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Code · REGISTER · 2008-02-07 · PROPOSED RULES · Agricultural Agricultural Marketing Service RULES Olives Grown in California; Decreased Assessment Rate, 7199-7201 E8-2193 PROPOSED RULES Beef Promotion and Research; Reapportionment, 7226-7227 E8-219 · Unknown

Unknown. Final rule

40,487 words·~184 min read·/register/2008/02/07/08-554

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

--- schema: federal-register doc_type: fedreg source_file: FR-2008-02-07.xml --- 73 26 Thursday, February 7, 2008 Contents Agricultural Agricultural Marketing Service RULES Olives Grown in California; Decreased Assessment Rate, 7199-7201 E8-2193 PROPOSED RULES Beef Promotion and Research; Reapportionment, 7226-7227 E8-2194 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7243 E8-2192 Funds Availability Inviting Applications for Farmers’ Market Promotion Program, 7244-7245 E8-2195 United States Standards for Grade of Cantaloups, 7245 E8-2197 United States Standards for Grades of Pineapples, 7245-7246 E8-2196 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Farm Service Agency See Federal Crop Insurance Corporation See Forest Service Air Force Air Force Department NOTICES Meetings;
Sunshine Act, 7268 08-569 Animal Animal and Plant Health Inspection Service RULES Wood Packaging Material; Treatment Modification, 7189 E8-2262 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7246-7248 E8-2260 E8-2264 Availability of Pest Risk Analysis: Importation of Blueberries from Guatemala into Continental United States, 7248-7249 E8-2263 Bonneville Bonneville Power Administration NOTICES Proposed Methodology for Determining Average System Cost of Resources for Electric Utilities:
Bonneville Power Administration, 7270-7279 E8-2258 Proposed Wind Integration—Within-Hour Balancing Service Rate, 7279-7282 E8-2253 Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7289-7290 E8-2213 E8-2214 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7290-7292 08-529 08-530 08-531 Coast Guard Coast Guard PROPOSED RULES Safety zone:
Colorado River, Parker, AZ, 7229-7233 E8-2205 E8-2212 NOTICES Meetings: Lower Mississippi River Waterway Safety Advisory Committee, 7314-7315 E8-2208 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7264 E8-2286 Defense Defense Department See Air Force Department NOTICES Federal Acquisition Regulation (FAR):
Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7264-7268 E8-2279 E8-2293 E8-2294 E8-2295 E8-2296 E8-2308 Education Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7268-7270 E8-2256 E8-2257 E8-2259 Election Election Assistance Commission NOTICES Meetings; Sunshine Act, 7270 08-565 Employment Employment and Training Administration NOTICES Affirmative Reconsideration Determination: Motor Wheel Commercial Vehicle Systems;
Berea, KY, 7317 E8-2240 Amended Certification Regarding Eligibility: Sara Lee Branded Apparel, 7317-7318 E8-2235 Determinations Regarding Eligibility: Worker Adjustment Assistance and Alternative Trade Adjustment Assistance, 7318-7320 E8-2234 Eligibility Certification: Dexter Chemical LLC; Charlotte, NC, 7320 E8-2239 Investigations Regarding Certifications: Eligibility for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance, 7320-7321 E8-2233 Negative Determination on Reconsideration:
American Woodmark; Hardy County Plant, Moorfield, WV, 7321-7322 E8-2236 Negative Determination Regarding Application for Reconsideration: Diaz Intermediates Corp., Brockport, NY, 7322-7323 E8-2238 Diaz Intermediates Corp., West Memphis, Arkansas, 7322 E8-2237 Termination of Investigation: Conrad Forest Products, North Bend, Oregon, 7323 E8-2232 Energy Energy Department See Bonneville Power Administration See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries, 7210-7223 E8-1979 PROPOSED RULES Approval and Promulgation of Air Quality Implementation Plans:
New Hampshire; Determination of Attainment of Ozone Standard, 7234-7236 E8-2251 NOTICES Proposed Settlement Agreement, Clean Air Act Citizen Suit, 7285-7287 E8-2252 Executive Executive Office of the President See Presidential Documents Farm Farm Service Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7249 E8-2191 FAA Federal Aviation Administration RULES Special Conditions: Boeing Model 767-200, et al. Series Airplanes— Satellite Communication System With Lithium Ion Battery Installation, 7203-7205 E8-2224 PROPOSED RULES Establishment of Class E Airspace;
Point Roberts, WA (Abbotsford, BC), 7228-7229 E8-2221 FCC Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7287 E8-2100 Federal Crop Federal Crop Insurance Corporation RULES Common Crop Insurance Regulations; Florida Citrus Fruit Crop Provisions, 7190-7199 E8-2190 Federal Energy Federal Energy Regulatory Commission RULES Mandatory Reliability Standards for Critical Infrastructure Protection, 7368-7447 E8-1317 NOTICES Application for Amendment of License, Soliciting Comments, Motions to Intervene, and Protests:
Alabama Power Company, 7282-7283 E8-2202 Combined Notice of Filings, 7283-7285 E8-2249 Opportunity For Filing Reply Comments: Composition of Proxy Groups for Determining Gas and Oil Pipeline Return on Equity, 7285 E8-2201 Request Under Blanket Authorization: Trunkline Gas Company, LLC, 7285 E8-2203 FMC Federal Maritime Commission NOTICES Notice of Agreements Filed, 7287-7288 E8-2220 Ocean Transportation Intermediary License Applicants, 7288 E8-2218 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers:
Exemption Applications; Vision, 7360-7361 E8-2216 Federal Reserve Federal Reserve System RULES Extensions of Credit by Federal Reserve Banks, 7202 E8-2209 Federal Transit Federal Transit Administration NOTICES National Transit Database: Amendments to Urbanized Area Annual Reporting Manual, 7361-7364 E8-2163 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: 12-Month Finding on Petition to List Bonneville Cutthroat Trout as Threatened or Endangered, 7236-7237 E8-2222 Designation of Critical Habitat for the Devils River Minnow, 7237-7242 E8-2225 Food Food and Drug Administration NOTICES Draft Compliance Policy Guide Sec. 555.320, 7293 08-547 Draft Guidance for Industry, 7293-7298 08-548 Meetings:
Draft Compliance Policy Guide Sec. 555.320, 7298-7310 08-549 Radiological Devices Panel of the Medical Devices Advisory Committee, 7310-7311 E8-2265 Foreign Foreign Assets Control Office NOTICES Additional Designations of Entities Pursuant to Executive Order 13391, 7364-7365 E8-2228 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES Foreign-Trade Zone 38 - Spartanburg County, SC; Kittel Supplier USA, Inc.: Automotive Roof/Luggage Racks, 7250 E8-2283 Forest Forest Service NOTICES Meetings:
Land Between The Lakes Advisory Board, 7249-7250 E8-2292 GSA General Services Administration NOTICES 2008 Travel and Relocation Innovation Award, 7288 E8-2217 Federal Acquisition Regulation (FAR): Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7264-7268 E8-2279 E8-2293 E8-2294 E8-2295 E8-2296 E8-2308 Stewardship of Federal Property; Bulletin, 7288-7289 E8-2219 Health Health and Human Services Department See Centers for Disease Control and Prevention See Children and Families Administration See Food and Drug Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard See U.S.
