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Code · REGISTER · 2007-12-20 · Unknown

Unknown. Direct final rule; correction

37,530 words·~171 min read·/register/2007/12/20/07-6129

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

--- schema: federal-register doc_type: fedreg source_file: FR-2007-12-20.xml --- 72 244 Thursday, December 20, 2007 Contents AID Agency for International Development NOTICES Agency information collection activities; proposals, submissions, and approvals, 72341 07-6115 07-6116 Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Forest Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 72341-72342 E7-24677 Air Force Air Force Department NOTICES Meetings:
Air Force Academy Board of Visitors, 72346-72347 E7-24695 Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, domestic: Black stem rust; correction, 72233 E7-24678 Antitrust Antitrust Division NOTICES Competitive impact statements and proposed consent judgments: CommScope, Inc. and Andrew Corp., 72376-72388 07-6125 National cooperative research notifications: Petroleum Environmental Research Forum, 72388 07-6122 PXL Systems Alliance, Inc., 72388-72389 07-6124 Semiconductor Test Consortium, Inc., 72389 07-6120 Southwest Research Institute, 72389 07-6121 VSI Alliance, 72389-72390 07-6123 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 72361-72364 E7-24701 E7-24704 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 72364 07-6089 Coast Guard Coast Guard RULES Drawbridge operations:
Virginia, 72250-72251 E7-24740 E7-24741 Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.: Lower Cowlitz River, WA, 72251-72253 E7-24768 Commerce Commerce Department See Economic Development Administration Comptroller Comptroller of the Currency NOTICES Agency information collection activities; proposals, submissions, and approvals, 72442 E7-24722 Copyright Copyright Royalty Board, Library of Congress RULES Statutory licenses; rates and terms:
Digital performances of sound recordings and making ephemeral recordings; new subscription service, 72253-72256 E7-24734 Defense Defense Department See Air Force Department PROPOSED RULES Civilian health and medical program of the uniformed services (CHAMPUS): TRICARE program— Overpayment recovery, 72307-72316 E7-24707 Federal Acquisition Regulation (FAR): Travel costs; allowable contractor airfare costs limitation application, 72325-72326 E7-24730 NOTICES Agency information collection activities; proposals, submissions, and approvals, 72345-72346 E7-24721 Economic Economic Development Administration NOTICES Adjustment assistance; applications, determinations, etc.:
Ex-L-Tube et al., 72344-72345 07-6119 Energy Energy Department See Federal Energy Regulatory Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 72347 E7-24711 EPA Environmental Protection Agency RULES Air quality implementation plans; approval and promulgation; various States: Michigan, 72256-72263 E7-24513 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States: California, 72322-72325 E7-24715 NOTICES Reports and guidance documents; availability, etc.:
Cruise ship discharge assessment, 72353-72355 E7-24737 Executive Executive Office of the President See Trade Representative, Office of United States FAA Federal Aviation Administration PROPOSED RULES Airworthiness directives: BAE Systems (Operations) Ltd., 72270-72272 E7-24699 Dassault, 72273-72274 E7-24698 Airworthiness standards: Special conditions— Aviation Technology Group, Inc., Javelin Model 100 Series airplane, 72265-72270 07-6129 NOTICES Aeronautical land-use assurance; waivers:
Raleigh County Memorial Airport, Beckley, WV, 72436-72437 07-6110 Airport noise compatibility program: Austin-Bergstrom International Airport, TX, 72437-72438 07-6108 Noise exposure maps— Port Columbus International Airport, OH, 72438-72439 07-6109 FCC Federal Communications Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 72355-72358 E7-24476 E7-24479 E7-24507 E7-24509 E7-24510 Federal Emergency Federal Emergency Management Agency NOTICES Disaster and emergency areas:
Indiana, 72367-72368 E7-24681 Oklahoma, 72368 E7-24682 Oregon, 72369-72370 E7-24685 E7-24688 E7-24689 Washington, E7-24684 72370-72371 E7-24687 Disaster loan areas: Micronesia, 72371 E7-24690 Federal Energy Federal Energy Regulatory Commission RULES Electric utilities (Federal Power Act): Public utilities; market-based rates for wholesale sales of electric energy; capacity and ancillary services, 72239-72243 E7-24736 NOTICES Composition of proxy groups for determining gas and oil pipeline return on equity; technical conference, 72348-72349 E7-24665 Environmental statements; availability, etc.:
Ice House Partners, Inc., 72349 E7-24660 Hydroelectric applications, 72349-72352 E7-24661 E7-24662 E7-24663 Meetings: Columbia Gas Transmission Corp.; technical conference, 72352 E7-24658 National Register of Historic Places: Programmatic agreement for managing properties; restricted service list— South Carolina Public Service Authority, 72353 E7-24664 *Applications, hearings, determinations, etc.:* Jewish Home and Hospital Life Care System, 72347-72348 E7-24667 Louder, Stephen, R., 72348 E7-24668 McClendon, Stan, 72348 E7-24659 Federal Highway Federal Highway Administration NOTICES Federal agency actions on proposed highways; judicial review claims:
Nevada County, CA, 72439-72440 E7-24700 Federal Reserve Federal Reserve System RULES Home mortgage disclosure (Regulation C): Depository institutions; asset-size exemption threshold increase, 72234-72235 E7-24612 NOTICES Bank and bank holding companies: Formations, acquisitions, and mergers, 72359 E7-24706 FTC Federal Trade Commission NOTICES Prohibited trade practices: Multiple Listing Service, Inc., 72359-72361 E7-24686 Forest Forest Service PROPOSED RULES National Forest System timber; sale and disposal:
Special forest products and forest botanical products, 72319 E7-24710 NOTICES Environmental statements; notice of intent: Bitterroot National Forest, MT, 72342-72343 07-6088 Meetings: Lake Tahoe Basin Federal Advisory Committee, 72343-72344 07-6114 Recreation fee areas: Inyo National Forest, CA; group campsites, 72344 07-6045 GSA General Services Administration PROPOSED RULES Federal Acquisition Regulation (FAR): Travel costs; allowable contractor airfare costs limitation application, 72325-72326 E7-24730 NOTICES Agency information collection activities; proposals, submissions, and approvals, 72345-72346 E7-24721 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard See Federal Emergency Management Agency Interior Interior Department See Land Management Bureau See National Park Service International International Trade Commission PROPOSED RULES Practice and procedure:
General application, adjudication, and enforcement rules; technical corrections, clarification, etc., 72280-72301 E7-24591 Justice Justice Department See Antitrust Division NOTICES Pollution control; consent judgments: Green, Daniel, et al., 72375-72376 07-6105 Labor Labor Department See Mine Safety and Health Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Oil and gas leases: Nevada, 72371 E7-24696 Resource management plans, etc.:
Grand Junction Resource Area, CO, 72371-72372 E7-24363 Library Library of Congress See Copyright Royalty Board, Library of Congress Mine Mine Safety and Health Administration PROPOSED RULES Coal mine safety and health: Underground mines— Fire extinguishers; availability, 72301-72307 E7-24747 NOTICES Agency information collection activities; proposals, submissions, and approvals, 72390 E7-24692 Petitions for safety standards modification; application, processing, disposition, etc.; correction, 72390-72391 07-6094 Morris Morris K.
Udall Scholarship and Excellence in National Environmental Policy Foundation NOTICES Reports and guidance documents; availability, etc.: BIA-funded school facilities repair, renovation, and construction, 72391-72392 07-6090 NASA National Aeronautics and Space Administration PROPOSED RULES Federal Acquisition Regulation (FAR): Travel costs; allowable contractor airfare costs limitation application, 72325-72326 E7-24730 NOTICES Agency information collection activities; proposals, submissions, and approvals, 72345-72346 E7-24721 National Archives National Archives and Records Administration PROPOSED RULES Organization, functions, and authority delegations:
Presidential library facilities; architectural and design standards, 72319-72322 E7-24746 NOTICES Agency information collection activities; proposals, submissions, and approvals, 72392 E7-24744 National Highway National Highway Traffic Safety Administration PROPOSED RULES Motor vehicle safety standards: Platform lifts and platform lift installations, 72326-72340 07-6146 NOTICES Motor vehicle safety standards; exemption petitions, etc.: Graco Children's Products, Inc., 72440-72441 E7-24702 NIH National Institutes of Health NOTICES Meetings:
National Cancer Institute, 72364-72365 07-6104 National Institute of Allergy and Infectious Diseases, 72365-72366 07-6083 07-6084 National Institute of Dental and Craniofacial Research, 72365 07-6082 National Institute of Nursing Research, 72365 07-6080 National Institute on Drug Abuse, 07-6085 72366-72367 07-6086 07-6087 Recombinant DNA Advisory Committee, 72367 07-6081 National Park National Park Service PROPOSED RULES Special regulations: Cape Hatteras National Seashore Off-Road Vehicle Management Rulemaking Advisory Committee; establishment, 72316-72318 07-6152 NOTICES Environmental statements; availability, etc.:
Big Lagoon, Muir Beach, Golden Gate National Recreation Area, CA; creek and wetland restoration, 72372-72373 07-6103 Environmental statements; record of decision: Bandelier National Monument, NM; ecological restoration plan, 72373-72374 07-6102 Sequoia-Kings Canyon National Parks, CA; general and comprehensive river management plans, 72374 07-6101 Meetings: Flight 93 National Memorial Advisory Commission, 72374-72375 07-6117 National Register of Historic Places; pending nominations, 72375 07-6091 Nuclear Nuclear Regulatory Commission RULES Radiation protection standards:
Occupational dose records, labeling containers, and total effective dose equivalent, 72233-72234 E7-24636 PROPOSED RULES Spent nuclear fuel and high-level radioactive waste; independent storage; licensing requirements: Geologic repository operations area; security and material control and accounting requirements, 72522-72562 E7-24346 Occupational Occupational Safety and Health Administration PROPOSED RULES Shipyard employment safety and health standards: General working conditions, 72452-72520 E7-24073 Office of U.S.
Trade Office of United States Trade Representative See Trade Representative, Office of United States Personnel Personnel Management Office NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-24705 72394-72395 E7-24708 E7-24712 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Hazardous materials: Special permit applications delayed; list, 72441-72442 07-6127 Postal Postal Regulatory Commission NOTICES Practice and procedure:
Market dominant products; service standard measurement and reporting systems, 72395-72419 E7-24528 SEC Securities and Exchange Commission PROPOSED RULES Securities: Real estate company registration statement (Form S-11); historical incorporation by reference of previous reporting information, 72274-72280 E7-24617 NOTICES Self-regulatory organizations; proposed rule changes: American Stock Exchange LLC, 72419-72426 E7-24693 E7-24726 E7-24729 Boston Stock Exchange, Inc., 72426-72428 E7-24724 Chicago Board Options Exchange, Inc., 72428-72429 E7-24723 International Securities Exchange, LLC, 72429-72430 E7-24727 Municipal Rulemaking Securities Board, 72430-72431 E7-24652 New York Stock Exchange LLC, 72431-72433 E7-24725 E7-24728 SBA Small Business Administration PROPOSED RULES Business loans:
Lender Oversight Program; comment period extension, 72264-72265 E7-24381 NOTICES Small business size standards: Nonmanufacture rule; waivers— Electromedical and electrotherapeutic apparatus manufacturing, 72433-72434 E7-24716 State State Department RULES Exchange Visitor Program: Sanctions and terminations, 72245-72250 E7-24650 Visas; nonimmigrant documentation: Consular services; fees schedule, 72243-72245 E7-24646 NOTICES Culturally significant objects imported for exhibition:
Color Chart: Reinventing Color, 72434 E7-24731 The Color of Life, 72434-72435 E7-24733 Treasures from the Holy Land, 72435 E7-24732 Organization, functions, and authority delegations: Foreign Assistance Director, 72435 E7-24770 Thrift Thrift Supervision Office RULES Savings and loan holding companies; permissible activities, 72235-72239 E7-24676 PROPOSED RULES Federal savings association bylaws; integrity of directors; withdrawn, 72264 E7-24743 NOTICES Reports and guidance documents; availability, etc.:
Savings and loan holding company rating system, 72442-72450 E7-24742 Trade Trade Representative, Office of United States NOTICES Harmonized Tariff Schedule: Chile et al.; sugar and syrup goods and sugar containing products; trade surplus determination, 72392-72394 E7-24735 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration NOTICES Committees; establishment, renewal, termination, etc.:
Lengthy airline on-board ground delays; model contingency plans; National Task Force, 72435-72436 E7-24745 Treasury Treasury Department See Comptroller of the Currency See Thrift Supervision Office Veterans Veterans Affairs Department NOTICES Meetings: Genomic Medicine Program Advisory Committee, 72450 07-6118 Separate Parts In This Issue Part II Labor Department, Occupational Safety and Health Administration, 72452-72520 E7-24073 Part III Nuclear Regulatory Commission, 72522-72562 E7-24346 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 244 Thursday, December 20, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 301 [Docket No. APHIS-2007-0072] Black Stem Rust; Addition of Rust-Resistant Varieties; Correction AGENCY:
Animal and Plant Health Inspection Service, USDA. ACTION: Direct final rule; correction. SUMMARY: We are correcting an error in the amendatory instructions in our direct final rule that added four varieties to the list of rust-resistant *Berberis* species or cultivars in the black stem rust quarantine and regulations. The direct final rule was published in the **Federal Register** on June 12, 2007 (72 FR 32165-32167, Docket No. APHIS-2007-0072) and became effective on August 13, 2007.
DATES: *Effective Date:* December 20, 2007. FOR FURTHER INFORMATION CONTACT: Dr. Vedpal Malik, Agriculturalist, Invasive Species and Pest Management, PPQ, APHIS, 4700 River Road, Unit 134, Riverdale, MD 20737-1236;
(301)734-6774. SUPPLEMENTARY INFORMATION: In a direct final rule published in the **Federal Register** on June 12, 2007 (72 FR 32165-32167, Docket No. APHIS-2007-0072) and effective on August 13, 2007, we amended the black stem rust quarantine and regulations in 7 CFR part 301 by adding four varieties to the list of rust-resistant *Berberis* species or cultivars in § 301.38-2 of the regulations. In the amendatory instructions we stated that we were amending paragraph
(b)of § 301.38-2 in order to add the four varieties to the list of rust-resistant *Berberis* species or cultivars. However, this was incorrect. We should have stated that we were amending paragraph (a)(1) of § 301.38-2. This document corrects that error. List of Subjects in 7 CFR Part 301 Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation. Accordingly, 7 CFR part 301 is amended as follows: PART 301—DOMESTIC QUARANTINE NOTICES 1. The authority citation for part 301 continues to read as follows: Authority: 7 U.S.C. 7701-7772 and 7781-7786; 7 CFR 2.22, 2.80, and 371.3. Section 301.75-15 issued under Sec. 204, Title II, Public Law 106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 issued under Sec. 203, Title II, Public Law 106-224, 114 Stat. 400 (7 U.S.C. 1421 note). 2. In § 301.38-2, paragraph (a)(1) is amended by adding, in alphabetical order, the following rust-resistant *Berberis* species: § 301.38-2 Regulated articles.
(a)* * *
(1)* * * *B. thunbergii atropurpurea* ‘Moretti Select' *B. thunbergii* ‘Fireball' *B. thunbergii* ‘Orange Rocket' *B. thunbergii* ‘Sparkler' Done in Washington, DC, this 14th day of December 2007. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E7-24678 Filed 12-19-07; 8:45 am] BILLING CODE 3410-34-P NUCLEAR REGULATORY COMMISSION 10 CFR Parts 19, 20, and 50 RIN 3150-AH40 Occupational Dose Records, Labeling Containers, and the Total Effective Dose Equivalent; Deferral of Effective Date AGENCY: Nuclear Regulatory Commission. ACTION: Final rule: deferral of effective date. SUMMARY: The Nuclear Regulatory Commission published a final rule amending regulations that would become effective January 3, 2008. The final rule, published December 4, 2007 (72 FR 68043) related to the reporting of annual dose to workers, the definition of Total Effective Dose Equivalent (TEDE), the labeling of certain containers holding licensed material, and the determination of cumulative occupational radiation dose. The NRC is deferring the effective date of the final rule until Office of Budget and Management
(OMB)review and clearance of the rule's information collections is completed. NRC anticipates the new effective date for this rule will be February 15, 2008. The NRC will publish a subsequent document to confirm this effective date. DATES: *Effective Date:* The effective date of the final rule published December 4, 2007 (72 FR 68043) is deferred until February 15, 2008. ADDRESSES: Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), Room O1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/NRC/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR Reference staff at
(800)397-4209,
(301)415-4737, or by e-mail to *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Stewart Schneider, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone
(301)415-4123; e-mail *sxs4@nrc.gov.* SUPPLEMENTARY INFORMATION: The Nuclear Regulatory Commission published a final rule amending regulations that would become effective January 3, 2008. The final rule, published December 4, 2007 (72 FR 68043) related to the reporting of annual dose to workers, the definition of Total Effective Dose Equivalent (TEDE), the labeling of certain containers holding licensed material, and the determination of cumulative occupational radiation dose. This final rule will limit the routine reporting of annual doses to those workers whose annual dose exceeds a specific dose threshold or who request a report. The rule will also modify the labeling requirements for certain containers holding licensed material within posted areas in nuclear power facilities, and will amend the definition of TEDE to be consistent with current Commission policy. Finally, this rule will remove the requirement that licensees attempt to obtain cumulative exposure records for workers unless these individuals are being authorized to receive a planned special exposure. These revisions will reduce the administrative and information collection burdens on NRC and Agreement State licensees without affecting the level of protection for either the health and safety of workers and the public, or for the environment. This final rule will amend information collection requirements contained in 10 CFR parts 19, 20, and 50, and NRC Form 4 that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These information collection requirements were sent for approval to the Office of Management and Budget on November 28, 2007; while the changes to 10 CFR parts 19, 20, and 50, and NRC Form 4 do not contain a new or amended information collection requirements, the NRC has not received final clearance for these amended requirements. Because the rule will reduce the burden for existing information collection requirements, the public burden for the information collections in 10 CFR part 19 and NRC Form 4 is expected to be decreased by 235 and 44 hours per licensee, respectively. This reduction includes the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed and completing and reviewing the information collection. Existing requirements were approved by the Office of Management and Budget, approval number(s) 3150-0044, 3150-0014, 3150-0011, and 3150-0005. In order to allow sufficient time for OMB to complete its review of the information collections requirements imposed in this rule, the NRC is deferring the effective date of the December 4, 2007, amendments to 10 CFR parts 19, 20, and 50 until February 15, 2008. Dated at Rockville, Maryland, this 13th day of December 2007. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E7-24636 Filed 12-19-07; 8:45 am] BILLING CODE 7590-01-P FEDERAL RESERVE SYSTEM 12 CFR Part 203 [Regulation C; Docket No. R-1303] Home Mortgage Disclosure AGENCY: Board of Governors of the Federal Reserve System. ACTION: Final rule; staff commentary. SUMMARY: The Board is publishing a final rule amending the staff commentary that interprets the requirements of Regulation C (Home Mortgage Disclosure). The staff commentary is amended to increase the asset-size exemption threshold for depository institutions based on the annual percentage change in the Consumer Price Index for Urban Wage Earners and Clerical Workers. The adjustment from $36 million to $37 million reflects the increase of that index by 2.70% percent during the twelve-month period ending in November 2007. Thus, depository institutions with assets of $37 million or less as of December 31, 2007, are exempt from collecting data in 2008. DATES: Effective January 1, 2008. FOR FURTHER INFORMATION CONTACT: Dan S. Sokolov or John C. Wood, Counsels, Division of Consumer and Community Affairs, at
(202)452-3667; for users of Telecommunications Device for the Deaf
(TDD)only, contact
(202)263-4869. SUPPLEMENTARY INFORMATION: The Home Mortgage Disclosure Act (HMDA; 12 U.S.C. 2801 *et seq.* ) requires most mortgage lenders located in metropolitan areas to collect data about their housing-related lending activity. Annually, lenders must report that data to their federal supervisory agencies and make the data available to the public. The Board's Regulation C (12 CFR part 203) implements HMDA. Prior to 1997, HMDA exempted depository institutions with assets totaling $10 million or less, as of the preceding year-end. Provisions of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (codified at 12 U.S.C. 2808(b)) amended HMDA to expand the exemption for small depository institutions. The statutory amendment increased the asset-size exemption threshold by requiring a one-time adjustment of the $10 million figure based on the percentage by which the Consumer Price Index for Urban Wage Earners and Clerical Workers
(CPIW)for 1996 exceeded the CPIW for 1975, and provided for annual adjustments thereafter based on the annual percentage increase in the CPIW. The one-time adjustment increased the exemption threshold to $28 million for 1997 data collection. Section 203.2(e)(1)(i) of Regulation C provides that the Board will adjust the threshold based on the year-to-year change in the average of the CPIW, not seasonally adjusted, for each twelve-month period ending in November, rounded to the nearest million. Pursuant to this section, the Board has adjusted the threshold annually, as appropriate. For 2007, the threshold was $36 million. During the twelve-month period ending in November 2007, the CPIW increased by 2.70% percent. As a result, the exemption threshold is raised to $37 million. Thus, depository institutions with assets of $37 million or less as of December 31, 2007, are exempt from collecting data in 2008. An institution's exemption from collecting data in 2008 does not affect its responsibility to report data it was required to collect in 2007. Final Rule Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board finds that notice and public comment are unnecessary. 5 U.S.C. 553(b)(B). The amendment in this notice is technical. Comment 2(e)-2 to section 203.2 of the regulation is amended to implement the increase in the exemption threshold. This amendment merely applies the formula established by Regulation C for determining adjustments to the exemption threshold. For these reasons, the Board has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendment is adopted in final form. List of Subjects in 12 CFR Part 203 Banks, Banking, Federal Reserve System, Mortgages, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Board amends 12 CFR part 203 as follows: PART 203—HOME MORTGAGE DISCLOSURE (REGULATION C) 1. The authority citation for part 203 continues to read as follows: Authority: 12 U.S.C. 2801-2810. 2. In Supplement I to part 203, under section 203.2 Definitions, *2(e) Financial Institution* , paragraph 2. is revised. Supplement I to Part 203—Staff Commentary *Section 203.2—Definitions* *2(e) Financial Institution* 2. *Adjustment of exemption threshold for depository institutions.* For data collection in 2008, the asset-size exemption threshold is $37 million. Depository institutions with assets at or below $37 million as of December 31, 2007 are exempt from collecting data for 2008. By order of the Board of Governors of the Federal Reserve System, acting through the Director of the Division of Consumer and Community Affairs under delegated authority, December 14, 2007. Jennifer J. Johnson, Secretary of the Board. [FR Doc. E7-24612 Filed 12-19-07; 8:45 am] BILLING CODE 6210-01-P DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Part 584 [Docket ID OTS-2007-0007] RIN 1550-AC10 Permissible Activities of Savings and Loan Holding Companies AGENCY: Office of Thrift Supervision, Treasury. ACTION: Final rule. SUMMARY: The Office of Thrift Supervision
