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Code · REGISTER · 2007-10-25 · Nuclear Regulatory Commission · Rules and Regulations

Rules and Regulations. Direct final rule

40,611 words·~185 min read·/register/2007/10/25/07-5291

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

BILLING CODE 3410-02-M NUCLEAR REGULATORY COMMISSION 10 CFR Part 72 RIN 3150-AI23 List of Approved Spent Fuel Storage Casks: HI-STORM 100 Revision 4 AGENCY: Nuclear Regulatory Commission. ACTION: Direct final rule. SUMMARY: The Nuclear Regulatory Commission
(NRC)is amending its spent fuel storage cask regulations by revising the Holtec International (Holtec) HI-STORM 100 cask system listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 4 to Certificate of Compliance
(CoC)Number 1014. Amendment No. 4 will include changes to add site-specific options to the CoC to permit use of a modified HI-STORM 100 cask system at the Indian Point Unit 1
(IP1)Independent Spent Fuel Storage Installation (ISFSI). These options include the shortening of the HI-STORM 100S Version B, Multi-Purpose Canister (MPC)-32 and MPC-32F, and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes address the Technical Specification
(TS)definition of transport operations and associated language in the safety analysis report (SAR); the soluble boron requirements for Array/Class 14x14E IP1 fuel; the helium gas backfill requirements for Array/Class 14x14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14x14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14x14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division. DATES: The final rule is effective January 8, 2008, unless significant adverse comments are received by November 26, 2007. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. If the rule is withdrawn, timely notice will be published in the **Federal Register** . ADDRESSES: You may submit comments by any one of the following methods. Please include the following number (RIN 3150-AI23) in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission. *Mail comments to:* Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. *E-mail comments to: SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at
(301)415-1966. Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* *Hand deliver comments to:* 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 am and 4:15 pm Federal workdays [telephone
(301)415-1966]. *Fax comments to:* Secretary, U.S. Nuclear Regulatory Commission at
(301)415-1101. Publicly available documents related to this rulemaking may be viewed electronically on the public computers at the NRC's Public Document Room (PDR), O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/NRC/ADAMS/index.html.* From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to *pdr@nrc.gov.* An electronic copy of the CoC No. 1014, the revised TS, and the preliminary safety evaluation report
(SER)for Amendment No. 4 can be found in a package under ADAMS Accession No. ML072220481. CoC No. 1014, the revised TS, the preliminary SER for Amendment No. 4, and the environmental assessment are available for inspection at the NRC PDR, 11555 Rockville Pike, Rockville, MD. Single copies of these documents may be obtained from Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6219, e-mail *jmm2@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6219, e-mail *jmm2@nrc.gov.* SUPPLEMENTARY INFORMATION: Background Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.” To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR Part 72, which added a new Subpart K within 10 CFR Part 72, entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on May 1, 2000 (65 FR 25241) that approved the HI-STORM 100 cask system design and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No. 1014. Discussion On June 23, 2006, the certificate holder, Holtec submitted an application to the NRC that requested an amendment to CoC No. 1014. Specifically, Holtec requested changes to add site-specific options to the CoC to permit use of a modified HI-STORM 100 cask system at the IP1 ISFSI. These options included the shortening of the HI-STORM 100S Version B, MPC-32 and MPC-32F and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes addressed the TS definition of transport operations and associated language in the SAR; the soluble boron requirements for Array/Class 14x14E IP1 fuel; the helium gas backfill requirements for Array/Class 14x14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14x14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14x14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division. No other changes to the Holtec HI-STORM 100 cask system were requested in this application. As documented in the SER, the NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety and the environment will be adequately protected. This direct final rule revises the HI-STORM 100 cask system listing in 10 CFR 72.214 by adding Amendment No. 4 to CoC No. 1014. The amendment consists of the changes described above as set forth in the revised CoC and TS. The particular TS which are changed are identified in the SER. The amended HI-STORM 100 cask design, when used under the conditions specified in the CoC, the TS, and NRC regulations, will meet the requirements of Part 72; thus, adequate protection of public health and safety will continue to be ensured. After this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into HI-STORM 100 casks that meet the criteria of Amendment No. 4 to CoC No. 1014, in accordance with 10 CFR 72.212. Discussion of Amendments by Section Section 72.214 List of Approved Spent Fuel Storage Casks Certificate No. 1014 is revised by adding the effective date of Amendment No. 4. Procedural Background This rule is limited to the changes contained in Amendment No. 4 to CoC No. 1014 and does not include other aspects of the HI-STORM 100 dry storage cask system. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on January 8, 2008. However, if the NRC receives significant adverse comments on this direct final rule by November 26, 2007, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published elsewhere in this issue of the **Federal Register** . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1)The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a)The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;
(b)The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c)The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.
(2)The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3)The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TS. Voluntary Consensus Standards The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the HI-STORM 100 cask design listed in § 72.214 (List of NRC-approved spent fuel storage cask designs). This action does not constitute the establishment of a standard that contains generally applicable requirements. Agreement State Compatibility Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the **Federal Register** on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State. Plain Language The Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES , above. Finding of No Significant Environmental Impact: Availability Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has prepared an environmental assessment and, on the basis of this environmental assessment, has made a finding of no significant impact. This rule will amend the CoC for the HI-STORM 100 cask design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. The amendment will include changes to add site-specific options to the CoC to permit use of a modified HI-STORM 100 cask system at the IP1 ISFSI. These options include the shortening of the HI-STORM 100S Version B, MPC-32 and MPC-32F, and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes address the TS definition of transport operations and associated language in the SAR; the soluble boron requirements for Array/Class 14×14E IP1 fuel; the helium gas backfill requirements for Array/Class 14×14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14×14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14×14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the environmental assessment and finding of no significant impact are available from Jayne M. McCausland, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6219, e-mail *jmm2@nrc.gov.* Paperwork Reduction Act Statement This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Existing requirements were approved by the Office of Management and Budget (OMB), Approval Number 3150-0132, 10 CFR part 72. Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number. Regulatory Analysis On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR Part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On May 1, 2000 (65 FR 25241), the NRC issued an amendment to part 72 that approved the HI-STORM 100 cask design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214. On June 23, 2006, the certificate holder, Holtec, submitted an application to the NRC to amend CoC No. 1014 to add site-specific options to the CoC to permit use of a modified HI-STORM 100 cask system at the IP1 ISFSI. These options included the shortening of the HI-STORM 100S Version B, MPC-32 and MPC-32F, and the HI-TRAC 100D Canister to accommodate site-specific restrictions. Additional changes addressed the TS definition of transport operations and associated language in the SAR; the soluble boron requirements for Array/Class 14×14E IP1 fuel; the helium gas backfill requirements for Array/Class 14×14E IP1 fuel; the addition of a fifth damaged fuel container design under the TS definition for damaged fuel container; addition of separate burnup, cooling time, and decay heat limits for Array/Class 14×14 IP1 fuel for loading in an MPC-32 and MPC-32F; addition of antimony-beryllium secondary sources as approved contents; the loading of all IP1 fuel assemblies in damaged fuel containers; the preclusion of loading of IP1 fuel debris in the MPC-32 or MPC-32F; the reduction of the maximum enrichment for Array/Class 14×14E IP1 fuel from 5.0 to 4.5 weight percent uranium-235; changes to licensing drawings to differentiate the IP1 MPC-32 and MPC-32F from the previously approved MPC-32 and MPC-32F; and other editorial changes, including replacing all references to U.S. Tool and Die with Holtec Manufacturing Division. The alternative to this action is to withhold approval of Amendment No. 4 and to require any part 72 general licensee, seeking to load spent fuel into HI-STORM 100 casks under Amendment No. 4, to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Approval of the direct final rule is consistent with previous NRC actions. Further, as documented in the SER and the environmental assessment, the direct final rule will have no adverse effect on public health and safety. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended. Regulatory Flexibility Certification Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec. These entities do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810). Backfit Analysis The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis is not required. Congressional Review Act Under the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs and OMB. List of Subjects in 10 CFR Part 72 Administrative practice and procedure, Criminal penalties, Manpower training programs, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR Part 72. PART 72—LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-RELATED GREATER THAN CLASS C WASTE 1. The authority citation for Part 72 continues to read as follows: Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241, sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-10 (42 U.S.C. 2014, 2021, 2021b, 2111). Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 2244 (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198). 2. In § 72.214, Certificate of Compliance 1014 is revised to read as follows: § 72.214 List of approved spent fuel storage casks. Certificate Number: 1014. Initial Certificate Effective Date: May 31, 2000. Amendment Number 1 Effective Date: July 15, 2002. Amendment Number 2 Effective Date: June 7, 2005. Amendment Number 3 Effective Date: May 29, 2007. Amendment Number 4 Effective Date: January 8, 2008. SAR Submitted by: Holtec International. SAR Title: Final Safety Analysis Report for the HI-STORM 100 Cask System. Docket Number: 72-1014. Certificate Expiration Date: June 1, 2020. Model Number: HI-STORM 100. Dated at Rockville, Maryland, this 10th day of October, 2007. For the Nuclear Regulatory Commission. William F. Kane, Acting Executive Director for Operations. [FR Doc. E7-21016 Filed 10-24-07; 8:45 am] BILLING CODE 7590-01-P FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Part 344 RIN 3064-AD20 Extension of Time Period for Quarterly Reporting of Bank Officers' and Certain Employees' Personal Securities Transactions AGENCY: Federal Deposit Insurance Corporation (“FDIC”). ACTION: Final rule. SUMMARY: The FDIC is amending its regulation governing personal securities trading reporting to extend the time period from 10-business to 30-calendar days after the end of the calendar quarter that officers and all employees of state nonmember banks who make or participate in investment decisions for the accounts of customers have to report their personal securities transactions. DATES: This final rule will become effective on: November 26, 2007. FOR FURTHER INFORMATION CONTACT: Anthony J. DiMilo, Trust Examination Specialist,
(202)898-7496, in the Division of Supervision and Consumer Protection; Julia E. Paris, Senior Attorney,
(202)898-3821, in the Legal Division. SUPPLEMENTARY INFORMATION: I. Background Section 344.9(a)(3) of Part 344 of the FDIC's recordkeeping and confirmation requirements for effecting securities transactions requires all bank officers of state nonmember banks and all employees who, in connection with their duties, make or participate in investment decisions for the accounts of customers (“certain employees”) to report to the bank all securities transactions made by them or on their behalf in which they have a beneficial interest within 10-business days after the end of the calendar quarter. 1 At the time it was adopted, this provision, among others, reflected the U.S. Securities and Exchange Commission's (“SEC”) recommendations contained in the *Final Report of the Securities and Exchange Commission on Bank Securities Activities* (June 30, 1977) and generally was patterned after SEC regulations. 2 Specifically, section 344.9(a)(3) was intended to be comparable to the SEC's Rule 17j-1 of the Investment Company Act of 1940, which required “access persons” to report personal securities transactions quarterly and originally mandated a 10-business day period for reporting. 3 1 12 CFR 344.9(a)(3). 2 44 FR 43260, 43263 (July 24, 1979); *see* 45 FR 73898 (Nov. 7, 1980) (SEC final rule 17j-1 adopting investment advisor code of ethics and disclosure requirements for “access persons,” as defined by 17 CFR 270.17-j-1(a)(1)). 3 *See* 17 CFR 270.17j-1(c)(2) (1998); 45 FR 73898 (Nov. 7, 1980). The SEC, in July 2004, amended Rule 17j-1 to extend the reporting time period to 30-calendar days after the end of the calendar quarter. 4 The effective date of the SEC's amendments to Rule 17j-1 was August 31, 2004, with a compliance date of January 7, 2005. 4 69 FR 41696 (July 9, 2004). II. Summary of Proposed Rule On June 27, 2007, the FDIC published for comment a Notice of Proposed Rulemaking to amend section 344.9(a)(3) to extend the time period for reporting quarterly personal securities transactions to 30-calendar days after the end of the calendar quarter. 5 The comment period was 60 days, and expired on August 27, 2007. The FDIC received one comment on this proposal. The commenter supported the proposed amendment and agreed that the purpose of extending the reporting deadline was to align the FDIC's requirements with the SEC's, and to promote practical and uniform recordkeeping requirements. 5 72 FR 35204 (June 27, 2007). III. Final Rule As explained above, the FDIC received one industry comment on its proposal to extend the personal securities transactions reporting requirement to 30-calendar days after the end of the calendar quarter, which comment endorsed the FDIC's reasoning for its proposal. Accordingly, the FDIC is adopting the rule as proposed with no revisions. IV. Regulatory Analysis and Procedure A. Plain Language Section 722 of the Gramm-Leach-Bliley Act (12 U.S.C. 4809) requires the FDIC to use “plain language” in all proposed and final rules published after January 1, 2000. The proposed rule requested comments on how the rule might be changed to reflect the requirements of GLBA. No comments were received. B. Regulatory Flexibility Act Under section 605(b) of the Regulatory Flexibility Act (“RFA”) (5 U.S.C. 605(b)) the regulatory flexibility analysis otherwise required under section 603 of the RFA (5 U.S.C. 603) is not required if the head of the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and the agency publishes such certification and a statement explaining the factual basis for such a certification in the **Federal Register** along with its rule. Pursuant to section 605(b) of the RFA, the FDIC certifies that this final rule will not have a significant impact on a substantial number of small entities. The FDIC does not expect that this rule will create any additional burden on small entities. In effect, the rule extends to 30-calendar days the reporting period within which officers and certain employees of state nonmember banks have to report their personal securities transactions and gives these individuals more latitude to report their quarterly securities transactions. Accordingly, a regulatory flexibility analysis is not required. C. Paperwork Reduction Act The recordkeeping and reporting requirements for securities transactions in Part 344 constitute a collection of information as defined by the Paperwork Reduction Act. The information collection has been approved by the Office of Management and Budget under control number 3064-0028. The reporting requirements and burden associated with that collection would not be affected by this rule. List of Subjects in 12 CFR Part 344 Reporting and recordkeeping requirements. For the reasons set forth in the preamble, title 12, chapter III, part 344, is amended as follows: PART 344—RECORDKEEPING AND CONFIRMATION REQUIREMENTS FOR SECURITIES TRANSACTIONS 1. The authority citation for Part 344 continues to read as follows: Authority: 12 U.S.C. 1817, 1818, and 1819. 2. In § 344.9, paragraph (a)(3) is revised to read as follows: § 344.9 Personal securities trading reporting by bank officers and employees.
(a)* * *
(3)In connection with their duties, obtain information concerning which securities are being purchased or sold or recommend such action, must report to the bank, within 30-calendar days after the end of the calendar quarter, all transactions in securities made by them or on their behalf, either at the bank or elsewhere in which they have a beneficial interest. The report shall identify the securities purchased or sold and indicate the dates of the transactions and whether the transactions were purchases or sales. By Order of the Board of Directors. Dated at Washington, DC, the 16th day of October, 2007. Federal Deposit Insurance Corporation Robert E. Feldman, Executive Secretary. [FR Doc. E7-20998 Filed 10-24-07; 8:45 am] BILLING CODE 6714-01-P TENNESSEE VALLEY AUTHORITY 18 CFR Part 1301 Testimony by TVA Employees, Production of Official Records, and Disclosure of Official Information in Legal Proceedings AGENCY: Tennessee Valley Authority (TVA). ACTION: Final rule. SUMMARY: The Tennessee Valley Authority (“TVA”) is publishing as a final rule a regulation governing access to TVA information and records in connection with legal proceedings in which neither the United States nor TVA is a party. This final rule establishes guidelines for use in determining whether TVA employees will provide testimony or records relating to their official duties. It also establishes procedures for requesters to follow when making demands on or requests to a TVA employee for official documents or to provide testimony. This final rule standardizes TVA's past practices, promotes uniformity in decisions, conserves the ability of TVA to conduct official business, preserves its employee resources, protects confidential information, provides guidance to requestors, minimizes involvement in matters unrelated to TVA's mission and programs, avoids wasteful allocation of agency resources, and avoids spending public time and money for private purpose. DATES: The effective date of the regulation is October 25, 2007. FOR FURTHER INFORMATION CONTACT: Nicholas P. Goschy, Assistant General Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive, Knoxville, Tennessee 37902,
(865)632-8960. SUPPLEMENTARY INFORMATION: Background TVA regularly receives subpoenas and other informal requests for documents and requests for TVA employees to provide testimony or evidence in cases in which TVA is not a party. Sometimes these subpoenas or requests are for TVA records that are not available to the public under the Freedom of Information Act. TVA also receives requests for TVA employees to appear as witnesses in litigation and to provide testimony relating to materials contained in TVA's official records or provide testimony or information acquired during the performance of the employees' official duties. Although many other federal agencies currently have regulations in place to address these types of requests, and TVA itself has rules implementing the Freedom of Information Act that govern requests for information from the general public, TVA has not had official regulations governing subpoenas and other information requests for document production and testimony of TVA employees in legal proceedings. Issues about such requests that have arisen in recent years warrant adoption of regulations governing their submission, evaluation, and processing. Responding to these requests is not only burdensome, but may also result in a significant disruption of a TVA employee's work schedule and possibly involve TVA in issues unrelated to its responsibilities. In order to resolve these issues, many agencies have issued regulations, similar to this final regulation, governing the circumstances and manner in which an employee may respond to demands for testimony or for the production of documents. Establishing uniform procedures for legal processes will ensure timely notice and promote centralized decision making. The United States Supreme Court upheld this type of regulation in *United States ex rel. Touhy* v. *Ragen* , 340 U.S. 462 (1951). On September 10, 2007, TVA published in the **Federal Register** its own proposed *Touhy* regulation, for codification in part 1301 of 18 CFR. See 72 FR 51572-51574, which provided for a 30 day comment period. TVA did not receive any comments on the proposed rule, and is issuing the final rule with no substantive changes from the proposed rule. The final rule will formalize past practices already utilized by TVA in responding to requests for disclosure of official records or testimony by TVA employees when TVA is not a party to the litigation. Briefly summarized, the final rule will prohibit disclosure of official records or testimony by TVA's employees, as defined in section 1301.52, unless there is compliance with the rule. The final rule sets out the information that requesters must provide and the factors that TVA will consider in making determinations in response to requests for testimony or the production of documents. The final rule sets forth TVA's standard practice of providing employee testimony by affidavit only and clarifies those steps requesters must follow in order to obtain official TVA documents, including how to accomplish service of process on TVA. The final rule also establishes a new practice that service can now be accomplished by United States mail. This final rule applies to a range of matters in any legal proceeding in which TVA is not a named party. Current and former TVA employees will not provide testimony about specific matters involving information which they acquired during the performance of their official duties unless permitted to testify as provided in the rule. They are not restricted from providing testimony on their own time about general matters unconnected with the specific TVA matters. This final rule will ensure a more efficient use of TVA's resources, minimize the possibility of involving TVA in issues unrelated to its responsibilities, promote uniformity in responding to such subpoenas and like requests, and maintain the impartiality of TVA in matters that are in dispute between other parties. It will also serve TVA's interest in protecting sensitive, confidential, and privileged information and records that are generated in fulfillment of TVA's statutory responsibilities. The final rule is internal and procedural rather than substantive. It does not create a right to obtain official records or the official testimony of a TVA employee nor does it create any additional right or privilege not already available to TVA to deny any demand or request for testimony or documents. Failure to comply with the procedures set out in these regulations would be a basis for denying a demand or request submitted to TVA. List of Subjects in 18 CFR Part 1301 Administrative practice and procedure. For the reasons stated in the preamble, TVA amends 18 CFR Chapter XIII, as follows: PART 1301—PROCEDURES 1. The authority citation for part 1301 continues to read as follows: Authority: 16 U.S.C. 831-831ee, 5 U.S.C. 552. 2. Part 1301 is amended by adding subpart D to read as follows: Subpart D—Testimony by TVA Employees, Production of Official Records, and Disclosure of Official Information in Legal Proceedings Sec. 1301.51 Purpose and scope. 1301.52 Definitions. 1301.53 General. 1301.54 Requirements for a demand for records or testimony. 1301.55 Responding to demands. 1301.56 Final determination. 1301.57 Waiver. Subpart D—Testimony by TVA Employees, Production of Official Records, and Disclosure of Official Information in Legal Proceedings § 1301.51 Purpose and scope.
(a)*Purpose* . This part sets forth the procedures to be followed when TVA or a TVA employee is served with a demand to provide testimony and/or produce or disclose official information or records in a legal proceeding in which TVA or the United States is not a party, and where such appearance arises out of, or is related to, the individual's employment with TVA.
(b)*Scope* . This part applies when, in a judicial, administrative, legislative, or other legal proceeding, a TVA employee is served with a demand to provide testimony concerning information acquired in the course of performing official duties or because of official status and/or to produce official information and/or records. § 1301.52 Definitions. The following definitions apply to this part:
(a)*Appearance* means testimony or production of documents or other material, including an affidavit, deposition, interrogatory, declaration, or other required written submission.
(b)*Demand* means a subpoena, order, or other demand of a court of competent jurisdiction, or other specific authority (e.g. an administrative or State legislative body), for the production, disclosure, or release of TVA records or information or for the appearance of TVA personnel as witnesses in their official capacities.
(c)*Employee* means any members of the Board of Directors, officials, officers, directors, employees or agents of TVA, except as TVA may otherwise determine in a particular case, and includes former TVA employees to the extent that the information sought was acquired in the performance of official duties for TVA.
(d)*General Counsel* means the General Counsel of TVA or a person to whom the General Counsel has delegated authority under this part.
(e)*Legal proceeding* means any and all pre-trial, trial, and post-trial stages of all judicial or administrative actions, hearings, investigations, or similar proceedings before courts, commissions, boards, or other judicial or quasi-judicial bodies or tribunals, whether criminal, civil, or administrative in nature.