Customs and Border Protection Housing Housing and Urban Development Department NOTICES Annual Indexing of Basic Statutory Mortgage Limits: Multifamily Housing Programs, 7316 E8-2215 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau International International Trade Administration NOTICES Applications for Duty-Free Entry of Scientific Instruments, 7250 E8-2276 Certain Pasta from Italy: Final Results of the Tenth
(2005)Countervailing Duty Administrative Review, 7251-7252 E8-2280 Certain Polyethylene Terephthalate Film, Sheet and Strip from India: Results of Antidumping Duty Administrative Review, 7252-7254 E8-2270 Certain Steel Nails from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 7254-7258 E8-2273 Raw Flexible Magnets from Taiwan: Postponement of Preliminary Determination of Antidumping Duty Investigation, 7258 E8-2285 Revocation of Antidumping Duty Orders on Stainless Steel Bar from France et al.; Countervailing Duty Order on Stainless Steel Bar from Italy, 7258-7259 E8-2274 Justice Justice Department See National Institute of Corrections Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Temporary Road Closure of BLM-Administered Road; Rio Blanco County, CO, 7316-7317 E8-2255 Mine Mine Safety and Health Administration RULES Criteria and Procedures for Proposed Assessment of Civil Penalties, 7206-7210 E8-2226 NOTICES Petitions for Modification, 7323-7324 E8-2229 NASA National Aeronautics and Space Administration NOTICES Federal Acquisition Regulation (FAR): Agency Information Collection Activities; Proposals, Submissions, and Approvals, 7264-7268 E8-2279 E8-2293 E8-2294 E8-2295 E8-2296 E8-2308 National Institute National Institute of Corrections NOTICES Meetings: Advisory Board, 7317 08-534 National Institute National Institute of Standards and Technology NOTICES Meetings: Discussion of USG IPv6 Testing Program, 7259-7260 E8-2223 NIH National Institutes of Health NOTICES Meetings: National Human Genome Research Institute, 7311 08-520 National Institute of Child Health and Human Development, 7312 08-519 National Institute of Neurological Disorders and Stroke, 7311-7312 08-517 Scientific Review Center, 7312-7314 08-518 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Closure, 7223-7224 08-554 Fisheries of the Exclusive Economic Zone Off Alaska: Pacific Cod by Non-American Fisheries Act Crab Vessels Catching Pacific Cod for Processing by the Inshore Component in the Western Regulatory Area, etc., 7224-7225 08-553 NOTICES Endangered and Threatened Species: Program Review for Section 7 Counterpart Regulations; National Fire Plan Activities, 7260-7261 E8-2278 Endangered Species; File No. 1595, 7261 E8-2277 Incidental Take of Marine Mammals; Missile Launch Operations from San Nicolas Island, CA, 7261-7262 E8-2282 Marine Mammals; File No. 42-1908, 7262 E8-2281 Meetings: Western Pacific Fishery Management Council, 7262-7264 E8-2250 Nuclear Nuclear Regulatory Commission NOTICES Status of Office of Nuclear Reactor Regulation's Electronic Distribution Initiative, 7328 E8-2243 Occupational Occupational Safety and Health Administration NOTICES Application for Expansion of Recognition: SGS U.S. Testing Company, Inc., 7324-7325 E8-2199 TUV America, Inc., 7325-7328 E8-2200 Personnel Personnel Management Office RULES Allotments from Federal Employees, 7188-7189 E8-2131 Career and Career-Conditional Employment and Adverse Actions, 7187-7188 E8-2121 Presidential Presidential Documents ADMINISTRATIVE ORDERS Cuba; Continuation of National Emergency Relating to the Anchorage and Movement of Vessels (Notice of February 6, 2008), 7457-7460 08-595 SEC Securities and Exchange Commission RULES Delegation of Authority to Director of Division of Corporation Finance, 7205-7206 E8-2246 PROPOSED RULES Internal Control Over Financial Reporting in Exchange Act Periodic Reports of Non-Accelerated Filers, 7450-7455 E8-2211 NOTICES PowerShares Capital Management LLC, et al.; Notice of Application, 7328-7334 E8-2269 Self-Regulatory Organizations; American Stock Exchange LLC, 7335-7336 E8-2123 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, 7336-7338 E8-2204 Chicago Board Options Exchange, Inc., 7338-7339 E8-2266 Financial Industry Regulatory Authority, Inc., 7339-7345 E8-2161 E8-2182 E8-2184 International Securities Exchange, LLC, 7345-7349 E8-2206 E8-2267 New York Stock Exchange LLC, 7349-7352 E8-2183 Philadelphia Stock Exchange, Inc., 7352-7354 E8-2245 State State Department NOTICES Bureau of Educational and Cultural Affairs Request for Grant Proposals: Summer Institute for European Student Leaders, 7354-7359 E8-2268 Culturally Significant Objects Imported for Exhibition Determinations: Gilbert & George, 7359 E8-2272 Meetings: U.S. Advisory Commission on Public Diplomacy, 7359-7360 E8-2271 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Transit Administration NOTICES Continuing Fitness of Boston-Maine Airways Corp., 7360 E8-2275 Treasury Treasury Department See Foreign Assets Control Office See United States Mint Customs U.S. Customs and Border Protection NOTICES Proposed Interpretation of Sold for Exportation to the United States, 7315-7316 E8-2198 U.S. Mint United States Mint NOTICES American Eagle Gold Proof and Uncirculated Coin Price Increase, 7365-7366 E8-2207 American Eagle Platinum Proof Coin and American Eagle Platinum Uncirculated Coin; Price Increases, 7365 E8-2156 Separate Parts In This Issue Part II Energy Department, Federal Energy Regulatory Commission, 7368-7447 E8-1317 Part III Securities and Exchange Commission, 7450-7455 E8-2211 Part IV Executive Office of the President, Presidential Documents, 7457-7460 08-595 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 26 Thursday, February 7, 2008 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 315 and 752 RIN 3206-AL30 Career and Career-Conditional Employment and Adverse Actions AGENCY: Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management
(OPM)is issuing final regulations governing Federal adverse actions. The final regulations conform the adverse action rules regarding employee coverage to binding judicial decisions interpreting the underlying statute. DATE: *Effective Date:* The rule is effective March 10, 2008. FOR FURTHER INFORMATION CONTACT: Sharon L. Mayhew by telephone at
(202)606-2930; by FAX at
(202)606-2613; or by e-mail at *CWRAP@opm.gov* . SUPPLEMENTARY INFORMATION: On May 1, 2007, OPM published at 72 FR 23772
(2007)proposed amendments to the regulations in 5 CFR part 752, to conform the adverse action rules regarding the procedural and appeal rights of individuals serving a probationary period in the competitive service or a trial period in the excepted service to binding judicial decisions interpreting the underlying statute. We also proposed amendments to 5 CFR part 315 to make corresponding changes to the career and career-conditional employment rules governing probationary periods. The public comment period on the proposed regulations ended on July 2, 2007. OPM carefully considered the three comments received. Two commenters supported and commended OPM's proposed amendments to the regulations in parts 315 and 752 of title 5 CFR. They recommended OPM make similar changes to procedural and appeal rights in 5 CFR part 432, the regulations governing performance-based actions. One of the commenters suggested additional amendments be made to 5 CFR part 315 to cover actions taken under 5 CFR part 432. These suggestions, however, are beyond the scope of the proposed regulations. The third commenter supported OPM's proposed amendments to the regulations in parts 315 and 752 of title 5 CFR. The commenter also advocated Congressional legislation to support OPM's interpretation of the statute at 5 U.S.C. 7511 and recommended that OPM repeat previously stated interpretive guidance regarding trial periods for excepted service appointments pending conversion to the competitive service. See 57 FR 20041. These recommendations are beyond the scope of the proposed regulations and will not be further addressed. Finally, while supporting the language in the proposed regulations, the third commenter expressed concern that a literal reading of the Federal Circuit decision in *Van Wersch* v. *Department of Health and Human Services,* 197 F.3d 1144 (Fed. Cir. 1999), could potentially result in coverage, for example, of a recently hired nonpreference eligible excepted service employee serving in a temporary position not pending conversion to the competitive service. As stated in the supplementary information accompanying the notice of proposed rulemaking, 72 FR at 23773 (2007), OPM's reading of the statute with regard to those employees, among others, is consistent with statute, and supported by the Merit Systems Protection Board's (Board) decision in *Johnson* v. *Department of Veterans Affairs* , 99 MSPR 362 (2005), which was decided after *Van Wersch* . OPM, like the Board, considers this interpretation to be consistent with Van Wersch and in accordance with the law. For these and all the reasons stated in the proposed regulations published at 72 FR 23772 (2007), OPM issues these final regulations without modification, except for two minor non-substantive grammatical changes in § 752.401(11) and § 752.401(13). E.O. 12866, Regulatory Review The Office of Management and Budget has reviewed this rule in accordance with E.O. 12866. Regulatory Flexibility Act OPM has determined these amendments will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees. List of Subjects in 5 CFR Parts 315 and 752 Administrative practice and procedure, Government employees. Office of Personnel Management. Linda M. Springer, Director. Accordingly, OPM amends parts 315 and 752 of title 5, Code of Federal Regulations, as follows: PART 315—CAREER AND CAREER CONDITIONAL EMPLOYMENT 1. The authority citation for part 315 continues to read as follows: Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577, 3 CFR, 1954-1958 Comp., p. 218, unless otherwise noted; and E.O. 13162; secs, 315.601 and 315.609 also issued under 22 U.S.C. 3651 and 3652. Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104. Sec 315.603 also issued under 5 U.S.C. 8151. Sec 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp., p. 111. Sec 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 Comp., p. 303. Sec 315.607 also issued under 22 U.S.C. 2506. Sec 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp., p. 293. Sec. 315.610 also issued under 5 U.S.C. 3304(d). Sec 315.611 also issued under Section 511, Pub. L. 106-117, 113 Stat. 1575-76. Sec 315.708 also issued under E.O. 13318. Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp., p. 229. Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978 Comp., p. 264. 2. Revise § 315.803 to read as follows: § 315.803 Agency action during probationary period (general).