(OTS)is revising its regulations, at 12 CFR 584.2 and 584.2-2, to expand the permissible activities of savings and loan holding companies (SLHCs) to the full extent permitted under the Home Owners' Loan Act (HOLA). In addition, OTS is amending 12 CFR 584.4 to conform the regulation to the statute that it is intended to implement, and to set forth standards that OTS will use to evaluate applications submitted pursuant to the statutory application requirement. DATES: This rule is effective April, 2008. FOR FURTHER INFORMATION CONTACT: Donald W. Dwyer, Director, Applications, Examination and Supervision—Operations,
(202)906-6414; or Kevin A. Corcoran,
(202)906-6962, Deputy Chief Counsel for Business Transactions, Office of Chief Counsel; Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: I. Introduction On March 27, 2007, OTS published a notice of proposed rulemaking
(NPR)that proposed certain changes to the OTS Holding Company Regulations. 1 In the NPR, OTS proposed to expand the activities permissible for SLHCs. In addition, OTS proposed to revise its regulations at 12 CFR 584.4 to:
(i)Conform to the statute it implements by providing that OTS may approve acquisitions by SLHCs of more than five percent of the voting shares of a savings association that is not a subsidiary of the acquiring SLHC, or more than five percent of the voting shares of a SLHC that is not a subsidiary of the acquiring SLHC;
(ii)provide approval standards for applications submitted under the regulation; and
(iii)reorganize the regulation. 1 72 FR 14246 (Mar. 27, 2007). A. Holding Company Activities With respect to holding company activities, under section 10(c)(9) of the HOLA, 2 SLHCs generally are permitted to engage only in activities that are permissible for financial holding companies under section 4(k) of the Bank Holding Company Act (BHCA), 3 or activities that are listed in section 10(c)(2) of the HOLA. 4 Section 10(c)(2)(F)(i) permits SLHCs to engage in activities: 2 12 U.S.C. 1467a(c)(9). 3 12 U.S.C. 1843(k). 4 12 U.S.C. 1467a(c)(2). SLHCs that were SLHCs on May 4, 1999, and meet certain other requirements, are excepted from the activities limitations of section 10(c)(9) of the HOLA. See 12 U.S.C. 1467a(c)(9)(C). which the Board of Governors of the Federal Reserve System, by regulation, has determined to be permissible for bank holding companies under section 1843(c) of this title, unless the Director, by regulation, prohibits or limits any such activity for savings and loan holding companies. * * * 5 5 12 U.S.C. 1467a(c)(2)(F)(i). As authorized by the statute, OTS limited the activities permitted for SLHCs under section 10(c)(2)(F)(i) of the HOLA. OTS regulations implementing section 10(c)(2)(F)(i) have limited the activities that are permissible under this authority to activities that the Board of Governors of the Federal Reserve System
(FRB)has permitted for bank holding companies under regulations implementing section 4(c)(8) of the BHCA. 6 6 12 U.S.C. 1843(c)(8). In the NPR, OTS observed that the regulatory scheme for SLHCs has changed significantly since the regulations were first promulgated in 1987. In 1987, most SLHCs were excepted from activities restrictions. After the passage of the Gramm-Leach-Bliley Act 7 in 1999, all new SLHCs have been, with limited exceptions, subject to activities restrictions. 7 Pub. L. 106-102, 113 Stat. 338, section 401. In addition, since 1987 many foreign entities have acquired, or have expressed interest in acquiring, a savings association. To the extent that sections 4(c)(9) and 4(c)(13) of the BHCA, and regulations that the FRB has promulgated thereunder, authorize bank holding companies with foreign operations to engage in certain activities, it would appear appropriate to provide the same authority to SLHCs. For many years, bank holding companies have been permitted to engage in the activities described in section 4(c) of the BHCA, consistent with the regulations of the FRB. OTS is not aware of any safety and soundness or other reason why SLHCs should not be permitted to engage in the same activities. Accordingly, OTS proposed to revise its regulations to enable SLHCs to engage in activities that the FRB has permitted under any regulation that the FRB has promulgated under section 4(c) of the BHCA. B. Approval Requirement for Certain Acquisitions by SLHCs Section 10(e)(1)(A)(iii) of HOLA prohibits SLHCs from directly or indirectly acquiring, without OTS approval, more than five percent of the voting shares of a savings association that is not a subsidiary of the acquiring SLHC, or more than five percent of the voting shares of a SLHC that is not a subsidiary of the acquiring SLHC. 8 8 12 U.S.C. 1467a(e)(1)(A)(iii). The statute establishes eight exceptions from the approval requirement. See 12 U.S.C. 1467a(e)(1)(A)(iii)(I)-(VIII). In addition, section 10(e)(1)(A)(iii) prohibits multiple SLHCs from acquiring or retaining more than five percent of the voting shares of any company not a subsidiary that is engaged in any business activity other than the activities specified in section 10(c)(2) of HOLA. The Holding Company Regulations, at 12 CFR 584.4, implement section 10(e)(1)(A)(iii) of HOLA. The American Homeownership and Economic Opportunity Act of 2000 9 (AHEO Act) amended section 10(e)(1)(A)(iii) to replace the former absolute prohibition on SLHCs acquiring more than five percent of the voting shares of a savings association or SLHC not a subsidiary of the acquiring SLHC (subject to the exceptions noted above), with a regulatory approval requirement. In the NPR, OTS proposed to replace the absolute prohibition in the regulation with an approval requirement, to make the regulation consistent with the statute. 9 Pub. L. 106-569 (Dec. 27, 2000), at section 1202, 114 Stat. 3032. In addition, although the AHEO Act established a regulatory approval requirement for the acquisitions in question, the statute did not establish approval standards for applications submitted as a result of the approval requirement. OTS proposed to amend the regulation to set forth approval standards for applications submitted under section 10(e)(1)(A)(iii) and § 584.4. Finally, in light of the amendments to § 584.4 proposed above, OTS proposed to reorganize § 584.4. II. Public Comments OTS received six comments regarding the NPR. Three were from trade associations in which savings associations are members, one was from a savings association, one was from an SLHC, and one was from a trade association in which credit unions are members. All of the comments except one expressed support for the proposed amendments. The comment that did not support the proposed amendments did not object to the expansion of permissible holding company activities or the revisions to section 584.4, but asserted that the proposed regulation would provide “insufficient transparency” because the provisions relating to permissible holding company activities did not provide for public comment in the event an application was required. 10 10 The same commenter also asserted that OTS should undertake greater efforts to ensure that information regarding SLHC activities and acquisitions is widely disseminated on a national basis to those in the financial services industry who are interested in following these activities. OTS considers this comment to be beyond the scope of the NPR. In any event, information regarding acquisitions of depository institutions by SLHCs is publicly available, and information regarding the activities of SLHCs with securities registered under the Securities Exchange Act of 1934 is publicly available. The commenter also asserted that the OTS Application Processing Regulations should be revised to require a meeting to occur where a commenter raises an objection to a transaction. This comment also is beyond the scope of the NPR. OTS recently amended 12 CFR 516.170 to eliminate the requirement that a meeting be held under such circumstances, and state, instead, that OTS will grant a meeting request if it “finds that written submissions are insufficient to address facts or issues raised in an application, or otherwise determines that a meeting will benefit the decision-making process.” See 69 FR 68239, at 68242 (Nov. 24, 2004). The amendment revised the meeting provisions to conform more closely to those of the other banking agencies. OTS has considered the comment and has decided not to require public notice and comment for applications required under the holding company activities regulations. The application provisions of the holding company activities regulations have been in place since the 1980s, and have not required publication. OTS is not aware of any negative consequences that have resulted from the lack of a publication requirement. Moreover, the relevant statute, section 10(c)(4) of HOLA, does not require publication. Also, no public comment is required for SLHCs to engage in financial holding company activities, which generally are broader than bank holding company activities. Finally, in the event that OTS concludes that public comment is appropriate in a particular case, OTS may require public notice and comment. Four of the remaining comments made specific suggestions regarding the proposed regulation. One commenter requested that OTS clarify that any SLHC that seeks to exercise powers that the FRB has provided to bank holding companies pursuant to sections 4(c)(9) or 4(c)(13) of the BHCA must comply with the terms and conditions that the FRB has applied to bank holding companies under FRB regulations, including the Qualifying Foreign Banking Organization
(QFBO)test, and 12 CFR 211.602. It is OTS's position that SLHCs that exercise powers pursuant to section 4(c)(9) of the BHCA must comply with the QFBO test, and that SLHCs that exercise powers pursuant to section 4(c)(13) of the BHCA must comply with 12 CFR 211.602. OTS believes that the regulation, as proposed, and as promulgated today, makes clear that SLHCs that propose to engage in activities that are permissible for bank holding companies under section 4(c) of the BHCA generally must do so pursuant to the conditions set forth in the FRB's regulations. In this regard, the regulation provides that “the services and activities permissible for bank holding companies pursuant to regulations that the [FRB] has promulgated pursuant to section 4(c) of the [BHCA] are permissible for [SLHCs and their non-savings association subsidiaries].” Another commenter asserted that, since 1999, the FRB has approved certain bank holding company activities that were not approved as of 1999 on an informal basis through the issuance of interpretations. The commenter urges OTS to confirm that if the “activity has been approved by an interpretation of Section 4(c)(8) for bank holding companies, * * * the activity be considered approved for savings and loan holding companies.” The HOLA and OTS regulations provide that if an activity has been permitted under the FRB's regulations, promulgated under section 4(c) of the BHCA, it is permissible for SLHCs. If the FRB has interpreted those regulations to permit certain activities, OTS would generally adhere to those interpretations. However, without knowing the facts and circumstances regarding a particular interpretation, OTS cannot confirm the commenter's position with respect to any particular interpretation. The same commenter has requested that OTS clarify that OTS's procedures and requirements for SLHC activities remain separate and distinct from those of the FRB for bank holding companies. The commenter asserts that imposition of additional regulatory procedures and requirements for SLHCs would require further public notice and comment. OTS regulations, at 12 CFR 584.2-2, set forth the procedures for filing with OTS for permission to engage in bank holding company activities. As noted in the preamble to the NPR, Section 10(c)(4) of the HOLA generally requires prior OTS approval with respect to the activities described in section 10(c)(2)(F)(i) of the HOLA. Certain of these activities are already permitted under other OTS regulations without prior OTS approval, or are permitted under FRB regulations without prior FRB approval. In the preamble to the NPR, OTS proposed, in order to avoid imposing additional restrictions on currently permissible activities, and to provide for parity between bank holding companies and SLHCs to the extent possible, to provide in the regulation that activities that are authorized under section 10(c)(2)(F)(i) of HOLA, but are also permissible under other provisions of section 10(c) of the HOLA or under FRB regulations without prior FRB approval are preapproved. OTS, in preparing this final regulation, has carefully considered the provisions of section 10(c)(4) of the HOLA, and of OTS regulations. Section 10(c)(4) of HOLA requires that OTS, in reviewing an application by an SLHC to engage in a bank holding company activity under authority of section 10(c)(2)(F)(i) of the HOLA, consider whether the performance of the activity in question can reasonably be expected to produce benefits to the public that outweigh possible adverse effects of such activity, the managerial resources of the companies involved, and the adequacy of the financial resources, including capital, of the companies involved. 11 11 12 U.S.C. 1467a(c)(4)(B). Because the standard requires OTS to consider factors relating to the specific company and activity, OTS believes that preapproval of such activities is not appropriate for all SLHCs. 12 However, OTS conducts comprehensive consolidated supervision of SLHCs, including assessing financial and managerial resources at each holding company examination, and on a routine basis through ongoing offsite monitoring. OTS, therefore, believes that an SLHC that received a rating of satisfactory or above prior to January 1, 2008, or a composite rating of “1” or “2” thereafter, on its most recent examination, and is not deemed to be in a troubled condition 13 meets the statutory criteria pertaining to managerial and financial resources. In addition, OTS believes that, where an SLHC that has the requisite managerial and financial resources proposes to commence an activity *de novo* , the activity would not lead to undue concentration of resources, decreased or unfair competition, conflicts of interest, or unsound financial practices. 14 Accordingly, OTS is amending the Holding Company Regulation to provide that where any SLHC that proposes to engage in an activity on a *de novo* basis is rated satisfactory or above and is not in a troubled condition, the activity is preapproved. 15 12 The final regulation provides that if the activity is permissible for an SLHC under authority other than section 10(c)(2)(F)(i) of the HOLA, the application requirements of § 584.2-2 are inapplicable. 13 “Troubled condition” is defined at 12 CFR 563.555. An SLHC is deemed to be in a troubled condition if it has an unsatisfactory rating under OTS's holding company rating system, or has been informed in writing by OTS that it has an adverse effect on its subsidiary savings association; is subject to a capital directive, a cease-and-desist order, a consent order, a formal written agreement, or a prompt corrective action directive relating to the safety and soundness or financial viability of the savings association; or is informed in writing by OTS that it is in troubled condition. 14 OTS believes that the *de novo* activity would, by its nature, add a competitor to any relevant market, and also reduce the concentration of resources; also, where the SLHC meets the managerial and financial resources standards, it will have the means to avoid harmful conflicts, and unsound financial practices. 15 This treatment of activities is consistent with section 10(c)(4)(C) of HOLA, which provides that: In prescribing any regulation or considering any application under this paragraph, the Director may differentiate between activities commenced de novo and activities commenced by the acquisition, in whole, or in part, of a going concern. Finally, one commenter, a savings association subsidiary of a mutual holding company (MHC), requested that OTS clarify one of the effects of the proposal on permissible activities for MHCs. Under 12 CFR 575.11(a), an MHC may engage in any business activity specified in section 10(c)(2) or section 10(c)(9) of the HOLA. Because OTS previously limited the bank holding company activities that SLHCs may engage in under section 10(c)(2)(F)(i) to the section 4(c)(8) activities, activities described in other subsections of section 4(c) generally have not been permissible for MHCs. Section 4(c)(6) of the BHCA permits bank holding companies to hold less than five percent of the outstanding shares of any company. Today's amendment to the holding company activities regulations results in § 575.11(a) authorizing mutual holding companies to engage in the activity of holding less than five percent of the stock of any entity. The comment notes that a separate section of the MHC regulations, 12 CFR 575.10(a)(6), includes language that appears to contradict this result. Section 575.10(a)(6) provides that an MHC may make controlling or non-controlling investments in the stock of entities other than savings associations or SLHCs only under certain circumstances. One of the requirements is that the company in which the investment is made be engaged exclusively in activities that are permissible for MHCs pursuant to section 575.11(a), or that the stock may be purchased by a federal savings association under the OTS subordinate organization regulations or by a state savings association under the law of the relevant state. The commenter's concern is that while § 10(c)(2) and § 575.11(a), by their terms, permit MHCs to hold up to five percent of the voting stock of any entity, § 575.10(a)(6) appears to indicate that even where the investment in a company's stock is less than five percent, the company's activities must be permissible under § 575.11. Assume, for example, that an MHC proposes to acquire 3.9 percent of the stock of a retail store. The acquisition of the shares would be permissible under § 575.11(a), because section 10(c)(2) of HOLA (through the reference to section 4(c) of the BHCA, under section 10(c)(2)(F)(i)) allows an MHC to hold less than five percent of the voting stock of any company. The activity raises an issue under § 575.10(a)(6), because, while the MHC itself may be engaged in a permissible activity under § 575.11, certain language in § 575.10(a)(6) appears to require the company in which the investment is made to be engaged only in permissible activities. Since the company is engaged in retail activities, there is an issue as to whether the investment is outside the scope of § 575.10(a)(6). OTS concludes that it is appropriate to interpret § 575.10(a)(6) as not prohibiting an MHC from making non-controlling investments in another entity where that investment includes less than five percent of the entity's voting stock, regardless of the specific activities in which the entity engages. Otherwise, the ability of MHCs to engage in activities within the scope of section 4(c)(6) of the BHCA would be meaningless for MHCs. In addition, § 575.10(a) implements section 10(o)(5) of HOLA, which, by its terms, allows MHCs to engage in, among other things, the activities described in section 10(c)(2) of the HOLA. Furthermore, section 10(o)(7) of HOLA provides that, unless the context otherwise requires, an MHC is subject to the requirements of section 10 regarding SLHCs. The commenter also requested that OTS confirm that no prior notice or application to OTS is required under the MHC regulations for an MHC to engage in activities that are authorized for bank holding companies under section 4(c) of the BHCA, including investments in less than five percent of the stock of another entity. Section 10(o)(7) of the HOLA provides that, unless the context otherwise requires, MHCs are subject to the other requirements of section 10 of the HOLA regarding regulation of SLHCs. Accordingly, MHCs are subject to the filing requirements under section 10(c)(4) of the HOLA discussed above, regarding activities that are permissible under section 4(c) of the BHCA, which are set forth in section 584.2-2(a). Moreover, under section 575.11(a), MHCs are required to file with OTS to engage in any activity, and would be required to file under section 575.11(a) to engage in an activity, even when the activity is excepted from the holding company filing requirements under the proviso in section 584.2-2(a). OTS may reconsider this requirement in a subsequent rulemaking. Revisions to the MHC filing requirement, however, are beyond the scope of this rulemaking. Finally, OTS has informally taken the position that an application is not required under section 575.11(a) where an MHC proposes to hold less than five percent of the voting stock of another entity. IV. Findings and Certifications A. Paperwork Reduction Act In accordance with the requirements of the Paperwork Reduction Act of 1995, OTS may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget
(OMB)control number. The proposed collection of information was submitted to OMB for review and approval (44 U.S.C. 3507(d)). None of the public comments suggested that the information collection should be modified. Any material modifications will be submitted to OMB for review and approval. *Estimated Number of Respondents:* 4. *Estimated Burden Hours per Response:* 2 hours. *Estimated Total Burden:* 8 hours. Rule section Subject Number of respondents Number of responses per respondent Average annual burden hours per response Annual disclosure & recordkeeping burden 584.2-2 Application to engage in certain activities 2 1 2 4 584.4 Application by SLHC to acquire non-controlling interest exceeding five percent of non-subsidiary savings association or SLHC 2 1 2 4 B. Executive Order 12866 The Director of OTS has determined that this final rule does not constitute a significant regulatory action for the purposes of Executive Order 12866. C. Regulatory Flexibility Act In accordance with section 605(b) of the Regulatory Flexibility Act (RFA), the Director of OTS has certified that this final rule will not have a significant impact on a substantial number of small entities within the meaning of the RFA. 5 U.S.C. 603. D. Unfunded Mandates Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 requires an agency to prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. 2 U.S.C. 1532. OTS has determined that this final rule would not have such an impact. Rather, the rule would provide that nonexempt SLHCs have broader authority to engage in activities than are specified under current regulations. Accordingly, OTS has not prepared a budgetary impact statement for this rule or specifically addressed the regulatory alternatives considered. List of Subjects in 12 CFR Part 584 Administrative practice and procedure, Holding companies, Reporting and recordkeeping requirements, Savings associations, Securities. For the reasons stated in the preamble, the Office of Thrift Supervision amends 12 CFR part 584 as follows: PART 584—SAVINGS AND LOAN HOLDING COMPANIES 1. The authority citation for part 584 continues to read as follows: Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1468. 2. Revise the part heading for part 584 to read as shown above. 3. Revise § 584.2(b)(6)(i) to read as follows: § 584.2 Prohibited activities.
(b)* * *
(6)* * *
(i)That the Board of Governors of the Federal Reserve System has permitted for bank holding companies pursuant to regulations promulgated under section 4(c) of the Bank Holding Company Act; or 4. Revise § 584.2-2(a) to read as follows: § 584.2-2 Permissible bank holding company activities of savings and loan holding companies.
(a)*General.* For purposes of § 584.2(b)(6)(i) of this part, the services and activities permissible for bank holding companies pursuant to regulations that the Board of Governors of the Federal Reserve System has promulgated pursuant to section 4(c) of the Bank Holding Company Act are permissible for savings and loan holding companies, or subsidiaries thereof that are neither savings associations nor service corporation subsidiaries of subsidiary savings associations: *Provided,* That no savings and loan holding company shall commence any activity described in this paragraph
(a)without the prior approval of this Office pursuant to paragraph
(b)of this section, unless—
(1)The holding company received a rating of satisfactory or above prior to January 1, 2008, or a composite rating of “1” or “2” thereafter, in its most recent examination, and is not in a troubled condition as defined in § 563.555, and the holding company does not propose to commence the activity by an acquisition (in whole or in part) of a going concern; or
(2)The activity is permissible under authority other than section 10(c)(2)(F)(i) of the HOLA without prior notice or approval. Where an activity is within the scope of both § 584.2-1 of this part and this section, the procedures of § 584.2-1 of this part shall govern. 5. Revise § 584.4 to read as follows: § 584.4 Certain acquisitions by savings and loan holding companies.
(a)*Acquisitions by a savings and loan holding company of more than five percent of a non-subsidiary savings association or savings and loan holding company.* No savings and loan holding company, directly or indirectly, or through one or more subsidiaries or through one or more transactions, shall, without prior written OTS approval, acquire by purchase or otherwise, or retain, more than five percent of the voting stock or shares of a savings association not a subsidiary, or of a savings and loan holding company not a subsidiary. A savings and loan holding company seeking approval of an acquisition under this section must file an application under 12 CFR part 516, subpart A. Applications filed under this section are subject to the publication, public comment, and meeting provisions of 12 CFR part 516, subparts B, C, and D. OTS will review applications filed under this section under the review standards set forth for savings and loan holding company applications in section 10(e)(2) of the HOLA, § 574.7(c) of this chapter, and § 563e.29(a) of this chapter.
