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Code · REGISTER · 2007-12-21 · Environmental Protection Agency (EPA) · Proposed Rules

Proposed Rules. Final rule

45,482 words·~207 min read·/register/2007/12/21/07-6173

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

BILLING CODE 4830-01-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51 and 52 [EPA-HQ-OAR-2001-0004; FRL-8508-4] RIN-2060-AN88 Prevention of Significant Deterioration and Nonattainment New Source Review: Reasonable Possibility in Recordkeeping AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This rule finalizes proposed revisions to the regulations governing the major new source review
(NSR)programs mandated by parts C and D of title I of the Clean Air Act (CAA). These changes clarify the “reasonable possibility” recordkeeping and reporting standard of the 2002 NSR reform rules. The “reasonable possibility” standard identifies for sources and reviewing authorities the criteria under which an owner or operator of a major stationary source undergoing a physical change or change in the method of operation that does not trigger major NSR permitting requirements must keep records. The standard also specifies the recordkeeping and reporting requirements on such sources. As noted in the proposal, the U.S. Court of Appeals for the DC Circuit in *New York* v. *EPA,* 413 F.3d 3 (DC Cir. 2005) ( *New York* ) remanded for the EPA either to provide an acceptable explanation for its “reasonable possibility” standard or to devise an appropriately supported alternative. To satisfy the Court's remand, the EPA is clarifying what constitutes “reasonable possibility” and when the “reasonable possibility” recordkeeping requirements apply. DATES: This final rule is effective on January 22, 2008. ADDRESSES: *Docket.* The EPA has established a docket for this action under Docket ID No. [EPA-HQ-OAR-2001-0004]. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *e.g.* , Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Air and Radiation Docket and Information Center telephone number is
(202)566-1742. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The Public Reading Room is located in the EPA Headquarters Library, Room Number 3334 in the EPA West Building, located at 1301 Constitution Ave., NW., Washington, DC. The telephone number for the Public Reading Room is
(202)566-1744. Visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor materials will be processed through an X-ray machine as well. Visitors will be provided a badge that must be visible at all times. FOR FURTHER INFORMATION CONTACT: Ms. Lisa Sutton, Air Quality Policy Division, Office of Air Quality Planning and Standards (C504-03), Environmental Protection Agency, Research Triangle Park, NC 27711, *telephone number:*
(919)541-3450; *fax number:*
(919)541-5509, e-mail address: *sutton.lisa@epa.gov.* SUPPLEMENTARY INFORMATION: The information presented in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. Where can I obtain additional information? II. Background and History of the Reasonable Possibility Standard III. Summary of the Final Rule IV. Legal and Policy Rationale for Action A. Purpose of the Reasonable Possibility Standard B. How Our Final Rule Differs From Proposal C. Why Recordkeeping Trigger Is at 50 Percent of NSR Significant Levels D. Fugitive Emissions and Emissions Due to Startup and Malfunction E. Additional Methods Supporting Compliance V. Effective Date of This Rule and Requirements for State Implementation Plans VI. Statutory and Executive Order Reviews A. Executive Order 12866—Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132—Federalism F. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898—Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act VII. Judicial Review VIII. Statutory Authority I. General Information A. Does this action apply to me? Entities affected by this final rule include major stationary sources in all industry groups. 1 The majority of sources potentially affected are expected to be in the following groups: 1 As noted in our proposal (72 FR 10449), the “reasonable possibility” standard does not apply to existing minor sources or to “synthetic minor modifications.” Industry group SIC a NAICS b Electric Services 491 221111, 221112, 221113, 221119, 221121, 221122. Petroleum Refining 291 324110. Industrial Inorganic Chemicals 281 325181, 325120, 325131, 325182, 211112, 325998, 331311, 325188. Industrial Organic Chemicals 286 325110, 325132, 325192, 325188, 325193, 325120, 325199. Miscellaneous Chemical Products 289 325520, 325920, 325910, 325182, 325510. Natural Gas Liquids 132 211112. Natural Gas Transport 492 486210, 221210. Pulp and Paper Mills 261 322110, 322121, 322122, 322130. Paper Mills 262 322121, 322122. Automobile Manufacturing 371 336111, 336112, 336211, 336992, 336322, 336312, 336330, 336340, 336350, 336399, 336212, 336213. Pharmaceuticals 283 325411, 325412, 325413, 325414. a Standard Industrial Classification. b North American Industry Classification System. Entities affected by the rule also include States, local permitting authorities, and Indian country. B. Where can I obtain additional information? In addition to being available in the docket, an electronic copy of this preamble and final amendments will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this notice will be posted on the EPA's NSR Web site, under Regulations & Standards, at *http://www.epa.gov/nsr* . II. Background and History of the Reasonable Possibility Standard We recognized that the long-standing major NSR applicability test based on “actual-to-potential” methodology was the subject of claims by industry representatives that the actual-to-potential methodology resulted in “confiscation” of unused plant capacity following a modification project. Accordingly, in a proposal in 1996, we proposed to allow non-utility units to use an actual-to-future-actual methodology, similar to what we had already extended to electric utility steam generating units (other than new units or the replacement of existing units) in the 1992 WEPCO rule. 61 FR at 38255. Some States commented that the accuracy of applicability determinations for major NSR was compromised by the potential for error in calculations of future actual projections. As a result, in 1998, we issued a supplemental proposal requesting comment on an actual-to-future-enforceable-actual methodology. To use this test, a source would be required to accept a permit limit equal to its future actual projection. 63 FR 39857. That proposal received many negative comments, particularly from States that were concerned about increases in resource burdens and in paperwork related to creating and enforcing the future actual emissions limit. In the 2002 NSR reform rules (67 FR 80186, December 31, 2002), we promulgated an actual-to-projected-actual methodology for major NSR applicability determinations. 2 That rule further provides that if a source calculates its projected actual emissions for the project below major NSR significant levels, the source must comply with recordkeeping and, in some cases, reporting requirements, if there is a “reasonable possibility” that the project would result in a significant emissions increase. We included these requirements to respond to concerns that a source's projection could erroneously understate emissions and that the project could result in an emissions increase greater than the significant levels. Our goal for developing the “reasonable possibility” standard was to strike a balance between, on the one hand, States' concerns with possible calculation errors in applicability determinations and, on the other hand, sources' and States' concerns about resource burdens. 2 Under the actual-to-projected-actual methodology, a source may opt to use potential to emit as its projected actual emissions. See, *e.g.* , 40 CFR 52.21(b)(41)(ii)( *d* ). Specifically, we promulgated the “reasonable possibility” standard to apply “* * * in circumstances where there is a reasonable possibility that a project that is not part of a major modification may result in a significant emissions increase * * *” ( *e.g.* , 40 CFR 52.21(r)(6)). 3 We did not define the term “reasonable possibility” or identify the criteria under which a “reasonable possibility” would arise. Sources whose project resulted in a reasonable possibility of a significant emissions increase were required to keep pre-change and post-change records. Pre-change records include a description of the project, identification of units that could be affected, a description of the applicability test used, and netting calculations (if applicable). For purposes of pre-change recordkeeping, the description of the applicability test addresses baseline actual emissions, projected actual emissions, and emissions excluded (such as due to demand growth) with an explanation as to why they are excluded. (See, *e.g.* , 40 CFR 52.21(r)(6)(i).) The post-change recordkeeping requirement—actually a recordkeeping and monitoring requirement—entailed monitoring emissions of those regulated NSR pollutants for which there was a reasonable possibility of a significant emissions increase and calculating and maintaining records of the annual emissions for 5 (or 10) years. (See, *e.g.* , 40 CFR 52.21(r)(6)(iii).) Further, for certain cases, sources whose project resulted in a reasonable possibility of a significant emissions increase were required to submit pre-change and/or post-change reports to the reviewing authority. The reporting requirements applied depending on whether the unit was an electric utility steam generating unit and on whether the project's annual emissions exceeded the baseline by a significant amount. (See, *e.g.* , 40 CFR 52.21(r)(6)(ii), (iv), and (v).) 3 For example, we required that owners/operators record the netting calculations for a project if the owners/operators used emissions reductions elsewhere at the source to conclude that the project was not a major modification. 67 FR at 80197. In the *New York* case, the Court held, “[b]ecause EPA has failed to explain how it can ensure NSR compliance without the relevant data, we will remand for it either to provide an acceptable explanation for its “reasonable possibility” standard or to devise an appropriately supportive alternative.” 413 F.3d at 35-36. This final action addresses the Court's remand by including regulatory changes that clarify the reasonable possibility standard and specify the criteria under which records must be kept for a physical change or change in the method of operation that does not trigger major NSR permitting requirements. (For purposes of this action, we refer to the physical or operational change interchangeably as a change or a project.) Two options were proposed in the March 8, 2007 proposal (45 FR 10445, March 8, 2007). These options include the “percentage increase trigger” and the “potential emissions trigger.” Based on our 4 evaluation and consideration of comments received on the two main options proposed for clarifying the “reasonable possibility” standard, we are finalizing the “percentage increase trigger” option with refinements to address concerns raised by commenters. 4 In this rulemaking, the terms “we,” “us,” and “our” refer to the EPA and the terms “you” and “your” refer to the owners or operators of major stationary sources of air pollution. Other background information for this action is included in the notice of proposed rulemaking (72 FR 10445, March 8, 2007), and this notice assumes familiarity with that information. III. Summary of the Final Rule This rule finalizes the “percentage increase trigger” option, with a few changes from what we proposed as our preferred option. Under the proposed “percentage increase trigger” option, there was a reasonable possibility that your change would result in a significant emissions increase if the projected increase in emissions of a pollutant—determined by comparing baseline actual emissions to projected actual emissions—equaled or exceeded 50 percent of the applicable NSR significant level for that pollutant. The proposed rule imposed recordkeeping, emissions monitoring, and reporting requirements on any source projecting that a change could result in a reasonable possibility of a significant emissions increase. By definition in our regulations, “projected actual emissions” excludes emissions attributable to an independent factor 5 (such as demand growth); see, *e.g.* , 40 CFR 52.21(b)(41). Likewise, in our proposal, we excluded emissions attributable to independent factors from the projected increase in emissions to which the “reasonable possibility” recordkeeping trigger applied. In this final action, based on the comments received, we are requiring that emissions attributable to independent factors (such as demand growth) be considered for purposes of the “percentage increase” test. We are retaining the proposed approach, which requires sources to compare baseline actual emissions to projected actual emissions to determine whether this value equals or exceeds 50 percent of the applicable NSR significant level. The final rule requires these sources to comply with both the pre-change and the post-change recordkeeping and reporting requirements, as in the proposed rule. This final rule includes the additional requirement that sources whose projected actual emissions increase is less than 50 percent of the applicable NSR significant level must determine whether emissions attributable to demand growth that is unrelated to the change would cause the post-project emissions increase to exceed 50 percent of the applicable NSR significant level. If so, then under the final rule, these sources also have a reasonable possibility of causing a significant emissions increase, but under these circumstances, the final rule requires such sources to comply with only the pre-change recordkeeping requirements and not the pre-change reporting requirements or post-change recordkeeping and reporting requirements. 5 Use of the term “projected actual emissions” in this preamble has the same meaning for both major NSR applicability and the “reasonable possibility” recordkeeping and reporting requirements. At the same time that we proposed the 50-percent “percentage increase trigger” option, we included that approach as an interim interpretation in appendix S of 40 CFR part 51. In this final rule, we are amending appendix S to include the additional requirement concerning independent factors (such as demand growth) described earlier in this section. IV. Legal and Policy Rationale for Action A. Purpose of the Reasonable Possibility Standard From the standpoint of compliance, project-related records allow permitting authorities and enforcement officials to evaluate a source's claim that any emissions increase from a project does not trigger NSR. If ease of enforcement were our only consideration, it would point us toward the most inclusive of recordkeeping and reporting requirements. Nonetheless, agencies do not invariably require the regulated community to keep records to prove the nonapplicability of a requirement. In imposing recordkeeping requirements in this case, we strove for a balance between ease of enforcement and avoidance of requirements that would be unnecessary or unduly burdensome on reviewing authorities or the regulated community. Initially, in promulgating the “reasonable possibility” standard, we intended to limit recordkeeping requirements to those projects for which variability in calculating emissions creates an interest in obtaining additional information in order to confirm that the appropriate applicability outcome is reached. Nonetheless, the Court expressed concerns with the lack of definition for the standard and with the uncertainty that accompanies particular elements of the calculations, including demand growth and fugitive emissions, as well as startups and malfunctions. The regulated community expressed concern that the lack of a bright-line test left them uncertain about their recordkeeping and reporting obligations. As a result, our proposal in response to the Court's remand in *New York* included a bright-line, 50-percent test for the “reasonable possibility” standard. We stated that the closer the projected actual emissions are to the significant level, the greater the likelihood that the project could ultimately result in a significant emissions increase, and that the bright-line test will capture most if not all projects that have a higher probability of variability and/or error in projected actual emissions. Thus, we proposed the bright-line test to create certainty for the regulated community and reviewing authorities. B. How Our Final Rule Differs From Proposal We are finalizing the “percentage increase trigger” option with one difference from the proposed option. This final rule requires consideration of “demand growth” emissions and additionally requires pre-change recordkeeping (specified, *e.g.* , at 40 CFR 52.21(r)(6)(i)) of a project whose emissions increase would equal or exceed 50 percent of the applicable NSR significant level only if emissions due to independent factors (such as demand growth) are included. As proposed, under the “percentage increase” test, “reasonable possibility” recordkeeping and reporting requirements are triggered in the case of a 50 percent or greater increase in emissions, calculated as the difference of “baseline actual emissions” and “projected actual emissions.” Under our NSR regulations, the calculation of “projected actual emissions” excludes “that portion of the unit's emissions following the project that an existing unit could have accommodated during the consecutive 24-month period used to establish the baseline actual emissions * * * and that are also unrelated to the particular project, including any increased utilization due to product demand growth.* * *” See, *e.g.* , 40 CFR 52.21(b)(41). This exclusion is commonly called the “demand growth exclusion.” The Court, in its order on remand of the reasonable possibility provision to EPA, specifically cited as a problem the possibility that sources would overstate the demand growth exclusion: [T]he intricacies of the actual-to-projected-actual methodology will aggravate the enforcement difficulties stemming from the absence of data. The methodology mandates that projections include fugitive emissions, malfunctions, and start-up costs, and *exclude demand growth unrelated to the change* .* * * Each such determination requires sources to predict uncertain future events. By understating projections for emissions associated with malfunctions, for example, or *overstating the demand growth exclusion,* sources could conclude that a significant emissions increase was not reasonably possible. Without paper trails, however, enforcement authorities have no means of discovering whether the exercise of such judgment was indeed “reasonable.” 413 F.3d at 35 (emphasis added). Following our proposal to treat 50 percent of the applicable NSR significant level as the trigger for “reasonable possibility” recordkeeping and reporting requirements, we received numerous comments expressing continued concerns about “demand growth” emissions. These commenters argued that a source's inaccurate or improper use of the demand growth exclusion could allow projects to go unreviewed under the proposed rule trigger. We have decided to refine the “percentage increase” test by providing for recordkeeping to document projections of an emissions increase that would exceed the 50-percent threshold if emissions attributable to independent factors (such as demand growth) are counted. Thus, this final rule requires sources to include emissions from demand growth for purposes of applying the “percentage increase” test. Several commenters specifically recommended this approach. Some commenters suggested applying the trigger at 100 percent of the significant level where demand growth is concerned. However, we believe that such an approach would complicate the regulatory requirements by applying two different percentages depending on the circumstances. For ease of implementation, we are applying the same trigger—50 percent of the significant level—that applies to sources not relying on excluding emissions caused by independent factors. A project that triggers “reasonable possibility” recordkeeping and reporting requirements but does so only when counting emissions due to an independent factor (such as demand growth) will be subject to only pre-change recordkeeping requirements. The project will not be subject to pre-change reporting requirements or post-change recordkeeping or reporting requirements. According to the “reasonable possibility” standard of our existing rules, the source owner/operator must make a pre-change report prior to construction if the unit is an electric utility steam generating unit. (See, *e.g.* , 40 CFR 52.21(r)(6)(ii).) Under this final rule, however, the pre-change reporting requirement does not apply to the utility project unless the projected actual emissions increase alone equals or exceeds 50 percent of the NSR significant levels. We believe this pre-change recordkeeping requirement establishes an adequate paper trail to allow enforcement authorities to evaluate the source's claims concerning what amount of an emissions increase is related to the project and what amount is attributable to demand growth. In most cases, it is unlikely that “demand growth” emissions could ultimately be found to be related to changes made at a facility. Accordingly, NSR applicability is not affected by whether a source overestimates or underestimates demand growth emissions. Nonetheless, we recognize that for some limited types of projects, additional information may be required to determine whether a projected emissions increase is related to the change. The source must retain pre-change records that describe the project, identify the units that could be affected, describe the baseline actual emissions, the projected actual emissions, and the emissions excluded due to demand growth with an explanation as to why they were excluded. These records provide permitting authorities and enforcement officials sufficient information to determine whether the type of project undertaken could have a causal link to increases in emissions due to demand growth. With these records, enforcement authorities will have an adequate starting point to make further inquiries and to access other types of records, as discussed later in this preamble, to verify post-project demand growth and enforce NSR requirements. In imposing a recordkeeping requirement on projects that attribute any emissions to demand growth, we believe our “percentage increase test” further addresses the Court's concerns that a source might overstate the demand growth exclusion but not retain records to support its exclusion of emissions attributable to demand growth. The rule imposes pre-change recordkeeping requirements on projects that have a higher probability of variability and/or error in projected actual emissions. This approach balances ease of enforcement with avoidance of requirements that would be unnecessary or unduly burdensome on reviewing authorities or the regulated community. Because sources that rely on the demand growth exclusion already conduct the necessary calculations to determine whether the project would trigger major NSR requirements, requiring the source to retain this calculation adds little additional burden. The following example illustrates the difference between the “percentage increase trigger” as proposed and as finalized with the refinement for demand growth. Consider an owner/operator who calculates a post-project emissions increase of 60 tpy for a pollutant with a 40-tpy significant level. The owner/operator attributes 10 tons of the increase to the project and the other 50 tons to demand growth. The owner/operator correctly concludes that the project is not a “major modification” that triggers major NSR requirements because the emissions increase of 10 tpy is below the significant level for the pollutant. Under our proposal, the project would not have triggered any recordkeeping or reporting requirements because the projected increase of 10 tpy is below 50 percent of the applicable significant level of 40 tpy (i.e., below the 20-tpy threshold level that triggers “reasonable possibility” recordkeeping and reporting requirements). In contrast, under this final rule, the source must take the additional step of determining whether the project has a reasonable possibility of a significant emissions increase before subtracting the 50 tpy of emissions attributed to demand growth. Because 60 tpy exceeds the 20-tpy threshold level (and even though the owner/operator attributes only 10 tons of the increase to the project), the project would trigger pre-change recordkeeping requirements as described earlier in this section. The project would not trigger pre-change reporting or post-change recordkeeping (which includes emissions monitoring) or reporting. C. Why Recordkeeping Trigger Is at 50 Percent of NSR Significant Levels Our final rule (like our proposal) uses 50 percent of the applicable NSR significant level as the trigger for “reasonable possibility” recordkeeping and reporting requirements, but we solicited comment on use of a different percentage, such as 25, 33, 66 or 75 percent. Commenters who supported the “percentage increase trigger” option expressed support for a trigger of not less than 50 percent. We are using 50 percent because it balances competing interests, as described by the Court. Specifically, the Court stated: We recognize that less burdensome requirements may well be appropriate for sources with little likelihood of triggering NSR. * * * 413 F.3d at 34. Agencies have authority under circumstances such as these to establish a bright-line test, as opposed to making case-by-case determinations. See, *e.g.* , *Time Warner Entertainment Co. L.P.* v. *F.C.C.,* 240 F.3d 1126, 1141 (DC Cir. 2001). We believe a bright-line test at 50 percent will capture projects that have a higher probability of variability and/or error in projected emissions. Projects with projected increases below the 50-percent threshold, especially when emissions from demand growth are included in projections, are, we believe, sufficiently small that any variability or error in calculations is less likely to be large enough for the change to have increased emissions to the significant level. This view seems to be consistent with comments submitted by the group of States that successfully challenged the “reasonable possibility” rule. 6 Other commenters included general objections to the 50-percent threshold but did not give specific examples of projects for which sources would project emissions increases of less than 50 percent of the significant level but which would nevertheless be likely to cause emissions increases above the significant level. For projects with a projected increase of more than 50 percent of the significant level, the increase is large enough that we conclude there is a reasonable possibility of a significant emissions increase, due to variability in emissions and the possibility of error in the projection. As a result, for these projects, we do not believe the imposition of “reasonable possibility” recordkeeping and reporting requirements to be unnecessarily burdensome. The project-specific records and reports created pursuant to this rule (see, *e.g.* , 40 CFR 52.21(r)(6)) will provide an adequate paper trail for reviewing authorities and will be supplemented with records that are kept for other purposes for use by a reviewing agency in determining whether enforcement action is warranted. 6 See comment letter from Hon. Andrew M. Cuomo, New York Attorney General, *et al.,* at Docket Item EPA-HQ-OAR-2001-0004-0810.1, page 9, footnote 2. Some commenters expressed concern that a threshold at 50 percent of NSR significant levels would capture too many small projects, including routine maintenance projects. The “reasonable possibility” standard applies when a major source undergoes a physical change or change in the method of operation. We point out that in defining “major modification,” the major NSR regulations specify that a “physical change or change in the method of operation” excludes routine maintenance, repair, and replacement, certain uses of alternative fuel or raw material, certain increases in hours of operation or production rate, changes in ownership, and certain activities associated with clean coal technology. (See, *e.g.* , 40 CFR 52.21(b)(2).) Thus, a project that is not a “physical change or change in the method of operation” is not subject to “reasonable possibility” recordkeeping and reporting requirements. D. Fugitive Emissions and Emissions Due to Startup and Malfunction Under the actual-to-projected-actual methodology of the major NSR applicability test, projected actual emissions include fugitive emissions as well as emissions anticipated to be caused by startups and malfunctions. One of the concerns expressed by the Court in remanding the “reasonable possibility” standard was that sources may underestimate future emissions by understating fugitive, startup, or malfunction emissions. We do not believe projections of fugitive, startup, or malfunction emissions are likely to be significant causes of variability or error that would lead to underestimates of emissions increases from existing units. 7 The types of emissions at issue are included in the project's baseline actual emissions, and we have no reason to expect greater amounts of these types of emissions in the post-project projections. Thus, any variability or error in estimating these types of emissions is not likely to lead to underestimates of emissions increases due to the project. Indeed, because the types of the projects at issue are often small improvements—that is, they are relatively small physical or operational changes, many of which would make nonroutine repairs or other types of improvements or make the source operations run more smoothly—such projects would, if anything, reduce these types of emissions from the amounts included in the baseline. 7 We are not concerned about fugitive, startup, or malfunction emissions from new units at a project, because their emissions increases are based on potential to emit. E. Additional Methods Supporting Compliance We believe that the reasons described earlier are sufficient to support the 50-percent bright-line test, with the demand growth refinement. In addition, we believe that as a practical matter, existing records will aid in permitting and enforcement. For projects that do not trigger recordkeeping and reporting requirements under the “reasonable possibility” standard, many source owners/operators will have various types of records that, collectively, provide information on the baseline actual emissions and projected actual emissions, as well as post-change emissions. These records will also be valuable for projects that trigger the “reasonable possibility” recordkeeping and reporting requirements but are not required to track post-change emissions. Such records include but are not limited to reports submitted to reviewing authorities pursuant to title V operating permit program requirements of 40 CFR parts 70 and 71, State minor NSR permit application data, business records, and emissions inventory data. In the *New York* case, the Court questioned whether reporting requirements of the CAA's title V program would provide the information enforcement authorities need, noting, “EPA fails to explain how emissions reported under title V can be traced to a particular physical or operational change.” 413 F.3d at 35. We recognize the Court's concern that records kept in connection with monitoring and compliance under the title V operating permit program do not necessarily provide specific information on emissions increases from particular projects. Even so, many of these records will be useful in allowing enforcement authorities to identify an emissions increase from a particular piece of equipment, which can provide a starting point for inquiry as to whether a particular project was associated with such an increase. The enforcement authority could determine whether the source has kept records of changes that caused those emissions increases and, if not, whether the source has an adequate explanation for the emissions increases. Sources annually quantify and report emissions to reviewing authorities for purposes of computing annual permit program emission fees. Some sources calculate their reported emissions based on stack testing and emission factors. Other sources submit emissions data collected from continuous emissions monitoring (CEM). This information, in conjunction with title V permit applications, can allow enforcement authorities to determine whether emissions increases are associated with a particular piece of equipment. In addition, major sources are subject to periodic monitoring and recordkeeping requirements for every individual applicable requirement in the source's operating permit. *See* 71 FR 75422. These requirements frequently apply on an emissions-unit-by-emissions-unit basis. In many cases, physical changes or changes in the method of operation associated with a project occur at the emission unit level, so that these emissions records provide enforcement authorities a starting point for further inquiry as to whether a project at that unit is associated with such increase. Large emissions equipment is also subject to additional monitoring and recordkeeping under the “compliance assurance monitoring”
