. Any changes to these documents or this agreement must be approved in writing by the Agency.

(2)As a condition of the Agreement, the Cooperator certifies that it is in compliance with and will comply in the course of the Agreement with all applicable laws, regulations, Executive Orders, and other generally applicable requirements, including those contained in 7 CFR 3015.205(b), which are incorporated into this agreement by reference, and such other statutory provisions as are specifically contained herein. The Cooperator will comply with title VI of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and Executive Order 12250.

(3)The provisions of 7 CFR part 3015, Uniform Federal Assistance Regulations, and 7 CFR part 3019, Uniform Administrative Requirements for Grants and Agreements with institutions of Higher Education, Hospitals, and Other Nonprofit Organizations, as applicable, are incorporated herein and made a part hereof by reference. Further, the Cooperator agrees that it will:

(1)Not use cooperative agreement funds to plan, repair, rehabilitate, acquire, or construct a building or facility (including a processing facility); or to purchase, rent, or install fixed equipment.

(2)Use funds only for the purpose and activities specified in the proposal approved by the Agency including the approved budget. Any uses not provided for in the approved budget must be approved in writing by the Agency in advance of obligation by the Agency.

(3)Submit a Standard Form 269, Financial Status Report and list expenditures according to agreed upon budget categories on a semi-annual basis. Reports are due by April 30 and October 30 after the grant is awarded.

(4)Provide periodic reports as required by the Agency. A financial status report and a project performance report will be required on a semi-annual basis. The financial status report must show how cooperative agreement funds have been used to date and project the funds needed and their purposes for the next quarter. A final report may serve as the last semi-annual report. Cooperators must constantly monitor performance to ensure that time schedules are being met and projected goals by time periods are being accomplished. The project performance reports must include the following: a. A comparison of actual accomplishments to the objectives for that period. b. Reasons why established objectives were not met, if applicable. c. Reasons for any problems, delays, or adverse conditions which will affect attainment of overall program objectives, prevent meeting time schedules or objectives, or preclude the attainment of particular objectives during established time periods. This disclosure must be accomplished by a statement of the action taken or planned to resolve the situation. d. Objectives and timetables established for the next reporting period. e. The final report will also address the following:

(i)What have been the most challenging or unexpected aspects of this program?

(ii)What advice you would give to other organizations planning a similar program. These should include strengths and limitations of the program. If you had the opportunity, what would you have done differently?

(iii)If an innovative approach was used successfully, the cooperator should describe their program in detail so that other organizations might consider replication in their areas. 5. Provide Financial Management Systems which will include: a. Records that identify adequately the source and application of funds for cooperative agreement supported activities. Those records must contain information pertaining to grant and cooperative agreement awards and authorizations, obligations, un-obligated balances, assets, liabilities, outlays, and income. b. Effective control over and accountability for all funds, property, and other assets. Cooperator must adequately safeguard all such assets and ensure that they are used solely for authorized purposes. c. Accounting records supported by source documentation. 6. Retain financial records, supporting documents, statistical records, and all other records pertinent to the cooperative agreement for a period of at least 3 years after closing, except that the records must be retained beyond the 3-year period if audit findings have not been resolved. Microfilm or photocopies or similar methods may be substituted in lieu of original records. The Agency and the Comptroller General of the United States, or any of their duly authorized representatives, must have access to any books, documents, papers, and records of the Cooperator that are pertinent to the specific cooperative agreement program for the purpose of making audits, examinations, excerpts, and transcripts. 7. Not encumber, transfer, or dispose of the equipment or any part thereof, acquired wholly or in part with Agency funds without the written consent of the Agency. 8. Not duplicate other program purposes for which monies have been received, are committed, or are applied to from other sources (public or private). The Agency agrees to make funds available to the Cooperator under this Agreement in an amount not to exceed the amount indicated above. The funds will be reimbursed or advanced based on submission to the Agency by the Cooperator of a complete Standard Form 270. Authorized and executed this day by: (Cooperator) (Title) UNITED STATES OF AMERICA FARM SERVICE AGENCY By:

(Name)(Title) [FR Doc. E7-20624 Filed 10-18-07; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Forest Service Ochoco National Forest, Lookout Mountain Ranger District; Oregon; East Maurys Fuels and Vegetation Management Project AGENCY: Forest Service, USDA. ACTION: Revised notice of intent to prepare an environmental impact statement. SUMMARY: On August 15, 2005, the USDA Forest Service (FS), Ochoco National Forest, published a Notice of Intent

(NOI)in the **Federal Register** (70 FR 47785-47787) to prepare an environmental impact statement

(EIS)for the East Maurys Fuels and Vegetation Management Project. The FS revises that NOI as follows: Except for the sections noted, all prior information remains the same. DATES: The original NOI states the draft EIS is expected to be available for public comment in May 2006 and final EIS is expected in November 2006. This revised NOI modifies the date the draft EIS is expected to be available to December 2007. The Environmental Protection Agency

(EPA)will publish a Notice of Availability

(NOA)of the draft EIS in the **Federal Register** when it is available. The final EIS is estimated to be available to the public in April 2008. FOR FURTHER INFORMATION CONTACT: Barb Fontaine, Project Leader, at the Ochoco National Forest, 3160 NE Third Street, Prineville, Oregon 97754 or at

(541)416-6500. SUPPLEMENTARY INFORMATION: Possible Alternatives The original NOI stated that an alternative limited to noncommercial thinning and prescribed fire activities was being considered. That alternative is no longer being considered. Based on issues identified as a result of scoping efforts, an alternative that limits new road construction is being developed. Responsible Official The responsible official for this project is Jeff Walter, Forest Supervisor, Ochoco National Forest, 3160 NE Third Street, Prineville, Oregon 97754. Preliminary Issues As a result of scoping efforts, the Ochoco National Forest has identified two significant issues that will be analyzed in detail. These issues relate to road construction and the effects of roads on water quality and wildlife habitats. Dated: October 10, 2007. Arthur J. Currier, District Ranger. [FR Doc. 07-5169 Filed 10-18-07; 8:45 am]

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