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Code · REGISTER · 2007-12-12 · Bureau of Industry and Security, Commerce · Notices

Notices. Final rule

62,128 words·~282 min read·/register/2007/12/12/07-6026

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

BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 740 and 772 [Docket No. 071114704-7749-01] RIN 0694-AD72 Revisions to License Exceptions TMP and BAG: Expansion of Eligible Items AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. SUMMARY: This rule amends the Export Administration Regulations
(EAR)to expand the availability of License Exceptions Temporary Imports, Exports, and Reexports
(TMP)and Baggage
(BAG)to allow for certain temporary exports and reexports of technology by U.S. persons to U.S. persons or their employees traveling or temporarily assigned abroad. DATES: *Effective Date:* This rule is effective: December 12, 2007. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. ADDRESSES: You may submit comments, identified by RIN 0694-AD72, by any of the following methods: *E-mail: publiccomments@bis.doc.gov.* Include “RIN 0694-AD72” in the subject line of the message. *Fax:*
(202)482-3355. Please alert the Regulatory Policy Division, by calling
(202)482-2440, if you are faxing comments. *Mail or Hand Delivery/Courier:* Timothy Mooney, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, *Attn:* RIN 0694-AD72. Send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to David Rostker, Office of Management and Budget (OMB), by e-mail to *David_Rostker@omb.eop.gov* , or by fax to
(202)395-7285; and to the U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230. Comments on this collection of information should be submitted separately from comments on the final rule (i.e. RIN 0694-AD72)—all comments on the latter should be submitted by one of the three methods outlined above. FOR FURTHER INFORMATION CONTACT: Timothy Mooney, Office of Exporter Services, Bureau of Industry and Security, Telephone:
(202)482-2440. SUPPLEMENTARY INFORMATION: Background Under part 740 of the EAR, License Exception Temporary Imports, Exports, and Reexports
(TMP)(§ 740.9) and License Exception Baggage
(BAG)(§ 740.14) both contain tools of trade provisions (§ 740.9(a)(2)(i) and § 740.14(b)(4), respectively) which authorize certain temporary exports and reexports for usual and reasonable kinds and quantities of tools of trade for use in a lawful enterprise or undertaking of the exporter. Previously, License Exceptions TMP and BAG did not authorize temporary exports or reexports of technology because the scope of these license exceptions was limited to commodities and software. This rule expands the availability of License Exceptions TMP and BAG to allow for certain temporary exports and reexports of technology by U.S. persons to U.S. persons or their employees traveling or temporarily assigned abroad. This rule does *not* authorize any new release of technology. Technology exported under License Exceptions TMP or BAG may only be released to persons who may receive that same technology pursuant to other provisions of the EAR. Exporters and reexporters who wish to use the tools of trade provisions of the two relevant license exceptions for the temporary export or reexport of technology subject to the EAR may do so, subject to certain restrictions specifically applicable to technology exports and reexports. These restrictions provide safeguards against the unauthorized risk of access to technology. Amendments to the Export Administration Regulations This rule makes the following revisions to the Export Administration Regulations
(EAR)to reflect changes to License Exceptions TMP and BAG: In part 740 (License Exceptions):
(1)This rule makes changes in § 740.9 (Temporary Imports, Exports, and Reexports (TMP)), to amend the “tools of trade” provisions in paragraph (a)(2)(i) to authorize the export or reexport by U.S. persons of certain technology to U.S. persons or their employees traveling or temporarily assigned abroad. This rule adds a new paragraph (a)(2)(i)(C) to add a specific definition of U.S. person applicable to paragraph (a)(2)(i). In § 740.9, this rule also adds a new paragraph (a)(3)(iv), establishing restrictions to prevent unauthorized export or reexport of technology. These restrictions include a restriction added to paragraph (a)(3)(iv)(A) for exports or reexports to employees who are not U.S. persons, as defined in (a)(2)(i)(C), to ensure that this license exception will not be used to circumvent other license requirements under the EAR such as the “deemed export” license requirements set forth in § 734.2(b)(2)(ii). Specifically, TMP may be available to employees who are not U.S. persons, as defined in paragraph (a)(2)(i)(C), for exports or reexports of technology under the tools of trade provisions set forth in paragraph (a)(2)(i)(A) only to the extent that such employees are authorized to receive the same technology in accordance with the EAR (e.g., a license or license exception), or, alternatively, do not require such authorization on account of the technology's NLR status. As an additional safeguard, under paragraph (a)(3)(iv)(A)(2), the U.S. person employer must demonstrate and document for recordkeeping purposes the reason that the technology to be authorized for export or reexport under the tools of trade provisions of paragraph (a)(2)(i)(A) is needed by such employees in their temporary business activities abroad on behalf of their U.S. person employer. This rule adds a new paragraph (a)(1)(i) to provide an additional requirement and guidance for the return or disposal of technology authorized under License Exception TMP. This paragraph (a)(1)(i) clarifies that technology shipped or transmitted as temporary exports or reexports under the provisions of paragraph (a)(2)(i)(A) that exists in a format that could facilitate a subsequent release of the technology must be returned or disposed of in accordance with paragraph (a)(4) of License Exception TMP. This paragraph also provides an illustrative list of examples of technology that exists in a format that could facilitate a subsequent release of technology.
(2)This rule also revises § 740.14 (Baggage (BAG)) to amend the tools of trade provisions in paragraph (b)(4) (Tools of Trade) to authorize the export or reexport of certain technology to U.S. persons for use in the trade, occupation, employment, vocation, or hobby of the traveler or members of the U.S. person's household, provided they are also U.S. persons, who are traveling or moving. This rule adds a new paragraph (b)(4)(i) to add a specific definition of U.S. person applicable to paragraph (b)(4) of this section. In addition, this rule adds a new paragraph
(h)prohibiting the unauthorized export or reexport of technology.
(3)In § 772.1 (Definitions of Terms as Used in the Export Administration Regulations), this rule revises paragraph
(b)of the definition of U.S. person to clarify that exporters should see § 740.14 (License Exception BAG) for a definition of U.S. person that is specific to that section.
(4)In § 740.9, the reference to Note 2 in Category 5—Part 2 “Information Security” of the Commerce Control List
(CCL)(Supplement No. 1 to Part 774 of the EAR) is removed. Note 2 in Category 5, Part 2 refers persons to License Exceptions TMP and BAG. Prior to the publication of this rule, the last sentence of paragraph (a)(2)(i) of License Exception TMP referred persons back to Note 2 in Category 5, Part 2. License Exception BAG does not contain a reference to Note 2 of Category 5, Part 2. To provide clarity, the reference to Note 2 in § 740.9 is eliminated with the publication of this rule. In order to provide clearer guidance to the public regarding which encryption items are authorized under License Exceptions TMP and BAG, this rule also specifies certain restrictions applicable to the use of both License Exceptions TMP and BAG for exports and reexports of certain types of encryption technology. First, encryption technology controlled under ECCN 5E002 is not authorized for export or reexport under the amended “tools of trade” provisions of License Exception TMP. Second, in License Exception BAG § 740.14, the new U.S. person “tools of trade” provisions do *not* authorize the export or reexport of ECCN 5E002 encryption technology to any destination listed in Country Group E:1 of Supplement No. 1 to part 740. For the export or reexport of 5E002 technology by companies, their subsidiaries and employees, see License Exception Encryption Commodities and Software
(ENC)set forth in § 740.17. In License Exception TMP § 740.9 paragraph (a)(2)(i), this rule also removes the second to last sentence that stated, prior to the publication of this rule, that items controlled under ECCN 5D992 are permitted pursuant to this section, as this sentence is not needed to clarify the scope of items available under License Exception TMP. Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2007, 72 FR 46137 (August 16, 2007), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. Rulemaking Requirements 1. This final rule has been determined to be not significant for purposes of E.O. 12866. 2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget Control Number. This rule contains a collection of information subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). This collection has been approved by the Office of Management and Budget under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes for a manual or electronic submission. 3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132. 4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Therefore, this regulation is issued in final form. List of Subjects 15 CFR Part 740 Administrative practice and procedure, Exports, Reporting and recordkeeping requirements. 15 CFR Part 772 Exports. Accordingly, parts 740 and 772 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows: PART 740—[AMENDED] 1. The authority citation for 15 CFR part 740 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 22 U.S.C. 7201 *et seq.* ; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 2. Section 740.9 is amended by: a. Revising paragraph (a)(1); b. Revising paragraphs (a)(2) introductory text, (a)(2)(i) introductory text, (a)(2)(i)(A) and adding new paragraph (a)(2)(i)(C); c. Revising paragraphs (a)(3)(i)(A), (a)(3)(i)(B) introductory text, (a)(3)(i)(B)( *1* ), (a)(3)(i)(B)( *2* ), (a)(3)(ii), (a)(3)(iii) and adding new paragraph (a)(3)(iv); d. Revising paragraph (a)(4); and e. Revising paragraph (a)(5), to read as follows: § 740.9 Temporary imports, exports and reexports (TMP).
(a)* * *
(1)*Scope.* You may export and reexport commodities and software for temporary use abroad (including use in international waters) subject to the conditions and restrictions described in paragraphs (a)(2) through (a)(5) of this section. U.S. persons, as defined in paragraph (a)(2)(i)(C), may export and reexport technology for temporary use abroad under paragraph (a)(2)(i) of this section to U.S. persons or their employees traveling or temporarily assigned abroad (including use in international waters) subject to the conditions and restrictions described in paragraphs (a)(2) through (a)(5) of this section. Paragraph
(a)does not authorize any new release of technology. Persons receiving technology exported or reexported under paragraph (a)(2)(i) must already be authorized to receive the same technology in accordance with the EAR (e.g., through a license or license exception), or, alternatively, not require such authorization on account of the technology's NLR status. Technology exports and reexports authorized under this paragraph
(a)may be made as actual shipments, transmissions, or releases. Exports and reexports of encryption items controlled under ECCN 5E002 are not permitted pursuant to this paragraph (a). Items shipped as temporary exports and reexports under the provisions of this paragraph
(a)must be returned to the country from which they were exported or reexported as soon as practicable but, except in circumstances described in this section, no later than one year from the date of export or reexport. This requirement does not apply if the items are consumed or destroyed in the normal course of authorized temporary use abroad or an extension or other disposition is permitted by the EAR or in writing by BIS.
(i)*Additional requirement for return or disposal of technology.* Technology shipped or transmitted as a temporary export or reexport under the provisions of this paragraph (a)(2)(i)(A) that exists in a format that could facilitate a subsequent release of the technology must be returned or disposed of in accordance with paragraph (a)(4) of this section. Examples of technology that exists in a format that could facilitate a subsequent release of technology include the following: technology in a hard copy format (e.g. blue prints, manuals); technology in an electronic format stored on an electronic device (e.g. laptop, PDA); or technology stored on removable storage media and devices (e.g. CD-ROMS, flash drives, video cassettes).
(ii)[RESERVED]
(2)*Eligible items.* The following items are eligible to be shipped under this paragraph (a):
(i)*Tools of trade.* Usual and reasonable kinds and quantities of tools of trade (commodities, software, and technology) for use in a lawful enterprise or undertaking of the exporter. For the export or reexport of commodities or software, the transaction must meet the requirements of paragraph (a)(2)(i)(A) or paragraph (a)(2)(i)(B) of this section. For the export or reexport by U.S. persons of technology authorized under this paragraph, the transaction must meet the requirements of paragraph (a)(2)(i)(A) of this section.
(A)*Destinations other than Country Group E:2 or Sudan.* Exports and reexports of tools of trade for use by the exporter or employees of the exporter may be made only to destinations other than Country Group E:2 or Sudan. The tools of trade must remain under the “effective control” (see § 772.1 of the EAR) of the exporter or the exporter's employee. Eligible tools of trade may include, but are not limited to, equipment and software as is necessary to commission or service items, provided that the equipment or software is appropriate for this purpose and that all items to be commissioned or serviced are of foreign origin, or if subject to the EAR, have been lawfully exported or reexported. For exports and reexports by U.S. persons to U.S. persons or their employees traveling or temporarily assigned abroad, eligible tools of trade may also include, but are not limited to, technology as is necessary to commission or service items, provided that all items to be commissioned or serviced either are of foreign origin and not subject to the EAR, or, if subject to the EAR, have been lawfully exported or reexported. Tools of trade may accompany the individual departing from the United States or may be shipped unaccompanied within one month before the individual's departure from the United States, or at any time after departure.
(C)For purposes of this paragraph (a)(2)(i), U.S. person is defined as follows: an individual who is a citizen of the United States, an individual who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(2) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). U.S. person also means any juridical person organized under the laws of the United States, or any jurisdiction within the United States (e.g., corporation, business association, partnership, society, trust, or any other entity, organization or group that is incorporated to do business in the United States).
(3)* * *
(i)* * *
(A)No item may be exported or reexported under paragraph
(a)of this section to Country Group E:2 (see Supplement No. 1 to this part) except as permitted by paragraph (a)(2)(viii) of this section (news media). These destination restrictions apply to temporary exports to and for use on any vessel, aircraft or territory under the ownership, control, lease, or charter by any country in Country Group E:2, or any national thereof;
(B)No item may be exported under this License Exception to Country Group D:1 (see Supplement No. 1 to part 740) except: ( *1* ) Commodities and software exported under paragraph (a)(2)(viii), news media, of this section; ( *2* ) Items exported under paragraph (a)(2)(i), tools of trade, of this section;
(ii)*Ineligible items.*
(A)Items that will be used outside of Country Group A:1 (see Supplement No. 1 to part 740), Iceland, or New Zealand, either directly or indirectly, in any sensitive nuclear activity as described in § 744.2 of the EAR may not be exported or reexported to any destination under the temporary exports and reexports provisions of this License Exception.
(B)Exports and reexports of encryption items controlled under ECCN 5E002 are not permitted pursuant to this paragraph (a).
(iii)*Use or disposition.* No item may be exported or reexported under this paragraph
(a)if:
(A)An order to acquire the item has been received before shipment;
(B)The exporter has prior knowledge that the item will stay abroad beyond the terms of this License Exception; or
(C)The item is for lease or rental abroad.
(iv)*Restrictions specific to the export or reexport of technology.* The authorization for the export or reexport of technology under the tools of trade provisions of paragraph (a)(2)(i)(A) is subject to the restrictions in this paragraph (a)(3)(iv), as described in paragraphs (a)(3)(iv)(A), (a)(3)(iv)(B) and (a)(3)(iv)(C).
(A)The authorization for the export or reexport of technology under the tools of trade provisions of paragraph (a)(2)(i)(A) of this section may be used only by U.S. persons, as defined in (a)(2)(i)(C), or their employees traveling or on temporary assignment abroad. The restrictions under this paragraph (a)(3)(iv)(A) include the following three additional restrictions: ( *1* ) Employees who are not U.S. persons, as defined in (a)(2)(i)(C), may be authorized to receive exports or reexports of the technology eligible for export or reexport under the tools of trade provisions of paragraph (a)(2)(i)(A), only if such employees are already eligible to receive such technology through a current license or a license exception or on account of NLR status; ( *2* ) A U.S. employer of individuals who are not U.S. persons, as defined in (a)(2)(i)(C), must demonstrate and document for recordkeeping purposes the reason that the technology to be authorized for export or reexport under the tools of trade provisions of paragraph (a)(2)(i)(A) is needed by such employees in their temporary business activities abroad on behalf of the U.S. person employer, prior to using the tools of trade provisions of paragraph (a)(2)(i)(A) of this section. This documentation must be created and maintained in accordance with the recordkeeping requirements of part 762 of the EAR; *and* ( *3* ) The U.S. person must retain supervision over the technology that has been authorized for export or reexport under these or other provisions.
(B)The exporting or reexporting party and the recipient of the technology must take security precautions to protect against unauthorized release of the technology while the technology is being shipped or transmitted and used overseas. Examples of security precautions to help prevent unauthorized access include the following: ( *1* ) Use of secure connections, such as Virtual Private Network connections, when accessing IT networks for e-mail and other business activities that involve the transmission and use of the technology authorized under this license exception; ( *2* ) Use of password systems on electronic devices that will store the technology authorized under this license exception; and ( *3* ) Use of personal firewalls on electronic devices that will store the technology authorized under this license exception.
(C)Technology authorized under these provisions may not be used for foreign production purposes or for technical assistance unless authorized by BIS.
(4)*Return or disposal of items.* All items exported or reexported under these provisions must, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned as soon as practicable but no later than one year after the date of export or reexport, to the United States or other country from which the items were so exported or reexported, or shall be disposed of or retained in one of the following ways:
(i)*Permanent export or reexport.* If the exporter or the reexporter wishes to sell or otherwise dispose of the items abroad, except as permitted by this or other applicable provision of the EAR, the exporter must request authorization by submitting a license application to BIS at the address listed in part 748 of the EAR. (See part 748 of the EAR for more information on license applications.) The request should comply with all applicable provisions of the EAR covering export directly from the United States to the proposed destination. The request must also be supported by any documents that would be required in support of an application for export license for shipment of the same items directly from the United States to the proposed destination. BIS will advise the exporter of its decision.
(ii)*Use of a license.* An outstanding license may also be used to dispose of items covered by the provisions of this paragraph (a), provided that the outstanding license authorizes direct shipment of the same items to the same new ultimate consignee in the new country of destination.
(iii)*Authorization to retain item abroad beyond one year.* If the exporter wishes to retain an item abroad beyond the 12 months authorized by paragraph
(a)of this section, the exporter must request authorization by submitting Form BIS-748P, Multipurpose Application, 90 days prior to the expiration of the 12 month period. The request must be sent to BIS at the address listed in part 748 of the EAR and should include the name and address of the exporter, the date the items were exported, a brief product description, and the justification for the extension. If BIS approves the extension request, the exporter will receive authorization for a one-time extension not to exceed six months. BIS normally will not allow an extension for items that have been abroad more than 12 months, nor will a second six month extension be authorized. Any request for retaining the items abroad for a period exceeding 18 months must be made in accordance with the requirements of paragraph (a)(4)(i) of this section.
(5)*Reexports.*
(i)Commodities and software lawfully exported from the United States may be reexported to a new country or countries of destination other than Sudan or Country Group E:2 under provisions of this paragraph
(a)provided its terms and conditions are met and the commodities and software are returned to the country from which the reexport occurred.
(ii)Technology legally exported from the United States may be reexported by a U.S. person to U.S. persons and their employees in a new country or countries of destination other than Sudan or Country Group E:2 under provisions of this paragraph (a)(2)(i)(A) provided its terms and conditions are met and the technology is returned to the country from which the reexport occurred. 3. Section 740.14 is amended: a. By revising paragraphs
(a)and
(b)introductory text ; b. By revising paragraph (b)(4); c. By revising the introductory text of paragraph (c); and d. By adding new paragraph (h), to read as follows: § 740.14 Baggage (BAG).
(a)*Scope.* This License Exception authorizes individuals leaving the United States either temporarily (i.e., traveling) or longer-term (i.e., moving) and crew members of exporting or reexporting carriers to take to any destination, as personal baggage, the classes of commodities, software and technology described in this section.
(b)*Eligibility.* Individuals leaving the United States may export or reexport any of the following commodities or software for personal use of the individuals or members of their immediate families traveling with them to any destination or series of destinations. Individuals leaving the United States who are U.S. persons, as defined in paragraph (b)(4)(i), may export or reexport technology as a tool of trade under paragraph (b)(4) for their personal use or for the personal use of members of their immediate families who are traveling or moving with them, provided they are also U.S. persons, as defined in paragraph (b)(4)(i), to any destination or series of destinations. Technology exports and reexports authorized under paragraph (b)(4) of this section may be made as actual shipments, transmissions, or releases. Individuals leaving the United States temporarily (i.e., traveling) must bring back items exported and reexported under this License Exception unless they consume the items abroad or are otherwise authorized to dispose of them under the EAR. Crew members may export or reexport only commodities and software described in paragraphs (b)(1) and (b)(2) of this section to any destination.
(4)*Tools of trade.* Usual and reasonable kinds and quantities of tools, instruments, or equipment and their containers and also technology for use in the trade, occupation, employment, vocation, or hobby of the traveler or members of the household who are traveling or moving. For special provisions regarding encryption commodities and software subject to EI controls, see paragraph
(f)of this section. For a special provision that specifies restrictions regarding the export or reexport of technology under this paragraph, see paragraph (h).
(i)For purposes of this paragraph (b), U.S. person is defined as follows: an individual who is a citizen of the United States, an individual who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(2) or an individual who is a protected individual as defined by 8 U.S.C. 1324b(a)(3).
(ii)[RESERVED]
(c)*Limits on eligibility.* The export of any item is limited or prohibited, if the kind or quantity is in excess of the limits described in this section. In addition, the items must be:
(h)*Special provision: restrictions for Export or Reexport of Technology.* This authorization for the export or reexport of technology under the tools of trade provisions of paragraph (b)(4) of this section may be used only if:
(1)The technology is to be used overseas solely by individuals or members of their immediate families traveling with them provided they are U.S. persons as defined in paragraph (b)(4)(i).
(2)The exporting or reexporting party and the recipient take adequate security precautions to protect against unauthorized access to the technology while the technology is being transmitted and used overseas. Examples of security precautions to help prevent unauthorized access include the following:
(i)Use of secure connections, such as Virtual Private Network connections when accessing IT networks for e-mail and other business activities that involve the transmission and use of the technology authorized under this license exception;
(ii)Use of password systems on electronic devices that will store the technology authorized under this license exception; and
(iii)Use of personal firewalls on electronic devices that will store the technology authorized under this license exception.
(3)The technology authorized under these provisions may not be used for foreign production purposes or for technical assistance unless authorized by BIS;
(4)Any encryption item controlled under ECCN 5E002 is not exported or reexported to any destination listed in Country Group E:1 of Supplement No. 1 of this part. PART 772—[AMENDED] 4. The authority citation for 15 CFR part 772 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of August 15, 2007, 72 FR 46137 (August 16, 2007). 5. Section 772.1 is amended by revising paragraph
(b)in the definition of “U.S. person”, as set forth below: § 772.1 Definitions of Terms as used in the Export Administration Regulations (EAR). “ *U.S. person* ”.
(b)See also §§ 740.9, 740.14 and parts 746 and 760 of the EAR for definitions of “U.S. person” that are specific to those parts. Dated: December 7, 2007. Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. E7-24077 Filed 12-11-07; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [Docket No. CGD01-07-011] RIN 1625-AA01 Anchorage Regulations; Edgecomb, ME, Sheepscot River AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard hereby establishes a general anchorage area in Edgecomb, Maine on the Sheepscot River. This action is necessary to facilitate safe navigation in that area and provide safe and secure anchorages. This action is intended to increase the safety of life and property in Edgecomb, improve the safety of anchored vessels, and provide for the overall safe and efficient flow of vessel traffic and commerce. DATES: This rule is effective January 11, 2008. ADDRESSES: Comments and materials received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD01-07-011, and are available for inspection or copying at Room 628, First Coast Guard District, 408 Atlantic Ave., Boston, MA 02110, between 8 a.m. and 3 p.m., Monday th rough Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. John J. Mauro, Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, MA 02110, Telephone
(617)223-8355, e-mail: *John.J.Mauro@uscg.mil.* SUPPLEMENTARY INFORMATION: Regulatory Information On May 24, 2007, we published a notice of proposed rulemaking
(NPRM)entitled “Anchorage Regulations; Edgecomb Maine, Sheepscot River” in the **Federal Register** (72 FR 29092). We received no comments on the proposed rule. No public hearing was requested, and none was held. Background and Purpose This rule is intended to reduce the risk of vessel collisions by creating a general anchorage area in Edgecomb, Maine adjacent to the current town mooring fields. This rule is designed to reserve approximately 15 anchorages for transient vessels visiting the area from May through October each year. The anchorage would accommodate both sail and power vessels with a 3-to-12-foot draft. The Coast Guard is designating the general anchorage area in accordance with 33 U.S.C. 471. The Coast Guard has defined the anchorage area contained herein with the advice and consent of the Army Corps of Engineers, Northeast, located at 696 Virginia Rd., Concord, MA 01742. 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 costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The anchorage area does not impede the passage of recreational or commercial vessels as it is not located in the primary channel of the Sheepscot River, and will therefore have a minimal economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact 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 of 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. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please contact John J. Mauro, at the address listed in ADDRESSES above. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. 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 it 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 would 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 an economically significant rule and will not create an environmental risk to health or risk to safety that might 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. 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 M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded 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, this rule is categorically excluded, under figure 2-1, paragraph 34(f), of the Instruction from further environmental documentation. Paragraph (34)(f) applies to this rule because it establishes an anchorage area. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket for inspection or copying where indicated under ADDRESSES . List of Subjects in 33 CFR Part 110 Anchorage grounds. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. Revise the authority citation for part 110 to read as follows: Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035 2071; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1. 2. Add § 110.131 to read as follows: § 110.131 Sheepscot River in the vicinity of Edgecomb, Maine.
(a)*Anchorage grounds.* All of the waters enclosed by a line starting from a point located at the southwestern end of Davis Island at latitude 43°59.655′ N., longitude 69°39.617′ W.; thence to latitude 43°59.687′ N., longitude 69°39.691′ W.; thence to latitude 43°59.847′ N., longitude 69°39.743′ W.; thence to latitude 43°59.879′ N., longitude 69°39.559′ W.; thence to latitude 43°59.856′ N., longitude 69°39.488′ W.; thence to latitude 43°59.771′ N., longitude 69°39.585′ W.; thence to the point of beginning. DATUM: NAD 83
(b)*Regulations.*
(1)This anchorage is reserved for vessels of all types, with drafts of 3 to 12 feet.
(2)These anchorage grounds are authorized for use from May through October.
(3)Vessels are limited to a maximum stay of 1 week.
(4)Fixed moorings, piles or stakes are prohibited.
(5)Vessels must not anchor so as to obstruct the passage of other vessels proceeding to or from other anchorage spaces.
(6)Anchors must not be placed in the channel and no portion of the hull or rigging of any anchored vessel shall extend outside the limits of the anchorage area.
(7)The anchorage of vessels is under the coordination of the local Harbormaster. Dated: November 23, 2007. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E7-24007 Filed 12-11-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-07-042] RIN 1625-AA09 Drawbridge Operating Regulation; Gulf Intracoastal Waterway (Algiers Alternate Route), Belle Chasse, LA AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the operating regulation for the State Route 23 vertical lift bridge across the Gulf Intracoastal Waterway (Algiers Alternate Route), mile 3.8, at Belle Chasse, Louisiana. The portion of the existing regulation allowing the bridge to remain closed to navigation on the last weekend in October is no longer necessary and is being removed from the operating schedule. DATES: This rule is effective on December 12, 2007. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket [CGD08-07-042] and are available for inspection or copying at Eighth Coast Guard District, Bridge Administration Branch, Hale Boggs Federal Building, Room 1313, 500 Poydras Street, New Orleans, Louisiana 70130-3310 between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is
(504)671-2128. FOR FURTHER INFORMATION CONTACT: Mr. David Frank, Bridge Administration Branch, telephone number 504-671-2128. SUPPLEMENTARY INFORMATION: We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Public comment is not necessary since the event requiring the closure has modified its schedule and the bridge closure no longer conforms to the dates and times of the event. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the **Federal Register** . There is no need to delay the implementation of this rule because the portion of the regulation being removed was date specific to the last weekend in October of each year. Background and Purpose On October 11, 2001, a Final Rule was published in the **Federal Register** [65 FR 60360] to change the operating schedule of the SR 23 vertical lift bridge across the Gulf Intracoastal Waterway (Algiers Alternate Route), mile 3.8, in Belle Chasse, Louisiana. The change allowed the drawbridge to not open for the passage of vessels from 4 p.m. to 7 p.m. on Saturday and Sunday of the last weekend in October. This regulation was in addition to the existing regulation that required the draw to open on signal; except that, from 6 a.m. to 8:30 a.m. and from 3:30 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draw need not be opened from the passage of vessels. The change was to facilitate the movement of vehicular traffic from the New Orleans Open House Air Show held annually at the Naval Air Station, Joint Reserve Base at Belle Chasse, Louisiana. Subsequent to the modification of the rule, the Air Show was cancelled in 2005, moved to a different weekend in 2006, and the time of the closure request was modified in 2007. The rule change for 2006 required a Temporary Rule to be published and the rule change for 2007 required a Temporary Deviation to be published. Additionally, the Air Show will not be held in 2008 in Belle Chasse making the regulation unnecessary. Therefore, it has been determined that the regulation be modified to remove the requirements of § 117.451(b)(2). Any future closure requirements, associated with any future Air Shows in Belle Chase, will be publicized as required by 33 CFR part 117, subpart A. Discussion of Rule The Coast Guard is changing 33 CFR 117.451 without publishing an NPRM. This final rule changes the regulation governing the bridge to eliminate the section of the regulation that does not require the draw to open for the passage of vessels from 4 p.m. to 7 p.m. on Saturday and Sunday of the last weekend in October. This change improves the ability of vessels to transit on the waterway during this time period. As explained above, it is not necessary to publish an NPRM. 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 costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. The Coast Guard does not consider this rule to be “significant” under that Order because it does not adversely affect the owners and operators of vessels operating on the waterway. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact 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 of 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 have no impact on any small entities because it will not adversely affect the owners and operators of vessels needing to transit the waterway. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This final rule would call 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 it 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 affect 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 an economically significant rule and would not create 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 does 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. 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 concluded 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, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed out in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1. 2. § 117.451(b) is revised to read as follows: § 117.451 Gulf Intracoastal Waterway.