(CAM)regulations at 40 CFR part 64. The CAM rule requires sources to establish monitoring or recordkeeping sufficient to assure compliance on a pollutant-specific basis at each emissions unit for which there is a limit, standard, or similar pollution control requirement. Monitoring assures proper operation of active pollution control devices in order to reduce the amount of downtime which would cause emissions increases. Typically, parameters are monitored that show proper operation of the control device, and if these parameters fall outside acceptable ranges or limits, then it is possible that there has been an emissions increase. In certain cases, CEMS (continuous emission monitoring systems), COMS (continuous opacity monitoring systems), PM CEMS (particulate matter continuous emission monitoring systems), or similar direct monitoring, is required to be used for CAM. In many such cases, these devices would be providing direct evidence of emissions increases. Monitoring compliance data includes logs of operations, visible emissions and instrumental opacity readings, stack test reports, analytically generated mass balances, and strip charts from continuous direct emissions and parametric monitors. These records can also allow enforcement authorities to identify an emissions increase at a particular piece of equipment, which provides a starting point for further inquiry about projects associated with that equipment. 8 8 Major stationary sources are also subject to State reporting requirements. In addition to data collected from sources for purposes of title V permit program emission fees, as noted earlier, States may also collect emissions data from sources for local ambient air quality planning purposes. Regarding State minor source programs, the Court also expressed concern: * * *[R]eliance on state programs to establish minimum recordkeeping and reporting standards means that states unwilling to impose stricter rules are free to retain the 2002 rule's approach. * * * 413 F.3d at 35. While we recognize the Court's concern that States have latitude in structuring their minor source review programs, we recently collected information confirming that, as a practical matter, existing State minor NSR programs already provide data that assist reviewing authorities and enforcement authorities in identifying major modifications. Specifically, CAA 110(a)(2)(C) requires States to regulate construction and modification of stationary sources. Accordingly, States have adopted programs that require the owner/operator to provide notification or obtain a permit before construction or modification. These steps allow reviewing authorities to confirm the source's preconstruction projections and non-major NSR applicability determination. Minor NSR programs by definition apply to emissions increases less than the major NSR significant level, and only activities that a State qualifies as “insignificant activities” under the SIP-approved program may be excluded from review. Thus, reviewing authorities have an opportunity to review virtually all projects causing an emissions increase before construction begins. Moreover, our regulations (40 CFR 51.161) provide for public review of information submitted by owners/operators for purposes of minor NSR review. Thus, information provided for purposes of minor NSR programs is also of value in determining applicability of major NSR. In October 2004, the EPA published an Information Collection Request
(ICR)covering changes to the major NSR regulations. Our ICR analysis resulted in an estimate of 25,000 minor NSR permit applications per year processed by State and local agencies at major sources (specifically, 74,609 applications over a 3-year period). 9 These permit applications include descriptions of the projects and other data that enforcement authorities can use in evaluating the applicability of NSR. 9 See Supporting Statement for Information Collection Request, EPA ICR Number 1230.17, at Docket Item EPA-HQ-OAR-2004-0001-0835, p. 14. Business records include such routinely maintained operation-related records as production records, capital project development and appropriation requests, work orders, purchase records, and sales records. This information is readily available to reviewing authorities. In addition, publicly available information on production levels and growth in various industrial sectors can be used by authorities to determine if unexplained actual emissions increases are occurring at a source that might have constructed, installed, or modified equipment without NSR review. Sources report the earlier-described title V data and State minor source permit data to the States, and, in turn, States must submit certain emissions data to the EPA. All information that the source submits to the State is available to assist EPA enforcement authorities, regardless of whether the information is included in the State's data submittal to EPA. States submit emissions inventory data directly to the EPA through the EPA's Central Data Exchange. 10 Under the Consolidated Emissions Reporting Rule
(CERR)(at 40 CFR part 51, subpart A), States must report criteria pollutant emissions from large point sources every year and must report emissions for all point sources, at the process level, at 3-year intervals. 10 The EPA's Central Data Exchange ( *http://www.epa.gov/cdx/* ) is the point of entry on the Environmental Information Exchange Network for environmental data submissions to the Agency. States develop emissions inventories in support of their State Implementation Plans
(SIPs)and submit the data to the EPA through the Governor or his/her designee. The EPA interprets CAA 110(a)(2)(F) as requiring SIPs to provide for the reporting of criteria air pollutant emissions from stationary sources for all areas under the general SIP requirements of section 110. In addition, EPA interprets section 172(c)(3) as providing the Administrator with discretionary authority to require other emissions data from stationary sources as deemed necessary for SIP development in nonattainment areas to attain the National Ambient Air Quality Standards (NAAQS). Another source of data is the National Emissions Inventory (NEI). Produced by the EPA every 3 years, the NEI is an inventory of criteria air pollutant and hazardous air pollutant emissions from stationary sources. The EPA uses data submitted by States under the CERR (as well as data from other sources) to develop the NEI. The NEI has several applications, including support for trends analyses and national rulemakings. Enforcement authorities can use all of these earlier-described information sources to examine whether emissions from particular sources and, in some cases, particular pieces of equipment have increased. Such increases could give an enforcement authority a starting point for further inquiry. Upon inquiring, the enforcement authority could determine whether the source has kept records of changes that caused those emissions increases, and if not, whether the source has an adequate explanation for the emissions increases. V. Effective Date of This Rule and Requirements for State Implementation Plans These changes will take effect in the Federal PSD and Federal nonattainment NSR programs on January 22, 2008. This means we will apply these rules in any area without a SIP-approved PSD or SIP-approved nonattainment NSR program for which we are the reviewing authority or for which we have delegated our authority to issue permits to a State, local, or tribal reviewing authority. We are establishing these requirements as minimum program elements of the PSD and nonattainment NSR programs. Notwithstanding these requirements, it may not be necessary for a State or local authority to revise its SIP program to begin to implement these changes. 11 11 Currently, there are no tribal permitting agencies with an approved TIP to implement the major NSR permitting program. Some State or local authorities may be able to adopt these changes through a change in interpretation of the term “reasonable possibility” without the need to revise the SIP. For any State or local authority that can implement the changes without revising its approved SIP, the changes will become effective when the reviewing authority publicly announces that it accepts these changes by interpretation. In the case of NSR SIP revisions that include the term “reasonable possibility” but that EPA has not yet approved, we will approve the SIP revision if the State or local authority commits to implementing the “reasonable possibility” standard in a manner consistent with our final rule. Although no SIP revision may be necessary in certain areas that adopt these changes by interpretation, we encourage State and local authorities in such areas to revise their SIPs to adopt these changes, in order to enhance the clarity of the existing rules. For State and local authorities that revise their SIPs to adopt these changes, the changes are not effective in such areas until we approve the SIP revision. These State and local authorities must submit revisions to SIPs to EPA for approval within 3 years. State and local authorities may adopt or maintain NSR program elements that have the effect of making their regulations more stringent than these rules. Several State and local authorities have regulations already approved into their SIPs that are more stringent than these rules. These State and local authorities must submit notice to EPA within 3 years to acknowledge that their regulations fulfill these requirements. VI. Statutory and Executive Order Reviews A. Executive Order 12866—Regulatory Planning and Review Under Executive Order
(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it raises policy issues arising from the President's priorities. Accordingly, the EPA submitted this action to the Office of Management and Budget
(OMB)for review under Executive Order 12866 and any changes made in response to OMB's recommendations have been documented in the docket for this action. B. Paperwork Reduction Act This action does not impose any new information collection burden as the burden imposed by this rule has already been taken into account in previously approved information collection requirement actions under the NSR program. The OMB has previously approved the information collection requirements contained in the existing 40 CFR parts 51 and 52 regulations under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* , and has assigned OMB control number 2060-0003, EPA ICR number 1230.19. A copy of the OMB-approved Information Collection Request (ICR), EPA ICR number 1230.19 may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Avenue, NW., Washington, DC 20460 or by calling
(202)566-1672. It is necessary that certain records and reports be collected by a State or local agency (or the EPA Administrator in non-delegated areas), for example, to:
(1)Confirm the compliance status of stationary sources, including identifying any stationary sources subject/not subject to the rule, and
(2)ensure that the stationary source control requirements are being achieved. The information is then used by the EPA or State enforcement personnel to ensure that the subject sources are applying the appropriate control technology and that the control requirements are being properly operated and maintained on a continuous basis. Based on the reported information, the State, local, or tribal agency can decide which plants, records, or processes should be inspected. Such information collection requirements for sources and States are currently reflected in the approved ICR referenced above for the NSR program. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information; processing and maintaining information; disclosing and providing information; adjusting the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statue unless the Agency certifies that this action will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this action on small entities, a small entity is defined as:
(1)A small business that is a small industrial entity as defined in the U.S. Small Business Administration
(SBA)size standards (see 13 CFR 121.201);
(2)a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or
(3)a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. After considering the economic impacts of this action on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action will not impose any requirements on small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation as to why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. The EPA has determined that this action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA because this action merely provides explanation of an existing recordkeeping and reporting standard. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. E. Executive Order 13132—Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action merely provides explanation of an existing recordkeeping and reporting standard. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 13175, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This action does not have tribal implications, as there are no tribal authorities currently issuing major NSR permits. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045—Protection of Children From Environmental Health Risks and Safety Risks Executive Order 13045, entitled “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866; and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action does not establish an environmental standard intended to mitigate health or safety risks but rather provides explanation of an existing recordkeeping and reporting standard. H. Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This action does not constitute a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it will not likely have a significant adverse effect on the supply, distribution, or use of energy. I. National Technology Transfer and Advancement Act As noted in the proposed rule, section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Executive Order 12898—Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, any disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA has determined that this action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations. The reason for EPA's determination is because this action does not affect the level of protection provided to human health or the environment as it merely provides an explanation of an existing recordkeeping and reporting standard. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action does not constitute a “major rule” as defined by 5 U.S.C. 804(2). Therefore, this action will be effective January 22, 2008. VII. Judicial Review Under section 307(b)(1) of the Act, judicial review of this final action is available by filing of a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by February 19, 2008. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Under section 307(b)(2) of the Act, the requirements of this final action may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements. VIII. Statutory Authority The statutory authority for this action is provided by sections 307(d)(7)(B), 101, 111, 114, 116, and 301 of the CAA as amended (42 U.S.C. 7401, 7411, 7414, 7416, and 7601). This action is also subject to section 307(d) of the CAA (42 U.S.C. 7407(d)). List of Subjects 40 CFR Part 51 Environmental protection, Administrative practice and procedure, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Transportation, Volatile organic compounds. List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: December 14, 2007. Stephen L. Johnson, Administrator. For reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as set forth below. PART 51—[AMENDED] 1. The authority citation for part 51 continues to read as follows: Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q. Subpart I—[Amended] 2. Section 51.165 is amended by revising paragraph (a)(6) introductory text and adding paragraph (a)(6)(vi) to read as follows: § 51.165 Permit requirements.
(a)* * *
(6)Each plan shall provide that, except as otherwise provided in paragraph (a)(6)(vi) of this section, the following specific provisions apply with respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (a)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (a)(1)(xxviii)(B)( *1* ) through ( *3* ) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (a)(6)(i) through
(vi)of this section.
(vi)A “reasonable possibility” under paragraph (a)(6) of this section occurs when the owner or operator calculates the project to result in either:
(A)A projected actual emissions increase of at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (a)(1)(xxvii) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or
(B)A projected actual emissions increase that, added to the amount of emissions excluded under paragraph (a)(1)(xxviii)(B)( *3* ), sums to at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (a)(1)(xxvii) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph (a)(6)(vi)(B) of this section, and not also within the meaning of paragraph (a)(6)(vi)(A) of this section, then provisions (a)(6)(ii) through
(v)do not apply to the project. 3. Section 51.166 is amended by revising paragraph (r)(6) introductory text and adding paragraph (r)(6)(vi) to read as follows: § 51.166 Prevention of significant deterioration of air quality.
(r)* * *
(6)Each plan shall provide that, except as otherwise provided in paragraph (r)(6)(vi) of this section, the following specific provisions apply with respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (r)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (b)(40)(ii)( *a* ) through ( *c* ) of this section for calculating projected actual emissions. Deviations from these provisions will be approved only if the State specifically demonstrates that the submitted provisions are more stringent than or at least as stringent in all respects as the corresponding provisions in paragraphs (r)(6)(i) through
(vi)of this section.
(vi)A “reasonable possibility” under paragraph (r)(6) of this section occurs when the owner or operator calculates the project to result in either: ( *a* ) A projected actual emissions increase of at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (b)(39) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or ( *b* ) A projected actual emissions increase that, added to the amount of emissions excluded under paragraph (b)(40)(ii)( *c* ), sums to at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (b)(39) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph (r)(6)(vi)( *b* ) of this section, and not also within the meaning of paragraph (a)(6)(vi)( *a* ) of this section, then provisions (a)(6)(ii) through
(v)do not apply to the project. 4. Appendix S to Part 51 is amended by revising paragraph IV.J introductory text and adding paragraph IV.J.6 to read as follows: Appendix S to Part 51—Emission Offset Interpretative Ruling IV. * * * J. *Provisions for projected actual emissions.* Except as otherwise provided in paragraph IV.J.6(ii) of this Ruling, the provisions of this paragraph IV.J apply with respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph IV.J.6 of this Ruling, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs II.A.24(ii)(a) through
(c)of this Ruling for calculating projected actual emissions. 6. A “reasonable possibility” under paragraph IV.J of this Ruling occurs when the owner or operator calculates the project to result in either:
(i)A projected actual emissions increase of at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph II.A.23 of this Ruling (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or
(ii)A projected actual emissions increase that, added to the amount of emissions excluded under paragraph II.A.24(ii)( *c* ), sums to at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph II.A.23 of this Ruling (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph IV.J.6(ii) of this Ruling, and not also within the meaning of paragraph IV.J.6(i) of this Ruling, then provisions IV.J.2 through IV.J.5 do not apply to the project. PART 52—[AMENDED] 5. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart A—[Amended] 6. Section 52.21 is amended by revising paragraph (r)(6) introductory text and adding paragraph (r)(6)(vi) to read as follows: § 52.21 Prevention of significant deterioration of air quality.
(r)* * *
(6)Except as otherwise provided in paragraph (r)(6)(vi)( *b* ) of this section, the provisions of this paragraph (r)(6) apply with respect to any regulated NSR pollutant emitted from projects at existing emissions units at a major stationary source (other than projects at a source with a PAL) in circumstances where there is a reasonable possibility, within the meaning of paragraph (r)(6)(vi) of this section, that a project that is not a part of a major modification may result in a significant emissions increase of such pollutant, and the owner or operator elects to use the method specified in paragraphs (b)(41)(ii)( *a* ) through ( *c* ) of this section for calculating projected actual emissions.
(vi)A “reasonable possibility” under paragraph (r)(6) of this section occurs when the owner or operator calculates the project to result in either: ( *a* ) A projected actual emissions increase of at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (b)(40) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant; or ( *b* ) A projected actual emissions increase that, added to the amount of emissions excluded under paragraph (b)(41)(ii)( *c* ) of this section, sums to at least 50 percent of the amount that is a “significant emissions increase,” as defined under paragraph (b)(40) of this section (without reference to the amount that is a significant net emissions increase), for the regulated NSR pollutant. For a project for which a reasonable possibility occurs only within the meaning of paragraph (r)(6)(vi)( *b* ) of this section, and not also within the meaning of paragraph (r)(6)(vi)( *a* ) of this section, then provisions (r)(6)(ii) through
(v)do not apply to the project. [FR Doc. E7-24714 Filed 12-20-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2006-0928; FRL-8509-4] Approval and Promulgation of Air Quality Implementation Plan; South Dakota; Revisions to New Source Review Rules AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving revisions to Chapter 74:36:09 of the South Dakota Administrative Rules (Prevention of Significant Deterioration) for incorporation into the South Dakota State Implementation Plan (SIP). South Dakota adopted these rule revisions on August 29, 2006 and May 14, 2007, and submitted the requests for approval to EPA on September 1, 2006 and June 28, 2007. One rule provision that EPA had proposed to disapprove has been corrected by South Dakota. Therefore, EPA is also approving that provision. South Dakota was granted delegation of authority by EPA on July 6, 1994, to implement and enforce the federal Prevention of Significant Deterioration
(PSD)permitting regulations. As part of this final rule EPA is rescinding South Dakota's delegation of authority for implementing the federal PSD regulations. This action is being taken under section 110 of the Clean Air Act (CAA). DATES: *Effective Date:* This final rule is effective January 22, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2006-0928. All documents in the docket are listed on the *www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the Air and Radiation Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Cindy Cody, Air and Radiation Program, U.S. Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129,
(303)312-6228, *cody.cynthia@epa.gov.* SUPPLEMENTARY INFORMATION: Definitions For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i)The words or initials *Act* or *CAA* mean or refer to the Clean Air Act, unless the context indicates otherwise.
(ii)The words *EPA, we, us* or *our* mean or refer to the United States Environmental Protection Agency.
(iii)The initials *SIP* mean or refer to State Implementation Plan.
(iv)The words *State* or *South Dakota* mean the State of South Dakota, unless the context indicates otherwise. Table of Contents I. What is being addressed in this document? II. What are the changes that EPA is approving? III. What were the comments received and EPA's response? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What is being addressed in this document? Chapter 74:36:09 was submitted to EPA for inclusion in the State Implementation Plan
(SIP)by the South Dakota Department of Environment and Natural Resources
(DENR)on September 1, 2006. Chapter 74:36:09 relates to the Prevention of Significant Deterioration
(PSD)permit program of the State of South Dakota. Revisions to Chapter 74:36:09 were adopted by the South Dakota Board Interim Rules Committee on August 29, 2006. EPA proposed on February 1, 2007 (72 FR 4671) to partially approve and partially disapprove Chapter 74:36:09 (Prevention of Significant Deterioration) of the Administrative Rules of South Dakota under section 110 of the CAA. 1 Comments were received on our February 2007 proposal (see discussion in section III. below). Subsequent to the public comment period, South Dakota revised 74:36:09:02, adopted May 14, 2007, to address EPA's concern (see Section II) and submitted the revised provision to EPA on June 28, 2007. After considering the comments received, EPA is finalizing its approval of Chapter 74:36:09, including the now-corrected provision that EPA had proposed to disapprove. EPA is also rescinding its delegation to South Dakota of the federal PSD regulations. 1 Our proposal notice discusses EPA's December 31, 2002 NSR Reform rules and the provisions that have subsequently been clarified, and vacated and remanded by the courts. II. What are the changes that EPA is approving? EPA is approving a revision to South Dakota's SIP that incorporates by reference the federal PSD requirements, found at 40 CFR 52.21, into the State's SIP. The revision to the South Dakota Administrative Rules Chapter 74:36:09 incorporates by reference the provisions of 40 CFR 52.21, as they exist on July 1, 2005, with the exceptions noted below. South Dakota did not incorporate by reference those sections of the federal rules that do not apply to State activities or are reserved for the Administrator of the EPA. These sections are 40 CFR 52.21(a)(1) (plan disapproval), 52.21(q) (public participation), 52.21(s) (environmental impact statements), 52.21(t) (disputed permit or redesignations), and 52.21(u) (delegation of authority). South Dakota did not incorporate by reference provisions for Clean Units and Pollution Control Project (PCPs). These provisions were vacated by a June 24, 2005, ruling by the United States Court of Appeals for the District of Columbia Circuit. References to Clean Units and PCPs were removed by EPA from Federal regulation on June 13, 2007 (see 72 FR 32526). In addition, South Dakota did not incorporate by reference the provisions for equipment replacement (40 CFR 52.21(cc)), which were stayed indefinitely by a court order on December 24, 2003, and subsequently vacated. *See, New York* v. *EPA,* 443 F.3d 880 (D.C. Cir. 2006). Therefore, the following federal provisions found in 40 CFR 52.21 are not incorporated by reference in Chapter 74:36:09: 40 CFR 52.21(x), 52.21(y), 52.21(z), 52.21(cc), 52.21(a)(2)(iv)(e), the second sentence of 52.21(a)(2)(iv)(f), 52.21(a)(2)(vi), 52.21(b)(2)(iii)(h), 52.21(b)(3)(iii)(b), 52.21(b)(3)(vi)(d), 52.21(b)(32), 52.21(b)(42), (b)(55), (b)(56), (b)(57), (b)(58), and the phrase “other than projects at a Clean Unit or at a source with a PAL” in 40 CFR 52.21(r)(6). The phrase “reasonable possibility” used in the federal rule at 40 CFR 52.21(r)(6) limits the recordkeeping provisions to modifications at facilities that use the actual-to-future-actual methodology to calculate emissions changes and that may have a “reasonable possibility” of a significant emissions increase. The South Dakota rule does incorporate by reference the phrase “reasonable possibility” as it is used at 40 CFR 52.21(r)(6). On March 8, 2007, EPA published a proposed rule in response to the D.C. Circuit Court's remand of the recordkeeping provisions of EPA's 2002 NSR Reform Rules (see 72 FR 10445), but EPA has not yet made a final decision with regard to the remand. Therefore, EPA may need to take further action on this portion of South Dakota's PSD rule. At this time, however, South Dakota's recordkeeping provisions are as stringent as the federal requirements, and are therefore, approvable. The South Dakota incorporation by reference describes the circumstances in which the term “Administrator” continues to mean the EPA Administrator and when it means the Secretary of the South Dakota DENR instead. South Dakota rule 74:36:09:02(1) identifies the following provisions in Chapter 74:36:09 where the term “Administrator” continues to mean the Administrator of EPA: 40 CFR 52.21(b)(17), 52.21(b)(37)(i), 52.21(b)(43), 52.21(b)(48)(ii)(c), 52.21(b)(50)(i), 52.21(g)(1) to 52.21(g)(6), 52.21(l)(2), and 52.21(p)(2). As submitted on September 1, 2006, this list did not include 40 CFR 52.21(p)(2), and under South Dakota's PSD rule, the term “Administrator” in 40 CFR 52.21(p)(2) referred to the Secretary of the DENR. This was inconsistent with EPA's determination that 40 CFR 52.21(p)(2) must still refer to the Administrator of EPA, and EPA proposed to disapprove the incorporation by reference of 40 CFR 52.21(p)(2). On June 28, 2007, South Dakota submitted to EPA a revision of Chapter 74:36:09, effective June 13, 2007, that added 40 CFR 52.21(p)(2) to the list of provisions in Chapter 74:36:09 where the term “Administrator” continues to mean the Administrator of EPA. Therefore, EPA is approving the incorporation by reference of 40 CFR 52.21(p)(2) as part of the approval of Chapter 74:36:09. As noted above, South Dakota did not incorporate by reference 40 CFR 52.21(q) (public participation). South Dakota has instead incorporated by reference 40 CFR 51.166(q) (public participation) at 74:36:09:03. The regulations at 40 CFR 51.166 are what a SIP must contain for EPA to approve a PSD permit program, and generally mirror the federal PSD regulations at 40 CFR 52.21. In addition, South Dakota added in 74:36:09:03 six additional provisions that revise 40 CFR 51.166(q) in order to make the PSD permit public participation requirements specific to South Dakota. The requirements included in South Dakota's PSD program, as specified in Chapter 74:36:09, are substantively the same as the federal PSD provisions due to South Dakota's incorporation of the federal rules by reference. EPA reviewed the revisions South Dakota made to 40 CFR 52.21 and 40 CFR 51.166 noted above and found them to be as stringent as the federal rules. EPA has, therefore, determined that the revisions are consistent with the program requirements for the preparation, adoption, and submittal of implementation plans for the Prevention of Significant Deterioration of Air Quality, as set forth at 40 CFR 51.166, and are approvable as part of the South Dakota SIP. III. What were the comments received and EPA's response? EPA received three comment letters on our February 1, 2007 (72 FR 4671) proposal. Two commenters supported, and one commenter opposed, our proposed action. We have considered the comments received and we are generally finalizing our action as proposed. Following is a summary of the comments. A. Two commenters support the inclusion of Chapter 74:36:09 Prevention of Significant Deterioration into the South Dakota State Implementation Plan. *Response:* EPA acknowledges receipt of the comments and agrees with the commenters. B. One commenter submitted comments opposing our proposed partial approval and supporting our proposed partial disapproval of the inclusion of Chapter 74:36:09 Prevention of Significant Deterioration into the South Dakota State Implementation Plan. 1. The commenter stated that our proposed approval “appears to be a thinly-veiled attempt by the state to rollback critical public health and environmental safeguards in South Dakota by substituting a delegated program with a more lax state-administered program” and that “the proposed changes would eliminate the public's opportunity to obtain review of a PSD permit by the U.S. Environmental Protection Agency's Environmental Appeals Board and remove the automatic stay provision that provides the public with an opportunity to obtain review of a permit before construction commences.” *Response:* Federal regulations specify the parameters that state-administered programs must meet and these regulations help ensure that public health and safety safeguards remain in place with the transition from a federal to a state program. Regulations at 40 CFR 51.166 set forth the criteria for PSD program approvals that EPA applies. EPA has determined that South Dakota's PSD rules meet these criteria. As discussed above, South Dakota's rules satisfy the public participation criteria in 40 CFR 51.166(q). Since these minimum criteria are satisfied, we have no grounds to conclude that South Dakota's SIP approved program will be less rigorous than the federal permitting program that the State currently administers through a delegation. Although permits issued under SIP approved programs are not subject to appeal to EPA's Environmental Appeals Board, such actions are instead subject to the opportunities for review and appeal provided under state law. We interpret the statute and regulations to require at minimum an opportunity for state judicial review of PSD permits. See, 61 FR 1880, 1882 (Jan. 24, 1996). South Dakota has specified procedures for contesting a final PSD permit determination and requesting an administrative hearing at Chapter 74:09 of the South Dakota Administrative Rules (Contested Case Procedure). These procedures are referenced in 74:36:09:03 (Public participation). South Dakota law also provides for the right to judicial review of contested cases (SDCL 1-26-30). We, thus, have no grounds to deny PSD program approval based on the nature of review of final permit decisions under South Dakota law. 2. The commenter stated that the proposed approval “appears to be an attempt to reduce U.S. EPA's obligation to protect endangered and threatened species in South Dakota.” The commenter noted that the Endangered Species Act