(f)*Records* or *official records and information* means all information in the custody and control of TVA, relating to information in the custody and control of TVA, or acquired by a TVA employee in performance of his or her official duties or because of his or her official status while the individual was employed by TVA.
(g)*Testimony* means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and statements made by an individual in connection with a legal proceeding. § 1301.53 General.
(a)No employee shall appear, in response to a demand for official records or information, in any proceeding to which this part applies to provide testimony and/or produce records or other official information without prior authorization as set forth in this part.
(b)This part is intended only to provide procedures for responding to demands for testimony or production of records or other official information, and is not intended to, does not, and may not be relied upon to, create any right or benefit, substantive or procedural, enforceable by any party against TVA and the United States. § 1301.54 Requirements for a demand for records or testimony.
(a)*Service of demands.* Only TVA's General Counsel or his/her designee is authorized to receive and accept demands sought to be served upon TVA or its employees. All such documents should be delivered in person or by United States mail to the Office of the General Counsel, Tennessee Valley Authority, 400 W. Summit Hill Drive, Knoxville, Tennessee 37902.
(b)*Time limit for serving demands.* The demand must be served at least 30 days prior to the scheduled date of testimony or disclosure of records, in order to ensure that the General Counsel has adequate time to consider the demand and prepare a response, except in cases of routine requests for personnel and payroll records located on-site in Knoxville, where service 15 days prior will normally be considered sufficient. The General Counsel may, upon request and for good cause shown, waive the requirement of this paragraph.
(c)*Form of Demand.* A demand for testimony or production of records or other official information must comply with the following requirements:
(1)The demand must be in writing and submitted to the General Counsel.
(2)The demand must include the following information:
(i)The caption of the legal proceeding, docket number, and name and address of the court or other authority involved.
(ii)If production or records or other official information is sought, a list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the records sought.
(iii)If testimony is sought, a description of the intended use of the testimony, a detailed description of how the testimony sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony sought.
(iv)A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and outweighs the burden on TVA to produce the documents or testimony.
(v)A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than a TVA employee, such as a retained expert.
(vi)The name, address, and telephone number of counsel to each party in the case.
(d)*Additional information.* TVA reserves the right to require additional information to complete the request where appropriate or to waive any of the requirements of this section at its sole discretion. § 1301.55 Responding to demands. Generally, authorization to provide the requested material or testimony shall not be withheld unless their disclosure is prohibited by law or for other compelling reasons, provided the request is reasonable and in compliance with the requirements of this part, and subject to the following conditions:
(a)*Demands for testimony.* TVA's practice is to provide requested testimony of TVA employees by affidavit only. TVA will provide affidavit testimony in response to demands for such testimony, provided all requirements of this part are met and there is no compelling factor under paragraph
(c)of this section that requires the testimony to be withheld. The General Counsel may waive this restriction when necessary.
(b)*Demands for production of records or official information.* TVA's practice is to provide requested records or official information, provided all requirements of this part are met and there is no compelling factor under paragraph
(c)of this section that requires the records or official information to be withheld.
(c)*Factors to be considered in determining whether requested testimony or records or official information must be withheld.* The General Counsel shall consider the following factors, among others, in deciding whether requested testimony or materials must be withheld:
(1)Whether production is appropriate in light of any relevant privilege;
(2)Whether production is appropriate under the applicable rules of discovery or the procedures governing the case or matter in which the demand arose;
(3)Whether the material requested is relevant to the matter at issue;
(4)Whether allowing such testimony or production of records would be necessary to prevent a miscarriage of justice;
(5)Whether disclosure would violate a statute, Executive Order, or regulation, including, but not limited to, the Privacy Act of 1974, as amended, 5 U.S.C. 552a;
(6)Whether disclosure would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests;
(7)Whether disclosure would improperly reveal trade secrets or proprietary confidential information without the owner's consent;
(8)Whether disclosure would unduly interfere with the orderly conduct of TVA's functions;
(9)Whether the records or testimony can be obtained from other sources;
(10)Whether disclosure would result in TVA appearing to favor one litigant over another;
(11)Whether the demand or request is within the authority of the party making it; and
(12)Whether a substantial Government interest is implicated.
(d)*Restrictions on testimony or production of records or official information.* When necessary or appropriate, the General Counsel may impose restrictions or conditions on the production of testimony or records or official information. These restrictions may include, but are not limited to:
(1)Limiting the area of testimony;
(2)Requiring that the requester and other parties to the legal proceeding agree to keep the testimony under seal;
(3)Requiring that the testimony be used or made available only in the legal proceeding for which it was requested;
(4)Requiring that the parties to the legal proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure of produced records or official information.
(e)*Fees for Production.* Fees will be charged for production of TVA records and information. The fees will be the same as those charged by TVA pursuant to its Freedom of Information Act regulations, 16 CFR 1301.10. § 1301.56 Final determination. The General Counsel makes the final determination whether a demand for testimony or production of records or official testimony in a legal proceeding in which TVA is not a party shall be granted. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requesting party and, when necessary, the court or other authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the production of testimony or records or official information. § 1301.57 Waiver. The General Counsel may grant a waiver of any procedure described by this part where a waiver is considered necessary to promote a significant interest of TVA or the United States, or for other good cause. Maureen H. Dunn, General Counsel. [FR Doc. E7-20907 Filed 10-24-07; 8:45 am] BILLING CODE 8120-08-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Phenylbutazone Paste AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a supplemental new animal drug application
(NADA)filed by Luitpold Pharmaceuticals, Inc. The supplemental NADA provides for a revised human food safety warning for phenylbutazone paste, used in horses for relief of inflammatory conditions associated with the musculoskeletal system. DATES: This rule is effective October 25, 2007. FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7540, e-mail: melanie.berson@fda.hhs.gov. SUPPLEMENTARY INFORMATION: Luitpold Pharmaceuticals, Inc., Animal Health Division, Shirley, NY 11967, filed a supplement to NADA 140-958 that provides for use of EQUIPHEN (phenylbutazone) Paste in horses for relief of inflammatory conditions associated with the musculoskeletal system. The supplemental NADA provides for a revised human food safety warning on product labeling. The supplemental NADA is approved as of September 26, 2007, and the regulations are amended in 21 CFR 520.1720c to reflect the approval. Approval of this supplemental NADA did not require review of additional safety or effectiveness data or information. Therefore, a freedom of information summary is not required. FDA has determined under 21 CFR 25.33(a)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. § 520.1720c [Amended] 2. In § 520.1720c, in paragraph (c)(3), remove “Not for use in horses intended for food.” and add in its place “Do not use in horses intended for human consumption.” Dated: October 17, 2007. Bernadette Dunham, Deputy Director, Center for Veterinary Medicine. [FR Doc. E7-21054 Filed 10-24-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Spinosad AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect approval of a new animal drug application
(NADA)filed by Elanco Animal Health. The NADA provides for veterinary prescription use of spinosad chewable tablets to kill fleas and for the prevention and treatment of flea infestations on dogs for 1 month. DATES: This rule is effective October 25, 2007. FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for Veterinary Medicine (HFV-110), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-7540, e-mail: *melanie.berson@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed NADA 141-277 that provides for veterinary prescription use of COMFORTIS (spinosad) Chewable Tablets to kill fleas and for the prevention and treatment of flea infestations ( *Ctenocephalides felis* ) on dogs for 1 month. The NADA is approved as of September 25, 2007, and the regulations in 21 CFR part 520 are amended by adding § 520.2130 to reflect the approval. In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning on the date of approval. FDA has determined under 21 CFR 25.33(d)(1) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 520 Animal drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. 2. Add § 520.2130 to read as follows: § 520.2130 Spinosad.
(a)*Specifications* . Each chewable tablet contains 140, 270, 560, 810, or 1620 milligrams
(mg)spinosad.
(b)*Sponsor* . See No. 000986 in § 510.600 of this chapter.
(c)*Conditions of use in dogs* —(1) *Amount* . Administer tablets once a month at a recommended minimum dosage of 13.5 mg per pound (30 mg per kilogram) of body weight.
(2)*Indications for use* . To kill fleas and for the prevention and treatment of flea infestations ( *Ctenocephalides felis* ) on dogs for 1 month.
(3)*Limitations* . Federal law restricts this drug to use by or on the order of a licensed veterinarian. Dated: October 17, 2007. Bernadette Dunham, Deputy Director, Center for Veterinary Medicine. [FR Doc. E7-21058 Filed 10-24-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 520 and 558 New Animal Drugs; Change of Sponsor AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect a change of sponsor for five approved new animal drug applications (NADAs) from Merial Ltd., to Huvepharma AD. DATES: This rule is effective October 25, 2007. FOR FURTHER INFORMATION CONTACT: David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail: *david.newkirk@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Merial Ltd., 3239 Satellite Blvd., Bldg. 500, Duluth, GA 30096-4640 has informed FDA that it has transferred ownership of, and all rights and interest in, the following five approved NADAs to Huvepharma AD, 33 James Boucher Blvd., Sophia 1407, Bulgaria: Application No. Trade name(s) 012-350 AMPROVINE (amprolium) 25% Type A Medicated Article; CORID (amprolium) 25% Type A Medicated Article 013-149 AMPROVINE (amprolium) 9.6% Solution 013-461 Broiler PMX No. 1620 (amprolium/ethopabate) 033-165 AMPROVINE (amprolium) 20% Soluble Powder; CORID (amprolium) 20% Soluble Powder 034-393 COYDEN 25 (clopidol); Lerbek 25 Accordingly, the agency is amending the regulations in 21 CFR 520.100, 558.55, 558.58, and 558.175 to reflect the transfer of ownership. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects 21 CFR Part 520 Animal drugs. 21 CFR Part 558 Animal drugs, Animal feeds. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 520 and 558 are amended as follows: PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 1. The authority citation for 21 CFR part 520 continues to read as follows: Authority: 21 U.S.C. 360b. § 520.100 [Amended] 2. In paragraph (b)(1) of § 520.100, remove “050604” and in its place add “016592”. PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 3. The authority citation for 21 CFR part 558 continues to read as follows: Authority: 21 U.S.C. 360b, 371. § 558.55 [Amended] 4. In paragraph
(a)of § 558.55, remove “050604” and in its place add “No. 016592”. 5. In § 558.58, in the table in paragraph (e)(1)(i), in the first entry, in the “Sponsor” column, add “050604” and “016592”; add paragraph (a)(3); and revise paragraph
(b)to read as follows: § 558.58 Amprolium and ethopabate.
(a)* * *
(3)25 percent amprolium and 0.8 percent ethopabate.
(b)*Approvals* . See § 510.600(c) of this chapter.
(1)No. 050604 for products described in paragraph
(a)of this section.
(2)No. 016592 for product described in paragraph (a)(3) of this section. § 558.175 [Amended] 6. In § 558.175, in paragraph
(b)and in the table in paragraph (d)(1) in the “Sponsor” column, remove “050604” and in its place add “016592”. Dated: October 17, 2007. Bernadette Dunham, Deputy Director, Center for Veterinary Medicine. [FR Doc. E7-21057 Filed 10-24-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 558 New Animal Drugs For Use in Animal Feeds; Change of Sponsor AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is amending the animal drug regulations to reflect a change of sponsor for seven approved new animal drug applications (NADAs) from Schering-Plough Animal Health Corp. to Huvepharma AD. DATES: This rule is effective October 25, 2007. FOR FURTHER INFORMATION CONTACT: David R. Newkirk, Center for Veterinary Medicine (HFV-100), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301-827-6967, e-mail: *david.newkirk@fda.hhs.gov* . SUPPLEMENTARY INFORMATION: Schering-Plough Animal Health Corp., 556 Morris Ave., Summit NJ 07901, has informed FDA that it has transferred ownership of, and all rights and interest in, the following seven approved NADAs to Huvepharma AD, 33 James Boucher Blvd., Sophia 1407, Bulgaria: Application No. Trade name(s) 140-951 CLINICOX (diclazuril) Type A Medicated Article 141-090 CLINICOX / STAFAC 141-153 CLINICOX / BMD 141-158 CLINICOX / FLAVOMYCIN 141-190 CLINICOX / BMD / 3-NITRO 141-194 CLINICOX / BMD 141-195 CLINICOX / FLAVOMYCIN Accordingly, the agency is amending the regulations in 21 CFR 558.198 to reflect the transfer of ownership. This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808. List of Subjects in 21 CFR Part 558 Animal drugs, Animal feeds. Therefore, under the Federal Food, Drug and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is amended as follows: PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 1. The authority citation for 21 CFR part 558 continues to read as follows: Authority: 21 U.S.C. 360b, 371. § 558.198 [Amended] 2. In § 558.198, in paragraph (b), remove “000061” and in its place add “016592”; and in the tables in paragraphs (d)(1) and (d)(2), in the “Sponsor” column, remove “000061” wherever it occurs and in its place add “016592”. Dated: October 17, 2007. Bernadette Dunham, Deputy Director, Center for Veterinary Medicine. [FR Doc. E7-21059 Filed 10-24-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9361] RIN 1545-BD56 Corporate Reorganizations; Transfers of Assets or Stock Following a Reorganization AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Final regulations. SUMMARY: This document contains final regulations that provide guidance regarding the effect of certain transfers of assets or stock on the continuing qualification of transactions as reorganizations under section 368(a). This document also contains final regulations that provide guidance on the continuity of business enterprise requirement and the definitions of “qualified group” and “party to a reorganization.” These regulations affect corporations and their shareholders. DATES: *Effective Date:* These regulations are effective October 25, 2007. *Applicability Date:* For dates of applicability, see §§ 1.368-1(d)(4)(iv), 1.368-1(d)(5), 1.368-2(f), 1.368-2(j)(3)(iv), and 1.368-2(k)(3). FOR FURTHER INFORMATION CONTACT: Mary W. Lyons, at
(202)622-7930 (not a toll free number). SUPPLEMENTARY INFORMATION: Background On August 18, 2004, the IRS and Treasury Department published a notice of proposed rulemaking (REG-130863-04) in the **Federal Register** (69 FR 51209) proposing regulations that would provide guidance regarding the effect of certain transfers of assets or stock on the qualification of a transaction as a reorganization under section 368(a) (the proposed regulations). The proposed regulations also included amendments to the continuity of business enterprise
(COBE)regulations under § 1.368-1(d) and the definition of a “party to a reorganization” under § 1.368-2(f). The proposed regulations replaced an earlier proposal, dated March 2, 2004 (REG-165579-02) and published in the **Federal Register** (69 FR 9771), which was withdrawn. No public hearing regarding the proposed regulations was requested or held. However, a number of comments were received, the most significant of which are discussed in this preamble. The theory underlying the tax-free treatment afforded reorganizations described in section 368 is that such transactions “effect only a readjustment of continuing interest in property under modified corporate forms.” See § 1.368-1(b). The continuity of interest and continuity of business enterprise requirements are expressions of this principle. Earlier cases also implemented this principle through a concept that later became known as the prohibition of “remote” continuity of interest. Commonly viewed as arising out of the Supreme Court decisions in *Groman* v. *Commissioner* , 302 U.S. 82 (1937), and *Helvering* v. *Bashford* , 302 U.S. 454 (1938), remote continuity of interest focuses on the link between the former target corporation
(T)shareholders and the T business assets following the reorganization. Since the Supreme Court's decisions in *Groman* and *Bashford,* it has been recognized that other transactions, including transactions involving the same level of “remoteness” as addressed in the *Groman* and *Bashford* decisions, adequately preserve the link between the former T shareholders and the T business assets and therefore constitute mere readjustments of continuing interests. Accordingly, legislative, regulatory, and administrative developments have provided significantly more flexibility regarding transfers of stock and assets following otherwise tax-free reorganizations where this link is adequately maintained. For example, Congress enacted section 368(a)(2)(D) to expressly allow a triangular reorganization by permitting a controlled subsidiary to use its parent's stock as consideration in a merger. Similarly, the term “party to a reorganization” was broadened to include the parent in such a case. In addition, Congress enacted section 368(a)(2)(C), which provides that a transaction otherwise qualifying under section 368(a)(1)(A), (B), (C), or
(G)(where the requirements of section 354(b) are met) is not disqualified where part or all of the acquired assets or stock is transferred to a corporation that is controlled (as defined in section 368(c)) by the acquiring corporation. Section 1.368-2(k), as in effect prior to these final regulations, expanded the scope of section 368(a)(2)(C) by permitting successive transfers of the acquired assets or stock to one or more corporations, provided that the transferee corporation was controlled in each transfer by the transferor corporation. Administratively, the IRS and Treasury Department have since interpreted section 368(a)(2)(C) and § 1.368-2(k) as permissive rather than exclusive or restrictive, concluding that certain transfers not specifically described in either of those provisions did not disqualify the reorganization. See Rev. Rul. 2001-24 (2001-1 CB 1290) permitting the transfer of acquiring subsidiary stock to a controlled subsidiary following a reorganization described in section 368(a)(1)(A) by reason of (a)(2)(D), and Rev. Rul. 2002-85 (2002-2 CB 986) permitting the transfer of acquired assets to a controlled subsidiary following a reorganization described in section 368(a)(1)(D). The current regulations do not contain separate rules addressing remote continuity because the IRS and Treasury Department believe that these issues are adequately addressed by the rules adopted to implement the continuity of business enterprise requirement. See TD 8760 (63 FR 4174). Similarly, the rules relating to the continuity of business enterprise requirement have been broadened over the years to permit transactions that adequately preserve the link between the former T shareholders and the T business assets. Under § 1.368-1(d), as in effect prior to these final regulations, the COBE requirement generally is satisfied as long as a member of the qualified group (or, in certain cases, a partnership) either continues T's historic business or uses a significant portion of T's historic business assets in a business. A *qualified group* is defined in § 1.368-1(d)(4)(ii), as in effect prior to these final regulations, as one or more chains of corporations connected through stock ownership with the issuing corporation, but only if the issuing corporation owns directly stock meeting the requirements of section 368(c) in at least one of the corporations, and stock meeting the requirements of section 368(c) in each of the corporations (other than the issuing corporation) is owned directly by one of the other corporations. These final regulations continue the trend of broadening the rules regarding transfers of assets or stock following an otherwise tax-free reorganization where the transaction adequately preserves the link between the former T shareholders and the T business assets. Accordingly, the definition of a “qualified group” in § 1.368-1(d)(4)(ii) and the rules regarding stock or asset transfers in § 1.368-2(k) have been expanded. Conforming changes to § 1.368-2(f), relating to the definition of “a party to a reorganization,” also have been made. A. Continuity of Business Enterprise