(b)The draw of the SR 23 bridge, Algiers Alternate Route, mile 3.8 at Belle Chasse, shall open on signal; except that, from 6 a.m. to 8:30 a.m. and from 3:30 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draw need not be opened for the passage of vessels. Dated: December 3, 2007. J.R. Whitehead, Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District. [FR Doc. E7-24050 Filed 12-11-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD01-07-161] Drawbridge Operation Regulations; Harlem River, New York City, NY AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Spuyten Duyvil Bridge across the Harlem River at mile 7.9, at New York City, New York. Under this temporary deviation in effect from January 10, 2008 through April 14, 2008, the Spuyten Duyvil Bridge need not open for the passage of vessel traffic from 6 a.m. to 1:30 p.m. and from 3 p.m. to 9 p.m. The draw shall open on signal one time each day to accommodate vessel traffic between 1:30 p.m. and 3 p.m., after a one-hour advance notice is given by calling the number posted at the bridge. Vessels that can pass under the draw without a bridge opening may do so at all times. This deviation is necessary to facilitate scheduled bridge maintenance. DATES: This deviation is effective from 6 a.m. on January 10, 2008 through 9 p.m. on April 14, 2008. ADDRESSES: Materials referred to in this document are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York, 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The telephone number is
(212)668-7165. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Joe Arca, Project Officer, First Coast Guard District, at
(212)668-7069. SUPPLEMENTARY INFORMATION: The Spuyten Duyvil Bridge, across the Harlem River, mile 7.9, at New York City, New York, has a vertical clearance in the closed position of 5 feet at mean high water and 9 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.789(f). The owner of the bridge, National Railroad Passenger Corporation (Amtrak), requested a temporary deviation to facilitate scheduled bridge maintenance, the replacement of the bridge protective fender system at the west end. Under this temporary deviation in effect from January 10, 2008 through April 14, 2008, the Spuyten Duyvil Bridge need not open for the passage of vessel traffic from 6 a.m. to 1:30 p.m. and from 3 p.m. to 9 p.m. The draw shall open on signal one time each day to accommodate vessel traffic between 1:30 p.m. and 3 p.m., after at least a one-hour notice is given by calling the number posted at the bridge. Vessels that can pass under the bridge without a bridge opening may do so at all times. In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operation schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. Dated: December 4, 2007. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E7-24049 Filed 12-11-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA-HQ-OW-2007-0259; FRL-8504-9] Water Quality Standards for Puerto Rico AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is promulgating water quality standards that establish methods to implement Puerto Rico's existing antidegradation policy for waters in the Commonwealth of Puerto Rico. EPA was required to propose antidegradation implementation methods under court order. The Clean Water Act requires that all States, Territories, and authorized Tribes develop water quality standards that include the designated use or uses of the water, water quality criteria to protect those uses, and an antidegradation policy and implementation methods. Through this promulgation, the federal antidegradation implementation methods are added to Puerto Rico's water quality standards. DATES: This final rule is effective January 11, 2008. ADDRESSES: The public record for this rulemaking is located at USEPA, 1200 Pennsylvania Ave., NW., Washington, DC 20460, and EPA Region 2, 290 Broadway, New York, New York 10007, and can be viewed between 8:30 a.m. and 4:30 p.m. at both locations. FOR FURTHER INFORMATION CONTACT: For further information concerning today's final rule, contact Wayne Jackson, U.S. EPA Region 2, Division of Environmental Planning and Protection, 290 Broadway, New York, New York 10007 (telephone: 212-637-3807 or e-mail: *jackson.wayne@epa.gov* ) or Lauren Wisniewski, U.S. EPA Headquarters, Office of Science and Technology, 1200 Pennsylvania Avenue, NW., Mail Code 4305T, Washington, DC 20460 (telephone: 202-566-0394 or e-mail: *wisniewski.lauren@epa.gov* ). SUPPLEMENTARY INFORMATION: This section is organized as follows: Table of Contents I. General Information A. What Entities May Be Affected by this Action? B. How Can I Get Copies of This Document and Other Related Information? II. Background A. What Are the Applicable Federal Statutory and Regulatory Requirements? B. Why Is EPA Promulgating Federal Antidegradation Implementation Methods for the Commonwealth of Puerto Rico? III. This Final Rule A. What Are the Federal Antidegradation Implementation Methods to Protect Puerto Rico's High Quality Waters? B. How Will Puerto Rico Implement the Federal Antidegradation Implementation Methods? C. What Are the Cost Implications of the Final Rule? D. Comments Received in Response to EPA's May 2007 Proposal IV. Statutory and Executive Order Reviews A. Executive Order 12866 (Regulatory Planning and Review) B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132 (Federalism) F. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) G. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks) H. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution or Use) I. National Technology Transfer and Advancement Act of 1995 J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) K. Endangered Species Act L. Congressional Review Act I. General Information A. What Entities May Be Affected by This Action? Citizens concerned with water quality in Puerto Rico may be interested in this rulemaking which establishes federal antidegradation implementation methods by regulation for waters in the Commonwealth of Puerto Rico (hereafter, “the Commonwealth” or “Puerto Rico”). Entities discharging pollutants to the surface waters of Puerto Rico could be indirectly affected by this rulemaking since water quality standards are used in determining National Pollutant Discharge Elimination System (NPDES) permit limits, CWA section 404 dredge and fill permits, and other activities requiring CWA section 401 certification. Categories and entities that may ultimately be affected include: Category Examples of potentially affected entities Industry Industries discharging pollutants to surface waters in Puerto Rico. Municipalities Discharges to surface waters in Puerto Rico from publicly owned facilities such as publicly owned treatment works and water filtration facilities. This table is not intended to be exhaustive, but rather provides a guide for readers regarding NPDES-regulated entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility may be affected by this action, you should carefully examine today's proposed rule. If you have questions regarding the applicability of this action to the particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. B. How Can I Get Copies of This Document and Other Related Information? 1. *Docket.* EPA has established an official public docket for this action under Docket Id. No. [EPA-HQ-OW-2007-0259]. The official public docket consists of the document specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Water Quality Standards for Puerto Rico docket located at both U.S. EPA Region 2, 290 Broadway, New York, New York 10007, and the OW Docket, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. These Docket Facilities are open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Docket telephone numbers are 212-637-3807 and 202-566-1744, respectively. A reasonable fee will be charged for copies. 2. *Electronic Access.* You may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr/.* An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at *http://www.regulations.gov* to view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through one of the Docket Facilities identified in Section I.B.1. II. Background A. What Are the Applicable Federal Statutory and Regulatory Requirements? Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or “the Act”) directs States, Territories, and authorized Tribes (hereafter referred to as “States”), with oversight by EPA, to adopt water quality standards to protect the public health and welfare, enhance the quality of water and serve the purposes of the CWA. Under section 303, States are required to develop water quality standards for navigable waters of the United States within the State. Section 303(c) and EPA's implementing regulations at 40 CFR part 131 require State and Tribal water quality standards to include the designated use or uses to be made of the water, the water quality criteria necessary to protect those uses and an antidegradation policy. States are required to review their water quality standards at least once every three years and, if appropriate, revise or adopt new standards. The results of this triennial review must be submitted to EPA, and EPA must approve or disapprove any new or revised standards. Section 303(c) of the CWA authorizes the EPA Administrator to promulgate water quality standards to supersede State standards that EPA has disapproved or in any case where the Administrator determines that a new or revised standard is needed to meet the CWA's requirements. In a February 14, 2007, Opinion and Order from the United States District Court for the District of Puerto Rico in the case of *CORALations and the American Littoral Society* v. *United States Environmental Protection Agency, et al.* (No. 02-1266
(JP)(D. Puerto Rico)), the Court ordered EPA to “prepare and publish new or revised water quality standards identifying antidegradation methods for Puerto Rico within 60 days” (April 17, 2007). The Court granted EPA's motion for an additional 30 days. EPA proposed Federal water quality standards for these waters in Puerto Rico on May 17, 2007. As one of the minimum elements that must be included in a State's water quality standards, antidegradation is an important tool for States and authorized Tribes to use in meeting the CWA's requirement that water quality standards protect public health or welfare, enhance the quality of water and meet the objective of the CWA to restore and maintain the chemical, physical and biological integrity of the nation's waters. Antidegradation requirements help ensure that any degradation in water quality is subject to review and approval by the State even in cases where the existing water quality far exceeds the water quality criteria and designated use applicable to individual waters. EPA's regulation at 40 CFR 131.12 requires that States and authorized Tribes adopt antidegradation policies and identify implementation methods to provide three levels or tiers of water quality protection. The first level of protection at 40 CFR 131.12(a)(1), also known as Tier 1 of antidegradation, requires the maintenance and protection of existing instream water uses and the level of water quality necessary to protect those existing uses. Protection of existing uses is the floor of water quality protection afforded to all waters of the United States. Existing uses are “* * * those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards” (40 CFR 131.3(e)). The second level of protection, or Tier 2 of antidegradation, is for high quality waters. High quality waters are defined in 40 CFR 131.12(a)(2) as waters where the quality of the waters is better than the levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water. This water quality is to be maintained and protected unless the State or authorized Tribe finds, after public participation and intergovernmental review, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing lower water quality, the State or authorized Tribe must assure water quality adequate to protect existing uses. Further, the State or authorized Tribe must ensure that all applicable statutory and regulatory requirements are achieved for all new and existing point sources and all cost-effective and reasonable best management practices are achieved for nonpoint source control. Finally, the third and highest level of antidegradation protection, or Tier 3, is for outstanding national resource waters (ONRWs). If a State or authorized Tribe determines that the characteristics of a water body constitute an outstanding national resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, and designates a water body as such, then that water quality must be maintained and protected (see 40 CFR 131.12(a)(3)). In addition to requiring States and authorized Tribes to adopt an antidegradation policy, 40 CFR 131.12 requires States to identify methods for implementing such a policy. Such methods are not required to be contained in the State's regulation, but because they inform EPA's judgment regarding whether the State's antidegradation policy is consistent with the Federal regulations at 40 CFR 131.12, they are subject to EPA review. Where the State chooses to make such methods part of its water quality standards regulations, section 303(c)(3) of the CWA and EPA's implementing regulations require them to be submitted to EPA for review and approval. When a State or authorized Tribe chooses to develop such methods as guidance or outside of regulation, EPA reviews the methods in the context of determining whether the State's antidegradation policy as interpreted and implemented through the methods, is consistent with 40 CFR 131.12. EPA's regulations at 40 CFR 131.12 provide a great deal of discretion to States regarding the amount of specificity required in a State's antidegradation implementation methods. The regulations do not specify minimum elements for such methods, but do require that such methods not undermine the intent of the antidegradation policy. *See* Advanced Notice of Proposed Rulemaking, 63 FR 36742, 36781, July 7, 1998. B. Why Is EPA Promulgating Federal Antidegradation Implementation Methods for the Commonwealth of Puerto Rico? Puerto Rico has an existing EPA-approved antidegradation policy, which was adopted on October 27, 1990, and approved by EPA on March 28, 2002. This antidegradation policy mirrors that of the federal regulation. The policy states the following: “It is the policy of the Government of Puerto Rico to conserve and protect the existing uses of the Waters of Puerto Rico. The water quality necessary to protect the existing uses, including threatened and endangered species shall be maintained and protected. In those water bodies where the quality exceeds levels necessary to support propagation of fish, shellfish, wildlife, desirable species including threatened or endangered species and recreation in and on the water, that quality shall be maintained and protected. A lower water quality may be allowed when the [Environmental Quality Board of the Commonwealth of Puerto Rico] finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the Board's Continuing Planning Process that allowing lower water quality is necessary to accommodate important economic or social development in the area where the waters are located. In allowing such lower water quality, the Board shall require a water quality level adequate to protect existing uses fully. Further, the Board will require that:
(1)The highest statutory and regulatory requirements for all new and/or existing point sources be achieved and
(2)All cost-effective and reasonable best management practices for non-point source control be implemented. Where high quality waters constitute an outstanding national resource, such as waters of El Yunque National Forest and State parks, wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected. Where potential water quality impairment is associated with a thermal discharge, this thermal discharge must comply with Section 316 of the Clean Water Act as amended.” The Environmental Quality Board of the Commonwealth of Puerto Rico (EQB or Board) first adopted an antidegradation policy in its water quality standards regulation in June 1973. EQB is responsible, in part, for developing and recommending to the Governor public policy to encourage and promote the improvement of environmental quality so as to meet the conservation, social, economic, health and other requirements and goals of the Commonwealth. One of the specific functions of EQB is to develop and adopt water quality standards, which are intended to “enhance, maintain and preserve the quality of the waters of Puerto Rico compatible with the social and economic needs of Puerto Rico.” This antidegradation policy was approved by EPA on November 15, 1973. Puerto Rico's antidegradation policy statement remained unchanged until 1990. In August 1990, the Commonwealth of Puerto Rico adopted revisions to the Puerto Rico Water Quality Standards Regulation (PRWQSR). These were sent to EPA Region 2 on September 21, 1990, with the caveat from the Chairman of the EQB that the transmittal may not be the final submittal, since EQB was going to hold additional public hearings on November 1, 1990, regarding certain aspects of the revisions. Because of this caveat, and because the requisite certification from the Commonwealth's Secretary of Justice was not submitted with the revisions as required by 40 CFR 131.6(e), EPA did not act on these revisions immediately. From 1991 to 1993, EPA Region 2 worked with EQB on a series of subsequent draft revisions to the PRWQSR. These drafts were never adopted by Puerto Rico. The requisite certification from the Commonwealth's Secretary of Justice was ultimately submitted to EPA on February 25, 2002. Upon receipt of this certification EPA took final action on all new and revised provisions of the 1990 PRWQSR on March 28, 2002. These revisions included the above-referenced revisions to the Puerto Rico antidegradation policy. Prior to October 2001, Puerto Rico had antidegradation implementation methods set forth in a document known as its Continuing Planning Process (CPP). In the fall of 2001, EPA commenced work with the Puerto Rico EQB to enhance their antidegradation implementation methods. EQB submitted its first reasonably complete draft of its consolidation of antidegradation implementation methods on September 3, 2003. On February 20, 2002, CORALations, American Littoral Society, and the American Canoe Association filed a complaint in the U.S. District Court for the District of Puerto Rico. In this action, the plaintiffs alleged, among other things, that a September 4, 1992 letter from a EPA Region 2 Division Director to the EQB had triggered a mandatory duty under section 303(c)(4) of the CWA for EPA to prepare and propose regulations for Puerto Rico setting forth a revised water quality standard for antidegradation implementation methods. In October and December 2003, EQB submitted two revised drafts of its consolidation of antidegradation implementation methods. The December 2003 draft was submitted under cover of a letter dated December 16, 2003, from Ruben Gonzalez Delgado, Director of EQB's Water Quality Area, to Walter Mugdan, Director of the EPA Region 2's Division of Environmental Planning and Protection. This letter stated that it was EQB's intent to promulgate this consolidation as part of the PRWQSR in order to consolidate EQB's existing antidegradation implementation methods “either explicitly or by reference, into one document so that it is readily accessible to the public and the regulated community.” On June 17, 2004, EQB submitted to EPA its final revised consolidation document. This consolidation document, however, was not adopted as a regulation. In a letter dated July 9, 2004, from Mr. Mugdan to EQB's President, Esteban Mujica Cotto, EPA stated that these methods meet the requirements of the Clean Water Act and 40 CFR 131.12(a). On February 14, 2007, the U.S. District Court of Puerto Rico issued an opinion ruling that EPA had failed to execute a mandatory duty to propose antidegradation implementation methods for Puerto Rico and ordered EPA to prepare and publish new or revised water quality standards identifying antidegradation implementation methods for Puerto Rico within 60 days. The court granted a 30-day extension and EPA proposed federal water quality standards identifying methods for implementing Puerto Rico's antidegradation policy on May 17, 2007. III. This Final Rule EPA is promulgating federal water quality standards identifying methods for implementing Puerto Rico's antidegradation policy. If Puerto Rico adopts antidegradation implementation methods and EPA approves Puerto Rico's action, EPA will initiate withdrawal of its corresponding federal water quality standards. A. What Are the Federal Antidegradation Implementation Methods To Protect Puerto Rico's High Quality Waters? The federal antidegradation implementation methods are the same as the implementation methods Puerto Rico provided to EPA in 2004. EPA reviewed those and on July 9, 2004, sent a letter from Walter Mugdan, Director of EPA Region 2's Division of Environmental Planning and Protection Division to Esteban Mujica Cotto, President of Puerto Rico's Environmental Quality Board stating that these methods meet the requirements of 40 CFR 131.12(a). (It should be noted that subsequent to the issuance of EPA's July 9, 2004 letter, EQB incorporated some non-substantive updates to its consolidation of implementation methods. The purpose of these updates is to reflect the fact that the Puerto Rico Environmental Public Policy Act (12 LPRA 8001 et. seq.), which is one of the referenced documents in the consolidation document, was amended and re-issued on September 22, 2004. The June 17, 2004 version of the consolidation document had referenced the previously applicable version of the Puerto Rico Environmental Public Policy Act. The methods EPA is promulgating reflect this update). Consistent with Puerto Rico's antidegradation implementation methods, the federal methods provide that all point sources would be subject to antidegradation review. The CWA and EPA's regulations leave to the States and authorized Tribes the decision whether to regulate nonpoint sources by requiring that they undergo antidegradation review *(American Wildlands* v. *Browner,* 260 F.3d 1192, 1198 (10th Cir. 2001)). To date, Puerto Rico has not chosen to subject nonpoint sources to antidegradation review. As a result, EPA is not applying Puerto Rico's methods to sources other than point sources. In addition, as envisioned by Puerto Rico, the federal methods provide that the antidegradation review would occur as part of Puerto Rico's CWA section 401 certification process. EPA issues all of the National Pollutant Discharge Elimination System (NPDES) permits under CWA section 402 for the Commonwealth of Puerto Rico. As part of this process, Puerto Rico must certify under CWA section 401 that those permits comply with Puerto Rico's water quality requirements. Conducting the antidegradation review process during this certification is a logical time for this review to occur, since this is the time when EQB conducts its formal analysis to determine, in part, if a proposed action will comply with all aspects of the Puerto Rico Water Quality Standards Regulation (PRWQSR). To implement Tier 1, it is important to explain what is meant by the term “existing in-stream water use” (40 CFR 131.12 (a)(1)) and explain how the level of water quality will be identified that is required to allow an existing use to continue to occur. Section 131.3 of the federal regulations defines existing uses as “those uses actually attained in the water body on or after November 28, 1975* * *”. The proposed methods provide that where there are concentrations or levels of a particular pollutant that have caused a waterbody to be listed as impaired under section 303(d) of the CWA, no additional degradation may occur in the waterbody. Puerto Rico's methods provide that this would be assured through water quality-based effluent limits meeting water quality criteria “end-of-pipe”. EPA believes this approach will protect the quality of water in the waterbody from further degradation, which will lead to the protection of the existing uses. EPA has articulated that states may take one of two approaches in identifying their high quality waters, also known as Tier 2 of antidegradation: a parameter-by-parameter approach or a waterbody-by-waterbody approach. Under the parameter-by-parameter approach, States and authorized Tribes determine whether water quality is better than the applicable criteria for a specific parameter or pollutant that would be affected by a new discharge or an increase in an existing discharge of the pollutant. The water body-by-water body approach weighs the chemical, physical, biological, or other factors to judge a water body's overall quality. In EPA's Advanced Notice of Proposed Rulemaking (ANPRM), EPA discussed the advantages and disadvantages to both approaches to designating high quality waters. 63 FR 36782, 36783, July 7, 1998. EPA also discussed these issues in the preamble to its proposed rule regarding antidegradation implementation methods for Kentucky. 67 FR 68971, 67798-99, November 14, 2002. EPA interprets its regulation to authorize either approach. Consistent with the implementation methods identified by Puerto Rico, EPA is today requiring that antidegradation reviews for high quality waters in Puerto Rico occur on a parameter-by-parameter basis. Under the federal methods, Puerto Rico must implement protection of waters it identifies as ONRWs, also known as Tier 3 of antidegradation, through a requirement that prohibits point source discharges in ONRWs. As described earlier in this section, the federal methods mirror those methods already identified by Puerto Rico for implementing its antidegradation implementation policy. EPA believes this approach is more than sufficient to meet the federal requirements at 40 CFR 131.12(a)(3) to maintain and protect the water quality of waters identified as ONRWs and is consistent with Puerto Rico's preferred approach. Consistent with the antidegradation methods identified by Puerto Rico, this final rule includes methods for implementing Puerto Rico's antidegradation policy for permits issued under section 404 of the CWA or permits issued under section 10 of the River and Harbors Act. The federal methods require that the discharge of dredged or fill material not have an unacceptable adverse impact either individually or in combination with other activities affecting the wetland before they can be allowed to discharge. Further, the federal methods provide that any proposed discharge will not be allowed if there is a practicable alternative that would have less adverse impact. With regard to how the permits for these types of activities will be implemented in waters identified by Puerto Rico as ONRWs, the federal methods provide that any proposed permitted activity under these sections of the statutes be treated the same as NPDES-permitted dischargers, that is, that these types of activities will be prohibited. This approach, also contained in Puerto Rico's methods, will assure that the water quality in waters identified as ONRWs be maintained and protected. B. How Will Puerto Rico Implement the Federal Antidegradation Implementation Methods? Puerto Rico will implement the federal antidegradation implementation methods through its ongoing CWA section 401 certification process. As described earlier in Section III.A., EPA Region 2 issues the NPDES permits for the Commonwealth of Puerto Rico. The permit issuance and preparation of the water quality certification occurs sequentially as described below. Section 6.11 of the PRWQSR describes how the EQB will issue CWA section 401 Water Quality Certifications
(WQC)for federally-issued permits, such as NPDES permits. This provision provides, in part, that when requesting a WQC, an applicant must submit, as part of the application, all relevant information to demonstrate to the satisfaction of the Board that the proposed action will not cause a violation of any applicable water quality standards in the receiving water body. Puerto Rico's requirements for conducting CWA section 401 certifications, which include antidegradation reviews, are found in Resolution R-89-2-2 of the Governing Board of EQB—February 2, 1989, and are summarized as follows. 1. EPA Region 2 (the Region) receives an application from a discharger for a NPDES permit, or for the renewal or modification of an existing NPDES permit. The applicant also submits a copy of the application to the EQB. 2. The Region reviews the application, and, if necessary, obtains additional information from the applicant. After all information is submitted, and EPA completes its review, EPA solicits certification from EQB in accordance with 40 CFR Part 124. 3. EQB evaluates the application/draft permit and issues or denies a 401 certification, or waives the right to review the permit. (EQB will not waive the right when an initial environmental assessment indicates that the discharge for which a permit is sought will have a significant impact on the environment, triggering the need for an antidegradation review.) In summary, if EQB plans to certify the discharge, an intent to issue a WQC will be prepared. If EQB plans to deny the certification, an intent to deny a WQC will be prepared, including the basis of the determination that the discharge will not comply with applicable water quality standards. A copy of the intent to issue or deny a WQC, whichever the case, will be sent to EPA and the petitioner. A public notice and comment period follows. EQB then decides to issue the WQC or denial. Petitioners have the ability to seek reconsideration before the WQC decision becomes final. 4. In conducting an antidegradation review as part of the CWA section 401 certification process, EQB first determines which level of antidegradation applies based upon a review of existing water quality data, and other required information, to be provided by the applicant. Based upon this review, EQB then determines if additional information is necessary in order to make a determination. In the case of Tier I waters, a determination is made as to whether a discharge would lower water quality such that it would no longer be sufficient to protect and maintain the existing and designated uses of that water body. When the assimilative capacity of a water body is determined to be insufficient to protect existing and designated uses with an additional load to the water body, EQB does not allow a discharge increase by requiring that the applicable water quality standards be met at the end of the pipe. In order to allow the lowering of water quality in Tier 2 waters, EQB evaluates the existing and protected quality of the receiving water on a parameter-by-parameter basis. In those cases where a potential increase in loading from a discharge may result in the lowering of water quality, the applicant must show and justify the necessity for such lowering of water quality. As part of the Tier 2 antidegradation review process, EQB provides a public comment period of at least 30 days. In the case of Tier 3 waters, no point source discharge will be allowed. 5. If EQB issues a 401 certification, then EPA Region 2 incorporates the WQC into the draft permit and issues public notice of its intention to issue a final permit pursuant to 40 CFR Part 122. C. What Are the Cost Implications of the Final Rule? Puerto Rico's existing antidegradation implementation methods are the same as the antidegradation methods set forth in this final rule. Thus, while not in regulation, these implementation methods are already in place in Puerto Rico and as such, EPA's federal antidegradation methods are not expected to result in any additional monetary costs. Nonetheless, EPA prepared an analysis to evaluate potential impacts to the Commonwealth of Puerto Rico associated with future implementation of EPA's federal standards. This analysis is documented in the “Economics Analysis of Antidegradation Implementation Methods for the Commonwealth of Puerto Rico,” which can be found in the record for this rulemaking and concludes that the total annualized costs of EPA's final rule for both the Commonwealth and the point source dischargers could range from $14,500 to $32,900. Any NPDES-permitted facility that discharges to water bodies affected by this final rule could potentially incur costs to comply with the rule's provisions. The types of affected facilities may include industrial facilities and publicly owned treatment works (POTWs). EPA did not consider the potential costs for nonpoint sources, such as agricultural and forestry-related nonpoint sources, because EPA's final rule would only require that antidegradation be applied to point sources. In addition, EPA did not address the potential monetary benefits of this final rule for Puerto Rico. 1. Identifying Affected Entities EPA identified approximately 265 point source facilities that may be affected by the rule. Of these potentially affected facilities, 76 are classified as major dischargers, and 189 are minor dischargers. Exhibit 1 provides a summary of facilities that are currently permitted to discharge to Puerto Rico surface waters, as identified in EPA's Permit Compliance System (PCS). There are a total of 265 facilities, 71 percent of which are minor dischargers. Exhibit 1.—Potentially Affected Individual NPDES Permitted Dischargers in Puerto Rico Facility type Number of Facilities Majors 1 Minors 2 Total Municipal 36 33 69 Industrial 40 156 196 Total 76 189 265 Sources: U.S. EPA
(2007)and U.S. EPA Region 2 (2007). 1 Major dischargers are facilities discharging greater than 1 million gallons per day
(mgd)and likely to discharge toxic pollutants in toxic amounts. 2 Minor dischargers are defined as facilities discharging less than 1 million gallons per day
(mgd)and not likely to discharge toxic pollutants in toxic amounts. In the case of Tier 1 waters, EQB would make a determination as to whether a discharge would lower water quality such that it would no longer be sufficient to protect and maintain the existing and designated uses of that water body. For Tier 2 waters, EQB would evaluate the existing and protected quality of the receiving water on a parameter-by-parameter basis. Under this approach, EQB would determine whether water quality is better than the applicable criteria for a specific parameter or pollutant that would be affected by a new discharge or an increase in an existing discharge of the pollutant. In addition, no point source discharges would be allowed to Tier 3 waters. 2. Method for Estimating Potential Compliance Costs EPA Region 2 indicates that is has received five antidegradation review requests within the last five years, or approximately one request per year. This includes antidegradation reviews for both existing and new facilities. EPA assumed that each type of facility ( *e.g.* , major municipal, minor municipal, major industrial, and minor industrial) is equally likely to request an antidegradation review. Costs for the final antidegradation implementation methods include costs to facilities for preparing the review material and necessary data, and costs associated with the Commonwealth's review of the facility information and certification process. The cost incurred by facilities represents the cost of a preliminary engineering analysis and the subsequent financial analysis for which EPA provides guidance and a workbook. This analysis could cost between one percent and three percent of the installed cost of additional pollution controls. The cost potentially incurred by Puerto Rico's Environmental Quality Board
(EQB)represents the cost of reviewing the engineering cost analysis and financial impact analysis, validating source data and checking calculations, evaluating the engineering design and the conclusions regarding potential financial and community impacts, evaluating the information provided regarding the importance of the proposed development to the economic and social conditions of the affected community, and reviewing and responding to comments from the public. EPA estimated the total time requirement to process each request to be 140 hours. 3. Results Based on the potential number of antidegradation requests, EPA estimated that point source dischargers may incur total annual costs from $9,200 to $27,600 per year. EPA also estimated that Puerto Rico's EQB may incur annual costs to review the requests of approximately $5,300. Thus, total annual costs of the final rule could be $14,500 to $32,900. D. Comments Received in Response to EPA's May 2007 Proposal EPA solicited written public comment on the federal antidegradation methods proposed in the **Federal Register** on May 17, 2007 and held a public hearing on Monday, June 4, 2007 in Puerto Rico. No public comments were received. IV. 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. Puerto Rico is already implementing the antidegradation methods set forth in this final rule. Therefore, these EPA methods are not expected to result in any additional monetary costs. However, EPA has prepared an analysis of the costs of the Puerto Rico antidegradation policy and methods. This analysis is contained in the “Economic Analysis of Antidegradation Implementation Methods for the Commonwealth of Puerto Rico.” A copy of the analysis is available in the docket for this action and is briefly summarized in Section III.C of today's notice. B. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995. It does not include any information collection, reporting or recordkeeping requirements. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have 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 this action on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering these 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. Puerto Rico's existing antidegradation implementation methods are the same as the antidegradation implementation methods set forth in this final rule. Thus, while not in regulation, the implementation methods are already in place in Puerto Rico and, as a result, this regulation is not expected to result in any additional monetary costs. Nonetheless, EPA prepared an analysis to evaluate potential impacts to the Commonwealth of Puerto Rico associated with future implementation of EPA's federal standards. This analysis is documented in the “Economic Analysis of Antidegradation Implementation Methods for the Commonwealth of Puerto Rico,” which can be found in the record for this rulemaking. 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. 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. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, this rule is not subject to the requirements of section 203 of the Unfunded Mandates Reform Act. 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 affect the nature of the relationship between EPA and States generally, for the rule only applies to waters within Puerto Rico's jurisdiction. Further the final rule does not substantially affect the relationship of EPA and the Commonwealth of Puerto Rico, or the distribution of power or responsibilities between EPA and the various levels of government. Because Puerto Rico is already implementing these antidegradation methods, this final rule does not change the Commonwealth's ability to implement these methods. Further, this final rule does not preclude Puerto Rico from adopting its own antidegradation methods that meet the requirements of the CWA into its own regulations. Thus, Executive Order 13132 does not apply to this rule. Although section 6 of Executive Order 13132 does not apply to this final rule, EPA did consult with the Commonwealth of Puerto Rico in developing this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the proposed rule from State and local officials. F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175, because no Indian Tribal Governments exist in Puerto Rico. 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. This final rule is not subject to the Executive Order because it is not economically significant and EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. H. Executive Order 13211 (Actions 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 Advancement Act of 1995 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, 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 final rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) Executive Order
(EO)12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The antidegradation implementation methods set forth in this final rule are the same as the implementation methods Puerto Rico provided to EPA in 2004, which Puerto Rico is already implementing. K. Endangered Species Act EPA transmitted the proposed rule to the Fish and Wildlife Service
(FWS)and the National Marine Fisheries Service
(NMFS)for review and comment concurrent with its publication in the **Federal Register** on May 17, 2007. That transmittal constituted EPA's initiation of informal consultation with the Services on this rulemaking, pursuant to section 7 of the Endangered Species Act and its implementing regulations. EPA received concurrence from the FWS on June 18, 2007, that the rule is not likely to adversely affect federally-listed species in the Commonwealth of Puerto Rico. EPA also received a similar concurrence from the NMFS on September 18, 2007. L. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. § 804(2). This rule will be effective January 11, 2008. List of Subjects in 40 CFR Part 131 Environmental protection, Antidegradation, Water quality standards. Dated: December 6, 2007. Stephen L. Johnson, Administrator. For the reasons set forth in the preamble, EPA amends 40 CFR part 131 as follows: PART 131—WATER QUALITY STANDARDS 1. The authority citation for part 131 continues to read as follows: Authority: 33 U.S.C. 1251 *et seq.* Subpart D—[Amended] 2. Section 131.42 is added to read as follows: § 131.42 Antidegradation Implementation Methods for the Commonwealth of Puerto Rico.
(a)General Policy Statement.
(1)All point sources of pollution are subject to an antidegradation review.
(2)An antidegradation review shall be initiated as part of the Section 401—“Water Quality Certification Process” of the Clean Water Act.
(3)The 401 Certification Process shall follow the procedures established by the February 2, 1989 Resolution R-89-2-2 of the Governing Board of the Puerto Rico Environmental Quality Board (EQB).
(4)The following are not subject to an antidegradation review due to the fact that they are nondischarge systems and are managed by specific applicable Puerto Rico regulations:
(i)All nonpoint sources of pollutants.
(ii)Underground Storage Tanks.
(iii)Underground Injection Facilities.
(5)The protection of water quality shall include the maintenance, migration, protection, and propagation of desirable species, including threatened and endangered species identified in the local and federal regulations.
(b)Definitions.
(1)All the definitions included in Article 1 of the Puerto Rico Water Quality Standards Regulation (PRWQSR), as amended, are applicable to this procedure.
(2)High Quality Waters:
(i)Are waters whose quality is better than the mandatory minimum level to support the CWA Section 101(a)(2) goals of propagation of fish, shellfish, wildlife and recreation in and on the waters. High Quality Waters are to be identified by EQB on a parameter-by-parameter basis.
(ii)[Reserved].
(3)Outstanding National Resources Waters (ONRWs):
(i)Are waters classified as SA or SE in the PRWQSR, as amended, or any other water designated by Resolution of the Governing Board of EQB. ONRWs are waters that are recreationally or ecologically important, unique or sensitive.
(ii)[Reserved].
(c)Antidegradation Review Procedure
(1)The antidegradation review will commence with the submission of the CWA Section 401 water quality certification request. EQB uses a parameter-by-parameter approach for the implementation of the anti-degradation policy and will review each parameter separately as it evaluates the request for certification. The 401 certification/antidegradation review shall comply with Article 4(B)(3) of the Puerto Rico Environmental Public Policy Act (Law No. 416 of September 22, 2004, as amended (12 LPRA 8001 *et seq.* )). Compliance with Article 4(B)(3) shall be conducted in accordance with the Reglamento de la Junta de Calidad Ambiental para el Proceso de Presentación, Evaluación y Trámite de Documentos Ambientales (EQB's Environmental Documents Regulation). As part of the evaluation of the Environmental Document an alternatives analysis shall be conducted (12 LPRA 8001(a)(5), EQB's Environmental Documents Regulation, e.g., Rules 211E and 253C), and a public participation period and a public hearing shall be provided (12 LPRA 8001(a), EQB's Environmental Documents Regulation, Rule 254).
(2)In conducting an antidegradation review, EQB will sequentially apply the following steps:
(i)Determine which level of antidegradation applies
(A)Tier 1—Protection of Existing and Designated Uses.
(B)Tier 2—Protection of High Quality Waters.
(C)Tier 3—Protection of ONRWs.
(ii)[Reserved].
(3)Review existing water quality data and other information submitted by the applicant. The applicant shall provide EQB with the information regarding the discharge, as required by the PRWQSR including, but not limited to the following:
(i)A description of the nature of the pollutants to be discharged.
(ii)Treatment technologies applied to the pollutants to be discharged.
(iii)Nature of the applicant's business.
(iv)Daily maximum and average flow to be discharged.
(v)Effluent characterization.
(vi)Effluent limitations requested to be applied to the discharge according to Section 6.11 of the PRWQSR.
(vii)Location of the point of discharge.
(viii)Receiving waterbody name.
(ix)Water quality data of the receiving waterbody.
(x)Receiving waterbody minimum flow (7Q2 and 7Q10) for stream waters.
(xi)Location of water intakes within the waterbody.
(xii)In the event that the proposed discharge will result in the lowering of water quality, data and information demonstrating that the discharge is necessary to accommodate important economic or social development in the area where the receiving waters are located.
(4)Determine if additional information or assessment is necessary to make the decision.
(5)Prepare an intent to issue or deny the 401 water quality certificate and publish a notice in a newspaper of wide circulation in Puerto Rico informing the public of EQB's preliminary decision and granting a public participation period of at least thirty
(30)days.
(6)Address the comments received from the interested parties and consider such comments as part of the decision making process.
(7)Make the final determination to issue or deny the requested 401 certification. Such decision is subject to the reconsideration procedure established in Law 170 of August 12, 1988, *Ley de Procedimiento Administrativo Uniforme del Estado Libre Asociado de Puerto Rico* (3 LPRA 2165).
(d)Implementation Procedures.
(1)Activities Regulated by NPDES Permits
(i)Tier 1—Protection of Existing and Designated Uses:
(A)Tier 1 waters are: *(1)* Those waters of Puerto Rico (except Tier 2 or Tier 3 waters) identified as impaired and that have been included on the list required by Section 303(d) of the CWA; and *(2)* Those waters of Puerto Rico (except Tier 2 and Tier 3 waters) for which attainment of applicable water quality standards has been or is expected to be, achieved through implementation of effluent limitations more stringent than technology-based controls (Best Practicable Technology, Best Available Technology and Secondary Treatment).
(B)To implement Tier 1 antidegradation, EQB shall determine if a discharge would lower the water quality to the extent that it would no longer be sufficient to protect and maintain the existing and designated uses of that waterbody.
(C)When a waterbody has been affected by a parameter of concern causing it to be included on the 303(d) List, then EQB will not allow an increase of the concentration of the parameter of concern or pollutants affecting the parameter of concern in the waterbody. This no increase will be achieved by meeting the applicable water quality standards at the end of the pipe. Until such time that a Total Maximum Daily Load
(TMDL)is developed for the parameter of concern for the waterbody, no discharge will be allowed to cause or contribute to further degradation of the waterbody.
(D)When the assimilative capacity of a waterbody is not sufficient to ensure maintenance of the water quality standard for a parameter of concern with an additional load to the waterbody, EQB will not allow an increase of the concentration of the parameter of concern or pollutants affecting the parameter of concern in the waterbody. This no increase will be achieved by meeting the applicable water quality standards at the end of the pipe. Until such time that a TMDL is developed for the parameter of concern for the waterbody, no discharge will be allowed to cause or contribute to further degradation of the waterbody.
(ii)Tier 2—Protection of High Quality Waters:
(A)To verify that a waterbody is a high quality water for a parameter of concern which initiates a Tier 2 antidegradation review, EQB shall evaluate and determine: *(1)* The existing water quality of the waterbody; *(2)* The projected water quality of the waterbody pursuant to the procedures established in the applicable provisions of Articles 5 and 10 of the PRWQSR including but not limited to, Sections 5.2, 5.3, 5.4, 10.2, 10.3, 10.4, 10.5, and 10.6; *(3)* That the existing and designated uses of the waterbody will be fully maintained and protected in the event of a lowering of water quality. In multiple discharge situations, the effects of all discharges shall be evaluated through a waste load allocation analysis in accordance with the applicable provisions of Article 10 of the PRWQSR or the applicable provisions of Article 5 regarding mixing zones.
(B)In order to allow the lowering of water quality in high quality waters, the applicant must show and justify the necessity for such lowering of water quality through compliance with the requirements of Section 6.11 of the PRWQSR. EQB will not allow the entire assimilative capacity of a waterbody for a parameter of concern to be allocated to a discharger, if the necessity of the requested effluent limitation for the parameter of concern is not demonstrated to the full satisfaction of EQB.
(iii)Tier 3—Protection of ONRWs:
(A)EQB may designate a water as Class SA or SE (ONRWs) through a Resolution (PRWQSR Sections 2.1.1 and 2.2.1). Additionally, any interested party may nominate a specific water to be classified as an ONRW and the Governing Board of EQB will make the final determination. Classifying a water as an ONRW may result in the water being named in either Section 2.1.1 or 2.2.2 of the PRWQSR, which would require an amendment of the PRWQSR. The process for amending the PRWQSR, including public participation, is set forth in Section 8.6 of said regulation.