(ESA)applies to EPA's proposal to approve to South Dakota's PSD permit program such that EPA “must determine whether this proposed action—approving major changes to the South Dakota PSD permit program—may affect any listed species” and “consult with the [U.S. Fish and Wildlife Service] prior to transferring air permitting authority to the State of South Dakota.” In addition, the commenter stated that EPA “must structure its approval * * * in such a manner as to preserve the agency's duties to protect and restore listed species and their habitat.” *Response:* EPA disagrees with the commenter. EPA's approval of the South Dakota permitting program into the SIP is not an attempt to reduce ESA requirements in connection with PSD permitting in the State. As a practical matter, EPA has not carried out ESA consultation requirements in its prior approvals of PSD permitting programs for other states. Moreover, under relevant CAA provisions, states are entitled to administer approved PSD permitting programs, and EPA is required to approve a state's program that satisfies applicable CAA requirements. The CAA SIP approval authority does not provide the Agency with the discretion to refrain from taking the action of approving the South Dakota PSD permit program if it meets all applicable CAA requirements. Accordingly, and as confirmed by recent Supreme Court precedent, the ESA requirements cited in the comments do not apply to EPA's decision to approve South Dakota's PSD permitting program into the SIP. See 50 CFR 402.03; *National Ass'n of Home Builders* v. *Defenders of Wildlife* , 127 S. Ct. 2518 (2007). Section 7(a)(2) of the ESA generally requires federal agencies to consult with the relevant federal wildlife agencies to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of federally-listed endangered or threatened species, or result in the destruction or adverse modification of designated critical habitat of such species. 16 U.S.C. 1536(a)(2). In accordance with relevant ESA implementing regulations, this requirement applies only to actions in which there is discretionary federal involvement or control. 50 CFR 402.03. In the *Defenders of Wildlife* case, the Supreme Court examined these provisions in the context of EPA's decision to approve a state permitting program under the Clean Water Act (CWA). In that case, the Court held that when a federal agency is required by statute to undertake a particular action once certain specified triggering events have occurred, there is no relevant agency discretion, and thus the requirements of ESA section 7(a)(2) do not apply. 127 S. Ct. at 2536. With regard to EPA's transfer of CWA permitting authority to a state, the Court found that because the relevant CWA provision mandated that EPA “shall approve” a state permitting program if a list of CWA statutory criteria are met, EPA lacked the discretion to deny a transfer application that satisfied those criteria. *Id.* at 2531-32. The Court also found that the relevant CWA program approval criteria did not include consideration of endangered or threatened species, and stated that “[n]othing in the text of [the relevant CWA provision] authorizes EPA to consider the protection of threatened or endangered species as an end in itself when evaluating [an] application” to transfer a permitting program to a state. *Id.* at 2537. Accordingly, the Court held that the CWA required EPA to approve the state's permitting program if the statutory criteria were met; those criteria did not include the consideration of ESA-protected species; and thus, consistent with 50 CFR 402.03, the non-discretionary action to transfer CWA permitting authority to the state did not trigger relevant ESA section 7 requirements. Similar to the CWA program approval provision at issue in *Defenders of Wildlife* , section 110(k)(3) of the CAA mandates that EPA “shall approve” a SIP submittal that meets applicable CAA requirements. 42 U.S.C. 7410(k)(3). The CAA provides a list of SIP submittal criteria in section 110. *See* 42 U.S.C. 7410(a)(2). With respect to SIP submittals involving PSD permitting program applications, the relevant program approval criteria are found in the general CAA provisions regarding the PSD program, Title I, Part C, and EPA's relevant regulations implementing those provisions, 40 CFR 51.166. See 42 U.S.C. 7410 (a)(2)(J). As was the case with the CWA requirements in *Defenders of Wildlife* , the SIP requirements contained in section 110 of the CAA do not include protection of listed species, and neither Title I, Part C of the CAA nor EPA's PSD implementing regulations explicitly state that consideration of the impacts on listed species is a required factor in PSD permitting decisions. EPA has interpreted sections 169(3) and 165(e)(3)(B) of the CAA as providing EPA with the relevant discretion to carry out ESA section 7(a)(2) obligations during its review of individual applications for federally-issued PSD permits under section 165. *See, In re: Indeck-Elwood, LLC,* PSD Appeal No. 03-04 (EAB Sept. 27, 2006), slip. op at 108 (holding EPA has discretion to consider impacts to listed species in Best Available Control Technology and soils and vegetation analysis). However, the use of this discretion in individual PSD permitting decisions does not provide EPA similar discretion in its SIP approval decisions under section 110. In issuing individual PSD permits, EPA is required to complete an environmental impacts analysis in the best available control technology determination of CAA section 169(3) and an additional impacts analysis, including impacts on soils and vegetation, under section 165(e)(3)(B) of the CAA. In carrying out these analyses, EPA has interpreted these provisions as affording the Agency discretion to determine whether listed species are impacted by individual federal PSD permitting decision. In contrast, EPA's action on state SIP submittals is governed by section 110 of the CAA, which unequivocally directs EPA to approve state plans meeting applicable CAA requirements. Section 110 does not provide for similar impact analyses in reviewing PSD SIP submittals. Thus, although EPA's approval of an individual federal PSD permit and its approval of a state PSD permitting program both involve PSD, they are entirely different actions arising under different provisions of the CAA. An ESA obligation triggered by one provision of the statute—consideration of ESA in individual federal PSD permitting decisions—cannot be bootstrapped to raise that obligation in another provision—approval of a PSD SIP submittal—that does not provide EPA with similar discretion. See generally *Defenders of Wildlife* (finding that while EPA undertakes ESA consultation when issuing individual federal NPDES permits, it was not required to do so in approving state NPDES permitting programs). EPA recognizes that it exercises some judgment when evaluating whether a SIP submittal meets specific statutory PSD criteria. However, as the Supreme Court held in *Defenders of Wildlife* , the use of such judgment does not allow the Agency “the discretion to add another entirely separate prerequisite”—such as the ESA section 7(a)(2) consultation requirements—to the list of required criteria EPA considers when determining whether it “shall approve” a state permitting program. 127 S. Ct. at 2537. Applying the reasoning of *Defenders of Wildlife* , ESA consultation obligations do not apply to EPA's approval of South Dakota's PSD permit program, because the SIP approval criteria contained in the CAA do not provide EPA with the discretionary authority to consider whether approval of the State PSD permitting program into the SIP may affect any listed species. EPA has determined that the State has submitted a SIP for a PSD program that satisfies all of the applicable SIP requirements contained in section 110 of the CAA, as well as the applicable PSD requirements found in CAA Title I, Part C, and 40 CFR 51.166. Thus, given this Supreme Court precedent and applicable regulations, see 50 CFR 402.03, EPA is without discretion to disapprove or condition the State's program based on concerns for listed species, and the ESA requirements cited by the commenter are thus inapplicable to this approval action. 3. The commenter “supports U.S. EPA disapproving SD's attempt to have the state conduct the necessary consultation with a Federal Land Manager when a proposed source may impact a class 1 area.” *Response:* EPA's proposed disapproval concerned only the narrow issue of the Federal Land Manager's
(FLM)responsibility to consult with the EPA Administrator under 40 CFR 51.166(p)(2). See EPA's February 1, 2007 Notice of Proposed Rule (72 FR 4673) for additional discussion of this issue. On June 28, 2007, South Dakota submitted to EPA a revision of Chapter 74:36:09, effective June 13, 2007, that added 40 CFR 52.21(p)(2) to the list of provisions incorporated in Chapter 74:36:09 where the term “Administrator” continues to mean the Administrator of EPA. Therefore, in South Dakota, an FLM will continue to have the responsibility to consider, in consultation with the EPA, whether a proposed source or modification in South Dakota will have an adverse impact on air quality related values (including visibility). This is consistent with 40 CFR 51.166(p)(2). EPA is approving the incorporation by reference of 40 CFR 52.21(p)(2) as part of the approval of Chapter 74:36:09. However, the State will have the responsibility to consider and respond to the FLM's analysis under the procedures set forth in sections 40 CFR 52.21(p)(3)-(8). In accordance with 40 CFR 51.166(p)(3) and 165(d)(2)(C)(ii) of the CAA, when there is no projected violation of the PSD increments, the FLM bears the burden of demonstrating to the satisfaction of the state permitting authority that a project will have an adverse impact on air quality related values. IV. What action is EPA taking? We are approving the inclusion of Administrative Rules of South Dakota, Chapter 74:36:09, Prevention of Significant Deterioration, into the South Dakota SIP, including 74:36:09:02's incorporation of 40 CFR 52.21(p)(2). Additionally, EPA is rescinding its delegation of the PSD regulations to South Dakota. V. 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 imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 19, 2008. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: December 12, 2007. Stephen S. Tuber, Acting Regional Administrator, Region 8. 40 CFR part 52 is amended to read 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 QQ—South Dakota 2. In § 52.2170, the table in paragraph
(c)is amended by adding a new entry for chapter 74:36:09 after the existing entry for 74:36:07 to read as follows: State citation Title/subject State effective date EPA approval date and citation 1 Explanations * * * * * * * 74:36:09 Prevention of Significant Deterioration 74:36:09:01 Applicability 9/18/06 [Insert Federal Register page number where the document begins and date] 74:36:09:01.01 Prevention of significant deterioration permit required 9/18/06 [Insert Federal Register page number where the document begins and date] 74:36:09:02 Prevention of significant deterioration 6/13/07 [Insert Federal Register page number where the document begins and date] 74:36:09:03 Public participation 9/18/06 [Insert Federal Register page number where the document begins and date] * * * * * * * 1 In order to determine the EPA effective date for a specific provision that is listed in this table, consult the Federal Register cited in this column for that particular provision. 3. Section 52.2178 is amended by revising paragraphs
(a)and
(b)to read as follows and by deleting paragraph (c): § 52.2178 Significant deterioration of air quality.
(a)The South Dakota plan, as submitted, is approved as meeting the requirements of part C, subpart 1 of the CAA, except that it does not apply to sources proposing to construct on Indian reservations;
(b)Regulations for preventing significant deterioration of air quality. The provisions of § 52.21 except paragraph (a)(1) are hereby incorporated and made a part of the South Dakota State implementation plan and are applicable to proposed major stationary sources or major modifications to be located on Indian reservations. [FR Doc. E7-24717 Filed 12-20-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2007-0029; FRL-8342-3] Glufosinate-ammonium; Pesticide Tolerance AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This regulation modifies the tolerances for the combined residues of glufosinate-ammonium and its metabolites expressed as butanoic acid in or on raw agricultural commodities. Bayer CropScience LLC requested this revision under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective December 21, 2007. Objections and requests for hearings must be received on or before February 19, 2008 and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION) . ADDRESSES: EPA has established a docket for this action under docket identification
(ID)number EPA-HQ-OPP-2007-0029. To access the electronic docket, go to *http://www.regulations.gov* , select “Advanced Search,” then “Docket Search.” Insert the docket ID number where indicated and select the “Submit” button. Follow the instructions on the regulations.gov website to view the docket index or access available documents. All documents in the docket are listed in the docket index available in regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in the electronic docket at *http://www.regulations.gov* , or, if only available in hard copy, at the OPP Regulatory Public Docket in Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. The Docket Facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The Docket Facility telephone number is
(703)305-5805. FOR FURTHER INFORMATION CONTACT: Kathryn V. Montague, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number:
(703)305-1243; e-mail address: *montague.kathryn@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does this Action Apply to Me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities: • Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers. • Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers. • Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators. • Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users. This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT . B. How Can I Access Electronic Copies of this Document? In addition to accessing an electronic copy of this **Federal Register** document through the electronic docket at *http://www.regulations.gov* , you may access this **Federal Register** document electronically through the EPA Internet under the “ **Federal Register** ” listings at *http://www.epa.gov/fedrgstr* . You may also access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's pilot e-CFR site at *http://www.gpoaccess.gov/ecfr* . C. Can I File an Objection or Hearing Request? Under section 408(g) of FFDCA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2007-0029 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk as required by 40 CFR part 178 on or before February 19, 2008. In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described in ADDRESSES . Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit this copy, identified by docket ID number EPA-HQ-OPP-2007-0029, by one of the following methods: • *Federal eRulemaking Portal* : *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. • *Mail* : Office of Pesticide Programs
(OPP)Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. • *Delivery* : OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket's normal hours of operation 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is
(703)305-5805. II. Petition for Tolerance In the **Federal Register** of February 28, 2007 (72 FR 9000) (FRL-8115-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 6F7161) by Bayer CropScience LLC, 2 T.W. Alexander Dr., Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.473 be amended by establishing a tolerance for combined residues of the herbicide, glufosinate-ammonium and its metabolites expressed as butanoic acid, 2-amino-4-(hydroxymethylphosphinyl)-, monoammonium salt, 2-acetamido-4-methylphosphinico-butanoic acid and 3-methylphosphinico-propionic acid (expressed as glufosinate free acid equivalents), in or on raw agricultural commodities grain aspirated fractions at 25.0 parts per million (ppm); non- transgenic canola, meal at 1.1 ppm; non-transgenic canola, seed at 0.4 ppm; non- transgenic field corn, forage at 4.0 ppm; non- transgenic field corn, grain at 0.2 ppm; non- transgenic field corn, stover at 6.0 ppm; non- transgenic soybean, at 2.0 ppm; non-transgenic soybean, hulls at 5.0 ppm. That notice referenced a summary of the petition prepared by Bayer CropScience LLC, the registrant, which is available to the public in the docket, *http://www.regulations.gov* . In the **Federal Register** of June 27, 2007 (72 FR 35237) (FRL-8133-4), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the amendment to existing tolerances by filing of a pesticide petition (PP 6F7161) by Bayer CropScience LLC, 2 T.W. Alexander Dr., Research Triangle Park, NC 27709. The petition proposes to amend the tolerances in 40 CFR 180.473(a) to eliminate the reference to transgenic crops tolerant to glufosinate ammonium in §180.473(a)(2) such that the crop tolerances listed under §180.473
(a)General, support uses in all of the crops listed to include both conventional and transgenic crops and to delete §180.473 (a)(1) and (a)(2). This notice clarifies the initial notice of filing published in the **Federal Register** of February 28, 2007 (72 FR 9000) (FRL-8115-5). The tolerances for glufosinate-ammonium and its metabolites listed for the commodities under both paragraphs (a)(1) and paragraph (a)(2) are proposed to be placed in §180.473
(a)General to read as follows: Tolerances are established for residues of glufosinate-ammonium (butanoic acid, 2-amino-4-(hydroxymethylphosphinyl)-monoammonium salt) and its metabolites expressed as butanoic acid, 2-amino-4-(hydroxymethylphosphinyl)-, monoammonium salt, 2-acetamido-4-methylphosphinico-butanoic acid and 3-methylphosphinico-propionic acid expressed as glufosinate free acid equivalents in or on the raw agricultural commodities: Almond, hulls at 0.50 ppm; apple at 0.05 ppm; grain aspirated fractions at 25.0 ppm; banana at 0.30 ppm; banana, pulp at 0.20 ppm; beet, sugar, molasses at 5.0 ppm; beet, sugar, roots at 0.9 ppm; beet, sugar, tops at 1.5 ppm; bushberry subgroup 13B at 0.15 ppm; canola, meal at 1.1 ppm; canola, seed at 0.4 at ppm; cattle, fat at 0.40 ppm; cattle, meat at 0.15 ppm; cattle, meat byproducts at 6.0 ppm; corn, field forage at 4.0 ppm; corn, field, grain at 0.2 ppm; corn, field, stover at 6.0 ppm; cotton, gin byproducts at 15 ppm; cotton, undelinted seed at 4.0 ppm; egg at 0.15 ppm; goat, fat at 0.40 ppm; goat, meat at 0.15 ppm; goat, meat byproducts at 6.0 ppm; grape at 0.05 ppm; hog, fat at 0.40 ppm; hog, meat at 0 .15; hog, meat byproducts at 6.0 ppm; horse, fat at 0.40 ppm; horse, meat at 0.15 ppm; horse, meat byproducts at 6.0 ppm; Juneberry 0.10 ppm; lingonberry at 0.10 ppm; milk at 0.15 ppm; nut, tree, group 14 at 0.10 ppm; potato at 0.80 ppm; potato, chips at 1.60 ppm; potato granules/flakes 2.00 ppm; poultry, fat 0.15 ppm; poultry, meat at 0.15 ppm; poultry, meat byproducts 0.60 ppm; rice, grain at 1.0 ppm; rice, hull at 2.0 ppm; rice, straw at 2.0 ppm; salal at 0.10 ppm; sheep, fat at 0.40 ppm; sheep, meat at 0.15 ppm; sheep, meat byproducts at 6.0 ppm; soybean at 2.0 ppm and soybean, hulls at 5.0 ppm. Comments were received on the notices of filing. EPA's response to these comments is discussed in Unit IV.C. Bayer's petition asks EPA to consolidate subsections (a)(1) and (a)(2) of 40 CFR 180.473 which contains tolerances for glufosinate on various non-transgenic crops and transgenic crops, respectively, and remove the restriction as to transgenic crops. In part this petition is related to Bayer's application to EPA to amend its glufosinate registration under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to allow pre-plant burn down application to both transgenic and non-transgenic field corn, canola, and soybean. Glufosinate is currently registered foliar uses on the transgenic forms of these crops. The proposed registration amendment would not alter existing seasonal application amount limitations. There are currently no FFDCA tolerances for glufosinate on non-transgenic field corn, canola, and soybean but FFDCA tolerances are in place for the foliar use on the transgenic form of these crops. Consolidating subsections (a)(1) and (a)(2) and removing the transgenic restriction would address the lack of tolerances for non-transgenic field corn, canola, and soybean. EPA initially concluded that two tolerance expressions were appropriate for plants: non-transgenic (40 CFR 180.473 (a)(1)) with glufosinate ammonium and 3-methylphosphinico-propionic acid and transgenic crops (40 CFR 180.473 (a)(2)) with glufosinate ammonium, *N* -acetyl-glufosinate, and 3-methylphosphinico-propionic acid. Subsequent to this decision, based upon a petition from Bayer, EPA modified the tolerance expressions in subsections (a)(1) and (a)(2) so that they are identical for transgenic and non-transgenic crops. 68 FR 55833 (September 29, 2003). This modification was done because EPA concluded that a single tolerance expression for both transgenic crops and non-transgenic crops (i.e. glufosinate ammonium, N-acetyl-glufosinate, and 3-methylphosphinico-propionic acid) was appropriate for the following reasons: 1) Enforcement laboratories do not know if a sample is derived from transgenic or non-transgenic crop and 2) the enforcement method quantifies glufosinate ammonium and *N* -acetyl-glufosinate together (both are devitalized to the same compound). As a result of the decision, the tolerance expression for 40 CFR 180.473 (a)(1) was altered to include *N* -acetyl-glufosinate; however, the tolerances in 40 CFR 180.473 (a)(2) remains. EPA has determined that consolidating the existing glufosinate tolerances in subsections (a)(1) and (a)(2) and removing the transgenic crop restriction, where applicable, is safe and is appropriate. Tolerance levels will not need to be increased with the addition of a pre-plant burn down use because the same seasonal amount limitations are being retained. Given that foliar applications would result in higher residue levels than pre-plant burn down, allocation of a portion of the permitted application to the pre-plant burn down use will not increase the residue level that could be present. III. Aggregate Risk Assessment and Determination of Safty Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” These provisions were added to FFDCA by the Food Quality Protection Act
(FQPA)of 1996. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for proposal to place all the commodities listed in 180.473 (a)(1) and 180.473 (a)(2) together in paragraph 180.473(a) based on the rationale for having a single tolerance expression is appropriate. Tolerance levels for combined residues of glufosinate-ammonium are unchanged. EPA's assessment of exposures and risks associated with establishing the tolerance follows. A. Toxicological Profile EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by glufosinate-ammonium as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies. Specific information on the studies received and the nature of the toxic effects caused by glufosinate ammonium as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in the final rule published in the **Federal Register** of September 29, 2003 (68 FR 55833) (FRL-7327-9). B. Toxicological Endpoints For hazards that have a threshold below which there is no appreciable risk, the toxicological level of concern
(LOC)is derived from the highest dose at which no adverse effects are observed (the NOAEL) in the toxicology study identified as appropriate for use in risk assessment. However, if a NOAEL cannot be determined, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment. Uncertainty/safety factors
(UFs)are used in conjunction with the LOC to take into account uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the acute population adjusted dose
(aPAD)and chronic population adjusted dose (cPAD). The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the margin of exposure
(MOE)called for by the product of all applicable UFs is not exceeded. For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk and estimates risk in terms of the probability of occurrence of additional adverse cases. Generally, cancer risks are considered non-threshold. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see *http://www.epa.gov/fedrgstr/EPA-PEST/1997/November/Day-26/p30948.htm* . A summary of the toxicological endpoints for glufosinate ammonium used for human risk assessment is discussed in Unit III.B. of the final rule published in the **Federal Register** of September 29, 2003 (68 FR 55833) (FRL-7327-9). C. Exposure Assessment EPA concludes that the tolerance levels for combined residues of Glufosinate-ammonium are unchanged. The exposure assumptions discussed in the final rule published in the **Federal Register** of September 29, 2003 (68 FR 55833) (FRL-7327-9) remain the same. D. Safety Factor for Infants and Children A summary of the safety factor for infants and children for glufosinate ammonium is discussed in Unit III.D. of the final rule published in the **Federal Register** of September 29, 2003 (68 FR 55833) (FRL-7327-9) E. Aggregate Risks and Determination of Safety Safety is assessed for acute and chronic risks by comparing aggregate exposure to the pesticide to the aPAD and cPAD. The aPAD and cPAD are calculated by dividing the LOC by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given aggregate exposure. Short-term, intermediate-term, and long-term risks are evaluated by comparing aggregate exposure to the LOC to ensure that the MOE called for by the product of all applicable UFs is not exceeded. Consistent with FFDCA section 408(b)(2)(D), and the factors specified in section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for the petitioned-for revision in the tolerance expressions for combined residues of glufosinate-ammonium and its metabolites. EPA's assessment of exposures and risks associated with establishing the tolerance are discussed in the **Federal Register** of September 29, 2003 (68 FR 55833) (FRL-7327-9). Accordingly EPA concludes that there is a reasonable certainty that no harm will result to the general population and to infants and children from aggregate exposure to glufosinate-ammonium residues. IV. Other Considerations A. Analytical Enforcement Methodology Adequate enforcement methodology gas chromatography is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number:
(410)305-2905; e-mail address: *residuemethods@epa.gov* . B. International Residue Limits Since tolerances levels remain the same and since there are no new tolerances established, harmonization with CODEX, Canada or Mexico's MRLs is impacted. C. Response to Comments Public comments were received from B. Sachau who objected to the proposed tolerances because of the amounts of pesticides already consumed and carried by the American population. She further indicated that testing conducted on animals have absolutely no validity and are cruel to the test animals. B. Sachau's comments contained no scientific data or evidence to rebut the Agency's conclusion that there is a reasonable certainty that no harm will result from aggregate exposure to glufosinate ammonium, including all anticipated dietary exposures and all other exposures for which there is reliable information. EPA has responded to B. Sachau's generalized comments on numerous previous occasions. (January 7, 2005, 70 FR 1349) (October 29, 2004, 69 FR 63083). V. Conclusion Therefore, the tolerance regulation for the combined residues of glufosinate-ammonium and its metabolites expressed as butanoic acid, 2-amino-4-(hydroxymethylphosphinyl)-, monoammonium salt, 2-acetamido-4-methylphosphinico-butanoic acid and 3-methylphosphinico-propionic acid (expressed as glufosinate free acid equivalents), are revised by placing all the commodities listed §180.473 (a)(1) and (a)(2) together in §180.473 (a). VI. Statutory and Executive Order Reviews This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget
(OMB)has exempted these types of actions from review under Executive Order 12866, entitled *Regulatory Planning and Review* (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, *Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use* (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled *Protection of Children from Environmental Health Risks and Safety Risks* (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 *et seq* ., nor does it require any special considerations under Executive Order 12898, entitled *Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations* (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq* .) do not apply. This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled *Federalism* (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled *Consultation and Coordination with Indian Tribal Governments* (65 FR 67249, November 6, 2000) do not apply to this rule. In addition, This rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)(Public Law 104-4). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). VII. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq* ., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the **Federal Register** . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 180 Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements. Dated: December 14, 2007. Lois Rossi, Director, Registration Division, Office of Pesticide Programs. Therefore, 40 CFR chapter I is amended as follows: PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority: 21 U.S.C. 321(q), 346a and 371. 2. Section 180.473 is amended by revising paragraph
(a)to read as follows. 180.473 Glufosinate-ammonium; tolerances for residues.