(COBE)Regulations Several commentators urged that the definition of “qualified group” under § 1.368-1(d)(4)(ii) should not be restricted by the control requirement of section 368(c), but rather should be expanded to parallel the definition of an affiliated group under section 1504(a). The IRS and Treasury Department have declined to make this change, primarily because the section 368(c) definition of control is a major structural component underlying the statutory framework of the reorganization provisions. On the other hand, the IRS and Treasury Department have concluded that it is consistent with reorganization policy to expand the definition of a qualified group. Specifically, § 1.368-1(d)(4)(ii), as revised by this Treasury decision, permits qualified group members to aggregate their direct stock ownership of a corporation in determining whether they own the requisite section 368(c) control in such corporation (provided that the issuing corporation owns directly stock meeting such control requirement in at least one other corporation). This aggregation concept is similar to the one found in section 1504(a). The IRS and Treasury Department believe that aggregating stock ownership within the qualified group adequately preserves the link between the former T shareholders and the T business assets while further facilitating the post-acquisition relocation of assets and stock as necessary within the group. Finally, as discussed in section B.3. of this preamble, and in response to comments, the COBE regulations have been expanded to provide that if members of the qualified group own interests in a partnership that meets requirements equivalent to the control definition in section 368(c), any stock owned by such partnership is treated as owned by members of the qualified group. Thus, for example, following a reorganization under section 368(a)(1)(B), T remains a member of the qualified group upon a transfer of the T stock to a partnership in which members of the qualified group own all the interests. See section B.3. of this preamble. Similarly, a wholly owned subsidiary of a partnership in which members of the qualified group own all the interests will be a member of the qualified group. Accordingly, following a reorganization under section 368(a)(1)(A), the acquiring corporation may transfer the T assets to the subsidiary (either directly or through the partnership) without violating the COBE requirement. B. Section 1.368-2(k) As provided in § 1.368-1(a), a transaction must be evaluated under all relevant provisions of law, including the step transaction doctrine, in determining whether it qualifies as a reorganization under section 368(a). Section 1.368-2 provides guidance regarding whether a transaction satisfies the explicit statutory requirements of a particular reorganization. Section 1.368-2(k) generally provides that a transaction otherwise qualifying as a reorganization will not be disqualified as a result of certain subsequent transfers of assets or stock. The fact that a subsequent transfer of assets or stock is not described in § 1.368-2(k) does not necessarily preclude reorganization qualification, but the overall transaction would then be subject to analysis under the step transaction doctrine. These final regulations adopt the rules of the proposed regulations regarding subsequent transfers of assets or stock with certain modifications. Section 1.368-2(k), as revised by this Treasury decision, generally provides that a transaction otherwise qualifying as a reorganization under section 368(a) shall not be disqualified or recharacterized as a result of one or more subsequent transfers (or successive transfers) of assets or stock, provided that the COBE requirement is satisfied and the transfer(s) qualify as “distributions” or “other transfers” (as described in § 1.368-2(k)(1), and as discussed in section B.1. and B.2., respectively, of this preamble). 1. Distributions Proposed § 1.368-2(k) would permit the acquiring corporation to distribute to certain shareholders part or all of the stock or assets acquired in a transaction otherwise qualifying as a reorganization without affecting its characterization as such. The proposed regulations would generally permit distributions to certain shareholders provided that no distributee receives “substantially all” of the acquired assets, including the assets of a corporation whose stock is acquired in the reorganization, or stock constituting control of the acquired corporation. This limitation reflected the concern that such a transaction might be more properly characterized as a direct acquisition by the distributee. For example, Rev. Rul. 67-274 (1967-2 CB 141) held that an acquisition of T stock in a purported reorganization under section 368(a)(1)(B) followed by a prearranged liquidation of T is treated as a reorganization under section 368(a)(1)(C); Rev. Rul. 72-405 (1972-2 CB 217) held that an acquisition of T in a forward triangular merger followed by a prearranged liquidation of the acquiring corporation is treated as a reorganization under section 368(a)(1)(C); and Rev. Rul. 2004-83 (2004-2 CB 157) held that a purchase of T stock from the common shareholder followed by a prearranged liquidation of T is treated as a reorganization under section 368(a)(1)(D). Commentators raised an administrative concern that the parameters of the “substantially all” standard are less than certain, at least under case law, and, thus, requested that a safe harbor test be adopted in the final regulations. The IRS and Treasury Department believe that this is a valid concern. Accordingly, these final regulations have adopted a different approach than the “substantially all” standard of the proposed regulations. The new approach in these final regulations focuses on whether the distribution consists of an amount of assets (disregarding any assets held by the acquiring corporation, or the merged corporation in the case of a reorganization under section 368(a)(1)(A) by reason of (a)(2)(E), prior to the transaction) that would result in the distributing corporation being treated as liquidated for Federal income tax purposes. The IRS and Treasury Department believe that this approach will be easier for taxpayers to apply and the government to administer than the “substantially all” standard in the proposed regulations. In addition, this approach more fully preserves the analysis and conclusions set forth in Rev. Rul. 67-274, Rev. Rul. 72-405, and Rev. Rul. 2004-83, in the context of Congress having required the target corporation to liquidate in all asset reorganizations. Finally, this approach more consistently applies the principles of section 368(a)(2)(C) (which allows for transfers of all of the acquired assets or stock) to post-acquisition distributions. Specifically, these final regulations provide that a transaction otherwise qualifying as a reorganization will not be disqualified or recharacterized as a result of one or more distributions of assets, stock of the acquired corporation, or both, provided the COBE requirement is satisfied and the distributions do not result in a liquidation of the distributing corporation for Federal income tax purposes (disregarding, for this purpose, assets held by the acquiring corporation, or the merged corporation in the case of a reorganization under section 368(a)(1)(A) by reason of (a)(2)(E), prior to the transaction). Additionally, in the case of distributions of stock of the acquired corporation, these final regulations only protect the transaction from disqualification or recharacterization if the distributions consist of less than all of the stock of the acquired corporation that was acquired in the transaction and do not cause the acquired corporation to cease to be a member of the qualified group. These final regulations also clarify that certain indirect distributions of assets are treated under § 1.368-2(k) in the same manner as a direct distribution of those assets. For example, such an indirect distribution of assets can occur where, following a transaction that otherwise qualifies as a reorganization under section 368(a)(1)(A), the acquiring corporation transfers a portion of the T assets to a partnership (or a corporation) in exchange for an interest in the transferee partnership (or stock in the transferee corporation) in an “other transfer” described in § 1.368-2(k)(1)(ii), and then distributes that partnership interest (or stock) to a shareholder. Finally, the IRS and Treasury Department believe that distributions of assets under these final regulations that involve the assumption of liabilities are distinguishable from the transaction analyzed in Rev. Rul. 70-107 (1970-1 CB 78). That ruling considered a transaction in which the acquiring corporation acquired all of the target corporation's assets in exchange for voting stock of the acquiring corporation's parent. In the transaction, the target corporation's liabilities were assumed in part by the acquiring corporation and in part by the acquiring corporation's parent. The ruling holds that the parent corporation's direct assumption of some of the target corporation's liabilities violates the solely for voting stock requirement of section 368(a)(1)(C). These final regulations do not implicate the fact pattern addressed in Rev. Rul. 70-107. 2. Other transfers Proposed § 1.368-2(k) would provide, in part, that a transaction otherwise qualifying as a reorganization under section 368(a) would not be disqualified if any assets or stock of a party to the reorganization, other than the stock of the issuing corporation, is subsequently transferred to a member of the qualified group. Commentators asked that the reference to transfers of stock of the issuing corporation be removed, stating that the effect, if any, of a transfer of the stock of the issuing corporation is adequately addressed by the continuity of interest rules under § 1.368-1(e). The IRS and Treasury Department agree. In response to this comment (and comments regarding the interaction with the definition of a party to the reorganization in § 1.368-2(f)), this provision has been revised to refer to the assets or stock of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be. Accordingly, these final regulations provide that a transaction otherwise qualifying as a reorganization will not be disqualified or recharacterized as a result of one or more transfers (that do not constitute distributions) of assets or stock, or both, of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, provided the COBE requirement is satisfied, and the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, does not terminate its corporate existence in connection with the transfer(s). In the case of transfers of stock of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, these final regulations only protect the transaction from disqualification or recharacterization if the transfers do not cause such corporation to cease to be a member of the qualified group. 3. Transfers of stock to partnerships *Example* 3 of former § 1.368-2(k), issued January 28, 1998 (63 FR 4174), involved a transfer of stock of the acquired corporation to a partnership. In the example, P acquired all the stock of T solely in exchange for P stock in a transaction that otherwise qualified as a reorganization under section 368(a)(1)(B). Immediately thereafter, P transferred the T stock to members of its qualified group, who then transferred the T stock to a partnership all of the interests in which were owned by such members. The example concludes that because the transfer of T stock to the partnership is not described in § 1.368-2(k), the characterization of the transaction must be determined under relevant provisions of law, including the step transaction doctrine. The example further concludes that the transaction fails to meet the control requirement of a reorganization described in section 368(a)(1)(B) because immediately after the transaction the acquiring corporation does not have control of T. The preamble to the proposed regulations indicated that the IRS and Treasury Department were reexamining the conclusion set forth in *Example 3* and requested comments in this regard. Consequently, *Example 3* was not included in the proposed regulations. Comments were received and considered in the course of studying this issue. After further examination, the IRS and Treasury Department have concluded that transfers of stock of a corporation to a controlled partnership (that is, one in which members of the qualified group own interests meeting requirements equivalent to section 368(c)) adequately preserve the link between the former T shareholders and the T business assets. This section 368(c) equivalent control standard is applied to transfers of stock to a partnership in order to protect the section 368(c) control requirement applicable to triangular and stock acquisition reorganizations. Accordingly, these final regulations reverse the conclusion reached in *Example 3* of former § 1.368-2(k). To accommodate these policy considerations, the final regulations permit both distributions of stock of the acquired corporation and other transfers of stock of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, provided the transfer of stock does not cause the transferred corporation to cease to be a member of the COBE qualified group. To that end, as described in section A. of this preamble, the COBE regulations have been expanded to provide that if members of the qualified group own interests in a partnership that meet requirements equivalent to the control definition in section 368(c), any stock owned by such partnership is attributed to and treated as owned by members of the qualified group. Accordingly, this full stock attribution rule treats partnerships in a manner similar to members of the COBE qualified group. Special Analyses It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small businesses. Drafting Information The principal author of these final regulations is Mary W. Lyons of the Office of Associate Chief Counsel (Corporate). However, other personnel from the IRS and Treasury Department participated in their development. Availability of IRS Documents IRS revenue rulings, procedures, and notices cited in this preamble are made available by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. List of Subjects in 26 CFR part 1 Income taxes, Reporting and record keeping requirements. Adoption of Amendments to the Regulations Accordingly, 26 CFR part 1 is amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read, in part, as follows: Authority: 26 U.S.C. 7805 * * *. **Par. 2.** Section 1.368-1 is amended as follows: 1. Paragraph (d)(4)(ii) is revised. 2. Paragraph (d)(4)(iii)(D) is added. 3. Paragraph (d)(4)(iv) is revised. 4. Paragraph (d)(5) introductory text is revised. 5. In paragraph (d)(5), *Examples 7* through *12* are redesignated as *Examples 8* through *13* , respectively, and new *Examples 7, 14,* and *15* are added. 6. In paragraph (d)(5), the first sentences of paragraph
(i)in redesignated *Examples 9, 10,* and *12* are revised. The revisions and additions read as follows: § 1.368-1 Purpose and scope of exception of reorganization exchanges.
(d)* * *
(4)* * *
(ii)*Qualified group* . A qualified group is one or more chains of corporations connected through stock ownership with the issuing corporation, but only if the issuing corporation owns directly stock meeting the requirements of section 368(c) in at least one other corporation, and stock meeting the requirements of section 368(c) in each of the corporations (except the issuing corporation) is owned directly (or indirectly as provided in paragraph (d)(4)(iii)(D) of this section) by one or more of the other corporations.
(iii)* * *
(D)*Stock attributed from certain partnerships* . Solely for purposes of paragraph (d)(4)(ii) of this section, if members of the qualified group own interests in a partnership meeting requirements equivalent to section 368(c) (a section 368(c) controlled partnership), any stock owned by the section 368(c) controlled partnership shall be treated as owned by members of the qualified group. Solely for purposes of determining whether a lower-tier partnership is a section 368(c) controlled partnership, any interest in a lower-tier partnership that is owned by a section 368(c) controlled partnership shall be treated as owned by members of the qualified group.
(iv)*Effective/applicability dates* . Paragraphs (d)(4)(i) and (d)(4)(iii) (other than paragraph (d)(4)(iii)(D)) of this section apply to transactions occurring after January 28, 1998, except that they do not apply to any transaction occurring pursuant to a written agreement which is binding on January 28, 1998, and at all times thereafter. Paragraphs (d)(4)(ii) and (d)(4)(iii)(D) of this section apply to transactions occurring on or after October 25, 2007, except that they do not apply to any transaction occurring pursuant to a written agreement which is binding before October 25, 2007, and at all times after that.
(5)*Examples* . The following examples illustrate this paragraph (d). All the corporations have only one class of stock outstanding. The preceding sentence and paragraph (d)(5) *Example 6* and *Example 8* through *Example 13* apply to transactions occurring after January 28, 1998, except that they do not apply to any transaction occurring pursuant to a written agreement which is binding on January 28, 1998, and at all times thereafter. Paragraph (d)(5) *Example 7* , *Example 14* , and *Example 15* apply to transactions occurring on or after October 25, 2007, except that they do not apply to any transaction occurring pursuant to a written agreement which is binding before October 25, 2007, and at all times after that. The examples read as follows: Example 7. *Transfers of acquired stock to members of the qualified group—continuity of business enterprise satisfied* .
(i)*Facts.* The facts are the same as *Example 6* , except that, instead of P acquiring the assets of T, HC acquires all of the outstanding stock of T in exchange solely for stock of P. In addition, as part of the plan of reorganization, HC transfers 10 percent of the stock of T to each of subsidiaries S-1 through S-10. T will continue to operate an auto parts distributorship. Without regard to whether the transaction satisfies the COBE requirement, the transaction qualifies as a triangular B reorganization (as defined in § 1.358-6(b)(2)(iv)).
(ii)*Continuity of business enterprise* . Under paragraph (d)(4)(i) of this section, P is treated as holding the assets and conducting the business of T because T is a member of the qualified group (as defined in paragraph (d)(4)(ii) of this section). The COBE requirement of paragraph (d)(1) of this section is satisfied. Example 9. * * *
(i)*Facts* . The facts are the same as *Example 8,* except that S-3 transfers the historic T business to PRS in exchange for a 1 percent interest in PRS.
(ii)* * * Example 10. * * *
(i)*Facts.* The facts are the same as *Example 8,* except that S-3 transfers the historic T business to PRS in exchange for a 33 1/3 percent interest in PRS, and no member of P's qualified group performs active and substantial management functions for the ski boot business operated in PRS. Example 12. * * *
(i)*Facts* . The facts are the same as *Example 11* , except that S-1 transfers all the T assets to PRS, and P and X each transfer cash to PRS in exchange for partnership interests. * * * *Example 14.* *Transfer of acquired stock to a partnership—continuity of business enterprise satisfied.*
(i)*Facts.* Pursuant to a plan of reorganization, the T shareholders transfer all of their T stock to a subsidiary of P, S-1, solely in exchange for P stock. In addition, as part of the plan of reorganization, S-1 transfers the T stock to its subsidiary, S-2, and S-2 transfers the T stock to its subsidiary, S-3. S-2 and S-3 form a new partnership, PRS. Immediately thereafter, S-3 transfers all of the T stock to PRS in exchange for an 80 percent interest in PRS, and S-2 transfers cash to PRS in exchange for a 20 percent interest in PRS.
(ii)*Continuity of business enterprise.* Members of the qualified group, in the aggregate, own all of the interests in PRS. Because these interests in PRS meet requirements equivalent to section 368(c), under paragraph (d)(4)(iii)(D) of this section, the T stock owned by PRS is treated as owned by members of the qualified group. P is treated as holding all of the businesses and assets of T because T is a member of the qualified group (as defined in paragraph (d)(4)(ii) of this section). The COBE requirement of paragraph (d)(1) of this section is satisfied because P is treated as continuing T's business. *Example 15.* *Transfer of acquired stock to a partnership—continuity of business enterprise not satisfied.*
(i)*Facts.* The facts are the same as in *Example 14,* except that S-3 and U, an unrelated corporation, form a new partnership, PRS, and, immediately thereafter, S-3 transfers all of the T stock to PRS in exchange for a 50 percent interest in PRS, and U transfers cash to PRS in exchange for a 50 percent interest in PRS.
(ii)*Continuity of business enterprise.* Members of the qualified group, in the aggregate, own 50 percent of the interests in PRS. Because these interests in PRS do not meet requirements equivalent to section 368(c), the T stock owned by PRS is not treated as owned by members of the qualified group under paragraph (d)(4)(iii)(D) of this section. P is not treated as holding all of the businesses and assets of T because T has ceased to be a member of the qualified group (as defined in paragraph (d)(4)(ii) of this section). The COBE requirement of paragraph (d)(1) of this section is not satisfied because P is not treated as continuing T's business or using T's historic business assets in a business. **Par. 3.** Section 1.368-2 is amended by: 1. Adding three sentences at the end of paragraph (f). 2. Revising paragraphs (j)(3)(ii) and (iv). 3. Removing the first sentence of paragraph (j)(3)(iii) and adding two new sentences at the beginning of the paragraph. 4. Revising paragraph (k). The additions and the revisions read as follows: § 1.368-2 Definition of terms.
(f)* * * If a transaction otherwise qualifies as a reorganization under section 368(a)(1)(B) or as a reverse triangular merger (as defined in § 1.358-6(b)(2)(iii)), the target corporation (in the case of a transaction that otherwise qualifies as a reorganization under section 368(a)(1)(B)) or the surviving corporation (in the case of a transaction that otherwise qualifies as a reverse triangular merger) remains a party to the reorganization even though its stock or assets are transferred in a transaction described in paragraph
(k)of this section. If a transaction otherwise qualifies as a forward triangular merger (as defined in § 1.358-6(b)(2)(i)), a triangular B reorganization (as defined in § 1.358-6(b)(2)(iv)), a triangular C reorganization (as defined in § 1.358-6(b)(2)(ii)), or a reorganization under section 368(a)(1)(G) by reason of section 368(a)(2)(D), the acquiring corporation remains a party to the reorganization even though its stock is transferred in a transaction described in paragraph
(k)of this section. The two preceding sentences apply to transactions occurring on or after October 25, 2007, except that they do not apply to any transaction occurring pursuant to a written agreement which is binding before October 25, 2007, and at all times after that.
(j)* * *
(3)* * *
(ii)Except as provided in paragraph
(k)of this section, the controlling corporation must control the surviving corporation immediately after the transaction.
(iii)After the transaction, the surviving corporation must hold substantially all of its own properties and substantially all of the properties of the merged corporation (other than stock of the controlling corporation distributed in the transaction). The surviving corporation may transfer such properties as provided in paragraph
(k)of this section. * * *
(iv)Paragraph (j)(3)(ii) and the first two sentences of paragraph (j)(3)(iii) of this section apply to transactions occurring on or after October 25, 2007, except that they do not apply to any transaction occurring pursuant to a written agreement which is binding before October 25, 2007, and at all times thereafter. The remainder of paragraph (j)(3)(iii) of this section applies to transactions occurring after January 28, 1998, except that it does not apply to any transaction occurring pursuant to a written agreement which is binding on January 28, 1998, and at all times after that.
(k)*Certain transfers of assets or stock in reorganizations* —(1) *General rule.* A transaction otherwise qualifying as a reorganization under section 368(a) shall not be disqualified or recharacterized as a result of one or more subsequent transfers (or successive transfers) of assets or stock, provided that the requirements of § 1.368-1(d) are satisfied and the transfer(s) are described in either paragraph (k)(1)(i) or (k)(1)(ii) of this section.
(i)*Distributions.* One or more distributions to shareholders (including distribution(s) that involve the assumption of liabilities) are described in this paragraph (k)(1)(i) if—
(A)The property distributed consists of— ( *1* ) Assets of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, or an interest in an entity received in exchange for such assets in a transfer described in paragraph (k)(1)(ii) of this section; ( *2* ) Stock of the acquired corporation provided that such distribution(s) of stock do not cause the acquired corporation to cease to be a member of the qualified group (as defined in § 1.368-1(d)(4)(ii)); or ( *3* ) A combination thereof; and
(B)The aggregate of such distributions does not consist of— ( *1* ) An amount of assets of the acquired corporation, the acquiring corporation (disregarding assets held prior to the potential reorganization), or the surviving corporation (disregarding assets of the merged corporation), as the case may be, that would result in a liquidation of such corporation for Federal income tax purposes; or ( *2* ) All of the stock of the acquired corporation that was acquired in the transaction.
(ii)*Other Transfers.* One or more other transfers are described in this paragraph (k)(1)(ii) if—
(A)The transfer(s) are not described in paragraph (k)(1)(i) of this section;
(B)The property transferred consists of— ( *1* ) Part or all of the assets of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be; ( *2* ) Part or all of the stock of the acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, provided that such transfer(s) of stock do not cause such corporation to cease to be a member of the qualified group (as defined in § 1.368-1(d)(4)(ii)); or ( *3* ) A combination thereof; and
(C)The acquired corporation, the acquiring corporation, or the surviving corporation, as the case may be, does not terminate its corporate existence in connection with the transfer(s).