(B)The existing characteristics of Class SA and SE waters shall not be altered, except by natural causes, in order to preserve the existing natural phenomena. *(1)* No point source discharge will be allowed in ONRWs. *(2)* [Reserved].
(2)Activities Regulated by CWA Section 404 or Rivers and Harbors Action Section 10 Permits (Discharge of Dredged or Fill Material)
(i)EQB will only allow the discharge of dredged or fill material into a wetland if it can be demonstrated that such discharge will not have an unacceptable adverse impact either individually or in combination with other activities affecting the wetland of concern. The impacts to the water quality or the aquatic or other life in the wetland due to the discharge of dredged or fill material should be avoided, minimized and mitigated.
(ii)The discharge of dredged or fill material shall not be certified if there is a practicable alternative to the proposed discharge which would have less adverse impact on the recipient ecosystem, so long as the alternative does not have other more significant adverse environmental consequences. Activities which are not water dependent are presumed to have practicable alternatives, unless the applicant clearly demonstrates otherwise. No discharge of dredged and fill material shall be certified unless appropriate and practicable steps have been taken which minimize potential adverse impacts of the discharge on the recipient ecosystem. The discharge of dredged or fill material to ONRWs, however, shall be governed by paragraph (d)(1)(iii) of this section. [FR Doc. E7-24097 Filed 12-11-07; 8:45 am] BILLING CODE 6560-50-P 72 238 Wednesday, December 12, 2007 Proposed Rules SOCIAL SECURITY ADMINISTRATION 20 CFR Part 404 [Docket No. SSA 2007-0065] RIN 0960-AG65 Revised Medical Criteria for Evaluating Functional Limitations Due to Digestive Disorders AGENCY: Social Security Administration. ACTION: Advance notice of proposed rulemaking. SUMMARY: On October 19, 2007, we published final rules in the **Federal Register** (72 FR 59397) revising the criteria in sections 5.00 and 105.00 of the Listing of Impairments in appendix 1 to subpart P of part 404 of our regulations (the listings), the sections that we use to evaluate claims involving digestive disorders. In those rules, we indicated that we would issue an Advance Notice of Proposed Rulemaking (ANPRM) inviting public comments on whether we should add a functional listing for digestive disorders, and if so, what functional criteria would be appropriate (72 FR at 59416). We are now requesting your comments and suggestions. After we have considered your comments and suggestions, other information about the functional effects of digestive disorders, and our adjudicative experience, we will determine whether it is appropriate to add a functional listing for digestive disorders. If we decide to add such a listing, we will publish for public comment a Notice of Proposed Rulemaking
(NPRM)that will propose specific revisions to the rules. DATES: To be sure that your comments are considered, we must receive them no later than February 11, 2008. ADDRESSES: You may submit comments by any of the following methods. Regardless of which method you choose, to ensure that we can associate your comments with the correct regulation for consideration, you must state that your comments refer to Docket No. SSA-2007-0065: • Federal eRulemaking Portal at *http://www.regulations.gov.* (This is the preferred method for submitting your comments.) In the Search Documents section, select “Social Security Administration” from the agency drop-down menu, then click “submit”. In the Docket ID Column, locate SSA-2007-0065 and then click “Add Comments” in the “Comments Add/Due By” column. • Telefax to
(410)966-2830. • Letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, Maryland 21235-7703. • Deliver your comments to the Office of Regulations, Social Security Administration, 922 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. Comments are posted on the Federal eRulemaking portal, or you may inspect them on regular business days by making arrangements with the contact person shown in this preamble. FOR FURTHER INFORMATION CONTACT: Suzanne DiMarino, Social Insurance Specialist, Office of Regulations, Social Security Administration, 937 Altmeyer Building, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410)965-1769, for information about this notice. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at *http://www.socialsecurity.gov.* SUPPLEMENTARY INFORMATION: Electronic Version The electronic file of this document is available on the date of publication in the **Federal Register** at *http://www.gpoaccess.gov/fr/index.html.* What is the purpose of this notice? The purpose of this notice is to give you an opportunity to send us comments and suggestions regarding the possible addition of a listing based on functional limitations to the listings for evaluating digestive disorders in sections 5.00 and 105.00 of the listings. On October 19, 2007, we published final rules revising the criteria in sections 5.00 and 105.00. Some commenters on the NPRM for those rules (66 FR 57009, published November 14, 2001) recommended that we add a functional listing for hepatitis using criteria similar to those in listings 14.08N and 114.08O for human immunodeficiency virus (HIV). In responding to this comment, we explained that we did not adopt the recommendation because we did not believe we should add such a listing without first proposing it for public comment. We also believe that we need additional information to determine the criteria that would be included in a functional listing, and whether such a listing should be applicable to all digestive disorders or limited to specific disorders, such as hepatitis. Accordingly, we indicated in the NPRM that we would issue an Advanced Notice of Proposed Rulemaking, inviting public comments on these questions. On which rules are we inviting comments? We are considering whether to add a listing based on functional limitations to the listings for evaluating digestive disorders in sections 5.00 and 105.00 of the listings. You can find the revised rules for these listings on the Internet at: *http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=039144316124+0+0+0&WAISaction=retrieve.* You can find the functional listings we use to evaluate HIV on our Internet site at these locations: • Listing 14.08N is available at *http://www.socialsecurity.gov/disability/professionals/bluebook/14.00-Immune-Adult.htm,* and listing 114.08O is available at *http://www.socialsecurity.gov/disability/professionals/bluebook/114.00-Immune-Childhood.htm.* • If you do not have Internet access, you can find the Code of Federal Regulations in some public libraries, Federal depository libraries, and public law libraries. Who should send us comments and suggestions? We invite comments and suggestions from anyone who has an interest in the rules we use to evaluate claims for benefits filed by people who have digestive disorders. We are interested in getting comments and suggestions from people who apply for or receive benefits from us, members of the general public, advocates and organizations who represent people who have digestive disorders, State agencies that make disability determinations for us, experts in the evaluation of digestive disorders, and researchers. What should you comment about? We are specifically interested in any comments and suggestions you have about adding a listing based on functional limitations to sections 5.00 and 105.00 of our listings. The issues we want to address are: • Should we add a listing based on functional limitations to the listings for digestive disorders? • If so, what criteria should we use? • Should we use these criteria to evaluate all digestive disorders, or should they be applicable only to the evaluation of specific disorders, such as hepatitis? Will we respond to your comments from this notice? We will not respond directly to comments you send us in response to this notice. However, after we consider your comments along with other information, such as medical research and our adjudicative experience, we may decide to add a listing based on functional limitations to the listings for digestive disorders. If we propose the addition of such a listing, we will publish an NPRM in the **Federal Register** . In accordance with the usual rulemaking procedures we follow, you will have a chance to comment on any proposed addition(s) to the digestive listings if we publish an NPRM, and we will summarize and respond to the significant comments on the NPRM in the preamble to any final rules. Other Information Who can get disability benefits? Under title II of the Social Security Act (the Act), we provide for the payment of disability benefits if you are disabled and belong to one of the following three groups: • Workers insured under the Act, • Children of insured workers, and • Widows, widowers, and surviving divorced spouses (see § 404.336) of insured workers. Under title XVI of the Act, we provide for Supplemental Security Income
(SSI)payments on the basis of disability if you are disabled and have limited income and resources. How do we define disability? Under both the title II and title XVI programs, disability must be the result of any medically determinable physical or mental impairment or combination of impairments that is expected to result in death or which has lasted or is expected to last for a continuous period of at least 12 months. Our definitions of disability are shown in the following table: If you file a claim under * * * And you are * * * Disability means you have a medically determinable impairment(s) as described above that results in * * * Title II an adult or child the inability to do any substantial gainful activity (SGA). Title XVI an individual age 18 or older the inability to do any SGA. Title XVI an individual under age 18 marked and severe functional limitations. How do we decide whether you are disabled? If you are applying for benefits under title II of the Act, or if you are an adult applying for payments under title XVI of the Act, we use a five-step “sequential evaluation process” to decide whether you are disabled. We describe this five-step process in our regulations at §§ 404.1520 and 416.920. We follow the five steps in order and stop as soon as we can make a determination or decision. The steps are: 1. Are you working, and is the work you are doing SGA? If you are working and the work you are doing is SGA, we will find that you are not disabled, regardless of your medical condition or your age, education, and work experience. If you are not, we will go on to step 2. 2. Do you have a “severe” impairment? If you do not have an impairment or combination of impairments that significantly limits your physical or mental ability to do basic work activities, we will find that you are not disabled. If you do, we will go on to step 3. 3. Do you have an impairment(s) that meets or medically equals the severity of an impairment in the listings? If you do, and the impairment(s) meets the duration requirement, we will find that you are disabled. If you do not, we will go to step 4. 4. Do you have the residual functional capacity
(RFC)to do your past relevant work? If you do, we will find that you are not disabled. If you do not, we will go on to step 5. 5. Does your impairment(s) prevent you from doing any other work that exists in significant numbers in the national economy, considering your RFC, age, education, and work experience? If it does, and it meets the duration requirement, we will find that you are disabled. If it does not, we will find that you are not disabled. We use a different sequential evaluation process for children who apply for payments based on disability under SSI. If you are already receiving benefits, we also use a different sequential evaluation process when we decide whether your disability continues. See §§ 404.1594, 416.924, 416.994, and 416.994a of our regulations. However, all of these processes include steps at which we consider whether your impairment(s) meets or medically equals one of our listings. What are the listings? The listings are examples of impairments that we consider severe enough to prevent you as an adult from doing any gainful activity. If you are a child seeking SSI payments based on disability, the listings describe impairments that we consider severe enough to result in marked and severe functional limitations. Although the listings are contained only in appendix 1 to subpart P of part 404 of our regulations, we incorporate them by reference in the SSI program in § 416.925 of our regulations, and apply them to claims under both title II and title XVI of the Act. How do we use the listings? The listings are in two parts. There are listings for adults (part A) and for children (part B). If you are an individual age 18 or over, we apply the listings in part A when we assess your claim, and we never use the listings in part B. If you are an individual under age 18, we first use the criteria in part B of the listings. Part B contains criteria that apply only to individuals who are under age 18. If the criteria in part B do not apply, we may use the criteria in part A when those criteria give appropriate consideration to the effects of the impairment(s) in children. (See §§ 404.1525 and 416.925.) If your impairment(s) does not meet any listing, we will also consider whether it medically equals any listing; that is, whether it is as medically severe as an impairment in the listings. (See §§ 404.1526 and 416.926.) What if you do not have an impairment(s) that meets or medically equals a listing? We use the listings only to decide that you are disabled or that you are still disabled. We will not deny your claim or decide that you no longer qualify for benefits because your impairment(s) does not meet or medically equal a listing. If you have a severe impairment(s) that does not meet or medically equal any listing, we may still find you disabled based on other rules in the “sequential evaluation process.” Likewise, we will not decide that your disability has ended only because your impairment(s) no longer meets or medically equals a listing. List of Subjects 20 CFR Part 404 Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security. 20 CFR Part 416 Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income (SSI). Dated: November 26, 2007. Michael J. Astrue, Commissioner of Social Security. [FR Doc. E7-24061 Filed 12-11-07; 8:45 am] BILLING CODE 4191-02-P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2007-11] Definition of Cable System AGENCY: Copyright Office, Library of Congress. ACTION: Notice of Inquiry. SUMMARY: The Copyright Office is seeking comment on issues associated with the definition of the term “cable system” under the Copyright Act and the Copyright Office’s implementing rules. The Copyright Office is also seeking comment on the National Cable and Telecommunications Association’s request for the creation of subscriber groups for the purposes of eliminating the “phantom signal” phenomenon. Further, the Copyright Office seeks comment on several other issues related to the existence of phantom signals on certain cable systems. The purpose of this Notice of Inquiry is to solicit input on, and address possible solutions to, the complex issues presented in this proceeding. DATES: Written comments are due February 11, 2008. Reply comments are due March 26, 2008. December 12, 2007. ADDRESSES: If hand delivered by a private party, an original and five copies of a comment or reply comment should be brought to the Library of Congress, U.S. Copyright Office, Public Information Office, 101 Independence Avenue, SE, Washington, DC 22043, between 8:30 a.m. and 5 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office. If delivered by a commercial courier, an original and five copies of a comment or reply comment must be delivered to the Congressional Courier Acceptance Site (“CCAS”) located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, LM 430, James Madison Building, 101 Independence Avenue, SE, Washington, DC. Please note that CCAS will not accept delivery by means of overnight delivery services such as Federal Express, United Parcel Service or DHL. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and five copies of a comment or reply comment should be addressed to U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. FOR FURTHER INFORMATION CONTACT: Ben Golant, Assistant General Counsel, and Tanya M. Sandros, General Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone:
(202)707-8380. Telefax:
(202)707-8366. SUPPLEMENTARY INFORMATION: Section 111 of the Copyright Act (“Act”), title 17 of the United States Code (“Section 111”), provides cable systems with a statutory license to retransmit a performance or display of a work embodied in a primary transmission made by a television or radio station licensed by the Federal Communications Commission (“FCC”). Cable systems that retransmit broadcast signals in accordance with the provisions governing the statutory license set forth in Section 111 are required to pay royalty fees to the Copyright Office. Payments made under the cable statutory license are remitted semi-annually to the Copyright Office which invests the royalties in United States Treasury securities pending distribution of these funds to those copyright owners who are entitled to receive a share of the fees. I. Background The National Cable and Telecommunications Association (“NCTA”), by its attorneys, has petitioned the Copyright Office to commence a rulemaking proceeding to address cable copyright royalty issues arising from the current definition of “cable system” found in Section 201.17 of part 37 of the Code of Federal Regulations. The NCTA has proposed rule changes that it believes will better effectuate the cable statutory license under Section 111 of the Copyright Act. We initiate this Notice of Inquiry (“NOI”) to address the issues raised by NCTA and to seek comment on its proposed changes to Section 201.17 of the Copyright Office’s rules and associated cable Statement of Account (“SOA”) forms. We also raise for comment several other issues pertinent to the discussion of the phantom signal phenomenom, as that concept is defined below. A. Statutory and Regulatory Definitions Section 111(f) of the Copyright Act defines a “cable system” as: “a facility, located in any State, Territory, Trust Territory, or Possession, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1)[of Section 111], two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered one system.” 17 U.S.C. 111(f). 1 1 We note that the definition of “cable system” under the Communications Act of 1934 is different than the Copyright Act definition. *See* 47 U.S.C. 522(7) (“the term “cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community. . . .”). In implementing the cable statutory license provisions of the Copyright Act, the Copyright Office adopted a definition of the term “cable system” that replicated the statutory provision. The Copyright Office, however, separated the text of the provision into two parts in order to clarify that a cable system can be defined in two ways for the purpose of calculating royalty fees. Thus, the regulatory definition provides that “two or more facilities are considered as one individual cable system if the facilities are either:
(1)in contiguous communities under common ownership or control or
(2)operating from one headend.” 37 CFR 201.17(b)(2). The Copyright Office stated that its interpretation of the statutory “cable system” definition was consistent with Congress’s goal of avoiding the “artificial fragmentation” of systems (a large system purposefully broken up into smaller systems) and the consequent reduction in royalty payments to copyright owners. *See Compulsory License for Cable Systems* , 43 FR 958 (Jan. 5, 1978). The Copyright Office has, in the past, recognized certain practical problems associated with the definition when cable systems merge. For example, in 1997, the Copyright Office stated that “[s]o long as there is a subsidy in the rates for the smaller cable systems, there will be an incentive for cable systems to structure themselves to qualify as a small system.” *See A Review of the Copyright Licensing Regimes Covering Retransmission of Broadcast Signals* (“1997 Report”) (Aug. 1, 1997) at 45. The Copyright Office further stated that although Section 111(f) has worked well to avoid artificial fragmentation, “it has had the result of raising the royalty rates some cable systems pay when they merge. This happens because, if the two systems have different distant signal offerings, then all the signals are being paid for based on the total number of subscribers of the two systems, even if some of those signals are not reaching all the subscribers.” *Id* . at 46. The Copyright Office, echoing the NCTA’s nomenclature, called this phenomenon the “phantom signal” problem. *Id.* In the 1997 Report, the Copyright Office recommended to Congress, as part of a broader effort to reform Section 111, that cable statutory royalties be based on “subscriber groups” that actually receive the signal. The Copyright Office also recommended that systems under common ownership and control be considered as one system only when they are either in contiguous communities or use the same headend (i.e., two unrelated operators sharing a single headend would not be treated as one system). *Id.* at 47. Believing that it lacked the authority to alter the definition of cable system as established in Section 111, the Copyright Office suggested that Congress amend the Copyright Act in accordance with its recommendations. Id at 46. B. Cable System Ownership and Operations To obtain economies of scale, multiple system cable operators (“MSOs”) strategically acquire systems in close proximity to each other. At the end of 2004, there were 118 clusters with approximately 51.5 million subscribers compared to 108 clusters and approximately 53.6 million subscribers at the end of 2003. During that same time frame, there were 29 cable clusters in the United States with over 500,000 subscribers each. 2 In 2006, the FCC approved the sale of substantially all of the cable systems and assets of Adelphia Communications Corporation to Time Warner Inc. and Comcast Corporation as well as the exchange of certain cable systems and assets between affiliates or subsidiaries of Time Warner and Comcast. 3 The FCC has determined that when Adelphia’s systems are fully integrated with either Time Warner’s or Comcast’s systems, the number and size of clusters in the United States (including, but not limited to systems in California, Ohio, Florida, Texas, and Pennsylvania) will increase significantly. 4 While not specifically mentioned in NCTA’s petition, which was filed in 2005, the merger of cable systems resulting from these transactions likely has led to an increase in phantom signals. 2 *See Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming* , 21 FCC Rcd 2503
(2006)at ¶155. 3 *See Applications for Consent to the Assignment and/or Transfer of Control of Licenses from Adelphia Communications Corporation, (and subsidiaries, debtors-in-possession), Assignors, to Time Warner Cable Inc. (subsidiaries), Assignees; Adelphia Communications Corporation, (and subsidiaries, debtors-in-possession), Assignors and Transferors, to Comcast Corporation (subsidiaries), Assignees and Transferees; Comcast Corporation, Transferor, to Time Warner Inc., Transferee; Time Warner Inc., Transferor, to Comcast Corporation, Transferee* , 21FCC Rcd 8203 (2006). 4 *See id* . at ¶ 2. It has been reported that, due in part to the Adelphia transactions, the 100 largest cable systems now serve over 54 million subscribers. *See* George Winslow, *Big Deals, Changes for Markets,* Multichannel News, January 22, 2007. II. NCTA Petition A. The Phantom Signal Problem Explained At the outset, it is necessary to discuss when and how the phantom signal phenomena has arisen in the past. The circumstance usually has occurred when two or more cable systems (large or small) merge and where each of the former systems carried a unique set of distant broadcast signals. Consequently, a portion of the newly merged cable system’s subscriber base may not receive certain distant signals for a certain period of time. Based on our analysis of SOAs on file, we find that there are three possible phantom signal scenarios:
(1)when two larger cable systems (those that use the Form 3 statement of account form) with different channel line-ups merge;
(2)when a larger cable system and a smaller cable system (those that use the Form 1-2 Statement of Account form), with different channel line-ups, merge; and
(3)when a smaller cable system merges with another smaller cable system, with different channel line-ups, resulting in a Form-3 cable system. 5 Phantom signals may arise because the systems are not yet technically integrated and thus an operator is incapable of retransmitting the distant signals to all subscribers it serves after a merger. That is, the distant signals cannot be made available to certain subscriber groups. However, if over time, the cable systems become technically integrated, and the signals are apparently available to all subscribers, then the phantom signal problem would disappear. The new integrated system would be considered like any cable system that decides to offer a complement of distant signals to one subscriber group, but not another. In these circumstances, and under present regulations, the operator would be required to pay a statutory royalty based on the gross receipts of all subscribers served by the cable system even if certain subscribers are not offered certain distant signals. 5 A description of Form 1, 2, and 3 cable systems under Section 111, is provided below. In its Petition, NCTA describes the circumstances giving rise to phantom signals in a different manner. It states that where two independently built and operated systems subsequently come under common ownership due to a corporate acquisition or merger, the Copyright Office’s rules require that the two systems be reported as one. Similarly, where a system builds a line extension into an area contiguous to another commonly-owned system, the line extension can serve as a “link” in a chain that combines several commonly-owned systems into one entity for copyright purposes. NCTA asserts that, in either of these cases, phantom signals may be present and an increased royalty obligation may result. The NCTA, however, does not discuss whether there are any technological obstacles to providing all distant broadcast signals carried by a cable system to all subscribers served by that cable system. B. History of the Phantom Signal Problem NCTA states that, in 1983, it filed its first Petition asking the Copyright Office to resolve royalty payment issues arising from the definition of cable system. NCTA states that it argued that the Copyright Office’s interpretation of the cable system definition was “unreasonable in practice” in that it “frequently result[ed] in the unjustified combination of separate cable entities into one system.” *See* NCTA 1983 Petition at 2-3. At that time, NCTA proposed that the Copyright Office modify its regulatory definition so that two or more systems would be treated as a single entity only if the system served contiguous communities, were under common ownership or control, **and** operated from a single headend. According to NCTA, the motivation behind this proposed change was the fact that mergers were resulting in a growing number of separate systems being treated as one because they were under common ownership and contiguous, even though the system facilities were not technically integrated. NCTA notes that the Copyright Office formally recognized the phantom signal issue in 1989, * see Compulsory License for and Merger of Cable Systems* , 54 FR 38390, 6 but did not discuss it again until 1997, when it adopted an amendment to its rules to permit cable systems to calculate the 3.75 fee on a “partially permitted signal” basis under certain circumstances. 7 Cable Compulsory License: Merger of Cable Systems and Individual Pricing of Broadcast Signals, 62 FR 23360 (Apr. 30, 1997). NCTA notes that in the same proceeding, the Copyright Office decided to terminate the pending “phantom signals” docket in light of a study it was preparing for the Senate Judiciary Committee concerning the functioning of Section 111 of the Copyright Act. *Id.* at 23361 (stating that the “very issues of merger and acquisition of cable systems involved in [the terminated proceeding] will likely be discussed and analyzed [in the study], and the [Copyright Office] may ultimately propose legislative solutions to solve the problems addressed in this proceeding.”). As noted earlier, the Copyright Office submitted recommendations to Congress in 1997 to address the phantom signal phenomenom. 6 We note that eleven parties filed comments, and three parties filed reply comments, in response to the 1989 Notice of Inquiry in Docket No. RM 89-2. Cable operators, at that time, proposed the following options to resolve the phantom signal problem:
(1)combine gross revenues of commonly owned contiguous systems to determine which royalty fee to apply, but otherwise allow them to report the carriage of stations and gross receipts as if the merger had not occurred;
(2)combine gross receipts in the same manner as Option 1 and allow the calculation of royalties to be based on subscriber groups;
(3)combine gross receipts in the same manner as Options 1 and 2, but allow the calculation of the royalties to be based on cable communities;
(4)do not consider two contiguous systems to be one system unless all subscribers are served from a single headend and are under common ownership or control;
(5)consider systems to be contiguous only if they share a common border rather than within bordering political subdivisions; and
(6)allow a grace period for cable systems that, because of a merger, find that they have created contiguous cable systems. The Program Suppliers supported Option 1, but the Joint Sports Claimants opposed any changes to the current system. 7 The 3.75% is discussed in more detail, *infra.* Congress, however, did not act on the Copyright Office’s suggestions to fix Section 111(f). According to NCTA, the need to resolve the treatment of contiguous systems has heightened dramatically during the intervening years. Since 1998, an increasing number of cable operators have merged and acquired systems in relatively close proximity to each other. Similarly, there has been a trend of headend consolidation for the past twelve years. NCTA states, for example, that between Fall 1994 and June 2000, the number of cable headends has declined by nearly 23% (from 11,620 to 8,971). *See* NCTA Petition at 9, citing Nielsen Media Research, CODE database. NCTA also notes the trend toward cable system clustering, as described above. C. Proposed Solutions to the Phantom Signal Problem NCTA has proposed a three part remedy to rectify the phantom signal problem as it sees it. First, it urges the Copyright Office to change its cable system regulatory definition. Second, it requests that the Copyright Office adopt a new rule permitting cable operators that operate a cable system serving multiple communities with varying complements of distant broadcast signals to use a community-by-community approach when determining the royalties due from that system, seemingly without regard to whether a phantom signal problem exists. NCTA, in short, advocates the creation of “subscriber groups” for cable royalty purposes where the operator pays royalties only where distant signals are actually received by a particular household. Finally, NCTA urges the Copyright Office to announce that it would not challenge Statements of Account on which the cable operator has used a community-by-community approach for determining Section 111 royalties. It appears that NCTA’s proposals are not limited only to those situations where two or more systems have recently merged. Rather, its expansive proposals likely cover any situation where a cable operator provides a different set of distant signals to different subscriber groups served by the same cable system. 8 This regulatory proposal is much different from the matter the Copyright Office raised and addressed in its 1989 and 1997 rulemaking proceedings on cable system mergers and acquisitions. We seek comment on our interpretation of NCTA’s proposals. On the other hand, NCTA does not discuss the issue of whether phantom signals may be present when two or more different cable operators share a common headend. We seek comment on whether phantom signals may arise in this instance. If so, is this a problem we should address in this proceeding? 8 We note that our rules permit cable operators to create subscriber groups based on television signals that are partially-distant or partially-permitted ( *i.e* ., distant or permitted in only a portion of the communities served by the cable system). NCTA’s proposal extends further and proposes the creation of new subscriber groups based on the “partial carriage” of distant broadcast signals within a cable system. 1. Cable System Definition NCTA proposes that Section 201.17(b)(2) of the Copyright Office’s rules be amended so that the last sentence reads as follows: “For these purposes, two or more cable facilities are considered as one individual cable system if the facilities are in contiguous communities, under common ownership or control, and operating from one headend.” Stated another way, under NCTA’s proposed rule change, cable facilities serving multiple communities would be treated as a single system for statutory license purposes only when three distinct conditions are satisfied:
(1)the facilities are in contiguous communities;
(2)the facilities are under common ownership or control; and
(3)the facilities are operating from the same headend. The significant change NCTA suggests is that the word “or” be replaced by the word “and” before the clause “operating from one headend.” NCTA asserts that this regulatory change would help resolve the phantom signal issue because it would base royalty payments on signals that are carried throughout the cable system and made available to all subscribers. According to NCTA, a cable operator would still be deterred from “artificially fragmenting” its facility under this approach because any operator who attempts to do so would lose the operational efficiencies concomitant with a single headend. NCTA also states that while its proposed definition is narrower than the existing definition, it would ensure that facilities, which were truly technically and managerially distinct from one another, would not be artificially joined together for purposes of the statutory license. NCTA’s proposed rule change, however, raises significant statutory interpretation issues. We recognize that the United States Court of Appeals for the D.C. Circuit has found that the Copyright Office has the authority to interpret the Act so long as it is not inconsistent with the statute or Congressional intent. The D.C. Circuit stated that “Congress recognizes that it can only legislate, not administer, so it necessarily relies on agency action to make ‘common sense‘ responses to problems that arise during implementation, so long as those responses are not inconsistent with congressional intent.” *Cablevision Systems Development Co. v. Motion Picture Association of America* , 836 F.2d 599, 612 (D.C. Cir. 1988), *cert. denied* , 487 U.S.1235 (1988). NCTA argues that the Copyright Office has the authority to adopt a new cable system definition. On this point, we note that the regulatory definition of the term “cable system” is virtually identical to the definition found in Section 111(f) of the Copyright Act. As such, we do not believe that we have the authority to adopt a regulatory definition that fundamentally alters the statute, even though the language of Section 111 may be one of the root causes of the phantom signal problem. *See* 1997 Report at 46. Nevertheless, we seek comment on NCTA’s proposal to change the regulatory definition of cable system. 2. Subscriber Groups In addition to arguing for a change in the Copyright Office’s cable system definition, NCTA also advocates the adoption of a new paragraph
(g)in Section 201.17 of the Copyright Office’s rules. NCTA’s proposed rule amendment would create subscriber groups, based on cable communities and partial carriage, for the purpose of calculating royalties in a manner that would eliminate phantom signals. Specifically, the NCTA proposes that:
(1)“A cable system serving multiple communities shall use the system’s total gross receipts from the basic service of providing secondary transmissions of primary broadcast transmitters to determine which of the Statement of Account forms identified in paragraph (d)(2) is applicable to the system;” and
(2)“Where the complement of distant stations actually available for viewing by subscribers to a cable system is not identical in all of the communities served, the royalties due for the system may be computed on a community-by-community basis by multiplying the total distant signal equivalents derived from signals actually available for viewing by subscribers in a community by the gross receipts from secondary transmissions from subscribers in that community.” 9 NCTA adds that the total copyright royalty fee for a system to which this rule would apply must be equal to the larger of
(1)the sum of the royalties computed for the system on a community-by-community basis or
(2)1.013 percent of the systems‘ gross receipts from all subscribers 10 (which is the current minimum royalty fee payment for SA-3 systems beginning with the July 1-December 31, 2005, accounting period). We seek comment on the overall structure and formulation of NCTA’s “combined revenues/community-specific royalty determination” proposal. 9 This proposed rule was not part of NCTA’s August 2005 Petition, but was later submitted by letter to the Copyright Office. *See* letter to Tanya M. Sandros, Associate General Counsel, U.S. Copyright Office, from Daniel Brenner, Senior Vice President, Law & Regulatory Policy, NCTA (dated October 10, 2006), at Appendix A (proposing a new paragraph
(g)to be added to Section 201.17). NCTA’s proposed rule will be made available at the Copyright Office’s website (www.copyright.gov). 10 *See id.* NCTA states that the Copyright Act does not prohibit the computation of royalties on a community-by-community basis. It believes that the Copyright Act sanctions this approach because it incorporates the FCC’s community-specific signal carriage rules as the basis for determining a signal’s copyright status. See NCTA Petition at 13, citing NCTA 1989 Comments at 10-12. NCTA also asserts that allowing cable operators to compute royalties on a community-by-community basis would fairly compensate copyright owners for the use of their works. *Id.* Referencing comments filed with the Copyright Office seventeen years ago, NCTA states that the importance of actual signal carriage is further underscored by the legislative history accompanying the Copyright Act. It notes that the House Report states that distant signal equivalents “are determined by adding together the values assigned to the actual number of distant television stations carried by the cable system.... Pursuant to the foregoing formula, copyright payments as a percentage of gross receipts increase as the number of distant television signals carried by a cable system increases.” NCTA Petition at 14, citing Joint Comments of Cable Operators in Docket No. RM 89-2 (filed Dec. 2, 1989, and citing H.R. Rep. No. 94-1476, 94th Cong. 2d Sess. at 96 (1976)). We seek comment on many aspects of NCTA’s proposal. First, does the Act’s legislative history support NCTA’s proposed rule change? In this instance, we note that the passage cited above does not explicitly support NCTA’s suggestions nor is it obvious how this language is relevant to the subscriber group proposal outlined above. 11 Second, assuming that subscriber groups are legally permissible under Section 111 of the Act, how would the adoption of NCTA’s methodology for the carriage of stations affect the royalties collected on behalf of the copyright owners? Would NCTA’s proposed solution avoid the concern over the artificial fragmentation of cable systems? Lastly, noting that we recently sought comment on changes to the definition of “community” as that term is used in Section 201.17 of the Copyright Office’s rules, 12 we ask how any changes to the “community” definition would affect the changes proposed by NCTA here. 11 We recognize that NCTA has cited to this passage to support its stance that the Office has the authority to address the phantom signal problem, but then it conflates this argument with the proposition that “the entire statutory scheme established by Congress contemplated that copyright fees were to be calculated based upon distant signals that were actually carried on a cable system and made available to subscribers.” *See* NCTA’s Petition at 14, 15. 12 *See Cable Compulsory License Reporting Practices,* 71 FR 45749 (Aug. 10, 2006) (seeking comment on the suggestion proposed by the MPAA and others that a cable community for Section 111 purposes should be co-extensive with the political boundary of the area for which a cable system has been granted a franchise to operate). On a separate but related subject, NCTA notes that in the past, it has urged the Copyright Office to announce that it would not challenge Statement of Account forms (“SOAs”) on which the cable operator has used a subscriber group approach for determining the royalties due to the retransmission of particular signals. Under such an approach, the SOA filed by a cable operator serving multiple communities from a single headend would reflect any differences in the signal complement delivered to each community. *See* NCTA Petition at 11-12. We cannot adopt NCTA’s approach to examining SOAs. We are bound by our existing rules regarding examination procedures. Thus, we will continue to question an operator if it appears that there is an error, anomaly, or omission in the SOA form in accordance with our regulations. If, however, the regulations are amended as a result of this proceeding, our practices will be adjusted to accommodate those changes. D. Application of NCTA’s Proposals *Background.* At this point, it is useful to illustrate how the royalties are currently calculated under Section 111 and our regulations and how we believe royalties would be calculated under NCTA’s proposals. We also raise some issues of concern that require close scrutiny from the stakeholders in this proceeding. To understand how the statutory royalties are derived, it is necessary to describe the statutory methodology used to segregate cable systems. Cable operators pay royalties based on mathematical criteria established in Section 111(d)(1)(B), (C), and