(a)*General* . Tolerances are established for residues of the herbicide glufosinate-ammonium (butanoic acid, 2-amino-4-(hydroxymethylphosphinyl)-monoammonium salt) and its metabolites, 2-acetamido-4-methylphosphinico-butanoic acid and 3-methylphosphinico-propionic acid, expressed as 2-amino-4-(hydroxymethylphosphinyl)butanoic acid equivalents, in or on the following food commodities: Commodity Parts per million Almond, hulls 0.50 Apple 0.05 Banana 0.30 Banana, pulp 0.20 Beet, sugar, molasses 5.0 Beet, sugar, roots 0.9 Beet, sugar, tops (leaves) 1.5 Bushberry subgroup 13B 0.15 Canola, meal 1.1 Canola, seed 0.40 Cattle, fat 0.40 Cattle, meat 0.15 Cattle, meat byproducts 6.0 Corn, field forage 4.0 Corn, field, grain 0.20 Corn, field, stover 6.0 Cotton, gin byproducts 15 Cotton, undelinted seed 4.0 Egg 0.15 Goat, fat 0.40 Goat, meat 0.15 Goat, meat byproducts 6.0 Grain aspirated fractions 25 Grape 0.05 Hog, fat 0.40 Hog, meat 0.15 Hog, meat byproducts 6.0 Horse, fat 0.40 Horse, meat 0.15 Horse, meat byproducts 6.0 Juneberry 0.10 Lingonberry 0.10 Milk 0.15 Nut, tree, group 14 0.10 Pistachio 0.10 Potato 0.80 Potato, chips 1.6 Potato granules/flakes 2.0 Poultry, fat 0.15 Poultry, meat 0.15 Poultry, meat byproducts 0.60 Rice, grain 1.0 Rice, hull 2.0 Rice, straw 2.0 Salal 0.10 Sheep, fat 0.40 Sheep, meat 0.15 Sheep, meat byproducts 6.0 Soybean 2.0 Soybean, hulls 5.0 [FR Doc. E7-24841 Filed 12-20-07; 8:45 am] BILLING CODE 6560-50-S FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-4945; MB Docket No. 02-352; RM-10602, RM-10776, RM-10777] Radio Broadcasting Services; Clyde and Glenville, NC, Tazewell, Tennessee and Weaverville, NC AGENCY: Federal Communications Commission. ACTION: Final rule; dismissal. SUMMARY: This document approves a Joint Request for Approval of Settlement Agreement filed by Liberty Productions, a Limited Partnership, Saga Communications of North Carolina, LLC, Ashville Radio Partners, LLC, and Willsyr Communications, Limited Partnership, requesting withdrawal of a Petition for Reconsideration and all pleadings filed in connection MB Docket No. 02-352. With this action, the proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Robert Hayne, Media Bureau
(202)418-2177. SUPPLEMENTARY INFORMATION: This is a synopsis of the letter from Peter H. Doyle, Chief, Audio Division, Media Bureau to Liberty Productions, a Limited Partnership, *et al.,* released December 11, 2007, (DA 07-4945). The full text of this letter is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals l1, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copying and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* The Commission, is, therefore, not required to submit a copy of this *Letter* pursuant to the Government Accountability Office, pursuant to the Congressional Review Act, *see* 5 U.S.C. 801 (a)(1)(A), because the Petition for Reconsideration was dismissed. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-24623 Filed 12-20-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070817468-7715-02] RIN 0648-AV91 Fisheries of the Northeastern United States; Atlantic Sea Scallop Fishery; Framework Adjustment 20 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final Rule. SUMMARY: NMFS issues this final rule to approve and implement measures contained in Framework Adjustment 20 (Framework 20) to the Atlantic Sea Scallop Fishery Management Plan (FMP). This action maintains the trip allocations and possession limits established by the interim measures that were enacted by NMFS on June 21, 2007, for the Elephant Trunk Access Area
(ETAA)in 2007 to reduce the potential for overfishing the Atlantic sea scallop (scallop) resource and excessive scallop mortality. This action reduces the number of scallop trips to the ETAA, and prohibits the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside ot the boundaries of the ETAA (deckloading). The action also clarifies that the current restriction on landing no more than one scallop trip per calendar day for vessels fishing under general category rules does not prohibit a vessel from leaving on a scallop trip on the same calendar day that the vessel landed scallops. DATES: This rule is effective December 24, 2007. ADDRESSES: Copies of Framework Adjustment 20 are available from Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2,Newburyport, MA 01950. The framework document is also accessible via the Internet at *http://www.nero.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Don Frei, Fishery Management Specialist, 978-281-9221; fax 978-281-9135. SUPPLEMENTARY INFORMATION: Background The proposed rule for Framework 20 was published in the **Federal Register** on October 30, 2007 (72 FR 61320). Comments were accepted through November 14, 2007. By approving Framework 20 this action adjusts measures approved as part of Framework 18 to the FMP (Framework 18) (71 FR 33211, June 8, 2006), and maintains the provisions of the interim action that:
(1)Reduce the number of trips from five trips to three trips for full-time scallop vessels in the ETAA (scallop possession limit would remain at 18,000 lb);
(2)reduce the number of trips from three trips to two trips (for all access areas) for part-time scallop vessels in the ETAA (scallop possession limit for part-time vessels would be increased from 16,800 lb (7,620 kg) per trip to 18,000 lb (8,165 kg) per trip);
(3)reduce the occasional vessel possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip;
(4)reduce the general category scallop fleet ETAA trip allocation from 1,360 trips to 865 trips; and
(5)prohibit the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallops outside of the boundaries of the ETAA ( or deckloading, i.e., leaving a high volume of scallops on deck after leaving an access area so that the scallops can be shucked on the way back to port). The Council developed Framework 20 to prevent the Framework 18 measures from going back into effect when the interim measures expire on December 23, 2007. If this were to happen, it would restore the higher trip allocations and allow additional effort by the fleet, resulting in overfishing for the last 2 months (January and February 2008) of the 2007 fishing year (FY). Such an outcome would undermine the effect of the interim measures in preventing overfishing. Approved Management Measures In the proposed rule, NMFS requested comments on all proposed management measures, and received one comment on the proposed rule. The approved management measures are discussed below. No measures in Framework 20 were disapproved. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here. 1. ETAA Trip Reduction This action maintains the reduction in the number of trips from five trips to three trips for full-time scallop vessels in the ETAA (scallop possession limit would remain at 18,000 lb (8,165 kg)); the reduction in the number of trips from three trips to two trips (for all access areas) for part-time scallop vessels in the ETAA (scallop possession limit for part-time vessels remains at 16,800 lb (7,620 kg) per trip); and the reduction in the occasional vessel possession limit from 10,500 lb (4,763 kg) per trip to 7,500 lb (3,402 kg) per trip. The regulations at § 648.60(a)(5) published for Framework 18 specified that an occasional vessel's possession limit is 7,500 lb (3,402 kg) per trip. However, Framework 18 intended and analyzed a possession limit of 10,500 lb (4,763 kg) per trip for the 2007 FY. This action also maintains the reduction in the general category scallop fleet trip allocation from 1,360 to 865 trips in the ETAA. Reducing the number of trips for scallop vessels in the ETAA addresses the concern that overfishing of the scallop resource may occur in 2007. Although the biomass in the ETAA remains very high relative to the rest of the scallop resource, it is less abundant than was projected in Framework 18. As a result, even though the fishing mortality is expected to be lower than the target fishing mortality in the area, it would be high enough at the lower biomass to contribute to overfishing in 2007. Part-time vessels have a trip reduction with an increase in the possession limit to ensure that the total access area catch for part-time vessels remains at 40 percent of the full-time access area catch, as intended by the FMP. Occasional vessels have one trip to any access area, but have a possession limit of 7,500 lb (3,402 kg) for the trip, ensuring that the total access area catch for occasional vessels remains at 8.3 percent of the full-time access area catch. Reducing trips in the ETAA was contemplated in Framework 18 and the potential impacts of the trip reductions were fully analyzed in Framework 18. 2. Prohibition on Deckloading This action maintains the prohibition on the retention of more than 50 U.S. bushels (17.62 hL) of in-shell scallop outside of the boundaries of the ETAA for vessels on ETAA trips. Deckloading is the practice of loading the deck of a vessel with the scallop catch from several tows and shucking the scallops while steaming back to port. If allowed to deckload, vessel could leave the area, and the vessel crews can spend the time steaming home sorting and shucking scallops, thereby reducing overall trip costs. This can result in a vessel having more scallops on board than are necessary to achieve the possession limit. The excess scallops are discarded. In addition, due to deckloading, scallops remain on deck longer, increasing discard mortality. In the ETAA, deckloading may cause even higher scallop mortality, since catch rates are expected to be very high, there is a mix of scallop sizes in the area, and scallop crews may discard smaller scallops in favor of larger scallops. Although the amount of additional mortality cannot be precisely estimated, prohibiting deckloading on ETAA trips is a complementary measure that will help prevent additional scallop mortality. 3. Regulatory Change This final rule implements a regulatory change making the regulations consistent with the original intent of Amendment 4 to the FMP (Amendment 4) (59 FR 2757, January 19, 1994) . Amendment 4 intended that general category scallop vessels cannot land scallops on more than one trip per calendar day. NMFS implemented the scallop regulations consistent with this intent until it was recently discovered that the regulations, as written, prohibit such vessels from “fishing for” scallops more than once per calendar day. This prohibited a vessel from leaving on a scallop trip on a calendar day if scallops had previously been landed that calendar day. The general category scallop industry is concerned that interpreting the regulation this way may encourage unsafe fishing behavior to complete as many trips as possible while avoiding the “one trip per calendar day” restriction. For example, if a vessel owner has to wait a full calendar day to set sail on a subsequent trip, he/she may sail despite hazardous weather. To make the regulations consistent with Amendment 4, NMFS implements the regulatory change in this final rule that prohibits a general category scallop vessel from landing scallops on more than one trip per calendar day, but allows vessels to depart on a subsequent scallop trip on the same calendar day that the vessel landed scallops. The trip allocations and possession limits for the ETAA in 2007 are intended to be effective for the remainder of the 2007 fishing year. However the FMP currently specifies that if framework measures to change annual scallop measures are not implemented by March 1 of each fishing year, the scallop DAS and access area allocations remain in effect until replaced by new measures. Therefore, if Framework 19 to the FMP (adopted by the Council in October 2007) is not completed by March 1, 2007, the trip allocations and possession limits for the ETAA in 2007 will remain in effect until modified by Framework 19 measures. The prohibition on deckloading and the regulatory change to the “one per calender day” landing restriction is permanent, unless modified by the Council and NMFS through subsequent action. Comments and Responses NMFS received one comment on the proposed rule to implement Framework 20 that was in favor of extending DAS limitations on scallop fishing for the purpose of preventing overfishing. This comment did not address any specific measures in Framework 20 and therefore was not pertinent to the decision to implement this action. Classification NMFS has determined that this final rule is consistent with the FMP and has determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. The Assistant Administrator for Fisheries, NOAA, finds good cause to waive the 30-day delay in effective date under authority contained in 5 U.S.C. 553(d)(3) for this rule because provisions in this rule are critical for the sustainable management of the scallop resource and need to be implemented in a timely manner. This action extends interim measures for the Elephant Trunk Access Area (ETAA), implemented in December 2006 to reduce overfishing for the 2007 fishing year (March 1, 2007, through February 29, 2008). If this rule is implemented after December 23, 2007 Framework 18 measures will come into effect, which would likely cause overfishing in the 2007 fishing year as a result of the higher trip allocations. Overfishing of the scallop resource in the 2007 fishing year would make future measures already developed by the Council for the 2008 and 2009 fishing years less likely to achieve their goals of preventing overfishing and providing for optimum yield to the industry on a continuing basis. In turn, the Council would likely have to consider more restrictive measures to account for the unexpected overfishing in 2007, which would likely cause short term losses for the industry. In addition, this action extends measures currently in place and does not implement any new compliance requirements on the scallop industry. NMFS, pursuant to section 604 of the Regulatory Flexibility Act has prepared a FRFA in support of Framework 20. The FRFA describes the economic impact that this final rule, along with other non-preferred alternatives, will have on small entities. The FRFA incorporates the economic impacts and analysis summarized in the IRFA for the proposed rule to implement Framework 20 (72 FR 61320, October 30, 2007), the comments and responses in this final rule, and the corresponding economic analyses prepared for Framework 20 (e.g., the EA and RIR). The contents of these incorporated documents are not repeated in detail here. A copy of the IRFA, the RIR and the EA are available on request (see ADDRESSES ). A description of the reasons for this action, the objectivs of the action, and the legal basis for this final rule are found in Framework 20 and the preamble to the proposed and final rules. Statement of Need for this Action The purpose of this action is to prevent the Framework 18 measures from reverting back into effect when the interim measures expire on December 23, 2007. If this were to happen, it would restore the higher trip allocations and allow additional effort by the fleet, resulting in overfishing for the last 2 months of the 2007 fishing year (FY). Such an outcome would undermine the effect of the interim measures in preventing overfishing. Description of the Small Business Entities to Which this Action Will Apply The regulations associated with Framework 20 will affect vessels with limited access scallop and general category permits. According to NMFS Northeast Region permit data as of October 2006, 351 vessels were issued limited access scallop permits, with 318 full-time, 32 part-time, and 1 occasional limited access permit issued. In addition, 2,501 open access general category permits were issued. All of the vessels in the Atlantic sea scallop fishery are considered small business entities because all of them grossed less than $3 million according to landings data for the period 2004 to 2006. Therefore, there will be no differential impact from this action between large and small entities. According to this information, annual revenue from scallops averaged over a million dollars per limited access vessel in 2005. Total revenues per vessel were higher when revenues from species other than scallops were included, but still averaged less than $3 million per vessel. Average scallop revenue per general category vessel was $88,702 in 2005, though it exceeded $240,000 when revenue from other species was included. Proposed Reporting, Recordkeeping, and Other Compliance Requirements There are no new reporting, recordkeeping, or other compliance requirements associated with the measures proposed in Framework 20. Description of the Steps taken to Minimize the Significant Economic Impact on Small Entities Consistent with the Stated Objectives of Applicable Statutes, Including a Statement of the Factual, Policy and Legal Reasons for Selecting the Alternative Adopted in the Final Rule and Why Each One of the Other Significant Alternatives to the Rule Considered by the Agency Which Affect the Impact on Small Entities was Rejected The regulations implementing Framework 20 were developed to ensure that scallop landings and economic benefits would be kept to sustainable levels. Therefore, overall positive economic impacts are expected as a result of preventing overfishing. The prohibition on deckloading on ETAA trips is expected to help prevent additional scallop mortality associated with discards and thus would improve yield, revenues, and economic benefits from the resource. The owners of vessels that fish for scallops would benefit over the long-term if overfishing is prevented. There was strong industry support for the proposed action in public testimony before the Council at the meeting when it adopted Framework 20. While a range of alternatives were considered in Framework 18, which established the management measures for 2006 and 2007, the only other alternative the Council considered in Framework 20 was to take no action. If no action had been taken, the Framework 18 measures would revert into effect, with the potential that fishing activity during January and February 2008 would lead to overfishing in the 2007 FY. Overfishing would have had negative impacts on scallop biomass, with landings, revenues and economic benefits likely to decline in future years as a result. The Council found this to be unacceptable and adopted Framework 20 to prevent this outcome. Other alternatives that the Council could have considered included overall reductions in effort or reductions in trip allocations in other areas. Such actions would have had other negative economic impacts since reductions in DAS or trip allocations would still have been necessary. In addition, these actions would have been more suitable for an annual adjustment rather than the extension of interim measures through Framework 20. The Council therefore did not consider and analyze these alternatives. Authority: 16 U.S.C. 1801 *et seq.* Dated: December 17, 2007. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES 1. The authority citation for part 648 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 648.14, paragraph (i)(1) is removed and reserved, paragraph (i)(2) is revised, and paragraphs (h)(27), (i)(13), and (i)(14) are added to read as follows: § 648.14 Prohibitions.
(h)* * *
(27)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60.
(i)* * *
(2)Land scallops on more than one trip per calendar day.
(13)Fish for or land per trip, or possess at any time, in excess of 400 lb (181.4 kg) of shucked, or 50 bu (17.62 hL) of in-shell scallops, unless the vessel is participating in the Area Access Program specified in § 648.60, is carrying an observer as specified in § 648.11, and an increase in the possession limit is authorized as specified in § 648.60(d)(2).
(14)Possess more than 50 bu (17.6 hL) of in-shell scallops, as specified in § 648.52(d), outside the boundaries of the Elephant Trunk Access Area specified in § 648.59(e) by a vessel that is declared into the Elephant Trunk Access Area under the Area Access Program as specified in § 648.60. 3. In § 648.52, paragraph
(e)is added to read as follows: § 648.52 Possession and landing limits.
(e)Owners or operators of a vessel that is declared into the Elephant Trunk Access Area Sea Scallop Area Access Program as described in § 648.60, are prohibited from possessing more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e). § 648.58 [Amended] 4. In § 648.58, paragraph
(a)is removed and reserved. 5. In § 648.59, paragraphs (e)(1) and (e)(4) are revised to read as follows: § 648.59 Sea Scallop Access Areas.
(e)* * *
(1)From March 1, 2007, through February 29, 2012, and subject to the seasonal restrictions specified in paragraph (e)(3) of this section, a vessel issued a scallop permit may fish for, possess, or land scallops in or from the area known as the Elephant Trunk Sea Scallop Access Area, described in paragraph (e)(2) of this section, only if the vessel is participating in, and complies with the requirements of, the area access program described in § 648.60.
(4)*Number of trips* —
(i)*Limited access vessels* . Based on its permit category, a vessel issued a limited access scallop permit may fish no more than the maximum number of trips in the Elephant Trunk Sea Scallop Access Area between March 1, 2007, and February 29, 2008, as specified in § 648.60(a)(3)(i), unless the vessel owner has made an exchange with another vessel owner whereby the vessel gains an Elephant Trunk Sea Scallop Access Area trip and gives up a trip into another Sea Scallop Access Area, as specified in § 648.60(a)(3)(ii), or unless the vessel is taking a compensation trip for a prior Elephant Trunk Access Area trip that was terminated early, as specified in § 648.60(c).
(ii)*General category vessels* . Subject to the possession limits specified in §§ 648.52(a) and (b), and 648.60(g), a vessel issued a general category scallop permit may not enter in, or fish for, possess, or land sea scallops in or from the Elephant Trunk Sea Scallop Access Area once the Regional Administrator has provided notification in the **Federal Register** , in accordance with § 648.60(g)(4), that the 865 trips allocated for the period March 1, 2007, through February 29, 2008, have been taken, in total, by all general category scallop vessels, unless transiting pursuant to paragraph
(f)of this section. The Regional Administrator shall notify all general category scallop vessels of the date when the maximum number of allowed trips have been, or are projected to be, taken. 6. In § 648.60, paragraphs (a)(3)(i), (a)(3)(ii)(B), (a)(5)(i), (d)(1)(v), (e)(1)(v), and (g)(3)(iv) are revised to read as follows: § 648.60 Sea scallop area access program requirements.
(a)* * *
(3)* * *
(i)*Limited Access Vessel trips* .
(A)Except as provided in paragraph
(c)of this section, paragraphs (a)(3)(i)(B) through
(E)of this section specify the total number of trips that a limited access scallop vessel may take into Sea Scallop Access Areas during applicable seasons specified in § 648.59. The number of trips per vessel in any one Sea Scallop Access Area may not exceed the maximum number of trips allocated for such Sea Scallop Access Area as specified in § 648.59, unless the vessel owner has exchanged a trip with another vessel owner for an additional Sea Scallop Access Area trip, as specified in paragraph (a)(3)(ii) of this section, has been allocated a compensation trip pursuant to paragraph
(c)of this section.
(B)*Full-time scallop vessels* . In the 2007 fishing year, a full-time scallop vessel may take one trip in the Closed Area I Access Area, one trip in the Nantucket Lightship Access Area, and three trips in the Elephant Trunk Access Area.
(C)*Part-time scallop vessels* . In the 2007 fishing year, a part-time scallop vessel may take one trip in the Closed Area I Access Area and one trip in the Nantucket Lightship Access Area; or one trip in the Closed Area I Access Area and one trip in the Elephant Trunk Access Area; or one trip in the Nantucket Lightship Access Area and one trip in the Elephant Trunk Access Area; or two trips in the Elephant Trunk Access Area.
(D)*Occasional scallop vessels* . An occasional scallop vessel may take one trip in the 2007 fishing year into any of the Access Areas described in § 648.59 that is open during the specified fishing years.
(E)*Hudson Canyon Access Area trips* . In addition to the number of trips specified in paragraphs (a)(3)(i)
(B)and
(C)of this section, vessels may fish remaining Hudson Canyon Access Area trips allocated for the 2005 fishing year in the Hudson Canyon Access Area in the 2006 and/or 2007 fishing year, as specified in § 648.59(a)(3). The maximum number of trips that a vessel could take in the Hudson Canyon Access Area in the 2005 fishing year was three trips, unless a vessel acquired additional trips through an authorized one-for-one exchange as specified in paragraph (a)(3)(ii) of this section. Full-time scallop vessels were allocated three trips into the Hudson Canyon Access Area. Part-time vessels were allocated two trips that could be distributed among Closed Area I, Closed Area II, and the Hudson Canyon Access Areas, not to exceed one trip in the Closed Area I or Closed Area II Access Areas. Occasional vessels were allocated one trip that could be taken in any Access Area that was open in the 2005 fishing year.
(ii)* * *
(B)Limited access scallop vessels involved in an exchange of Closed Area II and/or Nantucket Lightship Closed Area Access Area trips for the 2006 fishing year, and Elephant Trunk Access Area trips for the 2007 fishing year shall be subject to a reduction of the vessels' allocated trips so that the total number of allocated Elephant Trunk Access Area trips between two vessels that were involved in such an exchange shall be six for full-time vessels and four for part-time vessels in the 2007 fishing year. Reductions will be applied equally to both vessels' resulting Elephant Trunk Access Area allocation for the 2007 fishing year after the exchange is taken into account, unless the vessel giving Elephant Trunk Access Area trips to another vessel has one or zero Elephant Trunk Access Area trips remaining after the exchange. In such a case, the vessel that received the Elephant Trunk Access Area trips will be subject to a reduction of up to four Elephant Trunk Access Area trips.
(5)* * *
(i)*Scallop possession limits* . Unless authorized by the Regional Administrator, as specified in paragraphs
(c)and
(d)of this section, after declaring a trip into a Sea Scallop Access Area, a vessel owner or operator of a limited access scallop vessel may fish for, possess, and land, per trip, scallops, up to the maximum amounts specified in paragraphs (a)(5)(i)(A) and
(B)of this section. No vessel declared into the Elephant Trunk Access Area as described in § 648.59(e) may possess more than 50 bu (17.62 hL) of in-shell scallops outside of the Elephant Trunk Access Area described in § 648.59(e).
(A)Up to 18,000 lb (8,165 kg) of shucked scallops for full-time and part-time scallop vessels.
(B)Up to 7,500 lb (3,402 kg) of shucked scallops for occasional scallop vessels.
(d)* * *
(1)* * *
(v)*Elephant Trunk Access Area* . From March 1, 2007, through February 29, 2008, the observer set-aside for the Elephant Trunk Access Area is 173,100 lb (78.5 mt).
(e)* * *
(1)* * *
(v)*Elephant Trunk Access Area* . From March 1, 2007, through February 29, 2008, the research set-aside for the Elephant Trunk Access Area is 346,200 lb (157 mt).