(2)*Examples.* The following examples illustrate the application of this paragraph (k). Except as otherwise noted, P is the issuing corporation, and T is an unrelated target corporation. All corporations have only one class of stock outstanding. T operates a bakery that supplies delectable pastries and cookies to local retail stores. The acquiring corporate group produces a variety of baked goods for nationwide distribution. Except as otherwise noted, P owns all of the stock of S-1 and 80 percent of the stock of S-4, S-1 owns 80 percent of the stock of S-2 and 50 percent of the stock of S-5, S-2 owns 80 percent of the stock of S-3, and S-4 owns the remaining 50 percent of the stock of S-5. The examples are as follows: Example 1. *Transfers of acquired assets to members of the qualified group after a reorganization under section 368(a)(1)(C).*
(i)*Facts.* Pursuant to a plan of reorganization, T transfers all of its assets to S-1 solely in exchange for P stock, which T distributes to its shareholders, and S-1's assumption of T's liabilities. In addition, pursuant to the plan, S-1 transfers all of the T assets to S-2, and S-2 transfers all of the T assets to S-3.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(C), is not disqualified by the successive transfers of all of the T assets to S-2 and from S-2 to S-3 because the transfers are not distributions described in paragraph (k)(1)(i) of this section, the transfers consist of part or all of the assets of the acquiring corporation, the acquiring corporation does not terminate its corporate existence in connection with the transfers, and the transaction satisfies the requirements of § 1.368-1(d). Example 2. *Distribution of acquired assets to a member of the qualified group after a reorganization under section 368(a)(1)(C).*
(i)*Facts.* Pursuant to a plan of reorganization, T transfers all of its assets to S-1 solely in exchange for P stock, which T distributes to its shareholders, and S-1's assumption of T's liabilities. In addition, pursuant to the plan, S-1 distributes half of the T assets to P, and P assumes half of the T liabilities.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(C), is not disqualified by the distribution of half of the T assets from S-1 to P, or P's assumption of half of the T liabilities from S-1, because the distribution consists of assets of the acquiring corporation, the distribution does not consist of an amount of S-1's assets that would result in a liquidation of S-1 for Federal income tax purposes (disregarding S-1's assets held prior to the acquisition of T), and the transaction satisfies the requirements of § 1.368-1(d). Example 3. *Indirect distribution of acquired assets to a member of the qualified group after a reorganization under section 368(a)(1)(C).*
(i)*Facts.* The facts are the same as *Example 2,* except that, pursuant to the plan, S-1 contributes half of the T assets to newly formed S-6, S-6 assumes half of the T liabilities, and S-1 distributes all of the S-6 stock to P.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(C), is not disqualified by the transfer of half of the T assets to S-6 and the distribution of the S-6 stock to P because the transfer of half of the T assets to S-6 is described in paragraph (k)(1)(ii) of this section, the distribution of the S-6 stock to P is an indirect distribution of assets of the acquiring corporation, the distribution does not consist of an amount of S-1's assets that would result in a liquidation of S-1 for Federal income tax purposes (disregarding S-1's assets held prior to the acquisition of T), and the transaction satisfies the requirements of § 1.368-1(d). Example 4. *Distribution of acquired stock to a controlled partnership after a reorganization under section 368(a)(1)(B).*
(i)*Facts.* P owns 80 percent of the stock of S-1, and an 80-percent interest in PRS, a partnership. S-4 owns the remaining 20 percent interest in PRS. PRS owns the remaining 20 percent of the stock of S-1. Pursuant to a plan of reorganization, the T shareholders transfer all of their T stock to S-1 solely in exchange for P stock. In addition, pursuant to the plan, S-1 distributes 90 percent of the T stock to PRS in redemption of 5 percent of the stock of S-1 owned by PRS.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(B), is not disqualified by the distribution of 90 percent of the T stock from S-1 to PRS because the distribution consists of less than all of the stock of the acquired corporation that was acquired in the transaction, the distribution does not cause T to cease to be a member of the qualified group (as defined in § 1.368-1(d)(4)(ii)), and the transaction satisfies the requirements of § 1.368-1(d). Example 5. *Transfer of acquired stock to a non-controlled partnership.*
(i)*Facts.* Pursuant to a plan, the T shareholders transfer all of their T stock to S-1 solely in exchange for P stock. In addition, as part of the plan, T distributes half of its assets to S-1, S-1 assumes half of the T liabilities, and S-1 transfers the T stock to S-2. S-2 and U, an unrelated corporation, form a new partnership, PRS. Immediately thereafter, S-2 transfers all of the T stock to PRS in exchange for a 50 percent interest in PRS, and U transfers cash to PRS in exchange for a 50 percent interest in PRS.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(B), is not disqualified by the distribution of half of the T assets from T to S-1, or S-1's assumption of half of the T liabilities from T, because the distribution consists of assets of the acquired corporation, the distribution does not consist of an amount of T's assets that would result in a liquidation of T for Federal income tax purposes, and the transaction satisfies the requirements of § 1.368-1(d). Further, this paragraph
(k)describes the transfer of the acquired stock from S-1 to S-2, but does not describe the transfer of the acquired stock from S-2 to PRS because such transfer causes T to cease to be a member of the qualified group (as defined in § 1.368-1(d)(4)(ii)). Therefore, the characterization of this transaction must be determined under the relevant provisions of law, including the step transaction doctrine. See § 1.368-1(a). The transaction fails to meet the control requirement of a reorganization described in section 368(a)(1)(B) because immediately after the acquisition of the T stock, the acquiring corporation does not have control of T. Example 6. *Transfers of acquired assets to members of the qualified group after a reorganization under section 368(a)(1)(D).*
(i)*Facts.* P owns all of the stock of T. Pursuant to a plan of reorganization, T transfers all of its assets to S-1 solely in exchange for S-1 stock, which T distributes to P, and S-1's assumption of T's liabilities. In addition, pursuant to the plan, S-1 transfers all of the T assets to S-2, and S-2 transfers all of the T assets to S-3.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(D), is not disqualified by the successive transfers of all the T assets from S-1 to S-2 and from S-2 to S-3 because the transfers are not distributions described in paragraph (k)(1)(i) of this section, the transfers consist of part or all of the assets of the acquiring corporation, the acquiring corporation does not terminate its corporate existence in connection with the transfers, and the transaction satisfies the requirements of § 1.368-1(d). Example 7. *Transfer of stock of the acquiring corporation to a member of the qualified group after a reorganization under section 368(a)(1)(A) by reason of section 368(a)(2)(D).*
(i)*Facts.* Pursuant to a plan of reorganization, S-1 acquires all of the T assets in the merger of T into S-1. In the merger, the T shareholders receive solely P stock. Also, pursuant to the plan, P transfers all of the S-1 stock to S-4.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(A) by reason of section 368(a)(2)(D), is not disqualified by the transfer of all of the S-1 stock to S-4 because the transfer is not a distribution described in paragraph (k)(1)(i) of this section, the transfer consists of part or all of the stock of the acquiring corporation, the transfer does not cause S-1 to cease to be a member of the qualified group (as defined in § 1.368-1(d)(4)(ii)), the acquiring corporation does not terminate its corporate existence in connection with the transfer, and the transaction satisfies the requirements of § 1.368-1(d). Example 8. *Transfer of acquired assets to a partnership after a reorganization under section 368(a)(1)(A) by reason of section 368(a)(2)(D).*
(i)*Facts.* Pursuant to a plan of reorganization, S-1 acquires all of the T assets in the merger of T into S-1. In the merger, the T shareholders receive solely P stock. In addition, pursuant to the plan, S-1 transfers all of the T assets to PRS, a partnership in which S-1 owns a 33 1/3 -percent interest. PRS continues T's historic business. S-1 does not perform active and substantial management functions as a partner with respect to PRS's business.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(A) by reason of section 368(a)(2)(D), is not disqualified by the transfer of T assets from S-1 to PRS because the transfer is not a distribution described in paragraph (k)(1)(i) of this section, the transfer consists of part or all of the assets of the acquiring corporation, the acquiring corporation does not terminate its corporate existence in connection with the transfers, and the transaction satisfies the requirements of § 1.368-1(d). Example 9. *Sale of acquired assets to a member of the qualified group after a reorganization under section 368(a)(1)(C).*
(i)*Facts.* Pursuant to a plan of reorganization, T transfers all of its assets to S-1 in exchange for P stock, which T distributes to its shareholders, and S-1's assumption of T's liabilities. In addition, pursuant to the plan, S-1 sells all of the T assets to S-5 for cash equal to the fair market value of those assets.
(ii)*Analysis.* Under this paragraph (k), the transaction, which otherwise qualifies as a reorganization under section 368(a)(1)(C), is not disqualified by the sale of all of the T assets from S-1 to S-5 because the transfer is not a distribution described in paragraph (k)(1)(i) of this section, the transfer consists of part or all of the assets of the acquiring corporation, the acquiring corporation does not terminate its corporate existence in connection with the transfers, and the transaction satisfies the requirements of § 1.368-1(d).
(3)*Effective/applicability date.* This paragraph
(k)applies to transactions occurring on or after October 25, 2007, except that it does not apply to any transaction occurring pursuant to a written agreement which is binding before October 25, 2007, and at all times after that. Kevin M. Brown, Deputy Commissioner for Services and Enforcement. Approved: October 16, 2007. Eric Solomon, Assistant Secretary of the Treasury (Tax Policy). [FR Doc. E7-20863 Filed 10-24-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. CGD05-07-098] Special Local Regulations for Marine Events; Approaches to Annapolis Harbor, Spa Creek and Severn River, Annapolis, MD AGENCY: Coast Guard, DHS. ACTION: Notice of enforcement of regulation. SUMMARY: The Coast Guard will enforce special local regulations during the Eastport Yacht Club Lights Parade on the waters of Spa Creek, Annapolis Harbor and the Severn River at Annapolis, Maryland; from 4:30 p.m. to 9 p.m., December 8, 2007. This action is necessary to control vessel traffic due to the confined nature of the waterway and expected vessel congestion during the event. During the enforcement period, the effect will be to restrict general navigation in the regulated area for the safety of event participants, spectators and vessels transiting the event area. DATES: The regulations in 33 CFR 100.511 will be enforced from 4:30 p.m. to 9 p.m. on December 8, 2007. FOR FURTHER INFORMATION CONTACT: Ronald Houck, Marine Events Coordinator, Commander, Coast Guard Sector Baltimore, 2401 Hawkins Point Road, Baltimore, MD 21226-1971, and
(410)576-2674. SUPPLEMENTARY INFORMATION: The Coast Guard will enforce the special local regulations for the Eastport Yacht Club lighted boat parade on the waters of Spa Creek and the Severn River at Annapolis, Maryland in 33 CFR 100.511 on December 8, 2007 from 4:30 p.m. until 9 p.m. These regulations can be found in the May 24, 1989 issue of the **Federal Register** (54 FR 22438). The Eastport Yacht Club will sponsor a lighted boat parade on the waters of Spa Creek and the Severn River at Annapolis, Maryland. The event will consist of approximately 50 boats traveling at slow speed along two separate parade routes in Annapolis Harbor. The participating boats will range in length from 10 to 60 feet, and each will be decorated with holiday lights. In order to ensure the safety of participants, spectators and transiting vessels, 33 CFR 100.511 will be in effect for the duration of the event. Under provisions of 33 CFR 100.511, vessels may not enter the regulated area without permission from the Coast Guard Patrol Commander. Spectator vessels may anchor outside the regulated area but may not block a navigable channel. Because these restrictions will be in effect for a limited period, they should not result in a significant disruption of maritime traffic. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation. This notice is issued under authority of 33 CFR 100.511 and 5 U.S.C. 552(a). In addition to this notice, the maritime community will be provided extensive advance notification via the Local Notice to Mariners, marine information broadcasts, local radio stations and area newspapers, so mariners can adjust their plans accordingly. If the Captain of the Port or Patrol Commander determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area. Dated: October 15, 2007. Fred M. Rosa, Jr., Rear Admiral, U.S. Coast Guard Commander, Fifth Coast Guard District. [FR Doc. E7-20976 Filed 10-24-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. COTP Western Alaska-07-003] RIN 1625-AA00 Safety Zone; Gulf of Alaska, Narrow Cape, Kodiak Island, AK AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone in the Gulf of Alaska, encompassing the navigable waters in the vicinity of Narrow Cape and Ugak Island. The zone is needed to protect persons and vessels operating in the vicinity of the safety zone during a rocket launch from the Alaska Aerospace Development Corporation, Narrow Cape, Kodiak Island facility. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Commander, Seventeenth Coast Guard District, the Coast Guard Captain of the Port, Western Alaska, or their on-scene representative. The intended effect of this safety zone is to ensure the safety of human life and property during the rocket launch. DATES: This temporary final rule is effective from 12 p.m. through 4 p.m. September 28, 2007 through October 31, 2007. The safety zones will be enforced each of these days from 12 p.m. through 4 p.m. ADDRESSES: Documents indicated in this preamble as being available in the docket are available for inspection and copying at Coast Guard Marine Safety Detachment Kodiak, Kodiak, AK 99619. Normal Office hours are 7:30 a.m. to 4 p.m., Monday through Friday, except federal holidays. FOR FURTHER INFORMATION CONTACT: LCDR Patrick Lee, Marine Safety Detachment, at
(907)486-5918. SUPPLEMENTARY INFORMATION: Regulatory History We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(8), the Coast Guard finds that good cause exists for not publishing an NPRM. Because the hazardous condition is expected to last for approximately four
(4)hours of each day, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial and recreational traffic is expected to be minimal. Any delay encountered in this regulation's effective date would be contrary to public interest because immediate action is needed to protect human life and property from possible fallout from the rocket launch. The parameters of the zone will not unduly impair business and transits of vessels. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of each launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . The process of scheduling a rocket launch is uncertain due to unforeseen delays such as weather that can cause cancellation of the launch. The Coast Guard attempts to publish a final rule as close to the expected launch date as possible; however, these attempts often prove futile due to frequent and unexpected re-scheduling. Any delay encountered in this regulation's effective date would be unnecessary and contrary to public interest since immediate action is needed to protect human life and property from possible fallout from the rocket launch. The parameters of the zone will not unduly impair business and transits of vessels. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of each launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners. Background and Purpose The Alaska Aerospace Development Corporation will launch an unmanned rocket from their facility at Narrow Cape, Kodiak Island, Alaska sometime between 12 p.m. and 4 p.m. during a five-day period between September 28, 2007 and October 31, 2007. The safety zone is necessary to protect spectators and transiting vessels from the potential hazards associated with the launch. The duration of the safety zone period will allow time for proper surveillance to be conducted to ensure the public is clear of the hazard area prior to and immediately following the rocket launch. The Captain of the Port, Western Alaska will terminate the safety zone after rocket launch operations are complete. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of the launch and will grant general permission to enter the safety zone during those times in which a launch schedule does not pose a hazard to mariners. Because the hazardous situation is expected to last for approximately four
(4)hours each day during the five-day launch window period, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial and recreational traffic is expected to be minimal. Discussion of Rule From the latest information received from the Alaska Aerospace Development Corporation, the launch window is scheduled for four
(4)hours during a five-day period between September 28, 2007 and October 31, 2007. The size and duration of the safety zone has been set to protect the public from potential hazards associated with the launch. The Pacific Range Support Team has identified a launch area exclusion zone from the area north of Narrow Cape to a point south of Ugak Island along the launch trajectory. The COTP will enforce a single safety zone in support of their exclusion zone. The established safety zone includes the navigable waters in the vicinity of Narrow Cape and Ugak Island, within the boundaries defined by a line drawn from a point located at 57°29.8′ North, 152° 17.0′ West, then southeast to a point located at 57° 21.1′ North, 152° 11.2′ West, then southwest to a point located at 57° 19.9′ North, 152° 14.2′ West, and then northwest to a point located at 57° 25.4′ North, 152° 28.2′ West, and then northeast to the point located at 57°29.8′ North, 152° 17.0′ West. All coordinates reference Datum: NAD 1983. This safety zone is necessary to protect transiting vessels from the potential hazards associated with the Rocket launch. The Coast Guard will announce via Broadcast Notice to Mariners the anticipated date and time of the launch and will grant general permission to enter the safety zone during those times in which the launch does not pose a hazard to mariners. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential cost and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Homeland Security
(DHS)(44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DHS is unnecessary. Because the hazardous situation is expected to last for approximately four
(4)hours each day during the five-day launch window period, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial traffic should be minimal. Before the effective period, we will issue maritime advisories widely available to users of the affected portion of the Gulf of Alaska. We believe there will be minimal economic impact on commercial traffic. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601—612), we have considered whether this rule would have significant economic impacts on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit, anchor, or fish in a portion of the Gulf of Alaska from north of Narrow Cape to South of Ugak Island from 12 p.m. to 4 p.m. each day from September 28, 2007 until October 31, 2007 until rocket launch operations are complete. Because the hazardous situation is expected to last for approximately four
(4)hours of each day during the five-day launch window period, and because general permission to enter the safety zone will be given during non-hazardous times, the impact of this rule on commercial and recreational traffic should be minimal. Before the effective period, we will issue maritime advisories widely available to users of the affected portion of the Gulf of Alaska. We believe there will be minimal impact to small entities. Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501—3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that this rule does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not economically significant and does not cause an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the order. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation because this rule establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons set out in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—[AMENDED] 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. From September 28, 2007 to October 31, 2007 add temporary § 165.T17-072 to read as follows: § 165.T17-072 Alaska Aerospace Development Corporation, Safety Zone; Gulf of Alaska, Narrow Cape, Kodiak Island, AK.
(a)*Description.* The established safety zone includes the navigable waters in the vicinity of Narrow Cape and Ugak Island, within the boundaries defined by a line drawn from a point located at 57°29.8′ North, 152°17.0′ West, then southeast to a point located at 57°21.1′ North, 152°11.2′ West, then southwest to a point located at 57°19.9′ North, 152°14.2′ West, and then northwest to a point located at 57°25.4′ North, 152°28.2′ West, and then northeast to the point located at 57°29.8′ North, 152°17.0′ West. All coordinates reference Datum: NAD 1983.
(b)*Enforcement periods.* The safety zones in this section will be enforced from 12 p.m. to 4 p.m. during each day of a five-day launch window period from September 28, 2007 to October 31, 2007.
(c)*Regulations.*
(1)The Duty Officer at Marine Safety Detachment, Kodiak, Alaska can be contacted at telephone number
(907)486-5918 or
(907)539-5841.
(2)The Captain of the Port may authorize and designate any Coast Guard commissioned, warrant, or petty officer to act on his behalf in enforcing the safety zone.