(a)The agency shall utilize the probationary period as fully as possible to determine the fitness of the employee and shall terminate his services during this period if he fails to demonstrate fully his qualifications for continued employment.
(b)Termination of an individual serving a probationary period must be taken in accordance with subpart D of part 752 of this chapter if the individual has completed one year of current continuous service under other than a temporary appointment limited to 1 year or less and is not otherwise excluded by the provisions of that subpart. 3. Revise § 315.804(a) to read as follows: § 315.804 Termination of probationers for unsatisfactory performance or conduct.
(a)Subject to § 315.803(b), when an agency decides to terminate an employee serving a probationary or trial period because his work performance or conduct during this period fails to demonstrate his fitness or his qualifications for continued employment, it shall terminate his services by notifying him in writing as to why he is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, consist of the agency's conclusions as to the inadequacies of his performance or conduct. 4. Revise § 315.805 introductory text to read as follows: § 315.805 Termination of probationers for conditions arising before appointment. Subject to § 315.803(b), when an agency proposes to terminate an employee serving a probationary or trial period for reasons based in whole or in part on conditions arising before his appointment, the employee is entitled to the following: PART 752—ADVERSE ACTIONS 1. The authority citation for part 752 continues to read as follows: Authority: 5 U.S.C. 7504, 7514, and 7543. 2. Revise § 752.401 (c)(1) and (2), (d)(11) and (12), and add (d)(13) to read as follows: § 752.401 Coverage.
(c)* * *
(1)A career or career conditional employee in the competitive service who is not serving a probationary or trial period;
(2)An employee in the competitive service who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less;
(d)* * *
(11)A nonpreference eligible employee serving a probationary or trial period under an initial appointment in the excepted service pending conversion to the competitive service, unless they meet the requirements of paragraph (c)(5) of this section;
(12)An employee whose agency or position has been excluded from the appointing provisions of title 5, United States Code, by separate statutory authority in the absence of any provision to place the employee within the coverage of chapter 75 of title 5, United States Code; and
(13)An employee in the competitive service serving a probationary or trial period, unless they meet the requirements of paragraph (c)(2) of this section. 3. Revise § 752.402
(b)to read as follows: § 752.402 Definitions.
(b)*Current continuous employment* means a period of employment or service immediately preceding an adverse action without a break in Federal civilian employment of a workday. [FR Doc. E8-2121 Filed 2-6-08; 8:45 am] BILLING CODE 6325-39-P OFFICE OF PERSONNEL MANAGEMENT 5 CFR Parts 550 and 892 RIN 3206-AJ88 Allotments From Federal Employees AGENCY: U.S. Office of Personnel Management. ACTION: Final rule. SUMMARY: The U.S. Office of Personnel Management
(OPM)is issuing final regulations dealing with the use of OPM's allotment authority to allow for pretax salary reductions as part of OPM's flexible benefits plan. Using an allotment from an employee's pay to the employing agency allows certain payments (e.g., employee health insurance premiums, contributions to a flexible spending arrangement, and contributions to a health savings account) to be paid with pretax dollars, as provided under section 125 of the Internal Revenue Code. In addition, these regulations finalize certain policy clarifications and changes to make the regulations more readable. DATES: *Effective Date:* The final regulations are effective on March 10, 2008. FOR FURTHER INFORMATION CONTACT: Kevin Kitchelt by telephone at
(202)606-2858; by fax at
(202)606-0824; or by e-mail at *pay-performance-policy@opm.gov.* SUPPLEMENTARY INFORMATION: On November 17, 2006, the U.S. Office of Personnel Management (OPM), issued interim regulations (71 FR 66827) on OPM's allotment authority at 5 CFR part 550, subpart C, to allow for pretax salary reductions as part of OPM's flexible benefits plan. Using an allotment from an employee's pay to the employing agency allows certain payments (e.g., employee health insurance premiums, contributions to a flexible spending arrangement, and contributions to a health savings account) to be paid with pretax dollars, as provided under section 125 of the Internal Revenue Code. The interim regulations also made certain policy clarifications and changes to make the regulations more readable The 60-day comment period ended on January 16, 2007. During the comment period, OPM received one comment that was outside the scope of these regulations. Therefore, we are adopting the interim regulations as final with a correction to a section title. Regulatory Flexibility Act I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will apply only to Federal agencies and employees. E.O. 12866, Regulatory Review The Office of Management and Budget has reviewed this rule in accordance with E.O. 12866. List of Subjects in 5 CFR Parts 550 and 892 Administrative practice and procedure, Claims, Government employees, Wages, Health insurance, and Taxes. U.S. Office of Personnel Management. Linda M. Springer, Director. Accordingly, the interim rule amending 5 CFR parts 550 and 892 which was published at 71 FR 66827 on November 17, 2006, is adopted as final with the following change: PART 550—PAY ADMINISTRATION (GENERAL) Subpart C—Allotments From Federal Employees 1. The authority citation for subpart C of part 550 continues to read as follows: Authority: 5 U.S.C. 5527; E.O. 10982, 3 CFR 1959-1963 Comp., p.502. 2. The heading of subpart C is revised to read as set forth above. 3. The undesignated center heading “Allotments for Savings” following § 550.351 is removed. 4. Revise the heading to § 550.361 to read as follows: § 550.361 Scope. [FR Doc. E8-2131 Filed 2-6-08; 8:45 am] BILLING CODE 6325-39-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2006-0129] RIN 0579-AC32 Wood Packaging Material; Treatment Modification AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Affirmation of interim rule as final rule. SUMMARY: We are adopting as a final rule, without change, an interim rule that amended the regulations for the importation of unmanufactured wood articles to bring the methyl bromide treatment schedule into alignment with current international phytosanitary standards. The interim rule was necessary because international phytosanitary standards had changed, and our regulations needed to be updated to reflect the current standards. DATES: Effective on February 7, 2008, we are adopting as a final rule the interim rule published at 72 FR 30460-30462 on June 1, 2007. FOR FURTHER INFORMATION CONTACT: Mr. John T. Jones, II, Forestry Products Trade Director, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-1236;
(301)734-8860. SUPPLEMENTARY INFORMATION: Background In an interim rule 1 effective and published in the **Federal Register** on June 1, 2007 (72 FR 30460-30462, Docket No. APHIS-2006-0129), we amended the regulations for the importation of unmanufactured wood articles to bring the methyl bromide treatment schedule into alignment with current international phytosanitary standards. 1 To view the interim rule and the comment we received, go to *http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=APHIS-2006-0129* . Comments on the interim rule were required to be received on or before July 31, 2007. We received one comment by that date, from a State agriculture department. The commenter stated that methyl bromide treatments do not control deep wood insects, but did not provide any evidence to support that assertion. The commenter also stated that more effective treatments should be required, but did not offer any suggestions for such treatments. We agree that the methyl bromide treatment standards adopted in the interim rule would be inappropriate for the treatment of logs or large pieces of lumber. However, these standards apply specifically to wood packaging materials, such as pallets, crating, and boxes, which are typically made of stock 1/2 -inch to 3 inches in thickness. Research has demonstrated that fumigation of wood packaging material in accordance with these standards will be sufficient to penetrate wood stock of the sizes typically used for wood packaging materials and will provide an appropriate level of phytosanitary protection. We are making no changes to the interim rule in response to this comment. Therefore, for the reasons given in the interim rule and in this document, we are adopting the interim rule as a final rule without change. This action also affirms the information contained in the interim rule concerning Executive Orders 12866 and 12988 and the Paperwork Reduction Act. Further, this action has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. Regulatory Flexibility Act In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is set out below, regarding the economic effects of this rule on small entities. We invited the public to comment on the potential effects of the interim rule on small entities, in particular the number and kind of small entities that may incur benefits or costs from the implementation of the interim rule. However, we did not receive any additional information or data in response to those requests. The rule affects foreign exporters of goods that are shipped using wood packaging materials. No U.S. entities involved in the production or supply of unmanufactured wood packaging materials are expected to be negatively affected by the rule because the revised treatment must occur in the country of origin. The impact on foreign entities is not expected to be large because only the treatment time and concentration reading have been changed; the methyl bromide dosage rate remains the same. It is possible that some foreign entities might pass on additional treatment costs, if any, to