(g)* * *
(3)* * *
(v)*Elephant Trunk Access Area* . 346,000 lb (157 mt) in 2007. [FR Doc. E7-24907 Filed 12-20-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No.060824226-6322-02] RIN 0648-XE38 Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Pacific Whiting Allocation AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Reapportionment of surplus Pacific whiting allocation; request for comments. SUMMARY: NMFS has determined that 6,000 metric tons
(mt)of the 87,398 mt shore-based sectors allocation would not be used by December 31, 2007. Therefore, automatic action was taken to reapportion the surplus whiting. DATES: Effective from noon l.t. November 28, 2007, until the start of the 2008 primary seasons, unless modified, superseded or rescinded. Comments will be accepted through January 7, 2008. ADDRESSES: You may submit comments, identified by the RIN number 0648-XE38, by any one of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal *http://www.regulations.gov* • Fax: 206-526-6736, Attn: Becky Renko • Mail: D. Robert Lohn, Administrator, Northwest Region, NMFS, 7600 Sand Point Way NE, Seattle, WA 98115-0070, Attn: Becky Renko Instructions: All comments received are a part of the public record and will generally be posted to *http://www.regulations.gov* without change. All personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments. Attachments to electronic comments will be accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. FOR FURTHER INFORMATION CONTACT: Becky Renko at 206-526-6110 SUPPLEMENTARY INFORMATION: This action is authorized by regulations implementing the Pacific Coast Groundfish Fishery Management Plan (FMP), which governs the groundfish fishery off Washington, Oregon, and California. The 2007 non-tribal commercial OY for whiting is 208,091 mt. Regulations at 50 CFR 660.323(a)(4) divide the commercial whiting optimum yield
(OY)into separate allocations for the catcher/processor, mothership, and shore-based sectors. The catcher/processor sector is composed of vessels that harvest and process whiting. The mothership sector is composed of catcher vessels that harvest whiting and mothership vessels that process, but do not harvest whiting. The shore-based sector is composed of vessels that harvest whiting for delivery to land-based processors. Each commercial sector receives a portion of the commercial OY. For 2007 the catcher/processors received 34 percent (70,751 mt), motherships received 24 percent (49,942 mt), and the shore-based sector received 42 percent (87,398 mt). The best available information on November 28, 2007, indicated that 6,000 metric tons
(mt)of the 87,398 mt shore-based sector's allocation would not be used by December 31, 2007. Therefore, automatic action was taken to reapportion the surplus whiting. Such reapportionments are generally disbursed to the other sectors in the same proportion as each sector's allotted portion of the commercial OY. However, the mothership sector did not express an interest in harvesting reapportioned whiting in 2007. Therefore, all surplus whiting from the shore-based sector was reallocated to the catcher/processor sector. Facsimiles directly to fishing businesses and postings on the Northwest Regions internet site were used to provide actual notice to the affected fishers. NMFS Action This action announces the reapportionment of 6,000 mt of whiting from the shore-based sector to the catcher/processor sector at noon local time November 28, 2007. The revised Pacific whiting allocations by sector for 2007 are: catcher/processor, 76,751 mt; mothership, 49,942 mt; and shore-based, 81,398 mt. Classification The determination to take this action is based on the most recent data available. The aggregate data upon which the determination is based are available for public inspection at the Office of the Regional Administrator (see ADDRESSES ) during business hours. This action is authorized by the regulations implementing the FMP. The determination to take this action is based on the most recent data available. The Assistant Administrator for Fisheries, NMFS, finds good cause to waive the requirement to provide prior notice and opportunity for comment on this action pursuant to 5 U.S.C. 553 (3)(b)(B), because providing prior notice and opportunity would be impracticable. It would be impracticable because of the need for immediate action. NMFS has determined that providing an opportunity for prior notice and comment would be impractical and contrary to public interest. Delay of this action would leave whiting unharvested. Unlike the catcher/processors, the smaller shore-based and mothership sectors are comprised of smaller catcher vessels that are less likely to operate in inclement fall and winter weather. The agency believes this constitutes good cause to waive the 30-day delay in effectiveness. In addition, the catcher/processors need an immediate reallocation if they are to keep their workers employed. This actions is taken under the authority of 50 CFR 660.323(a)(2), and are exempt from review under Executive Order 12866. Actual notice of the reapportionment was provided to the affected fishers. Authority: 16 U.S.C. 1801 *et seq.* Dated: December 17, 2007. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E7-24864 Filed 12-20-07; 8:45 am] BILLING CODE 3510-22-S 72 245 Friday, December 21, 2007 Proposed Rules FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2423 Unfair Labor Practice Proceedings AGENCY: Office of the General Counsel, Federal Labor Relations Authority. ACTION: Notice of proposed rulemaking. SUMMARY: The General Counsel of the Federal Labor Relations Authority
(FLRA)proposes to revise portions of its regulations regarding unfair labor practice
(ULP)proceedings (Part 2423, subpart A). The purpose of the proposed revisions is to clarify the Office of the General Counsel's
(OGC)role during the investigatory stage of processing unfair labor practice charges consistent with the policies of the General Counsel, and to clarify certain administrative matters relating to the filing and investigation of ULP charges. Implementation of the proposed changes confirms and enhances the neutrality of the OGC before a ULP merit determination is made. DATES: Comments must be received on or before January 22, 2008. ADDRESSES: Mail or deliver written comments to the Office of the Executive Director, Federal Labor Relations Authority, 1400 K Street, NW., Fourth Floor, Washington, DC 20424. Comments may also be e-mailed to *FLRAexecutivedirector@flra.gov* . FOR FURTHER INFORMATION CONTACT: Jill Crumpacker, Executive Director, at *jcrumpacker@flra.gov* . SUPPLEMENTARY INFORMATION: The OGC of the FLRA proposes modifications to the existing rules and regulations in subpart A of title 5 of the Code of Federal Regulations regarding the processing and investigation of ULP charges. Subpart A of the regulations has not been reexamined in its entirety since 1998, and before that since its enactment in 1980. The OGC has modified its policies, revising or rescinding many of the internal policies that were established prior to 1998 and which resulted in the 1998 regulatory changes. Accordingly, the General Counsel has proposed revisions to the regulations addressing the investigation and processing of ULP charges. The proposed revisions clarify the neutral fact-finding role of the OGC in the investigation of ULP charges. The proposed revisions continue to encourage parties involved in a ULP dispute to work collaboratively to resolve the dispute; however, consistent with the General Counsel's Settlement policy, the proposed revisions clarify that the OGC will not be involved in any way in resolving parties' disputes until after a determination has been made that a charge is meritorious. At that time, the OGC will aggressively use Alternative Dispute Resolution
(ADR)processes to resolve parties' ULP disputes and to avoid protracted litigation of ULP complaints. Sectional Analyses Sectional analyses of the revisions to Part 2423—Unfair Labor Practice Proceedings are as follows: Part 2423—Unfair Labor Practice Proceedings Section 2423.0 This part is applicable to any charge of an alleged ULP pending or filed with the Authority on or after February 1, 2008. Subpart A—Filing, Investigating, Resolving, and Acting on Charges Section 2423.1 The current section encourages parties to meet and resolve ULP disputes prior to filing ULP charges. The proposed revision continues to encourage parties to settle their ULP disputes, and clarifies that the OGC will assist the parties in resolving their dispute only once a decision has been made that the issuance of a ULP complaint is warranted. The proposed revision promotes an understanding that the parties to a ULP dispute are responsible for their relationship and the resolution of their disputes. The proposed revision is intended to preserve the neutrality of the OGC in the investigation and processing of ULP charges, and incorporates the General Counsel's Settlement Policy, which is set forth in its entirety on the FLRA's Web site at *www.FLRA.gov* . Where the parties are unable to resolve their dispute on their own and where a determination is made that the Federal Service Labor-Management Relations Statute (Statute) has been violated, the OGC—as set forth in other sections of the proposed revised regulations—will actively work with the parties using ADR processes to reach a satisfactory resolution that is consistent with the Statute and resolves the parties' ULP dispute. Section 2423.2 The current section sets forth the specific ADR services that the OGC may provide. The parties are redirected to § 2423.12, which sets forth the ADR services that the OGC may now provide consistent with the General Counsel's Settlement Policy. Section 2423.3 This section, which identifies who may file a ULP charge, is unchanged. Section 2423.4 This section, describing the content of a ULP charge, is substantially unchanged. The proposed revisions provide for the inclusion of e-mail addresses for all of the parties. The proposed revision also includes a subsection addressing when a ULP charge must be filed and reiterates the statutory time limits for the filing of a ULP charge set forth in 5 U.S.C. 7118(a)(4). Section 2423.5 This section, which is reserved, is unchanged. Section 2423.6 The current section remains substantially unchanged. The proposed revisions address an issue previously not addressed in the regulations, and clarify that a charge received after the close of business will be deemed received and docketed the next business day. The current section limited to two pages the number of pages that a party could fax to an OGC Regional Office when filing a charge. The proposed revision eliminates that limitation and returns it to the current limitation of 10 pages, consistent with 5 CFR § 2429.24. Section 2423.7 The current section, which provides for alternative case processing, incorporates the internal OGC policies and procedures established under the 1998 revisions. Consistent with current internal OGC policies and procedures, this section is being eliminated. Under the proposed revisions the parties to a ULP dispute are always encouraged to work collaboratively to resolve their own dispute, taking a problem-solving approach, rather than filing a ULP charge. Once a ULP charge is filed, parties are also encouraged on their own to attempt to resolve their dispute while the OGC conducts its investigation of the facts and determines the merits of the charge. Section 2423.8 This section, which provides for the investigation of charges, is substantially unchanged. The proposed revisions clarify and confirm that all investigations conducted by the OGC are neutral and unbiased. The revisions further clarify that the failure of a party to cooperate during an investigation may result in a ULP charge being dismissed by the Regional Director. Section 2423.9 This section is unchanged. Section 2423.10 This section, which provides for the action by the Regional Director, remains substantially unchanged. The proposed revisions modify this section to be consistent with the other sections under this part that the Regional Director takes its action on behalf of the General Counsel. The proposed revision also modifies the wording to reflect action currently taken on a charge that is determined to be without merit, *i.e.* , that the charge is dismissed. Section 2423.11 The proposed revisions provide that all parties to a dispute will be advised of an OGC decision to dismiss a ULP charge upon completion of the investigation. This ensures that both parties to the dispute are apprised of the result of the investigation at the same time and maintains the neutrality of the OGC. The proposed revisions also incorporate the opportunity for a Charging Party to withdraw the charge prior to the issuance of the dismissal letter. This section also rewords the grounds for appeal to include when a Regional Director's decision is based on an incorrect statement or application of the applicable rule of law, rather than only when a Regional Director's decision is based on an incorrect statement of the applicable rule of law. Section 2423.12 This section, which provides for the settlement of ULP charges after a Regional Director's determination to issue a complaint, sets forth that the OGC will utilize ADR processes to assist the parties in resolving the ULP dispute and to avoid the cost of protracted litigation. Regulatory Flexibility Act Certification Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the General Counsel of the FLRA has determined that this regulation, as amended, will not have a significant impact on a substantial number of small entities, because this rule applies to Federal employees, Federal agencies, and labor organizations representing Federal employees. Unfunded Mandates Reform Act of 1995 This rule change will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, 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 action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 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 export markets. Paperwork Reduction Act of 1995 The amended regulations contain no additional information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, *et seq.* List of Subjects in 5 CFR Part 2423 Administrative practice and procedure, Government employees, Labor management relations. For these reasons, the General Counsel of the Federal Labor Relations Authority, proposes to amend 5 CFR part 2423 as follows: PART 2423—UNFAIR LABOR PRACTICE PROCEEDINGS 1. The authority citation for part 2423 continues to read as follows: Authority: 5 U.S.C. 7134. 2. Section 2423.0 and subpart A of part 2423 are revised to read as follows: Sec. 2423.0 Applicability of this part. Subpart A—Filing, Investigating, Resolving, and Acting on Charges Sec. 2423.1 Resolution of unfair labor practice disputes prior to a Regional Director determination whether to issue a complaint. 2423.2 Alternative Dispute Resolution
(ADR)services. 2423.3 Who may file charges. 2423.4 Contents of the charge; supporting evidence and documents. 2423.5 [Reserved] 2423.6 Filing and service of copies. 2423.7 [Reserved] 2423.8 Investigation of charges. 2423.9 Amendment of charges. 2423.10 Action by the Regional Director. 2423.11 Determination not to issue complaint; review of action by the Regional Director. 2423.12 Settlement of unfair labor practice charges after a Regional Director determination to issue a complaint but prior to issuance of a complaint. 2423.13-2423.19 [Reserved] § 2423.0 Applicability of this part. This part is applicable to any charge of alleged unfair labor practices pending or filed with the Authority on or after February 1, 2008, and any complaint filed on or after October 1, 1997. Subpart A—Filing, Investigating, Resolving, and Acting on Charges § 2423.1 Resolution of unfair labor practice disputes prior to a Regional Director determination whether to issue a complaint. The purposes and policies of the Federal Service Labor-Management Relations Statute can best be achieved by the collaborative efforts of all persons covered by that law. The General Counsel encourages all persons on their own to meet, and in good faith, attempt to settle unfair labor practice disputes. To maintain complete neutrality, the General Counsel may not be involved with such settlement discussions with the parties prior to a Regional Director determination on the merits. Attempts by the parties to resolve unfair labor practice disputes prior to filing an unfair labor practice charge do not toll the time limitations for filing a charge set forth at 5 U.S.C. 7118(a)(4). § 2423.2 Alternative Dispute Resolution
(ADR)services. The General Counsel provides ADR services under § 2423.12(a) after a Regional Director has determined to issue a complaint. § 2423.3 Who may file charges.
(a)*Filing charges* . Any person may charge an activity, agency or labor organization with having engaged in, or engaging in, any unfair labor practice prohibited under 5 U.S.C. 7116.
(b)*Charging Party* . Charging Party means the individual, labor organization, activity or agency filing an unfair labor practice charge with a Regional Director.
(c)*Charged Party* . Charged Party means the activity, agency or labor organization charged with allegedly having engaged in, or engaging in, an unfair labor practice. § 2423.4 Contents of the charge; supporting evidence and documents.
(a)*What to file* . The Charging Party may file a charge alleging a violation of 5 U.S.C. 7116 by completing a form prescribed by the General Counsel, or on a substantially similar form, that contains the following information:
(1)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address of the Charging Party;
(2)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address of the Charged Party;
(3)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address of the Charging Party's point of contact;
(4)The name, address, telephone number, facsimile number (where facsimile equipment is available), and e-mail address of the Charged Party's point of contact;
(5)A clear and concise statement of the facts alleged to constitute an unfair labor practice, a statement of how those facts allegedly violate specific section(s) and paragraph(s) of the Federal Service Labor-Management Relations Statute and the date and place of occurrence of the particular acts; and
(6)A statement whether the subject matter raised in the charge:
(i)Has been raised previously in a grievance procedure;
(ii)Has been referred to the Federal Service Impasses Panel, the Federal Mediation and Conciliation Service, the Equal Employment Opportunity Commission, the Merit Systems Protection Board, or the Office of the Special Counsel for consideration or action;
(iii)Involves a negotiability issue raised by the Charging Party in a petition pending before the Authority pursuant to part 2424 of this subchapter; or
(iv)Has been the subject of any other administrative or judicial proceeding.
(7)A statement describing the result or status of any proceeding identified in paragraph (a)(6) of this section.
(b)*When to file* . Under 5 U.S.C. 7118 (a)(4), a charge alleging an unfair labor practice must normally be filed within six
(6)months of its occurrence.
(c)*Declarations of truth and statement of service* . A charge shall be in writing and signed, and shall contain a declaration by the individual signing the charge, under the penalties of the Criminal Code (18 U.S.C. 1001), that its contents are true and correct to the best of that individual's knowledge and belief.
(d)*Statement of service* . A charge shall also contain a statement that the Charging Party served the charge on the Charged Party, and shall list the name, title and location of the individual served, and the method of service.
(e)*Self-contained document* . A charge shall be a self-contained document describing the alleged unfair labor practice without a need to refer to supporting evidence and documents submitted under paragraph
(f)of this section.
(f)*Submitting supporting evidence and documents and identifying potential witnesses* . When filing a charge, the Charging Party shall submit to the Regional Director, any supporting evidence and documents, including, but not limited to, correspondence and memoranda, records, reports, applicable collective bargaining agreement clauses, memoranda of understanding, minutes of meetings, applicable regulations, statements of position and other documentary evidence. The Charging Party also shall identify potential witnesses with contact information (telephone number, e-mail address, and facsimile number) and shall provide a brief synopsis of their expected testimony. § 2423.5 [Reserved] § 2423.6 Filing and service of copies.
(a)*Where to file* . A Charging Party shall file the charge with the Regional Director for the region in which the alleged unfair labor practice has occurred or is occurring. A charge alleging that an unfair labor practice has occurred or is occurring in two or more regions may be filed with the Regional Director in any of those regions.
(b)*Filing date* . A charge is deemed filed when it is received by a Regional Director. A charge received in a Region after the close of the business day will be deemed received and docketed on the next business day. The business hours for each of the Regional Offices are set forth at *www.FLRA.gov* .
(c)*Method of filing* . A Charging Party may file a charge with the Regional Director in person or by commercial delivery, first class mail, facsimile or certified mail. If filing by facsimile transmission, the Charging Party is not required to file an original copy of the charge with the Region. A Charging Party assumes responsibility for receipt of a charge. Supporting evidence and documents must be submitted to the Regional Director in person, by commercial delivery, first class mail, certified mail, or by facsimile transmission. Charges shall not be filed by electronic mail.
(d)*Service of the charge* . The Charging Party shall serve a copy of the charge (without supporting evidence and documents) on the Charged Party. Where facsimile equipment is available, the charge may be served by facsimile transmission in accordance with paragraph
(c)of this section. § 2423.7 [Reserved] § 2423.8 Investigation of charges.
(a)*Investigation* . The Regional Director, on behalf of the General Counsel, conducts an unbiased, neutral investigation of the charge as the Regional Director deems necessary. During the course of the investigation, all parties involved are afforded an opportunity to present their evidence and views to the Regional Director.
(b)*Cooperation* . The purposes and policies of the Federal Service Labor-Management Relations Statute can best be achieved by the full cooperation of all parties involved and the timely submission of all potentially relevant information from all potential sources during the course of the investigation. All persons shall cooperate fully with the Regional Director in the investigation of charges. The failure of a Charging Party to cooperate during an investigation may provide grounds for a Regional Director to dismiss the charge for failure to produce evidence supporting the charge. Cooperation includes any of the following actions, when deemed appropriate by the Regional Director:
(1)Making union officials, employees, and agency supervisors and managers available to give sworn/affirmed testimony regarding matters under investigation;
(2)Producing documentary evidence pertinent to the matters under investigation; and
(3)Providing statements of position on the matters under investigation.
(c)*Investigatory subpoenas* . If a person fails to cooperate with the Regional Director in the investigation of a charge, the General Counsel, upon recommendation of a Regional Director, may decide in appropriate circumstances to issue a subpoena under 5 U.S.C. 7132 for the attendance and testimony of witnesses and the production of documentary or other evidence. However, no subpoena shall be issued under this section which requires the disclosure of intramanagement guidance, advice, counsel or training within an agency or between an agency and the Office of Personnel Management.
(1)A subpoena shall be served by any individual who is at least 18 years old and who is not a party to the proceeding. The individual who served the subpoena must certify that he or she did so:
(i)By delivering it to the witness in person;
(ii)By registered or certified mail; or
(iii)By delivering the subpoena to a responsible individual (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended. The subpoena shall show on its face the name and address of the Regional Director and the General Counsel.
(2)Any person served with a subpoena who does not intend to comply shall, within 5 days after the date of service of the subpoena upon such person, petition in writing to revoke the subpoena. A copy of any petition to revoke shall be served on the General Counsel.
(3)The General Counsel shall revoke the subpoena if the witness or evidence, the production of which is required, is not material and relevant to the matters under investigation or in question in the proceedings, or the subpoena does not describe with sufficient particularity the evidence the production of which is required, or if for any other reason sufficient in law the subpoena is invalid. The General Counsel shall state the procedural or other grounds for the ruling on the petition to revoke. The petition to revoke, shall become part of the official record if there is a hearing under subpart C of this part.
(4)Upon the failure of any person to comply with a subpoena issued by the General Counsel, the General Counsel shall determine whether to institute proceedings in the appropriate district court for the enforcement of the subpoena. Enforcement shall not be sought if to do so would be inconsistent with law, including the Federal Service Labor-Management Relations Statute.
(d)*Confidentiality* . It is the General Counsel's policy to protect the identity of individuals who submit statements and information during the investigation, and to protect against the disclosure of documents obtained during the investigation, as a means of ensuring the General Counsel's continuing ability to obtain all relevant information. After issuance of a complaint and in preparation for a hearing, however, identification of witnesses, a synopsis of their expected testimony and documents proposed to be offered into evidence at the hearing may be disclosed as required by the prehearing disclosure requirements in § 2423.23. § 2423.9 Amendment of charges. Prior to the issuance of a complaint, the Charging Party may amend the charge in accordance with the requirements set forth in § 2423.6. § 2423.10 Action by the Regional Director.
(a)*Regional Director action* . The Regional Director, on behalf of the General Counsel, may take any of the following actions, as appropriate:
(1)Approve a request to withdraw a charge;
(2)Dismiss a charge;
(3)Approve a written settlement agreement in accordance with the provisions of § 2423.12;
(4)Issue a complaint; or
(5)Withdraw a complaint.
(b)*Request for appropriate temporary relief* . Parties may request the General Counsel to seek appropriate temporary relief (including a restraining order) under 5 U.S.C. 7123(d). The General Counsel may initiate and prosecute injunctive proceedings under 5 U.S.C. 7123(d) only upon approval of the Authority. A determination by the General Counsel not to seek approval of the Authority to seek such appropriate temporary relief is final and shall not be appealed to the Authority.
(c)*General Counsel requests to the Authority* . When a complaint issues and the Authority approves the General Counsel's request to seek appropriate temporary relief (including a restraining order) under 5 U.S.C. 7123(d), the General Counsel may make application for appropriate temporary relief (including a restraining order) in the district court of the United States within which the unfair labor practice is alleged to have occurred or in which the party sought to be enjoined resides or transacts business. Temporary relief may be sought if it is just and proper and the record establishes probable cause that an unfair labor practice is being committed. Temporary relief shall not be sought if it would interfere with the ability of the agency to carry out its essential functions.
(d)*Actions subsequent to obtaining appropriate temporary relief* . The General Counsel shall inform the district court which granted temporary relief pursuant to 5 U.S.C. 7123(d) whenever an Administrative Law Judge recommends dismissal of the complaint, in whole or in part. § 2423.11 Determination not to issue complaint; review of action by the Regional Director.
(a)*Opportunity to withdraw a charge* . If, upon the completion of an investigation under § 2423.8, a decision has been made to dismiss the charge, the Regional Director will notify the parties of the decision and the Charging Party will be advised of an opportunity to withdraw the charge(s).
(b)*Dismissal letter* . If the Charging Party does not withdraw the charge within a reasonable period of time, the Regional Director will, on behalf of the General Counsel, dismiss the charge and provide the parties with a written statement of the reasons for not issuing a complaint.
(c)*Appeal of a dismissal letter* . The Charging Party may obtain review of the Regional Director's decision not to issue a complaint by filing an appeal with the General Counsel within 25 days after service of the Regional Director's decision. A Charging Party shall serve a copy of the appeal on the Regional Director. The General Counsel shall serve notice on the Charged Party that an appeal has been filed.
(d)*Extension of time* . The Charging Party may file a request, in writing, for an extension of time to file an appeal, which shall be received by the General Counsel not later than 5 days before the date the appeal is due. A Charging Party shall serve a copy of the request for an extension of time on the Regional Director.
(e)*Grounds for granting an appeal* . The General Counsel may grant an appeal when the appeal establishes at least one of the following grounds:
(1)The Regional Director's decision did not consider material facts that would have resulted in issuance of a complaint;
(2)The Regional Director's decision is based on a finding of a material fact that is clearly erroneous;
(3)The Regional Director's decision is based on an incorrect statement or application of the applicable rule of law;
(4)There is no Authority precedent on the legal issue in the case; or
(5)The manner in which the Region conducted the investigation has resulted in prejudicial error.
(f)*General Counsel action* . The General Counsel may deny the appeal of the Regional Director's dismissal of the charge, or may grant the appeal and remand the case to the Regional Director to take further action. The General Counsel's decision on the appeal states the grounds listed in paragraph
(e)of this section for denying or granting the appeal, and is served on all the parties. Absent a timely motion for reconsideration, the decision of the General Counsel is final.
(g)*Reconsideration* . After the General Counsel issues a final decision, the Charging Party may move for reconsideration of the final decision if it can establish extraordinary circumstances in its moving papers. The motion shall be filed within 10 days after the date on which the General Counsel's final decision is postmarked. A motion for reconsideration shall state with particularity the extraordinary circumstances claimed and shall be supported by appropriate citations. The decision of the General Counsel on a motion for reconsideration is final. § 2423.12 Settlement of unfair labor practice charges after a Regional Director determination to issue a complaint but prior to issuance of a complaint.
(a)*Alternative Dispute Resolution (ADR)* . After a merit determination to issue a complaint, the Regional Director will work with the parties to settle the dispute using ADR, to avoid costly and protracted litigation.
(b)*Bilateral informal settlement agreement* . Prior to issuing a complaint but after a merit determination by the Regional Director, the Regional Director may afford the Charging Party and the Charged Party a reasonable period of time to enter into an informal settlement agreement to be approved by the Regional Director. When a Charged Party complies with the terms of an informal settlement agreement approved by the Regional Director, no further action is taken in the case. If the Charged Party fails to perform its obligations under the approved informal settlement agreement, the Regional Director may institute further proceedings.