(b)*Certain acquisitions by multiple savings and loan holding companies.* No multiple savings and loan holding company (other than a savings and loan holding company described in § 584.2a(a)(1)(ii) of this part) may, directly or indirectly, or through one or more subsidiaries or through one or more transactions, acquire or retain more than five percent of the voting shares of any company that is not a subsidiary that is engaged in any business activity other than those specified in § 584.2(b) of this part. (c)(1) *Exception for certain acquisitions of voting shares of savings associations and savings and loan holding companies.* Paragraphs
(a)and
(b)of this section do not apply to voting shares of a savings association or of a savings and loan holding company—
(i)Held as a *bona fide* fiduciary (whether with or without the sole discretion to vote such shares);
(ii)Held temporarily pursuant to an underwriting commitment in the normal course of an underwriting business;
(iii)Held in an account solely for trading purposes or over which no control is held other than control of voting rights acquired in the normal course of a proxy solicitation;
(iv)Acquired in securing or collecting a debt previously contracted in good faith, for two years after the date of acquisition or for such additional time (not exceeding three years) as the Office may permit if, in the Office's judgment, such an extension would not be detrimental to the public interest;
(v)Acquired under section 13(k)(1)(A)(i) of the Federal Deposit Insurance Act (or section 408(m) of the National Housing Act as in effect immediately prior to the enactment of the Financial Institutions Reform, Recovery and Enforcement Act of 1989);
(vi)Held by any insurance companies as defined in section 2(a)(17) of the Investment Company Act of 1940: *Provided,* That all shares held by all insurance company affiliates of such savings association or savings and loan holding company may not, in the aggregate, exceed five percent of all outstanding shares or of the voting power of the savings association or savings and loan holding company, and such shares are not acquired or retained with a view to acquiring, exercising, or transferring control of the savings association or savings and loan holding company; and
(vii)Acquired pursuant to a qualified stock issuance if such a purchase is approved pursuant to § 574.8 of this chapter.
(2)The aggregate amount of shares held under this paragraph
(c)(other than pursuant to paragraphs (c)(1)(i) through
(iv)and (c)(1)(vi) may not exceed 15 percent of all outstanding shares or the voting power of a savings association or savings and loan holding company.
(d)*Acquisitions of uninsured institutions.* No savings and loan holding company may, directly or indirectly, or through one or more subsidiaries or through one or more transactions, acquire control of an uninsured institution or retain, for more than one year after the date any savings association subsidiary becomes uninsured, control of such association. Dated: December 14, 2007. By the Office of Thrift Supervision John M. Reich, Director. [FR Doc. E7-24676 Filed 12-19-07; 8:45 am] BILLING CODE 6720-01-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM04-7-003; 121 FERC ¶ 61,260] Market-Based Rates for Wholesale Sales of Electric Energy, Capacity, and Ancillary Services by Public Utilities Issued December 14, 2007. AGENCY: Federal Energy Regulatory Commission, Department of Energy. ACTION: Order Clarifying Final Rule. SUMMARY: The Federal Energy Regulatory Commission (Commission) is clarifying: the effective date for compliance with the requirements of Order No. 697; which entities are required to file updated market power analyses for the Commission's regional review; the data required for the horizontal market power analyses; and what constitute “seller-specific terms and conditions” that sellers may list in their market-based rate tariffs in addition to the standard provisions listed in Appendix C to Order No. 697. FOR FURTHER INFORMATION CONTACT: Paige C. Bullard, Office of the General Counsel—Energy Markets, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6462. SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. Order Clarifying Final Rule I. Introduction 1. On June 21, 2007, the Commission issued Order No. 697, 1 in which the Commission revised and codified its market-based rate policy for public utilities. In the instant order, we make several clarifications. First, we clarify that, notwithstanding that Order No. 697 did not require market-based rate sellers to make immediate compliance filings amending their market-based rate tariffs, the Commission intended that all requirements and limitations applicable to market-based rate sellers set forth in Order No. 697 should become effective on September 18, 2007. Second, we clarify that transmission-owning utilities with market-based rate authority and their affiliates with market-based rate authority must file updated market power analyses for the Commission's regional review as discussed herein. Third, we clarify the data to be used in submitting the horizontal market power indicative screens and the Delivered Price Test
(DPT)analysis. 1 *Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities,* Order No. 697, 72 FR 39904 (July 20, 2007), FERC Stats. & Regs. ¶ 31,252 (2007). This requirement will apply to new applications for market-based rate authorization and updated market power analyses, including the updated market power analyses that must be submitted for the Commission's regional review. As discussed below, for purposes of the market power analyses to be submitted in December 2007, we will extend the date for filing such analyses until 30 days after the date of issuance of this order. Fourth, we clarify that “seller-specific terms and conditions” that go beyond the standard provisions required in Appendix C of Order No. 697, and that sellers are permitted to list in their market-based rate tariffs, are those tariff provisions that are commonly found in power sales agreements, such as creditworthiness, force majeure, dispute resolution, billing, and payment provisions. II. Background 2. In order to codify and revise its market-based rate policy for wholesale sellers of electric energy, capacity, and ancillary services, as well as streamline the administration of the market-based rate program, the Commission in Order No. 697 modified its regulations governing market-based rate authorization. Order No. 697 became effective on September 18, 2007. III. Discussion 3. In Order No. 697, the Commission determined that continuing to allow basic inconsistencies in market-based rate tariffs due to the lack of consistent form and content of certain key provisions was unjust and unreasonable under sections 205 and 206 of the Federal Power Act (FPA). As such, the Commission required that all market-based rate sellers revise their respective tariffs to contain standard required provisions. 2 Order No. 697 adopted two standard required provisions that each market-based rate seller must include in its tariff:
(1)A provision requiring compliance with Commission regulations at 18 CFR Part 35, Subpart H; and
(2)a provision identifying all limitations and exemptions regarding the seller's market-based rate authority. 3 Order No. 697 also adopted a set of standard applicable provisions that must be included in a seller's market-based rate tariff to the extent that they are applicable based upon the services that are provided by a seller. 4 2 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 912-913. 3 *Id.* P 914-916. 4 *Id.* P 916. A. Effective Date of Order No. 697 4. Rather than requiring sellers to make immediate compliance filings amending their market-based rate tariffs, Order No. 697 instead required sellers to amend their market-based rate tariffs to include the required standard provisions, as well as the required applicable provisions, at the earliest of:
(1)The next time they file any other amendment to their market-based rate tariffs;
(2)when they report a change in status; or
(3)when they file their updated market power analyses. 5 5 *Id.* P 924. 5. As the Commission stated in Order No. 697, regardless of the date on which market-based rate sellers make their compliance filings, the tariff provision providing that failure to abide by the regulations will constitute a tariff violation is considered part of each seller's current market-based rate tariff as of the effective date of Order No. 697, September 18, 2007. 6 Notwithstanding that Order No. 697 did not require sellers to make immediate compliance filings amending their market-based rate tariffs, 7 the Commission intended that all requirements and limitations applicable to market-based rate sellers set forth in Order No. 697 should become effective on September 18, 2007. To the extent that some sellers may not be aware that, effective September 18, 2007, provisions in their market-based rate tariffs that are inconsistent with the requirements of Order No. 697 are no longer in effect, we provide this clarification. While we do not attempt in this order to provide an exhaustive list of all of the applicable requirements of Order No. 697, we do provide a number of examples below for illustrative purposes. 6 *Id.* 7 *Id.* 6. For example, the Commission adopted in § 35.39(d) of the affiliate restrictions codified in Order No. 697 a two-way information sharing restriction. 8 The Commission recognized that some sellers may need to adjust their activities to comply with the two-way information restriction. The Commission stated that any sellers whose activities had been governed by a code of conduct with a one-way information restriction will be deemed to have adopted a two-way information restriction as of the effective date of Order No. 697. 9 8 18 CFR 35.39(d) (2007). 9 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 588. 7. Similarly, in Order No. 697, the Commission concluded that adequately protecting customers from the potential exercise of market power required that it continue to apply mitigation to all of a seller's sales in the balancing authority area in which a seller is found, or presumed, to have market power. 10 In this regard, the Commission rejected proposals that it limit mitigation to sales that “sink” in the balancing authority area where the mitigated seller is found, or presumed, to have market power. 11 Some mitigated sellers have tariff language that is inconsistent with the Commission's current policy as set forth in Order No. 697. These mitigated sellers' tariffs currently only prohibit sales at market-based rates that “sink” in a balancing authority area in which the mitigated seller has been found, or presumed, to have market power. We clarify that, although the Commission may have previously accepted these sellers' provisions, effective September 18, 2007, all sellers are subject to the requirements of Order No. 697 and thus may not limit mitigation to sales that “sink” in the balancing authority area where the mitigated seller has been found, or presumed, to have market power. Rather, such sellers are required to comply with the mitigation policy as stated in Order No. 697. 10 *Id.* P 817. Although the Commission used the term “mitigated market” in Order No. 697, we believe that “balancing authority area in which a seller is found, or presumed, to have market power” is a more accurate way to describe the area in which a seller is mitigated. Accordingly, we use that phrase herein. 11 *Id.* P 818. 8. Accordingly, we clarify that, effective September 18, 2007, provisions in a seller's previously-approved market-based rate tariff that are inconsistent with the requirements of Order No. 697 are no longer in effect. However, we will not pursue any violations that resulted from the new requirements in Order No. 697 that were inconsistent with a seller's previously-approved market-based rate tariff prior to 30 days after the issuance of this clarification order. B. Entities Required To File Updated Market Power Analyses for the Commission's Regional Review 9. In Order No. 697, the Commission determined that it would conduct a regional review of updated market power analyses and set forth in Appendix D the schedule for such review. 12 The first round of updated market power analyses, for the Northeast, are due in December 2007. Order No. 697 states that “[t]he transmission-owning utilities, which have the information necessary to perform [simultaneous import limit] studies, will be required to file their updated market power analyses first.” 13 Appendix D of Order No. 697 lists “Transmission Operators” as filing updated market power analyses in the regional reviews. Because there may be confusion concerning which entities are required to file updated market power analyses as a result of the use of the term “transmission operators” in Appendix D of Order No. 697, we clarify that transmission-owning utilities with market-based rate authority and their affiliates with market-based rate authority must file the updated market power analyses for the Commission's regional review. Accordingly, the term “Transmission Operators” in Appendix D should instead be “Transmission Owners.” A revised version of the relevant table in Appendix D is attached. 12 *Id.* P 882. 13 *Id.* P 889. 10. Further, we clarify that market-based rate sellers that are affiliated with transmission-owning utilities and are located in the same region 14 as their transmission-owning utility affiliate (either physically located in that region such as a generation affiliate, or making sales in that region such as an affiliated power marketer) must file their updated market power analyses during the same review period as their transmission-owning utility affiliate. For example, Order No. 697 stated that the first set of updated market power analyses (for the Northeast) would be filed in December 2007. This set of analyses should include transmission-owning utilities with market-based rate authority and all of their affiliates with market-based rate authority located in the same region (either physically located in that region such as a generation affiliate, or making sales in that region). The second set of updated market power analyses would include all other sellers in the Northeast and is due in June 2008. 14 In Order No. 697, the Commission identified six regions (Northeast, Southeast, Central, Southwest Power Pool, Southwest, and Northwest) for purposes of the regional market power update review process. *Id.* P 885. C. Required Data for Horizontal Market Power Analyses 11. It has come to the Commission's attention that, for the purposes of the horizontal market power analysis, there may be confusion regarding whether market shares calculated for the market share screen and the DPT analysis should be based on the four quarters of the calendar year or the four seasons as defined in the April 14 Order. 15 As a result, there may be confusion concerning which data and market share calculations must be submitted as part of sellers' updated horizontal market power analyses. As we explained in Order No. 697, the wholesale market share analysis measures for each of the four seasons whether a seller has a dominant position in the market based on the number of megawatts of uncommitted capacity owned or controlled by the seller as compared to the uncommitted capacity of the entire relevant market. 16 Order No. 697 states that the Commission will continue to require the use of historical data for both of the horizontal market power indicative screens and the DPT analysis in evaluating whether a seller may possess market power, and states that “in light of adopting a regional approach with regard to regularly scheduled updated market power analyses, we will require the use of the actual historical data for the previous calendar year.” 17 However, the Commission's April 14 Order, in describing the seasons for the DPT, defines the study periods (seasons) as: Summer (June/July/August); Fall (September/October/November); Winter (December/January/February); and Spring (March/April/May). 18 We understand that some have interpreted Order No. 697 as revising the study periods to be the four quarters of the calendar year instead of the four seasons. This was not the intention of Order No. 697. Accordingly, we clarify that market shares calculated for the market share screen and the DPT analysis should continue to be based on the four seasons. 19 15 *AEP Power Marketing Inc.,* 107 FERC ¶ 61,018 at n.85 (April 14 Order), *order on rehearing,* 108 FERC ¶ 61,026 (2004). 16 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 34 (citing April 14 Order at P 100). 17 *Id.* P 298. 18 April 14 Order at n.85. 19 Summer (June/July/August); Fall (September/October/November); Winter (December/January/February); and Spring (March/April/May). 12. In addition, we also clarify that, as a general matter, the market share studies performed in market-based rate filings for both the preliminary screens and the DPT analysis should be based on the most recent available actual historical data for each full season. However, we recognize that it may be appropriate to allow exceptions to this general principle in certain limited circumstances. We describe below how this general principle should be applied to applicants making various types of market-based rate filings: a. *Updated market power analyses (triennial reviews) for transmission-owning applicants:* Transmission-owning applicants filing triennial reviews in June or December should base their market share analysis on the actual historical data for the four seasons (winter (December-February), spring (March-May), summer (June-August) and fall (September-November)) ending November 30 of the previous calendar year consistent with Appendix D. 20 20 The relevant tables in Appendix D to Order No. 697 have been revised to reflect this clarification and are attached herewith. b. *Updated market power analyses for applicants that do not own transmission:* Applicants that do not own transmission should base their market share analysis in their triennial reviews on actual historical data using the same seasons that were used in the triennial reviews filed by the transmission owners in their region consistent with Appendix D. For example, for transmission owners in the Southeast filing triennial reviews in June of 2008, the seasonal analysis would be based on the following: December 2005, January 2006 and February 2006 for winter; March 2006, April 2006 and May 2006 for spring; June 2006, July 2006 and August 2006 for summer; September 2006, October 2006 and November 2006 for fall (because at the time of filing these months had the most recently available actual historical data for each of those complete seasons). All other applicants in the Southeast should base their studies on these same seasons when they file their triennials six months later in December 2008. 21 21 As set forth in Order No. 697, Applicants that do not own transmission are required to file their triennials six months after the transmission owners in that region filed their triennials. Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 889. c. *Transmission-owning applicants for initial market-based rate authorization or submission of a change in status filing:* Transmission-owning applicants filing applications for initial market-based rate authorization, or those submitting a change in status filing, should rely on the most recent available actual historical data for each complete season of: Winter (December-February), spring (March-May), summer (June-August) and fall (September-November). d. *All other applicants:* All other applicants filing applications for initial market-based rate authorization or submitting change in status filings and, which have to rely on other studies because they do not have access to all the needed data, should rely on the same vintage data that were used in the triennial reviews filed by the transmission owners in their region within the past year. 22 If triennial reviews were not filed by the transmission owners in their region within the past year, then the applicants covered under this part may base their market share analysis on either
(i)the most recently available actual historical data for each complete season of: Winter (December-February), spring (March-May), summer (June-August) and fall (September-November), or
(ii)the same seasons in their market share studies that were used in the most recently filed triennial studies submitted by the transmission owners in their region, provided that the non-transmission owning applicant shows what its market shares would have been in each season based on those studies, and states whether there would be a significant increase in the market shares during any season if more recent data had been used (as well as the basis for this claim). 23 22 Applicants in this category include those that do not own transmission or do not have affiliates that own transmission, as well as those that file a market power study as part of their change in status filing. Although applicants do not typically submit market power studies as part of their change in status filings, sometimes they do, and at other times the Commission may require the submission of a market power study at the time of a change in status filing. 23 We note that the Commission reserves the right to require an updated market power analysis at any time and may request the applicant to use the most recently available actual historical data for each complete season of: Winter (December-February), spring (March-May), summer (June-August) and fall (September-November). 13. In light of these clarifications, we will extend the deadline for filing the first set of regional triennial studies that we directed in Order No. 697 from December 2007 to 30 days after the date of issuance of this order. Furthermore, we will not require those entities that have already submitted their updated market power studies for the December filing period to file revisions to those studies if they were based on calendar year quarters, rather than the approach set forth in
(a)above. D. Seller-Specific Terms and Conditions 14. In Order No. 697, the Commission required that all sellers include in their respective market-based rate tariffs certain standard required provisions and standard applicable provisions to the extent that they are applicable based on the services provided by the seller. 24 The Commission also explained that it would permit sellers to list in their market-based rate tariffs additional terms and conditions that go beyond the standard provisions set forth in Appendix C. 25 The Commission stated that it recognized benefits to both sellers and customers of having terms and conditions relevant to the seller's market-based rate power sales available in one document. 24 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 914-917. These standard provisions are listed in Appendix C to Order No. 697. 25 *Id.* P 919, 927. 15. In order to ensure full compliance with the tariff requirements set forth in Order No. 697, we clarify that “seller-specific terms and conditions” are those provisions that are commonly found in power sales agreements, such as creditworthiness, force majeure, dispute resolution, billing, and payment provisions. As the Commission noted in Order No. 697, it has been our practice not to evaluate these types of terms and conditions once the seller is authorized to sell power at market-based rates, but to allow them to be included in the market-based rate tariff that is on file with the Commission. We clarify, however, that we did not intend that “seller-specific terms and conditions” include other “services” offered by the seller beyond those set forth in Appendix C. IV. Conclusion 16. In sum, to the extent that it was not clear in the Final Rule that all requirements and limitations of Order No. 697 became effective on September 18, 2007, we hereby clarify that sellers are required to comply with all of the requirements of Order No. 697 as of the effective date of the Final Rule, even if sellers have previously-approved tariff provisions to the contrary. Thus, any sales made after September 18, 2007 are expected to be in compliance with the requirements of Order No. 697. We also clarify that both transmission-owning utilities with market-based rate authority and their affiliates with market-based rate authority are required to file updated market power analyses for the Commission's regional review as discussed herein. We clarify that we will require use of the actual historical data through November of the previous calendar year, including data from December of the prior year, for both of the horizontal market power screens and the DPT analysis as discussed herein. Additionally, we clarify that “seller-specific terms and conditions” are those tariff provisions that are commonly found in power sales agreements, such as creditworthiness, force majeure, dispute resolution, billing, and payment provisions. “Seller-specific terms and conditions” do not, however, include other “services” offered by the seller. By the Commission. Nathaniel J. Davis, Sr., Deputy Secretary. Regional Review Schedule for Sellers Filing Triennial Reviews Appendix D Entities required to file Filing period (anytime during the month) Study period Schedule for Transmission Owning Utilities With Market-Based Rate Authority and Their Affiliates in the Same Region Northeast Transmission Owners December, 2007 Dec. 1, 2005-Nov. 30, 2006. Southeast Transmission Owners June, 2008 Dec. 1, 2005-Nov. 30, 2006. Central Transmission Owners December, 2008 Dec. 1, 2006-Nov. 30, 2007. SPP Transmission Owners June, 2009 Dec. 1, 2006-Nov. 30, 2007. Southwest Transmission Owners December, 2009 Dec. 1, 2007-Nov. 30, 2008. Northwest Transmission Owners June, 2010 Dec. 1, 2007-Nov. 30, 2008. Northeast Transmission Owners December, 2010 Dec. 1, 2008-Nov. 30, 2009. Southeast Transmission Owners June, 2011 Dec. 1, 2008-Nov. 30, 2009. Central Transmission Owners December, 2011 Dec. 1, 2009-Nov. 30, 2010. SPP Transmission Owners June, 2012 Dec. 1, 2009-Nov. 30, 2010. Southwest Transmission Owners December, 2012 Dec. 1, 2010-Nov. 30, 2011. Northwest Transmission Owners June, 2013 Dec. 1, 2010-Nov. 30, 2011. Schedule for All Other Entities All others in Northeast that did not file in December including all power marketers that sold in the Northeast June, 2008 Dec. 1, 2005-Nov. 30, 2006. All others in Southeast that did not file in June including all power marketers that sold in the Southeast and have not already been found to be Category 1 sellers December, 2008 Dec. 1, 2005-Nov. 30, 2006. All others in Central that did not file in December including all power marketers that sold in the Central and have not already been found to be Category 1 sellers June, 2009 Dec. 1, 2006-Nov. 30, 2007. All others in SPP that did not file in June including all power marketers that sold in SPP and have not already been found to be Category 1 sellers December, 2009 Dec. 1, 2006-Nov. 30, 2007. All others in Southwest that did not file in December including all power marketers that sold in the Southwest and have not already been found to be Category 1 sellers June, 2010 Dec. 1, 2007-Nov. 30, 2008. All others in Northwest that did not file in June including all power marketers that sold in the Northwest and have not already been found to be Category 1 sellers December, 2010 Dec. 1, 2007-Nov. 30, 2008. Others in Northeast that did not file in December and have not been found to be Category 1 sellers June, 2011 Dec. 1, 2008-Nov. 30, 2009. Others in Southeast that did not file in June and have not been found to be Category 1 sellers December, 2011 Dec. 1, 2008-Nov. 30, 2009. Others in Central that did not file in December and have not been found to be Category 1 sellers June, 2012 Dec. 1, 2009-Nov. 30, 2010. Others in SPP that did not file in June and have not been found to be Category 1 sellers December, 2012 Dec. 1, 2009-Nov. 30, 2010. Others in Southwest that did not file in December and have not been found to be Category 1 sellers June, 2013 Dec. 1, 2010-Nov. 30, 2011. Others in Northwest that did not file in June and have not been found to be Category 1 sellers December, 2013 Dec. 1, 2010-Nov. 30, 2011. [FR Doc. E7-24736 Filed 12-19-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF STATE 22 CFR Part 22 RIN 1400-AC42 [Public Notice: 6035] Schedule of Fees for Consular Services, Department of State and Overseas Embassies and Consulates AGENCY: Department of State. ACTION: Interim final rule. SUMMARY: This rule amends the Schedule of Fees for Consular Services. Specifically, it raises from $100 to $131 the fee charged for the processing of an application for a nonimmigrant visa
(MRV)and Border Crossing Card