(3)The general regulations governing safety zones contained in § 165.23 apply. No person or vessel may enter or remain in this safety zone without first obtaining permission from the Captain of the Port or his on-scene representative. The Captain of the Port, Western Alaska, on-scene representative may be contacted at Marine Safety Detachment Kodiak. Dated: September 28, 2007. M.R. Devries, Captain, U.S. Coast Guard, Captain of the Port, Western Alaska. [FR Doc. E7-20978 Filed 10-24-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, and 63 [FRL-8487-5] Delegation of Authority to the States of Iowa, Kansas, Missouri, and Nebraska for New Source Performance Standards (NSPS); National Emission Standards for Hazardous Air Pollutants (NESHAP); and Maximum Achievable Control Technology
(MACT)Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of delegation of authority. SUMMARY: The states of Iowa, Kansas, Missouri, and Nebraska have submitted updated regulations for delegation of EPA authority for implementation and enforcement of NSPS, NESHAP, and MACT standards. The submissions cover new EPA standards and, in some instances, revisions to standards previously delegated. EPA's review of the pertinent regulations shows that they contain adequate and effective procedures for the implementation and enforcement of these Federal standards. This action informs the public of delegations to the above-mentioned agencies. DATES: This notice is effective on October 25, 2007. The dates of delegation can be found in the SUPPLEMENTARY INFORMATION section of this document. ADDRESSES: Copies of documents relative to this action are available for public inspection during normal business hours at the Environmental Protection Agency, Air Planning and Development Branch, 901 North 5th Street, Kansas City, Kansas 66101. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance. Effective immediately, all notifications, applications, reports, and other correspondence required pursuant to the newly delegated standards and revisions identified in this document must be submitted with respect to sources located in the jurisdictions identified in this document, to the following addresses: Iowa Department of Natural Resources, Air Quality Bureau, 7900 Hickman Road, Urbandale, Iowa 50322. Kansas Department of Health and the Environment, Bureau of Air and Radiation, 1000 SW Jackson St., Ste. 310, Topeka, Kansas 66612-1367. Missouri Department of Natural Resources, Air Pollution Control Program, PO Box 176, Jefferson City, MO 65102-0176. Nebraska Department of Environmental Quality, Air Quality Division, 1200 “N” Street, Suite 400, PO Box 98922, Lincoln, NE 68509. Duplicates of required documents must also continue to be submitted to the EPA Regional Office at the above address. FOR FURTHER INFORMATION CONTACT: Heather Hamilton at
(913)551-7039, or by e-mail at *hamilton.heather@epa.gov* . SUPPLEMENTARY INFORMATION: The supplementary information is organized in the following order: What does this action do? What is the authority for delegation? What does delegation accomplish? What has been delegated? What has not been delegated? List of Delegation Tables Table I—NSPS, 40 CFR Part 60 Table II—NESHAP, 40 CFR Part 61 Table III—NESHAP, 40 CFR Part 63 What does this action do? The EPA is providing notice of an update to its delegable authority for implementation and enforcement of the Federal standards shown in the tables below to the states of Iowa, Kansas, Missouri, and Nebraska. This action updates the delegation tables previously published at 72 FR 1937 (January 17, 2007). The EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given. This notice does not affect or alter the status of the listed standards under state or Federal law. What is the authority for delegation? 1. Section 111(c)(1) of the Clean Air Act
(CAA)authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS are codified at 40 CFR part 60. 2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorizes the EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively. What does delegation accomplish? Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the concurrent authority to enforce the standards. What has been delegated? Tables I, II, and III below list the delegated standards. Each item listed in the Subpart column has two relevant dates listed in each column for each state. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through the date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation. This notice specifically addresses revisions to the columns for Iowa, Kansas, Missouri, and Nebraska. What has not been delegated? 1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA. 2. In some cases, the standards themselves specify that specific provisions cannot be delegated. In such cases, a specific section of the standard details what authorities can and cannot be delegated. You should review the applicable standard in the CFR for this information. 3. In some cases, the state rules do not adopt the Federal standard in its entirety. Each state rule (available from the respective agency) should be consulted for specific information. 4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office. 5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), the EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in an EPA memorandum titled “Delegation of 40 CFR Part 63 General Provisions Authorities to State and Local Air Pollution Control Agencies” from John Seitz, Director, Office of Air Quality Planning and Standards, dated July 10, 1998. List of Delegation Tables Table I.—Delegation of Authority (Part 60 NSPS—Region 7 Subpart Source category State of Iowa State of Kansas State of Missouri State of Nebraska A General Provisions 09/21/06 04/04/07 07/01/05 06/15/07 06/30/03 11/30/05 07/01/03 12/14/04 B Adoption and Submittal of State Plans for Designated Facilities 09/21/06 04/04/07 D Fossil-Fuel Fired Steam Generators for Which Construction is Commenced After August 17, 1971 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Da Electric Utility Steam Generating Units for Which Construction is Commenced After September 18, 1978 09/21/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Db Industrial-Commercial-Institutional Steam Generating Units 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 02/27/06 12/13/06 Dc Small Industrial-Commercial-Institutional Steam Generating Units 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 02/27/06 12/13/06 E Incinerators 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Ea Municipal Waste Combustors for Which Construction is Commenced After December 20, 1989, and on or before September 20 1994 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Eb Large Municipal Waste Combustors for Which Construction is Commenced after September 20, 1994, or for Which Modification or Reconstruction is Commenced After June 19, 1996 09/21/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Ec Hospital/Medical/Infectious Waste Incinerators for Which Construction Commenced after June 20, 1996 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 F Portland Cement Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 G Nitric Acid Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 H Sulfuric Acid Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 I Hot Mix Asphalt Facilities 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 J Petroleum Refineries 09/21/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 K Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After June 11, 1973, and Prior to May 19, 1978 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Ka Storage Vessels for Petroleum Liquids for Which Construction, Reconstruction, or Modification Commenced After May 18, 1978, and Prior to July 23, 1984 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Kb Volatile Organic Liquid Storage Vessels (including Petroleum Liquid Storage Vessels) for Which Construction, Reconstruction, or Modification Commenced After July 23, 1984 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 10/15/03 12/14/04 L Secondary Lead Smelters 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 M Secondary Brass and Bronze Production Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 N Basic Oxygen Process Furnaces for Which Construction is Commenced After June 11, 1973 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Na Basic Oxygen Process Steelmaking Facilities for Which Construction is Commenced After January 20, 1983 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 O Sewage Treatment Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 P Primary Copper Smelters 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Q Primary Zinc Smelters 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 R Primary Lead Smelters 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 S Primary Aluminum Reduction Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 T Phosphate Fertilizer Industry: Wet Process Phosphoric Acid Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 U Phosphate Fertilizer Industry: Superphosphoric Acid Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 V Phosphate Fertilizer Industry: Diammonium Phosphate Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 W Phosphate Fertilizer Industry: Triple Superphosphate Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 X Phosphate Fertilizer Industry: Granular Triple Superphosphate Storage Facilities 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Y Coal Preparation Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 Z Ferroalloy Production Facilities 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 AA Steel Plants: Electric Arc Furnaces Constructed After October 21, 1974, and on or Before August 17, 1983 02/22/05 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 AAa Steel Plants: Electric Arc Furnaces and Argon-Oxygen Decarburization Vessels Constructed After August 17, 1983 02/22/05 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 BB Kraft Pulp Mills 09/21/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 CC Glass Manufacturing Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 DD Grain Elevators 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 EE Surface Coating of Metal Furniture 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 GG Stationary Gas Turbines 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/08/04 05/07/05 HH Lime Manufacturing Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 KK Lead-Acid Battery Manufacturing Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 LL Metallic Mineral Processing Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 MM Automobile and Light Duty Truck Surface Coating Operations 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 NN Phosphate Rock Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 PP Ammonium Sulfate Manufacture 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 QQ Graphic Arts Industry: Publication Rotogravure Printing 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 RR Pressure Sensitive Tape and Label Surface Coating Operations 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 SS Industrial Surface Coating: Large Appliances 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 TT Metal Coil Surface Coating 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 UU Asphalt Processing and Asphalt Roofing Manufacture 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 VV Equipment Leaks of VOC in the Synthetic Organic Chemicals Manufacturing Industry 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 WW Beverage Can Surface Coating Industry 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 XX Bulk Gasoline Terminals 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 AAA New Residential Wood Heaters 12/19/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 BBB Rubber Tire Manufacturing Industry 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 DDD Volatile Organic Compound
(VOC)Emissions from the Polymer Manufacturing Industry 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 FFF Flexible Vinyl and Urethane Coating and Printing 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 GGG Equipment Leaks of VOC in Petroleum Refineries 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 HHH Synthetic Fiber Production Facilities 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 III Volatile Organic Compound
(VOC)Emissions From the Synthetic Organic Chemical Manufacturing Industry (SOCMI) AIR Oxidation Unit Processes 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 JJJ Petroleum Dry Cleaners 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 KKK Equipment Leaks of VOC from Onshore Natural Gas Processing Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 LLL Onshore Natural Gas Processing: SO 2 Emissions 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 NNN Volatile Organic Compound
(VOC)Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Distillation Operations 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 OOO Nonmetallic Mineral Processing Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 PPP Wool Fiberglass Insulation Manufacturing Plants 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 QQQ VOC Emissions from Petroleum Refinery Wastewater Systems 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 RRR Volatile Organic Compound Emissions from Synthetic Organic Chemical Manufacturing Industry (SOCMI) Reactor Processes 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 SSS Magnetic Tape Coating Facilities 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 TTT Industrial Surface Coating: Surface Coating of Plastic Parts for Business Machines 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 UUU Calciners and Dryers in Mineral Industries 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 VVV Polymeric Coating of Supporting Substrates Facilities 02/27/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 WWW Municipal Solid Waste Landfills 09/21/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 AAAA Small Municipal Waste Combustion Units for Which Construction is Commenced After August 30, 1999 or for Which Modification or Reconstruction is Commenced After June 6, 2001 09/21/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 CCCC Commercial and Industrial Solid Waste Incineration Units for Which Construction is Commenced After November 30, 1999 or for Which Modification or Reconstruction is Commenced on or After June 1, 2001 02/27/06 08/23/06 07/01/03 12/03/04 06/30/03 11/30/05 07/01/03 12/14/04 DDDD Commercial and Industrial Solid Waste Incineration Units that Commenced Construction On or Before November 30, 1999 07/01/03 12/14/04 07/01/03 12/14/04 EEEE Other Solid Waste Incineration Units for Which Construction Commenced After December 9, 2004 or Modification or Reconstruction Commenced On or After June 16, 2006 12/16/05 08/23/06 FFFF Other Solid Waste Incineration Units that Commenced Construction On or Before December 9, 2004 IIII Stationary Compression Ignition Internal Combustion Engines 09/21/06 04/04/07 KKKK Stationary Combustion Turbines 09/21/06 04/04/07 Table II.—Delegation of Authority—Part 61 NESHAP—Region 7 Subpart Source category State of Iowa State of Kansas State of Missouri State of Nebraska Lincoln- Lancaster County City of Omaha A General Provisions 12/11/03 12/15/04 07/01/05 06/15/07 06/30/03 11/30/05 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 B Radon Emissions from Underground Uranium Mines 07/01/05 06/15/07 C Beryllium 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 D Beryllium Rocket Motor Firing 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 E Mercury 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 F Vinyl Chloride 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 J Equipment Leaks (Fugitive Emission Sources) of Benzene 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 L Benzene Emissions from Coke By-Product Recovery Plants 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 M Asbestos 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 N Inorganic Arsenic Emissions from Glass Manufacturing Plants 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 O Inorganic Arsenic Emissions From Primary Copper Smelters 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 P Inorganic Arsenic Emissions From Arsenic Trioxide and Metallic Arsenic Production Facilities 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 Q Radon Emissions From Department of Energy Facilities 07/01/05 06/15/07 R Radon Emissions From Phosphogypsum Stacks 07/01/05 06/15/07 T Radon Emissions From the Disposal of Uranium Mill Tailings 07/01/05 06/15/07 V Equipment Leaks (Fugitive Emission Sources) 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 W Radon Emissions From Operating Mill Tailings 07/01/05 06/15/07 Y Benzene Emissions From Benzene Storage Vessels 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 BB Benzene Emissions From Benzene Transfer Operations 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 FF Benzene Waste Operations 12/11/03 12/15/04 07/01/05 06/15/07 06/30/05 08/30/07 07/01/01 07/10/02 07/01/92 07/31/01 07/01/01 04/18/03 Table III.—Delegation of Authority—Part 63 NESHAP—Region 7 Subpart Source category State of Iowa State of Kansas State of Missouri State of Nebraska Lincoln- Lancaster County City of Omaha A General Provisions 10/25/06 04/04/07 07/01/05 06/15/07 06/30/03 11/30/05 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 B Requirements for Control Technology Determinations for Major Sources in Accordance with Clean Air Act Sections, Section 112(g) and
(j)02/16/06 08/23/06 07/01/05 06/15/07 12/31/00 11/20/02 07/01/03 12/14/04 04/05/02 04/18/03 (112
(g)only) D Compliance Extensions for Early Reductions of Hazardous Air Pollutants 02/16/06 08/23/06 07/01/05 06/15/07 12/31/00 09/30/02 07/01/03 12/14/04 11/21/94 07/31/01 12/29/92 04/18/03 F Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 G Organic Hazardous Air Pollutants From the Synthetic Organic Chemical Manufacturing Industry for Process Vents, Storage Vessels, Transfer Operations, and Wastewater 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 H Organic Hazardous Air Pollutants for Equipment Leaks 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 I Organic Hazardous Air Pollutants for Certain Processes Subject to the Negotiated Regulation for Equipment Leaks 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 J Polyvinyl Chloride and Copolymers Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 L Coke Oven Batteries 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 M National Perchloroethylene Air Emission Standards for Dry Cleaning Facilities 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 N Chromium Emissions From Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/19/04 09/25/05 07/01/00 07/31/01 07/01/01 04/18/03 O Ethylene Oxide Emissions Standards for Sterilization Facilities 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 Q Industrial Process Cooling Towers 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 R Gasoline Distribution Facilities (Bulk Gasoline Terminals and Pipeline Breakout Stations) 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/98 04/18/03 S Pulp and Paper Industry 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 T Halogenated Solvent Cleaning 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 U Polymers and Resins Group I 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 W Epoxy Resins Production and Non-Nylon Polyamides Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 X Secondary Lead Smelting 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 Y Marine Tank Vessel Loading Operations 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 AA/BB Phosphoric Acid/Phosphate Fertilizers 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 CC Petroleum Refineries 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/81/97 07/31/01 07/01/01 04/18/03 DD Off-Site Waste and Recovery Operations 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 EE Magnetic Tape Manufacturing Operations 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 GG Aerospace Manufacturing and Rework Facilities 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 HH Oil and Natural Gas Production Facilities 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 II Shipbuilding and Ship Repair (Surface Coating) 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 JJ Wood Furniture Manufacturing Operations 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 KK Printing and Publishing Industry 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 LL Primary Aluminum Reduction Plants 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 MM Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Along Semichemical Pulp Mills 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/01 04/18/03 OO Tanks—Level 1 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 PP Containers 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 QQ Surface Impoundments 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 RR Individual Drain Systems 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 SS Closed Vent Systems, Control Devices, Recovery Devices and Routing to a Fuel Gas System or a Process 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 TT Equipment Leaks—Control Level 1 Standards 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 UU Equipment Leaks—Control Level 2 Standards 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 VV Oil-Water Separators and Organic-Water Separators 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 WW Storage Vessel (Tanks)—Control Level 2 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 XX Ethylene Manufacturing Process Units: Heat Exchange Systems and Waste Operations 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 03/01/06 12/13/06 YY Generic Maximum Achievable Control Technology Standards 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 CCC Steel Pickling—HCL Process Facilities and Hydrochloric Acid Regeneration Plants 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 DDD Mineral Wool Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 EEE Hazardous Waste Combustors 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 GGG Pharmaceutical Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 HHH Natural Gas Transmission and Storage Facilities 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 III Flexible Polyurethane Foam Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 JJJ Polymers and Resins Group IV 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 LLL Portland Cement Manufacturing Industry 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 MMM Pesticide Active Ingredient Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 NNN Wool Fiberglass Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 OOO Manufacture of Amino/Phenolic Resins 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 PPP Polyether Polyols Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 QQQ Primary Copper Smelting 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 RRR Secondary Aluminum Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 09/03/04 09/25/05 07/01/01 04/18/03 TTT Primary Lead Smelting 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 UUU Petroleum Refineries 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 VVV Publicly Owned Treatment Works 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/01 07/31/01 07/01/01 04/18/03 XXX Ferroalloys Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/00 07/31/01 07/01/01 04/18/03 AAAA Municipal Solid Waste Landfills 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 CCCC Manufacturing of Nutritional Yeast 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 07/01/01 04/18/03 DDDD Plywood and Composite Wood Products 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 EEEE Organic Liquids Distribution (Non-Gasoline) 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 FFFF Misc. Organic Chemical Manufacturing 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 02/27/06 12/13/06 GGGG Solvent Extraction for Vegetable Oil Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 09/01/04 09/25/05 07/01/01 04/18/03 HHHH Wet Formed Fiberglass Mat Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 IIII Surface Coating of Automobiles and Light-Duty Trucks 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 JJJJ Paper and Other Web Coating 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 KKKK Surface Coating of Metal Cans 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 MMMM Surface Coating of Misc. Metal Parts and Products 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 NNNN Surface Coating of Large Appliances 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 OOOO Printing, Coating and Dyeing of Fabrics and Other Textiles 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 PPPP Surface Coating of Plastic Parts and Products 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 QQQQ Surface Coating of Wood Building Products 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 RRRR Surface Coating of Metal Furniture 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 SSSS Surface Coating of Metal Coil 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 TTTT Leather Finishing Operations 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 UUUU Cellulose Products Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 VVVV Boat Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 WWWW Reinforced Plastic Composites Production 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 XXXX Rubber Tire Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 YYYY Stationary Combustion Turbines 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 ZZZZ Stationary Reciprocating Internal Combustion Engines 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 AAAAA Lime Manufacturing Plants 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 BBBBB Semiconductor Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 CCCCC Coke Ovens: Pushing, Quenching, and Battery Stacks 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 DDDDD Industrial, Commercial and Institutional Boilers and Process Heaters 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 EEEEE Iron and Steel Foundries 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 FFFFF Integrated Iron and Steel Manufacturing Facilities 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 GGGGG Site Remediation 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 HHHHH Misc. Coating Manufacturing 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 09/25/05 IIIII Mercury Cell Chlor-Alkali Plants 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 JJJJJ Brick and Structural Clay Products Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 KKKKK Clay Ceramics Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 LLLLL Asphalt Processing and Asphalt Roofing Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 MMMMM Flexible Poly-urethane Foam Fabrication Operation 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 NNNNN Hydrochloric Acid Production 10/25/06 04/04/07 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 PPPPP Engine Test Cells/Stands 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 QQQQQ Friction Materials Manufacturing Facilities 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 RRRRR Taconite Iron Ore Processing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 SSSSS Refractory Products Manufacturing 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 07/01/03 12/14/04 TTTTT Primary Magnesium Refining 02/16/06 08/23/06 07/01/05 06/15/07 06/30/05 08/30/07 Summary of This Action All sources subject to the requirements of 40 CFR parts 60, 61, and 63 are also subject to the equivalent requirements of the above-mentioned state or local agencies. This notice informs the public of delegations to the above-mentioned agencies of the above-referenced Federal regulations. Authority: This notice is issued under the authority of sections 101, 110, 112, and 301 of the CAA, as amended (42 U.S.C. 7401, 7410, 7412, and 7601). Dated: October 16, 2007. Cecilia Tapia, Acting Regional Administrator, Region 7. [FR Doc. E7-21065 Filed 10-24-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 80 [EPA-HQ-OAR-2003-0010 FRL-8487-2] RIN 2060-AK02 Regulation of Fuels and Fuel Additives: Modification of Baselines for Gasoline Produced or Imported for Use in Hawaii, Alaska and U.S. Territories AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This final rule allows refiners and importers who produce or import conventional gasoline for use in Alaska, Hawaii, the Commonwealth of Puerto Rico and the Virgin Islands the option to change the way in which they calculate emissions from such gasoline for purposes of establishing their conventional gasoline anti-dumping and toxics performance baselines and determining compliance with their baselines. Specifically, this final rule allows refiners and importers of gasoline sold for use in these areas to petition EPA to modify their baselines to replace the anti-dumping statutory baseline with the single seasonal statutory baseline that is most appropriate to the regional climate, and to use the seasonal component of the Complex Model that is most appropriate to the regional climate to calculate individual baselines and annual average emissions. The rule allows refiners and importers to petition EPA to use the summer statutory baseline and the summer Complex Model for all baseline and compliance calculations for conventional gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands, and allows refiners and importers to petition EPA to use the winter statutory baseline and the winter Complex Model for all baseline and compliance calculations for conventional gasoline produced or imported for use in Alaska. EPA is taking this action to address certain inconsistencies in the fuels regulations which may have significant unintended negative impacts on refiners and importers who produce or import gasoline for these areas. DATES: This final rule is effective on November 26, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2003-0010. All documents in the docket are listed on the *http://www.regulations.gov* web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, 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 at the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 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 and Radiation Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Marilyn Bennett, Transportation and Regional Programs Division, Office of Transportation and Air Quality (6406J), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone number:
(202)343-9624; fax number:
(202)343-2803; e-mail address: *bennett.marilyn@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? Entities potentially affected by this action include those involved with the production and importation of conventional gasoline motor fuel. Regulated categories and entities affected by this action include: Category NAICS codes a SIC codes b Examples of potentially regulated parties Industry 324110 2911 Petroleum Refiners, Importers. a North American Industry Classification System (NAICS). b Standard Industrial Classification