U.S. buyers. The rule has no mandatory reporting, recordkeeping, or other compliance requirements for U.S. entities, other than the requirements that normally pertain to commodity importation. APHIS has not identified any duplication, overlap, or conflict of the interim rule with other Federal rules. We do not foresee the rule having a significant economic impact on small entities, and therefore have not proposed significant alternatives to minimize impacts. The rule simply aligns the U.S. methyl bromide treatment requirements for wood packaging materials with the standards established by the International Plant Protection Convention. The rule benefits the United States by reducing the risk of introduction of pests via unmanufactured wood packaging materials. It may impact foreign exporters of goods to the United States who use unmanufactured wood packaging materials, which in turn may affect importers of these goods. However, cost increases, if any, due to the revised treatment requirements are not expected to significantly affect domestic entities and thus will not have a measurable impact on the flow of trade. List of Subjects in 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. PART 319—FOREIGN QUARANTINE NOTICES Accordingly, we are adopting as a final rule, without change, the interim rule that amended 7 CFR part 319 and that was published at 72 FR 30460-30462 on June 1, 2007. Done in Washington, DC, this 1st day of February 2008. Kevin Shea, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E8-2262 Filed 2-6-08; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Federal Crop Insurance Corporation 7 CFR Part 457 RIN 0563-AC01 Common Crop Insurance Regulations; Florida Citrus Fruit Crop Provisions AGENCY: Federal Crop Insurance Corporation, USDA. ACTION: Final rule. SUMMARY: The Federal Crop Insurance Corporation
(FCIC)finalizes the Florida Citrus Fruit Crop Provisions. The intended effect of this action is to restrict the effect of the current Florida Citrus Fruit Crop Insurance Provisions to the 2008 and prior crop years and replace with new crop provisions to better meet the needs of the insured producers. The changes will apply for the 2009 and succeeding crop years. DATES: *Effective Date:* March 10, 2008. FOR FURTHER INFORMATION CONTACT: William Klein, Risk Management, Specialist, Product Management, Product Administration and Standards Division, Risk Management Agency, United States Department of Agriculture, 6501 Beacon Drive, Stop 0812, Room 421, Kansas City, MO 64133-4676, telephone
(816)926-7730. SUPPLEMENTARY INFORMATION: Executive Order 12866 This rule has been determined to be non-significant for the purposes of Executive Order 12866 and, therefore, it has not been reviewed by the Office of Management and Budget (OMB). Paperwork Reduction Act of 1995 Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the collections of information in this rule have been approved by OMB under control number 0563-0053 through June 30, 2008. E-Government Act Compliance FCIC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995
(UMRA)establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA. Executive Order 13132 It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Regulatory Flexibility Act FCIC certifies that this regulation will not have a significant economic impact on a substantial number of small entities. Program requirements for the Federal crop insurance program are the same for all producers regardless of the size of their farming operation. For instance, all producers are required to submit an application and acreage report to establish their insurance guarantees and compute premium amounts, or a notice of loss and production information to determine an indemnity payment in the event of an insured cause of crop loss. Whether a producer has 10 acres or 1000 acres, there is no difference in the kind of information collected. To ensure crop insurance is available to small entities, the Federal Crop Insurance Act authorizes FCIC to waive collection of administrative fees from limited resource farmers. FCIC believes this waiver helps to ensure small entities are given the same opportunities to manage their risks through the use of crop insurance. A Regulatory Flexibility Analysis has not been prepared since this regulation does not have an impact on small entities, and, therefore, this regulation is exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605). Federal Assistance Program This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450. Executive Order 12372 This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983. Executive Order 12988 This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. With respect to any direct action taken by FCIC under the terms of the crop insurance policy, the administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action for judicial review of any determination or action by FCIC may be brought. Environmental Evaluation This action is not expected to have a significant impact on the quality of the human environment, health, and safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed. Background On October 13, 2006, FCIC published a notice of proposed rulemaking in the **Federal Register** at 71 FR 60439-60444 to revise 7 CFR § 457.107 Florida Citrus Fruit Crop Insurance Provisions. Following publication of the proposed rule, the public was afforded 60 days to submit written comments and opinions. Five sets of comments, for a total of 52 comments, were received from insurance providers, trade associations, an insurance service organization, and other interested parties. The comments received and FCIC's responses are as follows: *Comment:* An insurance service organization and an insurance provider commented that while it was not specifically mentioned in the proposed rule, the preamble should be deleted in the typeset policy, as in other recently revised policies, since the order of priority is covered in the Basic Provisions. *Response:* FCIC agrees with the commenter and will remove the preamble containing the order of priority when the Florida Citrus Fruit policy is issued. *Comment:* An insurance service organization and an insurance provider commented that the new terms in the definitions section, “Citrus fruit crop” and “citrus fruit crop type (fruit type),” both contain the words “citrus fruit.” They further commented that FCIC should consider if the term “citrus fruit” or even “marketable citrus fruit” should be defined. *Response:* The policy specifically lists certain fruits designated as citrus fruits, and contained within a citrus fruit crop, such as early and mid-season oranges, grapefruit, tangelos and tangerines, etc. The reference to citrus fruit in such definition is to designate separate fruit and, as appropriate, to allow other types of fruit to be specified in the Special Provisions as a new citrus fruit crop or within an existing citrus fruit crop. Further, since citrus fruit is a common term, it will be given in common meaning. However, the insurable citrus fruit will be determined in accordance with the policy provisions. With respect to the term “marketable citrus fruit,” like many other fruit crops, it is not solely a grading standard or single criterion that determines whether the crop is marketable. It depends on a variety of factors that may change. Therefore, it is not practical to define the term. Instead, FCIC has included criteria in section 10 that will be used to determine whether the citrus fruit is marketable. Therefore, no change has been made. *Comment:* An insurance service organization noted that FCIC added a new definition, “fruit type,” in the proposed rule. They questioned if there would ever be more than one kind of citrus fruit within a fruit type. *Response:* FCIC redesignated the former “citrus fruit type” as “citrus fruit crop,” and the different fruit within a crop as “citrus fruit types” for clarity. For example, citrus fruit crop includes Citrus I, Citrus II, Citrus III, etc. Citrus fruit types for such citrus fruit crops would include early and mid-season oranges for Citrus I, late season oranges for Citrus II, and grapefruit for Citrus III, etc. At this time, there is no further subdivision of citrus fruit types and no current plans to further subdivide citrus fruit types. *Comment:* An insurance service organization commented they were concerned about the addition of the new item
(9)under the definition “citrus fruit crop” in section 1, allowing coverage for, “Any other citrus fruit crop designated in the Special Provisions.” They expressed their concern with this proposed additional crop, citing existing difficulties with a similar catch-all category of grapes in California. They requested the opportunity to work closely with the applicable RMA Regional Office in any proposed development of such additional citrus fruit crops before they are added in the Special Provisions. In addition, if this catch-all category is added, they questioned whether it would be identified as “Citrus IX” to be consistent with the other “crop” numbers, or would there be multiple additional citrus fruit crops added in the Special Provisions. The commenter also questioned how the crop or crops will be identified for data processing purposes and how many there might end up being. *Response:* FCIC agrees with the commenter regarding a prefix of “Citrus IX” for “Any other fruit crop designated in the Special Provisions,” and has revised the provision accordingly. Given the constant changes in agriculture and the development of new types and varieties, having a category that would allow other citrus fruit crops to be added in the Special Provisions provides the flexibility to quickly provide insurance for a particular citrus fruit in the future, if warranted. RMA will work with Regional Offices and insurance providers when making a decision on adding any citrus fruit crop to the Special Provisions. If fruit crops are added in the future, they may or may not contain more than one fruit type depending on the fruit crop to be insured. However, if they contain more than one citrus fruit type, they will be identified for data processing