(D)of the Copyright Act. Section 111 splits cable systems into three separate categories according to the amount of revenue, or “gross receipts,” 13 a cable system receives from subscribers for the retransmission of broadcast signals. These categories are:
(1)systems with gross receipts between $0-$263,800 (under Section 111(d)(1)(C));
(2)systems with gross receipts more than $263,800 but less than $527,600 (under Section 111(d)(1)(D)); and
(3)systems with gross receipts of $527,600 and above (under Section 111(d)(1)(B)). 14 13 For purposes of calculating the royalty fee cable operators must pay under Section 111, gross receipts include the full amount of monthly (or other periodic) service fees for any and all services (or tiers) which include one or more secondary transmissions of television or radio broadcast stations, for additional set fees, and for converter (“set top box”) fees. Gross receipts are not defined in Section 111, but are defined in the Copyright Office’s rules. *See * 37 CFR 201.17(b)(1). 14 The numerical figures found in the statute are different from those delineated above due to inflation adjustments adopted by the old Copyright Royalty Tribunal and the Copyright Arbitration Royalty Panel. As is common knowledge to those familiar with Section 111, the Copyright Office’s SOA forms must be submitted by cable operators on a semi-annual basis for the purpose of paying statutory royalties under Section 111. There are two types of cable system SOAs currently in use. The SA1-2 Short Form is used for cable systems whose semi-annual gross receipts are less than $527,600.00. There are three levels of royalty fees for cable operators using the SA1-2 Short Form:
(1)a system with gross receipts of $137,000 or less pays a flat fee of $52.00 for the retransmission of all broadcast station signals;
(2)a system with gross receipts greater than $137,000.00 and equal to or less than $263,800.00, pays between $52.00 to $1,319.00; and
(3)a system grossing more than $263,800.00, but less than $527,600.00 pays between $1,319.00 to $3,957.00. Cable systems falling under the latter two categories pay royalties based upon a fixed percentage of gross receipts. The SA-3 Long Form is used by larger cable systems grossing $527,600.00 or more semi-annually. These systems must pay at least a “minimum fee” that is calculated at 1.013% of aggregate gross receipts ( *e.g* ., $527,600.00 x 1.013%). The minimum fee is paid by operators for the privilege of retransmitting distant broadcast signals even if none are carried. The vast majority of SA-3 systems pay more than the minimum fee because they carry distant television signals. Alternatively, a cable system would pay a “base rate fee” if it carries any distant television stations regardless of whether or not the system is located in an FCC-defined television market area SA-3 systems calculate base rate fees according to the number of permitted distant signal equivalents (“DSEs”) carried:
(1)1st DSE =1.013% of gross receipts;
(2)2nd, 3rd & 4th DSE= .668% of gross receipts; and
(3)5th, etc., DSE .314% of gross receipts. Form SA-3 cable systems that carry only local broadcast signals do not pay the base rate fee, but do pay the minimum fee. Cable systems carrying distant television signals after June 24, 1981, that would not have been permitted under the FCC’s former rules in effect on that date, must also pay a royalty fee of 3.75% of gross receipts using a formula based on the number of relevant DSEs. The cable operator would pay either the sum of the base rate fee and the 3.75% fee, or the minimum fee, whichever is higher. In addition, cable systems located in whole or in part within a major television market (as defined by the FCC), must calculate a syndicated exclusivity surcharge (“SES”) for the carriage of any commercial VHF station that places a Grade B contour, in whole or in part, over the cable system which would have been subject to the FCC’s syndicated exclusivity rules in effect on June 24, 1981. If any signals are subject to the SES surcharge, an SES fee is added to the foregoing larger amount to determine the system’s total royalty fee. 15 15 The above gross receipts threshold levels, royalty fees, and rates are effective for accounting periods beginning July 1, 2005. *Royalty Calculations Under NCTA’s Proposals.* We have developed a series of scenarios, based on actual SOA filings, to illustrate the practical consequences of adopting NCTA’s proposals. The examples show how cable royalties are calculated under our current regulations and how they likely would be calculated under the NCTA’s proposals where subscriber groups have been created. The following sets and scenarios are found in the Appendix to this NOI. Set 1 illustrates the merger of SA-2 and SA-3 cable systems. Scenario 1 depicts the royalties generated by two separate cable systems *before* a merger and under current Copyright Office regulations. Scenario 2 shows the royalties generated by one cable system *after* a merger of the two systems depicted in Scenario 1 and under current Copyright Office regulations. Scenario 3 depicts the royalties generated by one system *after* a merger, under current Copyright Office regulations, where differing sets of signals are received by subscribers. Scenario 4 shows the royalties generated by one cable system *after* a merger, but under the NCTA’s proposed regulations (reflecting the former two separate systems in Scenario 1). Scenario 5 shows one system *after* a merger and the royalties generated under the NCTA’s proposed regulations (with signals being carried in only portions of the merged system). Set 2 illustrates the merger of two SA-3 cable systems. Scenario 1 shows the royalties generated by two separate SA-3 cable systems *before* a merger and under current Copyright Office regulations. Scenario 2 depicts the royalties collected by one system *after* a merger and under current Copyright Office regulations. Finally, Scenario 3 shows the royalties generated by one system *after* a merger, but under NCTA’s subscriber group proposal. Set 3 depicts scenarios involving SA-3 system mergers where partially-distant signals are being carried. Scenario 1 shows the royalties generated by two separate SA-3 systems *before* a merger, with one partially distant signal that is carried on only one system, under current Copyright Office regulations. Scenario 2 depicts the royalties generated by one system *after* a merger, under current Copyright Office regulations, where one partially distant signal is being carried. Lastly, Scenario 3 shows the royalties collected by one system *after* a merger under NCTA’s subscriber group proposal and reflects the carriage of a partially distant signal. As would be expected, the scenarios show there would be a change in cable royalties under NCTA’s proposed regulations, with some of the examples illustrating a large decrease in royalties. Are there other fact patterns that involve phantom signals? If so, we ask commenters to submit such examples so that we may be able to determine if NCTA’s proposed rule changes offer a workable solution to the phantom signal problem in all situations, from the perspectives of cable operators and copyright owners alike. *SES Royalty Fee Payments.* The syndicated exclusivity surcharge is another longstanding cable royalty policy that may be affected by NCTA’s proposals. For example, some SA-3 cable systems that would use subscriber groups may have a total calculated royalty less than the statutory minimum fee. In these cases, the minimum fee would apply. In addition, there are some distant signals, however limited in number, that are subject to the SES. When a SES is calculated, it must always be added to the minimum fee to arrive at the total royalty fee given the foregoing scenario. This matter, illustrated in the table below, was not addressed by NCTA in its petition. Subgroup 1 ($550,000 gross receipts) Subgroup 2 ($325,000 gross receipts) No distant signals 1 permitted distant signal (1.00 DSE) Base Rate Fee = $3,292.25 SES = $1,946.75 The minimum fee for the whole system would equal $8,863.75 ($550,000 + $325,000 x 1.013%). The total royalty fee would equal $10,810.50 (minimum fee=$8,863.75 + SES=$1946.75). It is important to note here that instead of adding the calculated base rate and SES in Subgroup 2 to arrive at Subgroup 2's fee, the SES must be added on top of the entire system’s minimum fee. In other words, when the calculated base rate fee ($325,000.00 x 1 DSE x .01013 [for first DSE]=$3,292.25) is compared against the minimum fee ($8,863.75), the greater amount is then added to the SES ($325,000 x 1 DSE x .00599 [for first DSE in top 50 market]=$1,946.75). The statutory royalty fee then equals $10,810.50. We point out that if subgroup 1 carried 1 DSE (whether the same or a different signal), then the base rate fee would at least equal the minimum fee because the minimum fee is total gross receipts x 1 DSE x .01013. Hence, the total royalty fee would still be at least $10,810.50 (minimum fee =$8,863.75 + SES =$1,946.75). This scenario illustrates the complexities of determining royalty calculations under NCTA’s proposals. We anticipate some possible accounting issues associated with the SES and minimum fee calculations if NCTA’s proposals were adopted. We seek comment on whether our supposition is valid in this context. *Minimum Fee. * The minimum fee paid by cable operators could also be affected by NCTA’s proposals. For example, would a Form 1 system merging with a Form 3 system pay less than the $52 minimum fee if gross revenues are less than $5,133 (assuming that the Form 1 system carries no DSEs)? That is, a former Form 1 system grossing $3,000 would apply the 1.013% minimum royalty rate for Form 3 systems, resulting in a possible royalty fee of $30.39. According to our records, there are about 500 cable systems with gross revenues less than $5,133 that filed for the 2006/1 accounting period. *Single Filers/Shared Headends* . SOA filing and royalty payment issues emerge as well under NCTA’s proposal. For example, systems A and B merge, but both have been filing a single SOA because they operated from a shared single headend. After their merger, the systems would still file a single SOA. However, since they were under separate ownership, should they be allowed to compute their royalties separately under NCTA’s proposed definition as if they were separate systems? Are there any other processing and procedural issues, similar to this one, that may arise under NCTA’s approach, but that we have not yet identified? E. The Market Quota Rules The FCC does not currently restrict the kind and quantity of distant signals a cable operator may retransmit. Nevertheless, the FCC’s former market quota rules, which did limit the number of distant station signals carried and were part of the FCC’s local and distant broadcast carriage rules in 1976, are still relevant for Section 111 purposes. These rules are integral in determining:
(1)whether broadcast signals are permitted or non-permitted;
(2)the applicable royalty fee category; and
(3)a station’s local or distant status for copyright purposes. Broadcast station signals retransmitted pursuant to the former market quota rules are considered permitted stations and are not subject to a higher royalty rate. To put these rules in context, a cable system in a smaller television market (as defined by the FCC) was permitted to carry only one independent television station signal under the FCC’s former market quota rules. Currently, a cable system in a smaller market is permitted to retransmit one independent station signal for copyright purposes. A cable system located in the top 50 television market or second 50 market (as defined by the FCC) was permitted to carry more independent stations under the former market quota rules. The former market quota rules did not apply to cable systems located “outside of all markets” and these systems under Section 111 are currently permitted to retransmit an unlimited number of television stations without incurring the 3.75% fee (although these systems still pay at least a minimum copyright fee or base rate fee for those stations). There are other bases of permitted carriage under the current copyright scheme that are tied to the FCC’s former carriage requirements. They include:
(1)specialty stations;
(2)grandfathered stations;
(3)commercial UHF stations placing a Grade B contour over a cable system;
(4)noncommercial educational stations;
(5)part time or substitute carriage; and
(6)a station carried pursuant to an individual waiver of FCC rules. If none of these permitted bases of carriage are applicable, then the cable system pays a relatively higher royalty fee for the retransmission of that station. NCTA does not seem to address the fact that all of the FCC’s old rules and regulations would be applicable when reporting information and determining the permitted basis of carriage of partially carried stations ( *i.e.* subscriber groups) on the SA-3 Form. In our view, when two cable systems located in a top-50 major television market (as defined by FCC regulations) merge and the operator then creates subscriber groups based on differing signal carriage complements, the merged system’s allotment of independent market quota stations would not increase or change. That is, if each of the former systems had two distant independent stations as their market quota, the newly merged system’s market quota remains two distant independent stations, regardless of whether those two stations were identical or different. Suppose, for example, that System A previously reported on its SOA that WGN and WSBK were its distant independent market quota signals while System B previously reported WPIX and WWOR were its distant independent market quota signals. Under the subscriber group approach, and based on the FCC rules in existence in 1976, the new merged system would still have a market quota of two distant independent signals. Hence, two of the signals above would be subject to the 3.75% fee unless another basis of permitted carriage is applicable. See supra. We seek comment on whether this would be the appropriate application of the market quota rules under NCTA’s subscriber group proposal. F. The 3.75% Fee and Phantom Signals *Issue.* In addition to the market quota issue described above, there is an additional outstanding question regarding the permitted versus non-permitted treatment of phantom signals. The Copyright Office has historically accepted the retransmission of phantom signals at the permitted rate (“base rate fee”). However, some cable operators have raised concern that the Copyright Office might find, at some point in the future, that the retransmission of a phantom signal should be treated as if it were actually carried and thus subject to the 3.75% fee as a non-permitted signal. In the absence of a clear policy statement on this matter, the Copyright Office has not stipulated payment of the 3.75% fee and has left the decision as to which rate applies to the operator’s discretion. *Historical Context.* In 1982, the Copyright Royalty Tribunal made two types of royalty rate adjustments in response to FCC deregulatory actions at that time. One adjustment was the surcharge on certain distant signals to compensate copyright owners for the carriage of syndicated programming formerly prohibited by the FCC's syndicated exclusivity rules in effect on June, 24, 1981 (former 47 CFR 76.151 et seq.). The second adjustment raised the royalty rate to 3.75% of gross receipts per additional distant signal equivalent resulting from carriage of distant signals not generally permitted to be carried under the FCC's distant signal rules prior to June 25, 1981. In late 1982 and early 1983, the Copyright Office received numerous requests from cable operators for advice or interpretive rulings regarding the application of the 3.75% fee in specific instances. The Copyright Office initiated a proceeding (Docket RM 83-3) by publishing a Notice of Inquiry, 48 FR 6372 (Feb. 11, 1983), in which it summarized the issues presented for guidance and requested public comment on four general issues:
(1)substitution of nonspecialty independent stations for specialty stations;
(2)carriage of the same signal in expanded geographic areas;
(3)expanded temporal carriage of signals carried on a part-time or substitute basis under the former FCC rules before June 25, 1981; and
(4)signals for which waivers were pending with the FCC on June 24, 1981, and later dismissed as mooted by FCC deregulation. Under the former FCC rules, some cable systems were permitted to carry specified distant signals only within certain communities of the system. For example, under paragraph
(a)of the FCC's former Section 76.55, a community unit was generally not required to delete any television broadcast signal which it was authorized to carry or was lawfully carrying prior to March 31, 1972 (“grandfathered” signals). The system was generally not permitted, however, to expand the grandfathered signals into other communities within the system. Also, under the former rules, a cable system located partly within a market and partly outside of all markets was allowed to transmit an unlimited number of distant signals, but the system would not have been permitted to transmit all of those signals to subscriber groups located in a smaller or top 100 television market if the number of signals exceeded the applicable FCC carriage restrictions. In applying the 3.75% rate, the following questions arose:
(1)if the cable system after FCC deregulation expanded the geographic coverage of a “grandfathered” signal into previously restricted communities within the same system, does the 3.75% fee apply to the new subscriber groups, and
(2)if a cable system that is located partly without and partly within a television market expanded the geographic coverage of a signal previously permitted only in the area outside of all television markets, does the 3.75% rate apply to part or all of the subscribers to the system? *See Compulsory License for Cable Systems* , 49 FR 14944 (Apr. 16, 1984). The Copyright Office's interpretation of the Copyright Act in these instances in the early 1980s had been that, unless the signal is partly distant only to some subscribers, copyright royalty fees for distant signals carried to any part of a cable system as defined in the Copyright Act must be computed on the basis of total, aggregated gross receipts from all subscribers to the system. This position, at the time, was based upon the lack of any express provision allowing allocation of gross receipts, except for partially distant-partially local signals. *Id.* The Copyright Office had stated that the different communications and copyright law definitions of the term “cable system” had meant that the Copyright Act requires payment of copyright fees even though not all subscribers of the cable system were eligible to receive a particular distant signal because of FCC restrictions. To the extent the Copyright Office was aware that a cable system failed to report total gross receipts from all subscribers, the Licensing Division questioned the correctness of the Statement of Account and attempted to obtain an amended filing and additional payment of copyright fees. In an unknown number of cases, the Copyright Office was not made aware of under-reporting of gross receipts. Some cable systems accepted the Copyright Office's interpretation and paid copyright fees accordingly. In other cases, cable systems refused to accept the Copyright Office's interpretation of the Act and made an allocation of gross receipts to reflect only those subscribers who actually received the signal. *Id.* In 1984, the Copyright Office agreed with those cable systems asserting that the 3.75% rate does not apply to carriage of the same signal on an expanded geographic basis. The Copyright Office stated that the Copyright Royalty Tribunal did not have the authority or the intention to apply the 3.75% rate in any case where additional distant signal equivalents do not result from the FCC deregulation, and no additional DSE's accrue from expanded geographic coverage of the same signal. The Copyright Office held that since no additional DSE's accrued, the fact that the FCC's rules formerly restricted carriage to certain communities within the system was irrelevant. *Id.* In 1989, the Copyright Office reiterated and clarified its position regarding the expanded geographic carriage rule. The Copyright Office stated that cable systems may pay the non-3.75% rate in some cases where expanded geographic carriage of certain signals occurs. The Office clarified that Section 201.17(h) of the Copyright Office’s rules was specifically limited to the situation in which a signal was actually carried in only part of a system due to the pre-June 25, 1981, FCC carriage restrictions. In adopting that regulation as part of the implementation of the CRT’s 1982 rate adjustment, the Office stated that the “expanded geographic carriage” which resulted directly from the FCC's 1980 deregulation order does not represent any “additional DSE” because before deregulation the system had to pay royalties system-wide for FCC restricted signals. *See* 49 FR 14944 (Apr. 16, 1984) and 49 FR 26722 (June 29, 1984). The Copyright Office commented that, in 1984, it addressed issues relating to the CRT's 1982 rate adjustment, and it did not have before it any evidence or comment regarding merger or acquisition of cable systems. The Copyright Office stated that the regulation therefore only applied to the expansion of signal coverage within a system resulting from the FCC’s 1980 deregulation. It did not cover situations where expanded carriage of a signal results from the creation of a new system through merger or acquisition, which operates in contiguous communities. *See Compulsory License for and Merger of Cable Systems* , 54 FR 38390 (Sept. 18, 1989). In 1997, the Copyright Office further clarified its position regarding the imposition of the 3.75% fee. At that time, the Copyright Office amended its rules with respect to the application of the CRT’s 3.75% fee decision to partially permitted/partially non-permitted distant signals. When the Copyright Office first adopted regulations in 1984 to implement the 3.75% fee, the proper treatment of signals that were partially permitted/non-permitted was raised, and the Copyright Office deferred giving guidance. *Compulsory License for Cable Systems* , 49 FR 26722, 26726 (June 29, 1984). As a result, some cable systems had reported those signals as entirely permitted and have paid the current base rates. Others had reported those signals as entirely non-permitted and have paid the 3.75% fee. After much consideration, the Copyright Office decided that where a signal is partially permitted/partially non-permitted, the current base rates would apply to those subscribers in communities where the signal would have been permitted on or before June 24, 1981, and the 3.75% fee would apply to those subscribers in communities where the signal would not have been permitted before 1981. The effect of the Copyright Office’s 1997 decision was that cable systems would no longer be able to elect whether to consider the signal entirely permitted or entirely non-permitted. *See Cable Compulsory License: Merger of Cable Systems and Individual Pricing of Broadcast Signals* , 62 FR 23360 (Apr. 30, 1997). *Questions* . The extended discussion of the history of the 3.75% fee, above, reveals that while most questions involving its application have been resolved, the Copyright Office has never directly addressed and discussed its application to phantom signals. On one hand, the 3.75% fee could be applied to non-permitted phantom signals because there is no specific statutory provision, copyright policy, or Copyright Office regulation exempting such payment. On the other hand, the cable industry generally has, for nearly three decades, reported and paid royalties under the assumption that the 3.75% fee would not be applied to non-permitted phantom signals. To wit, our review of the statements of account indicate that most cable systems have paid either the Base Rate Fee or no fee for phantom signals while very few cable systems have paid the 3.75% fee for these signals. We seek comment on the appropriate policyin this context. Should a cable operator pay a 3.75% fee for the retransmission of phantom signals? If so, what are the policy rationales for adopting such a policy? If not, what factors weigh against the levy of such a fee on phantom signals? If we adopted NCTA’s subscriber group approach, would this controversy be rendered moot? If so, why? *Forms 1 and 2 Cable System Issues* . The NCTA’s Petition for Rulemaking, and the discussion herein, has, so far, focused on matters related to Form 3 cable systems. However, to provide a comprehensive analysis of NCTA’s proposals, we find it necessary to examine royalty issues related to small cable systems that file Form 1 and Form 2 statements of accounts. We note that the Form 1, 2, and 3 classifications have been the preferred way of categorizing cable systems for royalty purposes over the last thirty years, but the forms are only administrative implementations of the law, and not the law itself. In fact, cable operators pay royalties based on their gross receipts under mathematical formulas established in Section 111(d)(1)(B), (C), and
(D)of the Act. Form 1 is actually only half of Section 111(d)(1)(C). Form 2 is actually the other half of Section 111(d)(1)(C) and all of Section 111(d)(1)(D). Form 3 is Section 111(d)(1)(B). Stated otherwise, Form 1 is for cable systems with gross receipts of $0-$137,100, Form 2 is for cable systems with gross receipts of more than $137,100 but less than $527,600 and Form 3 is for cable systems with gross receipts of $527,600 and above. Under the statute (and based on adjusted gross receipt threshold levels), however, Section 111(d)(1)(C) targets cable systems with gross receipts of $0-$263,800, Section 111(d)(1)(D) is directed at cable systems with gross receipts of more than $263,800 but less than $527,600, and Section 111(d)(1)(B) is meant for cable systems with gross receipts of $527,600 and above. We seek comment on the effect, if any, of NCTA’s subscriber group proposal on smaller cable systems that use the Form 1 and 2 SOAs. We specifically ask how royalty rates would be affected and how NCTA’s proposal may eliminate or alleviate the phantom signal problem. Based on NCTA’s submissions, it appears that its proposals would not have any net effect because two smaller operators (that have merged and have previously filed Form 1 or Form 2 SOAs) would pay the same royalties, with or without phantom signals, if they still fall below the $527,600 threshold, as delineated above. It also appears, based on the information before us, that NCTA’s proposals would not provide any type of regulatory relief for smaller systems that file Forms 1 and 2 because those elements of the statute that lend to the creation of phantom signals under Section 111( *e.g.* , DSEs, permitted and non-permitted signals, market quotas and other intricacies pertinent to larger cable systems) are inapplicable. We seek comment on these conclusions and whether our interpretations of NCTA’s proposals are accurate. G. Section 109 Report On December 8, 2004, the President signed the Satellite Home Viewer Extension and Reauthorization Act of 2004, a part of the Consolidated Appropriations Act of 2004. See Pub. L. No. 108-447, 118 Stat. 3394
(2004)(hereinafter SHVERA). Section 109 of the SHVERA requires the Copyright Office to examine and compare the statutory licensing systems for the cable and satellite television industries under Sections 111, 119, and 122 of the Copyright Act and recommend any necessary legislative changes no later that June 30, 2008. Under Section 109, Congress indicated that the report shall include, inter alia, an analysis of whether the licenses under such sections are still justified by the bases upon which they were originally created. A Notice of Inquiry expansively addressing the statutory licenses was recently published in the Federal Register. *See* 72 FR 19039 (Apr. 16, 2007) (“Section 109 NOI”). We understand our responsibilities under SHVERA to closely examine the continued relevancy of Section 111 and its many provisions, and in fact, the phantom signal issue was one of the issues raised for comment in the Section 109 NOI. 16 However, we believe the matters raised herein deserve consideration, sooner rather than later. Therefore, we shall continue the rulemaking process in this docket while working on recommendations to Congress on the Section 109 Report. 16 Several parties commented on phantom signals in response to the Section 109NOI. *See, e.g* ., ACA comments at 10-13, NCTA comments at 18-19, Joint Sports reply comments at 11, NAB comments at 11, and Program Suppliers comments at 6. III. Conclusion We hereby seek comment from the public on issues associated with the definition of a cable system and the creation of subscriber groups (based on the carriage of distant television signals) under Section 111 of the Act and Section 201.17 of the Copyright Office’s rules. If there are any other issues relevant to the phantom signal problem not raised or identified in this NOI, interested parties are encouraged to bring those matters to the attention of the Copyright Office. Dated: November 19, 2007 Marybeth Peters, Register of Copyrights APPENDIX SET 1 - MERGER OF SA-2 AND SA-3 CABLE SYSTEMS Scenario 1: Two separate systems before a merger under current Copyright Office regulations. System 1 is a Form SA3 and System 2 is a Form SA1-2. **System 1** **System 2** $550,000.00 gross receipts $325,000.00 gross receipts Top 50 Major Market 2 permitted distant independent signals (A and B) 1 non-permitted distant independent signal
(C)Minimum fee =$5,571.50 or Base rate = $9,245.50+ 3.75% fee = $20,625.00 **Royalty fee = $29,870.50** **Royalty fee = $1,931.00** **Table 1a: Two separate systems before a merger using current CO regulations.** Scenario 2: One system after a merger under current Copyright Office regulations. All subscribers are receiving the same set of signals. $875,000.00 gross receipts 2 permitted signals (A & B) 1 non-permitted signal
(C)Minimum fee = $8,863.75 or Base rate fee = $14,708.75+ 3.75% fee = $32,812.50 **Royalty fee = $47,521.25** **Table 1b: One system after a merger using current CO regulations (all subscribers are receiving the same signals).** Scenario 3: One system after a merger reflecting differing sets of signals received by subscribers applying current Copyright Office regulations. Former SA1-2 system in scenario 1 above (System 2) carried a different independent signal and network signal (D and E below) which are carried in only a portion of this new merged SA-3 system. $875,000.00 gross receipts 2 permitted independent distant signals (A & B) 1 permitted distant network signal
(E)2 non-permitted distant independent signals (C & D) Minimum fee = $8,863.75 or Base rate fee = $16,170.00+ 3.75% fee = $65,625.00 **Royalty Fee = $81,795.00** **Table 1c: One system after a merger reflecting differing sets of signals to subscribers using current Copyright Office regulations.** Scenario 4: One system after a merger under the NCTA’s proposal and reflecting the former two separate systems in scenario 1 - All subscribers are treated as receiving the same set of signals as before the merger. Both former systems would use the rates of a Form SA-3 system. Former System 2 below (the former SA1-2 system) would likely pay the “minimum fee” rate with the presumption that no DSEs would apply to the former SA1-2 system’s gross receipts. **Former System 1** **Former System 2** Same as System 1 under scenario 1 Minimum fee = $3,292.25 ($325,000 x 1.013%) **Royalty fee =$29,870.50** **Royalty Fee = $3,292.25** **Combined Royalty Fee $33,162.75** **Table 1d: One system after a merger under the NCTA’s proposal to use subscriber groups to reflect the former two separate systems.** Scenario 5: One system after a merger under the NCTA’s subscriber group proposal- signals being carried in only portions of the merged system. All subscribers are not receiving the same set of signals. This scenario presumes that DSEs would apply to the gross receipts of the former SA1-2 system. **Former System 1** **Former System 2** $550,000.00 gross receipts $325,000.00 gross receipts Top 50 Major Market Top 50 Major Market 2 permitted distant independent signals (A/B) 1 Permitted distant network signal
(E)1 non-permitted distant independent signal
(C)1 permitted distant indep. signal
(D)Minimum fee = $5,571.50 or Minimum fee = $3,292.25 Base rate = $9,245.50+ Base rate = $3,835.00 3.75% fee = $20,625.00 **Royalty fee = $29,870.50** **Royalty fee = $3,835.00** **Combined Royalty fee = $33,705.50** **Table 1e: system after a merger under the NCTA’s subscriber group proposal.** As illustrated above, the cable system’s total royalty fee obligation would be considerably less under the NCTA subscriber group proposal (Table 1e) when compared with the Copyright Office’s existing methodology (Table 1c) which does not currently permit calculations based on subscriber groups and partial carriage. The following examples concern situations where a cable system straddles two television markets. Like the examples illustrated above, there is a difference in royalty fee amounts if the NCTA’s subscriber group proposal were in effect. SET 2 - MERGER OF TWO SA-3 SYSTEMS Scenario 1: Two separate SA-3 systems before a merger under current Copyright Office regulations. Each system is retransmitting different distant signals. **System 1** **System 2** Top 50 major market; $550,000.00 gross receipts Second 50 major market; $550,000.00 gross receipts 3 distant independent signals (A, B, & C) 3 distant independent signals (D, E, & F) 2 permitted signals (A & B) 2 permitted signals (D & E) 1 non-permitted signal
(C)1 non-permitted signal
(F)Minimum fee = $5,571.50 Minimum fee = $5,571.50 Base rate fee= $9,245.50 Base rate fee= $9,245.50 3.75 % fee= $20,625.00 3.75 % fee= $20,625.00 **Royalty fee = $29,870.50** **Royalty fee = $29,870.50** **Table 2a: Two separate SA-3 systems before a merger under current Copyright Office regulations.** Scenario 2: One system after a merger under current Copyright Office regulations. Top 50 major market and second 50 major market $1,100,000.00 gross receipts 3 wholly permitted independent signals (A, B, & D) 3 non-permitted independent signals (C, E, & F) Minimum fee =$11,143.00 Base rate fee =$25,839.00 3.75% fee =$123,750.00 **Royalty Fee = $149,589.00** **Table 2b: One system after a merger under Copyright Office regulations.** Scenario 3: One system after a merger under NCTA’s subscriber group proposal. All signals carried in the former separate SA-3 systems in scenario 1 above are not carried throughout the new merged cable system. This merged scenario reflects two (or more) subscriber groups patterned after the differing pre-merger signal carriage line-ups (see scenario 1, above). Royalty fee same as combined amount in Scenario 1 above $59,741.00 Hence, if two subscriber groups are used, calculation of the royalty fee results in the same royalty fee as above in scenario 1 when they were still separate systems (all else being equal). Other offshoot scenarios arising from the merger include permutations of the number and makeup of subgroups to reflect partial carriage of certain stations to some subscribers. Notwithstanding such, the royalty fee would still be less than the CO calculated fee in scenario 2 above. **Table 2c: One system after a merger using NCTA’s approach of subscriber groups for phantom signals.** SET 3 -SA-3 SYSTEM MERGER AND PARTIALLY-DISTANT SIGNALS Scenario 1: Two separate SA-3 systems before a merger with one partially distant signal that is carried in only one system under current Copyright Office regulations. **System 1:** 1 partially distant independent permitted signal (A). Group I Group II Top 50 major market Top 50 major market Gross receipts = $550,000.00 Gross receipts = $550,000.00 No distant signals 1 permitted distant independent signal
(A)Base rate fee = $5,571.50 Minimum fee = $11,143.00 **Royalty fee = $11,143.00** **System 2:** * Group I* Top 50 major market Gross receipts $1,800,000.00 2 distant independent permitted signals (B & C) Minimum fee = $18,234.00 or Base rate fee = $30,258.00 **Royalty fee = $30,258.00** **Table 3a: Two separate SA-3 systems before a merger with one partially-distant signal.** Scenario 2: One system after a merger under current Copyright Office regulations with one partially distant signal. Former system 1 above now pays for two additional permitted signals (B and C) in the merged system that it did not previously carry. Former system 2 above now pays for an additional permitted signal
(A)in the merged system that it did not previously carry. System gross receipts = $2,900,000.00 Minimum fee = $29,377.00 For purposes of calculating the base rate fee, the merged system has two subgroups because of the partially distant signal
(A)which is local in Group I. *Group I* *Group II* Gross receipts = $550,000.00 Gross receipts = $2,350,000.00 2 distant independent permitted signals (B & C) 3 distant independent permitted signals (A, B, C) Base rate fee = $9,245.50 Base rate = $55,201.50 Royalty Fee = $64,447.00 **Table 3b: One system after a merger under current Copyright Office regulations with a partially-distant signal.** Scenario 3: One system after a merger under NCTA’s subscriber group proposal to reflect the carriage of a partially distant signal (A). There would apparently be three subscriber groups rather than two subgroups based on the partially-distant scenario involved above in scenario 2. Signal A is local in Group I, distant in Group II, and not carried in Group III. Signals B and C are not carried in Groups I and II. System Gross Receipts = $2,900,000.00 Minimum Fee = $29,377.00 Group I Group II Group III $550,000.00 gross receipts $550,000.00 gross receipts $1,800,000.00 gross rec. 1 distant indep. permitted signal
(A)2 distant indep. permitted signals (B and C) Base Rate = $5,571.50 Base Rate = $30,258.00 Royalty fee =$35,829.50 **Table 3c: One system after a merger under NCTA’s subscriber group proposal to reflect the carriage of a partially-distant signal.** Similar to the scenarios illustrated in Sets 1 and 2, the above royalty fee under the NCTA’s subscriber group proposal in Table 3c is less than under the Copyright Office’s current methodology. [FR Doc. E7-24079 Filed 12-11-07; 8:45 am] BILLING CODE 1410-30-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2006-0806; FRL-8504-6] Approval and Promulgation of Air Quality Implementation Plans; Montana; Revisions to the Administrative Rules of Montana—Air Quality, Incinerators AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to approve revisions to the State Implementation Plan
(SIP)submitted by the Governor of Montana on December 8, 1997, May 28, 2003, and August 25, 2004. The December 8, 1997 submittal revised the Administrative Rules of Montana (ARM ) Chapter 8, Subchapter 3, Section 17.8.316 (Incinerators) by adding Subsection (6). ARM 17.8.316(6) excludes incinerators from having to comply with the other provisions of ARM 17.8.316, including the particulate matter emissions standard of 0.10 grains per cubic foot and the 10% opacity standard, if these sources have been issued a Montana air quality permit under 75-2-215, Montana Code Annotated (MCA), and ARM 17.8.770, which pertain to permitting of solid or hazardous waste incinerators. The August 25, 2004 submittal made a minor editorial revision to ARM 17.8.316(5). The May 28, 2003 submittal made minor editorial revisions to ARM 17.8.316(6). This action is being taken under section 110 of the Clean Air Act (CAA). DATES: Comments must be received on or before January 11, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-OAR-2006-0806, by one of the following methods: • *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail:* *daly.carl@epa.gov.* • *Fax:*
(303)312-6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • *Mail:* Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. • *Hand Delivery:* Director, Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Such deliveries are only accepted Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. Special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R08-OAR-2006-0806. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA, without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Carl Daly, Air and Radiation Program, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202,
(303)312-6416, *daly.carl@epa.gov.* SUPPLEMENTARY INFORMATION: Table of Contents I. General Information II. Summary of SIP Revision III. Proposed Action IV. Statutory and Executive Order Reviews Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i)The words or initials *Act* or *CAA* mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii)The words *EPA,* *we,* *us* or *our* mean or refer to the United States Environmental Protection Agency.
(iii)The initials *SIP* mean or refer to State Implementation Plan.