(BCC)and increases the immigrant visa fee by $20.00. The Department of State is adjusting the fees as an emergency measure to ensure that sufficient resources are available to meet the costs of processing non-immigrant and immigrant visas in light of increased security measures put in place since 2004 and fee collection mandates on behalf of the Federal Bureau of Investigation. DATES: *Effective date:* This interim final rule becomes effective January 1, 2008. *Comment date:* The Department of State will accept written comments from interested persons up to February 29, 2008. ADDRESSES: Interested parties may submit comments by any of the following methods: • Persons with access to the Internet may view this notice and submit comments by going to the regulations.gov Web site at: *http://www.regulations.gov/index.cfm.* • *Mail (paper, disk, or CD-ROM):* U.S. Department of State, Office of the Executive Director, Bureau of Consular Affairs, U.S. Department of State, Suite H1004, 2401 E Street, NW., Washington, DC 20520. • *E-mail: fees@state.gov.* You must include the RIN (1400-AC42) in the subject line of your message. FOR FURTHER INFORMATION CONTACT: Suzanne Inzerillo, Office of the Executive Director, Bureau of Consular Affairs, Department of State; phone: 202-663-3923, telefax: 202-663-2499; e-mail: *fees@state.gov.* SUPPLEMENTARY INFORMATION: Background What Is the Authority for This Action? The majority of the Department of State's consular fees are established pursuant to the general user charges statute, 31 U.S.C. 9701 (which directs that certain government services be self-sustaining to the extent possible), and/or title 22 U.S.C. 4219, which as implemented through Executive Order 10718 of June 27, 1957, authorizes the Secretary of State to establish fees to be charged for official services provided by U.S. embassies and consulates. In addition, a number of statutes address specific fees. A cost-based, nonimmigrant visa processing fee for the machine readable visa
(MRV)and for a combined border crossing and nonimmigrant visa card
(BCC)(see 22 CFR 41.32) is authorized by section 140(a) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Public Law 103-236 (April 30, 1994), as amended. Various statutes permit the Department to retain some of the consular fees it collects, including the MRV and MRV/BCC fees. Section 103 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law 107-173 (May 14, 2002), amended section 140(a) of Public Law 103-236 to permit the Department to retain all MRV fees until they are expended. Public Law 103-317 (FY 95 CJS Appropriation Act, 8 U.S.C. 1356 note) gives retention authority for an increase to IV fees “caused by processing an applicant's fingerprints.” Consistent with OMB Circular A-25 guidelines, the Department conducted a Cost of Service Study
(COSS)from January 2003 to June 2004 to update the Schedule of Fees for Consular Services. The results of that study were the foundation of the current Schedule, which was published as a final rule on February 2, 2005, at Volume 70, No. 21 FR Doc. 05-1930. The Schedule went into effect on March 8, 2005. The $100 MRV fee, however, was based on the previous COSS completed in 2002 and was not raised as a result of the 2004/2005 COSS, which indicated that the actual cost for MRV services was $107.32. The Department intends to initiate collection of the fee at the increased rate on January 1, 2008. Furthermore, on January 1, 2008, the FBI will begin charging the Department of State for fingerprint and name checks. The additional charges will cover the FBI fees, and the collection of 10 prints and systems related costs. The increase in the Immigration visa application fee is merely the sum of the fee that Department must remit to the FBI for each set of prints taken and the collection costs to the Department. Why Is the Department Raising the MRV and BCC Fees to $131, and the Immigrant Visa Application Fee to $355 at This Time? The primary reason for increasing the fees is that in January 2008, the Department will begin paying fees to the FBI for checking the fingerprints against the FBI's Integrated Automated Fingerprint Identification System (IAFIS) and for running visa applicant names through Security Advisory Opinion
(SAO)processes. In addition, the $100 MRV fee that went into effect on November 1, 2002 was based on estimates of visa demand, taking the 2001 COSS as a baseline. The fee was calculated taking into account the costs of worldwide nonimmigrant visa operations, visa demand, and other related costs. The 2004 COSS subsequently determined that the MRV and BCC fees should be set at $107.32 based on revised costs and demand. However, in response to public comment and its own concern over the cost to the applicant, the Department of State determined that it would continue to charge $100 per applicant rather than the actual cost to the Department of $107.32. Because of the need for additional measures to enhance border security, however, the costs to the Department of processing non-immigrant visas have since risen even further. The increased costs include the cost of collecting ten fingerprints from applicants at all visa processing locations and performing name checks on all applicants. Based on these increased costs, the Department has determined that an MRV and BCC fee of $131 will be required to recover the full cost of processing nonimmigrant visa applications during the anticipated period of the current Schedule of Fees. Failure to increase the fees at this time could jeopardize the Department's ability to continue critical programs, including the enhanced border security measures recently undertaken. Given the uncertainty with respect to actual applicant volume, the fee may need to be adjusted in the future. The FBI fingerprint fee will also be assessed in all immigrant visa cases. In order to recoup the Department's cost of collecting and providing the 10 fingerprints to the FBI as well as the FBI fee for the fingerprint check, the immigrant visa fee will increase by $20.00 to $355. Since the Department has the authority to retain fees, this increase will be used to pay the FBI fee and fund the department's associated collection costs. The estimated total increase in cost for nonimmigrant visa applicants is $310,000,000 ($31.00 per applicant, with an estimated 10,000,000 applicants). The estimated total increase in cost for immigrant visa applicants is $14,000,000 ($20 per applicant, with an estimated 700,000 applicants). Regulatory Findings Administrative Procedure Act The Department is publishing this rule as an interim final rule, with a 60-day provision for post-promulgation public comments, and with an effective date less than 30 days from the date of publication, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). Delaying implementation of this rule would be contrary to the public interest because failure to increase the fees on January 1 would jeopardize the Department's ability to continue critical programs, including visa screening procedures that are necessary for national security. As explained above, the FBI will begin charging the Department a fee to process the fingerprints of visa applicants and to perform name checks of those applicants beginning January 1. The Department's ability to perform this screening is of vital public interest because it is an essential component of efforts to enhance the nation's border security. Regulatory Flexibility Act The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $1 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and import markets. Executive Order 12866 OMB considers this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this rule has been submitted to OMB for review. Executive Order 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Paperwork Reduction Act This rule does not impose any new reporting or recordkeeping requirements. It will affect OMB collection numbers 1405-0018 and 1405-0015 by increasing the public cost burden. List of Subjects in 22 CFR Part 22 Consular services, Fees, Passports and visas. Accordingly, 22 CFR part 22 is amended as follows: PART 22—[AMENDED] 1. The authority citation for part 22 continues to read as follows: Authority: 8 U.S.C. 1153 note, 1351, 1351 note; 10 U.S.C. 2602(c); 22 U.S.C. 214, 2504(a), 4201, 4206, 4215, 4219; 31 U.S.C. 9701; Pub. L. 105-277, 112 Stat. 2681 et seq.; Pub. L. 108-447, 118 Stat. 2809 et seq.; E.O. 10718, 22 FR 4632, 3 CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-1970 Comp., p. 570. 2. Section 22.1 is amended by: a. Revising item No. 21(a) and (b), and item 32 to read as set forth below: b. Removing item 35(f). § 22.1 Schedule of fees. Item No. Fee * * * * * * * Nonimmigrant Visa Services 21. Nonimmigrant visa application and border crossing card processing fees (per person):
(a)Nonimmigrant visa [21-MRV Processing] $131
(b)Border crossing card—10 year (age 15 and over) [22-131 BCC 10 Year] 131 * * * * * * * Immigrant and Special Visa Services 32. Immigrant visa application processing fee (per person) [31-IV Application] 355 * * * * * * * Dated: December 11, 2007. Patrick Kennedy, Under Secretary of State for Management, Department of State. [FR Doc. E7-24646 Filed 12-19-07; 8:45 am] BILLING CODE 4710-06-P DEPARTMENT OF STATE 22 CFR Part 62 [Public Notice: 6033] RIN 1400-AC29 Rule Title: Exchange Visitor Program—Sanctions and Terminations AGENCY: Department of State. ACTION: Final Rule. SUMMARY: The Department of State (Department) published a Proposed Rule regarding sponsor sanctions and program terminations, together with a request for comments, on May 31, 2007. A total of 49 comments were submitted, reviewed and evaluated. The Department herewith adopts the Proposed Rule, with minor edits, as a Final Rule. DATES: *Effective Date:* This Final Rule is effective January 22, 2008. SUPPLEMENTARY INFORMATION: The former United States Information Agency
(USIA)and, as of October 1, 1999, its successor, the U.S. Department of State (Department), have promulgated regulations governing the Exchange Visitor Program. Those regulations now appear at 22 CFR Part 62. The regulations governing sanctions appear at 22 CFR 62.50, and regulations governing termination of a sponsor's designation, at 22 CFR 62.60 through 62.62. The ultimate goals of the sanctions regulations are to further the foreign policy interests of the United States, and to protect the health, safety, and welfare of Exchange Visitor Program participants. These regulations largely have remained unchanged since 1993, when the USIA undertook a major regulatory reform of the Exchange Visitor Program, as administered by the Office of Exchange Coordination and Designation (Office). On May 31, 2007, the Department published a Proposed Rule on sanctions and terminations with a comment period ending July 30, 2007. 72 FR 30302-30308. Forty-nine
(49)parties filed comments, which the Department reviewed and evaluated. Two membership organizations filed comments on behalf of a large number of individual designated program sponsors. Twenty-five
(25)commenting parties favored the Proposed Rule. The remaining commenting parties criticized the Proposed Rule in one or more respects, and several parties recommended changes to the Proposed Rule. Having thoroughly reviewed the comments and the changes that commenting parties recommended, the Department has determined that it will, and hereby does, adopt the Proposed Rule, with minor edits, and promulgates it as a Final Rule. The Department's evaluation of the written comments and recommendations follows. As the Department noted in the Supplementary Information accompanying the Proposed Rule, The [Fulbright-Hays] Act authorizes the President to provide for such exchanges if it would strengthen international cooperative relations. The language of the Act and its legislative history make it clear that the Congress considered international educational and cultural exchanges to be a significant part of the public diplomacy efforts of the President in connection with Constitutional prerogatives in conducting foreign affairs. Thus, exchange visitor programs that do not further the public diplomacy goals of the United States should not be designated initially, or retain their designation. Accordingly, it is imperative that the Department have the power to revoke program designations or deny applications for program redesignation when it determines that such programs do not serve the country's public diplomacy goals. The above statement is the underpinning for the Department's entire approach to the sanctions regime of the Exchange Visitor Program. Comment Analysis One of the overall criticisms of the Proposed Rule was that the Department eliminated the requirement that it find alleged violations of Part 62 to be willful or negligent before imposing sanctions. Fifteen
(15)comments were opposed to the change. The Department believes that such criticism is without merit. A program sponsor, prior to being designated or redesignated, must demonstrate that it (i.e., the responsible officer and alternate responsible officer(s)), its employees, and third parties acting on its behalf have the knowledge and ability to comply and remain in continual compliance with all provisions of Part 62. [§ 62.3(b)(1); § 62.9(a) and (f)(1) and (2); and § 62.11(a).] Since knowledge and ability to comply and remain in full compliance with the regulations are fundamental requirements of sponsor designation, it is essentially irrelevant whether a sponsor violates regulations willfully, negligently, or even inadvertently. Violations, whether or not willful or negligent, may harm the national security or the public diplomacy goals of the United States, or pose a threat to the health, safety or welfare of program participants, and the Department must have the capacity to respond appropriately. Moreover, the process set forth in the revised sanctions regulations provides that a sponsor being sanctioned may submit a statement in opposition to or mitigation of the proposed sanction. This process provides the sponsor with the opportunity to explain the circumstances of the alleged violation, and to argue that a lesser sanction, or no sanction at all, would be appropriate in view of those circumstances. In addition, the review process available for significant sanctions provides a second opportunity for the sponsor to make its case before a panel of three Review Officers not connected with the Exchange Visitor Program, thus affording additional protection from the arbitrary or capricious imposition of sanctions. A total of sixteen
(16)comments were in favor of the change. Twelve
(12)commenting parties opined that the criteria for imposing sanctions are extremely broad and do not provide an adequate basis for the Department to determine, for example, under what circumstances it would propose to terminate rather than suspend a sponsor's designation or impose lesser sanctions. It should be noted in this regard that four of the six grounds for imposing sanctions are the same as those in the prior rule. The two new grounds—actions that may compromise the national security of the United States or undermine its foreign policy objectives—are of a nature that inherently requires broad discretion in the choice of appropriate sanctions. Moreover, as previously noted, the process for imposing and reviewing proposed sanctions affords a sponsor ample opportunity to argue that alternative sanctions would be more appropriate. Nineteen
(19)of the commenting parties criticized the lack of an agency review process for the “lesser sanctions,” in which the decision of the Office is the final Department decision [§ 62.50(b)]. One
(1)comment was in favor. However, the lack of a review process for “lesser sanctions” is unchanged from the prior rule. Under the prior rule, reduction in the size of a sponsor's program was deemed a “lesser sanction” (and thus not subject to further agency review) if it was limited to a reduction in participants of 10 percent or less or, in the case of a geographical reduction, if it would not cause a significant financial burden for the sponsor. The only change in the Proposed Rule was an increase in the potential size of the reduction, from 10 to 15 percent, and the reminder that subsequent 10-percent reductions may be imposed in the case of continued violations (a possibility that was inherent in the prior rule). The reason for the more limited process for “lesser sanctions” remains the same as in the prior rule: Their relatively minor impact on sponsors does not justify the burden and expense, for both the Department and sponsors, of the more extensive process afforded for more significant sanctions. The modest increase of 5 percent in the size of a potential program reduction does not, in the Department's view, alter this rationale. Fourteen
(14)commenting parties criticized the basis for and the process by which the Department will implement a suspension. The prior rule allowed for “suspension” and “summary suspension.” In practice, the Department never utilized the suspension provision of the regulations, and that provision is eliminated in the Final Rule, which redesignates “summary suspension” as “suspension.” Under the prior rule, only one ground for this sanction existed: Endangering the health, safety or welfare of a participant. The Final Rule adds another ground, the necessity of which became apparent after the events of 9/11: Damaging the national security interests of the United States. The Department believes that the continued necessity for it to be able to act swiftly, and with immediate effect, in such circumstances is self-evident. Moreover, it should be noted that the summary process for such suspensions has been improved for sponsors in two respects. First, a sponsor is afforded additional time in which to submit an initial opposition to the suspension. Second, such an opposition is received, reviewed and decided at a higher level, by the Principal Deputy Assistant Secretary for Educational and Cultural Affairs
(PDAS)rather than by the Office. As under the prior rule, the sponsor may seek further agency review of this decision, by a three-member review panel. Thirteen
(13)of the commenting parties criticized new language providing that the Department may determine that a class of designated programs compromises the national security of the United States or no longer furthers the public diplomacy mission of the United States [§ 62.62]. Three
(3)comments were in favor of this regulation. If the Department makes such a determination, it may revoke the designations, or deny applications for redesignation, of sponsors of that class of exchange visitor programs. As the Department noted in the Supplementary Information accompanying the Proposed Rule, the Exchange Visitor Program is part of the Department's public diplomacy efforts in furtherance of the President's Constitutional prerogatives in conducting foreign affairs. Accordingly, the Department noted, termination of a program category because it no longer furthers the Department's public diplomacy mission, or compromises national security, has always been inherently within the discretion of the Department. Following 9/11, the Department concluded that its regulations should make that authority, and the means by which it would be exercised, explicit. Thirteen
(13)of the commenting parties opposed the elimination of a trial-type hearing in appeals of significant sanctions. Moreover, those same parties opine that the criteria for imposing a suspension are more stringent than the criteria for revoking a designation or denying an application for redesignation of a program. It is entirely appropriate that the grounds for the suspension sanction be drawn far more narrowly than those for the other significant sanctions. Suspension represents a rapid response to an urgent problem, with expedited procedures including the possibility of an immediately effective sanction, not stayed by any opposition or request for review. In this, it is unlike any other sanction. That is why it is reserved for violations whose seriousness justifies it: Cases in which national security is compromised, or in which a danger is posed to the health, safety or welfare of participants. It would be inappropriate to apply its procedures to other violations; and it would be equally inappropriate to restrict the availability of other sanctions to its narrow grounds. With regard to the elimination of trial-type review procedures for significant sanctions, the Department has found that such procedures are costly, time-consuming and burdensome for both the Department and sponsors. As noted in the Supplementary Information accompanying the Proposed Rule, such procedures are not required by any applicable statute, and are not necessary to afford due process. Under the Final Rule, sponsors are afforded notice and ample, repeated opportunities to be heard. When the Office proposes a significant sanction, a sponsor may submit to the PDAS an opposition, including factual and legal arguments and additional documentary material, such as affidavits and other evidence. Following a statement in response by the Office, the PDAS issues a written, reasoned decision confirming, withdrawing or modifying the sanction. The sponsor may then seek review of the PDAS decision, before a three-member panel, no member of which may be from the Bureau of Educational and Cultural Affairs (of which the Office forms a part, and which is supervised by the PDAS). Once again, the sponsor has the opportunity to file a statement setting forth arguments of fact and law, accompanied by documentary evidence and other attachments. Following a statement in response by the PDAS, the review panel may, at its discretion, convene a brief meeting with the parties, solely for the purpose of clarifying the written submissions. Then the review panel issues a written, reasoned decision confirming, withdrawing or modifying the sanction. This procedure affords ample notice and opportunity to be heard, with a reasoned decision on a clear record. If the program sponsor is not satisfied with the decision ultimately reached by the Review Officers, it continues to have the same opportunities as before to seek relief in an appropriate court. Finally, ten
(10)of the commenting parties requested that sponsors be given the opportunity to cure alleged violations before the Department imposes sanctions. The Department believes that if it were to provide sponsors in all cases the automatic right to cure an alleged violation or deficiency with no risk that an actual sanction will be imposed, then the deterrent effect of the sanctions regime effectively would be eliminated. However, as a practical matter, the Office seldom proposes formal sanctions without first engaging in informal discussions seeking to bring the sponsor into voluntary compliance. Moreover, although there is no *right* to cure, a sponsor facing the imposition of sanctions certainly may offer a settlement or, in submitting its statement in opposition to or mitigation of the sanction, show it has cured the alleged violations and argue for a less severe sanction, or no sanction at all, and may request a meeting to present its views. Seven
(7)comments favored, and two opposed, the paper review set forth at § 62.50(f). The comments stated that a review should also include statements and information provided by exchange visitor participants, concerned citizens, and school officials. Thirteen
(13)comments were received in favor of a sponsor's not being able to reapply for designation for a minimum of five
(5)years once a designation has been revoked. For the foregoing reasons, the Department is promulgating the Proposed Rule as a Final Rule. Regulatory Analysis Administrative Procedure Act In accordance with provisions of the Administrative Procedure Act governing rules promulgated by federal agencies that affect the public (5 U.S.C. 552), the Department of State published a proposed rule and invited and received public comment. Regulatory Flexibility Act The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Act of 1995 This rule does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and import markets. Executive Order 12866 The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. The Department of State does not consider the proposed rule to be an economically significant regulatory action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The rule has been provided to the Office of Management and Budget
(OMB)for review. Paperwork Reduction Act This Final Rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. List of Subjects in 22 CFR Part 62 Cultural Exchange Programs. Accordingly, 22 CFR part 62 is amended as follows: PART 62—EXCHANGE VISITOR PROGRAM 1. The Authority citation for part 62 is revised to read as follows: Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Pub. L. 105-277, Div. G, 112 Stat. 2681-761 *et seq.* ; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended; Pub. L. 107-56, Sec. 416, 115 Stat. 354; and Pub. L. 107-173, 116 Stat. 543. 2. Section 62.50 is revised to read as follows: § 62.50 Sanctions.
(a)*Reasons for sanctions* . The Department of State (Department) may impose sanctions against a sponsor upon a finding by its Office of Exchange Coordination and Designation (Office) that the sponsor has:
(1)Violated one or more provisions of this Part;
(2)Evidenced a pattern of failure to comply with one or more provisions of this Part;
(3)Committed an act of omission or commission, which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor; or
(4)Otherwise conducted its program in such a way as to undermine the foreign policy objectives of the United States, compromise the national security interests of the United States, or bring the Department or the Exchange Visitor Program into notoriety or disrepute.
(b)*Lesser sanctions* .
(1)In order to ensure full compliance with the regulations in this Part, the Department, in its discretion and depending on the nature and seriousness of the violation, may impose any or all of the following sanctions ( “lesser sanctions”) on a sponsor upon a finding that the sponsor engaged in any of the acts or omissions set forth in paragraph
(a)of this section:
(i)A written reprimand to the sponsor, with a warning that repeated or persistent violations of the regulations in this Part may result in suspension or revocation of the sponsor's Exchange Visitor Program designation, or other sanctions as set forth herein;
(ii)A declaration placing the exchange visitor sponsor's program on probation, for a period of time determined by the Department in its discretion, signifying a pattern of violation of regulations such that further violations could lead to suspension or revocation of the sponsor's Exchange Visitor Program designation, or other sanctions as set forth herein;
(iii)A corrective action plan designed to cure the sponsor's violations; or
(iv)Up to a 15 percent (15%) reduction in the authorized number of exchange visitors in the sponsor's program or in the geographic area of its recruitment or activity. If the sponsor continues to violate the regulations in this Part, the Department may impose subsequent additional reductions, in ten-percent (10%) increments, in the authorized number of exchange visitors in the sponsor's program or in the geographic area of its recruitment or activity.
(2)Within ten
(10)days after service of the written notice to the sponsor imposing any of the sanctions set forth in paragraph (b)(1) of this section, the sponsor may submit to the Office a statement in opposition to or mitigation of the sanction. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. Sponsors shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. Upon review and consideration of such submission, the Office may, in its discretion, modify, withdraw, or confirm such sanction. All materials the sponsor submits will become a part of the sponsor's file with the Office.
(3)The decision of the Office is the final Department decision with regard to lesser sanctions in paragraphs (b)(1)(i) through
(iv)of this section.
(c)*Suspension* .
(1)Upon a finding that a sponsor has committed a serious act of omission or commission which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor, or of damaging the national security interests of the United States, the Office may serve the sponsor with written notice of its decision to suspend the designation of the sponsor's program for a period not to exceed one hundred twenty
(120)days. Such notice must specify the grounds for the sanction and the effective date thereof, advise the sponsor of its right to oppose the suspension, and identify the procedures for submitting a statement of opposition thereto. Suspension under this paragraph need not be preceded by the imposition of any other sanction or notice. (2)(i) Within five
(5)days after service of such notice, the sponsor may submit to the Principal Deputy Assistant Secretary for Educational and Cultural Affairs (Principal Deputy Assistant Secretary, or PDAS) a statement in opposition to the Office's decision. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. A sponsor shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. The submission of a statement in opposition to the Office's decision will not serve to stay the effective date of the suspension.
(ii)Within five
(5)days after receipt of, and upon consideration of, such opposition, the Principal Deputy Assistant Secretary shall confirm, modify, or withdraw the suspension by serving the sponsor with a written decision. Such decision must specify the grounds therefore, and advise the sponsor of the procedures for requesting review of the decision.
(iii)All materials the sponsor submits will become a part of the sponsor's file with the Office.
(3)The procedures for review of the decision of the Principal Deputy Assistant Secretary are set forth in paragraphs (d)(3) and (4), (g), and
(h)of this section, except that the submission of a request for review will not serve to stay the suspension.
(d)*Revocation of designation* .
(1)Upon a finding of any act or omission set forth at paragraph
(a)of this section, the Office may serve a sponsor with not less than thirty
(30)days' written notice of its intent to revoke the sponsor's Exchange Visitor Program designation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Revocation of designation under this paragraph need not be preceded by the imposition of any other sanction or notice.