(SIC)system code. 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 the types of entities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria of Part 80, subparts D, E, F and J of title 40 of the Code of Federal Regulations. If you have any question regarding applicability of this action to a particular entity, consult the person in the preceding FOR FURTHER INFORMATION CONTACT section above. B. Outline of This Preamble I. General Information II. Anti-Dumping Compliance III. Mobile Source Air Toxics Rule
(MSAT)Compliance IV. Comments on the NPRM V. Final Rule VI. Environmental Effects of This Action VII. Public Participation VIII. Statutory and Executive Order Reviews IX. Statutory Provisions and Legal Authority II. Anti-Dumping Compliance A. Background 1. The Anti-Dumping Requirements Section 211(k) of the Clean Air Act (“CAA” or “Act”) requires EPA to establish standards for cleaner burning reformulated gasoline
(RFG)to be used in specified ozone nonattainment areas. The Act also requires EPA to establish requirements for non-RFG, or conventional gasoline, designed to prevent refiners from “dumping” into conventional gasoline the dirty gasoline components that are removed when RFG is produced. The requirements for conventional gasoline are called “anti-dumping” requirements. To be in compliance with these requirements, the exhaust toxics and nitrogen oxides (NO <sup>X</sup> ) emissions performance of a refinery's or importer's conventional gasoline must be no dirtier than the refinery's or importer's 1990 exhaust toxics and NO <sup>X</sup> emissions performance, on an annual average basis. The anti-dumping regulations require refiners to calculate the exhaust toxics and NO <sup>X</sup> emissions performance of gasoline using a predictive model, called the Complex Model. *See* 40 CFR 80.45. The Complex Model has a summer version and a winter version. 1 For the same fuel composition (based on those fuel parameters evaluated in the Complex Model), the winter Complex Model predicts significantly higher emissions of exhaust toxics and NO <sup>X</sup> than the summer Complex Model, on a mg/mile basis. 1 The summer Complex Model is based on data reflecting the performance of gasoline sold in the summer; i.e., gasoline with lower RVP to comply with volatility requirements at 40 CFR 80.27 and which is typical of summer climatic conditions. The winter Complex Model is a modified version of the summer model which sets the RVP at 8.7 psi and adjusts for winter climate conditions. A detailed discussion of the development of the summer and winter versions of the Complex Model is included in the Final Regulatory Impact Analysis for Reformulated Gasoline (December 13, 1993). Public Docket No. A-92-12. The anti-dumping regulations require refineries and importers of conventional gasoline to comply with an established baseline for exhaust toxics and NO <sup>X</sup> . The baseline is either an “individual baseline” or the “anti-dumping statutory baseline.” An individual baseline is based on the average performance of the gasoline that the individual refinery or importer produced or imported during the calendar year 1990. The anti-dumping statutory baseline is based on the average quality of gasoline sold throughout the United States during 1990. The anti-dumping statutory baseline applies to refineries and importers that are unable to calculate an individual baseline based on 1990 gasoline performance. If a refinery or importer has an individual baseline, gasoline production during a given annual averaging period, up to the refinery's or importer's 1990 production or import volume, must be no “dirtier” than the refinery's or importer's individual 1990 baseline for exhaust toxics and NO <sup>X</sup> . Gasoline produced or imported during the annual averaging period in excess of the refinery's or importer's 1990 gasoline production or import volume must be no dirtier than the anti-dumping statutory baseline for exhaust toxics and NO <sup>X</sup> . For refineries and importers that do not have an individual baseline, all gasoline produced or imported during the annual averaging period must meet the anti-dumping statutory baseline for exhaust toxics and NO <sup>X</sup> . To comply with the anti-dumping requirements, each refinery and importer must evaluate the overall quality of the conventional gasoline that it produces or imports during each annual averaging period and compare it to the refinery's or importer's baseline (individual 1990 baseline or anti-dumping statutory baseline, as appropriate). So long as the conventional gasoline produced or imported has overall emissions, as calculated by the Complex Model, that are no worse than the performance reflected in the refinery's or importer's baseline, the refinery or importer is in compliance with EPA's anti-dumping requirements. The anti-dumping statutory baseline includes both summertime and wintertime seasonal components. The anti-dumping statutory baseline, which approximates the average emissions of gasoline sold in the U.S. in 1990, is the volume-weighted average of the summertime and wintertime 1990 baseline gasoline emissions, as calculated using the appropriate seasonal version of the Complex Model. *See* 59 FR 7793 (February 16, 1994). 2 2 For a discussion of the methodology used in determining the anti-dumping statutory baseline, see 56 FR 31179 (July 9, 1991). 2. Calculating Individual Baselines and Annual Average Emissions A refinery's or importer's individual 1990 baseline is calculated using the summer version of the Complex Model to assess the performance of the refinery's or importer's 1990 summer gasoline and the winter version of the Complex Model to assess the performance of the refinery's or importer's 1990 winter gasoline. For purposes of these calculations, the regulations consider summer gasoline to be gasoline that is subject to EPA's volatility requirements, and winter gasoline to be gasoline that is not subject to EPA's volatility requirements. 40 CFR 80.91(e)(2)(ii)(A). Gasoline sold in Alaska and Hawaii, and in the territories of Puerto Rico and the Virgin Islands, is not subject to the volatility requirements. *See* CAA Section 211(h)(5). 3 Thus, for purposes of calculating a refinery's or importer's individual 1990 baseline emissions, none of the gasoline produced or imported for use in these areas is summer gasoline under the current regulations. As a result, all of the gasoline produced or imported for use in these areas was evaluated using the winter Complex Model for purposes of calculating individual 1990 baseline emissions. 3 The U.S. territories of Guam, the Commonwealth of the Northern Mariana Islands and American Samoa also are not subject to the volatility requirements pursuant to CAA section 211(h)(5); however, these territories have received exemptions from the anti-dumping requirements. *See* 61 FR 53854 (October 16, 1996)(Guam); 62 FR 63853 (December 3, 1997)(Northern Mariana Islands); 65 FR 71067 (November 29, 2000)(American Samoa). Gasoline produced or imported for use in Guam, the Commonwealth of the Northern Mariana Islands and American Samoa is also exempt from the Mobile Source Air Toxics requirements. *See* 40 CFR 80.820(d). As a result, gasoline produced or imported for use in these areas is not affected by today's rule. Similarly, to determine annual average emissions for compliance purposes, each year refineries and importers calculate emissions from their summer gasoline using the summer Complex Model and emissions from their winter gasoline using the winter Complex Model. For purposes of calculating annual average emissions, the regulations specify that summer gasoline is gasoline that meets the volatility requirements and winter gasoline is gasoline that does not meet the volatility requirements. 40 CFR 80.101(g)(5) and (g)(6). Because gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands is not subject to the volatility requirements, refineries and importers currently are required to evaluate all of their gasoline produced or imported for use in these areas during the annual averaging period using the winter Complex Model. 4 4 Pursuant to a rulemaking on June 9, 1999 (64 FR 30904), refiners and importers who have Puerto Rico gasoline, or Puerto Rico and Virgin Islands gasoline, in their individual baseline are allowed to petition EPA to replace the winter Complex Model with the summer Complex Model for anti-dumping baseline and compliance calculations. *See* 40 CFR 80.93(d) and 80.101(f)(4)(iii) and (g)(1)(ii)(B). As discussed above, refiners and importers must provide gasoline that complies with their individual anti-dumping baseline up to their 1990 baseline volume, after which any excess volumes must comply with the anti-dumping statutory baseline. 5 Refiners and importers without an individual baseline must comply with the anti-dumping statutory baseline for all of the conventional gasoline they produce or import during each annual averaging period. 6 This general approach to compliance applies to both refiners and importers of gasoline sold in the continental U.S. and refiners and importers of gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands. 5 For refineries and importers with individual 1990 baselines who produce gasoline volumes in excess of their 1990 volume during an averaging period, the regulations require the use of a specified “compliance baseline” equation. 40 CFR 80.101(f). In general, this equation adjusts the refinery's or importer's individual baseline to reflect the parameter values of the statutory baseline for that volume of the refinery's or importer's total annual gasoline production which is in excess of the refinery's or importer's 1990 baseline volume. This adjusted compliance baseline then is the refinery's or importer's anti-dumping standard for that annual averaging period, and the annual average emissions from all conventional gasoline produced by that refinery or importer during the annual averaging period must meet that standard. 6 Since most importers are unable to establish an individual 1990 baseline, importers generally are required to comply with the anti-dumping statutory baseline. B. Need for Action As discussed above, under the anti-dumping regulations, gasoline produced or imported in excess of a refinery's or importer's 1990 baseline volume during the annual averaging period must comply with the anti-dumping statutory baseline. All gasoline produced or imported during each annual averaging period by refineries and importers who are unable to establish an individual baseline also must comply with the anti-dumping statutory baseline. In most cases, use of the anti-dumping statutory baseline is an appropriate and necessary tool to ensure that conventional gasoline quality does not degrade in comparison to the average quality of gasoline sold in 1990. However, for gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands that is subject to the anti-dumping statutory baseline, the current anti-dumping requirements can result in an inconsistent application of EPA's seasonal Complex Models. As discussed above, the anti-dumping statutory baseline is an estimate of the average quality of all 1990 gasoline. This estimate was calculated using the summer Complex Model to evaluate “summer” gasoline and the winter Complex Model for all other gasoline. Similarly, for compliance purposes, summer conventional gasoline sold in the continental United States is evaluated using the summer Complex Model, and all other conventional gasoline is evaluated using the winter Complex Model. Thus, for conventional gasoline subject to the anti-dumping statutory baseline that is sold in the continental U.S., we expect there to be general agreement between the seasonal models used to develop the baseline and the seasonal models used to evaluate annual compliance. Application of the anti-dumping statutory baseline for such gasoline provides reasonable assurance that the quality of the conventional gasoline will not degrade relative to the average quality of gasoline in 1990. Like gasoline produced or imported for use in the continental United States, gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands in excess of the refinery's or importer's 1990 baseline volume of gasoline, and all gasoline produced or imported for use in these areas by a refiner or importer who does not have an individual baseline must comply with the anti-dumping statutory baseline. However, since the annual emissions performance of all gasoline produced or imported for use in these areas must be evaluated using only the *winter* Complex Model, for these areas there is not an agreement between the seasonal models reflected in the statutory baseline (which, as discussed above, was developed using both the summer and winter seasonal models) and the seasonal model used for calculating annual compliance. 7 Because the winter Complex Model predicts higher emissions than the summer Complex Model, in these situations, the refinery or importer is required to comply with a standard that, in effect, is more stringent than intended. That is, the refiner or importer must produce or import gasoline that is actually cleaner than the average gasoline produced or imported for use in 1990. 8 This unintended result can have a significant adverse economic effect on those refineries and importers whose baselines include gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands and who have increased the volume of gasoline that they produce or import for these areas above their 1990 baseline volumes of gasoline produced or imported for these areas, and those refineries and importers who are subject to the anti-dumping statutory baseline for all of their gasoline. 7 Gasoline produced or imported for Alaska, Hawaii, Puerto Rico and the Virgin Islands was evaluated using only the winter Complex Model for purposes of calculating a refinery's or importer's individual 1990 baseline. Since annual production or imports for these areas is also evaluated using the winter Complex Model, there is a general agreement between the seasonal model used to develop the baseline and the seasonal model used to calculate annual emissions for gasoline production or imports up to the refinery's or importer's individual 1990 baseline volume of gasoline produced or imported for these areas. 8 Because the winter Complex Model predicts higher emissions for exhaust toxics and NO <sup>X</sup> than the summer Complex Model, the average emissions of gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands during an annual averaging period, which is evaluated using only the winter Complex Model, will appear to have higher emissions than that same gasoline would appear to have if evaluated using the summer Complex Model for some of the volume of gasoline. If, for example, gasoline produced or imported for use in these areas has properties identical to the properties of anti-dumping baseline gasoline, that gasoline (as evaluated using only the winter Complex Model) will appear to have higher emissions than anti-dumping baseline gasoline, and would be deemed out of compliance with the anti-dumping statutory baseline emissions standard. C. NPRM In the NPRM, EPA proposed to correct this inconsistency in the anti-dumping regulations by allowing gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands to be compared to a baseline that is seasonally consistent with the compliance model that is used for purposes of compliance evaluation. Specifically, EPA proposed the following changes for refiners and importers who produce or import conventional gasoline for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands. First, EPA proposed to allow refiners and importers to petition EPA to change their baselines such that any gasoline produced or imported for use in these areas that is currently subject to the anti-dumping statutory baseline instead would be subject to the single seasonal component of the anti-dumping statutory baseline that agrees with the single seasonal model used for compliance. This approach alleviates the current inconsistency (as described above) by more accurately comparing the performance of the refiner's or importer's average 1990 gasoline with gasoline currently produced. Second, EPA proposed that any refiner or importer for whom a petition to change its baseline has been approved must use the single seasonal statutory baseline that is most appropriate to the regional climate for any gasoline that is not subject to an individual 1990 baseline, and use the seasonal component of the Complex Model that is most appropriate to the regional climate for calculating both 1990 individual baseline emissions and annual average emissions. Thus, refiners and importers with an approved petition that produce or import gasoline for use in Hawaii, Puerto Rico and the Virgin Islands would use the summer statutory baseline component for any gasoline not subject to an individual baseline, and use the summer Complex Model for purposes of calculating 1990 individual baseline and annual average emissions. Refiners and importers with an approved petition that produce or import gasoline for use in Alaska would use the winter statutory baseline for any gasoline not subject to an individual baseline, and use the winter Complex Model for purposes of calculating 1990 individual baseline and annual average emissions. A discussion of the rationale for these seasonal determinations is contained in the preamble to the NPRM. *See* 70 FR 646 (January 4, 2005). Under this approach, refiners and importers of gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands would need to establish a separate individual 1990 baseline for gasoline produced or imported for use in these areas using only the summer Complex Model. Gasoline produced or imported for use in these areas would be required to comply with this new individual baseline for gasoline up to the refinery's or importer's 1990 baseline volume of gasoline produced or imported for these areas. Gasoline production or imports in excess of the refinery's or importer's 1990 baseline volume would be subject to only the summer component of the statutory baseline. In the case of refiners and importers with an individual 1990 baseline which does not include any gasoline produced or imported for use in these areas, any gasoline produced or imported for use in these areas during the annual averaging period would be subject to the refinery's or importer's individual summer 1990 baseline, and the summer Complex Model would be used for all compliance calculations. Such gasoline will not be considered in determining whether a refiner or importer has produced or imported any incremental gasoline volumes above the refinery's or importer's 1990 baseline volume. Similarly, refiners and importers of gasoline produced or imported for use in Alaska would need to establish a separate individual 1990 baseline for gasoline produced or imported for use in Alaska using only the winter Complex Model. Gasoline produced or imported for use in Alaska would be required to comply with this individual baseline up to the refinery's or importer's 1990 baseline volume of Alaska gasoline. Gasoline produced or imported for use in Alaska in excess of the refinery's or importer's 1990 baseline volume of Alaska gasoline would be subject to only the winter component of the statutory baseline. Refiners and importers of gasoline produced or imported for use in Alaska would continue to use the winter Complex Model for all compliance calculations for Alaska gasoline. In the case of refineries and importers with an individual 1990 baseline that does not include any gasoline produced or imported for use in Alaska, any gasoline produced or imported for use in Alaska during the annual averaging period would be subject to the refinery's or importer's individual winter 1990 baseline, and the winter Complex Model would be used for all compliance calculations. Such gasoline will not be considered in determining whether a refiner or importer has produced or imported any incremental gasoline volumes above the refinery's or importer's 1990 baseline volume. To implement the changes described above, EPA proposed to modify the individual baseline submission provisions at § 80.93(d) to allow refineries and importers that produce or import gasoline for use in Hawaii, Puerto Rico and the Virgin Islands the option to petition EPA to recalculate the emissions of their 1990 conventional gasoline produced or imported for use in these areas using the summer Complex Model. 9 For refiners and importers who produced or imported gasoline in 1990 for use in both the continental U.S. and an affected area, this would require the calculation of a separate 1990 individual baseline for gasoline produced or imported for use in these areas, and recalculation of the refiner's or importer's current anti-dumping baseline (which would continue to be used for compliance purposes for gasoline produced or imported for other areas) to reflect the subtraction of baseline gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands. 10 As discussed above, under the current regulations, the winter Complex Model is required to be used to evaluate Alaska gasoline for purposes of establishing the individual 1990 baseline and for determining annual average compliance. Since the winter Complex Model is the appropriate seasonal model for Alaska, we did not propose to change this requirement, however, we did propose to clarify this requirement in the baseline submission provisions in § 80.93(d). Under the proposal, refiners and importers who produced or imported gasoline in 1990 for use in both the continental U.S. and Alaska would be required to calculate a separate baseline for Alaska gasoline and recalculate their current anti-dumping baseline for use with other gasoline to reflect the subtraction of 1990 baseline Alaska gasoline. EPA also proposed to revise the anti-dumping compliance baseline provisions at § 80.101(f)(3) and (f)(4)(iii). EPA proposed a new (f)(3) which establishes compliance baselines for refiners and importers with 1990 individual baselines that did not include any gasoline produced or imported for use in the affected areas. As discussed above, for these refiners and importers, any conventional gasoline produced or imported for use in the affected areas would be subject to the refiner's or importer's appropriate seasonal individual baseline. EPA proposed to revise § 80.101(f)(4)(iii) to provide equations for calculating a compliance baseline for refiners and importers with individual 1990 baselines that have approved petitions and that produce or import gasoline for use in one or more of the affected areas. 9 As discussed in footnote 4 above, in a final rule dated June 9, 1999 (64 FR 30904), EPA modified the anti-dumping regulations to allow refiners and importers who have Puerto Rico gasoline, or Puerto Rico and Virgin Islands gasoline, in their 1990 baseline to petition EPA to replace the winter Complex Model with the summer Complex Model for purposes of compliance calculations. Today's rule does not substantively change the provisions for Puerto Rico gasoline promulgated on June 9, 1999. Rather, today's rule extends the use of the summer only Complex Model to Puerto Rico gasoline produced or imported by refiners and importers that do not have individual baselines and those that have an individual baseline but do not have any Puerto Rico gasoline, or Puerto Rico and Virgin Islands gasoline, in their baselines. 10 For refineries and importers with individual baselines that produce or import gasoline for the continental U.S. as well as Alaska, Hawaii, Puerto Rico or the Virgin Islands, the approach in today's rule likely would result in a reduction of the total volume of gasoline that currently would be subject to the anti-dumping statutory baseline, since gasoline produced or imported for Alaska, Hawaii, Puerto Rico or the Virgin Islands in excess of the refinery's or importer's baseline volume of gasoline for these areas would no longer be included in the volume of gasoline subject to the anti-dumping statutory baseline. This may have an impact on the refinery's or importer's compliance baseline for the annual averaging period. The proposed modifications of the baseline submission provisions at § 80.93(d) also would allow refiners and importers currently subject to the anti-dumping statutory baseline for all of their gasoline (i.e., parties without a 1990 individual baseline) the option to petition EPA to change their baseline to only the summer component of the statutory baseline for any conventional gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands, and the winter component of the statutory baseline for any conventional gasoline produced or imported for use in Alaska. EPA proposed to modify § 80.101(f)(2) to require such refiners and importers to comply with the summer statutory baseline component for gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands, and the winter statutory baseline component for gasoline produced or imported for use in Alaska. In addition, EPA proposed to modify § 80.101(g)(1) to require refiners and importers with approved petitions under § 80.93(d) to evaluate all of their gasoline produced or imported for use in Hawaii, Puerto Rico and the Virgin Islands during the annual averaging period using only the summer Complex Model, and clarify that gasoline produced or imported for use in Alaska during the annual averaging period must be evaluated using only the winter Complex Model. A refiner or importer that produces or imports gasoline for Alaska and also for Hawaii and/or Puerto Rico and/or the Virgin Islands, and that wishes to change its baseline for all of these areas, would submit separate petitions, one for Alaska gasoline under § 80.93(d)(1) and one for Hawaii, Puerto Rico and the Virgin Islands gasoline under § 80.93(d)(2). In this case, the refiner or importer would have two separate baselines, one for gasoline produced or imported for Alaska, and one for gasoline produced or imported for Hawaii, Puerto Rico and the Virgin Islands. Such refiner or importer would also have another separate baseline for any gasoline produced or imported for the continental United States. In addition to the proposed changes to the anti-dumping regulations discussed above, EPA proposed conforming changes to §§ 80.91(e)(2)(ii)(A), and 80.101(g)(2) and (g)(6) to clarify the summer/winter distinction with regard to gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands. EPA proposed that the changes would be optional for any refiner or importer that produces or imports gasoline intended for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands, and would be limited to those refiners and importers that petition the Agency for these changes. However, EPA proposed that a refiner or importer that changes from the anti-dumping statutory baseline to a single statutory baseline component must use the appropriate seasonal statutory baseline component and must use it for all gasoline produced or imported for use in any of the areas subject to this rule. Such refiner or importer must use the appropriate seasonal Complex Model for all future calculations. For example, an importer of Puerto Rico gasoline that petitions EPA to change from the anti-dumping statutory baseline to a single seasonal statutory baseline component must change to the summer statutory baseline component and must use the summer Complex Model for all future calculations for Puerto Rico gasoline and also for any gasoline the importer imports into Hawaii and/or the Virgin Islands. Refiners and importers with approved petitions whose 1990 individual baselines include gasoline produced or imported for these areas would be required to recalculate their individual baselines, as described above, and submit the new baselines with their petition. EPA proposed to require refiners and importers that change their baseline in accordance with the proposed rule to retain documents which substantiate that gasoline complying with the new baseline, in fact, was produced or imported for use in the affected area. EPA proposed that refiners and importers of gasoline produced or imported for use in the affected areas who do not petition EPA to change their baselines would continue to be subject to their current baselines and would continue to use the Complex Model that is required for calculating emissions under the current regulations. III. Mobile Source Air Toxics Rule
(MSAT)Compliance A. Background The Mobile Source Air Toxics