(iv)The words *State* or *Montana* mean the State of Montana, unless the context indicates otherwise. I. General Information A. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: a. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. d. Describe any assumptions and provide any technical information and/or data that you used. e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. f. Provide specific examples to illustrate your concerns, and suggest alternatives. g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. h. Make sure to submit your comments by the comment period deadline identified. II. Summary of SIP Revision On December 8, 1997, the State of Montana submitted to EPA a SIP revision request. The revision added Subsection
(6)to Section 17.8.316 (Incinerators) of the Administrative Rules of Montana (ARM), Chapter 8 (Air Quality), Subchapter 3 (Emission Standards). Subsection
(6)exempts incinerators from the requirements of ARM 17.8.316, including the particulate matter emissions standard of 0.10 grains per cubic foot and the 10% opacity standard, if these sources have been issued a Montana air quality permit under 75-2-215, MCA, and ARM 17.8.706(5). 1 2 1 Montana Code Annotated
(MCA)75-2-215 (Solid or hazardous waste incineration—Additional permit requirements) 2 ARM 17.8.706(5) was recodified to ARM 17.8.770 effective on December 6, 2002. This provision has not been submitted by the State to be incorporated into the federally aproved SIP. ARM 17.8.770 (ARM 17.8.706(5)) requires applicants for a preconstruction permit for an incineration facility to submit a human health risk assessment protocol and a human health risk assessment. The revision also included wording changes to ARM 17.8.316. Most are minor editorial or technical corrections and do not change the substance of the rule. One of the changes was to substitute the words “solid and hazardous waste” for the word “refuse” in the rule. The effect of this change was to extend the rule requirements to incinerators burning solid or hazardous waste, not just refuse. The full text of the changes can be found in our Technical Support Document (TSD), which is contained in the Docket for this action. We interpret ARM 17.8.316(6) to allow terms of a permit to override a requirement that has been approved as part of the SIP (i.e., the provisions in ARM 17.8.316(1)-(5)). Therefore, this revision requires an analysis showing that this new rule will not interfere with compliance with the National Ambient Air Quality Standards (NAAQS) or Prevention of Significant Deterioration
(PSD)increments. Section 110(l) of the CAA states that EPA cannot approve a SIP revision that would interfere with any applicable requirement concerning attainment or reasonable further progress, as defined in Section 171 of the CAA, or any other applicable requirements of the CAA. Montana did not provide any demonstration in its December 8, 1997 SIP revision submittal that ARM 17.8.316(6) meets these criteria. Subsequent to the State's submittal, EPA requested information from the Montana Department of Environmental Quality
(DEQ)in order to conduct its own analysis on the impact of ARM 17.8.316(6) on the attainment and maintenance of the NAAQS for particulate matter with an aerodynamic diameter less than or equal to 10 and 2.5 micrometers (PM-10 and PM-2.5) and compliance with the PSD PM-10 increments. Based on this analysis, EPA has determined that this specific change to a SIP requirement will not adversely impact the attainment and maintenance of the PM-10 and PM-2.5 NAAQS, or compliance with the PM-10 increments, in Montana. EPA's analysis of this revision's impact is contained in the TSD for this action. In addition, the TSD discusses EPA's verification that ARM 17.8.316(6) will not impact compliance with, or the ability to enforce, the federal New Source Performance Standards
(NSPS)or Maximum Achievable Control Technology
(MACT)regulations. Based on a letter from the Montana DEQ dated October 2, 2007, and its own consideration of the rule change, EPA has determined that ARM 17.8.316(6) will not interfere with, supersede, or replace any NSPS or MACT requirements for sources, or affect in any way the State's, EPA's, or any other person's ability to enforce such NSPS or MACT requirements. The TSD and the DEQ letter are available for review as part of the Docket for this action. On August 25, 2004, the State of Montana submitted to EPA a SIP revision request that, in part, revised Subsection
(5)to ARM 17.8.316 (Incinerators). This revision makes a minor change to the third sentence of Subsection
(5)from: “Testing shall be conducted in accordance with ARM 17.8.106 and the Montana Source Testing Protocol and Procedures Manual”; to: “Testing shall be conducted in accordance with ARM 17.8.106 and the Montana Source Test Protocol and Procedures Manual.” On May 28, 2003, the State of Montana submitted to EPA a SIP revision request that, in part, revised ARM 17.8.316(6). This revision makes minor changes to Subsection
(6)from: “This rule does not apply to incinerators for which an air quality preconstruction permit has been issued under 75-2-215, MCA, and ARM 17.8.706(5)”; to: “This rule does not apply to incinerators for which a Montana air quality permit has been issued under 75-2-215, MCA, and ARM 17.8.770.” EPA's review of the revisions to ARM 17.8.316 indicates that they are consistent with the CAA, and we are proposing to approve the revisions to ARM 17.8.316 into the Montana SIP. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA Regional office listed in the ADDRESSES section of this document. III. Proposed Action EPA is proposing to approve the revisions to ARM 17.8.316, submitted on December 8, 1997, May 28, 2003, and August 25, 2004, into the Montana SIP. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: December 4, 2007. Kerrigan G. Clough, Acting Regional Administrator, Region 8. [FR Doc. E7-24093 Filed 12-11-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2007-0211; FRL-8505-1] RIN 2060-AO16 National Emission Standards for Hazardous Air Pollutant Emissions: Group I Polymers and Resins (Polysulfide Rubber Production, Ethylene Propylene Rubber Production, Butyl Rubber Production, Neoprene Production); National Emission Standards for Hazardous Air Pollutants for Epoxy Resins Production and Non-Nylon Polyamides Production; National Emission Standards for Hazardous Air Pollutants for Source Categories: Generic Maximum Achievable Control Technology Standards (Acetal Resins Production and Hydrogen Fluoride Production) AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: This proposed rule requests public comment on the residual risk and technology reviews for eight industrial source categories regulated by four national emission standards for hazardous air pollutants (HAP). The eight industrial source categories and the four national emission standards are listed in Table 3 of this preamble. The underlying national emission standards that are under review in this action limit and control HAP. We are proposing that no revisions to the national emission standards regulating the eight source categories listed in Table 3 of this preamble are required at this time under section 112(f)(2) or 112(d)(6) of the Clean Air Act. DATES: *Comments* . Comments must be received on or before February 11, 2008. *Public Hearing* . If anyone contacts EPA requesting to speak at a public hearing by December 27, 2007, a public hearing will be held on January 11, 2008. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2007-0211, by one of the following methods: • *www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-Docket@epa.gov* . • *Fax:*
(202)566-1741. • *Mail:* U.S. Postal Service, send comments to: EPA Docket Center (2822T), Docket ID No. EPA-HQ-OAR-2007-0211, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Please include a total of two copies. • *Hand Delivery:* In person or by courier, deliver comments to: EPA Docket Center (2822T), EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. Please include a total of two copies. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2007-0211. If commenting on the data in the Risk and Technology Review
(RTR)database, please format your comments as described in section III and IV of this preamble. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be confidential business information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the EPA Docket Center, Docket ID No. EPA-HQ-OAR-2007-0211, EPA West Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the EPA Docket Center is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: For questions about this proposed action, contact Ms. Mary Tom Kissell, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number:
(919)541-4516; fax number:
(919)685-3219; and e-mail address: *kissell.mary@epa.gov.* For specific information regarding the modeling methodology, contact Ms. Elaine Manning, Office and Air Quality Planning and Standards, Health and Environmental Impacts Division, Sector Based Assessment Group (C539-02), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number:
(919)541-5499; fax number:
(919)541-0840; and e-mail address: *manning.elaine@epa.gov.* For information about the applicability of these four national emission standards for hazardous air pollutants (NESHAP) to a particular entity, contact the appropriate person listed in Table 1 to this preamble. Table 1.—List of EPA Contacts for Group I Polymers and Resins, Group II Polymers and Resins, Acetal Resins Production, and Hydrogen Fluoride Production NESHAP for: OECA Contact 1 OAQPS Contact 2 Polymers and Resins, Group I Scott Throwe
(202)564-7013, *throwe.scott@epa.gov* David Markwordt
(919)541-0837, *markwordt.david@epa.gov* . Polymers and Resins, Group II Scott Throwe
(202)564-7013, *throwe.scott@epa.gov* Randy McDonald
(919)541-5402, *mcdonald.randy@epa.gov.* Acetal Resins Production Marcia Mia
(202)564-7042, *mia.marcia@epa.gov* David Markwordt
(919)541-0837, *markwordt.david@epa.gov* . Hydrogen Fluoride Production Marcia Mia
(202)564-7042, *mia.marcia@epa.gov* Bill Neuffer
(919)541-5435, *Neuffer.bill@epa.gov* . 1 OECA stands for the EPA's Office of Enforcement and Compliance Assurance. 2 OAQPS stands for EPA's Office of Air Quality Planning and Standards. SUPPLEMENTARY INFORMATION: *Regulated Entities.* The eight regulated industrial source categories that are the subject of today's proposal are listed in Table 2 to this preamble. Table 2 is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the proposed action for the source categories listed. These standards, and any changes considered in this rulemaking, would be directly applicable to sources as a Federal program. Thus, Federal, State, local, and tribal government entities are not affected by this proposed rule. The regulated categories affected by this action include: Table 2.—NESHAP for Eight Industrial Source Categories Category NAICS 1 Code MACT 2 Code Butyl Rubber Production 325212 1307 Ethylene-Propylene Rubber Production 325212 1313 Polysulfide Rubber Production 325212 1332 Neoprene Production 325212 1320 Epoxy Resins Production 325211 1312 Non-nylon Polyamides Production 325211 1322 Acetal Resins Production 325211 1301 Hydrogen Fluoride Production 325120 1409 1 North American Industry Classification System. 2 Maximum Achievable Control Technology. To determine whether your facility would be affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any of these NESHAP, please contact the appropriate person listed in Table 1 of this preamble in the preceding FOR FURTHER INFORMATION CONTACT section. *Submitting Comments/CBI.* Direct your comments to Docket ID No. EPA-HQ-OAR-2007-0211. If commenting on changes to the RTR database, please submit your comments in the format described in sections III and IV of this preamble. Do not submit CBI to EPA through *www.regulations.gov* or e-mail. Instead, send or deliver information identified as CBI only to the following address: Mr. Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2007-0211. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to Mr. Morales, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a CD-ROM or disc that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and EPA's electronic public docket without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. *Worldwide Web (WWW).* In addition to being available in the docket, an electronic copy of today's proposed action will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of the proposed action will be posted on the TTN(s policy and guidance page for newly proposed or promulgated rules at the following address: *http://www.epa.gov/ttn/oarpg/.* The TTN provides information and technology exchange in various areas of air pollution control. As discussed in more detail in sections III and IV of this preamble, additional information is available on the Risk and Technology Review Phase II webpage at *http://www.epa.gov/ttn/atw/rrisk/rtrpg.html.* This information includes source category descriptions and detailed emissions and other data that were used as inputs to the risk assessments. *Public Hearing.* If a public hearing is held, it will begin at 10 a.m. and will be held at EPA's campus in Research Triangle Park, North Carolina, or at an alternate facility nearby. Persons interested in presenting oral testimony or inquiring as to whether a public hearing is to be held should contact Ms. Mary Tom Kissell, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143-01), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone number:
(919)541-4516. *Outline.* The information presented in this preamble is organized as follows: I. Background A. What is the statutory authority for this action? B. Overview of the Four NESHAP C. How did we estimate risk posed by the eight source categories? D. What are the conclusions of the risk review? E. What are the conclusions of the technology review? II. Proposed Action III. How do I access and review the facility-specific data? IV. How do I submit suggested data corrections? V. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132, Federalism F. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898, Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. Background A. What is the statutory authority for this action? Section 112 of the Clean Air Act
(CAA)establishes a comprehensive regulatory process to address emissions of hazardous air pollutants
(HAP)from stationary sources. In accordance with CAA section 112(c), EPA identifies categories and subcategories of major sources that emit one or more of the HAP listed in CAA section 112(b). CAA section 112(d) then calls for EPA to promulgate national technology-based emission standards for each listed category or subcategory of sources. For “major sources” that emit or have the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year, these technology-based standards must reflect the maximum reductions of HAP achievable (after considering cost, energy requirements, and non-air health and environmental impacts) and are commonly referred to as maximum achievable control technology
(MACT)standards. The source categories listed in Table 3 to this preamble are eight source categories for which we have promulgated MACT standards. In what we refer to as the technology review, CAA section 112(d)(6) then requires EPA to review the CAA section 112(d) technology-based standards and to revise them “as necessary, taking into account developments in practices, processes, and control technologies,” no less frequently than every 8 years. If we conclude a revision is necessary, we must revise the standards. The residual risk review is described in section 112(f) of the CAA. CAA section 112(f)(2) requires us to promulgate standards for each category or subcategory of CAA section 112(d) sources “if promulgation of such standards is required in order to provide an ample margin of safety to protect public health * * * or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. 1 If standards promulgated pursuant to CAA section 112(d) and applicable to a category or subcategory of source emitting a pollutant (or pollutants) classified as a known, probable or possible human carcinogen do not reduce lifetime excess cancer risks to the individual most exposed to emissions from a source in the category or subcategory to less than 1-in-1 million, the Administrator shall promulgate standards under this subsection” for the source category (or subcategory). EPA's framework for making ample margin of safety determinations under CAA section 112(f)(2) is provided in the Benzene NESHAP (54 FR 38044, September 14, 1989) and was codified by Congress in CAA section 112(f)(2)(B). 1 Adverse environmental effect is defined in CAA section 112(a)(7) as any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas. B. Overview of the Four NESHAP The eight industrial source categories and four NESHAP that are the subject of today's proposal are listed in Table 3 to this preamble. NESHAP limit and control HAP that are known or suspected to cause cancer or have other serious human health or environmental effects. The NESHAP for these eight source categories generally required implementation of technologies such as steam strippers and incineration. Table 3.—List of National Emission Standards for Hazardous Air Pollutants (NESHAP) and Industrial Source Categories Affected by Today's Proposal Title of NESHAP Source categories affected by today's proposal Promulgated rule reference Compliance date NESHAP as referred to in this preamble NESHAP for Group I Polymers and Resins 1 Polysulfide Rubber Production Ethylene Propylene Rubber Production 61 FR 46905 (09/05/1996) 07/31/1997 Polymers and Resins I. Butyl Rubber Production. Neoprene Production NESHAP for Epoxy Resins Production and Non-nylon Polyamides Production Epoxy Resins Production Non-nylon Polyamides Production. 60 FR 12670 (03/08/1995) 03/03/1998 Polymers and Resins II. NESHAP for GMACT 2 Acetal Resins Production Hydrogen Fluoride Production. 64 FR 34853 (06/29/1999) 06/29/2002 GMACT. 1 The Polymers and Resins I NESHAP regulates nine source categories. We are performing the residual risk and technology review for four of them in this proposal. We will address the remaining five source categories in a separate risk and technology review rulemaking. 2 The source categories subject to the standards in the GMACT NESHAP are Acetal Resins Production and Hydrogen Fluoride Production. 1. Polymers and Resins I The Polymers and Resins I NESHAP applies to major sources and regulates HAP emissions from nine source categories. In today's proposal, we address four of the Polymer and Resins I sources categories—Polysulfide Rubber Production, Ethylene Propylene Rubber Production, Butyl Rubber Production, and Neoprene Production. HAP emissions from these processes can be released from storage tanks, process vents, equipment leaks, and wastewater operations. These four source categories involve the production of elastomers (i.e., synthetic rubber). An elastomer is a synthetic polymeric material that can stretch at least twice its original length and then return rapidly to approximately its original length when released. Elastomers have long, flexible, chainlike molecules that are able to undergo rapid rotation (i.e., flex) as a result of thermal agitation. Elastomers are produced via a polymerization process, in which monomers undergo intermolecular chemical bonds to form an insoluble, three-dimensional network (i.e., a polymer). Generally, the production of elastomers entails four processes:
(1)Raw material (i.e., solvent) storage and refining;
(2)polymer formation in a reactor (either via the solution process, where monomers are dissolved in an organic solvent, or the emulsion process, where monomers are dispersed in water using a soap solution);
(3)stripping and material recovery; and
(4)finishing (i.e., blending, aging, coagulation, washing, and drying processes). a. *Polysulfide Rubber Production.* Polysulfide rubber is a synthetic rubber produced by the reaction of sodium sulfide and p-dichlorobenzene (1,4-dichlorobenzene) at an elevated temperature in a polar solvent. Polysulfide rubber is resilient, resistant to solvents, and has low temperature flexibility, facilitating its use in seals, caulks, automotive parts, rubber molds for casting sculpture, and other products. During the development of the NESHAP, we identified one polysulfide rubber production facility as a major source and subject to the Polymers and Resins I NESHAP. This facility consisted of raw material storage vessels and was designated as a major source because it was co-located with another source. This polysulfide facility has been dismantled and we are not aware of any other facilities currently subject to the NESHAP. (Even though no polysulfide rubber facilities are currently in operation, we completed a risk analysis based on the available information on this facility as of 2002.) The only HAP reported for this category in the 2002 National Emissions Inventory
(NEI)was methylene diphenyl diisocyanate. b. *Ethylene Propylene Rubber Production.* Ethylene propylene elastomer is an elastomer prepared from ethylene and propylene monomers. Common uses for these elastomers include radiator and heater hoses, weather stripping, door and window seals for cars, construction plastics blending, wire and cable insulation and jackets, and single-ply roofing membranes. We believe five ethylene propylene rubber production facilities are currently subject to the Polymers and Resins I NESHAP. Hexane, which is the HAP used as the solvent at three of the plants, accounts for the majority of the HAP emissions from these facilities (over 95 percent of the total HAP emissions by mass). These facilities also reported relatively small emissions of ethyl chloride, ethylene glycol, and hydrogen chloride. Two facilities do not use hexane in their processes. One facility uses toluene instead of hexane as a solvent and the other facility uses a gas-phase process where methanol is the only HAP emitted. c. *Butyl Rubber Production.* The Butyl Rubber Production source category includes any facility that manufactures copolymers of isobutylene and isoprene. Butyl rubber is very impermeable to common gases and resists oxidation. A specialty group of butyl rubbers are halogenated butyl rubbers, which are produced commercially by dissolving butyl rubber in hydrocarbon solvent and contacting the solution with gaseous or liquid elemental halogens such as chlorine or bromine. Halogenated butyl rubber resists aging to a higher degree than the nonhalogenated type and is more compatible with other types of rubber. Uses for butyl rubber include tires, tubes, and tire products; automotive mechanical goods; adhesives, caulks, and sealants; and pharmaceutical uses. We believe two butyl rubber production facilities are currently subject to the Polymers and Resins I NESHAP. The primary HAP emitted from butyl rubber production facilities are methyl chloride (53 percent of the total HAP emissions by mass) and hydrochloric acid (34 percent). Hexane is also emitted from the production of halobutyl rubber, and it makes up around 13 percent of the total HAP emissions from the category. d. *Neoprene Production.* Neoprene is a polymer of chloroprene. Neoprene was originally developed as an oil-resistant substitute for natural rubber, and its properties allow its use in a wide variety of applications including wetsuits, gaskets and seals, hoses and tubing, plumbing fixtures, adhesives, and other products. We believe that one neoprene production facility is currently subject to the Polymers and Resins I NESHAP. The primary HAP emitted by production are chloroprene and toluene, with chloroprene accounting for over 80 percent of the total emissions. 2. Polymers and Resins II The Polymers and Resins II NESHAP applies to major sources and regulates HAP emissions from two source categories—epoxy resins production and non-nylon polyamides production. HAP emissions from these source categories can be released from storage tanks, process vents, equipment leaks, and wastewater operations. a. *Epoxy Resins Production.* The Epoxy Resins Production source category generates HAP emissions from the manufacture of basic liquid epoxy resins used in the production of glues, adhesives, plastic parts, and surface coatings. This source category does not include specialty or modified epoxy resins. We believe three epoxy resins production facilities are currently subject to the Polymers and Resins II NESHAP. The HAP emitted in the greatest quantity by mass from these facilities are epichlorohydrin (referred to by its synonym 1-chloro-2,3-epoxypropane in the NEI and in the accompanying emissions summary table) and chlorobenzene. The total emissions for these two HAP account for approximately 87 percent of the total HAP mass emitted by the facilities regulated by the NESHAP. Epichlorohydrin is emitted in the greatest quantity and is reported as an emission of all three facilities. Other HAP such as phenol, xylenes, ethyl benzene, propylene dichloride, allyl chloride, 1,3-dichloropropene, glycol ethers, methyl chloride, toluene, acrolein, benzyl chloride, and ethyl acrylate are emitted in smaller quantities. All the other HAP are reported as emissions by only one or two of the facilities. b. *Non-nylon Polyamides Production.* The Non-nylon Polyamides Production source category generates HAP emissions from the manufacture of epichlorohydrin cross-linked non-nylon polyamides used primarily by the paper industry as an additive to paper products. Natural polymers, such as those contained in paper products, have little cross-linking, which allows their fibers to change position or separate completely when in contact with water. The addition of epichlorohydrin cross-linked non-nylon polyamides to these polymers causes the formation of a stable polymeric web among the natural fibers. Because the polymeric web holds the fibers in place even in the presence of water, epichlorohydrin cross-linked non-nylon polyamides are also referred to as wet-strength resins. We believe four non-nylon polyamides production facilities are currently subject to the Polymers and Resins II NESHAP. Epichlorohydrin (64 percent) and hydrochloric acid (36 percent) are the only HAP emitted from this category. 3. GMACT—Acetal Resins Production The GMACT set national emission standards for certain source categories consisting of five or fewer facilities. The basic purpose of the GMACT approach was to use public and private sector resources efficiently, and to promote regulatory consistency and predictability in the MACT standards development. Emission sources from acetal resin production include storage vessels that hold process feed materials, process vents, process wastewater treatment systems, and equipment leaks from compressors, agitators, pressure relief devices, sampling connection systems, valves, connectors, and instrumentation systems. The storage vessels associated with acetal resin production are primarily used for storage of solvents. Back end process vent emissions occur from reactor units, mixing vessels, solvent recovery operations, and other operations. Acetal resins are characterized by the use of formaldehyde in the polymerization process to manufacture homopolymers or copolymers of alternating oxymethylene units. Acetal resins, also known as polyoxymethylenes, polyacetals, or aldehyde resins, are a type of plastic possessing relatively high strength and rigidity without being brittle. They have good frictional properties and are resistant to moisture, heat, fatigue, and solvents. Acetal resins are used as parts in a variety of industrial applications, e.g., gears, bearings, bushings, and various other moving parts in appliances and machines, and in a range of consumer products, e.g., automotive door handles, seat belt components, plumbing fixtures, shaver cartridges, zippers, and gas tank caps. We believe three facilities are currently subject to the acetal resins production provisions in the GMACT. The primary HAP emitted by acetal resin production are formaldehyde and methanol, which make up 92 percent of the total HAP emissions by mass. 4. GMACT—Hydrogen Fluoride Production The Hydrogen Fluoride Production source category includes any facility engaged in the production and recovery of hydrogen fluoride by reacting calcium fluoride with sulfuric acid. Potential sources of HAP emissions at hydrogen fluoride production facilities include: Process vents on hydrogen fluoride recovery and refining equipment, storage vessels used to store hydrogen fluoride, bulk loading of tank trucks and tank rail cars, leaks from hydrogen fluoride handling equipment, and reaction kiln seal leaks. The only HAP emitted from the processes in this source category is hydrogen fluoride. We believe two facilities are currently subject to the hydrogen fluoride production provisions in the GMACT. C. How did we estimate risk posed by the eight source categories? To support the proposed decisions presented in today's notice, EPA conducted an inhalation risk assessment 2 that provided estimates of maximum individual cancer risk, cancer risk distribution within the exposed populations, cancer incidence, hazard indices for chronic exposures to HAP with non-cancer health effects, and hazard quotients
(HQ)for acute exposures to HAP with non-cancer health effects. The risk assessment consisted of six primary activities:
(1)Establishing the nature and magnitude of emissions from the sources of interest,
(2)identifying the emissions release characteristics (e.g., stack parameters),
(3)conducting dispersion modeling to estimate the concentrations of HAP in ambient air,
(4)estimating long-term and short-term inhalation exposures to individuals residing within 50 km of the modeled sources,
(5)estimating individual and population-level risks using the exposure estimates and quantitative dose-response information, and
(6)characterizing risk. In general the risk assessment followed a tiered, iterative approach, beginning with a conservative screening-level analysis and, where the screening analysis indicated the potential for non-negligible risks, following that with more refined analyses. The following sections summarize the results of these efforts. 2 For more information on the risk assessment inputs and models, see “Residual Risk Assessment for Eight Source Categories,” available in the docket. 1. Emissions Data For the Ethylene Propylene Rubber Production, Butyl Rubber Production, Neoprene Production, Epoxy Resins Production, and Non-nylon Polyamides Production source categories, we relied primarily on emissions data and emissions release characteristic data we collected directly from industry. We reviewed these data and consider them to be the best emissions and emissions release characteristic data available for these five source categories. For the remaining three source categories, Polysulfide Rubber Production, Acetal Resins Production, and Hydrogen Fluoride Production, we relied primarily on data in the 2002 NEI Final Inventory, 3 Version 1 (made publicly available on February 26, 2006). For the Polysulfide Rubber source category, the data in the 2002 NEI were used without further investigation because the only facility in the source category closed in 2002. For the Acetal Resins and Hydrogen Fluoride source categories, the 2002 NEI data were supplemented with information from industry and, for one hydrogen fluoride facility, with information from the State permitting agency. 3 The National Emission Inventory
(NEI)is a database that contains information about sources that emit criteria air pollutants and their precursors, and HAP. The database includes estimates of annual air pollutant emissions from point, nonpoint, and mobile sources in the 50 States, the District of Columbia, Puerto Rico, and the Virgin Islands. EPA collects this information and releases an updated version of the NEI database every 3 years. In response to an advanced notice of proposed rulemaking 4 we published on March 29, 2007, we received comments on emissions data and emissions release characteristics data for an acetal resins production facility, two ethylene propylene production facilities, and a neoprene production facility. We will include these comments in the docket for this proposal (docket ID EPA-HQ-OAR-2007-0211) and will evaluate them with other comments we receive in response to today's proposal. The data files for the eight source categories, which are posted on the RTR webpage and are described in Section III of this preamble, will include the new data provided by the commenters. 4 Risk and Technology Review, Phase II, Group 2 at 72 FR 29287. Emissions data and emissions release characteristics data for these eight source categories are documented in the docket in “Documentation of Emissions Data and Emissions Release Characteristics Data Used for the RTR Group 1.” We specifically request comment on whether the facilities listed in our emissions data set accurately reflect the universe of sources within the source categories. For example, are there records remaining in the data set that are not part of the relevant source category or any missing emissions data that should be included for the relevant source category? 2. Risk Assessment Both long-term and short-term inhalation exposure concentrations and health risk from each of the eight source categories addressed in today's proposal were estimated using the Human Exposure Model (Community and Sector HEM-3 version 1.1.0). The HEM-3 model performs three main operations: Dispersion modeling, estimation of population exposure, and estimation of human health risks. The dispersion model used by HEM-3 is AERMOD, which is one of EPA's preferred models for assessing pollutant concentrations from industrial facilities. 5 5 Environmental Protection Agency. Revision to the Guideline on Air Quality Models: Adoption of a Preferred General Purpose (Flat and Complex Terrain) Dispersion Model and Other Revisions (70 FR 68218). November 9, 2005. To perform the dispersion modeling and to develop the preliminary risk estimates, HEM-3 draws on three data libraries. The first is a library of meteorological data, which are used for dispersion calculations. This library includes 1 year of hourly surface and upper air observations for 130 meteorological stations, selected to provide thorough coverage of the U.S. and Puerto Rico. A second library of U.S. Census Bureau census block internal point locations and populations provides the basis of human exposure calculations (Census, 2000). In addition, the census library includes the elevation and controlling hill height for each census block, which are also used in dispersion calculations. A third library of pollutant unit risk factors and other health benchmarks is used to estimate health risks. These risk factors and health benchmarks are the latest values recommended by EPA for HAP and other toxic air pollutants, and are discussed in more detail below. These values are available at *http://www.epa.gov/ttn/atw/toxsource/summary.html.* The risk assessment for chronic exposures used the estimated annual average ambient air concentration of each HAP emitted by each source for which we have emissions data in the source category at each nearby census block 6 centroid as a surrogate for the chronic inhalation exposure concentration for all the people who reside in that census block. We calculated the maximum individual risk for each facility as the risk associated with a lifetime (70-year) exposure to the maximum concentration at the centroid of an inhabited census block. Individual cancer risks were calculated as the lifetime exposure to the ambient concentration of each HAP multiplied by its Unit Risk Estimate (URE); total cancer risks were the sum of the risks of each carcinogenic HAP (including known, probable, and possible carcinogens) emitted by the modeled source. Air concentrations of HAP from sources other than the modeled source were not estimated. Total cancer incidence and the distribution of individual cancer risks across the population within 50 kilometers of any source were also estimated as part of these assessments by summing individual risks. We are using 50 kilometers to be consistent with both the analysis supporting the 1989 Benzene NESHAP (54 FR 38044) and the limitations of Gaussian dispersion modeling. 6 A typical census block is comprised of approximately 40 people or about 10 households. To assess risk of noncancer health effects from chronic exposures, we summed the HQ for each HAP that affects a common target organ system to obtain the hazard index
(HI)for that target organ system (or target organ-specific hazard index, TOSHI), where the HQ is the estimated exposure divided by the chronic reference level (e.g., the U.S. EPA Reference Concentration
(RfC)which is provided through the Integrated Risk Information System (IRIS)). Health protective screening estimates of acute exposures and risks were also evaluated for each HAP at any location off-site of each facility (i.e., not just the census block centroids) assuming the combination of a peak (hourly) emission rate and hourly dispersion conditions for the 1991 calendar year that would tend to maximize exposure. In each case, acute HQ were calculated using best available short-term health indices. We assumed that 10 times the average annual hourly emission rate represented a health protective emissions estimate to evaluate acute exposures and risks for these initial screens. The factor of 10 is intended to cover routinely variable emissions and startup, shutdown, and malfunction emissions. We chose to use a factor of 10 based on:
(1)Engineering judgment, and
(2)a review of short-term emissions data that compared hourly and annual emissions data for volatile organic compounds for all facilities in a heavily-industrialized 4-county area (Harris, Galveston, Chambers, and Brazoria Counties, TX) over an 11-month time period in 2001. 7 Most peak emission events were less than twice the annual average hourly emission rate and the highest peak emission event was 8.5 times the annual average hourly emission rate. We request comment on the interpretation of these data and the appropriateness of using a factor of 10 times the average annual hourly emission rate in these acute exposure screening assessments. 7 See *http://www.tceq.state.tx.us/compliance/field_ops/eer/index.html* or docket to access the source of these data. In cases where acute HQ values from the screening step were less than or equal to one, acute impacts were deemed negligible and no further analysis was performed. In the cases where an acute HQ from the screening step was greater than one, site-specific data were sought to develop a more refined estimate of the potential for acute impacts of concern. These data refinements included using a better representation of the peak-to-mean hourly emissions ratio (instead of using the default factor of 10) and using the site-specific facility layout to distinguish facility property from an area where the public could be exposed. The screening analysis resulted in an HQ less than or equal to one for all of the source categories except Acetal Resins Production and Hydrogen Fluoride Production. The specific refinements used for acetal resins production and hydrogen fluoride production are described in the results section for the two source categories. We engaged in a consultation with a panel from the Science Advisory Board
(SAB)on the “Risk and Technology Review
(RTR)Assessment Plan” in December of 2006. The results of this consultation were transmitted to us in June 2007 in a letter from the SAB which also contained a summary listing of the key messages from the panel. The letter is available from the docket and from *http://www.epa.gov/sab/pdf/sab-07-003_response_04-20-07.pdf.* In developing the risk assessments for the eight source categories covered by this proposal, we followed the RTR Assessment Plan, addressing the key recommendations from the panel, where appropriate and relevant to these assessments, but not the individual recommendations from each panel member. Our responses to each of the SAB's key recommendations are summarized in an appendix to the “Residual Risk Assessment for Eight Source Categories,” available in the docket. 3. Noncancer Inhalation Reference Values The most appropriate noncancer inhalation reference values for chronic durations in the Residual Risk Program are in order of preference:
(1)The RfC which is provided through the IRIS;
(2)the Agency for Toxic Substances and Disease Registry Chronic Minimal Risk Levels; or
(3)California Office of Environment and Human Health Assessment's chronic Reference Exposure Level (REL). No such hierarchy was developed for acute noncancer reference values. Instead, we use acute inhalation values from multiple sources because the various assessments are based on methods that are different enough to render them not directly comparable, nor does any one set of reference values provide coverage across the majority of chemicals. We looked to reference values developed for other purposes, such as Reference Exposure Levels (REL), Acute Exposure Guideline Levels (AEGLs), and Emergency Response Planning Guideline (ERPGs). The acute REL ( *http://www.oehha.ca.gov/air/pdf/acuterel.pdf* ) is defined as the concentration level at or below which no adverse health effects are anticipated for a specified exposure duration. The REL incorporates factors to address data gaps, uncertainty, and to protect the most sensitive individuals in the population, and exceeding the REL does not automatically indicate an adverse health impact. The AEGL-1 is “the airborne concentration (expressed as ppm or mg/m 3 ) of a substance above which it is predicted that the general population, including susceptible individuals, could experience notable discomfort, irritation, or certain asymptomatic nonsensory effects.” The AEGL values are designed to be applicable to the general population, including sensitive subgroups; however, as stated in the AEGL guidelines and the definitions, “it is recognized that certain individuals, subject to unique and idiosyncratic responses, could experience effects at concentrations below the corresponding AEGL.” The National Research Council states that “[t]he primary purpose of the AEGL program and the NAC/AEGL Committee is to develop guideline levels for once-in-a-lifetime, short-term exposures to airborne concentrations of acutely toxic, high-priority chemicals.” 8 8 See *Standing Operating Procedures for Developing Acute Exposure Guideline Levels for Hazardous Chemicals* (2001, National Academies Press, Washington, DC, page 21, PURPOSE AND OBJECTIVES OF THE AEGL PROGRAM AND THE NAC/AEGL COMMITTEE; *http://books.nap.edu/openbook.php?record_id=10122&page=21* ). The ERPG-1, developed specifically for emergency response situations, is the maximum airborne concentration below which it is believed that nearly all individuals could be exposed for up to 1 hour without experiencing other than mild transient adverse health effects or perceiving a clearly defined, objectionable odor. The ERPG documentation also states that “in all populations there are hypersensitive individuals who will show adverse responses at exposure concentrations far below levels where most individuals normally would respond.” The AEGL and ERPG values include three levels of severity generally referred to as mild, severe, and lethal. In contrast, the REL represents an exposure at which no adverse effects are expected. For many chemicals (e.g., ethylene oxide and phosgene) the available information does not allow development of a mild effect AEGL or ERPG. AEGL and ERPG values are usually established at higher exposure levels than Acute California REL reference values. Exceedances of REL, AEGL, or ERPG values in the context of a residual risk assessment should be interpreted on a case-by-case basis. 4. Consideration of Actual and Allowable Emissions Generally, the emissions values in our data set represent actual emission levels. We discussed the use of both allowable and actual emissions in the final Coke Oven Batteries residual risk rule (70 FR 19998-19999, April 15, 2005) and in the proposed and final Hazardous Organic NESHAP