(i)Within ten
(10)days after service of such written notice of intent to revoke designation, the sponsor may submit to the Principal Deputy Assistant Secretary a statement in opposition to or mitigation of the proposed sanction, which may include a request for a meeting.
(ii)The submission of such statement will serve to stay the effective date of the proposed sanction pending the decision of the Principal Deputy Assistant Secretary.
(iii)The Principal Deputy Assistant Secretary shall provide a copy of the statement in opposition to or mitigation of the proposed sanction to the Office. The Office shall submit a statement in response, and shall provide the sponsor with a copy thereof.
(iv)A statement in opposition to or mitigation of the proposed sanction, or statement in response thereto, may not exceed 25 pages in length, double-spaced and, if appropriate, may include additional documentary material. Any additional documentary material may include an index of the documents and a summary of the relevance of each document presented.
(v)Upon consideration of such statements, the Principal Deputy Assistant Secretary shall modify, withdraw, or confirm the proposed sanction by serving the sponsor with a written decision. Such decision shall specify the grounds therefor, identify its effective date, advise the sponsor of its right to request a review, and identify the procedures for requesting such review.
(vi)All materials the sponsor submits will become a part of the sponsor's file with the Office.
(3)Within ten
(10)days after service of such written notice of the decision of the Principal Deputy Assistant Secretary, the sponsor may submit a request for review with the Principal Deputy Assistant Secretary. The submission of such request for review will serve to stay the effective date of the decision pending the outcome of the review.
(4)Within ten
(10)days after receipt of such request for review, the Department shall designate a panel of three Review Officers pursuant to paragraph
(g)of this section, and the Principal Deputy Assistant Secretary shall forward to each panel member all notices, statements, and decisions submitted or provided pursuant to the preceding paragraphs of paragraph
(d)of this section. Thereafter, the review will be conducted pursuant to paragraphs
(g)and
(h)of this section.
(e)*Denial of application for redesignation* . Upon a finding of any act or omission set forth at paragraph
(a)of this section, the Office may serve a sponsor with not less than thirty
(30)days' written notice of its intent to deny the sponsor's application for redesignation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Denial of redesignation under this section need not be preceded by the imposition of any other sanction or notice. The procedures for opposing a proposed denial of redesignation are set forth in paragraphs (d)(2), (d)(3), (d)(4), (g), and
(h)of this section.
(f)*Responsible officers.* The Office may direct a sponsor to suspend or revoke the appointment of a responsible officer or alternate responsible officer for any of the reasons set forth in paragraph
(a)of this section. The procedures for suspending or revoking a responsible officer or alternate responsible officer are set forth at paragraphs (d), (g), and
(h)of this section.
(g)*Review officers.* A panel of three Review Officers shall hear a sponsor's request for review pursuant to paragraphs (c), (d), (e), and
(f)of this section. The Under Secretary of State for Public Diplomacy and Public Affairs shall designate one senior official from an office reporting to him/her, other than from the Bureau of Educational and Cultural Affairs, as a member of the Panel. The Assistant Secretary of State for Consular Affairs and the Legal Adviser shall each designate one senior official from their bureaus as members of the Panel.
(h)*Review.* The Review Officers may affirm, modify, or reverse the sanction imposed by the Principal Deputy Assistant Secretary. The following procedures shall apply to the review:
(1)Upon its designation, the panel of Review Officers shall promptly notify the Principal Deputy Assistant Secretary and the sponsor in writing of the identity of the Review Officers and the address to which all communications with the Review Officers shall be directed.
(2)Within fifteen
(15)days after service of such notice, the sponsor may submit to the Review Officers four
(4)copies of a statement identifying the grounds on which the sponsor asserts that the decision of the Principal Deputy Assistant Secretary should be reversed or modified. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. A sponsor shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one
(1)copy of any such statement to the Principal Deputy Assistant Secretary, who shall, within fifteen
(15)days after receipt of such statement, submit four
(4)copies of a statement in response. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. The Principal Deputy Assistant Secretary shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one
(1)copy of any such statement to the sponsor. No other submissions may be made unless specifically authorized by the Review Officers.
(3)If the Review Officers determine, in their sole discretion, that a meeting for the purpose of clarification of the written submissions should be held, they shall schedule a meeting to be held within twenty
(20)days after the receipt of the last written submission. The meeting will be limited to no more than two
(2)hours. The purpose of the meeting will be limited to the clarification of the written submissions. No transcript may be taken and no evidence, either through documents or by witnesses, will be received. The sponsor and the representative of the Principal Deputy Assistant Secretary may attend the meeting on their own behalf and may be accompanied by counsel.
(4)Following the conclusion of the meeting, or the submission of the last written submission if no meeting is held, the Review Officers shall promptly review the submissions of the sponsor and the Principal Deputy Assistant Secretary, and shall issue a signed written decision within thirty
(30)days, stating the basis for their decision. A copy of the decision will be delivered to the Principal Deputy Assistant Secretary and the sponsor.
(5)If the Review Officers decide to affirm or modify the sanction, a copy of their decision shall also be delivered to the Department of Homeland Security and to the Bureau of Consular Affairs of the Department of State. The Office, at its discretion, may further distribute the decision.
(6)Unless otherwise indicated, the sanction, if affirmed or modified, is effective as of the date of the Review Officers' written decision, except in the case of suspension of program designation, which is effective as of the date specified pursuant to paragraph
(c)of this section.
(i)*Effect of suspension, revocation, or denial of redesignation.* A sponsor against which an order of suspension, revocation, or denial of redesignation has become effective may not thereafter issue any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) or advertise, recruit for, or otherwise promote its program. Under no circumstances shall the sponsor facilitate the entry of an exchange visitor into the United States. An order of suspension, revocation, or denial of redesignation will not in any way diminish or restrict the sponsor's legal or financial responsibilities to existing program applicants or participants.
(j)*Miscellaneous.*
(1)Computation of time. In computing any period of time prescribed or allowed by these regulations, the day of the act or event from which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, a Sunday, or a Federal legal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is fewer than eleven
(11)days, intermediate Saturdays, Sundays, or Federal legal holidays are excluded in the computation.
(2)Service of notice to sponsor. Service of notice to a sponsor pursuant to this section may be accomplished through written notice by mail, delivery, or facsimile, upon the president, chief executive officer, managing director, General Counsel, responsible officer, or alternate responsible officer of the sponsor. 3. Subpart E is revised to read as follows: Subpart E—Termination and Revocation of Programs Sec. 62.60 Termination of designation. 62.61 Revocation. 62.62 Termination of, or Denial of Redesignation for, a Class of Designated programs. 62.63 Responsibilities of the Sponsor upon Termination or Revocation. Subpart E—Termination and Revocation of Programs § 62.60 Termination of designation Designation will be terminated upon the occurrence of any of the circumstances set forth in this section.
(a)*Voluntary termination.* A sponsor notifies the Department of its intent to terminate its designation voluntarily and withdraws its program in SEVIS via submission of a “cancel program” request. The sponsor's designation shall terminate upon submission of such notification. Such sponsor may apply for a new program designation.
(b)*Inactivity.* A sponsor fails to comply with the minimum program size or duration requirements, as specified in § 62.8
(a)and (b), in any 12-month period. Such sponsor may apply for a new program designation.
(c)*Failure to file annual reports.* A sponsor fails to file annual reports for two
(2)consecutive years. Such sponsor is eligible to apply for a new program designation.
(d)*Failure to file an annual management audit.* A sponsor fails to file an annual management audit, if such audits are required in the relevant program category. Such sponsor is eligible to apply for a new program designation upon the filing of the past due management audit.
(e)*Change in ownership or control.* An exchange visitor program designation is not assignable or transferable. A major change in ownership or control automatically terminates the designation. However, the successor sponsor may apply for designation of the new entity, and it may continue to administer the exchange visitor activities of the previously-designated program while the application for designation is pending before the Department of State:
(1)With respect to a for-profit corporation, a major change in ownership or control is deemed to have occurred when one third (33.33%) or more of its stock is sold or otherwise transferred within a 12-month period;
(2)With respect to a not-for-profit corporation, a major change of control is deemed to have occurred when 51 percent (51%) or more of the board of trustees or other like body, vested with its management, is replaced within a 12-month period.
(f)*Non-compliance with other requirements.* A sponsor fails to remain in compliance with Federal, State, local, or professional requirements necessary to carry out the activity for which it is designated, including loss of accreditation, or licensure.
(g)*Failure to apply for redesignation.* A sponsor fails to apply for redesignation, pursuant to the terms and conditions of § 62.7, prior to the conclusion of its current designation period. If so terminated, the former sponsor may apply for a new program designation, but the program activity will be suspended during the pendency of the application. § 62.61 Revocation. The Department may terminate a sponsor's program designation by revocation for cause as specified in § 62.50. Such sponsor may not apply for a new designation for five
(5)years following the effective date of the revocation. § 62.62 Termination of, or denial of redesignation for, a class of designated programs. The Department may, in its sole discretion, determine that a class of designated programs compromises the national security of the United States or no longer furthers the public diplomacy mission of the Department of State. Upon such a determination, the Office shall:
(a)Give all sponsors of such class of designated programs not less than thirty
(30)days' written notice of the revocation of Exchange Visitor Program designations for such programs, specifying therein the grounds and effective date for such revocations; or
(b)Give any sponsor of such class of designated programs not less than thirty
(30)days' written notice of its denial of the sponsor's application for redesignation, specifying therein the grounds for such denial and effective date of such denial. Revocation of designation or denial of redesignation on the above-specified grounds for a class of designated programs is the final decision of the Department. § 62.63 Responsibilities of the sponsor upon termination or revocation. Upon termination or revocation of its program designation, a sponsor must:
(a)Fulfill its responsibilities to all exchange visitors who are in the United States at the time of the termination or revocation; and
(b)Notify exchange visitors who have not entered the United States that the program has been terminated or revoked, unless a transfer to another designated program can be obtained. Dated: December 11, 2007. Stanley S. Colvin, Director, Office of Exchange Coordination and Designation, Bureau of Educational and Cultural Affairs, Department of State. [FR Doc. E7-24650 Filed 12-19-07; 8:45 am] BILLING CODE 4710-05-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [USCG-2007-0149] Drawbridge Operation Regulations; Elizabeth River—Eastern Branch, at Norfolk VA AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Fifth Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the Norfolk Southern Railroad (NS# V2.8) Bridge, at mile 2.7, across the Elizabeth River—Eastern Branch at Norfolk, VA. This deviation allows the drawbridge to remain closed-to-navigation beginning at 7 a.m. on Monday, December 10, 2007, until and including 6 p.m. on Friday, December 21, 2007, and from 7 a.m. on Monday, January 21, 2008, until and including 6 p.m. on Sunday, February 3, 2008, to facilitate rehabilitation of the operating machinery of the swing span. DATES: This deviation is effective from 7 a.m. on December 10, 2007 to 6 p.m. on February 3, 2008. ADDRESSES: Materials referred to in this document are available for inspection or copying at Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The telephone number is
(757)398-6222. Commander (dpb), Fifth Coast Guard District maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Bill H. Brazier, Bridge Management Specialist, Fifth Coast Guard District, at
(757)398-6422. SUPPLEMENTARY INFORMATION: The NS# V2.8 Bridge, a swing-type drawbridge, has a vertical clearance in the closed position to vessels of six feet, above mean high water. Norfolk Southern Railways, the bridge owner, has requested a temporary deviation from the current operating regulations set out in 33 CFR Part 117.1007(a). To facilitate the repairs to the operating machinery, the NS# V2.8 Bridge will be maintained in the closed-to-navigation position beginning at 7 a.m. on Monday, December 10, 2007, until and including 6 p.m. on Friday, December 21, 2007 and from 7 a.m. on Monday, January 21, 2008 until and including 6 p.m. on Sunday, February 3, 2008. The Coast Guard has informed the known users of the waterway of the closure periods for the bridge so that these vessels can arrange their transits to minimize any impact caused by the temporary deviation. In accordance with 33 CFR 117.35(e), the drawbridge 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. Dated: December 7, 2007. Waverly W. Gregory, Jr., Chief, Bridge Administration Branch, Fifth Coast Guard District. [FR Doc. E7-24740 Filed 12-19-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [USCG-2007-0148] Drawbridge Operation Regulations; York River, at Yorktown, VA AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Fifth Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the Coleman Memorial Bridge, at mile 7.0, across York River at Yorktown, VA. This deviation allows the drawbridge to remain closed-to-navigation beginning at 7 a.m. on Saturday, December 15, 2007, until and including 11:59 p.m. on Saturday, December 22, 2007 and from 7 a.m. on Monday, on December 24, 2007 until and including 11:59 p.m. on Monday, December 31, 2007, to facilitate mechanical repairs to the operating machinery of the swing span. DATES: This deviation is effective from 7 a.m. on December 15, 2007 to 11:59 p.m. on December 31, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The telephone number is
(757)398-6222. Commander (dpb), Fifth Coast Guard District maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Bill H. Brazier, Bridge Management Specialist, Fifth Coast Guard District, at
(757)398-6422. SUPPLEMENTARY INFORMATION: The Coleman Memorial Bridge, a swing-type drawbridge, has a vertical clearance in the closed position to vessels of 60 feet, above mean high water. The contractor, on behalf of the Commonwealth of Virginia Department of Transportation (VDOT)—the bridge owner, has requested a temporary deviation from the current operating regulations set out in 33 CFR Part 117.1025 to close the swing bridge to navigation to perform necessary mechanical repairs to the swing span assembly. The repairs will consist of removing and replacing the balance wheels and bronze bushings on the north and south swing spans. To facilitate the repairs, the Coleman Memorial Bridge will be maintained in the closed-to-navigation position beginning at 7 a.m. on Saturday, December 15, 2007, until and including 11:59 p.m. on Saturday, December 22, 2007 and from 7 a.m. on Monday, December 24, 2007, until and including 11:59 p.m. on Monday, December 31, 2007. The Coast Guard has informed the known users of the waterway of the closure periods for the bridge so that these vessels can arrange their transits to minimize any impact caused by the temporary deviation. In accordance with 33 CFR 117.35(e), the drawbridge 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. Dated: December 7, 2007. Waverly W. Gregory, Jr., Chief, Bridge Administration Branch, Fifth Coast Guard District. [FR Doc. E7-24741 Filed 12-19-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. CGD 13-07-049] RIN 1625-AA00 Safety Zone: Lower Cowlitz River Dredging Operation; Longview, WA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone on the Cowlitz River, in the vicinity of Cottonwood Island at the entrance of the Cowlitz River extending up the Cowlitz River 1.5 river miles. The Captain of the Port, Portland, Oregon is taking this action to safeguard individuals and vessels from safety hazards associated with dredging operations. Entry into this safety zone is prohibited unless authorized by Captain of the Port, Portland or the Master of the on-scene dredge vessel. DATES: This rule is effective from Monday, November 12, 2007 8 a.m. through Friday, February 29, 2008 at 5 p.m. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket [CGD13-07-049] and are available for inspection or copying at U. S. Coast Guard Sector Portland, 6767 North Basin Ave., Portland, Oregon 97217 between 7 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Petty Officer Josh Lehner, c/o Captain of the Port Portland, 6767 N. Basin Ave., Portland, Oregon 97217 at 503-240-9301. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking
(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less than 30 days after publication in the **Federal Register** . The Coast Guard did not receive notice of this operation until 12 days prior to the beginning of the operation. The dredging operation will involve multiple dredges, floating and submerged pipelines and other potential navigation hazards from the west bank of the Old Cowlitz River to the northwest tip of Cottonwood Island and 1.5 river miles up the Cowlitz River including the mouth of Carrols Channel and the Old Mouth Cowlitz. The pipeline and associated dredge gear will pose a hazard to navigation due to its location blocking the channel. If normal notice and comment procedures were followed, this rule would not become effective until after the dates of the event. For this reason, following normal rulemaking procedures in this case would be impracticable and contrary to the public interest. Background and Purpose The Coast Guard is establishing a temporary safety zone regulation to allow for safe dredging operations. This operation is necessary for flood control on the Cowlitz River. Silt has built up at the lower end of the Cowlitz River causing an increased risk of flooding in the vicinity of Kelso, Longview, and Castle Rock, WA. This safety zone will be in effect during the time of Monday, November 12, 2007 to Friday, February 29, 2008 while there is dredge gear in the water. This safety zone will be enforced by the Captain the Port, Portland or his designated representative. Entry into this Safety Zone is prohibited unless authorized by the Captain of the Port, his designated representative, or the Master of the on-scene dredge vessel. Transit through the Safety Zone is prohibited without an escort from a vessel associated with the on-scene dredge operations or a representative of the Captain of the Port. To request an escort to transit the Safety Zone contact the on-scene dredge Master on VHF-FM channel 16 or 13 or via search light or sound making device 30 minutes in advance of desired transit. The Captain of the Port may be assisted by other federal and local agencies in the enforcement of this zone. Discussion of Rule This rule, for safety concerns, will control individuals and vessel movement in a regulated area surrounding the dredging operation. Due to safety concerns and likely delays, entry into this zone is prohibited unless authorized by the Captain of the Port, his designated representative, or the Master of the on-scene dredge vessel. Boaters must request and receive authorization to enter the safety zone from the Captain of the Port, his designated representative, or the Master of the on-scene dredge and be escorted by a vessel associated with the dredge operations or by a representative of the Captain of the Port. These measures are taken due to the significant hazard to navigation presented by suspended anchor wires tied off to the shoreline. Dredge gear and submerged pipelines also present a hazard to navigation in and under the waters in the lower area of the Cowlitz River. 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 expects the economic impact of this rule to be so minimal that a full regulatory evaluation under the regulatory policies and procedures of the DHS is unnecessary. This expectation is based on the fact that this rule will be in effect for the minimum time necessary to safely conduct the dredging operation. While this rule is in effect, traffic will be allowed to pass through the zone with authorization and escort of the Master of the on-scene dredge or a designated representative of the Captain of the Port. 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 affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit the designated area at the corresponding time as drafted in this rule. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Traffic will be allowed to pass through the zone with the authorization and escort of the Master of the on-scene dredge or a designated representative of the Captain of the Port. This portion of the river is not typically used by commercial boating entities and most of the traffic expected in this area is generally recreational in nature and will occur on weekends when dredge operations will be suspended. In addition the location of dredging operations is below the area used by drift boat fishermen. Before the effective period, we will issue maritime advisories widely available to users of the river. Because the impacts of this proposal are expected to be so minimal, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. 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). 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 will not result in such 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 does 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 (34)(g), of the Instruction, from further environmental documentation because it establishes a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . List of Subjects in 33 CFR Part 165 Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. A temporary section 165.T13-043 is added to read as follows: § 165.T13-043 Safety Zone: Lower Cowlitz River Dredging Operation in the Captain of the Port Portland Zone.
(a)*Safety Zone.* The following area is designated a safety zone—
(1)*Location.* The waters encompassed by the following points: 46° 05′50″N 122° 55′52″W southeastward to 46° 05′30″N 122° 55′11″W turning northwest to 46° 05′44″N 122° 54′19″W continuing along the southeasterly bank of the Cowlitz River to 46° 06′34″N 122° 53′27″W crossing the river bank to bank to 46° 06′33″N 122° 53′35″W following the northerly bank of the Cowlitz River back to the point of origin. This safety zone will include the entrance to Carrols Channel and the Old Mouth Cowlitz.
(2)*Effective time and date.* 8 a.m. on Monday, November 12, 2007 to 5 p.m. on Friday, February 29, 2008.
(b)*Regulations.*
(1)Entry into this Safety Zone is prohibited unless authorized by the Captain of the Port, his designated representative, or the Master of the on-scene dredge vessel.
(2)Transit through the Safety Zone is prohibited without an escort from a vessel associated with the on-scene dredge operations or a representative of the Captain of the Port.