purposes in the same manner as current citrus fruit crops containing multiple citrus fruit types. At this time, FCIC has no plans to add another citrus fruit crop to the Special Provisions. *Comment:* An insurance service organization and an insurance provider recommended RMA include a list, in the Special Provision, of the citrus varieties that fall under the citrus “crops” and more specifically under crop types i.e., early, mid-season and late oranges, because while the varieties may be known in the citrus industry they may not be as well known by crop insurance agents and adjusters. *Response:* The insurable citrus fruit crops and fruit types are identified in the definitions section and in the Special Provisions. FCIC does not require reporting down to the variety level. Further, when a new orange variety is developed it is categorized by the Cooperate State Research Education and Extension Service as early, mid-season or late-season. This information is made available to the industry, i.e. growers, buyers, trade associations, the extension service, and Florida Agricultural Statistics Service (FASS). Therefore, no change is made. *Comment:* An insurance service organization recommended FCIC consider deleting “crop” in the new definition “Citrus fruit crop type (fruit type).” They suggest it would be less confusing if it were changed to “Citrus fruit type.” They further asked that FCIC consider replacing the last phrase “* * * shown as Roman Numerals I through VIII” with the words, “* * * defined above.” *Response:* The commenter is correct that the term “citrus fruit type” is less confusing and revised the provision accordingly. The definition also makes it clear that the citrus fruit type is one of the citrus fruit listed in the Special Provisions or in the definition of citrus fruit crop. *Comment:* An insurance service organization and an insurance provider recommended adding the term “Marketable citrus fruit” since it is used throughout the crop provisions. *Response:* Marketability is situational based on damage to the fruit and whether the fruit is to be utilized as fresh fruit or juice. Further, the marketable standards may be different for the different categories defined as a “citrus fruit crop.” Therefore, it would be difficult to create a single definition. It makes more sense to specify the criteria used to make such determinations of marketability in section 10, pertaining to the settlement of the claims. No change has been made. *Comment:* An insurance service organization and an insurance provider expressed concern with the way the definition “Potential production” is written. They believe that item number
(3)under “Including citrus fruit” which addresses citrus fruit “* * * lost or damaged from either an insured or uninsured cause” could result in confusion due to items shown under “But not including citrus fruit.” In particular, they cite under “But not including citrus fruit” item
(1)“Was lost before insurance attached for any crop year” and item
(2)“Was lost by normal dropping * * *.” They believe these two could be considered contradictory compared to item
(3)under “Including citrus fruit,” “Was lost or damaged from either an insured or uninsured cause * * *.” They suggested adding the language “* * * except as excluded below” to item
(3)under “Including citrus fruit,” *Response:* Including both the reference to production lost or damaged due to uninsured causes as “potential production” appears contradictory to those provisions that are not included as “potential production,” such as production lost before the insurance attached or normal dropping, which are also uninsured causes. The suggested change should help clarify when such production is included as “potential production” and when it is not. Therefore, item
(3)is revised to be prefaced with “Except as provided below.” *Comment:* An insurance provider commented that the word “lost” is vague, yet it is used throughout the definition of “potential production.” They questioned whether citrus fruit “lost by normal dropping” should be described as “lost.” They recommend either using only the term ‘destroyed’, define ‘lost,’ or remove the term ‘lost’ completely. *Response:* The commenter is correct that the term “lost” is used in several different contexts to refer to citrus fruit that is missing or destroyed but the common definition of “lost” also refers to both missing or destroyed. Therefore, the term is not used inappropriately. However, to avoid any misperception that lost only means missing, FCIC has revised the provisions to refer to missing, damaged or destroyed, as appropriate, instead of lost. *Comment:* An insurance service organization recommended that the two lists of items under the definition of “Potential Production” be identified as (a)(1)-(6) for “fruit including” and b(1)-(3) for “fruit not including” for easier referencing. *Response:* FCIC has revised the provisions accordingly. *Comment:* An insurance service organization and an insurance provider recommended the terms “buckhorned” and “interstock,” be defined because they are used in the definition “topworked.” *Response:* FCIC agrees with the recommendation and has defined the terms “buckhorned” and “interstock,” consistent with how those terms are used in other Crop Provisions. *Comment:* An insurance service organization and an insurance provider asked for clarification as to whether a change is intended in how basic units are established for Florida Citrus. They commented that while there was no explanation of any unit changes in the “Background” portion of the proposed rule, the previously defined term “citrus fruit type” was changed to “citrus fruit crop.” They questioned whether this would result in a change in how basic units are determined. For example, lemons and limes are part of the Citrus VI “crop” and therefore would be (and have been) part of one basic unit, but if it is intended for lemons and limes to qualify as two separate basic units, the term needs to be revised to “citrus fruit type.” *Response:* In the proposed rule, the term “citrus fruit crop” replaced the term “citrus fruit type”. This was done to reduce the confusion created by defining “types” as crops. In conjunction with this change, in the proposed rule, FCIC also revised the provisions in section 2 regarding units to clarify that basic units will be divided into additional basic units by each citrus fruit crop. Therefore, there has been no change in the manner in which basic units are established. No change has been made. *Comment:* An insurance service organization and an insurance provider commented that the changes in section 2, Unit Division, allow optional units by non-contiguous land, in addition to optional units by section, section equivalent, or FSN. They further commented this is a change from the previous language “Instead of * * *,” but there is no explanation in the “Background” as to why this change is proposed. Additionally, they noted that if optional units have changed, this should be identified in the summary of changes. *Response:* FCIC has made no change in optional unit determination. The language changed from “instead of” to “in addition to,” to be consistent with other Crop Provisions. This change does not have any substantive effect. Use of the term “instead of” or “in addition to” both mean that optional units may be established by section, section equivalent, FSA farm serial number or non-contiguous land. While it does not effect how optional units are established, FCIC agrees the revision should have been identified and has done so in this final rule. *Comment:* An insurance service organization and an insurance provider commented that since this is a dollar plan crop, production does not have to be reported by a certain date for underwriting purposes. They further commented the second sentence in section 3(b) is misplaced, since section 10 “Settlement of Claim” describes responsibilities in a loss situation. They recommended that provisions in section 3(b) be revised to state simply “The production reporting requirements contained in section 3 of the Basic Provisions are not applicable.” These provisions would replace the existing crop provisions that read, “In lieu of the production reporting date contained in section 3 of the Basic Provisions, potential production for each unit will be determined during loss adjustment.” *Response:* FCIC has revised the provision accordingly. However, the reference to the determination of potential production is still necessary. FCIC has determined the provision belongs in section 6 “Insured Crop” and has added a new section 6(e). *Comment:* An insurance service organization commented that unless a different deadline applies to coverage changes requested for the initial year the revised crop provisions are effective, the opening phrase in section 3(e), “For the 2008 and succeeding crop years * * *,” seems to be unnecessary. *Response:* FCIC has removed the opening phrase in section 3(e) accordingly. *Comment:* An insurance provider commented that the current Crop Provisions provide for coverage beginning on May 1 while the proposed Crop Provisions indicate that coverage will begin on June 1. They questioned if it is FCIC's intention not to provide coverage for the month of May during the waiting period after insureds had requested increased coverage. *Response:* FCIC acknowledges that the proposed rule failed to state what, if any coverage, would be applicable for the month of May. Further, as stated more fully below in the comments to section 8, there may be adverse consequences to producers as a result of this change. As a result, FCIC is moving the insurance period back to its original dates, with cancellation and termination dates of April 30, and the insurance attachment date of May 1. This will avoid any disruption of coverage. However, the sales closing date is moved back from April 30 to April 1 to be consistent with the one-month timeframe between sales closing and insurance attachment as provided in the Nursery and Florida Fruit tree policies. *Comment:* An insurance provider commented that the Crop Provisions are proposed to be effective