(HON)residual risk rules (71 FR 34428, June 14, 2006, and 71 FR 76603, December 21, 2006, respectively). In those previous actions, we noted that modeling the allowable levels of emissions (i.e., the highest emission levels that could be emitted while still complying with the MACT requirements) is inherently reasonable since they reflect the maximum level sources could emit and still comply with national emission standards. But we also explained that it is reasonable to consider actual emissions, where such data are available, in both steps of the Benzene NESHAP analysis. Doing so avoids overestimating emissions and their associated health risks and accounts for how sources typically strive to perform better than required by standards to allow for process variability and to prevent exceeding standards due to emissions increases on individual days. Failure to consider these data in risk assessments, we said, would unrealistically inflate actual risk levels. 71 FR at 76609. For the eight source categories addressed in this package, we do not have information regarding allowable emissions. This is similar to the circumstance we faced in the HON. In the preamble to the HON proposed rule, we acknowledged that there is some uncertainty regarding the difference between actual and allowable emissions. We also explained in the HON preamble that it was not possible to estimate allowable emissions for all emission points from the available information, but that for equipment leaks, which represent the most significant impact on cancer risk at HON facilities, the actual and allowable emissions are likely the same. We further concluded that there was no evidence of substantial overcontrol, such that actual emissions would not be a reasonable approximation of allowable emissions, and that there was no evidence that the sources subject to the HON could make changes that would result in a substantial increase of emissions, and thus risk, while still complying with the MACT. Therefore, we concluded for the HON final rule that basing the analysis on actual emissions provided an acceptable method for determining the remaining risks to public health and the environment after application of the MACT standards. The production processes for polymers and resins use the same process equipment and air pollution control equipment as HON processes. Thus, we believe we can draw the same conclusions for polysulfide rubber production, ethylene propylene rubber production, butyl rubber production, neoprene rubber production, epoxy resins production, non-nylon polyamides production, and acetal resins as we did for the HON—that estimating risk using actual emissions will reasonably reflect the risk after application of the relevant MACT standards. For the Hydrogen Fluoride Production source category, we expect actual and allowable emissions to be similar, if not the same. Hydrogen fluoride facilities employed stringent controls prior to the development of the MACT standards (we based the MACT standards on these pre-MACT controls) and we have no reason to believe control performance will decline. We believe the differences between actual and allowable emissions are likely insignificant for these eight source categories and that using the actual emission levels results in a reasonable approximation of the allowable emissions. Therefore, we conclude that the risk assessment results using actual emissions closely approximate those for an assessment using allowable emissions and that the difference would not be likely to substantially affect the estimated risk associated with exposure to HAP emitted by any of the eight source categories. Nevertheless, if commenters have data that demonstrate that allowable emissions could be higher or lower than actual emissions for these eight source categories we request the submission of this data. 5. Adverse Environmental Effects Assessment None of the eight source categories emit persistent or bioaccumulative HAP; therefore, EPA's assessment of environmental effects evaluated only non-persistent and non-bioaccumulative HAP. 9 For animal populations, the potential for significant direct adverse environmental effects due to non-persistent and non-bioaccumulative HAP was evaluated implicitly by checking for exceedances of any human health inhalation dose-response limit values near the assessed facilities. 10 Because these values generally reflect the inclusion of uncertainty factors 11 (often 100 or 1,000), the human threshold values are generally believed to be significantly lower than any levels which have been shown to cause an adverse effect in an exposed animal. Therefore, if the maximum inhalation hazard in an ecosystem is below the level of concern for humans, we have concluded that, in general, environmental receptors should be at little risk of adverse effects due to airborne exposures. 9 Persistent and bioaccumulative HAP are those which persist in the environment and which also may bioaccumulate or biomagnify in food chains. 10 While environmental effects thresholds are often available for HAP in water and soil, very few are available for direct airborne exposures. 11 The uncertainty factors account for various data methodological uncertainties, for example, most inhalation dose-response limit values are derived from studies of laboratory animals. One possible exception is pollutants that may directly impact various species of vegetation. For the seven polymers and resins production source categories affected by today's proposal, we have no scientific data, informal observations or other information that would indicate any concern for adverse environmental effects of HAP on vegetation at the expected air concentrations. For the two facilities in the Hydrogen Fluoride Production source category (both of which emit hydrogen fluoride), we have some general information on the possible effects of hydrogen fluoride on vegetation at ambient concentrations well below the California chronic REL value of 14 microgram per cubic meter (μg/m 3 ). In separate and unrelated studies, air concentrations of hydrogen fluoride greater than about 1 μg/m 3 have been shown to adversely affect specific sensitive plant species. 12 We note that responses to hydrogen fluoride are highly variable among plant species and responses may be influenced by co-exposures to other air pollutants. In this particular case, the maximum chronic ambient concentration estimated in the vicinity of the hydrogen fluoride production facilities was about 1.5 μg/m 3 , meaning that concentrations of hydrogen fluoride in all areas other than the maximum point are lower than 1.5 μg/m 3 , and perhaps substantially lower as the distance from the point of release increases. Because the spatially-averaged hydrogen fluoride concentration within several kilometers of each facility is likely well below 1 μg/m 3 , we are led to the conclusion that any significant and widespread adverse environmental effects on plants due to hydrogen fluoride emissions are unlikely. Further, we have no information suggesting that there are currently observed adverse impacts of hydrogen fluoride emissions on plants surrounding the two facilities. 12 1 μg/m 3 was the lowest concentration for which adverse effects were observed in the most sensitive flora for which data exists. We note that the studies were limited to certain species and 1 μg/m 3 cannot be interpreted as an appropriate or definitive concentration level for all plant species. (See “List of References for Effects of Hydrogen Fluoride on Vegetation” in docket.) 6. Uncertainties in Risk Assessments Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for the eight source categories affected by today's proposal. We reduced some of these uncertainties by developing a new emissions data set, the RTR database, that is based on the NEI, but that includes more accurate replacement or supplemental data for the specific facilities in these eight source categories. Although uncertainty exists, we believe the risk assessments performed for the eight source categories most likely overestimate the potential for risks due to the conservative (i.e., health-protective) assessment approach. Because these health protective risk assessments indicate little, if any, potential for significant risk, we believe they support our proposed decision not to issue residual risk standards for these eight source categories. A brief discussion of the uncertainties in the emissions data set, dispersion modeling, inhalation exposure estimates, and dose-response relationships is presented in this section of the preamble. A fuller discussion of these uncertainties is discussed in both the “Residual Risk Assessment for Eight Source Categories” (July 2007) and the “Risk and Technology Review
(RTR)Assessment Plan” (November 2006), both of which are available in the docket. a. *Uncertainties in the RTR Emissions Database* . Although the development of the RTR database involved quality assurance/quality control processes, the accuracy of emissions values will vary depending on the source of the data present, incomplete or missing data, errors in estimating emissions values, and other factors. The emission values considered in this analysis are annual totals that do not reflect actual fluctuations during the course of a year
(2002)or variations from year to year. These annual emissions estimates do not consider operations such as startup/shutdown and malfunctions. The estimates of health protective short-term emission rates for the screening assessment were based on a health-protective default assumption applicable to these source categories (10 times the annual rate). More refined estimates were used for source categories where the screening estimates did not “screen out” all sources and more specific information was available. Facilities in some of the seven polymers and resins source categories emit chlorinated compounds and use incineration devices, creating the possibility for the formation of polychlorinated dioxins. However, we have no test reports or measurements, conducted by manufacturers or anyone else, indicating the presence of dioxins in the emissions from any of these source categories and EPA's dioxins inventory 13 does not specifically link dioxins emissions to any of these source categories. Furthermore, in our judgment, it is improbable that dioxins are emitted in measurable amounts from the seven polymers and resins source categories, especially given the low quantity of particulate matter present. Therefore, we did not consider dioxins in our assessment of the seven polymers and resins production source categories. Because no chlorinated compounds are emitted from the hydrogen fluoride production source category, we believe there is no possibility for dioxins to be emitted and we did not consider dioxins in our assessment of the source category. 13 An Inventory of Sources and Environmental Releases of Dioxin-Like Compounds in the United States for the Years 1987, 1995, and 2000. (EPA/600/P-03/002f, Final Report, November 2006). The dioxins inventory ( *http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=159286)* classifies “rubber manufacturing” as an unquantifiable dioxins emission source. A source was defined as unquantifiable if dioxins releases were possible, but the data were inadequate to support even rudimentary calculations of emissions. Furthermore, the process could be very different from the polymers and resins processes of concern in this proposal. Overall we believe that the emissions data considered in this assessment are the most accurate available representation of the eight source categories for the stated purpose. Nevertheless, we request comment on our emissions data set in general, and specifically on our approach to short-term emissions estimates and on the potential for dioxins emissions from the facilities in the seven polymers and resins production source categories affected by today's proposal. b. *Uncertainties in Dispersion Modeling* . While the analysis employed EPA's suggested regulatory dispersion model, AERMOD, there is uncertainty in ambient concentration estimates associated with EPA's choice and application of the model. Where possible, model options (e.g., rural/urban, plume depletion, chemistry) were selected as to provide an overestimate of ambient air concentrations. However, because of practicality and data limitation reasons, some factors (e.g., meteorology, building downwash) have the potential in some situations to overestimate or underestimate ambient impacts. For example, meteorological data were taken from a single year (1991), and facility locations can be a significant distance from the site where these data were taken. Despite these uncertainties, we believe that at off-site locations and census block centroids, the approach considered in the dispersion modeling analysis should generally yield overestimates of ambient concentrations. c. *Uncertainties in Inhalation Exposure.* The effects of human mobility on exposures were not included in the assessment. Specifically, short-term mobility and long-term mobility 14 between census blocks in the modeling domain was not considered. As a result, this simplification will likely bias the assessment toward overestimating the highest exposures. In addition, the assessment predicted the chronic exposures at the centroid of each populated census block as surrogates for the exposure concentrations for all people living in that block. (On average census blocks are populated by approximately 40 people.) Using the census block centroid to predict chronic exposures tends to overpredict exposures for people in the census block who live further from the facility and underpredict exposures for people in the census block who live closer to the facility. Thus, in general, using the census block centroid to predict chronic exposures leads to a potential understatement or overstatement of maximum impact and an unbiased estimate of average risk and incidence. 14 Short-term mobility is movement from one microenvironment to another over the course of hours or days. Long-term mobility is movement from one residence to another over the course of a lifetime. The assessments evaluate the cancer inhalation risks associated with pollutant exposures over a 70-year period, the assumed lifetime of individuals. In reality, both the length of time that modeled emissions sources at facilities actually operate (i.e., more or less than 70 years), and the domestic growth or decline of the modeled industry (i.e., the increase or decrease in the number or size of U.S. facilities), will influence the risks posed by a given source category. Depending on the characteristics of the industry, these factors may result in an overestimate (or possibly an underestimate in the extreme case where a facility maintains or increases its emission levels beyond 70 years and residents live beyond 70 years at the same location) both in individual risk levels and in the total estimated number of cancer cases. Annual cancer incidence estimates from exposures to emissions from these sources would not be affected by uncertainty in the length of time emissions sources operate. The exposure estimates used in these analyses assume chronic exposures to ambient levels of pollutants. Because most people spend the majority of their time indoors, actual exposures may not be the same, depending on characteristics of the pollutants modeled. For many HAP, indoor levels are roughly equivalent to ambient levels, but for very reactive pollutants or larger particles, these levels are typically lower. This factor has the potential to result in an overstatement of 25 to 30 percent of exposures. 15 15 National-Scale Air Toxics Assessment for 1996. (EPA 453/R-01-003; January 2001; page 85.) In addition to the uncertainties highlighted above, there are several factors specific to the acute exposure assessment that need to be highlighted. The accuracy of an acute inhalation exposure assessment depends on the joint occurrence of independent factors that may vary greatly, such as hourly emissions rates, meteorology, and human activity patterns. In this assessment, we assume that individuals remain for one hour at the point of maximum ambient concentration as determined by the co-occurrence of peak emissions and worst-case meteorological conditions. These assumptions would tend to overestimate actual exposures since it is unlikely that a person would be located at the point of maximum exposure during the time of worst-case impact. d. *Uncertainties in Dose-Response Relationships.* These assessments use toxicological dose-response values typically extrapolated from high-dose animal exposure or occupational exposures, to estimate risk. Consistent with EPA guidance, RfCs are developed by using order-of-magnitude factors to account for uncertainties in developing values protective of sensitive subpopulations. Most of the URE in this assessment were developed using linear low-dose extrapolation. Risks could be overestimated if the true dose-response relationship (which is usually unknown) is sublinear and underestimated when the dose-response curve is actually superlinear. Impacts have been extrapolated from short-duration, high-dose animal or occupational exposures to longer durations and lower doses, using uncertain interspecies scaling methods. In general, EPA considers these URE's to be upper bound estimates based on the method of extrapolation, meaning they represent a plausible upper limit to the true value. (Note that this is usually not a true statistical confidence limit.) The true risk is therefore likely to be less, could be as low as zero, but also could be greater. As previously noted, benzene cancer risks were estimated from the reported URE range, which is considered to be based on maximum likelihood exposure and risk estimates. Some HAP have no dose-response values for cancer, chronic non-cancer, and/or acute effects. Therefore, an understatement of risk for certain HAP at environmental exposure levels is possible if there are no health effects reference values available on which to base an assessment of health risk. Additionally, some chronic dose-response values used in the assessments for these 8 source categories are currently under EPA IRIS review (e.g., formaldehyde and methanol) and revised assessments may determine that these HAP are more or less potent than currently thought. We will consider the outcome of new assessments and reevaluate residual risk if application of new dose-response values indicates the potential for unacceptable risks to human health and/or the environment. e. *Uncertainties in the Adverse Environmental Effects Assessment.* As previously discussed, we generally believe that when exposure levels are not anticipated to adversely affect human health, they also are not anticipated to adversely affect the environment. However, we recognize that this may not be the case for all HAP. Hydrogen fluoride in the air has the potential to adversely affect plant tissues, having been associated with necrosis (lesions) in plants and reduced plant growth and productivity. Determining the effects of hydrogen fluoride on vegetation is complicated by the high degree of variability among plant species in the extent of uptake and response to atmospheric hydrogen fluoride, and by co-exposure to other atmospheric pollutants, such as sulfur dioxide, that influences the impacts of hydrogen fluoride. (For references concerning the effects of hydrogen fluoride on plants, see docket item “List of References for Effects of Hydrogen Fluoride on Vegetation”.) EPA requests comment on this issue, including: Submissions of any data that should be considered; observations, if any, of impacts on vegetation near the two facilities in the hydrogen fluoride production source category; and suggestions of how EPA should assess the potential for adverse environmental effects as defined in CAA section 112(a)(7). 16 16 CAA section 112(a)(7) defines “adverse environmental effect” as meaning “any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas. D. What are the conclusions of the risk review? The human health risks estimated for the eight source categories are summarized in this section of the preamble. Details of the assessment are located in the docket, especially see “How to Reproduce Modeling of Group 1 Source Categories” (May 2007). We believe that our assessment covers all potential health risks associated with HAP emissions from the eight source categories affected by today's proposal. We further believe that the reported emissions are consistent with the expected constituents and amounts for these source categories. The sections below provide more detailed discussions about the human health risk assessment results for each of the eight source categories. Table 4.—Summary of Estimated Inhalation Risks for the Eight Source Categories Source category Number of facilities 1 Maximum individual cancer risk (in a million) 2 and HAP of most concern Estimated annual cancer incidence and HAP of most concern Max. HI 3 and HAP of most concern Maximum off-site acute HQ and HAP of most 4 concern Polysulfide Rubber Production 1 0 6 0 6 <0.01 (MDI 5 ) 0.0004 AEGL - 1 (MDI 4 ). Ethylene Propylene Rubber Production 5 0 6 0 6 0.5 (hexane) 0.3 REL (toluene). Butyl Rubber Production 2 0 6 0 6 0.2 (methyl chloride) 0.1 AEGL-2 (methyl chloride 7 ). Neoprene Production 1 0 6 0 6 0.8 (chloroprene) 0.4 REL (toluene). Epoxy Resins Production 3 0.1 (epichlorohydrin) 0.00002 (epichlorohydrin) 0.1 (epichlorohydrin) 0.6 REL (epichlorohydrin). Non-nylon Polyamides Production 4 0.4 (epichlorohydrin) 0.00003 (epichlorohydrin) 0.3 (epichlorohydrin) 0.2 REL (epichlorohydrin). Acetal Resins Production 3 0.3 (allyl chloride) 0.00004 (allyl chloride) 0.2 (chlorine) 1.7 REL (formaldehyde). Hydrogen Fluoride Production 2 0 6 0 6 <0.01 (hydrofluoric acid) 0.3 REL (hydrofluoric acid). 1 Number of facilities believed to be in the source category and used in the risk analysis. 2 Maximum individual excess lifetime cancer risk. 3 Maximum hazard index
(HI)is maximum respiratory HI for all except two source categories. Maximum HI for butyl rubber production is based on neurological effects. Maximum HI for hydrogen fluoride production is based on skeletal effects. 4 The maximum estimated acute exposure concentration was divided by available short-term threshold values to develop an array of hazard quotient
(HQ)values. These include RELs and AEGL-1 and AEGL-2 values. The acute REL is an exposure that is not likely to cause adverse effects in a human population, including sensitive subgroups, exposed to that concentration for one hour on an intermittent basis. AEGL-1 is the airborne concentration (expressed as ppm or mg/m 3 ) of a substance above which it is predicted that the general population, including susceptible individuals, could experience notable discomfort, irritation, or certain asymptomatic nonsensory effects. However, the effects are not disabling and are transient and reversible upon cessation of exposure. AEGL-2 is the airborne concentration (expressed as ppm or mg/m3) of a substance above which it is predicted that the general population, including susceptible individuals, could experience irreversible or other serious, long-lasting adverse health effects or an impaired ability to escape. 5 MDI is methylene diphenyl diisocyanate. 6 No HAP which are known, probable, or possible human carcinogens. 7 For methyl chloride, REL and AEGL-1 were not available. As shown in Table 4, we estimate that the residual risk remaining from HAP emissions from these eight source categories affected by today's proposal do not pose cancer risks equal to or greater than 1-in-1 million to the individual most exposed, do not result in meaningful rates of cancer incidence, and do not result in a concern regarding either chronic or acute noncancer health effects for the individual most exposed. No chronic inhalation human health thresholds were exceeded at ecological receptors for any of the eight source categories; therefore, we believe there is low potential for adverse environmental effects due to direct airborne exposures. We also believe that there is no potential for an adverse effect on threatened or endangered species or on their critical habitat within the meaning of 50 CFR 402.13(a) because our screening analyses indicate no potential for any adverse ecological impacts. Thus, we conclude that a consultation with the Fish and Wildlife Service is not necessary for any of the eight source categories. Human health multipathway risks were determined not to be a concern for the eight source categories addressed in today's proposal due to the absence of persistent and bioaccumulative
(PB)17 HAP emissions at all of these sources. The lack of PB HAP emissions also provides assurance that there will be no potential for adverse ecological effects due to indirect ecological exposures (i.e., exposures resulting from the deposition of PB HAP from the atmosphere). 17 Persistent and bioaccumulative
(PB)HAP are the list of 14 HAP that have the ability to persist in the environment for long periods of time and may also have the ability to build up in the food chain to levels that are harmful to human health and the environment. 1. Polymers and Resins I—Polysulfide Rubber Production The only HAP emitted by the Polysulfide Rubber Production source category in 2002 was 4,4'-methylene diphenyl diisocyanate (MDI), whose carcinogenic potential was evaluated in EPA's IRIS in 1998, and characterized as “cannot be determined, but for which there is suggestive evidence that raises concern for carcinogenic effects.” The maximum chronic noncancer TOSHI associated with emissions from polysulfide rubber production is less than 0.01, indicating that chronic noncancer risks are negligible. Further, our analysis, based on available information, indicates this source category poses no potential for adverse environmental impacts. Combining these results with the lack of information on potential cancer risks and the additional fact that no sources in this category are currently in operation, we conclude that there is no reason to modify the existing standard. 2. Polymers and Resins I—Ethylene Propylene Rubber Production Because none of the HAP emitted are known, probable, or possible human carcinogens, we currently believe there are no cancer risks associated with exposures to the HAP emissions from this source category. The maximum chronic noncancer TOSHI value associated with emissions from ethylene propylene rubber production is 0.5. No adverse noncancer health effects associated with the modeled acute or chronic inhalation exposures are expected from the Ethylene Propylene Rubber Production source category. Our analysis, based on available information, indicates this source category poses no potential for adverse environmental impacts. 3. Polymers and Resins I—Butyl Rubber Production Because none of the HAP emitted are known, probable, or possible human carcinogens, we currently believe there are no cancer risks associated with exposures to the HAP emissions from this source category. The maximum chronic noncancer TOSHI value associated with emissions from butyl rubber production is 0.2. We saw no exceedances of any available acute thresholds. Our analysis, based on available information, indicates this source category poses no potential for adverse environmental impacts. A source of uncertainty unique to this source category is the lack of certain acute dose-response values (REL and AEGL) for methyl chloride. Since the only acute dose-response value available is for methyl chloride is the ERPG2 18 value which doesn't account for possible mild transient effects, there is some uncertainty regarding the conclusion that there are no possible acute impacts of concern. 18 ERPG-2 is the maximum airborne concentration below which it is believed that nearly all individuals could be exposed for up to 1 hour without experiencing or developing irreversible or other serious health effects or symptoms which could impair an individual's ability to take protective action. 4. Polymers and Resins I—Neoprene Production Because none of the HAP emitted are known, probable, or possible human carcinogens, we currently believe there are no cancer risks associated with exposures to the HAP emissions from this source category. The maximum chronic noncancer TOSHI value associated with emissions from neoprene production is 0.8. There are no expected adverse noncancer health effects associated with the modeled acute or chronic inhalation exposures from the Neoprene Production source category. Our analysis, based on available information, indicates this source category poses no potential for adverse environmental impacts. 5. Polymers and Resins II—Epoxy Resins Production All lifetime cancer risks associated with emissions from the three epoxy resins production facilities are estimated to be less than 1-in-1 million. The highest maximum lifetime individual cancer risk was estimated at 0.1-in-1 million. The total estimated cancer incidence from these facilities is 0.00002 excess cancer cases per year. The maximum chronic noncancer TOSHI value associated with emissions from epoxy resins production is 0.1. We saw no exceedances of any available acute thresholds. Our analysis, based on available information, indicates this source category poses no potential for adverse environmental impacts. 6. Polymers and Resins II—Non-Nylon Polyamides Production All lifetime cancer risks associated with emissions from the four non-nylon polyamides production facilities are estimated to be less than 1-in-1 million. The highest maximum lifetime individual cancer risk was estimated at 0.4-in-1 million. The total estimated cancer incidence from these facilities is 0.00003 excess cancer cases per year. The maximum chronic noncancer TOSHI value associated with emissions from non-nylon polyamides production is 0.3. There are no expected adverse noncancer health effects associated with the modeled acute or chronic exposures from the neoprene production source category. Our analysis, based on available information, indicates this source category poses no potential for adverse environmental impacts. 7. GMACT—Acetal Resins Production All lifetime cancer risks associated with emissions from the three acetal resins production facilities are estimated to be less than 1-in-1 million. The highest maximum lifetime individual cancer risk was estimated at 0.3-in-1 million. The total estimated cancer incidence from these facilities is 0.00004 excess cancer cases per year. The maximum chronic noncancer TOSHI value associated with emissions from acetal resins production is 0.2. Our analysis, based on available information, indicates this source category poses no potential for adverse environmental impacts. The initial screening assessment for acute impacts suggested that short-term formaldehyde concentrations at the three modeled facilities could exceed acute thresholds if worst-case meteorological conditions are present and if maximum hourly emissions of formaldehyde exceed the average hourly emission rate by a factor of 10. One of the facilities showed potential exceedances of the REL only, and two facilities showed potential exceedances of both the REL and the AEGL-1. Therefore, we performed further site-specific analysis and mapped the screening results as a series of concentration isopleths overlaid against the aerial photograph of the facility in question. The results of this exercise for the first facility were that the isopleths that exceeded the REL did not extend off the facility site. Therefore, acute exposures to HAP emitted by this facility are not expected to pose any public health concerns. We further refined the assessments using better site-specific data for the other two facilities. Discussions with a plant engineer for one facility revealed that the acetal resins processes operate continuously and that a reasonable worst-case emissions multiplier would be 1.5 instead of our default multiplier of 10. We performed more refined modeling (AERMOD) for these two facilities using the emissions multiplier of 1.5. The results for the second facility indicated no potential for exceeding the AEGL-1 and showed that the potential for exceedances of the REL did not extend off-site, except for a small extension over a river to the north of the facility. The maximum off-site REL HQ corresponding to these locations is 1.7 (HQ = 0.14 using the AEGL-1). The analysis showed that meteorological conditions resulting in exceedances of the REL may occur up to 2 hours per year along the river. We believe the potential for adverse acute health effects surrounding this facility is low. The results for the third facility showed potential for exceeding the REL in an area immediately adjacent to the facility along a roadway. The maximum off-site HQ for this facility is 1.6 for the REL (HQ = 0.13 using the AEGL-1). The analysis showed that meteorological conditions resulting in exceedances of the REL may occur up to 46 hours per year along the roadway. Additionally, the third facility reports that current actual emissions for this facility are significantly less than those used for this assessment because one of the higher emission sources listed for this facility in the 2002 NEI data has been shut down. Based on this new information, we believe that the actual projected maximum off-site HQ for this facility is less than 1.0. We request interpretation and comment on this as well as any additional data regarding the potential acute impacts of these facilities. A source of uncertainty that is unique to this source category is associated with annual emissions of HAP and the relationship between annual emissions and maximum hourly emissions. One facility reports emissions of benzene and allyl chloride, which are two relatively toxic HAP not expected to be emitted from this source category. Since the risk assessment shows allyl chloride to be the cancer risk driver for the source category, this indicates a potential overestimate of the cancer risks 8. GMACT—Hydrogen Fluoride Production Because hydrogen fluoride, the only HAP emitted from the source category, is not a known, probable, or possible human carcinogen, we currently believe there are no cancer risks associated with exposures to the HAP emissions from this source category. The maximum chronic noncancer TOSHI value associated with emissions from hydrogen fluoride production is less than 0.01. The initial screening assessment for acute impacts suggests that short-term hydrofluoric acid concentrations at the two modeled facilities could exceed acute thresholds if worst-case meteorological conditions are present and if maximum hourly emissions of hydrofluoric acid exceed the average hourly emission rate by a factor of 10. Since one of the facilities showed potential exceedances of the REL only, and one facility showed potential exceedances of both the REL and the AEGL-1, we performed additional site specific assessments. We contacted the permitting agency and a process engineer at one of the facilities to gather additional source specific information. Based on discussions with the permitting agency and the process engineer, we determined that these facilities operate continuously and that the peak hourly emissions are not expected to exceed twice the hourly average. By adjusting the short-term emission rate to more accurately represent the true facility operating conditions (from 10 to 2), no offsite impacts above the REL were predicted from the first facility. For the second facility that exceeded both the REL and AEGL-1, we remodeled using the AERMOD model to more accurately predict the worst case acute impacts. By adjusting the short-term emission rate to more accurately represent facility operating conditions (from 10 to 2), exceedances of the REL and AEGL-1 were predicted to occur within the facility property boundary, but not offsite. A source of uncertainty unique to this source category involves the adequacy of our screening for potential adverse environmental effects for the pollutant hydrogen fluoride, as discussed in section I.C.6.e of this preamble. Indeed, there is a significant lack of scientific understanding and assessment methodologies for such potential adverse environmental effects. However, we believe acute and chronic noncancer assessment results (maximum chronic TOSHI less than 0.01 and maximum acute HQ of 0.3 for REL and 0.09 for AGEL-1) support our conclusion that no adverse environmental impacts are expected for this source category. E. What are the conclusions of the technology review? For seven of the source categories affected by today's proposal (all except the Hydrogen Fluoride Production source category), we relied on the technology review conducted for the HON, which did not identify any significant developments in practices, processes, or control technologies since promulgation of the original HON standards in 1994. 19 These seven source categories are similar to those under the HON because they use the same kinds of process and pollution control equipment and are subject to similar control requirements. 20 For the seven HON-like source categories affected by today's proposal, we conclude that imposing additional controls under any control option would achieve, at best, minimal emission and risk reductions. Furthermore, elimination of all HAP, if it were possible, from all seven of these source categories combined would reduce estimated cancer incidence by less than 0.0002 cases per year. For HAP with available dose-response values, the maximum HI for these facilities are all below one and the cancer risks are all below 1-in-1 million. 19 Discussed in the proposed and final HON residual risk preambles (71 FR 34428, June 14, 2006, and 71 FR 76603, December 21, 2006, respectively). 20 Process equipment, pollution control equipment, and control requirements are summarized in the proposal BID. Elimination of all HAP 21 emissions from the Hydrogen Fluoride source category, if it were possible, would reduce HAP emissions by 8 tons per year and would not affect cancer incidence, which is 0 (hydrogen fluoride is not a known, probable, or possible human carcinogens). The noncancer risk is low (the maximum HI is less than 0.01 with the current level of emissions achieved by the GMACT) and further emissions reductions would provide insignificant, if any, health benefits. In addition, all hydrogen fluoride emissions are from control device vents equipped with control devices that achieve 99 percent reductions. Improvements in hydrogen fluoride controls are not feasible. 21 Hydrogen fluoride is the only HAP emitted from the Hydrogen Fluoride source category. We conclude that the existing MACT standards effectively address HAP emissions for all eight source categories: Cancer risks and incidence to humans, chronic and acute exposure noncancer risks to humans, and adverse environmental effects from these facilities are insignificant based on available health benchmarks, and no advancements in practices, processes, or control technology that make additional controls cost-effective are known. II. Proposed Action Section 112(f) of the CAA requires that EPA promulgate standards for a category if promulgation of such standards is required to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The approach we use is that set forth in the preamble to the Benzene NESHAP. First we exclusively evaluate health risk measures and information in determining whether risks are acceptable. Second, we may consider costs and other factors in deciding whether further emission reductions are necessary to protect public health with an ample margin of safety. The Benzene NESHAP preamble explained that in protecting public health with an ample margin of safety under CAA section 112, EPA strives to provide maximum feasible protection against risks to health from HAP by protecting the greatest number of persons possible to an individual lifetime risk level no higher than approximately 1-in-1 million. EPA is not required to promulgate standards for a source category under section 112(f) if public health is protected with an ample margin of safety and adverse environmental effects are prevented. For the eight source categories that are the subject of today's notice, we have concluded (based on the results of risk assessments) that the existing MACT standards protect public health with an ample margin of safety and prevent an adverse environmental effect. In making this conclusion, we determined that the source categories addressed in today's proposal that emit one or more HAP which are known or potential carcinogens pose cancer risks less than or equal to 1-in-1 million to the individual most exposed. In addition, we also determined that emissions from these source categories result in chronic noncancer target organ-specific HI less than or equal to 1 for the individual most exposed, are unlikely to result in health effects under acute scenarios and are not anticipated to pose any significant and widespread adverse environmental effects. In reaching this conclusion, we did not consider costs. Furthermore, as explained in section I.E. of this preamble, there have been no significant developments in practices, processes, or control technologies since promulgation of the MACT standards. Because there have been no such significant developments and because public health is protected with an ample margin of safety, we conclude that no further revisions to the standards affected by today's proposal are needed under section 112(d)(6) of the CAA. Therefore, we propose no revisions to the standards for the eight source categories: Butyl Rubber Production, Ethylene-Propylene Rubber Production, Polysulfide Rubber Production, Neoprene Production, Epoxy Resins Production, Ethylene-Propylene Rubber Production, Acetal Resins Production, and Hydrogen Fluoride Production. III. How do I access and review the facility-specific data? The facility-specific data for each source category are available for download on the RTR webpage at *http://www.epa.gov/ttn/atw/rrisk/rtrpg.html.* The eight source categories affected by today's proposal are referred to as Group 1 of RTR Phase 2. These data files include detailed information for each emissions release point at each facility in the source category. For large integrated facilities with multiple processes representing multiple source categories, it is often difficult to clearly distinguish the source category to which each emission point belongs. For this reason, the data available for download for each source category include all emission points for each facility in the source category, though only the emission points marked as belonging to the specific source category in question were included in the analysis for that source category. The data files for each source category must be downloaded from the RTR Web page to be viewed ( *http://www.epa.gov/ttn/atw/rrisk/rtrpg.html* ). These are Microsoft® Access files, which require Microsoft® Access to be viewed (if you do not have Microsoft® Access, contact us by e-mail at *RTR@epa.gov* ). Each file contains the following information from the NEI for each facility in the source category: Facility data Emissions data EPA Region Pollutant Code. Tribal Code Pollutant Code Description. Tribe Name HAP Category Name. State Abbreviation Emissions (TPY). County Name MACT Code. State County FIPS MACT Source Category Name. NEI Site ID MACT Flag. Facility Name MACT Compliance Status Code. Location Address SCC Code. City Name SCC Code Description. State Name Emission Unit ID. Zip Code Process ID. Facility Registry Emission Release Point ID. State Facility Identifier Emission Release Point Type Code. SIC Code Emission Release Point Type. SIC Code Description Stack Default Flag. NAICS Code Stack Default Flag Description. Facility Category Code Stack height. Facility Category Exit Gas Temperature. Stack Diameter. Exit Gas Velocity. Exit Gas Flow Rate. Fugitive Length. Fugitive Width. Fugitive Angle. Longitude. Latitude. Location Default Flag. Data Source Code. Data Source Description. HAP Emissions Performance Level Code. HAP Emissions Performance Level Description. Start Date. End Date. More information on these NEI data fields can be found in the NEI documentation at *http://www.epa.gov/ttn/chief/net/2002inventory.html#documentation.* IV. How do I submit suggested data corrections? If you believe that the data are not representative or are inaccurate, please identify the data in question, provide your reason for concern, and provide improved data if available. When submitting data, we ask that you provide documentation of the basis for the revised values to support any suggested changes. To submit comments on the data downloaded from the RTR Web page, complete the following steps: 1. Within this downloaded file, enter suggested revisions in the data fields appropriate for that information. The data fields that may be revised include the following: Facility data Emissions data REVISED Tribal Code REVISED Emissions (TPY). REVISED County Name Emissions Calculation Method Code. REVISED Facility Name REVISED MACT Code. REVISED Location Address REVISED SCC Code. REVISED City Name REVISED Emission Release Point Type. REVISED State Name REVISED Start Date. REVISED Zip Code REVISED End Date. REVISED Facility Registry Identifier Revised Pollutant Code. REVISED Facility Category Code REVISED Stack height. REVISED Exit Gas Temperature. REVISED Stack Diameter. REVISED Exit Gas Velocity. REVISED Exit Gas Flow Rate. REVISED Longitude. REVISED Latitude. REVISED HAP Emissions Performance Level. 2. Fill in the following commenter information fields for each suggested revision: • Commenter Name. • Commenter Organization. • Commenter E-Mail Address. • Commenter Phone Number. • Revision Comments. 3. Gather documentation for any suggested emissions revisions (e.g., performance test reports, material balance calculations, etc.). 4. Send the entire downloaded file with suggested revisions in Microsoft(®) Access format and all accompanying documentation to Docket ID No. EPA-HQ-OAR-2007-0211 (through one of the methods described in the ADDRESSES section of this preamble). To answer questions on navigating through the data and to help expedite review of the revisions, it would also be helpful to submit revisions to EPA directly at *RTR@epa.gov* in addition to submitting them to the docket. 5. If you are providing comments on a facility with multiple source categories, you need only submit one file for that facility, which should contain all suggested changes for all source categories at that facility. We strongly urge that all data revision comments be submitted in the form of updated Microsoft(®) Access files, which are provided on the *http://www.epa.gov/ttn/atw/rrisk/rtrpg.html* webpage. Data in the form of written descriptions or other electronic file formats will be difficult for EPA to translate into the necessary format in a timely manner. V. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” This action is a significant regulatory action because it raises novel legal and policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget
(OMB)for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden. This action is proposing no changes to the existing regulations affecting the eight source categories affected by today's proposal and will impose no additional information collection burden. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of today's proposed action on small entities, small entity is defined as:
(1)A small business whose parent company has fewer than 750 to 1,000 employees, depending on the size definition for the affected NAICS code (as defined by Small Business Administration size standards);
(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 impact of today's proposed action on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities. The proposed action will not impose any requirements on small entities. We are proposing no further action at this time to revise the NESHAP. Today's proposed action requests public comments on the residual risk and technology review. We continue to be interested in the potential impacts of the proposed action on small entities and welcome comments on issues related to such impacts. 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 effect 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. EPA has determined that the proposed action 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 to the private sector in any one year. The rule imposes no enforceable duty on State, local, or tribal governments, or the private sector. Thus, today's proposed action is not subject to the requirements of sections 202 and 205 of the UMRA. In addition, EPA has determined that the proposed action contains no regulatory requirements that might significantly or uniquely affect small governments, because it contains no requirements that apply to such governments or impose obligations upon them. 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 proposed action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this proposed action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed action from State and local officials. F. Executive Order 13175, Consultation and Coordination with Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effect 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. Thus, Executive Order 13175 does not apply to this proposed action. EPA specifically solicits additional comment on this proposed rule from tribal officials. G. Executive Order 13045, Protection of Children From Environmental Health Risks 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. This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because EPA's risk assessment demonstrates that the existing regulations are health protective. H. Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, we have concluded that this proposed rule is not likely to have any adverse energy effects. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. The proposed action does not involve technical standards. Therefore, EPA is not considering the use of any VCS. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially applicable VCS and to explain why such standards should be used in this proposed action. J. *Executive Order 12898:* Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This proposed rule would not relax the control measures on sources regulated by the rule and, therefore, would not cause emissions increases from these sources. List of Subjects for 40 CFR Part 63 Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: December 6, 2007. Stephen L. Johnson, Administrator. [FR Doc. E7-24076 Filed 12-11-07; 8:45 am] BILLING CODE 6560-50-P 72 238 Wednesday, December 12, 2007 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Privacy Act of 1974; System of Records AGENCY: United States Agency for International Development. ACTION: Notice of proposed general routine use. SUMMARY: The United States Agency for International Development (USAID) is providing notice to alter each of its system of records by adding a new general routine use subject to the Privacy Act of 1974, as amended (5 U.S.C. 552a). The new general routine use will permit disclosure of USAID records protected by the Privacy Act when reasonably necessary to respond, prevent, minimize or remedy harm that may result from an agency data breach. This notice complies with subsection (e)(11) of the Privacy Act (5 U.S.C. 552a), which requires agencies to publish advance notice of any new routine use of information in a system of records. DATES: Written comments must be received on or before December 12, 2007. The proposed general routine use will be effective January 11, 2008 unless the Agency receives comments which would result in a contrary determination. ADDRESSES: You may submit comments to: *E-mail: privacy@usaid.gov.* *Mail:* Philip M. Heneghan, Chief Privacy Officer, United States Agency for International Development, 1300 Pennsylvania Avenue, NW., Office 2.12-003, Washington, DC 20523-2120. FOR FURTHER INFORMATION CONTACT: For general questions regarding this notice, please contact: Rhonda L. Turnbow, Deputy Chief Privacy Officer, United States Agency for International Development, 1300 Pennsylvania Avenue, NW., Office 7.6-06A, Washington, DC 20523-2120 or by e-mail: *privacy@usaid.gov.* SUPPLEMENTARY INFORMATION: Pursuant to the provisions of the Privacy Act of 1974, as amended (5 U.S.C. 552a) notice is hereby given that USAID proposes to modify all of its Privacy Act system of records to include a new general routine use permitting disclosure to appropriate persons and entities for purposes of response and remedial efforts in the event of a breach or compromise of data contained in a system of records. USAID is publishing notice of this new general routine use and giving the public a 30 day period to comment before adopting it as final. The purpose and intent of publishing the routine use is to give individuals full and fair notice of the extent of potential disclosures, consistent with the Privacy Act's requirement that individuals be made aware of how their records may be disclosed. USAID is following recommendations from the Office of Management and Budget
(OMB)memorandum M-07-16 “Safeguarding Against and Responding to the Breach of Personally Identifiable Information” and the President's Identity Theft Task Force's Strategic Plan, which advised all federal agencies to publish a routine use for their systems of records allowing for the disclosure of information in the course of responding to a breach of data maintained in a system of records. The routine use will facilitate an effective response to a confirmed or suspected breach by allowing for the disclosure to those individuals affected by the breach, as well as to others who are in a position to assist in the Agency's response efforts, either by a role in preventing, minimizing or remedying harms from the breach. The Privacy Act authorizes the Agency to adopt routine uses that are consistent with the purpose for which information is collected and subject to the Privacy Act. OMB guidance also recognizes cases in which routine uses are necessary and proper for the efficient conduct of the government and in the best interest of both the individual and the public. A routine use to provide for disclosure in connection with response and remedial efforts in the event of a breach of federal data would qualify as a necessary and proper use of information. A report of the proposed new general routine use has been sent to Congress and to the Office of Management and Budget for their evaluation. Accordingly, USAID proposes to amend its Privacy Act general routine uses, as published by adding the following new routine use at the end of the existing routine uses set forth: Statement of General Routine Uses 15. To appropriate agencies, entities, and persons when
(1)USAID suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
(2)USAID has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the USAID or another Agency or entity) that rely upon the compromised information; and
(3)the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with USAID's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. Dated: December 5, 2007. Philip M. Heneghan, Chief Privacy Officer. [FR Doc. E7-24062 Filed 12-11-07; 8:45 am] BILLING CODE 6116-01-P DEPARTMENT OF AGRICULTURE Office of the Secretary Privacy Act of 1974; Revision of System of Records and Proposed New Routine Uses AGENCY: Department of Agriculture (USDA). ACTION: Notice of revision to the Privacy Act System of Records. SUMMARY: The United States Department of Agriculture gives notice that it is proposing to revise its Privacy Act System of Records, USDA/FSA-2 entitled “Farm Records File (Automated).” DATES: *Effective Date:* The revised system notice and the proposed routine uses will become effective 40 days after publication, on January 22, 2008, unless modified by a subsequent notice to incorporate public comments. *Comment date:* Comments on this notice must be received on or before January 22, 2008 to be assured consideration. Although the Privacy Act requires only that the portion of the system which describes the “routine uses” of the system be published for comment, USDA invites comment on all portions of this notice. FOR FURTHER INFORMATION CONTACT: Dan McGlynn, Deputy Director, Production, Emergencies, and Compliance Division, USDA, FSA, STOP 0517, 1400 Independence Avenue, SW., Washington, DC 20250-0517, by telephone at
(202)720-3463, or via e-mail at *Dan.McGlynn@wdc.usda.gov.* SUPPLEMENTARY INFORMATION: The Farm Service Agency
(FSA)proposes to revise some existing routine uses, remove an unnecessary routine use, establish new routine uses, and update and clarify the notice. Routine uses identify individuals, groups, and entities to which the information may be disclosed. FSA proposes to:
(1)Remove routine use 13 and redesignate the routine uses currently designated numbers 14 through 21 as numbers 13 through 20, respectively;
(2)revise routine uses numbers 1, 10, and newly designated 16 and 20;
(3)add five new routine uses to be designated as routine uses numbers 21, 22, 23, 24, and 25, respectively, for the USDA/FSA-2, Farm Records File; and
(4)correct, revise, and add information in the following categories: System Location, Categories of Individuals Covered by the System, Categories of Records in the System, Authority for Maintenance of the System, Purpose(s), System Manager(s) and Address, and Record Source Categories in USDA/FSA-2. Revise Routine Use 1 FSA is revising routine use number 1 to add designated marketing associations
(DMAs)and loan servicing agents
(LSAs)as entities approved to carry out Commodity Credit Corporation
(CCC)marketing assistance loan and loan deficiency payment programs and also to list the types of data that will be made available. These entities were authorized to conduct business on behalf of FSA by the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171) and prior legislation. Revise Routine Use 10 FSA is revising routine use number 10 to remove obsolete references to information about producers participating in the peanut production control and quota programs. Those programs were ended by the Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171) and the use of such information is thus no longer needed. Once revised, routine use 10 would read as follows:
(10)To the Peanut Board with respect to producers of peanuts and their participation in the peanut price support program. Remove Routine Use 13 FSA is deleting routine use number 13 and renumbering the remaining routine uses. Current routine use 13 regards disclosure of information to tobacco analysis laboratories of producers' names and addresses as well as crop-specific data regarding tobacco being analyzed prior to the marketing of such tobacco. This disclosure was needed for the Tobacco Quota and Price Support Programs, which were repealed by sections 611 through 613 of the American Jobs Creation Act of 2004 (Pub. L. 108-357), and thus is no longer needed. Revise Routine Use 16 (formerly 17): FSA proposes to revise the routine use currently designated number 17 and redesignated as number 16, to add farm numbers and cotton yields to the data currently received by cotton ginners. Cotton ginners already receive information relating to names, addresses, and cotton acreage. If disaster programs are enacted similar to recent disaster programs for cottonseed, the additional data will allow cotton ginners to more efficiently deliver disaster programs. Revise Routine Use 20 (formerly 21): FSA proposes to revise the routine use currently designated number 21 and redesignated as number 20, to reflect changes to information disclosed to State-certified or State-licensed appraisers and employees of Federal agencies other than USDA who are qualified to perform real estate appraisals. This revision is necessary due to changes in program names and/or designations within FSA. Specifically, Production Flexibility Contract Acres would be changed to read “Direct and Counter-cyclical Program
(DCP)Contract Base Acres.” Further, a reference to “DCP cropland acres” would be added to agricultural use acres and cropland acres, a category already listed in routine use number 21, to replace the obsolete term “agricultural use acres.” Once revised, newly designated routine use 20 would read as follows:
(20)To State-certified or State-licensed appraisers and employees of Federal agencies other than USDA qualified to perform real estate appraisals. The specific information that may be disclosed to such appraisers consists of: —Direct and Counter-Cyclical Program
(DCP)Contract Base Acres. —Payment yields. —DCP cropland and cropland acres. —Copies of aerial photography. —Conservation Reserve Program
(CRP)acres. —Highly erodible land
(HEL)delineations. —Wetland classifications. Proposed New Routine Use 21 The first proposed new routine use, designated as number 21, would provide for disclosure of certain hard copy or electronic records in this system to cooperating Federal, State, and local agencies, as necessary for implementation of conservation programs. This limited disclosure falls within FSA's mandate to promote a viable agriculture economy and is essential for effective implementation of conservation programs. Cooperating Federal, State, and local agency employees are bound by ethical standards and State or local regulations not to further disclose such information without the permission of the client. The specific information to be disclosed to the cooperating Federal, State, and local agencies employees consists of: —Producer name/address/tax identification number. —Digital imagery, including Common Land Unit
(CLU)boundaries, calculated acreage, and farm, tract, and field identifiers. —Environmental resources and disaster data. —Conservation Reserve Program
(CRP)data. —Highly erodible land
(HEL)delineations and data. —Conservation Producer payment history. —Wetlands classifications. Proposed New Routine Use 22 The second proposed new routine use, designated as number 22, permits disclosure of certain electronic records in this system through incorporation of these records into the Comprehensive Information Management System
(CIMS)in accordance with the Farm Security and Rural Investment Act of 2002, section 10706. CIMS is a system of computer programs and databases, physically located in Kansas City, Missouri, that is jointly maintained by FSA and the Risk Management Agency
(RMA)utilizing the services of an information technology contractor. CIMS contains producer, program, and land information from FSA, RMA, and approved insurance providers (AIPs), as defined in section 502(b) of the Federal Crop Insurance Act (7 U.S.C.1502(b)). CIMS acts as a repository of data and also combines, reconciles, defines, translates, and formats data in such a manner so it can be used by entities that have authorized access to CIMS. CIMS will be used to help RMA and FSA administer their programs by allowing the agencies to discover and correct errors in reporting and assist the producer to provide consistent information to FSA, RMA, and AIPs. The electronic information contained in CIMS will be disclosed to RMA and AIPs under contract with RMA and further disclosed to the AIP's insurance agents and loss adjusters. The electronic information may also be disclosed to any contractor engaged in the development or maintenance of CIMS. Such disclosures are necessary to administer and enforce requirements of the Federal crop insurance program, an integral part of the USDA farm program system. To ensure that AIPs, and their insurance agents and loss adjusters, are only receiving information related to their specific insureds, all requests for information provided through CIMS will be automatically validated by CIMS software. Validation is accomplished by checking producer information provided directly to CIMS by data requestors against an RMA maintained database of accepted policies incorporated into CIMS. AIPs will be required to sign a non-disclosure statement before accessing CIMS to preclude them from using the information for an unauthorized purpose or releasing the information to an unauthorized person or the public. RMA and any contractor engaged in the development or maintenance of CIMS will have access to all FSA data incorporated into CIMS. FSA data will only be disclosed to the AIPs, their insurance agents and loss adjusters, for information associated with their insured producers and only with regard to such producers' farming operations contained in counties covered by their policies. The FSA data disclosed through access to CIMS data consist of: —Electronic Producer and Member Entity Information, including a common producer name, address, tax identifier, identity type, and entity file. —Current and prior crop year electronic report acreage information reported to FSA by producers, and acreage determined by FSA, as applicable, and farm and producer identifiers. —Electronic production data/information used by both FSA and RMA to establish program benefits. This data/information is the basis for determination of accurate monetary benefits. —Digital imagery and geospatial data layer containing CLU boundaries, calculated acres, State and county codes, and unique identifiers for those States in which the AIPs have contracted with RMA to sell crop insurance. This will enable AIPs to associate farm, tract, and CLU numbers to geospatial data for their insured producers. A CLU is an electronic representation of the boundaries of a piece of land, represented in latitudes and longitudes. It is the smallest unit of land that has a permanent, contiguous boundary; common land cover and land management; common owner; and common producer association. Proposed New Routine Use 23 The third proposed new routine use, designated as number 23, permits disclosure of certain hard-copy records from this system of records to AIPs (excluding their insurance agents) and loss adjusters for their respective insured producers. This includes copies of their insured producer's form FSA-578, Producer Print Acreage Reports and photocopies of maps for associated land to be used for the purpose of fulfilling loss adjustment obligations as well as for audits and reviews of claims. Limited disclosure of this hard-copy information assists USDA in effectively administering and enforcing the national crop insurance program. The specific hard copy information to be disclosed to the AIPs (excluding their insurance agents) and loss adjusters for information associated with their insured producers and only with regard to such producers' farming operations contained in counties covered by their policies, consists of: —Producer and Member Entity Information, including a common producer name, address, tax identifier, identity type, and entity file. —Current and prior crop year acreage report information reported to FSA by producers, acreage determined by FSA, and associated maps. —Production data/information used by both FSA and RMA to establish program benefits. This data/information is the basis for determination of accurate monetary benefits. Proposed New Routine Use 24 The fourth proposed new routine use, designated as number 24, would permit disclosure of certain records in this file to cooperating Federal, State, and local agencies, including State universities, and sugar cane processors as necessary for implementation of hurricane disaster programs and other studies related to the sugar industry. Limited sharing of data with cooperating Federal, State, and local agencies, including State universities, and sugar cane processors permits FSA to tailor its hurricane sugar cane disaster programs to specific local needs. In 2002 and 2005, hurricanes decimated the Louisiana sugar industry and FSA was directed to provide assistance. The sugar cane industry requested the assistance of Louisiana State University
(LSU)in developing and implementing a program specifically designed to meet the needs of Louisiana. LSU requires limited data from FSA files to accomplish their role. The hurricane sugar cane disaster programs are statutorily required to be administered through the sugar cane processing companies. Sugar cane processing companies pay growers for their sugar cane based on the revenue from the sugar extracted from the growers' sugar cane. Most of the Federal assistance for the hurricane sugar cane damage is statutorily required to be treated as sugar revenue lost to the processors and growers. Thus, FSA makes payments to the processors, who share the payments to growers as they would sugar revenue. LSU requires FSA grower acreage data to make the sugar loss calculations required as part of the processor's application for assistance under the hurricane sugar cane disaster programs. This system of records is being amended to add a routine use allowing the limited disclosure of producer and farm information to employees of cooperating Federal, State, and local agencies, including State universities who are qualified to assist in the development and implementation of hurricane sugar cane disaster programs. The specific information to be disclosed to the employees of cooperating Federal, State, and local agencies, including State universities consists of: • Producer name/address. • Acreage and farm, tract, and field identifiers. • Environmental resources and disaster data. Proposed New Routine Use 25 The fifth proposed new routine use, designated as number 25, would permit disclosure of certain records in this file to appropriate agencies, entities, and persons as necessary to respond to suspected or confirmed compromise of the security or confidentiality of information in the system of records and to prevent, minimize, or remedy such harm. A Federal agency's ability to respond quickly and effectively in the event of a breach of Federal data is critical to its efforts to prevent or minimize any consequent harm. An effective response necessitates disclosure of information regarding the breach to those individuals affected by it, as well as to persons and entities in a position to cooperate, either by assisting in notification to affected individuals or playing a role in preventing or minimizing harms from the breach. This routine use will allow the disclosure of information in the course of responding to a breach of Federal data. This routine use will serve to protect the interests of the individuals whose information is at issue by allowing agencies to take appropriate steps to facilitate a timely and effective response, thereby improving their ability to prevent, minimize, or remedy any harm resulting from a compromise of data maintained in their systems of records. This system of records is being amended to add a routine use allowing the limited disclosure to appropriate agencies, entities, and persons when
(1)the agency suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
(2)the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(3)the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. Proposed Revisions to Other Categories of Information FSA proposes to make changes to seven categories of information in the system of records because of agency reorganization, new programs, and advanced technologies. These changes have been made to the following: correction of the names and addresses listed in the categories of System Location and System Manager(s) and Address; the addition of another group of persons covered in the Categories of Individuals Covered by the System; the addition of types of files/records/materials collected and maintained due to new Congressionally approved programs and advanced technology in the Categories of Records in the System; the addition of new statutes listed in the Authority for Maintenance of the System, and to revise the reasons for collecting and maintaining information in this system of records in the Purpose(s). Report A “Report on Revised System,” required by 5 U.S.C. 552a(r) as implemented by the Office of Management and Budget
(OMB)Circular A-130, was sent to the Chairman, Committee on Governmental Affairs, United States Senate; the Chairman, Committee on Government Reform and Oversight, House of Representatives; and the Administrator, Office of Information and Regulatory Affairs, Office of Management and Budget, on December 4, 2007. Signed at Washington, DC, on December 4, 2007. Charles F. Conner, Acting Secretary of Agriculture. USDA/FSA-2 SYSTEM NAME: Farm Records File (Automated), USDA/FSA-2. SYSTEM LOCATION: This system of records is under the control of the Deputy Administrator for Farm Programs FSA, USDA, Stop 0539, P.O. Box 2415, Washington, DC 20250. The data will be maintained at the county FSA office which services the particular farm, the State FSA Office of the State where the particular county FSA office is located; the FSA Aerial Photography Field Office, 2222 West 2300 South, Salt Lake City, Utah 84119-2020; the Kansas City Administrative Office, 6501 Beacon Drive, Kansas City, Missouri 64133; the Kansas City Commodity Office, 6501 Beacon Drive, Kansas City, Missouri 64133, and the FSA National Office. The address of each county and State FSA office can be found in the local telephone directory under the heading “United States Government, Department of Agriculture, Farm Service Agency.” CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM: Farm owners, operators, borrowers, and other producers. CATEGORIES OF RECORDS IN THE SYSTEM: The information in the system consists of electronic and hard copy documentation of participation in the active programs as well as discontinued programs. This includes names and addresses of producers and is not necessarily limited to farm allotments, quotas, bases, and history; compliance data; producer entity data; combined producer data; production and marketing data; lease and transfer of allotments and quotas; appeals; new grower applications; conservation program documents; program participation and payment documents; appraisals, leases, and data for farm reconstitution; and, for payment limitation and conservation compliance purposes, financial statements, and other applicable farm information such as tax statements, wills, trusts, partnership agreements, and corporate charters. Geospatial
(GIS)data set, containing producer boundaries of Common Land Units (CLUs), farms, tracts, field identifiers and attributes used to identify the location of land that can be traced back to a producer's crops and benefits. By definition, a CLU identifies a farm's subdivisions and boundaries and is recommended as the common location identifier for reporting acreage. GIS Crop Reporting Layer, consisting of tabular crop acreage data and including producer share, location of land where a crop is planted, and crop acreage compliance data. Digital renditions of farm record boundaries, including farm, tract, CLUs (fields), and personal attributes of that property such as, but not limited to, cropland designation, wetland location, program participation designation ( *e.g.* , Conservation Reserve Program or CRP), and presence of structures located on a property ( *e.g.* , buildings, well heads, or other identifying structures). Crop Acreage Data used to promote a viable agriculture economy essential to effectively administering and enforcing the national crop insurance program and for the purpose of fulfilling loss adjustment obligations as well as audits and reviews of claims. AUTHORITIES FOR MAINTENANCE OF THE SYSTEM: 7 U.S.C. 135b, 450j, 450k, 450l, 1281-1393, 1421-1449, 1461-1469, 1471-1471i; 15 U.S.C. 714-714p; 16 U.S.C. 590a-590q, 1301-1311, 1606, 2101-2111, 2201-2205, 3501, 3801-3847, 4601, 26 U.S.C. 6109; 40 U.S.C. 14101, 14505, and 43 U.S.C. 1592. PURPOSE(S): To deliver Federal farm program benefits and loans legislated by Congress to farm and ranch owners and operators to support farms and ranches, protect the environment, and enhance the marketing of agriculture products. ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: Records contained in this system may be disclosed:
(1)To a cooperative marketing association (CMA), designated marketing association (DMA), or loan servicing agent
(LSA)approved to carry out CCC price support loan and marketing programs. Records that will be disclosed include only data that is necessary for the CMA, DMA, or LSA, to make producer eligibility determinations, reasonable quantity determinations, producer payment limitations, and denied benefit determinations;
(2)To the appropriate agency, whether Federal, State, local, or foreign charged with the responsibility of investigating or prosecuting a violation of law, or of enforcing or implementing a statute, rule, regulation, or order issued pursuant thereto, of any records within this system when information available indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by general statute or particular program statute, or by rule, regulation, or order issued pursuant thereto;
(3)To a court, magistrate, or administrative tribunal, or to opposing counsel in a proceeding before any of the above, of any record within the system which constitutes evidence in that proceeding, or which is sought in the course of discovery to the extent that records sought are relevant to the subject of the proceeding;
(4)To a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual;
(5)To the Internal Revenue Service to establish the tax liability of individuals as required by the Internal Revenue Code;
(6)To State or local tax authorities having an agreement with CCC to withhold taxes or fees from loan proceeds;
(7)To the Bureau of Reclamation (BOR), but only that data necessary for the BOR to administer the Reclamation Act of 1982, as amended;
(8)To boards or other entities authorized by State statute to collect commodity assessments;
(9)To the Food Safety and Inspection Service;
(10)To the Peanut Board, with respect to producers of peanuts and their participation in the peanut price support program;
(11)To the Bureau of Indian Affairs the name and address of producers to assist in the distribution of funds to Native American Indians;
(12)To candidates for FSA county and/or community committee positions the names and addresses of producers in the county for the purpose of county committee elections;
(13)To the public who may inspect farm allotment and quota data for marketing quota crops, as required by the Agricultural Act of 1938, as amended;
(14)To State Foresters the names and addresses of producers and crop-specific data regarding their operations with respect to forestry conservation practices;
(15)To cotton buyers the names of cotton producers;
(16)To cotton ginners the names, addresses, farm numbers, cotton yields and cotton acreages;
(17)To members of Congress the names and addresses of producers;
(18)To the public when they need to obtain the names and addresses of producers who have loans with FSA or CCC to prevent such individual from purchasing a commodity that has been placed under CCC loan.
(19)To State or local taxing authorities or their contracted appraisal companies the name of and address of producers for tax appraisal purposes;
(20)To State-certified or State-licensed appraisers and employees of Federal agencies other than USDA qualified to perform real estate appraisals. The specific information to be disclosed to the appraiser is: —Direct and Counter-cyclical Program
(DCP)Contract Base Acres. —Payment yields. —DCP cropland and cropland acres. —Copies of aerial photography. —Conservation Reserve Program
(CRP)acres. —Highly erodible land
(HEL)delineations. —Wetland classifications;
(21)To cooperating Federal, State, and local agencies' employees who are qualified to implement conservation programs. The specific information to be disclosed to the cooperating Federal, State, and local agencies employees consists of: —Producer name/address/tax identification number. —Digital imagery, including Common Land Unit
(CLU)boundaries, calculated acreage, and farm, tract, and field identifiers. —Environmental resources and disaster data. —Conservation Reserve Program
(CRP)data. —Highly erodible land
(HEL)delineations and data. —Conservation Producer payment history. —Wetlands classifications;
(22)To RMA and any contractor engaged in the development or maintenance of CIMS, access to all FSA data incorporated into CIMS. To AIPs, their insurance agents and loss adjusters, for information associated with their insured producers and only with regard to such producers' farming operations contained in counties covered by their policies, access to CIMS data consist of: —Electronic Producer and Member Entity Information, including a common producer name, address, tax identifier, identity type, and entity file. —Current and prior crop year electronic report acreage information reported to FSA by producers, and acreage determined by FSA, as applicable, and farm and producer identifiers. —Electronic production data/information used by both FSA and RMA to establish program benefits. This data/information is the basis for determination of accurate monetary benefits. —Digital imagery and geospatial data layer containing CLU boundaries, calculated acres, State and county codes, and unique identifiers for those States in which the AIPs have contracted with RMA to sell crop insurance. This will enable AIPs to associate farm, tract, and CLU numbers to geospatial data for their insured producers. A CLU is an electronic representation of the boundaries of a piece of land, represented in latitudes and longitudes. It is the smallest unit of land that has a permanent, contiguous boundary; common land cover and land management; common owner; and common producer association.
(23)To the AIPs (excluding their insurance agents) and loss adjusters for information associated with their insured producers and only with regard to such producers' farming operations contained in counties covered by their policies consists of: —Producer and Member Entity Information, including a common producer name, address, tax identifier, identity type, and entity file. —Current and prior crop year acreage report information reported to FSA by producers, acreage determined by FSA, and associated maps. —Production data/information used by both FSA and RMA to establish program benefits.
(24)To employees of cooperating Federal, State, and local agencies, including State universities who are qualified to implement hurricane disaster programs or analyze the sugar industry. The specific information to be disclosed to the employees of cooperating Federal, State, and local agencies, including State universities consists of: —Producer name/address. —Acreage and farm, tract, and field identifiers. —Environmental resources and disaster data.
(25)To appropriate agencies, entities, and persons when:
(1)The agency suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised;
(2)the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and
(3)the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. POLICIES AND PRACTICES FOR STORING, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: STORAGE: Records are maintained in file folders and Department computer systems at applicable locations as set out above under the heading “System Location.” RETRIEVABILITY: Records may be indexed by individual name, farm number, tax identification number, Social Security Number, or loan number. SAFEGUARDS: Records are kept in locked Government office buildings. Access to these records is limited to authorized FSA personnel and representatives. Records stored in computer files are protected by passwords and other electronic security systems. Additionally, any negotiable documents, such as warehouse receipts, are kept in a fireproof cabinet. RETENTION AND DISPOSAL: Program documents are destroyed within 6 years after end of participation, except for conservation program documents, which are retained for periods sufficient to insure compliance equal to the life of the practice. Other documents, such as powers of attorney or leases, are destroyed after such document is no longer valid. Original loan notes are returned to producers after liquidation of loan. SYSTEM MANAGER(S) AND ADDRESS: Deputy Administrator for Farm Programs, FSA, USDA, Stop 0539, P.O. Box 2415, Washington, DC 20013. NOTIFICATION PROCEDURE: An individual may request information regarding this system of records or information as to whether the system contains records pertaining to the individual from the System Manager listed above. RECORD ACCESS PROCEDURES: An individual may obtain information about a record in the system which pertains to such individual by submitting a written request to the above listed System Manager. The envelope and letter should be marked “Privacy Act Request.” A request for information pertaining to an individual should contain: Name, address, ZIP code, name of system of record, year of records in question, and any other pertinent information to help identify the file. CONTESTING RECORD PROCEDURES: Individuals desiring to contest or amend information maintained in the system should direct their request to the above listed System Manager, and should include the reason for contesting it and the proposed amendment to the information with supporting information to show how the record is inaccurate. A request for contesting records pertaining to an individual should contain: Name, address, ZIP code, name of system of record, year of records in question, and any other pertinent information to help identify the file. RECORD SOURCE CATEGORIES: Information in this system is submitted by county and State Committees and their representatives, the Office of Inspector General and other investigatory agencies, the Office of the General Counsel, the Kansas City Commodity Office, the Kansas City Management Office, the Natural Resources and Conservation Service, by third parties, and by the individual who is the subject of the file. [FR Doc. E7-24056 Filed 12-11-07; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Doc. No.: AMS-ST-07-0144; ST-07-02] Notice of Request for New Information Collection AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice and request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this notice announces that the Agricultural Marketing Service
(AMS)is requesting approval from the Office of Management and Budget of a new information collection “Laboratory Approval Programs” in support of U.S. agricultural commodities. DATES: Comments received by February 11, 2008 will be considered. *Additional Information or Comments:* Interested persons are invited to submit comments on this proposal to Jane Ho, Technical Services Branch, Science and Technology, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Stop 0272 Washington, DC 20250-0272; Phone 202-690-0621, Fax 202-720-4631. Comments should be submitted in triplicate. Comments may also be submitted electronically through *http://www.regulations.gov.* All comments should reference the docket number and page number of this issue of the **Federal Register** . All comments received will be made available for public inspection at the above address during regular business hours and may be viewed at *http://www.regulations.gov.* SUPPLEMENTARY INFORMATION: *Title:* Laboratory Approval Programs. *OMB Number:* 0581-New. *Expiration Date of Approval:* 3 years from date of OMB approval. *Type of Request:* New Information Collection. *Abstract:* Under the Agricultural Marketing Act of 1946, as amended (7 U.S.C. 1621-1627), AMS provides analytical testing services that facilitate marketing and allow products to obtain grade designations or meet marketing or quality standards. Pursuant to this authority, AMS develops and maintains laboratory certification and approval programs as needed by the agricultural industry, to support domestic and international marketing of U.S. products. These programs have been small in the past and not subject to the information collection approval provisions of the Paperwork Reduction Act. Changes in the import requirements of foreign countries and proposed regulatory changes make it likely that requests for laboratory certification will increase so that products may be tested at the processing site. The laboratory certification and approval programs will remain voluntary and fee for service. To ensure that a laboratory is capable of accurately performing the specified analyses, it must adhere to certain good laboratory practices and show technical proficiency in the required areas. Checklist and form have been developed that ask the laboratory for information concerning procedures, the physical facility, employees, and their training. The laboratory must also provide Standard Operating Procedures
(SOPs)for the analyses and quality assurance. Most of the laboratory programs will include an on-site laboratory review. AMS will not approve a laboratory unless there is assurance that the laboratory is capable of performing accurate analyses. Interested parties can obtain a copy of the form (ST-212) by calling or writing to the point of contact listed above. The information collection requirements in this request are essential to examine laboratories for entrance into the following programs:
(1)*Analyst and Laboratory Certification Program for the Detection of Trichinae in Pork* (An export program requested by Food Safety and Inspection Service).
(2)*Laboratory Verification Program for Poultry Exported from the United States to Russia* (An export program requested by Food Safety and Inspection Service). This program contains the possibility of performing 12 different analyses in support of the exportation of poultry to Russia. Laboratories choose how many and which analyses for which they wish to be approved. Each of microbiological/chemical analyses has its own methodology and the time necessary to perform the analyses.
(3)*Aflatoxin in Pistachios Program* (A High Performance Liquid Chromatography method for exporting pistachios to European Union requested by the California Pistachio Committee) and the domestic program using a test kit analysis method (identified in the Pistachio Marketing Order); *Aflatoxin in Peanuts Program* (7 CFR part 996); and *Aflatoxin in Almonds Program* (requested by the Almond Board of California). These programs are single analyte, single substrate programs, but the domestic pistachio, peanut, and almond programs have the option of using two different methods. The export pistachio program and export almond program must use the specified method.