(3)To request an escort to transit the Safety Zone contact the on-scene dredge Master on VHF-FM channel 16 or 13 or via search light or sound making device 30 minutes in advance of desired transit. Dated: November 9, 2007. Russell C. Proctor, CDR, U.S. Coast Guard, Acting Captain of the Port, Portland, OR. [FR Doc. E7-24768 Filed 12-19-07; 8:45 am] BILLING CODE 4910-15-P LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 383 [Docket No. 2005-5 CRB DTNSRA] Digital Performance Right in Sound Recordings and Ephemeral Recordings for a New Subscription Service AGENCY: Copyright Royalty Board, Library of Congress. ACTION: Final rule. SUMMARY: The Copyright Royalty Judges are publishing final regulations that set the rates and terms for the use of sound recordings in transmissions made by new subscription services and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period commencing from the inception of the new subscription service through December 31, 2010. DATES: These regulations become effective on January 22, 2008. FOR FURTHER INFORMATION CONTACT: Richard Strasser, Senior Attorney, or Gina Giuffreda, Attorney Advisor, by telephone at
(202)707-7658 or e-mail *crb@loc.gov* . SUPPLEMENTARY INFORMATION: Background In 1995, Congress enacted the Digital Performance Right in Sound Recordings Act of 1995 (“DPRA”), Public Law No. 104-39, which created an exclusive right for copyright owners of sound recordings subject to certain limitations, to perform publicly the sound recordings by means of certain digital audio transmissions. Among the limitations on the performance right was the creation of a new compulsory license for nonexempt noninteractive digital subscription transmissions. 17 U.S.C. 114(f). Section 114 was later amended with the passage of the Digital Millennium Copyright Act of 1998 (“DMCA” or “the Act”), Public Law No. 105-304, to cover additional digital audio transmissions. These include transmissions made by “new subscription services.” For purposes of the section 114 license, a “new subscription service” is “a service that performs sound recordings by means of noninteractive subscription digital audio transmissions and that is not a preexisting subscription service or a preexisting satellite digital audio radio service.” 17 U.S.C. 114(j)(8). In addition to expanding the section 114 license, the DMCA also created a statutory license to allow for the making of ephemeral reproductions for the purpose of facilitating certain digital audio transmissions, including those made by new subscription services. 17 U.S.C. 112(e). On October 31, 2005, pursuant to section 114(f)(2)(C), XM Satellite Radio, Inc. (“XM”) filed with the Copyright Royalty Judges (“Judges”) a Petition to Initiate and Schedule Proceeding for a New Type of Subscription Service for a “new type of subscription service [which] performs sound recordings on digital audio channels programmed by the licensee for transmission by a satellite television distribution service to its residential customers, where the audio channels are bundled with television channels as part of a ‘basic’ package of service and not for a separate fee.” XM Petition at 1. The petition noted that this new subscription service was to commence on or about November 15, 2005. Id. On December 5, 2005, pursuant to 17 U.S.C. 804(b)(3)(C)(ii), the Judges published a notice in the **Federal Register** announcing commencement of the proceeding to set rates and terms for royalty payments under sections 114 and 112 for the activities of the new subscription service described in the XM Petition and requesting interested parties to submit their Petitions to Participate. 70 FR 72471. Petitions to participate were received from Sirius Satellite Radio, Inc. (“Sirius”), XM, MTV Networks (“MTV”), and SoundExchange, Inc. The Judges set the schedule for the proceeding for both the direct and rebuttal phases of the proceeding, including the dates for the filing of the written statements and the dates for oral testimony for each phase. Subsequent to the presentation of the direct phase of their case and the filing of their written rebuttal statements, but prior to the oral presentation of their rebuttal witnesses, the parties informed the Judges that they had “reached full agreement on all issues in this litigation” and that “there are no more issues to try.” Transcript of September 10, 2007, at p. 5. They also stated that the settlement agreement would be submitted to the Judges for approval and adoption pursuant to 17 U.S.C. 801(b)(7)(A). Id. at 6. The proposed rates and terms codifying the settlement agreement were filed on October 30, 2007. Section 801(b)(7)(A) allows for the adoption of rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Copyright Royalty Judges for approval. This section provides that in such event:
(i)The Copyright Royalty Judges shall provide to those that would be bound by the terms, rates, or other determination set by any agreement in a proceeding to determine royalty rates an opportunity to comment on the agreement and shall provide to participants in the proceeding under section 803(b)(2) that would be bound by the terms, rates, or other determination set by the agreement an opportunity to comment on the agreement and object to its adoption as a basis for statutory terms and rates; and
(ii)The Copyright Royalty Judges may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement, if any participant described in clause
(i)objects to the agreement and the Copyright Royalty Judges conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates. 17 U.S.C. 801(b)(7)(A). Accordingly, on November 9, 2007, the Judges published a Notice of Proposed Rulemaking (“NPRM”) requesting comment on the proposed rates and terms submitted to the Judges. 72 FR 63532. Comments were due by December 10, 2007. In response to the NPRM, the Judges received only one comment, which was submitted by SoundExchange, supporting the adoption of the proposed regulations. Having received no objections from a party that would be bound by the proposed rates and terms and that would be willing to participate in further proceedings, the Copyright Royalty Judges, by this notice, are adopting final regulations which set the rates and terms for the use of sound recordings in transmissions made by new subscription services and for the making of ephemeral recordings necessary for the facilitation of such transmissions for the period commencing from the inception of the new subscription service through December 31, 2010. 1 1 Section 383.4(a) states that the terms governing the activities of a new subscription service under sections 114 and 112 are the same as those, unless otherwise specified, adopted to govern the activities of the preexisting satellite digital audio radio services in Docket No. 2006-1 CRB DSTRA. Those terms will appear in Subpart B of 37 CFR part 382, which will be published in a separate document. List of Subjects in 37 CFR Part 383 Copyright, Digital audio transmissions, Performance right, Sound recordings. Final Regulations For the reasons set forth in the preamble, the Copyright Royalty Judges are adding part 383 to Chapter III of title 37 of the Code of Federal Regulations to read as follows: PART 383—RATES AND TERMS FOR SUBSCRIPTION TRANSMISSIONS AND THE REPRODUCTION OF EPHEMERAL RECORDINGS BY NEW SUBSCRIPTION SERVICES Sec. 383.1 General. 383.2 Definitions. 383.3 Royalty fees for public performance of sound recordings and the making of ephemeral recordings. 383.4 Terms for making payment of royalty fees. Authority: 17 U.S.C. 112(e), 114, and 801(b)(1). § 383.1 General.
(a)*Scope.* This part 383 establishes rates and terms of royalty payments for the public performance of sound recordings in certain digital transmissions by Licensees in accordance with the provisions of 17 U.S.C. 114, and the making of certain ephemeral recordings by Licensees in accordance with the provisions of 17 U.S.C. 112(e), during the period commencing from the inception of the Licensees' Services and continuing through December 31, 2010.
(b)*Legal compliance.* Licensees relying upon the statutory licenses set forth in 17 U.S.C. 112 and 114 shall comply with the requirements of those sections and the rates and terms of this part.
(c)*Relationship to voluntary agreements.* Notwithstanding the royalty rates and terms established in this part, the rates and terms of any license agreements entered into by Copyright Owners and Licensees shall apply in lieu of the rates and terms of this part to transmissions with the scope of such agreements. § 383.2 Definitions. For purposes of this part, the following definitions shall apply:
(a)*Applicable Period* is the period for which a particular payment to the designated collection and distribution organization is due.
(b)*Bundled Contracts* means contracts between the Licensee and a Provider in which the Service is not the only content licensed by the Licensee to the Provider.
(c)*Copyright Owner* is a sound recording copyright owner who is entitled to receive royalty payments under 17 U.S.C. 112(e) or 114(g).
(d)*License Period* means the period commencing from the inception of the Licensees' Services and continuing through December 31, 2010.
(e)*Licensee* is a person that has obtained statutory licenses under 17 U.S.C. 112 and 114, and the implementing regulations, to make digital audio transmissions as part of a Service (as defined in paragraph
(h)of this section), and ephemeral recordings for use in facilitating such transmissions.
(f)*Provider* means a “multichannel video programming distributor” as that term is defined in 47 CFR 76.1000(e); notwithstanding such definition, for purposes of this part, a Provider shall include only a distributor of programming to televisions, such as a cable or satellite television provider.
(g)*Revenue.*
(1)“Revenue” means all monies and other considerations, paid or payable, recognizable during the Applicable Period as revenue by the Licensee consistent with Generally Accepted Accounting Principles (“GAAP”) and the Licensee's past practices, which is derived by the Licensee from the operation of the Service and shall be comprised of the following:
(i)Revenues recognizable by Licensee from Licensee's Providers and directly from residential U.S. subscribers for Licensee's Service;
(ii)Licensee's advertising revenues recognizable from the Service (as billed), or other monies received from sponsors of the Service if any, less advertising agency commissions not to exceed 15% of those fees incurred to a recognized advertising agency not owned or controlled by Licensee;
(iii)Revenues recognizable for the provision of time on the Service to any third party;
(iv)Revenues recognizable from the sale of time to Providers of paid programming, such as infomercials, on the Service;
(v)Where merchandise, service, or anything of value is receivable by Licensee in lieu of cash consideration for the use of Licensee's Service, the fair market value thereof or Licensee's prevailing published rate, whichever is less;
(vi)Monies or other consideration recognizable as revenue by Licensee from Licensee's Providers, but not including revenues recognizable by Licensee's Providers from others and not accounted for by Licensee's Providers to Licensee, for the provision of hardware for the Service by anyone and used in connection with the Service;
(vii)Monies or other consideration recognizable as revenue for any references to or inclusion of any product or service on the Service; and
(viii)Bad debts recovered regarding paragraphs (g)(1)(i) through
(vii)of this section.
(2)“Revenue” shall include such payments as set forth in paragraphs (g)(1)(i) through
(viii)of this section to which Licensee is entitled but which are paid or payable to a parent, subsidiary, division, or affiliate of Licensee, in lieu of payment to Licensee but not including payments to Licensee's Providers for the Service. Licensee shall be allowed a deduction from “Revenue” as defined in paragraph (g)(1) of this section for bad debts actually written off during the reporting period.
(h)A *Service* is a non-interactive (consistent with the definition of “interactive service” in 17 U.S.C. 114(j)(7)) audio-only subscription service (including accompanying information and graphics related to the audio) that is transmitted to residential subscribers of a television service through a Provider which is marketed as and is in fact primarily a video service where
(1)Subscribers do not pay a separate fee for audio channels.
(2)The audio channels are delivered by digital audio transmissions through a technology that is incapable of tracking the individual sound recordings received by any particular consumer.
(3)However, paragraph (h)(2) of this section shall not apply to the Licensee's current contracts with Providers that are in effect as of the effective date of this part if such Providers become capable in the future of tracking the individual sound recordings received by any particular consumer, provided that the audio channels continued to be delivered to Subscribers by digital audio transmissions and the Licensee remains incapable of tracking the individual sound recordings received by any particular consumer.
(i)*Subscriber* means every residential subscriber to the underlying service of the Provider who receives Licensee's Service in the United States for all or any part of a month; provided, however, that for any Licensee that is not able to track the number of subscribers on a per-day basis, “Subscribers” shall be calculated based on the average of the number of subscribers on the last day of the preceding month and the last day of the applicable month, unless the Service is paid by the Provider based on end-of-month numbers, in which event “Subscribers” shall be counted based on end-of-month data.
(j)*Stand-Alone Contracts* means contracts between the Licensee and a Provider in which the only content licensed to the Provider is the Service. § 383.3 Royalty fees for public performances of sound recordings and the making of ephemeral recordings.
(a)*Royalty rates.* Royalty rates for the public performance of sound recordings by eligible digital transmissions made over a Service pursuant to 17 U.S.C. 114, and for ephemeral recordings of sound recordings made pursuant to 17 U.S.C. 112 to facilitate such transmissions, are as follows. Each Licensee will pay, with respect to content covered by the License that is provided via the Service of each such Licensee:
(1)For Stand-Alone Contracts, the greater of:
(i)15% of Revenue, or
(ii)The following monthly minimum payment per Subscriber to the Service of such Licensee—
(A)From inception through 2006: $0.0075
(B)2007: $0.0075
(C)2008: $0.0075
(D)2009: $0.0125
(E)2010: $0.0150 and
(2)For Bundled Contracts, the greater of:
(i)15% of Revenue allocated to reflect the objective value of the Licensee's Service, or
(ii)The following monthly minimum payment per Subscriber to the Service of such Licensee:
(A)From inception through 2006: $0.0220
(B)2007: $0.0220
(C)2008: $0.0220
(D)2009: $0.0220
(E)2010: $0.0250
(b)*Minimum fee* . Each Licensee will pay an annual, non-refundable minimum fee of one hundred thousand dollars ($100,000), payable on January 31 of each calendar year in which the Service is provided pursuant to the section 112 and 114 statutory licenses, but payable pursuant to the applicable regulations for all years 2007 and earlier. Such fee shall be recoupable and credited against royalties due in the calendar year in which it is paid. § 383.4 Terms for making payment of royalty fees.
(a)Subject to the provisions of this section, terms governing timing and due dates of royalty payments, late fees, statements of account, audit and verification of royalty payments and distributions, cost of audit and verification, record retention requirements, treatment of Licensees' confidential information, distribution of royalties, unclaimed funds, designation and definition of the collection and distribution organization, and any definitions for applicable terms not defined herein and not otherwise inapplicable shall be those adopted by the Copyright Royalty Judges for subscription transmissions and the reproduction of ephemeral recordings by preexisting satellite digital audio radio services in Docket No. 2006-1 CRB DSTRA (“the SDARS Proceeding”).
(b)Without prejudice to any applicable notice and recordkeeping provisions, statements of account shall not require reports of performances.
(c)If the Copyright Royalty Judges adopt reports of use regulations in the SDARS Proceeding, those regulations, if any, shall govern Licensees' obligations to report sound recordings used pursuant to this part, except that Licensees also shall report to SoundExchange which channels are transmitted by their respective Providers for all past, current and future periods. In the event that the Copyright Royalty Judges do not adopt reports of use regulations in the SDARS Proceeding, then reports of use provided by XM Satellite Radio, Inc. (“XM”) and Sirius Satellite Radio, Inc. (“Sirius”) for their use of sound recordings on their preexisting satellite digital audio radio services (as defined in 17 U.S.C. 114(j)(10)) shall be deemed to satisfy XM's and Sirius' obligations to report sound recordings used pursuant to this part, and MTV Networks shall provide census reporting, retroactive to the inception of its Service. Dated: December 14, 2007. James Scott Sledge, Chief Copyright Royalty Judge. [FR Doc. E7-24734 Filed 12-19-07; 8:45 am] BILLING CODE 1410-72-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 97 [EPA-R05-OAR-2007-0519; FRL-8508-1] Approval of Implementation Plans of Michigan: Clean Air Interstate Rule AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is conditionally approving a revision to the Michigan State Implementation Plan
(SIP)submitted on July 16, 2007. This revision incorporates provisions related to the implementation of EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005, and subsequently revised on April 28, 2006, and December 13, 2006, and the CAIR Federal Implementation Plan (CAIR FIP) concerning sulfur dioxide (SO <sup>2</sup> ), nitrogen oxides (NO <sup>X</sup> ) annual, and NO <sup>X</sup> ozone season emissions for the state of Michigan, promulgated on April 28, 2006, and subsequently revised December 13, 2006. EPA is not making any changes to the CAIR FIP, but is, to the extent EPA approves Michigan's SIP revision, amending the appropriate appendices in the CAIR FIP trading rules simply to note that approval. The SIP revision that EPA is conditionally approving is an abbreviated SIP revision that addresses: The applicability provisions for the NO <sup>X</sup> ozone season trading program under the CAIR FIP and supporting definitions of terms; the methodology to be used to allocate NO <sup>X</sup> annual and ozone season NO <sup>X</sup> allowances under the CAIR FIP and supporting definitions of terms; and provisions for opt-in units under the CAIR FIP. Michigan will be submitting additional SO <sup>2</sup> rules in the future. DATES: This rule is effective *December 20, 2007* . ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2007-0519. All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We recommend that you telephone Douglas Aburano, Environmental Engineer, at
(312)353-6960, before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Douglas Aburano, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,
(312)353-6960, *aburano.douglas@epa.gov* . SUPPLEMENTARY INFORMATION: Table of Contents I. What Action Is EPA Taking? II. Did Anyone Comment on the Proposed Conditional Approval? III. What Are the General Requirements of CAIR and the CAIR FIP? IV. Analysis of Michigan's CAIR SIP Submittal A. Nature of Michigan's Submittal B. Summary of Michigan's Rule C. State Budgets for Allowance Allocations D. CAIR Cap-and-Trade Programs E. Applicability Provisions for Non-EGU NO <sup>X</sup> SIP Call Sources F. NO <sup>X</sup> Allowance Allocations G. Allocation of NO <sup>X</sup> Allowances from the Compliance Supplement Pool H. Individual Opt-in Units I. Conditions for Approval V. Final Action VI. When Is This Action Effective? VII. Statutory and Executive Order Reviews I. What Action Is EPA Taking? CAIR SIP Approval EPA is conditionally approving a revision to Michigan's SIP, submitted on July 16, 2007, that would modify the application of certain provisions of the CAIR FIP concerning NO <sup>X</sup> annual and NO <sup>X</sup> ozone season emissions. (As discussed below, this less comprehensive CAIR SIP is termed an abbreviated SIP.) EPA proposed to conditionally approve Michigan's submittal on September 12, 2007 (72 FR 52038). The CAIR SO <sup>2</sup> FIP will remain in place unaffected. Michigan is subject to the CAIR FIP that implements the CAIR requirements by requiring certain electric generating units
(EGUs)to participate in the EPA-administered federal CAIR SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season cap-and-trade programs. The SIP revision provides a methodology for allocating NO <sup>X</sup> allowances for the NO <sup>X</sup> annual and NO <sup>X</sup> ozone season trading programs. The CAIR FIP provides that this methodology will be used to allocate NO <sup>X</sup> allowances to sources in Michigan, instead of the federal allocation methodology otherwise provided in the FIP. The SIP revision also provides a methodology for allocating the compliance supplement pool
(CSP)in the CAIR NO <sup>X</sup> annual trading program, expands the applicability provisions of the CAIR NO <sup>X</sup> ozone season trading program, and allows for individual units not otherwise subject to the CAIR trading programs to opt into such trading programs. Consistent with the flexibility provided in the FIP, these provisions will also be used to replace or supplement, as appropriate, the corresponding provisions in the CAIR FIP for Michigan. EPA is not making any changes to the CAIR FIP, but is, to the extent EPA approves Michigan's SIP revision, amending the appropriate appendices in the CAIR FIP trading rules to note that approval. EPA is conditionally approving this SIP revision, as opposed to fully or completely approving it, because of several minor deficiencies that Michigan must address. If Michigan has not met the conditions for full approval within one year of the effective date of EPA's conditional approval, this conditional approval will revert to a disapproval, as of the deadline for meeting the conditions, without further action required by EPA. In the event the conditional approval reverts to a disapproval, EPA will publish a notice in the **Federal Register** to inform the public. If Michigan does meet the conditions necessary for a full approval, EPA will publish a **Federal Register** notice finalizing the full approval. II. Did Anyone Comment on the Proposed Conditional Approval? A 30-day comment period ended on October 12, 2007. EPA received only one comment, which supported approving Michigan's submittal. EPA did not receive any adverse comments during the comment period. III. What Are the General Requirements of CAIR and the CAIR FIP? CAIR establishes state-wide emission budgets for SO <sup>2</sup> and NO <sup>X</sup> , and is to be implemented in two phases. The first phase of NO <sup>X</sup> reductions starts in 2009 and continues through 2014, while the first phase of SO <sup>2</sup> reductions starts in 2010 and continues through 2014. The second phase of reductions for both NO <sup>X</sup> and SO <sup>2</sup> starts in 2015 and continues thereafter. CAIR requires states to implement the budgets by either:
(1)Requiring EGUs to participate in the EPA-administered cap-and-trade programs; or,
(2)adopting other control measures of the state's choosing, and demonstrating that such control measures will result in compliance with the applicable state SO <sup>2</sup> and NO <sup>X</sup> budgets. The May 12, 2005, and April 28, 2006, CAIR rules provide model rules that states must adopt (with certain limited changes, if desired) if they want to participate in the EPA-administered trading programs. With two exceptions, only states that choose to meet the requirements of CAIR through methods that exclusively regulate EGUs are allowed to participate in the EPA-administered trading programs. One exception is for states that adopt the opt-in provisions of the model rules to allow non-EGUs individually to opt into the EPA-administered trading programs. The other exception is for states that include all non-EGUs from their NO <sup>X</sup> SIP Call trading programs to include those sources in their CAIR NO <sup>X</sup> ozone season trading programs. IV. Analysis of Michigan's CAIR SIP Submittal A. Nature of Michigan's Submittal On July 16, 2007, Michigan submitted rules and supporting material for addressing CAIR requirements. The Michigan Department of Environmental Quality