(MSAT)rule published on March 29, 2001, contains provisions which require refiners and importers to determine a baseline and compliance value for air toxics. *See* 40 CFR part 80, subpart J. A refiner, for each refinery, and an importer must identify the appropriate toxics performance baseline for its conventional gasoline and its reformulated gasoline. The refiner or importer must then demonstrate compliance with each applicable baseline on an annual average basis using the Complex Model. Under the MSAT toxics performance rule, refiners, for each refinery, and importers are required to produce or import gasoline that is no dirtier than the gasoline they produced or imported during the baseline period, 1998 through 2000. Accordingly, refiners and importers are required to establish an individual toxics baseline, separately for RFG and conventional gasoline, based on the average toxics performance of their gasoline during the baseline period. Refiners and importers are also required to establish a total baseline volume based on their volume of gasoline production during the baseline period. If a refinery or importer did not have sufficient production or imports during the baseline period to calculate an average toxics performance for their gasoline, they are subject to a default toxic baseline established by EPA. Refineries or importers subject to the default baseline do not have an MSAT baseline volume. Compliance with the MSAT toxics performance requirements is determined on an annual average basis. The gasoline produced or imported during the annual averaging period can be no more polluting than the refiner's or importer's baseline level for that type of gasoline (RFG or conventional). For RFG, total toxics emissions are evaluated, and toxics performance is reported as a percent reduction from the statutory baseline. For conventional gasoline, only exhaust toxics emissions are evaluated, and toxics performance is reported in mg/mile. Any volume produced or imported in excess of a refiner's or importer's individual baseline volume can be no more polluting than the RFG toxics standard, or the refiner's or importer's conventional gasoline anti-dumping toxics baseline level, as applicable. B. NPRM EPA proposed to modify the MSAT toxics performance requirements in a manner that is consistent with the changes that were proposed for the conventional gasoline anti-dumping program. The changes to the MSAT requirements are necessary because, generally, the MSAT toxics performance provisions applicable to conventional gasoline are of the same form as the anti-dumping provisions, and because such changes are needed to maintain agreement between methods used to establish baselines and those used to evaluate gasoline performance for purposes of compliance. Thus, we proposed to require a refiner or importer that submits a petition under the anti-dumping program as described in the NPRM to also petition for a separate or modified MSAT baseline applicable to gasoline produced or imported into Alaska and/or Hawaii, Puerto Rico, and the Virgin Islands. EPA proposed the following MSAT baseline and compliance determinations for refiners and importers who submit petitions under this rule for gasoline produced or imported for use in Alaska and/or Hawaii, Puerto Rico and the Virgin Islands. Affected parties who did not produce or import any gasoline during the baseline period (1998-2000), may petition EPA to have the appropriate seasonal MSAT conventional gasoline default baseline for gasoline produced or imported for use in Alaska and/or Hawaii, Puerto Rico, and the Virgin Islands, and use the appropriate seasonal version of the Complex Model for evaluating gasoline produced or imported for these areas. Such parties would be subject to the annual MSAT conventional gasoline default baseline for all other gasoline produced or imported (i.e., gasoline for use in the continental U.S.) Affected parties who produced gasoline during the baseline period, but who did not produce or import gasoline for Alaska and/or Hawaii, Puerto Rico, or the Virgin Islands during the baseline period, may petition EPA to have the appropriate individual refinery or importer conventional gasoline seasonal MSAT baseline for these areas, and evaluate any gasoline produced or imported for use in these areas using the appropriate seasonal Complex Model. Such gasoline will not be considered in determining whether a refiner or importer has produced or imported any incremental gasoline volumes above the refiner's or importer's MSAT baseline volume. Affected parties who only produced or imported gasoline for Alaska and/or Hawaii, Puerto Rico, or the Virgin Islands during the baseline period may petition EPA for a revised MSAT baseline using the appropriate seasonal version of the Complex Model, and use the appropriate seasonal version of the Complex Model for all compliance determinations for such gasoline. Gasoline produced or imported for use in these areas up to the refiner's or importer's MSAT baseline volume would be subject to the refiner's or importer's seasonally appropriate MSAT baseline. Any incremental volumes above the baseline volume would be subject to the refiner's or importer's appropriate seasonal anti-dumping baseline. Any gasoline produced or imported for use in the continental U.S. would be subject to the annual MSAT conventional gasoline default baseline. Affected parties who produced or imported gasoline during the baseline period for use in the continental U.S. *and* for use in Alaska and/or Hawaii, Puerto Rico, or the Virgin Islands may petition EPA to have a separate, seasonally appropriate MSAT baseline and a separate MSAT baseline volume for gasoline produced or imported for use in Alaska and/or Hawaii, Puerto Rico, and the Virgin Islands. Such refiners or importers must then use the appropriate seasonal component of the Complex Model to evaluate gasoline sold in these areas. Additionally, such refiners must establish a separate annual baseline and baseline volume for all other gasoline, which must be evaluated using the annual Complex Model. Under the current regulations, refiners and importers who produce or import gasoline for use in Alaska, and/or Hawaii, Puerto Rico or the Virgin Islands who are subject to the MSAT default baseline are, in fact, required to produce or import gasoline that is cleaner than the national annual average during the MSAT baseline period. This is because the MSAT default baseline was determined using both seasonal components of the Complex Model, while parties in the affected areas are required to evaluate their gasoline using only the winter Complex Model (which, as discussed above, gives higher emission values for the same gasoline than if the gasoline were evaluated using both seasonal components of the model). EPA proposed to correct this inconsistency while continuing to require such parties to produce or import gasoline that is no more polluting than the average gasoline during the MSAT baseline period, as required under the MSAT rule. Similarly, parties with individual MSAT baselines will continue to meet the requirements under the MSAT rule for gasoline produced or imported up to their baseline volume, without being required to produce or import gasoline that is cleaner than their average gasoline during the MSAT baseline period. For parties with an individual MSAT baseline who produce or import gasoline in excess of their MSAT baseline volume, the MSAT regulations require the excess volume to meet the refiner's or importer's standard under the anti-dumping rule (i.e., excess volume may not be more polluting than the refiner's or importer's individual anti-dumping baseline level). Therefore, EPA proposed that gasoline produced or imported in excess of the MSAT baseline volume be subject to the anti-dumping baseline that is established for purposes of anti-dumping compliance under today's rule. To implement the changes described above, EPA proposed appropriate modifications to §§ 80.825, 80.850, 80.855, 80.910 and 80.915 of subpart J. IV. Comments on the NPRM Comments on the NPRM were generally very favorable. One commenter suggested that we clarify the regulations regarding the effective date for petitions granted under the rule, and that we clarify whether there is a deadline for submitting a petition. In the NPRM we proposed that the baseline and compliance method changes in today's rule would become effective beginning with the annual averaging period in which a refiner's or importer's petition is granted. As a result, a petition may be submitted at any time during an annual averaging period. Once a petition is granted, the new method for determining compliance with the anti-dumping and air toxics requirements will apply beginning with the annual averaging period in which the petition was granted, and will continue to apply in each annual averaging period thereafter. As discussed in the NPRM, once a petition has been granted, the refinery or importer will not be able to revert back to its original baseline. The new baseline will apply to the refinery regardless of ownership; i.e., if a refinery obtains a new baseline under today's rule, the new baseline will apply to the refinery even if the refinery is subsequently sold to another refiner. We have added language in the final rule to clarify when a petition may be submitted and the effective date of an approved petition. Another commenter believes that the default toxics baselines in § 80.855(b)(2) (i.e., the seasonal default toxics baselines applicable to parties with approved petitions under § 80.93(d)) should apply only to refiners that submit petitions under § 80.93(d) after this rule is finalized. A refiner who previously received approval to use the summer Complex Model under § 80.93(d), and who was unable to establish an individual toxics baseline under the MSAT rule, currently is subject to the conventional gasoline MSAT default toxics baseline. The rule as proposed would apply a more stringent default toxics baseline (i.e., seasonal default baseline) to such a refiner, which, the commenter believes, would impose a burden on the refiner that was not anticipated at the time the refiner applied for use of the summer Complex Model under § 80.93(d). The default baselines in § 80.855(b)(2) are the average seasonal toxics levels during the MSAT baseline years calculated using the appropriate seasonal Complex Model. As discussed above, where a refiner uses a seasonal Complex Model for annual average compliance calculations, we believe it is appropriate for the refiner to also be subject to the appropriate seasonal default baseline. A refiner with a previously approved baseline change under § 80.93(d) (which as noted above applies to refiners who produce gasoline for use in Puerto Rico) uses the summer Complex Model for calculating its annual average toxics emissions. Therefore, we believe it is appropriate for the summer MSAT default baseline in § 80.855(b)(2)(ii) to apply to such a refiner. However, since refiners with previously approved petitions under § 80.93(d) have been using the conventional gasoline default toxics baseline under the current regulations, we believe that the summer default baseline in § 80.855(b)(2)(ii) should only apply to such refiners prospectively, and that such refiners should be afforded the opportunity to withdraw their petitions under § 80.93(d). As a result, we have included provisions in the final rule which specify that the appropriate seasonal default toxics baseline would apply to any refiner with a previously approved petition under § 80.93(d) beginning with the 2008 annual averaging period, and that any such refiner may petition EPA to withdraw approval of its petition under § 80.93(d) beginning with the 2008 annual averaging period. Although these provisions were not included in the NPRM, we believe they are necessary in order to clarify the application of the provisions in § 80.855(b)(2) with regard to parties with previously approved petitions, and are a logical outgrowth of the proposal to apply the seasonal default toxics baselines in § 80.855(b)(2) to any refiner with a previously approved petition under § 80.93(d). Another commenter suggested that we clarify that a refiner or importer that produces or imports gasoline for Alaska and also for Hawaii, and/or Puerto Rico and/or the Virgin Islands would have two separate baselines and baseline volumes under today's rule, one for gasoline produced or imported for Alaska, and one for gasoline produced or imported for Hawaii, Puerto Rico and the Virgin Islands. We have added language to clarify this in today's final rule. One commenter suggested that we clarify the requirements for new refineries or importers in the final rule. As discussed above, the rule provides an alternative to the existing regulatory baseline and compliance requirements for gasoline produced or imported for use in Alaska, Hawaii, Puerto Rico and the Virgin Islands. Any new refinery or importer (which would not have an individual anti-dumping or MSAT baseline) would be subject to the anti-dumping statutory and MSAT default baselines, unless the refiner or importer petitions EPA under the provisions of today's rule to have the appropriate seasonal anti-dumping and MSAT baselines and seasonal Complex Model apply. We have added a provision to clarify the regulations in this regard. One commenter requested that we make certain references to § 80.93(d) in the regulations more specific with regard to the subparagraphs being referenced. We have made these changes in today's final rule. V. Final Rule With the exceptions noted above and minor editorial changes, today's rule finalizes the provisions in the NPRM as proposed. Although the current anti-dumping and MSAT toxics performance requirements will be superseded by more stringent mobile source emissions controls by 2011, we believe it is appropriate to provide this relief to the affected parties at this time in order to address the inequity caused by the inconsistencies in the current regulations and to avoid any gasoline supply problems that may result from this inequity. VI. Environmental Effects of This Action As discussed in the NPRM, we believe that allowing refiners and importers to change their baselines in accordance with today's rule will not undermine the environmental goals of the anti-dumping program (i.e., to ensure that conventional gasoline will be no dirtier than 1990 gasoline), or the MSAT toxics performance rule (i.e., to ensure that gasoline, RFG and conventional, will be no dirtier than gasoline during the MSAT baseline years.) The changes in today's rule will not result in gasoline with exhaust toxics or NO <sup>X</sup> emissions that are greater than conventional gasoline in these areas, or nationwide, compared to 1990 levels, or toxics emissions that are greater than gasoline in these areas, or nationwide, compared to the MSAT baseline years. Today's rule provides an alternative compliance method for refiners and importers who, under the current regulations, are required to produce or import gasoline for use in the affected areas that is actually cleaner than that required under the anti-dumping and MSAT programs. As a result, even if all of these affected parties choose the new compliance method, the goals of the anti-dumping and MSAT programs would be met. To the extent that parties choose to retain their current compliance method, there would continue to be an added environmental benefit above and beyond that specifically required to meet the goals of these programs. VII. Public Participation In the NPRM, we requested comment on the need to take this action and the proposed changes to the regulations. We have reviewed and considered all comments. The comments and EPA's responses to the comments are discussed above. VIII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order
(EO)12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget
(OMB)under the *Paperwork Reduction Act* , 44 U.S.C. 3501 *et seq.* The information collection requirements are not enforceable until OMB approves them. This final rule addresses certain adverse impacts on refiners and importers of conventional gasoline under the current fuels regulations, and provides refiners and importers with additional flexibility to comply with the regulations. The flexibility afforded under this rule is optional. Modest information collection requirements in the form of a one-time only petition to EPA and minimal recordkeeping requirements are required of those refiners who wish to avail themselves of the flexibility provided in this rule. The estimated hour burden for this rule is 20 hours per petition. The estimated number of petitions is 10. The estimated cost burden for the petition is $70 per hour. The total estimated cost for each respondent is $1,400. The total estimated cost for all respondents is $14,000. We do not anticipate that any burdens will be associated with the additional recordkeeping requirements, since the information required to be retained normally is included on business documents retained by refiners and importers. 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. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the **Federal Register** to display the OMB control number for the approved information collection requirements contained in this final rule. 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 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, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant *adverse* economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. Sections 603 and 604. Thus, an agency may conclude that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. This final rule provides provisions intended to address existing adverse economic impacts of the current rule on certain refiners and importers while continuing to promote successful implementation of the requirements for conventional gasoline. Specifically, this rule provides all affected refiners and importers, including small refiners and importers, options for evaluating the emissions of conventional gasoline, which will have the effect of relieving regulatory burden. We have therefore concluded that today's final rule will relieve regulatory burden for all affected small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's final rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year that will result in expenditures of $100 million or more. This rule affects gasoline refiners and importers of conventional gasoline by providing optional provisions for evaluating the emissions of conventional gasoline in certain situations. This rule will have the effect of reducing the burden of the conventional gasoline regulations on these regulated parties. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. 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” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule provides options for evaluating the emissions of conventional gasoline. The requirements of the rule will be enforced by the federal government at the national level. Thus, Executive Order 13132 does not apply to this 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 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications. This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Today's action finalizes certain modifications to the federal requirements for conventional gasoline, and does not impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, 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. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final rule is not subject to Executive Order 13045 because it is not economically significant and does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Acts That Significantly Affect Energy Supply, Distribution, or Use This final 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 As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. 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(a). This rule will be effective on November 26, 2007. K. Clean Air Act Section 307(d) This rule is subject to Section 307(d) of the CAA. Section 307(d)(7)(B) provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to the EPA should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Director of the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave., NW., Washington, DC 20004. IX. Statutory Provisions and Legal Authority The statutory authority for the actions finalized today comes from section 211(c) and
(k)of the CAA (42 U.S.C. 7545(c) and (k)), which allows us to regulate fuels that either contribute to air pollution which endangers public health or welfare or which impairs emission control equipment. Additional support for the procedural aspects of the fuels controls in today's final rule, including the petition requirement, comes from sections 114(a) and 301(a) of the CAA (42 U.S.C. 7414(a) and 7601(a)). Today's action is a final rulemaking under section 307(d) of the CAA (42 U.S.C. 7607(d)). List of Subjects in 40 CFR Part 80 Environmental protection, Air pollution control, Fuel additives, Gasoline, Motor vehicle pollution, Reporting and recordkeeping requirements. Dated: October 18, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, part 80 of title 40 Chapter I of the Code of Federal Regulations is amended as follows: PART 80—REGULATION OF FUEL AND FUEL ADDITIVES 1. The authority citation for part 80 continues to read as follows: Authority: 42 U.S.C. 7414, 7545, and 7601(a). Subpart E—[Amended] 2. Section 80.91 is amended by revising paragraph (e)(2)(ii)(A) to read as follows: § 80.91 Individual baseline determination.
(e)* * *
(2)* * *
(ii)* * * (A)( *1* ) All gasoline produced to meet EPA's 1990 summertime volatility requirements shall be considered summer gasoline. All other gasoline shall be considered winter gasoline, except: ( *2* ) Gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands that is subject to an approved petition under § 80.93(d)(2) shall be considered summer gasoline for purposes of paragraph
(e)of this section. 3. Section 80.93 is amended by revising paragraph
(d)to read as follows: § 80.93 Individual baseline submission and approval.
(d)*Requirements for a petition applicable to gasoline produced or imported for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands.* (1)(i) Any refiner for any refinery or importer with gasoline produced or imported for use in Alaska in its individual 1990 baseline may petition EPA to establish a separate 1990 baseline for gasoline produced or imported for use in Alaska using the winter Complex Model, and to use the winter statutory baseline values under § 80.91(c)(5) for any gasoline produced or imported for use in Alaska which is in excess of the refinery's or importer's 1990 volume of gasoline produced or imported for use in Alaska for purposes of determining the refinery's or importer's compliance baseline under § 80.101(f)(4).
(ii)Any refiner for any refinery or importer with an individual 1990 baseline which did not include any gasoline produced or imported for use in Alaska in 1990 may petition EPA to establish the refinery's or importer's winter baseline values as the compliance baseline under § 80.101(f)(3) for gasoline which the refiner or importer produces or imports for use in Alaska.
(iii)Any refiner for any refinery or importer subject only to the anti-dumping statutory baseline under § 80.91(c)(5) may petition EPA to have the winter statutory baseline values under § 80.91(c)(5) apply instead for purposes of determining the refinery's or importer's compliance baseline under § 80.101(f)(2) for gasoline which the refiner or importer produces or imports for use in Alaska. (2)(i) Any refiner for any refinery or importer with gasoline produced or imported for use in Hawaii, and/or the Commonwealth of Puerto Rico, and/or the Virgin Islands in its individual 1990 baseline may petition EPA to establish a separate 1990 baseline for gasoline produced or imported for use in these areas using the summer Complex Model, and to use the summer statutory baseline values under § 80.91(c)(5) for any gasoline produced or imported for use in these areas in excess of the refinery's or importer's 1990 volume of gasoline produced or imported for use in these areas, for purposes of determining the refinery's or importer's compliance baseline under § 80.101(f)(4).
(ii)Any refiner for any refinery or importer with an individual 1990 baseline which did not include any gasoline produced or imported for use in Hawaii, and/or the Commonwealth of Puerto Rico, and/or the Virgin Islands in 1990 may petition EPA to establish the refinery's or importer's summer baseline values as the compliance baseline under § 80.101(f)(3) for gasoline which the refiner or importer produces or imports for use in these areas.
(iii)Any refiner or importer subject only to the anti-dumping statutory baseline under § 80.91(c)(5) may petition EPA to have the summer statutory baseline values under § 80.91(c)(5) apply instead for purposes of determining the refinery's or importer's compliance baseline under § 80.101(f)(2) for gasoline which the refiner or importer produces or imports for use in Hawaii, and/or the Commonwealth of Puerto Rico, and/or the Virgin Islands.
(iv)Any petition submitted in accordance with paragraphs (d)(2)(i), (d)(2)(ii) or (d)(2)(iii) of this section shall apply to gasoline produced or imported for use in all of the areas specified in the operative paragraphs.
(3)A petition under paragraphs (d)(1) or (d)(2) of this section must include the following:
(i)Identification of the refiner and refinery or importer;
(ii)EPA company and facility registration numbers issued under § 80.76;
(iii)Identification of a contact person; and
(iv)For petitions submitted under paragraphs (d)(1)(i) and (d)(2)(i) of this section:
(A)Revised 1990 individual baseline determination wherein the baseline for gasoline produced or imported for use in Alaska has been evaluated using the winter Complex Model, or gasoline produced or imported for use in Hawaii, and/or the Commonwealth of Puerto Rico, and/or the Virgin Islands has been evaluated using the summer Complex Model, as applicable, with the calculations clearly and fully described and displayed; and
(B)Revised 1990 individual baseline determination for gasoline in the refinery's or importer's original individual 1990 baseline which was not produced or imported for use in Alaska, and/or Hawaii, and/or the Commonwealth of Puerto Rico, and/or the Virgin Islands, as applicable, with the calculations clearly and fully described and displayed.
(C)Baseline auditor agreement with the revised baseline values.
(4)For U.S. Postal delivery, the petition shall be sent to: Attn: RFG Program, Mailstop 6406J, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. For commercial delivery: Attn: RFG Program, 6th Floor (202-343-9038), U.S. Environmental Protection Agency, 1310 L St., NW., Washington, DC 20005.
(5)EPA reserves the right to request additional information. If such information is not forthcoming in a timely manner, the petition will not be approved.
(6)A petition under this section may be submitted at any time during the annual averaging period. The baseline and compliance methods approved in a petition submitted under paragraph
(d)of this section shall apply beginning with the annual averaging period in which the petition was approved and shall continue to apply in each annual averaging period thereafter. Once a petition has been approved under this section, the refiner or importer may not revert back to its original baseline.
(7)A refiner for any refinery or importer with an approved petition under paragraph (d)(1) of this section and an approved petition under paragraph (d)(2) of this section will be subject to a separate baseline and baseline volume for its gasoline produced or imported for use in Alaska, and a separate baseline and baseline volume for its gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico and the Virgin Islands. (8)(i) Any refiner for any refinery or importer must have an approved petition under paragraph (d)(1) of this section in order to use the seasonal baseline and seasonal Complex Model, as provided in paragraph (d)(1) of this section, for gasoline produced or imported for use in Alaska.
(ii)Any refiner for any refinery or importer must have an approved petition under paragraph (d)(2) of this section in order to use the seasonal baseline and seasonal Complex Model, as provided in paragraph (d)(2) of this section, for gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands.
(iii)Any new refiner or importer without an individual anti-dumping baseline shall be subject to the annual average anti-dumping statutory baseline under § 80.91(c)(5) unless the refiner or importer petitions for and receives approval of use of a seasonal baseline and seasonal Complex Model under this section. (9)(i) The provisions of this paragraph
(d)shall apply to any refiner, for any refinery, or importer that received approval of a petition under this paragraph
(d)prior to November 26, 2007 beginning with the 2008 annual averaging period.
(ii)Any refiner, for any refinery, or importer that received approval of a petition under paragraph
(d)of this section prior to November 26, 2007 may petition EPA to withdraw such approval. Such petition must be submitted to EPA by December 31, 2007. A withdrawal of approval under this paragraph is effective beginning with the 2008 annual averaging period and shall remain in effect in each annual averaging period thereafter.
(iii)A refiner or importer with an approved withdrawal under paragraph (d)(9)(i) of this section will be subject to the baseline which was in effect prior to the effective date of the refiner's or importer's approved petition under this paragraph (d). Once a refiner or importer receives approval of a withdrawal of a petition under paragraph (d)(9)(i) of this section the refiner or importer is ineligible to receive approval of a change in baseline under this section. 4. Section 80.101 is amended by: a. Revising paragraph (f)(2); b. Adding paragraph (f)(3); c. Revising paragraph (f)(4)(iii); d. Revising paragraph (g)(1)(ii)(B), and adding paragraph (g)(1)(ii)(C); e. Revising paragraph (g)(2) introductory text, (g)(2)(i), and (g)(6), to read as follows: § 80.101 Standards applicable to refiners and importers.
(f)* * * (2)(i) In the case of any refiner for any refinery or importer for whom the anti-dumping statutory baseline applies under § 80.91, the anti-dumping statutory baseline for each parameter or emissions performance shall be the compliance baseline for that refinery or importer.
(ii)In the case of any refiner for any refinery or importer that has received approval of a petition submitted under § 80.93(d)(1)(iii), the compliance baseline for each emissions performance for that refinery or importer for gasoline produced or imported for use in Alaska shall be the winter statutory baseline value under § 80.45(b)(3), Table 5.
(iii)In the case of any refiner for any refinery or importer that has received approval of a petition submitted under § 80.93(d)(2)(iii), the compliance baseline for each emissions performance for that refinery or importer for gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and/or the Virgin Islands shall be:
(A)The summer statutory baseline value under § 80.45(b)(3), Table 5 for NO <sup>X</sup> .
(B)The summer statutory baseline value under § 80.45(b)(3), Table 5 for Toxics less the corresponding value for Benzene under § 80.45(b)(3), Table 4. (3)(i) In the case of any refiner for any refinery or importer that has received approval of a petition submitted under § 80.93(d)(1)(ii), the compliance baseline for each emissions performance for that refinery or importer for gasoline produced or imported for use in Alaska shall be the refinery's or importer's winter baseline value determined under § 80.91.
(ii)In the case of any refiner for any refinery or importer that has received approval of a petition submitted under § 80.93(d)(2)(ii), the compliance baseline for each emissions performance for that refinery or importer for gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and/or the Virgin Islands shall be the refinery's or importer's summer baseline value determined under § 80.91.
(4)* * *
(iii)Any refiner or importer with an individual baseline that has received approval of a petition submitted under § 80.93(d) and has produced or imported gasoline for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, or the Virgin Islands must calculate the compliance baseline for each parameter or emissions performance as follows: ER25OC07.000 If V <sup>j</sup> ≥ V <sup>1990j</sup> > 0: ER25OC07.001 If V <sup>j</sup> < V <sup>1990j</sup> or V <sup>1990j</sup> = 0: CB <sup>i,j</sup> = B <sup>i,j</sup> Where: CB <sup>i</sup> = The compliance baseline for parameter or emissions performance i CB <sup>i,j</sup> = The compliance baseline for parameter or emissions performance i applicable to the conventional gasoline in production volume V <sup>j</sup> j is a subscript identifying a portion of gasoline and RBOB produced or imported as follows: j=1: Conventional gasoline supplied to Hawaii, the Commonwealth of Puerto Rico and the Virgin Islands, if gasoline supplied to these areas is covered by a petition for a separate baseline. j=2: Conventional gasoline supplied to Alaska, if gasoline supplied to this area is covered by a petition for a separate baseline. j=3: Conventional gasoline, reformulated gasoline, RBOB and California gasoline produced or imported by a refiner or importer, and not included in portions 1 or 2. V <sup>j</sup> = The averaging period volume for portion j. V <sup>r</sup> = The volume of reformulated gasoline, RBOB and California gasoline included in V <sup>3</sup> . B <sup>i,j</sup> = The refiner/importer's individual baseline for parameter or emissions performance i applicable to the conventional gasoline in portion j, or the applicable statutory baseline if assigned in lieu of an individual baseline. DB <sup>i,j</sup> = The statutory baseline for parameter or emissions performance i applicable to the conventional gasoline in portion j (i.e., the annual or seasonal statutory baseline). V <sup>1990j</sup> = The 1990 baseline volume applicable to portion j.
(g)* * *
(1)* * *
(ii)* * *
(B)Any refiner for any refinery or importer that has received EPA approval of a petition submitted in accordance with the provisions of § 80.93(d)(1) must use the applicable winter complex model under § 80.45, using an RVP of 8.7 psi, to evaluate its averaging period gasoline produced or imported for use in Alaska.