(c)*Unilateral informal settlement agreement* . If the Charging Party elects not to become a party to a bilateral settlement agreement which the Regional Director concludes effectuates the policies of the Federal Service Labor-Management Relations Statute, the Regional Director may choose to approve a unilateral settlement between the General Counsel and the Charged Party. The Regional Director, on behalf of the General Counsel, shall issue a letter stating the grounds for approving the settlement agreement and declining to issue a complaint. The Charging Party may obtain review of the Regional Director's action by filing an appeal with the General Counsel in accordance with § 2423.11(c) and (d). The General Counsel shall take action on the appeal as set forth in § 2423.11(e)-(g). §§ 2423.13-2423.19 [Reserved] Dated: December 18, 2007. Colleen Duffy Kiko, General Counsel, Federal Labor Relations Authority. [FR Doc. E7-24846 Filed 12-20-07; 8:45 am] BILLING CODE 6727-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. 2002-NM-260-AD] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited (Jetstream) Model 4101 Airplanes AGENCY: Federal Aviation Administration, DOT. ACTION: Proposed rule; withdrawal. SUMMARY: This action withdraws a notice of proposed rulemaking
(NPRM)that proposed a new airworthiness directive (AD), applicable to all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes. That action would have required revising the airplane flight manual to advise the flightcrew of special operating limitations associated with a reduction in airplane performance due to loss of propeller efficiency. That action also would have required installing placards in the flight compartment and operating the airplane per certain special operating limitations; or performing repetitive flight checks to verify the adequacy of the airplane's climb performance, and accomplishing follow-on actions if necessary. Since the issuance of the NPRM, the Federal Aviation Administration
(FAA)has issued another NPRM applicable to certain propellers, which addresses the identified unsafe condition. Accordingly, the proposed rule is withdrawn. FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes, was published in the **Federal Register** as a Notice of Proposed Rulemaking
(NPRM)on February 6, 2004 (69 FR 5775). The proposed rule would have required revising the airplane flight manual to advise the flightcrew of special operating limitations associated with a reduction in airplane performance due to loss of propeller efficiency. That action also would have required installing placards in the flight compartment and operating the airplane per certain special operating limitations; or performing repetitive flight checks to verify the adequacy of the airplane's climb performance, and accomplishing follow-on actions if necessary. That action was prompted by a report indicating that a shortfall in engine performance, compared to the performance standards shown in the airplane flight manual (AFM), has been observed during climb-performance test flights. The proposed actions were intended to ensure that the flightcrew accounts for the potential loss of airplane performance due to loss of propeller efficiency, which could result in an increased risk of collision with terrain. Actions that Occurred Since the NPRM Was Issued On October 24, 2007, we issued NPRM, Docket No. FAA-2006-25173, for McCauley Propeller Systems propeller models B5JFR36C1101/114GCA-0, C5JFR36C1102/L114GCA-0, B5JFR36C1103/114HCA-0, and C5JFR36C1104/L114HCA-0. These propellers are installed on BAE Systems (Operations) Limited (Jetstream) Model 4100 and 4101 airplanes. That NPRM would require, for certain blades, fluorescent penetrant inspections
(FPI)and eddy current inspections
(ECI)of propeller blades for cracks based on hours time-in-service after the effective date of the AD, and if any crack indications are found, removal from service. Also, the NPRM would require inspecting for blunt leading edges of the propeller blades while inspecting them for cracks, and if necessary, dressing any erosion before returning the blades to service. That NPRM results from our determination that we must require repetitive inspections for cracks, and from reports of blunt leading edges of the propeller blades due to erosion. We issued that NPRM to detect cracks in the propeller blade that could cause failure and separation of the propeller blade and loss of control of the airplane, and to detect blunt leading edges on the propeller blades, which could cause airplane single engine climb performance degradation and could result in an increased risk of collision with terrain. FAA's Conclusions Upon further consideration, we have determined that, for all BAE Systems (Operations) Limited (Jetstream) Model 4101 airplanes, the proposed actions specified in NPRM, Docket No. FAA-2006-25173, more adequately address loss of propeller efficiency due to erosion or profile changes of the propeller blade's leading edge. Accordingly, the proposed rule is hereby withdrawn. Withdrawal of this NPRM constitutes only such action, and does not preclude the agency from issuing another action in the future, nor does it commit the agency to any course of action in the future. Regulatory Impact Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Withdrawal Accordingly, the notice of proposed rulemaking, Docket 2002-NM-260-AD, published in the **Federal Register** on February 6, 2004 (69 FR 5775), is withdrawn. Issued in Renton, Washington, on December 14, 2007. Michael J. Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-24821 Filed 12-20-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 [Docket No. FAA-2007-29305; Notice No. 07-15] RIN 2120-AI92 Automatic Dependent Surveillance—Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control
(ATC)Service AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of availability. SUMMARY: This notice announces the availability of a revised Initial Regulatory Flexibility Analysis associated with the notice of proposed rulemaking entitled, “Automatic Dependent Surveillance-Broadcast (ADS-B) Out performance requirements to support Air Traffic Control
(ATC)service.” DATES: The comment period for the Notice of Proposed Rulemaking
(NPRM)published on October 5, 2007 (72 FR 56947), as extended on November 19, 2007 (72 FR 64966), closes March 3, 2008. ADDRESSES: You may send comments identified by Docket Number FAA-2007-29305 using any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Send comments to Docket Operations, M-30, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590. • *Fax:* Fax comments to Docket Operations at 202-493-2251. • *Hand Delivery:* Bring comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. *Privacy:* We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78) or you may visit *http://DocketsInfo.dot.gov* . *Docket:* To read background documents or comments received, go to *http://www.regulations.gov* at any time or to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Thomas C. Smith, Regulatory Analysis Division, Office of Aviation Policy and Plans, APO-310, Federal Aviation Administration, 800 Independence Ave., SW., Washington, DC 20591; telephone number:
(202)267-3289; *thomas.c.smith@faa.gov* . SUPPLEMENTARY INFORMATION Availability of Rulemaking Documents You can get an electronic copy of rulemaking documents using the Internet by— 1. Searching the Federal eRulemaking Portal ( *http://www.regulations.gov* ); 2. Visiting the FAA's Regulations and Policies Web page at *http://www.faa.gov/regulations_policies/* ; or 3. Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html* . You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling
(202)267-9680. Make sure to identify the docket number, notice number, or amendment number of this rulemaking. Discussion On October 1, 2007, the Federal Aviation Administration
(FAA)issued a notice of proposed rulemaking
(NPRM)entitled, “Automatic Dependent Surveillance—Broadcast (ADS-B) Out performance requirements to support Air Traffic Control
(ATC)service” (72 FR 56947; October 5, 2007). The comment period for the NPRM, as extended on November 19, 2007 (72 FR 64966), closes on March 3, 2007. The Small Business Administration's
(SBA)Office of Advocacy has asked us to revise the Initial Regulatory Flexibility Analysis
(IRFA)associated with the NPRM and to publish the revised IRFA in the **Federal Register** . 1 Specifically, the SBA was concerned that two tables that we included in the IRFA might be misleading. The tables listed specific data on a sample of 34 U.S. part 91, 121, and 135 operators. We used data from the sample along with Census Bureau data to extrapolate the number of small entities in the U.S. that might be significantly affected by the proposed rule. We then concluded that the proposal would have a significant effect on a substantial number of small entities. 1 The original IRFA can be found in the FAA's Draft Regulatory Impact Analysis, Document ID FAA-2007-29305-0004.1 at the Federal eRulemaking Portal ( *http://www.regulations.gov* ). The SBA was concerned that inclusion of these tables would cause companies to mistakenly conclude that the proposed rule would only have a significant impact on those companies listed. We do not want to create such an impression as those companies listed were used as a sample. Therefore, we changed the IRFA by removing the tables and provided a fuller discussion. The analysis examines whether the proposed rulemaking would have a significant economic impact on a substantial number of small entities. Initial Regulatory Flexibility Determination ADS-B Introduction and Purpose of This Analysis The Regulatory Flexibility Act of 1980 (Pub. L. 96-354)
(RFA)establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the 1980 RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear. The FAA believes that this proposal would result in a significant economic impact on a substantial number of small entities. The purpose of this analysis is to provide the reasoning underlying the FAA determination. Under Section 603(b) of the RFA, the analysis must address: • Description of reasons the agency is considering the action, • Statement of the legal basis and objectives for the proposed rule, • Description of the recordkeeping and other compliance requirements of the proposed rule, • All federal rules that may duplicate, overlap, or conflict with the proposed rule, • Description and an estimated number of small entities to which the proposed rule will apply, • Analysis of small firms' ability to afford the proposed rule, • Estimation of the potential for business closures, • Conduct a competitive analysis, • Conduct a disproportionality analysis, and • Describe the alternatives considered. Reasons Why the Rule Is Being Proposed Public Law 108-176, referred to as “The Century of Aviation Reauthorization Act,” was enacted December 12, 2003 (Pub. L. 108-176). This law set forth requirements and objectives for transforming the air transportation system to progress further into the 21st Century. Section 709 of this statute requires the Secretary of Transportation to establish in the FAA a joint planning and development office
(JPDO)to manage work related to the Next Generation Air Transportation System (NextGen). Among its statutorily defined responsibilities, the JPDO coordinates the development and utilization of new technologies to ensure that when available, they may be used to the fullest potential in aircraft and in the air traffic control system. The FAA, the National Aeronautics and Space Administration
(NASA)and the Departments of Commerce, Defense, and Homeland Security have launched an effort to align their resources to develop and further the NextGen. The goals of NextGen, as stated in section 709, are addressed by this proposal and include:
(1)improve the level of safety, security, efficiency, quality, and affordability of the NAS and aviation services;
(2)take advantage of data from emerging ground-based and space-based communications, navigation, and surveillance technologies;
(3)be scalable to accommodate and encourage substantial growth in domestic and international transportation and anticipating and accommodating continuing technology upgrades and advances; and
(4)accommodate a wide range of aircraft operations, including airlines, air taxis, helicopters, general aviation, and unmanned aerial vehicles. The JPDO was also charged to create and carry out an integrated plan for NextGen. The NextGen Integrated Plan, 2 transmitted to Congress on December 12, 2004, ensures that the NextGen system meets the air transportation safety, security, mobility, efficiency and capacity needs beyond those currently included in the FAA's Operational Evolution Plan (OEP). As described in the NextGen Integrated Plan, the current approach to air transportation, i.e., ground based radars tracking congested flyways and passing information among the control centers for the duration of the flights, is becoming operationally obsolete. The current system is increasingly inefficient and large increases in air traffic will only result in mounting delays or limitations in service for many areas. 2 A copy of the Plan has been placed in the docket for this rulemaking. This growth will result in more air traffic than the present system can handle. The current method of handling traffic flow will not be able to adapt to the highest volume and density of it in the future. It is not only the number of flights but also the nature of the new growth that is problematic, as the future of aviation will be much more diverse than it is today. For example, a shift of two percent of today's commercial passengers to micro-jets that seat 4-6 passengers would result in triple the number of flights in order to carry the same number of passengers. Furthermore, the challenges grow as other non-conventional aircraft, such as unmanned aircraft, are developed for special operations, e.g. forest fire fighting. The FAA believes that ADS-B technology is a key component in achieving many of the goals set forth in the plan. This proposed rule embraces a new approach to surveillance that can lead to greater and more efficient utilization of airspace. The NextGen Integrated Plan articulates several large transformation strategies in its roadmap to successfully creating the Next Generation System. This proposal is a major step toward strategically “establishing an agile air traffic system that accommodates future requirements and readily responds to shifts in demand from all users.” ADS-B technology would assist in the transition to a system with less dependence on ground infrastructure and facilities, and provide for more efficient use of airspace. Statement of the Legal Basis and Objectives The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103, Sovereignty and use of airspace, and Subpart III, section 44701, General requirements. Under section 40103, the FAA is charged with prescribing regulations on the flight of aircraft, including regulations on safe altitudes, navigating, protecting, and identifying aircraft, and the safe and efficient use of the navigable airspace. Under section 44701, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This proposal is within the scope of sections 40103 and 44701 since it proposes aircraft performance requirements that would meet advanced surveillance needs to accommodate the projected increase in operations within the National Airspace System (NAS). As more aircraft operate within the U.S. airspace, improved surveillance performance is necessary to continue to balance the growth in air transportation with the agency's mandate for a safe and efficient air transportation system. Projected Reporting, Recordkeeping and Other Requirements We expect no more than minimal new reporting and recordkeeping compliance requirements to result from this proposed rule. Costs for the initial installation of new equipment and associated labor constitute a burden under the Paperwork Reduction Act. The Paperwork Reduction Act analysis was included in the full Regulatory Analysis that is included in the docket for this rulemaking. Overlapping, Duplicative, or Conflicting Federal Rules We are unaware that the proposed rule will overlap, duplicate or conflict with existing Federal Rules. Estimated Number of Small Firms Potentially Impacted Under the RFA, the FAA must determine whether a proposed rule significantly affects a substantial number of small entities. This determination is typically based on small entity size and cost thresholds that vary depending on the affected industry. Using the size standards from the Small Business Administration for Air Transportation and Aircraft Manufacturing, we defined companies as small entities if they have fewer than 1,500 employees. 3 3 13 CFR Part 121.201, Size Standards Used to Define Small Business Concerns, Sector 48-49 Transportation, Subsector 481 Air Transportation. This proposed rule would become final in 2009 and fully effective in 2020. Although the FAA forecasts traffic and air carrier fleets to 2030, our forecasts do not have the granularity to determine if an operator will likely still be in business or will still remain a small business entity. Therefore we will use current U.S. operator's fleet and employment in order to determine the number of operators this proposal would affect. We obtained a list of part 91, 121 and 135 U.S. operators from the FAA Flight Standards Service. 4 Using information provided by the U.S. Department of Transportation Form 41 filings, World Aviation Directory and ReferenceUSA, operators that are subsidiary businesses of larger businesses and businesses with more than 1,500 employees were eliminated from the list of small entities. In many cases the employment and annual revenue data was not public and we did not include these companies in our analysis. For the remaining businesses, we obtained company revenue and employment from the above three sources. 4 AFS-260. The methodology discussed above resulted in a sample of 34 U.S. part 91, 121 and 135 operators, with less than 1,500 employees, who operate 341 airplanes. Due to the sparse amount of publicly available data on internal company financial statistics for small entities, it is not feasible to estimate the total population of small entities affected by this proposed rule. These 34 U.S. small entity operators are a representative sample to assess the cost impact of the total population of small businesses, who operate aircraft affected by this proposed rulemaking. This representative sample was then applied to the U.S. Census Bureau data on the Small Business Administration's website to develop an estimate of the total number of affected small business entities. The U.S. Census Bureau data lists small entities in the Air Transportation Industry that employ less than 500 employees. Other small businesses may own aircraft and not be included in the U.S. Census Bureau Air Transportation Industry category. Therefore our estimate of the number of affected small entities affected by this proposed rulemaking will likely be understated. The estimate of the total number of affected small entities is developed below. Cost and Affordability for Small Entities To assess the cost impact to small business part 91, 121 and 135 operators, we contacted manufacturers, industry associations, and ADS-B equipage providers to estimate ADS-B equipage costs. We requested estimates of airborne installation costs, by aircraft model, for the output parameters listed in the *Equipment Specifications* section of the Regulatory Evaluation. To satisfy the manufacturer's request to keep individual aircraft pricing confidential, we calculated a low, baseline, and high range of costs by equipment class. The baseline estimate equals the average of the low and high industry estimates. The dollar value ranges consist of a wide variety of avionics within each aircraft group. The aircraft architecture within each equipment group can vary, causing different carriage, labor and wiring requirements for the installation of ADS-B. Volume discounting versus single line purchasing also affects the dollar value ranges. On the low end, the dollar value may represent a software upgrade or OEM option change. On the high end, the dollar value may represent a new installation of upgraded transponder systems necessary to assure accuracy, reliability and safety. We used the estimated baseline dollar value cost by equipment class in determining the impact to small business entities. We estimated each operator's total compliance cost by multiplying the baseline dollar value cost, by equipment class, by the number of aircraft each small business operator currently has in its fleet. We summed these costs by equipment class and group. We then measured the economic impact on small entities by dividing the estimated baseline dollar value compliance cost for their fleet by the small entity's annual revenue. Each equipment group operated by a small entity may have to comply with different requirements in the proposed rule depending on the state of the aircraft's avionics. In the *ADS-B Out Equipage Cost Estimate* section of the Regulatory Evaluation we detail our methodology to estimate operators' total compliance cost by equipment group. The ADS-B cost is estimated to be greater than two percent of annual revenues for about 35 percent and greater than one percent of annual revenues for about 54 percent of the small entity operators in our sample population of 34 small aviation entities. Applying these percentages to the 2,719 firms with employment under 500 from the Air Transportation Industry category of the U.S. Census Bureau data 5 results in the estimated ADS-B cost being greater than two percent of annual revenues for at least 960 small entities and greater than one percent of annual revenues for at least 1,476 small entity operators. 5 *http://www.sba.gov/advo/research/us04_n6.pdf.* Thus the FAA has determined that a substantial number of small entities would be significantly affected by the proposed rule. Every small entity who operates an aircraft in the airspace defined by this proposal would be required to install ADS-B out equipage and therefore would be affected by this rulemaking. Business Closure Analysis For commercial operators, the ratio of present-value costs to annual revenue shows that seven of 34 small business air operator firms analyzed would have ratios in excess of five percent. Since many of the other commercial small business air operator firms do not make their annual revenue publicly available, it is difficult to assess the financial impact of this proposed rule on their business. To fully assess whether this proposed rule could force a small entity into bankruptcy requires more financial information than is publicly available. The FAA seeks comment, with supportive justification, to determine the degree of hardship, and feasible alternative methods of compliance, the proposed rule will have on these small entities. Competitive Analysis The aviation industry is an extremely competitive industry with slim profit margins. The number of operators who entered the industry and have stopped operations because of mergers, acquisitions, or bankruptcy litters the history of the aviation industry. The FAA analyzed five years of operating profits for the affected small-entity operators listed above. We were able to determine the operating profit for 18 of the 34 small business entities. The FAA discovered that 33 percent of these 18 affected operators' average operating profit is negative. Only four of the 18 affected operators had average annual operating profit that exceeded $10,000,000. In this competitive industry, cost increases imposed by this proposed regulation would be hard to recover by raising prices, especially by those operators showing an average five-year negative operating profit. Further, large operators may be able to negotiate better pricing from outside firms for inspections and repairs, so small operators may need to raise their prices more than large operators. These factors make it difficult for the small operators to recover their compliance costs by raising prices. If small operators cannot recover all the additional costs imposed by this regulation, market shares could shift to the large operators. However, small operators successfully compete in the aviation industry by providing unique services and controlling costs. To the extent the affected small entities operate in niche markets, their ability to pass on costs will be enhanced. Currently small operators are much more profitable than the established major scheduled carriers. This proposed rule would offset some of the advantages that these small operators have of using older aircraft that have lower capital cost. Overall, in terms of competition, this rulemaking reduces small operators' ability to compete. We request comments from industry on the results of the competitive analysis. Disproportionality Analysis The disproportionately higher impact of the proposed rule on the fleets of small operators result in higher relative costs to small operators. Due to the potential of fleet discounts, large operators may be able to negotiate better pricing from outside sources for inspections, installation, and ADS-B hardware purchases. Based on the percent of potentially affected current airplanes over the analysis period, small U.S. business operators may bear a disproportionate impact from the proposed rule. Comments received and final rule changes on regulatory flexibility issues will be addressed in the statement of considerations for the final rule. Analysis of Alternatives Alternative One The status quo alternative has compliance costs to continue the operation and commissioning of radar sites. The FAA rejected this status quo alternative because the ground based radars tracking congested flyways and passing information among the control centers for the duration of the flights is becoming operationally obsolete. The current system is not efficient enough to accommodate the estimated increases in air traffic, which would result in mounting delays or limitations in service for many areas. Alternative Two This alternative would employ a technology called multilateration. Multilateration is a separate type of secondary surveillance system that is not radar and has limited deployment in the U.S. At a minimum, multilateration requires upwards of four ground stations to deliver the same volume of coverage and integrity of information as ADS-B, due to the need to “triangulate” the aircraft's position. Multilateration is a process wherein an aircraft position is determined using the difference in time of arrival of a signal from an aircraft at a series of receivers on the ground. Multilateration meets the need for accurate surveillance and is less costly than ADS-B (but more costly than radar), but cannot achieve the same level of benefits that ADS-B can. Multilateration would provide the same benefits as radar, but we estimate that cost to provide multilateration (including the cost to sustain radar until multilateration is operational), would exceed the cost to continue full radar surveillance. 6 6 However, the cost to operate and maintain the multilateration facilities and equipment is less than the cost to continue full radar surveillance. Alternative Three This alternative would provide relief by having the FAA provide an exemption to small air carriers from all requirements of this rule. This alternative would mean that the small air carriers would rely on the status quo ground based radars tracking their flights and passing information among the control centers for the duration of the flights. This alternative would require compliance costs to continue for the commissioning of radar sites. Air traffic controller workload and training costs would increase having to employ two systems in tracking aircraft. Small entities may request ATC deviations prior to operating in the airspace affected by this proposal. It would also be contrary to our policy for one level of safety in part 121 operations to exclude certain operators simply because they are small entities. Thus, this alternative is not considered to be acceptable. Alternative Four This alternative is the proposed ADS-B rule. ADS-B does not employ different classes of receiving equipment or provide different information based on its location. Therefore, controllers will not have to account for transitions between surveillance solutions as an aircraft moves closer or farther away from an airport. In order to meet future demand for air travel without significant delays or denial of service, ADS-B was found to be the most cost effective solution to maintain a viable air transportation system. ADS-B provides a wider range of services to aircraft users and could enable applications unavailable to multilateration or radar. Trade Impact Assessment The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. ICAO is developing a set of standards that are influenced by, and similar to, the U.S. RTCA developed standards. Initial discussions with the international community lead us to conclude that U.S. aircraft operating in foreign airspace would not have to add any equipment or incur any costs in addition to what they would incur to operate in domestic airspace under this proposed rulemaking. Foreign operators may incur additional costs to operate in U.S. airspace, if their national rules, standards and, current level of equipage are different than those required by this proposed rule. The FAA is actively engaged with the international community to ensure that the international and U.S. ADS-B standards are as compatible as possible. For a fuller discussion of what other countries are planning with regards to ADS-B, see Section VII of the preamble. By 2020 ICAO standards may change to harmonize with this proposed rule and foreign operators will not have to incur additional costs. Unfunded Mandates Assessment Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $128.1 million in lieu of $100 million. This proposed rule is not expected to impose significant costs on small governmental jurisdictions such as state, local, or tribal governments but the FAA calls for comment on whether this expectation is correct. However, this proposed rule would result in an unfunded mandate because it would result in expenditures in excess of an inflation-adjusted value of $128.1 million. We have considered three alternatives to this rulemaking, which are discussed in section 4.0 and in the regulatory flexibility analysis in section 7. Issued in Washington, DC on December 14, 2007. Pamela Hamilton-Powell, Director, Office of Rulemaking. [FR Doc. E7-24713 Filed 12-20-07; 8:45 am] BILLING CODE 4910-13-P SOCIAL SECURITY ADMINISTRATION 20 CFR Part 416 [Docket No. SSA 2007-0070] RIN 0960-AF96 Parent-to-Child Deeming From Stepparents AGENCY: Social Security Administration (SSA). ACTION: Notice of proposed rulemaking. SUMMARY: We propose to change the Supplemental Security Income
(SSI)parent-to-child deeming rules so that we would no longer consider the income and resources of a stepparent when an eligible child resides in the household with a stepparent, but that child's natural or adoptive parent has permanently left the household. These proposed rules would respond to a decision by the United States Court of Appeals for the Second Circuit. Social Security Acquiescence Ruling
(AR)99-1(2) currently applies the Court's decision to individuals who reside in Connecticut, New York, and Vermont. These rules propose to establish a uniform national policy with respect to this issue. Also, we propose to make uniform the age at which we consider someone to be a “child” in SSI program regulations and to make other minor clarifications to our rules. DATES: To be sure that we consider your comments, we must receive them by February 19, 2008. ADDRESSES: You may submit comments by any of the following methods. Regardless of which method you choose, to ensure that we can associate your comments with the correct regulation for consideration, you must state that your comments refer to Docket No. SSA-2007-0070: • Federal eRulemaking Portal at *http://www.regulations.gov.* (This is the preferred method for submitting your comments.) In the Search Documents section, select “Social Security Administration” from the agency drop-down menu, then click “submit”. In the Docket ID Column, locate SSA-2007-0070 and then click “Add Comments” in the “Comments Add/Due By” column. • Telefax to
(410)966-2830. • Letter to the Commissioner of Social Security, P.O. Box 17703, Baltimore, Maryland 21235-7703. • Deliver your comments to the Office of Regulations, Social Security Administration, 922 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. on regular business days. Comments are posted on the Federal eRulemaking portal, or you many inspect them on regular business days by making arrangements with the contact person shown in this preamble. FOR FURTHER INFORMATION CONTACT: Eric Skidmore, Office of Income Security Programs, 252 Altmeyer Building, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410)597-1833, or TTY