(MDEQ)held a public hearing on these proposed rules on April 2, 2007. MDEQ also provided a 30-day comment period that ended on April 2, 2007. B. Summary of Michigan's Rules Part 8 of Michigan Air Pollution Control Rules, entitled “Emission Limitations and Prohibitions—Oxides of Nitrogen,” includes provisions limiting the emissions of NO <sup>X</sup> from stationary sources in Michigan. While Part 8 contains many sections, Michigan submitted only a portion of them to address the CAIR requirements. Specifically, Michigan submitted rules 802a, 803, 821 through 826, and 830 through 834 for federal approval. • Rule 802a, entitled “Adoption by reference,” contains adoption by reference language. Michigan has adopted necessary portions of federal regulations including parts of: EPA's Acid Rain Program (specifically 40 CFR 72.2 and 72.8), Continuous Emission Monitoring Program (the entire 40 CFR part 75), NO <sup>X</sup> Model Rule Compliance (40 CFR 96.54), and the CAIR SO2 and NO <sup>X</sup> FIP rules (specifically 40 CFR 97.2, 97.102, 97.103, 97.104, 97.302, 97.303, 97.304, 97.180 to 97.188, 97.380 to 97.388). • Rule 803, entitled “Definitions,” modifies the existing Michigan definitions section to address the CAIR requirements. In order to incorporate sources affected by the NO <sup>X</sup> SIP Call into the CAIR NO <sup>X</sup> trading program, and also to accommodate Michigan's NO <sup>X</sup> allocation methodology, the state has adopted definitions that did not already exist in the CAIR FIP. • Rule 821, entitled “CAIR NO <sup>X</sup> ozone season and annual trading programs; applicability determinations,” contains applicability criteria. Michigan has incorporated the CAIR applicability from the CAIR FIP, has included the non-EGU sources from the NO <sup>X</sup> SIP Call, and also allows sources of renewable energy and renewable energy projects to receive NO <sup>X</sup> allowances under the state's allocation methodology. Michigan has also included in this section allocation adjustments based on EGU fuel type. • Rule 822, entitled “CAIR NO <sup>X</sup> ozone season trading program; allowance allocation,” establishes the NO <sup>X</sup> budgets for the ozone season control period and establishes the allocation methodology procedures for the ozone season. These provisions describe how Michigan sources under the CAIR FIP, non-EGUs formerly affected by the NO <sup>X</sup> SIP Call, and renewable energy sources will be allocated NO <sup>X</sup> ozone season allowances. • Rule 823, entitled “New EGUs, new non-EGUs, and newly affected EGUs under CAIR NO <sup>X</sup> ozone season trading program; allowance allocations,” establishes the provisions for a set-aside ozone season control period allocation pool for new EGUs, new non-EGUs, and newly affected EGUs (which were not included in the original NO <sup>X</sup> SIP Call program due to geographic location). • Rule 824, entitled “CAIR NO <sup>X</sup> ozone season trading program; hardship set-aside,” establishes the provisions for a hardship set-aside ozone season control period allocation pool to address issues for small ( *i.e.* , employing fewer than 250 people) businesses that can demonstrate that the controls required for this source result in excessive or prohibitive costs for compliance. • Rule 825, entitled “CAIR NO <sup>X</sup> ozone season trading program; renewable set-aside,” establishes the provisions for an ozone season control period allocation pool to be allocated to renewable energy sources or renewable energy projects. • Rule 826, entitled “CAIR NO <sup>X</sup> ozone season trading program; opt-in provisions,” adopts by reference the ozone season control period opt-in provisions under the federal CAIR FIP rules, specifically 40 CFR 97.380 to 97.388. • Rule 830, entitled “CAIR NO <sup>X</sup> annual trading program; allowance allocations,” establishes the NO <sup>X</sup> budgets for the annual control period, and establishes the allocation methodology procedures for the annual control period. • Rule 831, entitled “New EGUs under CAIR NO <sup>X</sup> annual trading program; allowance allocations,” establishes the provisions for a set-aside annual control period allocation pool for new EGUs and the pool allocation methodology. • Rule 832, entitled “CAIR NO <sup>X</sup> annual trading program; hardship set-aside,” establishes the provisions for a set-aside annual control period allocation pool to address issues for small (i.e., employing fewer than 250 people) businesses that can demonstrate that the required controls will result in excessive or prohibitive compliance costs. • Rule 833, entitled “CAIR NO <sup>X</sup> annual trading program; compliance supplement pool,” establishes the provisions for an annual control period compliance supplement pool that provides for allocation for early reduction credit generation for existing sources, and for the newly affected EGUs that were not in the original NO <sup>X</sup> Budget Program that can demonstrate that compliance during the 2009 control period would create an undue risk to the reliability of the electrical supply. • Rule 834, entitled “Opt-in provisions under the CAIR NO <sup>X</sup> annual trading program,” adopts by reference the opt-in provisions for the annual control period under the federal CAIR rules. While Michigan has developed an abbreviated SIP, it differs from most other states because of artifacts from the NO <sup>X</sup> SIP Call. While many states are affected by the NO <sup>X</sup> SIP Call, Michigan is one of only a few states that is not entirely covered under the NO <sup>X</sup> SIP Call, due to a modeling boundary that EPA used in atmospheric modeling of pollution sources and downwind effects. Only those Michigan counties that fall, in their entirety, south of 44° latitude are affected by the NO <sup>X</sup> SIP Call. This is the result of a decision in *Michigan* v. *EPA,* 213 F.3d 663 (D.C. Cir. March 3, 2000) that established 44° (a modeling boundary) as the appropriate northern boundary for the NO <sup>X</sup> SIP Call. EPA describes both the court decision and how it applies to Michigan in a **Federal Register** notice dated April 21, 2004 (69 FR 21604, 21622-21627). Although only a portion of Michigan is affected by the NO <sup>X</sup> SIP Call, the entire state is affected by CAIR. In order to transition from the NO <sup>X</sup> SIP Call trading program to the CAIR ozone season trading program, the Michigan rules include additional definitions and provisions to account for this geographic discrepancy. An additional complication that Michigan has addressed in its rules is that the CAIR requirements for sources of NO <sup>X</sup> begin in 2009. Under the NO <sup>X</sup> SIP Call, Michigan has already issued NO <sup>X</sup> allowances through 2009. Because the 2009 NO <sup>X</sup> SIP Call allowances have already been allocated to the Michigan sources, Michigan included provisions acknowledging the 2009 NO <sup>X</sup> SIP Call allowances and provided that they will be treated as CAIR NO <sup>X</sup> ozone season allowances issued for that year. 2010 will be the first year in which Michigan sources (other than CAIR opt-in units) will be allocated CAIR NO <sup>X</sup> ozone season allowances that were not previously issued as NO <sup>X</sup> SIP Call allowances. C. State Budgets for Allowance Allocations The CAIR NO <sup>X</sup> annual and ozone season budgets were developed from historical heat input data for EGUs. Using these data, EPA calculated annual and ozone season regional heat input values, which were multiplied by 0.15 lb/mmBtu for phase 1, and 0.125 lb/mmBtu for phase 2, to obtain regional NO <sup>X</sup> budgets for 2009-2014 and for 2015 and thereafter, respectively. EPA derived the state NO <sup>X</sup> annual and ozone season budgets from the regional budgets using state heat input data adjusted by fuel factors. The CAIR FIP established the NO <sup>X</sup> budgets for Michigan as 65,304 tons for NO <sup>X</sup> annual emissions for 2009-2014; 54,420 tons for NO <sup>X</sup> annual emissions for 2015 and thereafter; 28,971 tons for NO <sup>X</sup> ozone season emissions for 2009-2014; and 24,142 tons for NO <sup>X</sup> ozone season emissions for 2015 and thereafter. Michigan's SIP revision, which we are conditionally approving in today's action, does not affect these budgets, which are total amounts of allowances available for allocation for each year under the EPA-administered cap-and-trade programs under the CAIR FIP. In short, the abbreviated SIP revision only affects allocations of allowances under the established budgets. D. CAIR Cap-and-Trade Programs The CAIR NO <sup>X</sup> annual and ozone-season FIP largely mirrors the structure of the NO <sup>X</sup> SIP Call model trading rule in 40 CFR part 96, subparts A through I. While the provisions of the NO <sup>X</sup> annual and ozone-season FIP are similar, there are some differences. For example, the NO <sup>X</sup> annual FIP (but not the NO <sup>X</sup> ozone season FIP) provides for a compliance supplement pool (CSP), which is discussed below and under which allowances may be awarded for early reductions of NO <sup>X</sup> annual emissions. As a further example, the NO <sup>X</sup> ozone season FIP reflects the fact that the CAIR NO <sup>X</sup> ozone season trading program replaces the NO <sup>X</sup> SIP Call trading program after the 2008 ozone season and is coordinated with the NO <sup>X</sup> SIP Call program. The NO <sup>X</sup> ozone season FIP provides incentives for early emissions reductions by allowing banked, pre-2009 NO <sup>X</sup> SIP Call allowances to be used for compliance in the CAIR NO <sup>X</sup> ozone-season trading program. In addition, states have the option of continuing to meet their NO <sup>X</sup> SIP Call requirement by participating in the CAIR NO <sup>X</sup> ozone season trading program and including all their NO <sup>X</sup> SIP Call trading sources in that program. EPA used the CAIR model trading rules as the basis for the trading programs in the CAIR FIP. The CAIR FIP trading rules are virtually identical to the CAIR model trading rules, with changes made to account for federal rather than state implementation. The CAIR model SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading rules and the respective CAIR FIP trading rules are designed to work together as integrated SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season trading programs. Michigan is subject to the CAIR FIP for ozone and PM <sup>2.5</sup> , and the CAIR FIP trading programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season apply to sources in Michigan. Consistent with the flexibility it gives to states, the CAIR FIP provides that states may submit abbreviated SIP revisions that will replace or supplement, as appropriate, certain provisions of the CAIR FIP trading programs. Michigan's July 16, 2007, submission is an abbreviated SIP revision. E. Applicability Provisions for Non-EGU NO <sup>X</sup> SIP Call Sources In general, the CAIR FIP trading programs apply to any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990, or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 megawatts of electricity
(MWe)producing electricity for sale. States have the option of bringing in, for the CAIR NO <sup>X</sup> ozone season program only, those units in the state's NO <sup>X</sup> SIP Call trading program that are not EGUs as defined under CAIR. EPA advises states exercising this option to use provisions for applicability that are substantively identical to the provisions in 40 CFR 96.304 and add the applicability provisions in the state's NO <sup>X</sup> SIP Call trading rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in order to include in the CAIR NO <sup>X</sup> ozone season trading program all units required to be in the state's NO <sup>X</sup> SIP Call trading program that are not already included under 40 CFR 96.304. Under this option, the CAIR NO <sup>X</sup> ozone season program must cover all large industrial boilers and combustion turbines, as well as any small EGUs (i.e., units serving a generator with a nameplate capacity of 25 MWe or less), that the state currently requires to be in the NO <sup>X</sup> SIP Call trading program. Consistent with the flexibility given to states in the CAIR FIP, Michigan has chosen to expand the applicability provisions of the CAIR NO <sup>X</sup> ozone season trading program to include all non-EGUs in the state's NO <sup>X</sup> SIP Call trading program. This increases the overall NO <sup>X</sup> ozone season CAIR budget assigned to Michigan by 2,209 allowances. F. NO <sup>X</sup> Allowance Allocations Under the NO <sup>X</sup> allowance allocation methodology in the CAIR model trading rules and in the CAIR FIP, NO <sup>X</sup> annual and ozone season allowances are allocated to units that have operated for five years, based on heat input data from a three-year period that are adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR FIP also provide a new unit set-aside from which units without five years of operation are allocated allowances based on the units' prior year emissions. The CAIR FIP provides states the flexibility to establish a different NO <sup>X</sup> allowance allocation methodology that will be used to allocate allowances to sources in the states if certain requirements are met concerning the timing of submission of units' allocations to the Administrator for recordation and the total amount of allowances allocated for each control period. In adopting alternative NO <sup>X</sup> allowance allocation methodologies, states have flexibility with regard to: 1. The cost to recipients of the allowances, which may be distributed for free or auctioned; 2. The frequency of allocations; 3. The basis for allocating allowances, which may be distributed, for example, based on historical heat input or electric and thermal output; and, 4. The use of allowance set-asides and, if used, their size. Consistent with the flexibility given to states in the CAIR FIP, Michigan has chosen to replace the provisions of the CAIR NO <sup>X</sup> annual FIP concerning the allocation of NO <sup>X</sup> annual allowances with its own methodology. Michigan has chosen to distribute NO <sup>X</sup> annual allowances based upon a heat-input based methodology for existing units, with set-asides for new sources and for existing sources that submit acceptable demonstrations of hardship to MDEQ. Michigan's Rule 830 allocates three years of NO <sup>X</sup> annual allowances at a time to existing sources on a heat input basis. This begins in 2007 for the annual control periods of 2009, 2010 and 2011. By October 31, 2008, Michigan will submit to EPA allocations for the annual control periods of 2012, 2013 and 2014. By October 31, 2011, and, thereafter, each October 31 of every third year, Michigan will submit to EPA allocations for the subsequent three year period. Under Michigan Rule 831, the new source set-aside for new EGUs is 1,000 tons per year for years 2009-2011, and 1,400 tons per year for years 2012 and thereafter. Allowances for the first annual control period under the new source set-aside are allocated based on 70 percent of a unit's projected emissions. After the first annual control period, new EGUs can request allowances equal to (the number of megawatt hours operated during the previous control period divided by 2,000 lb/ton), multiplied by (1.0 lb NO <sup>X</sup> /megawatt hours). Once a unit has five years of operating data, it is no longer considered a “new” unit and will be allocated allowances as an existing source under Rule 830. Michigan Rule 832 establishes a hardship set-aside of 1,200 allowances per year for existing sources. Existing sources with fewer than 250 employees that are able to submit a demonstration to Michigan that the control level required by CAIR will result in excessive or prohibitive compliance costs can request allowances from this set-aside pool. Michigan Rule 833 establishes a compliance supplement pool of 6,491 allowances for existing EGUs and a pool for newly-affected EGUs of 1,856 allowances. For existing EGUs, allowances can be requested if units have made early reductions during calendar year 2007 and 2008. A newly affected EGU can request hardship allowances if it can demonstrate that compliance with CAIR will result in hardship. Consistent with the flexibility given to states in the CAIR FIP, Michigan has chosen to replace the provisions of the CAIR NO <sup>X</sup> ozone season FIP concerning allowance allocations with its own methodology. Michigan has chosen to distribute NO <sup>X</sup> ozone season allowances using a heat input-based methodology for existing units, with set-asides for new sources, renewable energy sources, and existing sources that submit acceptable demonstrations of hardship to MDEQ. Michigan's Rule 822 establishes trading budgets for existing EGUs, new EGUs, newly affected EGUs, existing non-EGUs, renewable sources and hardship set-asides. Rule 822 also provides for allocation of three years of NO <sup>X</sup> ozone season control period allowances at a time to existing EGUs and existing non-EGUs on a heat input basis. This begins in 2007 for the ozone season control periods of 2010 and 2011. By October 31, 2008, Michigan will submit to EPA allocations for the ozone control periods of 2012, 2013 and 2014. By October 31, 2011, and, thereafter, by each October 31 of the year that is three years after the last year of allocation submittal, Michigan will submit the next three years of ozone control period allocations to EPA. Allowances for the 2009 ozone control period are the same as were allocated under the NO <sup>X</sup> SIP Call Budget Trading Program. Rule 823 establishes a set-aside pool for new EGUs, new non-EGUs and newly affected EGUs. Rule 823 also includes the directions for how sources can apply for the allowances in this set-aside. Most EGUs were allocated NO <sup>X</sup> allowances for the 2009 ozone control period under the NO <sup>X</sup> SIP Call. These allowances are now being designated as CAIR NO <sup>X</sup> ozone season allowances issued for the 2009 ozone control period. Newly affected EGUs that were not subject to the NO <sup>X</sup> SIP Call never were allocated 2009 ozone control period allowances under the NO <sup>X</sup> SIP Call, but will need allowances to comply with CAIR in 2009. Therefore, they are being allowed to request allowances from this set-aside. Newly affected sources can request allowances based on their historic heat input. For the first ozone season control period of operation, new EGUs and new non-EGUs can request allowances from this set-aside based on predicted hours of operation. For the four ozone control periods after the first ozone control period of operation, new EGUs may request allowances based on the actual number of megawatt hours of electricity generated during the ozone control period immediately preceding the request. After a new EGU has five ozone control periods of operating data, it is no longer considered a “new” EGU and is allocated ozone control period allowances per the requirements found in Rule 822. Rule 824 creates an annual hardship set-aside pool of 650 allowances beginning in 2010. Both existing EGUs and non-EGUs can request allowances from this pool if the company making the request employs fewer than 250 people and can make a demonstration of financial hardship. The number of allowances a source can request will be based on historical heat input. Rule 825 establishes a set-aside of 200 allowances per year for renewable units. Initially, renewable units can request allowances from this set-aside based on the nameplate capacity of the unit and the predicted hours of operation during the ozone control period. After a renewable unit has been in operation for one ozone control period, the unit can request allowances based on the previous ozone season control period's actual megawatt hours. Renewable units may only request allowances for three consecutive ozone seasons. G. Allocation of NO X Allowances From the Compliance Supplement Pool The CSP provides an incentive for early reductions in NO <sup>X</sup> annual emissions. The CSP consists of 200,000 CAIR NO <sup>X</sup> annual allowances of vintage 2009 for the entire CAIR region, and a state's share of the CSP is based upon the state's share of the projected emission reductions under CAIR. States may distribute CSP allowances, one allowance for each ton of early reduction, to sources that make NO <sup>X</sup> reductions during 2007 or 2008 beyond what is required by any applicable state or federal emission limitation. States also may distribute CSP allowances based upon a demonstration of need for an extension of the 2009 deadline for implementing emission controls. The CAIR NO <sup>X</sup> annual FIP establishes specific methodologies for allocations of CSP allowances. States may choose an allowed, alternative CSP allocation methodology to be used to allocate CSP allowances to sources in those states. Consistent with the flexibility given to states in the FIP, Michigan has chosen to modify the provisions of the CAIR NO <sup>X</sup> annual FIP concerning the allocation of allowances from the CSP. Michigan Rule 833 establishes an annual compliance supplement pool of 6,491 allowances for existing EGUs and an annual pool for newly-affected EGUs of 1,856 allowances. Existing EGUs can request allowances if the units have made early reductions during calendar years 2007 and 2008. Newly affected EGUs can request hardship allowances if a demonstration of hardship can be made. H. Individual Opt-in Units The opt-in provisions allow for certain non-EGUs (i.e., boilers, combustion turbines, and other stationary fossil-fuel-fired devices) that do not meet the applicability criteria for a CAIR trading program to participate voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may opt into one or more of the CAIR trading programs. In order to qualify to opt into a CAIR trading program, a unit must vent all emissions through a stack and be able to meet monitoring, recordkeeping, and reporting requirements of 40 CFR part 75. The owners and operators seeking to opt a unit into a CAIR trading program must apply for a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated allowances, and must meet the same allowance-holding and emissions monitoring and reporting requirements as other units subject to the CAIR trading program. The opt-in provisions provide for two methodologies for allocating allowances for opt-in units, one methodology that applies to opt-in units in general and a second methodology that allocates allowances only to opt-in units that the owners and operators intend to repower before January 1, 2015. States have several options concerning the opt-in provisions. The rules for each of the CAIR FIP trading programs include opt-in provisions that are essentially the same as those in the respective CAIR SIP model rules, except that the CAIR FIP opt-in provisions become effective in a state only if the state's abbreviated SIP revision adopts the opt-in provisions. The state may adopt the opt-in provisions entirely or may adopt them but exclude one of the allowance allocation methodologies. The state also has the option of not adopting any opt-in provisions in the abbreviated SIP revision and thereby providing for the CAIR FIP trading program to be implemented in the state without the ability for units to opt into the program. Consistent with the flexibility given to states in the FIP, Michigan has chosen to allow non-EGUs meeting certain requirements to participate in the CAIR NO <sup>X</sup> annual trading program. Michigan has adopted by reference the FIP language regarding opt-ins. Rule 802a incorporates 40 CFR 97.180 to 97.188 by reference, and Rule 834 makes them applicable to units in the State. Consistent with the flexibility given to states in the FIP, Michigan has chosen to permit non-EGUs meeting certain requirements to participate in the CAIR NO <sup>X</sup> ozone season trading program. Michigan has adopted by reference the FIP language regarding opt-ins. Rule 802a incorporates 40 CFR 97.380 to 97.388 by reference, and Rule 826 makes them applicable to units in the State. I. Conditions for Approval EPA notes that it has identified several minor deficiencies that are necessary to correct in Michigan's rules. These minor deficiencies are as follows: 1. In rule 803(3), Michigan needs to add a definition for “commence operation.” This definition, and the revised definition of “commence commercial operation,” identified below, are necessary to take account of NO <sup>X</sup> SIP Call units brought into the CAIR NO <sup>X</sup> ozone season trading program that do not generate electricity for sale and to ensure that they have appropriate deadlines for certification of monitoring systems under 40 CFR part 97. 2. In rule 803(3)(c), Michigan needs to revise the definition for “commence commercial operation,” as described in Condition 1, above. 3. In rule 803(3)(d)(ii), Michigan needs to revise the definition of “electric generating unit” or “EGU.” EPA interprets Michigan's current rule 803 as properly including in the CAIR NO <sup>X</sup> ozone season trading program all EGUs in Michigan that were subject to the NO <sup>X</sup> SIP Call trading program. Michigan must revise the rule to clarify that all EGUs in Michigan that were subject to the NO <sup>X</sup> SIP Call trading program are included in the CAIR NO <sup>X</sup> ozone season trading program. 4. In rule 823(5)(c), Michigan needs to reference “subrule (1)(a), (b), (c), and (d)” of the rule. While EPA interprets Michigan's current rule as limiting the new unit set-aside allocations to the amount of allowances in the set-aside, Michigan must revise this provision to clarify the mechanism for implementing this limitation on such allocations. These minor deficiencies are described in detail in a July 25, 2007 technical support document in the docket for this rulemaking. By a letter dated August 15, 2007, Michigan committed to making final and effective revisions to its rules by correcting these deficiencies as discussed above by July 20, 2008. Under section 110(k)(4) of the Clean Air Act, EPA may conditionally approve a SIP revision based on a commitment from the state to adopt specific enforceable measures by a date certain that is no more than one year from the date of conditional approval. In this action, we are approving the SIP revision that Michigan has submitted on the condition that the minor deficiencies in the SIP revision are corrected, as discussed above, by the date referenced in Michigan's letter, i.e., by July 20, 2008. If this condition is not met within one year of the effective date of final rulemaking, the conditional approval will automatically revert to a disapproval—as of the deadline for meeting the conditions—without further action from the EPA. EPA will publish a notice in the **Federal Register** informing the public of the disapproval. In the event the conditional approval automatically reverts to a disapproval, the validity of allocations made under the SIP revision (including the treatment of previously allocated 2009 NO <sup>X</sup> SIP Call allowances as 2009 CAIR ozone season allowances) before the date of such reversion to disapproval will not be affected. If Michigan submits final and effective rule revisions correcting the deficiencies, discussed above, within one year from this conditional approval being final and effective, EPA will publish in the **Federal Register** a notice to acknowledge this and to convert the conditional approval to a full approval. V. Final Action EPA is conditionally approving Michigan's abbreviated CAIR SIP revision submitted on July 16, 2007. Michigan is covered by the CAIR FIP, which requires participation in the EPA-administered CAIR FIP cap-and-trade programs for SO <sup>2</sup> , NO <sup>X</sup> annual, and NO <sup>X</sup> ozone season emissions. Under this abbreviated SIP revision, and consistent with the flexibility given to states in the FIP, Michigan adopts provisions for allocating allowances under the CAIR FIP NO <sup>X</sup> annual and ozone season trading programs. In addition, Michigan adopts in the abbreviated SIP revision provisions that establish a methodology for allocating allowances in the CSP, expand the applicability provisions for the CAIR FIP NO <sup>X</sup> ozone season trading program, and allow for individual non-EGUs to opt into the CAIR FIP NO <sup>X</sup> annual and NO <sup>X</sup> ozone season cap-and-trade programs. As provided for in the CAIR FIP, these provisions in the abbreviated SIP revision will replace or supplement the corresponding provisions of the CAIR FIP in Michigan. The abbreviated SIP revision meets the applicable requirements in 40 CFR 51.123(p) and (ee), with regard to NO <sup>X</sup> annual and NO <sup>X</sup> ozone season emissions. EPA is not making any changes to the CAIR FIP, but is, to the extent EPA approves Michigan's SIP revision, amending the appropriate appendices in the CAIR FIP trading rules simply to note that approval. VI. When Is This Action Effective? EPA finds that there is good cause for this approval to become effective on December 20, 2007, because a delayed effective date is unnecessary due to the nature of the approval, which allows the State to make allocations under its CAIR rules. The expedited effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rule actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and section 5 U.S.C. 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” CAIR SIP approvals relieve states and CAIR sources within states from being subject to allowance allocation provisions in the CAIR FIPs that otherwise would apply to them, allowing states to make their own allowance allocations based on their SIP-approved state rule. The relief from these obligations is sufficient reason to allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1). In addition, Michigan's relief from these obligations provides good cause to make this rule effective December 20, 2007, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Where, as here, the final rule relieves obligations rather than imposes obligations, affected parties, such as the State of Michigan and CAIR sources within the State, do not need time to adjust and prepare before the rule takes effect. VII. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and would impose no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action approves pre-existing requirements under state law and would not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it would not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a federal standard and to amend the appropriate appendices in the CAIR FIP trading rules to note that approval. It does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it would approve a state rule implementing a federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule would not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Electric utilities, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. 40 CFR Part 97 Environmental protection, Air pollution control, Electric utilities, Intergovernmental relations, Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide. Dated: December 7, 2007. Bharat Mathur, Acting Regional Administrator, Region 5. 40 CFR parts 52 and 97 are amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart X—Michigan 2. In § 52.1170, the table in paragraph
(c)entitled “EPA—Approved Michigan Regulations” is amended by revising an entry in Part 8 “R 336.1803” and adding entries in Part 8 “R 336.1802a”, “R 336.1821 through R 336.1826”, and “R 336.1830 through 336.1834” to read as follows: § 52.1170 Identification of plan.