(C)Any refiner for any refinery or importer that has received EPA approval of a petition submitted in accordance with the provisions of § 80.93(d)(2) must use the applicable summer complex model under § 80.45 to evaluate its averaging period gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands.
(2)In the case of any refiner or importer subject to the anti-dumping statutory baseline, the summer statutory baseline and/or the winter statutory baseline, the refiner or importer shall determine compliance using the following methodology:
(i)Calculate the compliance total for the averaging period for sulfur, T-90, olefins, exhaust benzene emissions, exhaust toxics and exhaust NO <sup>X</sup> emissions, as applicable, based upon the anti-dumping statutory baseline value, the summer statutory baseline value, or the winter statutory baseline value, as applicable, for that parameter using the formula specified at 80.67. (6)(i) The emissions performance of gasoline that has an RVP greater than the RVP required under § 80.27 (“winter gasoline”) shall be determined using the applicable winter complex model under § 80.45, using an RVP of 8.7 psi for compliance calculation purposes under this subpart E.
(ii)Except as provided in paragraph (g)(1)(ii) of this section, the emissions performance of gasoline produced or imported for use in areas that are not subject to the requirements of § 80.27 shall be determined using the applicable winter complex model under § 80.45, using an RVP of 8.7 psi for compliance calculation purposes under this subpart E. 5. Section 80.104 is amended by adding paragraph (a)(2)(xiii) to read as follows: § 80.104 Recordkeeping requirements.
(a)* * *
(2)* * *
(xiii)In the case of gasoline subject to an approved petition under § 80.93(d), documents that reflect that the gasoline was produced or imported for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands, as applicable. Subpart J—[Amended] 6. Section 80.825 is amended by revising paragraph (c)(2) to read as follows: § 80.825 How is the refinery or importer annual average toxics value determined?
(c)* * *
(i)The toxics value, T <sup>i</sup> , of each batch of conventional gasoline, and the annual average toxics value, T <sup>a</sup> , for conventional gasoline under this subpart are in milligrams per mile (mg/mile) and volumes are in gallons.
(ii)Any refiner for any refinery or importer that has received EPA approval of a petition submitted in accordance with the provisions of § 80.93(d) shall determine the toxics value, T <sup>i</sup> , of each batch of conventional gasoline produced or imported for use in Alaska, and/or Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands in accordance with § 80.101(g)(1)(ii). 7. Section 80.850 is amended by revising paragraph
(c)and adding paragraph
(d)to read as follows: § 80.850 How is the compliance baseline determined?
(c)Any refiner for any refinery or importer with an approved anti-dumping baseline under § 80.93(d) for gasoline produced or imported for use in Alaska, and/or Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands, and for which a conventional gasoline baseline toxics value for such gasoline can be determined according to § 80.915(b)(1), shall determine its compliance baseline applicable to such gasoline according to the following equation: ER25OC07.002 Where: T <sup>CBase</sup> = Compliance baseline toxics value. T <sup>Base</sup> = Baseline toxics value for the refinery or importer, calculated according to § 80.915(b)(1) for all gasoline except gasoline produced or imported for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands. V <sup>Base</sup> = Baseline volume for the refinery or importer, calculated according to § 80.915(b)(2) for all gasoline except gasoline produced or imported for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands. T <sup>Exist</sup> = The refinery's or importer's anti-dumping compliance baseline value for exhaust toxics, in mg/mi, per § 80.101(f) for all gasoline except gasoline produced or imported for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands. V <sup>Inc</sup> = Volume of gasoline produced or imported, excluding the volume of gasoline produced or imported for use in Alaska, Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands during the averaging period, which is in excess of V <sup>Base</sup> . T <sup>SBase</sup> = Baseline toxics value for the refinery or importer, calculated according to § 80.915(e)(2)(i) for gasoline produce or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands. V <sup>SBase</sup> = Baseline volume for the refinery or importer, calculated according to § 80.915(e)(2)(ii) for gasoline produce or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands. T <sup>SExist</sup> = The refinery's or importer's anti-dumping compliance baseline value for exhaust toxics, in mg/mi, per § 80.101(f) for gasoline produce or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands. V <sup>SInc</sup> = Volume of gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands during the averaging period which is in excess of V <sup>SBase</sup> . T <sup>WBase</sup> = Baseline toxics value for the refinery or importer, calculated according to § 80.915(e)(1)(i) for gasoline produce or imported for use in Alaska. V <sup>WBase</sup> = Baseline volume for the refinery or importer, calculated according to § 80.915(e)(1)(ii) for gasoline produce or imported for use in Alaska. T <sup>WExist</sup> = The refinery's or importer's anti-dumping compliance baseline value for exhaust toxics, in mg/mi, per § 80.101(f) for gasoline produce or imported for use in Alaska. V <sup>WInc</sup> = Volume of gasoline produced or imported for use in Alaska during the averaging period which is in excess of V <sup>WBase</sup> .
(d)If the refinery or importer produced less gasoline during the compliance period than its applicable baseline volume, the value of V <sup>inc</sup> , V <sup>SInc</sup> or V <sup>WInc</sup> , as applicable, will be zero. 8. Section 80.855 is amended by adding paragraph (b)(2) to read as follows: § 80.855 What is the compliance baseline for refineries or importers with insufficient data?
(b)* * * (2)(i) A refinery or importer that has an approved anti-dumping baseline under § 80.93(d) for gasoline produced or imported for use in Alaska, and that cannot determine an applicable toxics value according to paragraph (b)(1) of this section, shall have the following as its compliance baseline for the purposes of this subpart: 110.72 mg/mile.
(ii)A refinery or importer that has an approved anti-dumping baseline under § 80.93(d) for gasoline produce or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands and that cannot determine an applicable toxics value according to paragraph (b)(1) of this section, shall have the following as its compliance baseline for the purposes of this subpart: 77.82 mg/mile.
(iii)The provisions of this paragraph (b)(2) shall apply to any refiner, for any refinery, or importer that received approval of a petition under § 80.93(d) prior to November 26, 2007 beginning with the 2008 annual averaging period.
(iv)Any new refiner or importer without a toxics baseline that produces or imports gasoline for use in Alaska, Hawaii, the Commonwealth of Puerto Rico or the Virgin Islands shall be subject to the applicable toxics default baseline under paragraph (b)(1) of this section unless the refiner or importer petitions for and receives approval of use of a seasonal baseline and seasonal Complex Model under § 80.93(d). 9. Section 80.910 is amended by revising paragraph
(a)to read as follows: § 80.910 How does a refiner or importer apply for a toxics baseline? (a)(1) A refiner or importer shall submit an application to EPA which includes the information required under paragraph
(c)of this section no later than June 30, 2001, or 3 months prior to the first introduction of gasoline into commerce from the refinery or by the importer, whichever is later.
(2)A refiner or importer shall submit an application to EPA for the purposes of this subpart simultaneously with the submission of a petition under § 80.93(d). 10. Section 80.915 is amended by redesignating paragraphs
(e)through
(h)as paragraphs
(f)through
(i)and adding new paragraph
(e)to read as follows: § 80.915 How are the baseline toxics value and baseline toxics volume determined? (e)(1)(i) A refiner or importer which is approved for a petition submitted under § 80.910(a)(2) for gasoline produced or imported for use in Alaska shall calculate the applicable toxics baseline value using the following equation: ER25OC07.003 Where: T <sup>WBase</sup> = Baseline toxics value for gasoline produced or imported for use in Alaska. V <sup>i</sup> = Volume of gasoline batch i produced or imported for use in Alaska between January 1, 1998 and December 31, 2000, inclusive. T <sup>i</sup> = Toxics value of gasoline batch i produced or imported for use in Alaska between January 1, 1998 and December 31, 2000, inclusive. i = Individual batch of gasoline produced or imported for use in Alaska between January 1, 1998 and December 31, 2000, inclusive. n = Total number of batches of gasoline produced or imported for use in Alaska between January 1, 1998 and December 31, 2000, inclusive. M = Compliance margin.
(ii)The baseline volume associated with the baseline value calculated in paragraph (e)(1)(i) of this section shall be calculated using the methodology in paragraph (b)(2) of this section for the gasoline described in paragraph (e)(1)(i) of this section. (2)(i) A refiner or importer which is approved for a petition submitted under § 80.910(a)(2) for gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands shall calculate the applicable toxics baseline value using the following equation: ER25OC07.004 Where: T <sup>SBase</sup> = Baseline toxics value for gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands. V <sup>i</sup> = Volume of gasoline batch i produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands between January 1, 1998 and December 31, 2000, inclusive. T <sup>i</sup> = Toxics value of gasoline batch i produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands between January 1, 1998 and December 31, 2000, inclusive. <sup>i</sup> = Individual batch of gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands between January 1, 1998 and December 31, 2000, inclusive. n = Total number of batches of gasoline produced or imported for use in Hawaii, the Commonwealth of Puerto Rico, and the Virgin Islands between January 1, 1998 and December 31, 2000, inclusive. M = Compliance margin.
(ii)The baseline volume associated with the baseline value calculated in paragraph (e)(2)(i) of this section shall be calculated using the methodology in paragraph (b)(2) of this section for the gasoline described in paragraph (e)(2)(i) of this section. [FR Doc. E7-21061 Filed 10-24-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 229 [Docket No. 071018614-7615-01] RIN 0648-XD56 Taking of Marine Mammals Incidental to Commercial Fishing Operations; Atlantic Large Whale Take Reduction Plan AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule. SUMMARY: The Assistant Administrator for Fisheries (AA), NOAA, announces temporary restrictions consistent with the requirements of the Atlantic Large Whale Take Reduction Plan's (ALWTRP) implementing regulations. These regulations apply to lobster trap/pot and anchored gillnet fishermen in an area totaling approximately 2,305 nm 2 (7,905 km 2 ), south of Portland, Maine, for 15 days. The purpose of this action is to provide protection to an aggregation of northern right whales (right whales). DATES: Effective beginning at 0001 hours October 27, 2007, through 2400 hours November 10, 2007. ADDRESSES: Copies of the proposed and final Dynamic Area Management
(DAM)rules, Environmental Assessments (EAs), Atlantic Large Whale Take Reduction Team (ALWTRT) meeting summaries, and progress reports on implementation of the ALWTRP may also be obtained by writing Diane Borggaard, NMFS/Northeast Region, One Blackburn Drive, Gloucester, MA 01930. FOR FURTHER INFORMATION CONTACT: Diane Borggaard, NMFS/Northeast Region, 978-281-9300 x6503; or Kristy Long, NMFS, Office of Protected Resources, 301-713-2322. SUPPLEMENTARY INFORMATION: Electronic Access Several of the background documents for the ALWTRP and the take reduction planning process can be downloaded from the ALWTRP web site at *http://www.nero.noaa.gov/whaletrp/* . Background The ALWTRP was developed pursuant to section 118 of the Marine Mammal Protection Act
(MMPA)to reduce the incidental mortality and serious injury of three endangered species of whales (right, fin, and humpback) due to incidental interaction with commercial fishing activities. In addition, the measures identified in the ALWTRP would provide conservation benefits to a fourth species (minke), which are neither listed as endangered nor threatened under the Endangered Species Act (ESA). The ALWTRP, implemented through regulations codified at 50 CFR 229.32, relies on a combination of fishing gear modifications and time/area closures to reduce the risk of whales becoming entangled in commercial fishing gear (and potentially suffering serious injury or mortality as a result). On January 9, 2002, NMFS published the final rule to implement the ALWTRP's DAM program (67 FR 1133). On August 26, 2003, NMFS amended the regulations by publishing a final rule, which specifically identified gear modifications that may be allowed in a DAM zone (68 FR 51195). The DAM program provides specific authority for NMFS to restrict temporarily on an expedited basis the use of lobster trap/pot and anchored gillnet fishing gear in areas north of 40° N. lat. to protect right whales. Under the DAM program, NMFS may:
(1)require the removal of all lobster trap/pot and anchored gillnet fishing gear for a 15-day period;
(2)allow lobster trap/pot and anchored gillnet fishing within a DAM zone with gear modifications determined by NMFS to sufficiently reduce the risk of entanglement; and/or
(3)issue an alert to fishermen requesting the voluntary removal of all lobster trap/pot and anchored gillnet gear for a 15-day period and asking fishermen not to set any additional gear in the DAM zone during the 15-day period. A DAM zone is triggered when NMFS receives a reliable report from a qualified individual of three or more right whales sighted within an area (75 nm 2 (139 km 2 )) such that right whale density is equal to or greater than 0.04 right whales per nm 2 (1.85 km 2 ). A qualified individual is an individual ascertained by NMFS to be reasonably able, through training or experience, to identify a right whale. Such individuals include, but are not limited to, NMFS staff, U.S. Coast Guard and Navy personnel trained in whale identification, scientific research survey personnel, whale watch operators and naturalists, and mariners trained in whale species identification through disentanglement training or some other training program deemed adequate by NMFS. A reliable report would be a credible right whale sighting. On October 16, 2007, an aerial survey reported and aggregation of seven right whales in the proximity of 43°05′ N latitude and 69°56′ W longitude. The position lies approximately 50nm south of Portland, Maine. After conducting an investigation, NMFS ascertained that the report came from a qualified individual and determined that the report was reliable. Thus, NMFS has received a reliable report from a qualified individual of the requisite right whale density to trigger the DAM provisions of the ALWTRP. Once a DAM zone is triggered, NMFS determines whether to impose restrictions on fishing and/or fishing gear in the zone. This determination is based on the following factors, including but not limited to: the location of the DAM zone with respect to other fishery closure areas, weather conditions as they relate to the safety of human life at sea, the type and amount of gear already present in the area, and a review of recent right whale entanglement and mortality data. NMFS has reviewed the factors and management options noted above relative to the DAM under consideration. As a result of this review, NMFS prohibits lobster trap/pot and anchored gillnet gear in this area during the 15-day restricted period unless it is modified in the manner described in this temporary rule. The DAM Zone is bound by the following coordinates: 43°25′ N., 70°23′ W (NW Corner) 43°25′ N., 69°29′ W 42°45′ N., 69°29′ W 42°45′ N., 69°38′ W 42°34′ N., 69°38′ W 42°34′ N., 70°34′ W 43°19′ N., 70°34′ W 43°19′ N., 70°23′ W 43°25′ N., 70°23′ W (NW Corner) In addition to those gear modifications currently implemented under the ALWTRP at 50 CFR 229.32, the following gear modifications are required in the DAM zone. If the requirements and exceptions for gear modification in the DAM zone, as described below, differ from other ALWTRP requirements for any overlapping areas and times, then the more restrictive requirements will apply in the DAM zone. Lobster Trap/Pot Gear Fishermen utilizing lobster trap/pot gear within the portions of Northern Nearshore Lobster Waters, Northern Inshore State Lobster Waters, and the Stellwagen Bank/Jeffrey's Ledge Restricted Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 600 lb (272.4 kg) must be placed at all buoys. Fishermen utilizing lobster trap/pot gear within the portion of the Offshore Lobster Waters Area that overlap with the DAM zone are required to utilize all of the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per trawl; and 4. A weak link with a maximum breaking strength of 1,500 lb (680.4 kg) must be placed at all buoys. Anchored Gillnet Gear Fishermen utilizing anchored gillnet gear within the portions of Other Northeast Gillnet Waters and the Stellwagen Bank/Jeffrey's Ledge Restricted Area that overlap with the DAM zone are required to utilize all the following gear modifications while the DAM zone is in effect: 1. Groundlines must be made of either sinking or neutrally buoyant line. Floating groundlines are prohibited; 2. All buoy lines must be made of either sinking or neutrally buoyant line, except the bottom portion of the line, which may be a section of floating line not to exceed one-third the overall length of the buoy line; 3. Fishermen are allowed to use two buoy lines per string; 4. Each net panel must have a total of five weak links with a maximum breaking strength of 1,100 lb (498.8 kg). Net panels are typically 50 fathoms (91.4 m) in length, but the weak link requirements would apply to all variations in panel size. These weak links must include three floatline weak links. The placement of the weak links on the floatline must be: one at the center of the net panel and one each as close as possible to each of the bridle ends of the net panel. The remaining two weak links must be placed in the center of each of the up and down lines at the panel ends; 5. A weak link with a maximum breaking strength of 1,100 lb (498.8 kg) must be placed at all buoys; and 6. All anchored gillnets, regardless of the number of net panels, must be securely anchored with the holding power of at least a 22 lb (10.0 kg) Danforth-style anchor at each end of the net string. The restrictions will be in effect beginning at 0001 hours October 27, 2007, through 2400 hours November 10, 2007, unless terminated sooner or extended by NMFS through another notification in the **Federal Register** . The restrictions will be announced to state officials, fishermen, ALWTRT members, and other interested parties through e-mail, phone contact, NOAA website, and other appropriate media immediately upon issuance of the rule by the AA. Classification In accordance with section 118(f)(9) of the MMPA, the Assistant Administrator
(AA)for Fisheries has determined that this action is necessary to implement a take reduction plan to protect North Atlantic right whales. Environmental Assessments for the DAM program were prepared on December 28, 2001, and August 6, 2003. This action falls within the scope of the analyses of these EAs, which are available from the agency upon request. NMFS provided prior notice and an opportunity for public comment on the regulations establishing the criteria and procedures for implementing a DAM zone. Providing prior notice and opportunity for comment on this action, pursuant to those regulations, would be impracticable because it would prevent NMFS from executing its functions to protect and reduce serious injury and mortality of endangered right whales. The regulations establishing the DAM program are designed to enable the agency to help protect unexpected concentrations of right whales. In order to meet the goals of the DAM program, the agency needs to be able to create a DAM zone and implement restrictions on fishing gear as soon as possible once the criteria are triggered and NMFS determines that a DAM restricted zone is appropriate. If NMFS were to provide prior notice and an opportunity for public comment upon the creation of a DAM restricted zone, the aggregated right whales would be vulnerable to entanglement which could result in serious injury and mortality. Additionally, the right whales would most likely move on to another location before NMFS could implement the restrictions designed to protect them, thereby rendering the action obsolete. Therefore, pursuant to 5 U.S.C. 553(b)(B), the AA finds that good cause exists to waive prior notice and an opportunity to comment on this action to implement a DAM restricted zone to reduce the risk of entanglement of endangered right whales in commercial lobster trap/pot and anchored gillnet gear as such procedures would be impracticable. For the same reasons, the AA finds that, under 5 U.S.C. 553(d)(3), good cause exists to waive the 30-day delay in effective date. If NMFS were to delay for 30 days the effective date of this action, the aggregated right whales would be vulnerable to entanglement, which could cause serious injury and mortality. Additionally, right whales would likely move to another location between the time NMFS approved the action creating the DAM restricted zone and the time it went into effect, thereby rendering the action obsolete and ineffective. Nevertheless, NMFS recognizes the need for fishermen to have time to either modify or remove (if not in compliance with the required restrictions) their gear from a DAM zone once one is approved. Thus, NMFS makes this action effective 2 days after the date of publication of this document in the **Federal Register** . NMFS will also endeavor to provide notice of this action to fishermen through other means upon issuance of the rule by the AA, thereby providing approximately 3 additional days of notice while the Office of the **Federal Register** processes the document for publication. NMFS determined that the regulations establishing the DAM program and actions such as this one taken pursuant to those regulations are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of the U.S. Atlantic coastal states. This determination was submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act. Following state review of the regulations creating the DAM program, no state disagreed with NMFS' conclusion that the DAM program is consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program for that state. The DAM program under which NMFS is taking this action contains policies with federalism implications warranting preparation of a federalism assessment under Executive Order 13132. Accordingly, in October 2001 and March 2003, the Assistant Secretary for Intergovernmental and Legislative Affairs, Department of Commerce, provided notice of the DAM program and its amendments to the appropriate elected officials in states to be affected by actions taken pursuant to the DAM program. Federalism issues raised by state officials were addressed in the final rules implementing the DAM program. A copy of the federalism Summary Impact Statement for the final rules is available upon request ( ADDRESSES ). The rule implementing the DAM program has been determined to be not significant under Executive Order 12866. Authority: 16 U.S.C. 1361 *et seq.* and 50 CFR 229.32(g)(3) Dated:October 19, 2007. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. [FR Doc. 07-5291 Filed 10-22-07; 2:45 pm]
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  • 10 CFR 72
  • Pub. L. 104-113
  • 10 CFR 51
  • 68 Stat. 929
  • 83 Stat. 444
  • Pub. L. 86-373
  • 73 Stat. 688
  • 88 Stat. 1242
  • Pub. L. 95-601
  • 92 Stat. 2951
  • Pub. L. 102-486
  • 106 Stat. 3123
  • Pub. L. 91-190
  • 83 Stat. 853
  • Pub. L. 97-425
  • 96 Stat. 2229
  • Pub. L. 100-203
  • 101 Stat. 1330
  • 112 Stat. 2750
  • Pub. L. 109-58
  • 119 Stat. 806
  • 68 Stat. 955
  • 96 Stat. 2230
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  • 96 Stat. 2252
  • 12 CFR 344
  • 17 CFR 270.17
  • 18 CFR 1301
  • 340 U.S. 462
  • 16 USC 831-831ee
  • 16 CFR 1301.10
  • 21 CFR 520
  • 21 CFR 520.1720
  • 5 USC 801-808
  • 21 CFR 20
  • 21 CFR 558
  • 26 CFR 1
  • T.D. 9361
  • 302 U.S. 82
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C.F.R.§ 2.810
C.F.R.§ 72.62
U.S.C.§ 552
U.S.C.§ 2071
SCOTUS340 U.S. 462
SCOTUS302 U.S. 82
SCOTUS302 U.S. 454
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