for the 2008 crop year, and section 3(e) is being added to address a 30-day waiting period for coverage changes as well as change the insurance period dates, to be consistent with the Nursery Crop Provisions and the Florida Fruit Tree Pilot Crop Provisions. They further commented the 30-day waiting period is difficult to administer and becomes a problem when a loss occurs before the waiting period is over. *Response:* As a result of delays in the publication of this final rule, the revisions are not expected to take affect until the 2009 crop year. FCIC originally proposed to modify the insurance period in the proposed rule, establishing a June 1 insurance attachment date, to be consistent with the Nursery Crop Provisions and the Florida Fruit Tree Pilot Crop Provisions. However, as stated above, this would have resulted in a disruption of coverage for a month so FCIC is moving the insurance attachment date back to the original May 1 date, with a sales closing date of April 1. The 30-day waiting period helps maintain program integrity and allows insurance providers ample time to inspect the crop when deemed appropriate, and if the crop is damaged to notify the insured of the status of their insurance on a timely basis. *Comment:* An insurance provider questioned how a loss would be paid based on the provisions contained in section 3(e). They provided an example where an insured has $1,000 coverage in a previous crop year and requests $1,500 coverage for the new crop year. A hail loss occurs within 30-day waiting period. They acknowledge the insured is kept at $1,000 coverage based on the policy language. If the damage is assessed and the insurance provider finds 50 percent hail damage, they questioned how they were to reduce coverage. They noted the Florida Citrus Fruit policy is a dollar plan and percentage of loss policy. They questioned whether they should reduce coverage by 50 percent to $500 and still owe the insured $500 multiplied by 50 percent damage, or determine that 50 percent of the loss is not covered. Essentially, they questioned whether the proposed provisions provide coverage for insured losses during the month of May. *Response:* The commenter did not indicate if the crop in the example was the current year's crop or the following year's crop, just that the loss occurred during the 30-day waiting period. If it was the current crop year, and the calendar date for the end of the insurance period has not passed, the loss would be indemnified just as in the past, based on the liability for that crop year. They would be paid the $1,000. If it was the crop set for the next crop year, it would not be covered until May 1 under the Final Rule. There would be no indemnity for that crop since insurance had not yet attached, and the amount of insurance would be reduced to reflect the remaining potential, consistent with section 3(f). Insured losses on or after May 1 will be covered just as they were in the previous policy. *Comment:* An insurance service organization and an insurance provider commented that the provisions in section 3(f) have been added to address the crop being damaged prior to the beginning of the insurance period and reducing coverage based on the amount of damage. They further commented while in theory they agree with this concept, there are no procedures in place to address how coverage will be reduced. Additionally they commented this has been an issue on all of the perennial policies in Florida due to the number of hurricanes that have occurred in recent years. Provisions of existing policies have not been working as there are no procedures or guidance in place to properly implement. If these provisions remain, FCIC will need to provide additional guidance as to how the provisions are to be implemented. *Response:* Underwriting procedures need to be in place to determine the appropriate reduction in the amount of insurance. While section 3(f) is new, reduction in the amount of insurance was applicable to interplanted acreage in the current Crop Provisions, but the methodology for determining damage was not specifically addressed in FCIC procedure. FCIC will modify the Florida Citrus Fruit Loss Adjustment Standards and the underwriting procedures by adding instructions for reducing the amount of insurance based on damage sustained on the acreage prior to insurance attaching. *Comment:* A trade association commented on the provisions in section 6(b)(2), which state no fruit is insurable until the trees reach the “fifth growing season.” They noted production practices have changed significantly since the rule was put into place and viable production is now obtained at a much earlier age. They cited that USDA Agricultural Statistics Services considers citrus trees bearing at three years of age and, the statistics show the average tree production for the age category 3-5 years is 1.22 boxes per tree for early season orange varieties and 1.12 boxes per tree for late season orange varieties. With an average per acre planting of 120 trees, production of 1.22 boxes per tree amounts to more than 146 boxes per acre. *Response:* There is a trend for recently set citrus trees to be placed at a higher density pattern for increased production capability. However, the statistics provided by the commenter were for age category 3-5 years. The commenter did not provide statistics separately for 3, 4, and 5 year old trees. Additionally, statistics were only provided for early and late season varieties. This is not sufficient information to make a blanket change in insurability of trees at an earlier age. However, section 6(b)(2) also allows trees to be insured at an earlier age if provided in the Special Provisions or by written agreement. Currently, when FCIC determines certain varieties of citrus fruit can produce significant fruit at an earlier age, those varieties are specified in the Special Provisions. Therefore, producers with trees that have the production capability cited by the commenter have access to coverage for such trees. No change has been made. *Comment:* A trade association commented that provisions in section 6(c) state, in part, that a grower may elect to insure or exclude any acreage that has a potential production of less than 100 boxes per acre, under certain conditions. Therefore, it would be appropriate for three-year-old trees, which are capable of producing 50 percent more than an apparent minimum standard, to be eligible for coverage. They further suggested FCIC consider a modification to section 6(b)(2) to read in part “Produced by citrus trees that have not reached the third growing season after being set out * * *” Based on the current requirement that trees be set out prior to May 1 to be considered as a growing season, that would in most cases mean trees would be in their 4th year of growth. *Response:* FCIC needs additional information in order to reduce the age of the tree for the purposes of eligibility for insurance under these Crop Provisions to the third or fourth growing season after setout. Further, as stated above, younger varieties with known higher production capabilities will be added to the Special Provisions. Further, producers will have access to written agreements. Therefore, no change has been made. *Comment:* An insurance provider commented that section 6(b)(3) and
(4)describes specific citrus fruit types that are not insurable, i.e., Meyer Lemons and oranges commonly known as Sour Oranges or Clementines, and those of the Robinson tangerine variety. They further commented that the citrus fruit crop into which these uninsurable types of citrus would fall should be specified in the provisions in order to remove the risk of assumption. For example, section 6(b)(4) should read, “For Citrus IV, Robinson tangerine variety * * *” *Response:* FCIC lists only insurable types of citrus under the definition “Citrus fruit crop.” in section 1. Therefore, it would not be appropriate to include uninsurable types in such definition. FCIC has added language at the beginning of section 1 to acknowledge that some of the varieties designated in section 6 as uninsurable may fall within one of the insurable categories of citrus fruit crops in section 1. The phrase “Except as provided in section 6,” is meant to reference citrus fruit that is not insurable, but does not to do so by citrus fruit crop. FCIC has also added a new section 6(b)(6) that states that any citrus fruit type not included in the Special Provisions or within the definition of “citrus fruit crop” is also uninsurable. This will further clarify the provisions. *Comment:* An insurance service organization commented that the provisions in section 7(a), “* * * interplanted with another citrus fruit crop * * *” have been revised to “* * * interplanted with another crop * * *”. They further commented this suggests a broadening of the provisions to include the interplanting of citrus trees with a perennial or annual crop, though the intent is unclear since it is not specified in the “Background” portion of the proposed rule. Additionally, they commented that unless this is an intended change, and they are not sure how likely it is for citrus trees to be interplanted with non-citrus trees or crops, they believe the previous wording is clearer. *Response:* FCIC intended the provisions be broadened to include other crops that may be interplanted with citrus. This could include tropicals interplanted in a citrus grove. To make the provisions clearer FCIC has modified the language to read “* * * interplanted with another fruit type or another crop * * *”. A conforming change has also been made in section 3(d) so that the references to interplanting are consistent. *Comment:* A trade association commented that the provisions in section 8(a)(1) of the proposed rule change the date coverage begins from April 30 (actually May 1) to June 1. They further commented that while they agree it is beneficial to growers to have tree and fruit insurance dates as similar as possible, moving the coverage date for fruit later in the growing season as proposed will have negative effects on producers' risk management. Additionally, they noted in some years citrus