(410)966-5609. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at *http://www.socialsecurity.gov.* SUPPLEMENTARY INFORMATION: Electronic Version The electronic file of this document is available on the date of publication in the **Federal Register** at *http://www.gpoaccess.gov/fr/index.html.* Background The basic purpose of the SSI program is to provide a minimum level of income to people aged 65 or older, or who are blind or disabled, and who have limited income and resources. Section 1611 of the Social Security Act (the Act) provides that SSI payments can only be made to people who have income and resources below specified amounts. When we determine SSI eligibility and benefit amounts, we always consider the individual's own income and resources. Through a process known as deeming, we also consider the income and resources of others who are responsible for the individual's welfare. Deeming is based on the concept that those with responsibility for others provide support to them. Section 1614(f)(2) of the Act requires the Commissioner of Social Security (the Commissioner) to deem the income and resources of eligible children to include the income and resources of a natural or adoptive parent and the spouse of a parent who are living in the same household as the eligible child. These income and resource amounts are deemed to the eligible child whether or not they are available to the child, except to the extent determined by the Commissioner to be inequitable under the circumstances. Existing regulations in 20 CFR part 416, subparts K, L and R, apply to parents and stepparents equally for purposes of deeming income and resources to an eligible child who lives in the same household as the parent or stepparent. However, a 1998 decision by the United States Court of Appeals for the Second Circuit held that our regulations require that a stepparent live in the same household as the natural or adoptive parent, in addition to living with the child, in order for the stepparent's income to be deemed to the child. ( *Florez on behalf of Wallace* v. *Callahan,* 156 F. 3d 438 (2d Cir. 1998.)). In the case of a natural parent who abandoned the family home leaving her spouse, as stepparent, with sole physical custody of the eligible child, the Court found that deeming of a stepparent's income to the child was not supported by the regulations. The Court disagreed with us that the controlling regulation in such a case was § 416.1806, which addresses who is a spouse for SSI purposes and, by extension, who is a spouse for purposes of deeming. Under this regulation, we deem the income and resources of a stepparent living in the same household as the eligible child when the stepparent is legally married under State law to that child's natural or adoptive parent, even if the natural or adoptive parent is not living in the household. Instead, the Court held that § 416.1101, which defines a spouse as someone who lives with another person as that person's husband or wife, was the controlling regulation. The Court found that §§ 416.1101 and 416.1806 created a two-part test for determining whether a spouse of a natural parent, who lives with the eligible child, is an ineligible parent for deeming purposes under § 416.1160. Under this test,
(1)the spouse must live with the child's natural or adoptive parent pursuant to § 416.1101; and
(2)the relationship must be as husband or wife, as further defined at § 416.1806. The Court concluded that the plain language of these regulations, supported by the legislative history of the Act, required us to exclude a stepparent's income from deeming when the eligible child's natural parent no longer resided in the family home. As a result of this decision, we issued AR 99-1(2) on February 1, 1999 to apply the Court's decision within the States in the Second Circuit. We apply the AR if an SSI beneficiary is an eligible child who resides in Connecticut, New York, and Vermont at the time of the determination (including all post-eligibility determinations) or decision at any level of the administrative review process. We continue to use § 416.1806 as the controlling regulation in similar cases for the rest of the nation. These rules propose to change our regulations so that we will now deem a child's income and resources to include the income and resources of the stepparent only if the stepparent lives in the same household as the child and the natural or adoptive parent. If we adopt these proposed rules as final rules, we anticipate that we would rescind AR 99-1(2), consistent with our regulations at 20 CFR 416.1485(e)(4). The regulatory changes we propose would amend existing regulations so that we would exclude, as part of an eligible child's income and resources, the income and resources of a stepparent if the natural or adoptive parent is permanently absent from the household. If adopted as final rules, the proposed rules would restore national uniformity by extending the policy set out in AR 99-1(2) to the rest of the nation. We believe the policy in these proposed rules will encourage stepparents to voluntarily accept responsibility for SSI eligible children who have been abandoned by their natural or adoptive parents. Generally, we believe this regulatory change will prove beneficial to SSI children who are subject to the conditions described above because we will not deem income or resources from stepparents who assume sole responsibility for their well-being. There may be a small number of children who are affected by the proposed changes in the following manner. Under this proposed rule, the stepparent would no longer be considered a parent for deeming purposes and the child would be considered living in another person's household and, therefore, possibly in receipt of income in the form of in-kind support and maintenance (ISM). ISM is treated as income and represents the value of food and/or shelter that an individual receives while in the household of a person who is not the individual's spouse or parent. Although we would no longer deem the stepparent's income and resources when the natural or adoptive parent has left the home, under the SSI living arrangement rules, we are required to consider the ISM value the child may receive. While the individual is in the household of another, the value of ISM is determined by dividing the food and household expenses by the number of people in the household and then subtracting the individual's contribution, if any, toward those expenses. If the individual's contribution is less than the computed pro rata share of the expenses, the difference between the contribution and the pro rata share is then counted as income to the individual. The amount of income charged to an eligible individual in such a situation is capped at one-third of the Federal Benefit Rate
(FBR)for an individual. So, if the difference between the individual's contribution and the individual's pro rata share is greater than one-third of the individual FBR, we only count one-third of the FBR as income to the individual. The amount of ISM we would charge to the child would be reduced if the child contributed a portion of his or her income (such as the child's SSI check) toward the household expenses, and in no case can ISM alone cause a child to be ineligible for SSI benefits. We tracked cases in the States in the Second Circuit for a 1-year period following issuance of the AR and found no other cases where the stepparent was the only person who remained in the household with the eligible child after the natural or adoptive parent left. Since we found that there are generally other people in the household, we believe it is more likely that the child would be able to pay his or her share of the household expenses and, therefore, we expect that the child would be charged with little or no ISM. In addition, if the computation results in countable ISM, it may be less than the amount of deemed income we would have counted under our current rules in such a circumstance. As compared to our current rules where we deem a stepparent's income, if these proposed rules are adopted as final rules, we believe there would likely be no adverse impact on the child. We also considered the possibility of revising our regulations pertaining to ISM to not count ISM in the case of a stepparent and child living together when the natural or adoptive parent has departed the household. We determined that this option was undesirable because of the inequities it would create under the established ISM framework for other beneficiaries living in a non-deemor's household. That is, we could not justify not counting ISM in one situation (an eligible child living with a non-deemor stepparent), but continuing to count ISM in other similar situations (an eligible child living with a non-deemor such as a friend or other relative). We also propose to modify existing regulations to clarify our longstanding policy of not deeming the income and resources of a stepparent who lives with an eligible child to the child when the natural or adoptive parent dies or divorces the stepparent. We also propose one change and one clarification to our definition of “ineligible child.” First, we propose to eliminate the age difference in existing regulations between our definitions of “child” and “ineligible child.” For purposes of consistency and to make our rules more easily understood by the public, we propose revising the regulatory definition of “ineligible child” to mirror the regulatory definition of “child” with respect to the maximum age requirement. As proposed, the new rule would permit a child in the household to be considered an ineligible child for deeming purposes until attainment of age 22, assuming all other requirements are met. Second, we also propose to modify our definition of “ineligible child” to clarify who is considered a “spouse” for purposes of ineligible child determinations in deeming situations. Under current policy, in determining the amount of income to deem from a parent to an eligible child, we make an allocation for other children in the home, that is, we consider what other ineligible children reside in the home and deduct from the amount of income to be deemed accordingly. In the situation where a parent lives in a home with his or her eligible child, and also with the ineligible child of the parent's spouse, we provide an allocation for the ineligible child of the parent's spouse in determining how much income to deem from the parent to the eligible child. If the parent's spouse were to abandon the home, leaving the ineligible child of the parent's spouse behind, we still provide an allocation with respect to the ineligible child of the parent's spouse, when determining how much income to deem from the parent to the eligible child. The proposed rule would clarify, consistent with current policy, that when determining who meets the definition of “ineligible child” for SSI purposes in the context of the child of a spouse, we use the definition of spouse at § 416.1806, which does not necessarily require that the spouse of a parent live with the parent to be considered the parent's spouse. Finally, we propose to update the name of a government entity in our regulations due to the creation of the United States Department of Homeland Security. This change is clerical in nature and has no substantive effect on our policies or procedures. Explanation of Proposed Changes We propose to amend the regulations in 20 CFR, part 416, subparts K, L and R, to implement the policy changes discussed above. In summary, we propose to: • Revise §§ 416.1160(a)(2) and (d), 416.1165(g)(4), 416.1202(b)(1), and 416.1851(c) to not deem income and resources from a stepparent when an eligible child lives with a stepparent but not with his or her natural or adoptive parent. This will make our national policy uniform with respect to the deeming of income and resources from stepparents to eligible children when the natural or adoptive parent has permanently left the household, as defined in § 416.1167. • Update § 416.1160(d) to replace “Immigration and Naturalization Service” with “U.S. Citizenship and Immigration Services” due to a change in the name of a government entity. This is a result of the creation of the Department of Homeland Security. • Revise the definition of ineligible child in § 416.1160(d) to remove the under 21 age standard so that the definition of “ineligible child” will cross-reference the definition of “child” in § 416.1101, which uses an age limit of 22. This change would eliminate a layer of complexity that currently exists in the SSI program; that is, the distinction between an “ineligible child” for deeming purposes and a “child” for all other purposes. • Revise the definition of ineligible child in § 416.1160(d) to clarify how we decide who is a “spouse” when determining who is an “ineligible child.” The definition of “ineligible child” would cross-reference § 416.1806 defining how we determine if an individual is married and who is a spouse. The proposed change would clarify our regulations, consistent with current policy, to continue providing an ineligible child allocation when the spouse of a parent leaves the household, but the spouse's children remain in the household with the eligible child and the parent of the eligible child. • Revise § 416.1165(g)(3) to clarify how we deem income to an eligible child when the ineligible parent dies. The proposed changes to § 416.1165(g)(3) would clarify our longstanding policy, consistent with § 416.1881(b), to no longer deem the income of the stepparent to the eligible child when the natural or adoptive parent dies or divorces the stepparent. • Update § 416.1204 to replace “Immigration and Naturalization Service” with “U.S. Citizenship and Immigration Services” due to a change in the name of a government entity. This is a result of the creation of the Department of Homeland Security. Clarity of These Rules Executive Order 12866, as amended, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make them easier to understand. For example: • Have we organized the material to suit your needs? • Are the requirements in the rules clearly stated? • Do the rules contain technical language or jargon that is not clear? • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rules easier to understand? • Would more (but shorter) sections be better? • Could we improve clarity by adding tables, lists or diagrams? • What else could we do to make the rules easier to understand? Regulatory Procedures Executive Order 12866, as Amended We have consulted with the Office of Management and Budget
(OMB)and determined that these proposed rules meet the requirements for a significant regulatory action under Executive Order 12866, as amended. Thus, they were reviewed by OMB. Regulatory Flexibility Act We certify that these proposed rules, when published in final, would not have a significant economic impact on a substantial number of small entities because they affect only individuals. Accordingly, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required. Paperwork Reduction Act These proposed regulations will impose no additional reporting or recordkeeping requirements requiring OMB clearance. (Catalog of Federal Domestic Assistance Programs No. 96.006, Supplemental Security Income) List of Subjects in 20 CFR Part 416 Administrative practice and procedure, Aged, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Supplemental Security Income (SSI). Dated: September 25, 2007. Michael J. Astrue, Commissioner of Social Security. For the reasons set out in the preamble, we propose to amend subparts K, L and R of part 416 of chapter III of title 20 Code of Federal Regulations as set forth below: PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart K—[Amended] 1. The authority citation for subpart K of part 416 continues to read as follows: Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note). 2. Amend § 416.1160 by revising the section heading, paragraph (a)(2) and the definitions of “Date of admission to or date of entry into the United States” and “Ineligible child” in paragraph
(d)to read as follows: § 416.1160 What is deeming of income?
(a)* * *
(2)*Ineligible parent.* If you are a child to whom deeming rules apply (see § 416.1165), we look at your ineligible parent's income to decide whether we must deem some of it to be yours. If you live with both your parent and your parent's spouse (i.e., your stepparent), we also look at your stepparent's income to decide whether we must deem some of it to be yours. We do this because we expect your parent (and your stepparent, if living with you and your parent) to use some of his or her income to take care of your needs.
(d)* * * *Date of admission to* or *date of entry into the United States* means the date established by the U.S. Citizenship and Immigration Services as the date the alien is admitted for permanent residence. *Ineligible child* means your natural child or adopted child, or the natural or adopted child of your spouse, or the natural or adopted child of your parent or of your parent's spouse (as the term *child* is defined in § 416.1101 and the term *spouse* is defined in § 416.1806), who lives in the same household with you, and is not eligible for SSI benefits. 3. Amend § 416.1165 by revising paragraphs (g)(3) and (g)(4) to read as follows: § 416.1165 How we deem income to you from your ineligible parent(s).
(g)* * *
(3)*Ineligible parent dies.* If your ineligible parent dies, we do not deem that parent's income to you to determine your eligibility for SSI benefits beginning with the month following the month of death. In determining your benefit amount beginning with the month following the month of death, we use only your own countable income in a prior month, excluding any income deemed to you in that month from your deceased ineligible parent (see § 416.1160(b)(2)(iii)). If you live with two ineligible parents and one dies, we continue to deem income from the surviving ineligible parent who is also your natural or adoptive parent. If you live with a stepparent following the death of your natural or adoptive parent, we do not deem income from the stepparent.
(4)*Ineligible parent and you no longer live in the same household.* If your ineligible parent and you no longer live in the same household, we do not deem that parent's income to you to determine your eligibility for SSI benefits beginning with the first month following the month in which one of you leaves the household. We also will not deem income to you from your parent's spouse (i.e., your stepparent) who remains in the household with you if your natural or adoptive parent has permanently left the household. To determine your benefit amount if you continue to be eligible, we follow the rule in § 416.420 of counting your income including deemed income from your parent and your parent's spouse (i.e., your stepparent) (if the stepparent and parent lived in the household with you) in the second month prior to the current month. Subpart L—[Amended] 4. The authority citation for subpart L of part 416 continues to read as follows: Authority: Secs. 702(a)(5), 1602, 1611, 1612, 1613, 1614(f), 1621, 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1381a, 1382, 1382a, 1382b, 1382c(f), 1382j, 1383, and 1383b); sec. 211, Pub. L. 93-66, 87 Stat. 154 (42 U.S.C. 1382 note). 5. Amend § 416.1202 by revising paragraph (b)(1) to read as follows: § 416.1202 Deeming of resources.
(b)*Child* —(1) *General.* In the case of a child (as defined in § 416.1856) who is under age 18, such child's resources shall be deemed to include any resources, not otherwise excluded under this subpart, of an ineligible parent of such child who is living in the same household with such child (as described in § 416.1851). Such child's resources also shall be deemed to include the resources of an ineligible spouse of a parent (stepparent), provided the stepparent lives in the same household as the child and the parent. The child's resources shall be deemed to include the resources of the parent and stepparent whether or not the resources of the parent and stepparent are available to the child, to the extent that the resources of such parent (or parent and stepparent), exceed the resource limits described in § 416.1205 except as provided in paragraph (b)(2) of this section. (If the child is living with only one parent, the resource limit for an individual applies. If the child is living with both parents, or the child is living with one parent and the stepparent, the resource limit for an individual and spouse applies.) In addition to the exclusions listed in § 416.1210, pension funds which the parent or spouse of a parent may have are also excluded. The term “pension funds” is defined in paragraph
(a)of this section. As used in this section, the term “parent” means the natural or adoptive parent of a child and the terms “spouse of a parent” and “stepparent” means the spouse (as defined in § 416.1806) of such natural or adoptive parent who is living in the same household with the child and parent. 6. Amend § 416.1204 by revising the first two sentences of the introductory text to read as follows: § 416.1204 Deeming of resources of the sponsor of an alien. The resources of an alien who first applies for SSI benefits after September 30, 1980, are deemed to include the resources of the alien's sponsor for 3 years after the alien's date of admission into the United States. The *date of admission* is the date established by the U.S. Citizenship and Immigration Services as the date the alien is admitted for permanent residence. Subpart R—[Amended] 7. The authority citation for subpart R of part 416 continues to read as follows: Authority: Secs. 702(a)(5), 1612(b), 1614(b), (c), and (d), and 1631(d)(1) and
(e)of the Social Security Act (42 U.S.C. 902(a)(5), 1382a(b), 1382c(b), (c), and (d), and 1383(d)(1) and (e)). 8. Amend § 416.1851 by revising the first sentence of paragraph
(c)and adding a new second sentence to read as follows: § 416.1851 Effects of being considered a child.
(c)If you are under age 18 and live with your parent(s) who is not eligible for SSI benefits, we consider
(deem)part of his or her income and resources to be your own. If you are under age 18 and live with both your parent and your parent's spouse (stepparent) and neither is eligible for SSI benefits, we consider
(deem)part of their income and resources to be your own. [FR Doc. E7-24787 Filed 12-20-07; 8:45 am] BILLING CODE 4191-02-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-114126-07] RIN 1545-BG54 Reduction of Foreign Tax Credit Limitation Categories Under Section 904(d) AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing. SUMMARY: In the Rules and Regulations section in this issue of the **Federal Register** , the IRS is issuing temporary regulations that provide guidance relating to the reduction of the number of separate foreign tax credit limitation categories under section 904(d) of the Internal Revenue Code. Changes to the applicable law were made by the American Jobs Creation Act of 2004
(AJCA)reducing the number of section 904(d) separate categories from eight to two, effective for taxable years beginning after December 31, 2006. The temporary regulations provide guidance needed to comply with these changes and affect individuals and corporations claiming foreign tax credits. The text of those temporary regulations published in this issue of the **Federal Register** also serves as the text of these proposed regulations. This document also provides a notice of public hearing on these proposed regulations. DATES: Written or electronic comments must be received by March 20, 2008. Outlines of topics to be discussed at the public hearing scheduled for April 22, 2008, at 10 a.m. must be received by April 1, 2008. ADDRESSES: Send submissions to CC:PA:LPD:PR (REG-114126-07), room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-114126-07), Courier's desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20044, or sent electronically, via the Federal eRulemaking Portal at *www.regulations.gov* (IRS REG-114126-07). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Jeffrey L. Parry,
(202)622-3850; concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Kelly Banks,
(202)622-7180 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background and Explanation of Provisions Temporary regulations in the Rules and Regulations section of this issue of the **Federal Register** contain amendments to the Income Tax Regulations (26 CFR Part 1) which provide rules relating to the reduction of the number of separate foreign tax credit limitation categories under section 904(d). The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations. The regulations affect individuals and corporations claiming foreign tax credits. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f), these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any electronic or written comments (a signed original and eight
(8)copies) that are submitted timely to the IRS. The Treasury Department and the IRS specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand, as well as comments on additional guidance that may be needed to implement changes made by the AJCA. All comments will be available for public inspection and copying. A public hearing has been scheduled for April 26, 2008, in the auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments by March 20, 2008 and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight
(8)copies) by April 1, 2008. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal author of these regulations is Jeffrey L. Parry of the Office of Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 continues to read in part as follows: Authority: 26 U.S.C. 7805 * * * **Par. 2.** Section 1.904-2(i) is added to read as follows: § 1.904-2 Carryback and carryover of unused foreign tax.
(i)[The text of proposed § 1.904-2(i) is the same as the text of § 1.904-2T(i)(1) through
(3)published elsewhere in this issue of the **Federal Register** .] **Par. 3.** In § 1.904-4, paragraphs (a), (b), (h)(3), and
(l)are revised and paragraph
(n)is added to read as follows: § 1.904-4 Separate application of section 904 with respect to certain categories of income.
(a)[The text of the proposed amendment to § 1.904-4(a) is the same as the text of § 1.904-4T(a) published elsewhere in this issue of the **Federal Register** .]
(b)[The text of the proposed amendment to § 1.904-4(b) is the same as the text of § 1.904-4T(b) published elsewhere in this issue of the **Federal Register** .]
(h)* * *
(3)[The text of the proposed amendment to § 1.904-4(h)(3) is the same as the text of § 1.904-4T(h)(3) published elsewhere in this issue of the **Federal Register** .]
(l)[The text of the proposed amendment to § 1.904-4(l) is the same as the text of § 1.904-4T(l) published elsewhere in this issue of the **Federal Register** .]
(n)[The text of proposed § 1.904-4(n) is the same as the text of § 1.904-4T(n) published elsewhere in this issue of the **Federal Register** .] **Par. 4.** In § 1.904-5, paragraph (h)(3) is revised and paragraph (o)(3) is added to read as follows: § 1.904-5 Look-through rules as applied to controlled foreign corporations and other entities.
(h)* * *
(3)[The text of the proposed amendment to § 1.904-5(h)(3) is the same as the text of § 1.904-5T(h)(3) published elsewhere in this issue of the **Federal Register** .]
(o)* * *
(3)[The text of proposed § 1.904-5(o)(3) is the same as the text of § 1.904-5T(o)(3) published elsewhere in this issue of the **Federal Register** .] **Par. 5.** Section 1.904-7(g) is added to read as follows: § 1.904-7 Transition rules.
(g)[The text of proposed § 1.904-7(g) is the same as the text of § 1.904-7T(g)(1) through
(6)published elsewhere in this issue of the **Federal Register** .] **Par. 6.** § 1.904(f)-12(h) is added to read as follows: § 1.904(f)-12 Transition rules.
(h)[The text of proposed § 1.904-12(h) is the same as the text of § 1.904-12T(h)(1) through (h)(6) published elsewhere in this issue of the **Federal Register** .] Linda E. Stiff, Deputy Commissioner for Services and Enforcement. [FR Doc. E7-24783 Filed 12-20-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-141399-07] RIN 1545-BH13 Treatment of Overall Foreign and Domestic Losses AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing. SUMMARY: In the Rules and Regulations section in this issue of the **Federal Register** , the IRS is issuing temporary regulations that provide guidance relating to the recapture of overall foreign and domestic losses. Changes to the applicable law were made by the American Jobs Creation Act of 2004, as corrected by the Gulf Opportunity Zone Act of 2005. The temporary regulations provide guidance needed to comply with these changes, as well as updated guidance with respect to overall foreign losses and separate limitation losses, and affect individuals and corporations claiming foreign tax credits. The text of those temporary regulations published in this issue of the **Federal Register** also serves as the text of these proposed regulations. This document also provides a notice of public hearing on these proposed regulations. DATES: Written or electronic comments must be received by March 20, 2008. Outlines of topics to be discussed at the public hearing scheduled for April 10, 2008, at 10 a.m. must be received by March 20, 2008. ADDRESSES: Send submissions to CC:PA:LPD:PR (REG-141399-07), room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-141399-07), Courier's desk, Internal Revenue Service, 1111 Constitution Avenue, NW., Washington, DC 20044, or sent electronically, via the Federal eRulemaking Portal at www.regulations.gov (IRS REG-141399-07). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Concerning the regulations, Jeffrey L. Parry,
(202)622-3850 (not a toll free number); concerning submissions of comments, the hearing, and/or to be placed on the building access list to attend the hearing, Richard Hurst, *Richard.A.Hurst@irscounsel.treas.gov* . SUPPLEMENTARY INFORMATION: Background and Explanation of Provisions Temporary regulations in the Rules and Regulations section of this issue of the **Federal Register** amend the Income Tax Regulations (26 CFR Part 1) providing rules relating to the recapture of overall domestic losses under section 904(g) as well as the recapture overall foreign losses and separate limitation losses under section 904(f). The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the temporary regulations and these proposed regulations. The regulations affect individuals and corporations claiming foreign tax credits. Special Analyses It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f), these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business. Comments and Public Hearing Before these proposed regulations are adopted as final regulations, consideration will be given to any electronic or written comments (a signed original and eight
(8)copies) that are submitted timely to the IRS. The Treasury Department and the IRS specifically request comments on the clarity of the proposed regulations and how they may be made easier to understand. Moreover, the Treasury Department and the IRS are considering providing additional guidance on overall domestic losses and separate limitation losses, as well as further revisions to the overall foreign loss provisions of the 1987 regulations. Comments are welcome on this ongoing project, particularly with regard to the need to provide for guidance on the application of the overall domestic loss provisions to income earned through foreign or domestic trusts, as well as guidance regarding the recapture of overall foreign losses and separate limitation losses on the disposition of property under section 904(f)(3) and (f)(5)(F). In addition, the Treasury Department and the IRS are continuing to study whether additional rules to better coordinate the overall foreign loss and overall domestic loss regimes would be appropriate, including whether a netting rule should apply to offsetting overall foreign loss accounts and overall domestic loss accounts. The Treasury Department and the IRS welcome additional comments in this regard. All comments will be available for public inspection and copying. A public hearing has been scheduled for April 10, 2008, in the Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble. The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments by March 20, 2008 and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight
(8)copies) by March 20, 2008. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. Drafting Information The principal author of these regulations is Jeffrey L. Parry of the Office of Chief Counsel (International). However, other personnel from the Treasury Department and the IRS participated in their development. List of Subjects in 26 CFR Part 1 Income taxes, Reporting and recordkeeping requirements. Proposed Amendments to the Regulations Accordingly, 26 CFR part 1 is proposed to be amended as follows: PART 1—INCOME TAXES **Paragraph 1.** The authority citation for part 1 is amended by adding an entry in numerical order to read in part as follows: Authority: 26 U.S.C. 7805 * * * Section 1.904(g)-3 also issued under 26 U.S.C. 904(g)(4) * * * **Par. 2.** Section 1.904-0 is amended by revising the entries for § 1.904(f)-1(a), (d)(2), (d)(3), and (d)(4), and for § 1.904(f)-2(c) and (c)(1), and adding entries for §§ 1.904(f)-7 and 1.904(f)-8 to read as follows: § 1.904-0 Outline of regulation provisions for section 904. *§ 1.904(f)-1 Overall foreign loss and the overall foreign loss account.* (a)(1) and (a)(2) [The text of these entries is the same as the text of the entries for § 1.904(f)-1T(a)(1) and (a)(2) in § 1.904(f)-0T published elsewhere in this issue of the **Federal Register** .] (d)(2), (d)(3), and (d)(4) [The text of these entries is the same as the text of the entries for § 1.904(f)-1T(d)(2), (d)(3), and (d)(4) in § 1.904(f)-0T published elsewhere in this issue of the **Federal Register** .] *§ 1.904(f)-2 Recapture of overall foreign losses.*
(c)and (c)(1) [The text of these entries is the same as the text of the entries for § 1.904(f)-2T(c) and (c)(1) in § 1.904(f)-0T published elsewhere in this issue of the **Federal Register** .] *§ 1.904(f)-7 Separate limitation loss and the separate limitation loss account.* [The text of the entries for this section is the same as the text of the entries for § 1.904(f)-7T(a) through
(f)in § 1.904(f)-0T published elsewhere in this issue of the **Federal Register** .] *§ 1.904(f)-8 Recapture of separate limitation loss accounts.* [The text of the entries for this section is the same as the text of the entries for § 1.904(f)-8T(a) through
(c)in § 1.904(f)-0T published elsewhere in this issue of the **Federal Register** .] **Par. 3.** In § 1.904(f)-1, paragraph (a)(2) is added, and paragraph (d)(4) is revised, to read as follows: § 1.904(f)-1 Overall foreign loss and the overall foreign loss account. (a)(1) * * *
(2)[The text of the proposed amendments to § 1.904(f)-1(a)(2) is the same as the text of § 1.904(f)-1T(a)(2) published elsewhere in this issue of the **Federal Register** .]