(c)* * * EPA-Approved Michigan Regulations Michigan citation Title State effective date EPA approval date Comments * * * * * * * Part 8. Emission Limitations and Prohibitions—Oxides of Nitrogen * * * * * * * R 336.1802a Adoption by reference 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1803 Definitions 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1821 CAIR NO <sup>X</sup> ozone and annual trading programs; applicability determinations 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1822 CAIR NO <sup>X</sup> ozone season trading program; allowance allocations 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1823 New EGUs, new non-EGUs, and newly affected EGUs under CAIR NO <sup>X</sup> ozone season trading program; allowance allocations 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1824 CAIR NO <sup>X</sup> ozone season trading program; hardship set-aside 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1825 CAIR NO <sup>X</sup> ozone season trading program; renewable set-aside 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1826 CAIR NO <sup>X</sup> ozone season trading program; opt-in provisions 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1830 CAIR NO <sup>X</sup> annual trading program; allowance allocations 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1831 New EGUs under CAIR NO <sup>X</sup> annual trading program; allowance allocations 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1832 CAIR NO <sup>X</sup> annual trading program; hardship set-aside 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1833 CAIR NO <sup>X</sup> annual trading program; compliance supplement pool 6/25/07 12/20/07, [Insert page number where the document begins] R 336.1834 Opt-in provisions under the CAIR NO <sup>X</sup> annual trading program 6/25/07 12/20/07, [Insert page number where the document begins] * * * * * * * PART 97—[AMENDED] 3. The authority citation for part 97 continues to read as follows: Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, *et seq.* 4. Appendix A to Subpart EE is amended by adding the entry for “Michigan” in alphabetical order under paragraphs 1. and 2. to read as follows: Appendix A to Subpart EE of Part 97—States With Approved State Implementation Plan Revisions Concerning Allocations 1. * * * Michigan 2. * * * Michigan 5. Appendix A to Subpart II is amended by adding the entry for “Michigan” in alphabetical order under paragraphs 1. and 2. to read as follows: Appendix A to Subpart II of Part 97—States With Approved State Implementation Plan Revisions Concerning CAIR NO <sup>X</sup> Opt-In Units 1. * * * Michigan 2. * * * Michigan 6. Appendix A to Subpart AAAA is amended by adding the entry for “Michigan” in alphabetical order to read as follows: Appendix A to Subpart AAAA of Part 97—States With Approved State Implementation Plan Revisions Concerning Applicability Michigan 7. Appendix A to Subpart EEEE is amended by adding the entry for “Michigan” in alphabetical order to read as follows: Appendix A to Subpart EEEE of Part 97—States With Approved State Implementation Plan Revisions Concerning Allocations Michigan 8. Appendix A to Subpart IIII is amended by adding the entry for “Michigan” in alphabetical order under paragraphs 1. and 2. to read as follows: Appendix A to Subpart IIII of Part 97—States With Approved State Implementation Plan Revisions Concerning CAIR NO <sup>X</sup> Ozone Season Opt-In Units 1. * * * Michigan 2. * * * Michigan [FR Doc. E7-24513 Filed 12-19-07; 8:45 am] BILLING CODE 6560-50-P 72 244 Thursday, December 20, 2007 Proposed Rules DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Parts 544 and 552 [Docket ID OTS-2007-0025] RIN 1550-ACOO Federal Savings Association Bylaws; Integrity of Directors; Withdrawal of Proposed Rule AGENCY: Office of Thrift Supervision, Treasury. ACTION: Proposed rule; withdrawal. SUMMARY: The Office of Thrift Supervision
(OTS)is withdrawing the proposed rule. The proposed rule would have amended OTS's regulations concerning corporate governance to permit federally chartered savings associations and mutual holding companies (collectively, federal savings associations) to adopt a preapproved bylaw that would have precluded certain persons from serving on the adopting federal savings association's board of directors, and from nominating others to so serve. In addition, the proposed preapproved bylaw would have precluded any entity owned or controlled by a prohibited person from nominating anyone to serve on the adopting federal savings association's board of directors. 1 1 OTS proposed amending regulations governing bylaws of federal stock and federal mutual savings associations. However, OTS's regulations governing mutual holding companies incorporate the bylaw provisions of federal stock and federal mutual savings associations. DATES: The amendments to 12 CFR 544.5 and 552.5 proposed in the **Federal Register** on February 14, 2006, at 71 FR 7695, are withdrawn as of December 20, 2007. FOR FURTHER INFORMATION CONTACT: Aaron B. Kahn, Assistant Chief Counsel, Business Transactions Division,
(202)906-6263; or Donald W. Dwyer, Director, Applications, Examinations and Supervision-Operations,
(202)906-6414, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: I. Background In 2001 OTS adopted a regulation that provided for preapproved optional bylaws for federally chartered savings associations. OTS simultaneously promulgated an optional preapproved bylaw providing integrity standards for directors of such associations. On February 14, 2006, OTS published a proposed rule, which, if adopted, would have amended the rules governing the permissible bylaws for federal savings associations to permit a federal savings association to adopt an optional bylaw precluding persons who, among other things, have ever been subject to certain cease and desist orders entered by any of the banking agencies from serving on the adopting federal savings association's board of directors. In addition, under the optional bylaw provision, persons precluded from serving as a director could have been prohibited from nominating others to serve as a director, and entities controlled by a ineligible person could have similarly been precluded from nominating directors. 2 2 71 FR 7695 (Feb. 14, 2006). OTS received ten comments on the proposed rule. Eight comments favored the proposal and/or sought to extend the restrictions included in the proposed optional bylaw. Two comments objected to the proposal. After reviewing the public comments, as well as other relevant considerations, OTS has concluded that the proposed rule should be withdrawn. Withdrawal of the Proposed Rule In light of the foregoing, OTS withdraws its proposal published in the **Federal Register** on February 14, 2006 at 71 FR 7695. Dated: December 14, 2007. By the Office of Thrift Supervision. John M. Reich, Director. [FR Doc. E7-24743 Filed 12-19-07; 8:45 am] BILLING CODE 6720-01-P SMALL BUSINESS ADMINISTRATION 13 CFR Part 120 RIN 3245-AE14 SBA Lender Oversight Program AGENCY: U.S. Small Business Administration. ACTION: Extension of comment period. SUMMARY: On October 31, 2007, SBA published a proposed rule seeking comments on its proposal which would incorporate SBA's risk-based lender oversight program into SBA regulations. SBA is extending the comment period an additional 60 days from December 31, 2007 to February 29, 2008. The proposed rule is generating a significant level of interest. Given the scope of the proposal and the nature of the issues raised by the comments received to date, SBA believes the affected parties would find it beneficial to have more time to review the proposal and prepare their comments. DATES: The comment period for the SBA Lender Oversight Program Notice and Request for Comments published October 31, 2007 (72 FR 61752) is extended through February 29, 2008. ADDRESSES: You may submit comments, identified by RIN number 3245-AE14 by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • Mail: Bryan Hooper, Director for Office of Credit Risk Management, U.S. Small Business Administration, 409 3rd Street, SW., 8th floor, Washington, DC 20416. • Hand Delivery/Courier: Bryan Hooper, Director for Office of Credit Risk Management, U.S. Small Business Administration, 409 3rd Street, SW., 8th Floor, Washington, DC 20416. All comments will be posted on *www.Regulations.gov.* If you wish to include within your comment, confidential business information
(CBI)as defined in the Privacy and Use Notice/User Notice at *www.Regulations.gov* and you do not want that information disclosed, you must submit the comment by either Mail or Hand Delivery and you must address the comment to the attention of Linda Rusche, Supervisory Financial Analyst, Office of Credit Risk Management. In the submission, you must highlight the information that you consider is CBI and explain why you believe this information should be held confidential. SBA will make a final determination, in its sole discretion, of whether the information is CBI and, therefore, will not be published. FOR FURTHER INFORMATION CONTACT: Linda Rusche, Supervisory Financial Analyst, at
(816)426-4860, or Bryan Hooper, Director, Office of Credit Risk Management,
(202)205-3049. Authority: 15 U.S.C. 634. Dated: December 11, 2007. Eric R. Zarnikow, Associate Administrator for the Office of Capital Access. [FR Doc. E7-24381 Filed 12-19-07; 8:45 am] BILLING CODE 8025-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE275; Notice No. 23-07-04-SC] Special Conditions: Aviation Technology Group, Inc., Javelin Model 100; High Altitude Operations AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This action proposes special conditions for the Aviation Technology Group, Inc., Javelin Model 100 airplane. This airplane will have a novel or unusual design feature(s) associated with high altitude operations. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: We must receive your comments by January 22, 2008. ADDRESSES: Mail two copies of your comments to: Federal Aviation Administration, Regional Counsel, ACE-7, 901 Locust, Room 506, Kansas City, Missouri 64106. You may deliver two copies to the Small Airplane Directorate at the above address. Mark your comments: Docket No. CE275. You may inspect comments in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Leslie B. Taylor, Regulations & Policy Branch, ACE-111, Federal Aviation Administration, Small Airplane Directorate, Aircraft Certification Service, 901 Locust, Kansas City, MO 64106; telephone
(816)329-4134; facsimile
(816)329-4090, e-mail at *leslie.b.taylor@faa.gov* . SUPPLEMENTARY INFORMATION: Comments Invited We invite interested parties to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. You may inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Background On February 15, 2005, Aviation Technology Group (ATG), 8001 S. InterPort Blvd., Englewood, CO 80112 applied for a type certificate for their new Javelin Model 100 airplane. The Javelin Model 100 is a two-seat, pressurized, retractable-gear, composite airplane with two turbofan engines mounted in the aft fuselage. The Aviation Technology Group, Inc.
(ATG)Javelin Model 100 will be certificated for operations at a maximum altitude of 45,000 feet. This unusually high operating altitude constitutes a novel or unusual design feature for which the applicable airworthiness regulations do not contain adequate or appropriate safety standards. Therefore, it is necessary to develop special conditions that provide the level of safety equivalent to that established by the regulations. ATG indicated they will fully comply with Special Conditions for a., Pressure Vessel Integrity; b., Ventilation; and c., Air Conditioning. However, ATG is unable to fully comply with Special Conditions d. Pressurization and e. Oxygen equipment and supply. As a result from these discussions, the Special Conditions d. and e. were revised to include an alternate means or compensating features that require the use of an oxygen system and emergency descent procedures that addresses a rapid decompression event. Discussion The 14 CFR part 23 certification basis for the ATG Javelin Model 100 is part 23, Amendment 23-55. The FAA issues high altitude special conditions for airplanes when the certificated altitude exceeds human physiological limits. Crack growth could result in rapid depressurization to cabin altitudes that exceed human physiological limits. Damage tolerance methods are proposed to be used to assure pressure vessel integrity while operating at the higher altitudes. Crack growth data is used to prescribe an inspection program, which will detect cracks before an opening in the pressure vessel would allow rapid depressurization. Initial crack sizes for detection are determined under § 23.571, Amendment 23-55. The cabin altitude after permissible crack growth may not exceed specified limits. To ensure that there is adequate fresh air for crewmembers to perform their duties, to provide reasonable passenger comfort, and to enable occupants to better withstand the effects of decompression at high altitudes, the ventilation system must be designed to provide 10 cubic feet of fresh air per minute per person during normal operations. Therefore, these special conditions require that crewmembers and passengers be provided with 10 cubic feet of fresh air per minute per person. In addition, during the development of the supersonic transport special conditions, it was noted that certain pressurization failures resulted in hot ram or bleed air being used to maintain pressurization. Air conditioning special conditions are required because such a measure can lead to cabin temperatures that exceed human tolerance limits following probable and improbable failures. Continuous flow passenger oxygen equipment is certificated for use up to 40,000 feet; however, for rapid decompressions above 34,000 feet, reverse diffusion leads to low oxygen partial pressures in the lungs, to the extent that a small percentage of passengers may lose useful consciousness at 35,000 feet. The percentage increases to an estimated 60 percent at 40,000 feet, even with the use of the continuous flow system. To prevent permanent physiological damage, the cabin altitude must not exceed 25,000 feet for more than 2 minutes, or 40,000 feet for any time period. The maximum peak cabin altitude of 40,000 feet is consistent with the standards established for previous certification programs. Decompression above 37,000 feet can result in cabin altitudes that approach the physiological limits of the average person; therefore, every effort must be made to provide the pilot with adequate oxygen equipment to withstand these severe decompressions. Reducing the time interval between pressurization failure and the time the pilot receives oxygen will provide a safety margin against being incapacitated and can be accomplished by the use of mask-mounted regulators. The proposed special condition, therefore, requires pressure demand masks with mask-mounted regulators for the flight crew. This combination of equipment will provide the best practical protection for the failures covered by the proposed special conditions and for improbable failures not covered by the special conditions, provided the cabin altitude is limited. Type Certification Basis Under 14 CFR part 21, § 21.17, Aviation Technology Group, Inc. must show that the Javelin Model 100 meets the applicable provisions of part 23, as amended by Amendments 23-1 through 23-55 thereto. If the Administrator finds that the applicable airworthiness regulations in part 23 do not contain adequate or appropriate safety standards for the Javelin Model 100 because of a novel or unusual design feature, special conditions are prescribed under § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Javelin Model 100 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.” The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under § 21.17(a)(2). Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101. Novel or Unusual Design Features The Javelin Model 100 will incorporate the following novel or unusual design features: Part 23 did not envision operation at the service ceiling requested for this airplane. The methods used to ensure pressure vessel integrity and to provide ventilation, air conditioning, pressurization, and supplemental oxygen will be unique due to that operating altitude. Applicability As discussed above, these special conditions are applicable to the Javelin Model 100. Should Aviation Technology Group, Inc., apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101. Conclusion This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19. The Proposed Special Conditions Accordingly, the Federal Aviation Administration
(FAA)proposes the following special conditions as part of the type certification basis for Aviation Technology Group, Inc., Javelin Model 100 airplanes. a. *Pressure Vessel Integrity* . 1. The maximum extent of failure and pressure vessel opening that can be demonstrated to comply with paragraph d (Pressurization) of this special condition must be determined. It must be demonstrated by crack propagation and damage tolerance analysis supported by testing that a larger opening or a more severe failure than demonstrated will not occur in normal operations. 2. Inspection schedules and procedures must be established to ensure that cracks and normal fuselage leak rates will not deteriorate to the extent that an unsafe condition could exist during normal operation. b. *Ventilation* . In lieu of the requirements of § 23.831(b), the ventilation system must be designed to provide a sufficient amount of uncontaminated air to enable the crewmembers to perform their duties without undue discomfort or fatigue, and to provide reasonable passenger comfort during normal operating conditions and also in the event of any probable failure of any system which could adversely affect the cabin ventilating air. For normal operations, crewmembers and passengers must be provided with at least 10 cubic feet of fresh air per minute per person, or the equivalent in filtered, recirculated air based on the volume and composition at the corresponding cabin pressure altitude of not more than 8,000 feet. c. *Air Conditioning* . In addition to the requirements of § 23.831, paragraphs (b), the cabin cooling system must be designed to meet the following conditions during flight above 15,000 feet mean sea level (MSL): 1. After any probable failure, the cabin temperature-time history may not exceed the values shown in Figure 1. (Please see Advisory Circular
(AC)23.1309-1C, pages 10 and 16.) 2. After any improbable failure, the cabin temperature-time history may not exceed the values shown in Figure 2. (Please see AC 23.1309-1C, pages 9 and 16.) d. *Pressurization:* In addition to the requirements of § 23.841, the following revised Special Condition was designed to limit high altitude exposure by slowing down the depressurization event and to mitigate or eliminate acute affects of dangerously low atmospheric pressure on flight crew and passengers. 1. For the purposes of this special condition, the pressurization system includes bleed air, air conditioning, and pressure control systems. The pressurization system must prevent the cabin altitude from exceeding the cabin altitude-time history shown in Figure 3 after each of the following:
(a)Any probable malfunction or failure of the pressurization system. The existence of undetected, latent malfunctions or failures in conjunction with probable failures must be considered.
(b)Any single failure in the pressurization system combined with the occurrence of a leak produced by a complete loss of a door seal element, or a fuselage leak through an opening having an effective area 2.0 times the effective area, which produces the maximum permissible fuselage leak rate approved for normal operation, whichever produces a more severe leak. Note: The ATG Javelin Model 100 proposes to use a mechanical canopy seal that is not subject to complete loss of the door seal element. ATG must still show compliance by analysis and/or test a fuselage leak through an opening having an effective area 2.0 times the effective area that produces the maximum permissible fuselage leak rate approved for normal operation. 2. The cabin altitude-time history may not exceed that shown in Figure 4 after each of the following:
(a)The maximum pressure vessel opening resulting from an initially detectable crack propagating for a period encompassing four normal inspection intervals. Mid-panel cracks and cracks through skin-stringer and skin-frame combinations must be considered.
(b)The pressure vessel opening or duct failure resulting from probable damage (failure effect) while under maximum operating cabin pressure differential due to a tire burst, engine rotor burst, loss of antennas or stall warning vanes, or any probable equipment failure (bleed air, pressure control, air conditioning, electrical source(s), etc.) that affects pressurization. 3. Complete loss of thrust from all engines. In showing compliance with paragraphs d.1 and d.2 of these special conditions (Pressurization), it may be assumed that an emergency descent is made by an approved emergency procedure. A 5-second crew recognition and reaction time must be applied between cabin altitude warning and the initiation of an emergency descent. The additional Special Conditions below show full compliance to paragraphs d.1. and d.2. and are applicable to both aircraft models. Special Conditions that are aircraft model specific will be noted as Mk-10 or Mk-20. 4. A decompression event is considered to be a rapid decompression event; therefore, the following requirements must be met: The airplane design must include an auto descent feature. The AFM must contain specific instructions for its use, including considerations for air traffic conditions, terrain awareness, annunciation, and accessibility to the control(s) for automatic initiation of the descent sequence by each occupant. Note: For the flight evaluation of the rapid descent, the test article must have the cabin volume representative of what is expected to be normal, such that ATG must reduce the total cabin volume by that which would be occupied by the furnishings and total number of people. 5. ATG must provide flight crew and crewmember training requirements, including physiological training that covers—
(a)Pressure or reverse cycle breathing,
(b)Rapid decompression training,
(c)Physical condition with respect to the hazards of high altitude rapid decompression, and
(d)Recognition of decompression sickness symptoms and the need for medical treatment. 6. The oxygen system must be compatible with paragraph e, Oxygen Equipment and Supply Special Conditions.
(a)Mk-10: The flight crew and passenger(s) are required to use oxygen masks for all operating altitudes above 25,000 feet.
(b)Mk-20: The flight crew and crewmember are required to use oxygen masks for all operating altitudes above 10,000 feet. 7. ATG will show a means of guarding or de-activating the automatic “auto emergency descent” mode control in the forward or aft cockpit to prevent inadvertent descent mode activation. Appropriate placards will be required for each control device. 8. ATG will show a means of guarding or de-activating the in-flight jettison canopy control, canopy fracturing system, or any other safety critical control device in the forward or aft cockpit to prevent inadvertent activation. Appropriate placards will be required for each control device. 9. Cabin pressure loss must be annunciated as a warning. (See Equivalent Level of Safety Findings for Cabin Pressurization.) 10. The AFM will include:
(a)Mk-10: Require a passenger briefing concerning items 4 through 9 above and the following:
(i)Seat belts.
(ii)Emergency exit.
(iii)Use of quick-donning oxygen mask system with a pressure-demand as described in paragraph e2, Oxygen Equipment and Supply.
(b)Mk-20: Required flight crew and crewmember briefing concerning items 4 through 10(a) above.
(i)The flight crew is the pilot and crewmember, which means a person assigned to perform duty in an aircraft during flight time. The Mk-20 poses safety concerns for a typical passenger since additional training beyond the pre-flight briefing may be required to use the emergency egress system (i.e., ejection seat). Each occupant of the Mk-20 will be considered as a flight crew or crewmember and be required to complete the minimum requisite training in paragraph d5 before flying on the airplane. e. *Oxygen equipment and supply* . After several follow-on FAA/ATG discussions, the FAA Position Stage 3 for the Mk-10/Mk-20 Special Conditions e.1 and e.2 were revised to include quick-donning pressure-demand oxygen mask or an alternate helmet mounted oxygen mask for both occupants that complies with TSO-C89 requirements up to 45,000 feet. Furthermore, Special Condition e.3 was revised to allow a common oxygen source with a larger capacity as an alternate means or compensating feature. 1. In addition to the requirements of § 23.1441(d), the following applies: A quick-donning oxygen mask system with a pressure-demand, mask mounted regulator that complies with TSO-C89 requirements up to 45,000 feet must be provided for the flight crew. It must be shown that each quick-donning mask can, with one hand and within 5 seconds, be placed on the face from its ready position, properly secured, sealed, and supplying oxygen upon demand. Alternately, a helmet mounted oxygen mask, panel mounted regulator that complies with TSO-C89 requirements up to 45,000 feet may be provided to the flight crew. 2. In addition to the requirements of § 23.1443, the following applies: A quick-donning oxygen mask system with a pressure-demand, mask mounted regulator that complies with TSO-C89 requirements up to 45,000 feet must be provided for the passenger or crewmember. Alternately, a helmet mounted oxygen mask, panel mounted regulator that complies with TSO-C89 requirements up to 45,000 feet may be provided to the passenger. 3. In addition to the requirements of § 23.1445, the following applies: If the flight crew and passenger/crewmember share a common source of oxygen, a means to separately reserve the minimum supply required by the flight crew must be provided. Alternately, if the oxygen system can provide the minimum required for the flight crew as well as all other occupants, the system can have a common source. BILLING CODE 4910-13-P EP20DE07.008 EP20DE07.009 EP20DE07.010 EP20DE07.011 Issued in Kansas City, Missouri on December 12, 2007. James E. Jackson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. 07-6129 Filed 12-19-07; 8:45 am]
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Traces to 52 documents
U.S. Code
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68 references not yet in our index
  • 7 CFR 301
  • 7 USC 7701-7772
  • 7 CFR 2.22
  • Pub. L. 106-113
  • Pub. L. 106-224
  • 114 Stat. 400
  • 10 CFR 19
  • 12 CFR 203
  • 12 USC 2801-2810
  • 12 CFR 584
  • 12 CFR 584.2
  • 12 CFR 584.4
  • Pub. L. 106-102
  • 113 Stat. 338
  • Pub. L. 106-569
  • 114 Stat. 3032
  • 12 CFR 516.170
  • 12 CFR 584.2-2
  • 12 CFR 563.555
  • 12 CFR 575.11(a)
  • 12 CFR 575.10(a)(6)
  • 12 CFR 516
  • 18 CFR 35
  • 22 CFR 22
  • Pub. L. 103-236
  • Pub. L. 107-173
  • Pub. L. 103-317
  • Pub. L. 105-277
  • Pub. L. 108-447
  • 118 Stat. 2809
  • 22 CFR 62
  • 22 USC 1431-1442
  • Pub. L. 104-208
  • Pub. L. 107-56
  • 115 Stat. 354
  • 116 Stat. 543
  • 33 CFR 117
  • 33 CFR 165
  • 5 USC 601-612
  • Pub. L. 104-121
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U.S.C.§ 1421
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U.S.C.§ 2801
U.S.C.§ 2808
U.S.C.§ 553
U.S.C.§ 1467a
U.S.C.§ 1843
C.F.R.§ 211.602
U.S.C.§ 3507
F. App'x213 F.3d 663
Cite7 CFR 301
Cite7 USC 7701-7772
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