growers have an uncovered risk when the bloom is damaged by a peril and in fact, they currently have as much as 3 months when fruit set is not covered even with the current dates. They expressed concern about hail damage to a citrus crop in May, which would not be covered for their insureds. Finally, they concluded a later coverage date means growers will be without coverage for a longer period of time on a crop already set on the tree, and recommend FCIC retain the current April 30 sales closing date and May 1 insurance attachment date. *Response:* FCIC received a number of similar comments regarding the date insurance attaches, and has determined it will remain as May 1. Thus, the new policy has the same insurance attachment date as the current policy and retains the same period of risk as the current policy. However, the sales closing date is set one month prior to insurance attachment, now on April 1, consistent with the 30-day period between the sales closing and insurance attachment for Florida Fruit Tree and Nursery policies. FCIC has determined the April 1 sales closing date is acceptable, based on feedback from insurance providers, insureds, and the industry. Further, as stated above, the 30-day waiting period is necessary to protect program integrity. *Comment:* An insurance service organization and several insurance providers commented that because of the proposed changes in the coverage dates, this would result in a gap in coverage since the current policy's coverage for 2007 would have ended a month before the 2008 policy coverage would begin. They believe that unless it is intended that carryover policyholders have no coverage for the month of May, the policy provisions need to address how carryover coverage will be handled during that month. Further, if the gap in coverage is intended, it needs to be made very clear in the summary of changes to be provided to carryover policyholders. Otherwise, it does not seem necessary to specify “* * * beginning with the 2008 crop year * * *” since these Crop Provisions will not be effective prior to that crop year. A commenter stated that language needs to be added to these provisions to address the issue of damage occurring during May, so both insured's and insurance providers understand whether there is coverage during the month of May. *Response:* As stated above, based on a number of comments addressed the additional risk insureds would bear due to no coverage for the month of May, FCIC has modified the date for insurance attachment from June 1 back to May 1 based on numerous comments received requesting that insurance attachment continue as specified in the current provisions. This means there will be no gap in coverage for current insureds. *Comment:* An insurance provider commented that the calendar date for the end of the insurance period for citrus types already occurs as early as January 31, with some dates in February and March. By moving the coverage attachment date from May 1 to June 1, the gap in coverage has been extended an additional month. They further commented that May is a month when hail damage is a primary concern in Florida. Additionally they noted fruit trees bloom primarily in March and April, and they recognize that damage or loss occurring prior to May 1 is not an insurable cause of loss under the current or proposed crop provisions. However, they noted that some perennial crop programs provide continuous coverage, and wondered whether FCIC has considered doing something similar for Florida citrus fruit. *Response:* FCIC has previously explored providing “bloom coverage,” i.e., year around coverage, with growers and grower groups. After several discussions, they concluded they favor the current policy where coverage attaches only to fruit on the tree. Determining damage or loss based on a reduction of blooms was considered problematic because only a small percentage of blooms actually set fruit. Additionally, FCIC has paid minimal indemnities for hail losses on a new crop during the month of May. The primary causes of loss, frost or freeze and hurricane damage, have not occurred in May. Further, as stated above, based on the comments, FCIC has decided to retain the May 1 insurance attachment date. *Comment:* An insurance service organization and an insurance provider commented that FCIC should clarify that section 8(a)(1)(i) applies to new applicants and 8(a)(1)(ii) to carryover policyholders. They further recommended section 8(a)(1)(i) be prefaced with “For new applications * * *”, and section 8(a)(1)(ii) be prefaced with “For carryover insureds * * *.” *Response:* While section 8(a)(1)(i) applies primarily to new applicants it could also apply to inspections performed on acreage of carryover insureds no longer meeting insurability requirements. The commenter is correct that section 8(a)(1)(ii) applies only to carryover insureds. Therefore, FCIC will revise the provisions to specifically identify whether they apply to new or carryover policies for clarification. *Comment:* A Regional Office and trade association commented with regard to section 8(a)(2). One commenter stated that they previously recommended the end of the insurance period for Navels and Orlando Tangelos be changed to January 31. However, a closer look at the maturity date of these fruit types shows harvesting of Orlando Tangelos typically continues into early February. To accommodate this additional picking time, they recommend the end of insurance period for Navels and Orlando Tangelos be changed to the first week in February. *Response:* Based on additional research, FCIC has determined it is appropriate to extend the calendar date for the end of the insurance period to February 7 for Navel Oranges and Orlando Tangelos. This modification addresses the important balance between a date late enough to cover the fruit through normal picking, but not so late as to pose an unacceptable risk. *Comment:* A trade association commented that there were changes made to the end of the insurance period in section 8(a)(2), and it is essential these dates do not exclude coverage when appropriate. They expressed concern that some earlier dates contained in the proposed rule would put some growers at risk of having paid premiums on policies yet have the insurance end before harvest is complete. They further commented harvest begins at different times from one year to the next based on date of bloom and whether maturity is early or late for that year. The trade association commented that it is appropriate the rule consider the latest harvest dates for fruit types. The trade association polled harvesters in Florida, and reviewed Ag Statistics Service data for the past 4 years on the highest percent of crop remaining on dates they recommended. They asked that the calendar date for the end of the insurance period be changed, based on percent of fruit remaining on the trees later in the season for the following fruit types; Early and Navel Oranges and Orlando Tangelos and Tangerines, February 28, Murcott Honey Oranges May 15, and Grapefruit and Late Season Oranges July 31. *Response:* In determining the calendar date for the end of the insurance period, FCIC must find a balance between normal picking dates and good farming practices, versus not timely picking fruit, or leaving mature fruit on the tree in order to obtain a higher price. If FCIC were to set the end of the insurance period for a date when the last fruit for the fruit type is picked it could be weeks beyond the recommended final picking date. Additionally, a producer may leave the crop on the tree hoping for higher prices or conversely allowing a loss because the amount of insurance is greater than the market price. Fruit left on the tree beyond the optimal picking date is at much greater risk of damage or loss. For example, extending the date of Grapefruit and Late Season Oranges to July 31 exposes FCIC to an unacceptable risk of damage or loss due to the hurricane peril. However, based on additional research, FCIC has determined it can modify the calendar date for the end of the insurance period without incurring unacceptable risks as follows: Early and Navel Oranges and Orlando Tangelos and Tangerines, February 7; and Murcott Honey Oranges, May 15. RMA retained the current date for the end of the insurance period for Grapefruit and Late Season Oranges, June 30. Research shows these fruit types are, or should be, harvested by this date. *Comment:* An insurance provider recommended language be added to replace sections 8(b)(1) and
(2)to address situations where an existing insured acquires additional citrus acreage after the acreage reporting date. They added that an insurance provider should be able to add such acreage to an existing policy upon completion of an acceptable inspection of the added acreage, assuming the added acreage is not insured under an existing citrus policy. If the added acreage is already insured on an existing citrus policy, this provision should stipulate that a transfer of coverage and right to an indemnity can be completed to continue the existing coverage on the added acreage. They further commented this has been an issue in previous years and the FCIC has indicated they would try to address this coverage issue when the provisions were revised. *Response:* Since no changes to section 8(b) were proposed, the proposed changes would be substantive in nature, and the public was not provided an opportunity to comment on the recommended changes, the recommendations cannot be incorporated in the final rule. No change has been made. *Comment:* An insurance service organization and an insurance provider commented that currently the sales closing and acreage reporting dates are the same for Florida Citrus, so the situations addressed in sections 8(b)(1) and (2), acquiring or relinquishing an insurable share on or before the acreage reporting date, should not come up unless those dates will be changed. They commented that section 8(b)(1) could be removed. They further commented the procedure in 8(b)(2) regarding use of the Transfer of Right to an Indemnity could be applied to cases when the insurable share changes hands after