(4)Any additional programs which may be requested in the future to facilitate the marketing of U.S. agricultural products. All laboratory approval programs will follow the same general pattern. There would be a letter of intent, a form for identification of the analyses they intend to perform, an on-site laboratory review, analysis of known samples, and analysis of proficiency samples. The length of time required would depend on the complexity of the analysis, and the time necessary to perform the analysis. The burden hours incurred for these laboratories to submit the initial letter requesting entrance, completion of a general laboratory checklist, and correctly analyzing the test samples is a one-time occurrence. Once a laboratory is accepted, the burden will decrease and is then based on the various laboratories analyzing test samples throughout the year to maintain its program status. Form ST-212 (Alternate Payment Form) has been developed and is included in the submission to OMB for approval. This is an option for applicant/approved laboratories to pay for the services. *Estimate of Burden:* Public reporting burden for this collection of information is estimated to average 8.55 hours per response. *Respondents:* Laboratories. *Estimated Number of Respondents:* 82. *Estimated Total Annual Responses:* 666. *Estimated Number of Responses per Respondent:* 8.12. *Estimated Total Annual Burden on Respondents:* 5695.3. Comments are invited on:
(1)Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2)the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to Jane Ho, Technical Services Branch, Science and Technology, Agricultural Marketing Service, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Stop 0272 Washington, DC 20250-0272; Phone 202-690-0621, Fax 202-720-4631. All comments received will be available for public inspection during regular business hours at the same address. All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record. Dated: December 6, 2007. Kenneth C. Clayton, Acting Administrator, Agricultural Marketing Service. [FR Doc. E7-24057 Filed 12-11-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service [Docket No. AMS-FV-07-0100; FV-06-334] United States Standards for Grades of Frozen Okra AGENCY: Agricultural Marketing Service, USDA. ACTION: Notice and request for comments. SUMMARY: The Agricultural Marketing Service
(AMS)of the Department of Agriculture
(USDA)is soliciting comments on the proposed revision to the United States Standards for Grades of Frozen Okra. AMS received a petition from the American Frozen Food Institute
(AFFI)requesting that USDA revise the standards for frozen okra from a “score point” grading system to an “individual attribute” grading system. The individual attribute grading system uses sample sizes and acceptable quality levels (AQL's), along with tolerances and acceptance numbers (number of allowable defects), to determine the quality level of a lot. This change was requested to bring the standards for frozen okra in line with the present quality levels being marketed today and to provide guidance in the effective utilization of frozen okra. DATES: Comments must be submitted on or before February 11, 2008. ADDRESSES: Interested persons are invited to submit written comments concerning this notice. Comments may be sent to Gabriel W. Mangino, Inspection and Standardization Section, Processed Products Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, U.S. Department of Agriculture, STOP 0247, 1400 Independence Avenue, SW., Washington, DC 20250-0247; Fax:
(202)690-1087. E-mail: *gabriel.mangino@usda.gov.* Comments may also be sent to *http://www.regulations.gov.* The United States Standards for Grades of Frozen Okra are available either through the address cited above, or by accessing the AMS, Fruit and Vegetable Programs Web site on the Internet at *http://www.ams.usda.gov/fv or http://www.regulations.gov.* SUPPLEMENTARY INFORMATION: Section 203(c) of the Agricultural Marketing Act of 1946, as amended, directs and authorizes the Secretary of Agriculture “to develop and improve standards of quality, condition, quantity, grade and packaging and recommend and demonstrate such standards in order to encourage uniformity and consistency in commercial practices.” AMS is committed to carrying out this authority in a manner that facilitates the marketing of agricultural commodities and makes copies of official standards available upon request. Most of the United States Standards for Grades of Fruits and Vegetables no longer appear in the Code of Federal Regulations, but are maintained by USDA/AMS/Fruit and Vegetable Programs. AMS is proposing to revise the U.S. Standards for Grades of Frozen Okra using the procedures that appear in Part 36 of Title 7 of the Code of Federal Regulations (7 CFR Part 36). Background AMS received a petition from the American Frozen Food Institute (AFFI), requesting the revision of the standards for frozen okra. The petitioner represents AFFI's Western Technical Advisory Committee, which includes among its members almost all of the processors of frozen okra in the United States. The petitioner requested that USDA change the grading system for frozen okra from a score point grading system to an individual attribute system. The petitioner believes that the change will bring the grading of frozen okra in line with current marketing practices and innovations with processing techniques. The petitioner also specifically requested that AMS revise the definitions of the following terms: Extraneous vegetable material, small piece in whole style, and small piece or damaged piece in cut style. It proposes that extraneous vegetable material would be modified to include “detached stems of any length.” “Small piece in whole style” would be modified and no longer include “very small tip ends” as part of the definition. The term “small or damaged piece in cut style,” would be changed and separated into two unique definitions. The suggestion for the new terms to be used are “small piece in cut style” and “mechanical damage” respectively. The proposed revisions to the grade standards for frozen okra, including the changes to the definitions of terms, are available by accessing the AMS Fruit and Vegetable Programs Home Page on the Internet at: *http://www.ams.usda.gov/fv* or *http://www.regulations.gov.* AMS confirmed the revision at AFFI's annual conference in Monterey, CA, during a meeting on February, 24, 2007. In addition to the requested changes by the petitioner, AMS is requesting comments on replacing the dual grade nomenclature with single letter grade designations. “U.S. Grade A” (or “U.S. Fancy”) and “U.S. Grade B” (or “U.S. Extra Standard”) would become “U.S. Grade A” and “U.S. Grade B” respectively. This would conform to recent changes in other grade standards. AMS is also proposing minor editorial changes to the standards for frozen okra that would provide a format consistent with recent revisions of other U.S. grade standards. This format is intended to provide industry personnel and agricultural commodity graders with simpler and more comprehensive standards. Definitions of terms and easy to read tables would be incorporated to facilitate a better understanding and uniform application of the standards. The proposed revisions to the frozen okra standards would provide both a common language for trade and a means of measuring value in the marketing of frozen okra. The standards would also provide guidance in determining whether frozen okra should be utilized in its present state, or subject to reprocessing. The official grade of a lot of frozen okra covered by these standards is determined by the procedures set forth in the “Regulations Governing Inspection and Certification of Processed Products Thereof, and Certain Other Processed Food Products (§ 52.1 to 52.83).” This notice provides for a 60-day comment period for interested parties to comment on undertaking this revision. Authority: 7 U.S.C. 1621-1627. Dated: December 6, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-24058 Filed 12-11-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF AGRICULTURE Forest Service Information Collection; Airplane Pilot Qualifications and Approval Record, Helicopter Pilot Qualifications and Approval Record, Airplane Data Record, and Helicopter Data Record AGENCY: Forest Service, USDA. ACTION: Notice; request for comment. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the revision of a currently approved information collection, Airplane Pilot Qualifications and Approval Record, Helicopter Pilot Qualifications and Approval Record, Airplane Data Record, and Helicopter Data Record. DATES: Comments must be received in writing on or before February 11, 2008 to be assured of consideration. Comments received after that date will be considered to the extent practicable. ADDRESSES: Comments concerning this notice should be addressed to Forest Service, U.S. Department of Agriculture, Fire and Aviation Management, 1400 Independence Ave., SW., Mail Stop 1107, Washington, DC 20250-1107. Comments also may be submitted via facsimile to 202-205-1401 or by e-mail to: *mdoherty03@fs.fed.us* . The public may inspect comments received at Forest Service, U.S. Department of Agriculture, Fire and Aviation Management, 201 14th St., SW., Washington, DC, during normal business hours. Visitors are encouraged to call ahead to 202-205-0985 to facilitate entry to the building. FOR FURTHER INFORMATION CONTACT: John Nelson, Aviation Management Specialist, 208-387-5617. Individuals who use telecommunication devices for the deaf
(TDD)may call the Federal Relay Service
(FRS)at 1-800-877-8339, 24 hours a day, every day of the year, including holidays. SUPPLEMENTARY INFORMATION: *Title:* Airplane Pilot Qualifications and Approval Record, Helicopter Pilot Qualifications and Approval Record, Airplane Data Record, and Helicopter Data Record. *OMB Number:* 0596-0015. *Expiration Date of Approval:* June 30, 2008. *Type of Request:* Revision of a currently approved collection. *Abstract:* The Forest Service contracts with approximately 400 vendors a year for aviation services utilized in resource protection and project management. In recent years, the total annual use of contract aircraft and pilots has exceeded 100,000 hours. In order to maintain an acceptable level of safety, preparedness, and cost-effectiveness in aviation operations, Forest Service contracts include rigorous qualifications for pilots and specific condition, equipment, and performance requirements for aircraft as aviation operations are conducted under extremely adverse conditions of weather, terrain, turbulence, smoke-reduced visibility, minimally improved landing areas, and congested airspace around wildfires. To ensure Agency contracting officers that pilots and aircraft used for aviation operations meet specific Forest Service qualifications and requirements for aviation operations, prospective contract pilots fill out one of the following Forest Service forms: • FS-5700-20—Airplane Pilot Qualifications and Approval Record • FS-5700-20a—Helicopter Pilot Qualifications and Approval Record Contract Officers' Technical Representatives use forms: • FS-5700-21—Airplane Data Record and • FS-5700-21a—Helicopter Data Record when inspecting the aircraft for contract compliance. Based upon the approval(s) documented on the form(s), each contractor pilot and aircraft receives an approval card. Forest Service personnel verify possession of properly approved cards before using contracted pilots and aircraft. Information collected on these forms includes: • Name. • Address. • Certification numbers. • Employment history. • Medical Certification. • Airplane/helicopter certifications and specifications. • Accident/violation history. Without the collected information, Forest Service contracting officers, as well as Forest Service pilot and aircraft inspections, cannot determine if contracted pilots and aircraft meet the detailed qualification, equipment, and condition requirements essential to safe, effective accomplishment of Forest Service specified flying missions. Without a reasonable basis to determine pilot qualifications and aircraft capability, exposure of Forest Service employees to hazardous conditions would result. The data collected documents the approval of contract pilots and aircraft for specific Forest Service aviation missions. Information will be collected and reviewed by contracting officers or their designated representatives, including aircraft inspectors, to determine whether the aircraft and/or pilot(s) meet all contract specifications in accordance with FS Handbook 5709.16, chapter 10, section 16. Forest Service regional aviation pilot and aircraft inspectors maintain the collected information in Forest Service regional headquarters offices. The Forest Service, at times, shares the information with the Department of the Interior Aviation Management Directorate, as each organization accepts contract inspections conducted by the other. *Estimate of Annual Burden:* 60 minutes. *Type of Respondents:* Vendors/contractors. *Estimated Annual Number of Respondents:* 2100. *Estimated Annual Number of Responses per Respondent:* 1. *Estimated Total Annual Burden on Respondents:* 1050. Comment is invited on:
(1)Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility;
(2)the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3)ways to enhance the quality, utility, and clarity of the information to be collected; and
(4)ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval. Dated: December 5, 2007. Robin L. Thompson, Associate Deputy Chief. [FR Doc. E7-24031 Filed 12-11-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF COMMERCE International Trade Administration [A-570-896] Magnesium Metal from the Peoples' Republic of China; Notice of Extension of Time Limit for Preliminary Results of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: December 12, 2007. FOR FURTHER INFORMATION CONTACT: Karine Gziryan or Mark Manning, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14 th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-4081 and
(202)482-5253, respectively. SUPPLEMENTARY INFORMATION: Background On May 30, 2007, the Department of Commerce (“Department”) published a notice of initiation of administrative review of the antidumping duty order on magnesium metal from the Peoples' Republic of China (“PRC”). *See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part* , 72 FR 29968 (May 30, 2007). The period of review is April 1, 2006, through March 31, 2007. The preliminary results of this administrative review are currently due no later than December 31, 2007. Extension of Time Limit for Preliminary Results Pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (“Act”), the Department shall make a preliminary determination in an administrative review of an antidumping duty order within 245 days after the last day of the anniversary month of the date of publication of the order. Section 751(a)(3)(A) of the Act further provides, however, that the Department may extend the 245-day period to 365 days if it determines it is not practicable to complete the review within the foregoing time period. The Department determines that it is not practicable to complete this administrative review within the time limits mandated by section 751(a)(3)(A) of the Act because this review involves examining a number of complex issues related to the factors of production and surrogate values. The Department requires additional time to issue and analyze supplemental questionnaires regarding these issues. Therefore, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time period for completing the preliminary results of this administrative review until February 29, 2008, which is 305 days from the last day of the anniversary month of the date of publication of the order. The deadline for the final results of the review continues to be 120 days after the publication of the preliminary results. This extension notice is issued and published in accordance with sections 751(a)(3)(A) and 777(i) of the Act. Dated: December 4, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7-24071 Filed 12-11-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE International Trade Administration [A-405-803] Purified Carboxymethylcellulose from Finland, Notice of Final Results of Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. ACTION: Notice of Final Results of Antidumping Duty Administrative Review. SUMMARY: On August 7, 2007, the Department of Commerce (the Department) published the preliminary results of administrative review of the antidumping duty order covering purified carboxymethylcellulose from Finland. *See Purified Carboxymethylcellulose from Finland; Notice of Preliminary Determination of Antidumping Duty Administrative Review* , 72 FR 44106 (August 7, 2007) ( *Preliminary Results* ). The merchandise covered by this order is purified carboxymethylcellulose as described in the “Scope of the Order” section of this notice. The period of review
(POR)is December 27, 2004, through June 30, 2006. In the *Preliminary Results* , we invited parties to provide comments. Based on our analysis of the comments received, we have made changes to the margin calculation. Therefore, the final results differ from the Preliminary Results. The final weighted-average dumping margin for the reviewed firm is listed below in the section entitled “Final Results of the Review.” EFFECTIVE DATE: December 12, 2007. FOR FURTHER INFORMATION CONTACT: Tyler Weinhold, or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone:
(202)482-1121, and
(202)482-0649, respectively. SUPPLEMENTARY INFORMATION: Background On August 7, 2007, the Department published the Preliminary Results of administrative review of the antidumping order covering purified carboxymethylcellulose from Finland. *See Preliminary Results* . The parties subject to this review are Noviant Oy, CP Kelco Oy, Noviant Inc., and CP Kelco U.S., Inc. (collectively, CP Kelco). The petitioner in this proceeding is The Aqualon Company, a division of Hercules Incorporated. On August 1, 2007, we sent a supplemental questionnaire to CP Kelco, requesting certain information about factoring expenses. CP Kelco responded to this questionnaire on August 15, 2007. *See* Letter from CP Kelco, dated August 15, 2007 (CP Kelco's August 15, 2007, Questionnaire Response). On August 22, 2007, the Department released a verification report describing the May 14 to May 18, 2007, verification of CP Kelco Oy's and Noviant Oy's Export Price
(EP)and Home Market
(HM)sales of subject merchandise. *See* Memorandum to the File Regarding “Verification of Sections A-C Questionnaire Responses submitted by CP Kelco Oy, Noviant Oy, CP Kelco U.S., Inc., and Noviant Inc., in the Antidumping Review of Purified Carboxymethylcellulose
(CMC)from Finland,” dated August 22, 2007. In the *Preliminary Results* we invited parties to provide comments. In response, the Department received a case brief on September 10, 2007, from CP Kelco. On September 10, 2007, the Department also received a letter from Petitioner alleging programming errors in the calculation of the Preliminary Results dumping margin. Also, on September 17, 2007, Petitioner submitted a rebuttal brief. At CP Kelco's request, the Department held a public hearing on September 26, 2007. Scope of the Order The merchandise covered by this order is all purified carboxymethylcellulose (CMC), sometimes also referred to as purified sodium CMC, polyanionic cellulose, or cellulose gum, which is a white to off-white, non-toxic, odorless, biodegradable powder, comprising sodium CMC that has been refined and purified to a minimum assay of 90 percent. CMC does not include unpurified or crude CMC, CMC Fluidized Polymer Suspensions, and CMC that is cross-linked through heat treatment. CMC is CMC that has undergone one or more purification operations which, at a minimum, reduce the remaining salt and other by-product portion of the product to less than ten percent. The merchandise subject to this order is classified in the Harmonized Tariff Schedule of the United States at subheading 3912.31.00. This tariff classification is provided for convenience and customs purposes; however, the written description of the scope of the order is dispositive. Analysis of Comments Received All issues raised in CP Kelco's case brief and in Petitioner's rebuttal brief are addressed in the Memorandum to David M. Spooner, Assistant Secretary for Import Administration, dated December 5, 2007 (Issues and Decision Memorandum), which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, all of which are in the Decision Memorandum, is attached to this notice as an appendix. The Issues and Decision Memorandum is on file in room B-099 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at *http://www.ia.ita.doc.gov/frn/index.html.* The paper copy and electronic version of the Decision Memorandum are identical in content. In addition, Petitioner submitted a letter in which it alleged certain programming errors. *See* Letter from Edward M. Lebow regarding “Purified Carboxymethylcellulose from Finland; Demonstration of Programming Errors in Lieu of Case Brief,” dated September 10, 2007 (Petitioner's Allegation of Programming Errors) . Successor-In-Interest Determination In the *Preliminary Results* , we preliminarily determined that CP Kelco Oy is the successor-in-interest to the former Noviant Oy for purposes of this proceeding and application of the antidumping law. We did not receive comments on this issue and have no reason to change our findings from the *Preliminary Results* . For a complete discussion of our successorship analysis, *see Preliminary Results* at 44107 to 44108. As a result of our review, we determine that CP Kelco Oy is the successor-in-interest to Noviant Oy. Changes Since the Preliminary Results In the *Preliminary Results* , we made a direct adjustment to normal value and U.S. price for certain factoring expenses CP Kelco incurred in both the home market and in the United States. However, as we had not asked CP Kelco to report these expenses, we relied upon a sample of these expenses gathered at the CEP and HM/EP sales verifications as facts otherwise available. *See* the *Preliminary Results* . Therefore, in a questionnaire dated August 1, 2007, we asked CP Kelco to submit new U.S. and HM sales databases containing this information for all of its sales. CP Kelco responded to this questionnaire on August 15, 2007. See CP Kelco's August 15, 2007, questionnaire response. As a result we relied upon the U.S. and HM sales databases submitted August 15, 2007, in the final results. These databases include additional fields for per-unit factoring expenses and factoring rates, but are otherwise identical to those databases relied upon in the *Preliminary Results* . Accordingly, the programming language used to calculate factoring expenses as facts available has been removed from the margin calculation program for these final results, and other programming language has been added to deduct the reported factoring expenses from U.S. price and normal value. See Memorandum to the File from Tyler Weinhold Regarding “Analysis of Data Submitted by Noviant Oy and CP Kelco Oy (Collectively, CP Kelco) in the Final Results of the 2004-2006 Administrative Review of the Antidumping Duty Order on Purified Carboxymethylcellulose
(CMC)from Finland,” dated December 5, 2007 (Final Analysis Memorandum). CP Kelco was not able to report the importer of record for some of its U.S. sales during the POR. Therefore, in order to allow for importer-specific assessment, we set the importer field for such sales equal to the consolidated customer codes reported by CP Kelco. This change is explained in detail in the Final Analysis Memorandum. In addition, we made certain changes to our calculation of comparison market net price and certain other changes related to foreign currency conversions as a result of our analysis of the issues raised in Petitioner's Allegation of Programming Errors. The issues raised and the changes made to the margin calculation program since the Preliminary Results as a result of our analysis of these issues are explained in the Final Analysis Memorandum. Final Results of the Review We determine the following percentage weighted-average margin exists for the period December 27, 2004, through June 30, 2006: Manufacturer/Exporter Weighted Average Margin (percentage) CP Kelco Oy 5.97 Noviant Oy 5.97 Assessment The Department shall determine, and U.S. Customs and Border Protection
(CBP)shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), the Department calculates an assessment rate for each importer of the subject merchandise. CP Kelco has reported entered values for all of its sales of subject merchandise to the United States during the POR. Therefore, in accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific duty assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of the examined sales of that importer. These rates will be assessed uniformly on all entries the respective importers made during the POR. Where the assessment rate is above *de minimis* , we will instruct CBP to assess duties on all entries of subject merchandise by that importer. The Department will issue appropriate liquidation instructions directly to CBP within fifteen days of publication of the final results of review. The Department clarified its “automatic assessment” regulation on May 6, 2003 (68 FR 23954). This clarification will apply to entries of subject merchandise during the period of review produced by reviewed companies for which these companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). Cash Deposit Requirements The following deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments of purified carboxymethylcellulose from Finland entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Tariff Act of 1930, as amended (the Tariff Act): 1) The cash deposit rate for CP Kelco Oy and Noviant Oy will be the rate established in the final results of review; 2) if the exporter is not a firm covered in this review or the less-than-fair-value
(LTFV)investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and 3) if neither the exporter nor the manufacturer is a firm covered in this or any previous review conducted by the Department, the cash deposit rate will be the all-others rate of 6.65 percent from the LTFV investigation. *See Notice of Antidumping Duty Orders: Purified Carboxymethylcellulose from Finland, Mexico, the Netherlands and Sweden* , 70 FR 39734 (July 11, 2005). These deposit requirements, when imposed, shall remain in effect until further notice. These deposit requirements shall remain in effect until publication of the final results of the next administrative review. Notification to Interested Parties This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping or countervailing duties occurred and the subsequent assessment of doubled antidumping duties. This notice also serves as a reminder to parties subject to administrative protective orders
(APO)of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i) of the Tariff Act. Dated: December 3, 2007. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. APPENDIX Comments and Responses: Issue 1:Amortization of Goodwill Issue 2: Zeroing of Non-Dumping Margins [FR Doc. E7-24072 Filed 12-11-07; 8:45 am] BILLING CODE 3510-DS-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE24 Fisheries of the Exclusive Economic Zone Off Alaska; North Pacific Halibut and Sablefish Individual Fishing Quota Cost Recovery Program AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notification of standard prices and fee percentage. SUMMARY: NMFS publishes IFQ standard prices for the individual fishing quota
(IFQ)cost recovery program in the halibut and sablefish fisheries of the North Pacific. This action is intended to provide holders of halibut and sablefish IFQ permits with the 2007 standard prices and fee percentage to calculate the required payment for IFQ cost recovery fees due by January 31, 2008. DATES: Effective December 12, 2007. FOR FURTHER INFORMATION CONTACT: Troie Zuniga, Fee Coordinator, 907-586-7231. SUPPLEMENTARY INFORMATION: Background NMFS Alaska Region administers the halibut and sablefish IFQ programs in the North Pacific. The IFQ programs are limited access systems authorized by section 303(b) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Northern Pacific Halibut Act of 1982. Fishing under the IFQ programs began in March 1995. Regulations implementing the IFQ program are set forth at 50 CFR part 679. In 1996, the Magnuson-Stevens Act was amended (by Public Law 104-297) to, among other things, require the Secretary of Commerce to “collect a fee to recover the actual costs directly related to the management and enforcement of any . . . individual quota program.” This requirement was further amended in 2006 (by Public Law 109-479) to include collection of the actual costs of data collection, and to replace the reference to individual quota program with a more general reference to “limited access privilege program” (section 304(d)(2)(A)). Section 304(d)(2) of the Magnuson-Stevens Act specifies an upper limit on these fees, when the fees must be collected, and where the fees must be deposited. On March 20, 2000, NMFS published regulations implementing the IFQ cost recovery program (65 FR 14919), which are set forth at § 679.45. Under the regulations, an IFQ permit holder incurs a cost recovery fee liability for every pound of IFQ halibut and IFQ sablefish that is landed on his or her IFQ permit(s). The IFQ permit holder is responsible for self-collecting the fee liability for all IFQ halibut and IFQ sablefish landings on his or her permit(s). The IFQ permit holder is also responsible for submitting a fee liability payment to NMFS on or before the due date of January 31 following the year in which the IFQ landings were made. The dollar amount of the fee due is determined by multiplying the annual IFQ fee percentage (3 percent or less) by the ex-vessel value of each IFQ landing made on a permit and summing the totals of each permit (if more than one). Standard Prices The fee liability is based on the sum of all payments of monetary worth made to fishermen for the sale of the fish during the year. This includes any retro-payments (e.g., bonuses, delayed partial payments, post-season payments) made to the IFQ permit holder for previously landed IFQ halibut or sablefish. For purposes of calculating IFQ cost recovery fees, NMFS distinguishes between two types of ex-vessel value: “actual” and “standard.” “Actual” ex-vessel value is the amount of all compensation, monetary or non-monetary, that an IFQ permit holder received as payment for his or her IFQ fish sold. “Standard” ex-vessel value is the default value on which to base fee liability calculations. IFQ permit holders have the option of using actual ex-vessel value if they can satisfactorily document it, otherwise the “standard” ex-vessel value is used. Regulations at § 679.45(c)(2)(i) require the Regional Administrator to publish IFQ standard prices during the last quarter of each calendar year. These standard prices are used, along with estimates of IFQ halibut and IFQ sablefish landings, to calculate standard values. The standard prices are described in U.S. dollars per IFQ equivalent pound for IFQ halibut and IFQ sablefish landings made during the year. IFQ equivalent pound(s) is the weight (in pounds) for an IFQ landing, calculated as the round weight for sablefish and headed and gutted net weight for halibut. NMFS calculates the standard prices to closely reflect the variations in the actual ex-vessel values of IFQ halibut and IFQ sablefish landings by month and port or port-group. The standard prices for IFQ halibut and IFQ sablefish are listed in the tables that follow the next section. Data from ports are combined as necessary to protect confidentiality. Fee Percentage Section 304(d)(2)(B) of the Magnuson-Stevens Act provides for a maximum fee of 3 percent of the ex-vessel value of fish harvested under an IFQ Program. NMFS annually sets a fee percentage for sablefish and halibut IFQ holders that is based on the actual annual costs associated with certain management and enforcement functions, as well as the standard ex-vessel value of the catch subject to the IFQ fee for the current year. The method used by NMFS to calculate the IFQ fee percentage is described at § 679.45(d)(2)(ii). Regulations at § 679.45(d) require NMFS to publish the IFQ fee percentage for the halibut and sablefish IFQ fisheries in the **Federal Register** during or before the last quarter of each year. For the 2007 sablefish and halibut IFQ fishing season, an IFQ permit holder is to use a fee liability percentage of 1.2 percent to calculate his or her fee for landed IFQ in pounds. The IFQ permit holder is responsible for submitting the fee liability payment to NMFS on or before January 31, 2008. REGISTERED BUYER STANDARD EX-VESSEL PRICES BY LANDING LOCATION FOR 2007 IFQ SEASON LANDING LOCATION PERIOD ENDING HALIBUT STANDARD EX-VESSEL PRICE ($) SABLEFISH STANDARD EX-VESSEL PRICE ($) CORDOVA February 28 - - March 31 - - April 30 $4.05 $2.54 May 31 $4.20 $2.61 June 30 - - July 31 $4.32 - August 31 $4.55 - September 30 $4.38 - October 31 $4.38 - November 30 $4.38 - DUTCH HARBOR February 28 - - March 31 - - April 30 - - May 31 - - June 30 - - July 31 - - August 31 $4.22 - September 30 $4.30 - October 31 $4.30 - November 30 $4.30 - HOMER February 28 - - March 31 - - April 30 - - May 31 - - June 30 $4.80 - July 31 $3.89 - August 31 - - September 30 - - October 31 - - November 30 - - KETCHIKAN February 28 - - March 31 - - April 30 - - May 31 - - June 30 - - July 31 - - August 31 - - September 30 - - October 31 - - November 30 - - KODIAK February 28 - - March 31 $4.25 $2.68 April 30 $4.13 $2.71 May 31 $4.01 $2.53 June 30 $3.91 $2.61 July 31 $4.18 $2.42 August 31 $4.29 $2.53 September 30 $4.16 $2.47 October 31 $4.16 $2.47 November 30 $4.16 $2.47 PETERSBURG February 28 - - March 31 - - April 30 $4.06 - May 31 $4.09 - June 30 $4.28 - July 31 $4.44 - August 31 $4.46 - September 30 $4.37 - October 31 $4.37 - November 30 $4.37 - SEWARD February 28 - - March 31 - - April 30 - - May 31 - - June 30 - - July 31 - - August 31 - - September 30 - - October 31 - - November 30 - - SITKA February 28 - - March 31 $4.86 $2.60 April 30 $4.02 $2.51 May 31 $4.29 $2.54 June 30 $4.46 $2.62 July 31 $4.55 $2.59 August 31 $4.52 $2.76 September 30 $4.59 $2.92 October 31 $4.59 $2.92 November 30 $4.50 $2.92 YAKUTAT February 28 - - March 31 - - April 30 - - May 31 $4.20 - June 30 - - July 31 - - August 31 - - September 30 - - October 31 - - November 30 - - REGISTERED BUYER STANDARD EX-VESSEL PRICES BY PORT GROUP FOR 2007 IFQ SEASON PORT GROUP PERIOD ENDING HALIBUT STANDARD EX-VESSEL PRICE ($) SABLEFISH STANDARD EX-VESSEL PRICE ($) BERING SEA 1 February 28 - - March 31 - - April 30 - $2.28 May 31 $3.89 $2.49 June 30 $4.05 $2.96 July 31 $4.18 $2.61 August 31 $4.19 $2.60 September 30 $4.31 $2.80 October 31 $4.31 $2.80 November 30 $4.31 $2.80 CENTRAL GULF OF ALASKA 2 February 28 - - March 31 $4.37 $2.61 April 30 $4.13 $2.53 May 31 $4.04 $2.54 June 30 $4.15 $2.64 July 31 $4.28 $2.70 August 31 $4.46 $2.61 September 30 $4.33 $3.19 October 31 $4.33 $3.19 November 30 $4.33 $3.19 SOUTHEAST ALASKA 3 February 28 - - March 31 $4.77 $2.60 April 30 $4.12 $2.57 May 31 $4.20 $2.66 June 30 $4.36 $2.69 July 31 $4.42 $2.88 August 31 $4.47 $2.85 September 30 $4.47 $2.87 October 31 $4.47 $2.87 November 30 $4.47 $2.87 ALL 4 February 28 - - March 31 $4.52 $2.60 April 30 $4.12 $2.53 May 31 $4.09 $2.57 June 30 $4.21 $2.70 July 31 $4.28 $2.71 August 31 $4.38 $2.70 September 30 $4.37 $2.95 October 31 $4.37 $2.95 November 30 $4.37 $2.95 1 *Landing locations Within Port Group - Bering Sea:* Adak, Akutan, Akutan Bay, Atka, Bristol Bay, Chefornak, Dillingham, Captains Bay, Dutch Harbor, Egegik, Ikatan Bay, Hooper Bay, King Cove, King Salmon, Kipnuk, Mekoryuk, Naknek, Nome, Quinhagak, Savoonga, St. George, St. Lawrence, St. Paul, Togiak, Toksook Bay, Tununak, Beaver Inlet, Ugadaga Bay, Unalaska 2 *Landing Locations Within Port Group - Central Gulf of Alaska:* Anchor Point, Anchorage, Alitak, Chignik, Cordova, Eagle River, False Pass, West Anchor Cove, Girdwood, Chinitna Bay, Halibut Cove, Homer, Kasilof, Kenai, Kenai River, Kodiak, Port Bailey, Nikiski, Ninilchik, Old Harbor, Palmer, Sand Point, Seldovia, Resurrection Bay, Seward, Valdez, Whittier 3 *Landing Locations Within Port Group - Southeast Alaska:* Angoon, Baranof Warm Springs, Craig, Edna Bay, Elfin Cove, Excursion Inlet, Gustavus, Haines, Hollis, Hoonah, Hyder, Auke Bay, Douglas, Tee Harbor, Juneau, Kake, Ketchikan, Klawock, Metlakatla, Pelican, Petersburg, Portage Bay, Port Alexander, Port Graham, Port Protection, Point Baker, Sitka, Skagway, Tenakee Springs, Thorne Bay, Wrangell, Yakutat 4 *Landing Locations Within Port Group - All:* **For Alaska:** All landing locations included in 1, 2, and 3. **For California:** Eureka, Fort Bragg, Other California. **For Oregon:** Astoria, Aurora, Lincoln City, Newport, Warrenton, Other Oregon. **For Washington:** Anacortes, Bellevue, Bellingham, Nagai Island, Edmonds, Everett, Granite Falls, Ilwaco, La Conner, Port Angeles, Port Orchard, Port Townsend, Rainier, Fox Island, Mercer Island, Seattle, Standwood, Other Washington. **For Canada:** Port Hardy, Port Edward, Prince Rupert, Vancouver, Haines Junction, Other Canada Authority: 16 U.S.C. 1801 *et seq.* Dated: December 5, 2007. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-24078 Filed 12-11-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Publication of North American Datum of 1983 State Plane Coordinates in Feet in Maine AGENCY: National Geodetic Survey (NGS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration. ACTION: Notice. SUMMARY: The National Geodetic Survey
(NGS)will publish North American Datum of 1983 (NAD 83) State Plane Coordinate
(SPC)grid values in both meters and U.S. Survey Feet (1 ft = 1200/3937 m) in Maine, for all well defined geodetic survey control monuments maintained by NGS in the National Spatial Reference System
(NSRS)and computed from various geodetic positioning utilities. The adoption of this standard is implemented in accordance with NGS policy and a request from the Maine Department of Transportation, the Maine Society of Land Surveyors, and the Maine GIS Stakeholders. DATES: Individuals or organizations wishing to submit comments on the Publication of North American Datum of 1983 State Plan Coordinates in feet in Maine, should do by January 11, 2008. ADDRESSES: Written comments should be sent to the attention of David Doyle, Chief Geodetic Surveyor, Office of the National Geodetic Survey, National Ocean Service (N/NGS2) 1315 East-West Highway, Silvery Spring, Maryland, 20910, fax 301-713-4324, or via e-mail *Dave.Doyle@noaa.gov* . FOR FURTHER INFORMATION CONTACT: Requests for additional information should be directed to David Doyle, Chief Geodetic Surveyor, National Geodetic Survey (N/NGS2), 1315 East-West Highway, Silver Spring, MD, 20910; Phone:
(301)713-3178. SUPPLEMENTARY INFORMATION: Abstract IN 1991, NGS adopted a policy that defines the conditions under which NAD 83 State Plane Coordinates
(SPCs)would be published in feet in addition to meters. As outlined in that policy, each state or territory must adopt NAD 83 legislation (typically referenced as Codes, Laws or Statutes), which specifically defines a conversion to either U.S. Survey or International Feet as defined by the U.S. Bureau of Standards in **Federal Register** Notice 59-5442. To date, 48 states have adopted the NAD 83 legislation however, for various reasons, only 33 included a specific definition of the relationship between meters and feet. This lack of uniformity has led to confusion and misuse of SPCs as provided in various NGS products, services and tools, and created errors in mapping, charting and surveying programs in numerous states due to inconsistent coordinate conversions. Dated: December 3, 2007. David B. Zilkoski, Director, Office of National Geodetic Survey, National Ocean Service, National Oceanic and Atmospheric Administration. [FR Doc. 07-6026 Filed 12-11-07; 8:45 am]
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U.S. Code
45 references not yet in our index
  • 15 CFR 740
  • 15 CFR 772
  • 33 CFR 110
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 42 USC 4321-4370f
  • 33 CFR 117
  • 40 CFR 131
  • 40 CFR 131.12
  • 40 CFR 131.12(a)(1)
  • 40 CFR 131.3(e)
  • 40 CFR 131.12(a)(2)
  • 40 CFR 131.12(a)(3)
  • 40 CFR 131.6(e)
  • 40 CFR 131.12(a)
  • 260 F.3d 1192
  • 40 CFR 124
  • 40 CFR 122
  • 40 CFR 9
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 20 CFR 404
  • 20 CFR 416
  • 37 CFR 201
  • 836 F.2d 599
  • 47 CFR 76.151
  • Pub. L. 108-447
  • 118 Stat. 3394
  • 40 CFR 52
  • 40 CFR 2
  • 40 CFR 63
  • 50 CFR 402.13(a)
  • Pub. L. 107-171
  • Pub. L. 108-357
  • 7 USC 135b
  • 15 USC 714-714p
  • 16 USC 590a-590q
  • 7 USC 1621-1627
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U.S.C.§ 7201
U.S.C.§ 1101
U.S.C.§ 1324b
U.S.C.§ 471
F. App'x260 F.3d 1192
F. App'x836 F.2d 599
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