(d)* * *
(4)[The text of the proposed amendments to § 1.904(f)-1(d)(4) is the same as the text of § 1.904(f)-1T(d)(4) published elsewhere in this issue of the **Federal Register** .] **Par. 4.** Section 1.904(f)-2(c)(1) and (c)(5) *Example 4.* are revised to read as follows: § 1.904(f)-2 Recapture of overall foreign losses.
(c)* * *
(1)[The text of the proposed amendments to § 1.904(f)-2(c)(1) is the same as the text of § 1.904(f)-2T(c)(1) published elsewhere in this issue of the **Federal Register** .]
(5)* * * Example 4. [The text of the proposed amendments to § 1.904(f)-2(c)(5) *Example 4* . is the same as the text of § 1.904(f)-2T(c)(5) *Example 4* . published elsewhere in this issue of the **Federal Register** .] **Par. 5.** Sections 1.904(f)-7 and 1.904(f)-8 are added to read as follows: § 1.904(f)-7 Separate limitation loss and the separate limitation loss account. [The text of proposed § 1.904(f)-7 is the same as the text of § 1.904(f)-7T(a) through
(f)published elsewhere in this issue of the **Federal Register** .] § 1.904(f)-8 Recapture of separate limitation loss accounts. [The text of proposed § 1.904(f)-8 is the same as the text of § 1.904(f)-8T(a) through
(c)published elsewhere in this issue of the **Federal Register** .] **Par. 6.** Section 1.904(g)-0 is added to read as follows: § 1.904(g)-0 Outline of regulation provisions. *§ 1.904(g)-1 Overall domestic loss and the overall domestic loss account.* [The text of the entries for this section is the same as the text for § 1.904(g)-1T(a) through
(f)in § 1.904(g)-0T published elsewhere in this issue of the **Federal Register** .] *§ 1.904(g)-2 Recapture of overall domestic losses.* [The text of the entries for this section is the same as the text for § 1.904(g)-2T(a) through
(d)in § 1.904(g)-0T published elsewhere in this issue of the **Federal Register** .] *§ 1.904(g)-3 Ordering rules for the allocation of net operating losses, net capital losses, U.S. source losses, and separate limitation losses, and for recapture of separate limitation losses, overall foreign losses, and overall domestic losses.* [The text of the entries for this section is the same as the text for § 1.904(g)-3T(a) through
(i)in § 1.904(g)-0T published elsewhere in this issue of the **Federal Register** .] **Par. 7.** Sections 1.904(g)-1, 1.904(g)-2, and 1.904(g)-3 are added to read as follows: § 1.904(g)-1 Overall domestic loss and the overall domestic loss account. [The text of proposed § 1.904(g)-1 is the same text of § 1.904(g)-1T(a) through
(f)published elsewhere in this issue of the **Federal Register** .] § 1.904(g)-2 Recapture of overall domestic losses. [The text of proposed § 1.904(g)-2 is the same text of § 1.904(g)-2T(a) through
(d)published elsewhere in this issue of the **Federal Register** .] § 1.904(g)-3 Ordering rules for the allocation of net operating losses, net capital losses, U.S. source losses, and separate limitation losses, and for recapture of separate limitation losses, overall foreign losses, and overall domestic losses. [The text of proposed § 1.904(g)-3 is the same text of § 1.904(g)-3T(a) through
(i)published elsewhere in this issue of the **Federal Register** .] **Par. 8.** Section 1.1502-9 is revised to read as follows: § 1.1502-9 Consolidated overall foreign losses and separate limitation losses. [The text of proposed § 1.1502-9 is the same as the text of § 1.1502-9T(a) through
(e)published elsewhere in this issue of the **Federal Register** .] Linda E. Stiff, Deputy Commissioner for Services and Enforcement. [FR Doc. E7-24896 Filed 12-20-07; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Parts 203, 250, 251, 256, 280, 281, and 290 [Docket ID: MMS-2007-OMM-0065] RIN 1010-AD43 Electronic Payment of Fees for Outer Continental Shelf Activities AGENCY: Minerals Management Service (MMS), Interior. ACTION: Proposed rule. SUMMARY: The MMS proposes that all lessees, operators, permittees, and rights-of-way holders pay all fees for processing plans, applications, and permits electronically. The MMS believes this proposed rule would aid industry in payment processing, and reduce payment processing errors. This proposed rule would improve MMS processing efficiency and facilitate the correction of industry payment errors. The MMS would not accept checks, money orders, or cashier's checks for payment of fees after the effective date of the final rule. DATES: Submit comments by February 19, 2008. The MMS may not fully consider comments received after this date. ADDRESSES: You may submit comments on the rulemaking by any of the following methods. Please use the Regulation Identifier Number
(RIN)1010-AD43 as an identifier in your message. See also Public Availability of Comments under Procedural Matters. • *Federal eRulemaking Portal:* *http://www.regulations.gov.* Select “Minerals Management Service” from the agency drop-down menu, then click “submit.” In the Docket ID column, select MMS-2007-OMM-0065 to submit public comments and to view supporting and related materials available for this rulemaking. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. All comments submitted will be posted to the docket. • Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Regulations and Standards Branch (RSB); 381 Elden Street, MS-4024, Herndon, Virginia 20170-4817. Please reference “Electronic Payment of Fees for Outer Continental Shelf Activities, 1010-AD43” in your comments and include your name and return address. FOR FURTHER INFORMATION CONTACT: Kirk Malstrom, Petroleum Engineer, Offshore Minerals Management, Office of Offshore Regulatory Programs at
(703)787-1751. SUPPLEMENTARY INFORMATION: Background This proposed rule would require a lessee, operator, pipeline right-of-way
(ROW)holder, or permittee to submit payments for cost recovery service fees electronically. The idea for paying electronically is not a new concept and industry has been informed of MMS's intentions to collect fees electronically in the Notice to Lessees
(NTL)No. 2006-N05 Payment Method for New and Existing Cost Recovery Fees. As stated in NTL No. 2006-N05, MMS prefers and strongly urges applicants to pay their fees using credit card or Automated Clearing House
(ACH)payments through the Pay.Gov Web site. Launched in October 2000, Pay.Gov is a secure government-wide collection portal, developed to meet the U.S. Treasury's commitment to process collections electronically using internet technologies. Pay.Gov has been developed to help Federal agencies meet the directives outlined in the Government Paperwork Elimination Act, primarily the reduction of paper transactions through the utilization of electronic processing via the Internet. By using an electronic payment system, MMS and industry have an efficient method to aid in the payment process. The MMS has made Pay.Gov available for payment of cost recovery fees since early 2006 and accepted electronic Pay.Gov payments for all applications since September 2006. To show industry's acceptance of electronic payments, currently more than 94 percent of cost recovery fees are paid electronically through Pay.Gov. This proposed rule would require all fees to be paid electronically. The MMS is aware of a few companies not paying electronically, but MMS has determined that the costs to use Pay.Gov are negligible compared to that of operating on the Outer Continental Shelf (OCS). Electronic payment through Pay.Gov is more efficient and less prone to mistakes than check payments. Examples of check payment errors include incorrect date, incorrect payment amount, check sent to a different address than application, and closing an account shortly after the check is sent to MMS. Check payment errors can result in delay or lead to denial of an application or permit due to non-payment. To rectify a check payment error additional time and expense are required from industry, MMS, or both. If payment errors are made through Pay.Gov, the refund process is easier due to system records and controls. With 100% electronic payment, the internal MMS processes to secure, verify and deposit check payments can be eliminated. The MMS does not believe that this proposed rule would place an additional burden on industry. Industry has been advised by NTL No. 2006-N05 and MMS staff about our future intent to require electronic payments. Most companies voluntarily pay electronically and have been satisfied with the functionality and performance of the Pay.Gov system. For the remaining companies that have opted not to pay electronically, the time between the publishing of the proposed and final rule would provide sufficient opportunity to implement internal processes to pay fees by ACH or credit card. The MMS intends to accept only Pay.Gov payments for cost recovery service fees. Checks, money orders, and cashier's checks will no longer be accepted after the effective date of the final rule. If you process your applications through eWell, you are already directed to Pay.Gov in order to pay application fees online. Since MMS has accepted payments electronically, industry has provided verbal feedback to MMS requesting the availability of declining deposit accounts. The basic proposal, as an alternative to Pay.Gov, would permit a company conducting business on the OCS to deposit funds with MMS. The MMS would then draw down those funds as the company submits applications requiring fees. The company would be notified when its balance reached a trigger level and the company would replenish the account. Invoices would periodically be sent to the customer. The MMS does not have a financial system that can track, invoice, and manage declining deposit accounts. The existing bureau financial system cannot handle deferred revenue. Since we do not have system functionality, the declining deposit accounts would be tracked manually. A manual process would increase the cost for processing cost recovery payments, increase the potential for errors, and result in increased fees charged to industry. Therefore, MMS will not consider implementing declining deposit accounts. The MMS plans to adjust certain cost recovery fees according to inflation in the final rule. These fees have not been updated to include inflation since the Cost Recovery Final Rule published on July 19, 2006 (71 FR 40904). Procedural Matters Regulatory Planning and Review (Executive Order (E.O.) 12866) This proposed rule is not a significant rule as determined by the Office of Management and Budget
(OMB)and is not subject to review under E.O. 12866.
(1)This proposed rule would not have an effect of $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. This proposed rule would simply require all fees be paid electronically through Pay.Gov.
(2)This proposed rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. By requiring electronic payment through the Pay.Gov system, MMS is supporting the President's Management Agenda of expanding electronic government or “E-Government.”
(3)This proposed rule would not alter the budgetary effects of entitlements, grants, user fees or loan programs, or the rights or obligations of their recipients.
(4)This proposed rule would not raise novel legal or policy issues. Regulatory Flexibility Act The Department of the Interior certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The changes proposed in the rule would affect lessees, operators of leases, pipeline right-of-way
(ROW)holders in the OCS, and permittees. This could include about 130 active Federal oil and gas lessees, 88 pipeline ROW holders, and 10 geophysical companies. Small lessees that operate under this rule mostly fall under the Small Business Administration's
(SBA)North American Industry Classification System Codes (NAICS) 211111, Crude Petroleum and Natural Gas Extraction and 213111, Drilling Oil and Gas Wells. For these NAICS code classifications, a small company is one with fewer than 500 employees. Based on these criteria, an estimated 70 percent of these companies are considered small. This rule, therefore, affects a substantial number of small entities. The changes proposed in the rule would not have a significant economic effect on a substantial number of small entities because Pay.Gov credit card or ACH payments do not increase the amount of money a company would pay in cost recovery fees. We do not expect any company to incur significant other costs because no special software or other equipment would be required to pay through Pay.Gov or ACH. We have no information that any company would incur any costs associated with accounting processes, changes in business procedures, or other compliance costs. Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of MMS, call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI. Small Business Regulatory Enforcement Fairness Act The proposed rule is not a major rule under 5 U.S.C. 804(2) of the Small Business Regulatory Enforcement Fairness Act. This proposed rule: a. Would not have an annual effect on the economy of $100 million or more. b. Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Unfunded Mandates Reform Act This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 *et seq.* ) is not required. Takings Implication Assessment (E.O. 12630) Under the criteria in E.O. 12630, this proposed rule does not have significant takings implications. The proposed rule is not a governmental action capable of interference with constitutionally protected property rights. A takings implication assessment is not required. Federalism (E.O. 13132) Under the criteria in E.O. 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This proposed rule would not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role. A Federalism Assessment is not required. Civil Justice Reform (E.O. 12988) This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a)Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity, be written to minimize litigation, and promote simplification and burden reduction; and
(b)Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards. Consultation With Indian Tribes (E.O. 13175) Under the criteria in E.O. 13175, we have evaluated this proposed rule and determined that it has no substantial direct effects on federally recognized Indian tribes. There are no Indian or tribal lands in the OCS. Paperwork Reduction Act The proposed rule contains no new reporting or recordkeeping requirements, and an OMB submission under the Paperwork Reduction Act
(PRA)is not required. The PRA provides that an agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. Until OMB approves a collection of information and assigns a control number, you are not required to respond. The proposed regulations will specify that all operators, lessees, and ROW holders must now use Pay.Gov for every fee that will be submitted to MMS. The proposed revisions in this rulemaking refer to, but do not change, information collection requirements in numerous current regulations. The OMB approved the referenced information collection requirements under OMB Control Numbers 1010-0071, 1010-0114, 1010-0151, 1010-0141, 1010-0067, 1010-0043, 1010-0059, 1010-0149, 1010-0050, 1010-0051, 1010-0086, 1010-0142, 1010-0048, 1010-0006, and 1010-0072, respectively. National Environmental Policy Act This rule does not constitute a major Federal action significantly affecting the quality of the human environment. The MMS has analyzed this rule under the criteria of the National Environmental Policy Act and 516 Departmental Manual 2, Appendix 1.10. and determined that it falls within the categorical exclusion for “regulations * * * that are of an administrative, financial, legal, technical, or procedural nature and whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis.” The MMS completed a Categorical Exclusion Review for this action and concluded that the rulemaking does not represent an exception to the established criteria for categorical exclusion; therefore, preparation of an environmental analysis or environmental impact statement will not be required. Data Quality Act In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554, app. C Section 515, 114 Stat. 2763, 2763A-153-154). Effects on the Energy Supply (E.O. 13211) This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required. Clarity of this Regulation We are required by E.O. 12866, E.O. 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a)Be logically organized;
(b)Use the active voice to address readers directly;
(c)Use clear language rather than jargon;
(d)Be divided into short sections and sentences; and
(e)Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment'including your personal identifying information'may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 30 CFR Part 203 Continental shelf, Mineral royalties, Oil and gas exploration, Public lands—mineral resources. 30 CFR Part 250 Administrative practice and procedure, Continental shelf, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements. 30 CFR Part 251 Continental shelf, Public lands—mineral resources, Reporting and recordkeeping requirements. 30 CFR Part 256 Administrative practice and procedure, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements. 30 CFR Part 280 Public lands—mineral resources, Reporting and recordkeeping requirements. 30 CFR Part 281 Administrative practice and procedure, Mineral royalties, Public lands—mineral resources, Reporting and recordkeeping requirements. 30 CFR Part 290 Administrative practice and procedure. Dated: December 10, 2007. C. Stephen Allred, Assistant Secretary—Land and Minerals Management. For the reasons stated in the preamble, the Minerals Management Service
(MMS)proposes to amend 30 CFR parts 203, 250, 251, 256, 280, 281, and 290 as follows: PART 203—RELIEF OR REDUCTION IN ROYALTY RATES 1. The authority citation for part 203 is revised to read as follows: Authority: 25 U.S.C. 396; 25 U.S.C. 2107; 30 U.S.C. 189, 241; 30 U.S.C. 359; 30 U.S.C. 1023; 30 U.S.C. 1751; 31 U.S.C. 9701; and 43 U.S.C. 1334. 2. Section 203.3 is revised to read as follows: § 203.3 Do I have to pay a fee to request royalty relief? When you submit an application or ask for a preview assessment, you must include a fee to reimburse us for our costs of processing your application or assessment. Federal policy and law require us to recover the cost of services that confer special benefits to identifiable non-Federal recipients. The Independent Offices Appropriation Act (31 U.S.C. 9701), Office of Management and Budget Circular A'25, and the Omnibus Appropriations Bill (Pub. L. 104'134, 110 Stat. 1321, April 26, 1996) authorize us to collect these fees.
(a)We will specify the necessary fees for each of the types of royalty relief applications and possible MMS audits in a Notice to Lessees. We will periodically update the fees to reflect changes in costs, as well as provide other information necessary to administer royalty relief.
(b)You must file all payments electronically through the Pay.Gov Web site and you must include a copy of the Pay.Gov confirmation receipt page with your application or assessment. The Pay.Gov Web site may be accessed through links on the MMS Offshore Web site at: *http://www.mms.gov/offshore/* homepage or directly through Pay.Gov at: *https://www.pay.gov/paygov/.* PART 250—OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER CONTINENTAL SHELF 3. The authority citation for part 250 is revised to read as follows: Authority: 31 U.S.C. 9701, 43 U.S.C. 1334. 4. Section 250.126 is revised to read as follows: § 250.126 Electronic payment instructions. You must file all payments electronically through Pay.Gov. This includes, but is not limited to, all OCS applications or filing fee payments. The Pay.Gov Web site may be accessed through links on the MMS Offshore Web site at: *http://www.mms.gov/offshore/* homepage or directly through Pay.Gov at: *https://www.pay.gov/paygov/.*
(a)*Payment of fees associated with electronic applications.* If you submitted an application through eWell, you must use the interactive payment feature in that system which directs you through Pay.Gov.
(b)*Payment of fees for applications not submitted electronically.* For applications not submitted electronically through eWell, you must use credit card or automated clearing house
(ACH)payments through the Pay.Gov Web site and you must include a copy of the Pay.Gov confirmation receipt page with your application. 5. Section 250.160(h) is revised to read as follows: § 250.160 When will MMS grant me a right-of-use and easement, and what requirements must I meet?
(h)You may make the rental payments required by paragraph (g)(1) and (g)(2) of this section on an annual basis, for a 5-year period, or for multiples of 5 years. You must make the first payment electronically through Pay.Gov and you must include a copy of the Pay.Gov confirmation receipt page with your right-of-use and easement application. You must make all subsequent payments electronically through Pay.Gov before the respective time periods begin. PART 251—GEOLOGICAL AND GEOPHYSICAL (G&G) EXPLORATIONS OF THE OUTER CONTINENTAL SHELF 6. The authority citation for part 251 is revised to read as follows: Authority: 31 U.S.C. 9701, 43 U.S.C. 1334. 7. Section 251.5(a) is revised to read as follows: § 251.5 Applying for permits or filing Notices.
(a)*Permits.* You must submit a signed original and three copies of the MMS permit application form (Form MMS—327). The form includes names of persons, type, location, purpose, dates of activity, and environmental and other information. A nonrefundable service fee of $1,900 must be paid electronically through Pay.Gov at: *https://www.pay.gov/paygov/,* and you must include a copy of the Pay.Gov confirmation receipt page with your application. PART 256—LEASING OF SULPHUR OR OIL AND GAS IN THE OUTER CONTINENTAL SHELF 8. The authority citation for part 256 is revised to read as follows: Authority: 31 U.S.C. 9701, 42 U.S.C. 6213, 43 U.S.C. 1334. 9. Section 256.64(a)(8) is revised to read as follows: § 256.64 How to file transfers.
(a)* * *
(8)You must pay electronically through Pay.Gov at: *https://www.pay.gov/paygov/* the service fee listed in § 256.63 of this subpart and you must include a copy of the Pay.Gov confirmation receipt page with your application for approval of any instrument of transfer you are required to file (Record Title/Operating Rights (Transfer) Fee). Where multiple transfers of interest are included in a single instrument, a separate fee applies to each individual transfer of interest. For any document you are not required to file by these regulations but which you submit for record purposes, you must also pay electronically through Pay.Gov the service fee listed in § 256.63 (Non-required Document Filing Fee) per lease affected, and you must include a copy of the Pay.Gov confirmation receipt page with your document. Such documents may be rejected at the discretion of the authorized officer. PART 280—PROSPECTING FOR MINERALS OTHER THAN OIL, GAS, AND SULPHUR ON THE OUTER CONTINENTAL SHELF 10. The authority citation for part 280 is revised to read as follows: Authority: 31 U.S.C. 9701, 43 U.S.C. 1334. 11. Section 280.12(a) is revised to read as follows: § 280.12 What must I include in my application or notification?
(a)*Permits.* You must submit to the Regional Director a signed original and three copies of the permit application form (Form MMS-134) at least 30 days before the startup date for activities in the permit area. If unusual circumstances prevent you from meeting this deadline, you must immediately contact the Regional Director to arrange an acceptable deadline. The form includes names of persons, type, location, purpose, and dates of activity, as well as environmental and other information. A nonrefundable service fee of $1,900 must be paid electronically through Pay.Gov at: *https://www.pay.gov/paygov/,* and you must include a copy of the Pay.Gov confirmation receipt page with your application. PART 281—LEASING OF MINERALS OTHER THAN OIL, GAS, AND SULPHUR IN THE OUTER CONTINENTAL SHELF 12. The authority citation for part 281 is revised to read as follows: Authority: 43 U.S.C. 1334. 13. Section 281.41(a)(2) is revised to read as follows: § 281.41 Requirements for filing for transfers.
(a)* * *
(2)An application for approval of any instrument required to be filed shall not be accepted unless a nonrefundable fee of $50 is paid electronically through Pay.Gov at: *https://www.pay.gov/paygov/* and a copy of the Pay.Gov confirmation receipt page is included with your application. For any document you are not required to file by these regulations but which you submit for record purposes, you must also pay electronically through Pay.Gov the service fee listed in § 256.63 (Non-required Document Filing Fee) per lease affected, and you must include a copy of the Pay.Gov confirmation receipt page with your document. Such documents may be rejected at the discretion of the authorized officer. PART 290—APPEAL PROCEDURES 14. The authority citation for part 290 continues to read as follows: Authority: 5 U.S.C. 301; 25 U.S.C. 396, 2107; 30 U.S.C. 189, 359, 1023, 1701 *et seq.* , 1751(a); 31 U.S.C. 3716, 9701; and 43 U.S.C. 1334. 15. Section 290.4(b) is revised to read as follows: § 290.4 How do I file an appeal?
(b)A nonrefundable processing fee of $150.00 paid with the Notice of Appeal.
(1)You must pay electronically through Pay.Gov at: *https://www.pay.gov/paygov/,* and you must include a copy of the Pay.Gov confirmation receipt page with your Notice of Appeal.
(2)You cannot extend the 60-day period for payment of the processing fee. [FR Doc. 07-6173 Filed 12-20-07; 8:45 am]
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  • 413 F.3d 3
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  • 240 F.3d 1126
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  • 40 CFR 9
  • Pub. L. 104-4
  • Pub. L. 104-113
  • 40 CFR 52
  • 42 USC 7401-7671q
  • 443 F.3d 880
  • 50 CFR 402.03
  • 40 CFR 180
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  • 40 CFR 2
  • 40 CFR 180.473
  • 40 CFR 180.473(a)
  • 47 CFR 73
  • 50 CFR 648
  • 50 CFR 660
  • 50 CFR 660.323(a)(4)
  • 50 CFR 660.323(a)(2)
  • 5 CFR 2423
  • 5 CFR 2429.24
  • 14 CFR 39
  • 14 CFR 91
  • Pub. L. 96-354
  • Pub. L. 108-176
  • Pub. L. 96-39
  • 20 CFR 416
  • 156 F.3d 438
  • Pub. L. 93-66
  • 87 Stat. 154
  • 26 CFR 1
  • Pub. L. 106-554
  • 114 Stat. 2763
  • 30 CFR 203
  • 30 CFR 250
  • 30 CFR 251
  • 30 CFR 256
  • 30 CFR 280
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F. App'x413 F.3d 3
F. App'x240 F.3d 1126
F. App'x443 F.3d 880
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