the acreage reporting date. *Response:* Since no changes to section 8(b) were proposed, the proposed changes would be substantive in nature, and the public was not provided an opportunity to comment on the recommended changes, the recommendations cannot be incorporated in the final rule. No change has been made. *Comment:* An insurance service organization and an insurance provider recommended that the insured cause of loss in section 9(a) be clarified as “Fire, due to natural causes, unless * * *” or “Fire, if caused by lightning * * *,” as contained in the proposed revisions to the Tobacco Crop Provisions. *Response:* Section 12 of the Basic Provisions already clearly states all causes of loss listed in the Crop Provisions must be due to a naturally occurring event. If this provision were changed for this policy or just for this cause of loss, it could create the mistaken impression that the other insurable causes do not have to be natural occurring. No change has been made. *Comment:* An insurance service organization and an insurance provider commented that they had concern with the proposed addition in section 9(a) of “Diseases, only if specified in the Special Provisions” to the list of insured causes of loss. They further commented that certain diseases may cause a decline in yields, and the condition of the citrus trees, over a period of years but it would be difficult to know how to account for this when underwriting the cause of loss, and for developing loss adjustment procedures. Additionally they recommended that if this cause of loss is retained, either delete “only” or precede it with “but,” to read “Diseases, but only if specified * * *.” *Response:* FCIC has added this provision to provide flexibility to the Florida Citrus Fruit Crop Provisions in the event a disease manifests itself and FCIC determines it can be insured on an actuarially sound basis, with the proper underwriting and loss adjustment. Given the potential delay of several years to revise the policy through the rulemaking process, this provision will give the producer a chance to receive needed coverage on a more timely basis. However, FCIC will not specify a new disease in the Special Provisions without significant research regarding the feasibility and prudence of adding the disease. Further, FCIC does not plan on adding any diseases to the Special Provisions at this time. FCIC agrees that the addition of the word “but” before “only,” makes it consistent with the definition of diseases in other policies, and has revised the provision accordingly. *Comment:* An insurance provider commented that adding disease as a cause of loss if specified in the Special Provisions causes them a great deal of concern from both the underwriting and loss adjustment standpoint. For example, if the FCIC were to add trestasia as a cause of loss, they asked how they would work a loss on groves losing production each year resulting from this type of disease. They further commented this disease causes a decline in condition of trees and yields, and it would be very difficult to underwrite and adjust for this type of disease. They added that citrus greening is another new disease that would result in similar problems and issues. *Response:* As specified in the above response, FCIC has added “Diseases, but only if specified in the Special Provisions” as a cause of loss to provide flexibility to the Florida Citrus Fruit Crop Provisions. However, no disease will be added to the Special Provisions unless the disease can be properly rated, underwritten and adjusted. *Comment:* A trade association commented that they commend FCIC for the addition of “Diseases, but only if specified in the Special Provisions,” but are still concerned that damaging windstorms, which have not been classified by the National Weather Service as hurricanes, are not recognized as a legitimate peril. They commented that the weather conditions in Florida lend themselves to occasional high density windstorms, some even reaching a wind speed of hurricane force, but are formed either too rapidly to receive a hurricane designation or have wind gusts too brief to achieve a hurricane designation, but which are as damaging to fruit as a named hurricane. They concluded that for the fruit insurance policy in Florida to be an effective risk management tool and to fully meet the needs of those it is designed to serve, these unnamed storms with damaging wind intensity must be classified as a cause of loss in the policy. *Response:* The commenter is correct that there may be winds that do not meet the definition of a hurricane or tornado that could damage the crop. Therefore, FCIC is including excess wind as a cause of loss but only if it causes damage to the extent that citrus fruit from Citrus IV, V, VII, and VIII is unmarketable as fresh fruit. FCIC has also added a definition of “excess wind” consistent with the definition in the Texas Citrus Fruit Crop Provisions. *Comment:* An insurance service organization questioned whether the rewording of the parenthetical phrase in section 10(b)(2) of the proposed rule is an improvement over the current language. They suggested another alternative: “* * * The percent of damage will be the amount of citrus fruit damaged by an insured cause, converted to boxes, and divided by the undamaged potential production.” *Response:* FCIC believes the provisions contained in the proposed rule are clear and therefore, no change has been made. *Comment:* An insurance service organization and an insurance provider asked that FCIC consider adding instructions to section 10(b)(4) to address situations when the result to this point is negative instead of positive. They questioned whether there would be any need in completing the rest of the steps, and if there would be no indemnity due in such a case. *Response:* FCIC has revised the provision to add language that states that if the result of section 10(b)(3) is negative, no indemnity will be due. *Comment:* An insurance service organization recommended FCIC rearrange the first sentence in the example in 10(b)(6) to read “* * * assume a 55-acre unit sustains late season damage,” instead of ending “* * * on the 55 acres * * *”, which could suggest the unit contains more than “the 55 acres” that are damaged. *Response:* FCIC has modified the provisions accordingly. *Comment:* An insurance service organization recommended FCIC refer to the “* * * level for the citrus crop * * *” instead of “citrus type” in section 10(b)(6) since the choice of level is on a citrus crop basis, unless the “type” reference is related to the “amount of insurance” at the beginning of the sentence. *Response:* The reference is related to the amount of insurance at the beginning of the sentence. In order to clarify, FCIC has modified the provisions by adding “, for the citrus crop, fruit type, and age of trees” after “ ** based on the 75 percent coverage level”. Additionally, FCIC requested input regarding the possible addition of Asiatic Citrus Canker
(ACC)as a cause of loss. An insurance service organization commented they believe their members would oppose this since it has been problematic as a cause of loss in the Florida Fruit Tree Pilot policy. An insurance provider commented they are strongly opposed to providing coverage for ACC under the fruit policy. They believe the ACC disease is so widespread it is creating a multitude of problems with the Florida Fruit Tree Pilot Crop Provisions and they have concerns with it being covered in these provisions as well. Additionally, ACC coverage has been removed from the Florida Fruit Tree policy effective for the 2008 crop year. In addition to the changes described above, FCIC has made minor editorial changes and the following changes: 1. Removed the paragraph immediately preceding section 1 which refers to the order of priority in the event of conflict. This same information is contained in the Basic Provisions. Therefore, it is duplicative and has been removed in the Crop Provisions. 2. Added the provisions, “unless specified otherwise in the Special Provisions” in section 8(a)(2) to allow greater flexibility in modifying the calendar date for the end of the insurance period. Given the rapid advances in technology, which could affect the insurance period, the policy needs the ability to respond quickly. List of Subjects in 7 CFR Part 457 Crop insurance, Florida Citrus Fruit Crop Provisions. Final Rule Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation amends 7 CFR part 457, Common Crop Insurance Regulations, for the 2008 and succeeding crop years as follows: PART 457—COMMON CROP INSURANCE REGULATIONS 1. The authority citation for 7 CFR part 457 continues to read as follows: Authority: 7 U.S.C. 1506(l) and 1506(p). 2. Revise § 457.107 to read as follows: § 457.107 Florida Citrus Fruit Crop Insurance Provisions. The Florida Citrus Fruit Crop Insurance Provisions for the 2009 and succeeding crop years are as follows: FCIC policies: United States Department of Agriculture, Federal Crop Insurance Corporation Reinsured policies: (Appropriate title for insurance provider) Both FCIC and reinsured policies: Florida Citrus Fruit Crop Insurance Provisions 1. Definitions *Amount of insurance (per acre).* The dollar amount determined by multiplying the Reference Maximum Dollar Amount shown on the actuarial documents for each fruit type and age of trees, within a citrus fruit crop, times the coverage level percent that you elect, times your share. *Box.* A standard field box as prescribed in the State of Florida Citrus Fruit Laws or contained in standards issued by FCIC. *Buckhorn.* To prune any limb at a diameter of at least three inches for citrus. *Citrus fruit crop.* Except as otherwise provided in section 6, any of the following:
(1)Citrus I—Early and mid-season oranges;
(2)Citrus II—Late oranges juice;
(3)Citrus III—Grapefruit for which freeze damage will be adjusted on a juice basis;
(4)Citrus IV—Tangelos and Tangerines;
(5)Citrus V—Murcott Honey Oranges (also known as Honey Tangerines) and Temple Oranges;
(6)Citrus VI—Lemons and Limes;
(7)Citrus VII—Grapefruit for which freeze damage will be adjusted on a fresh fruit basis, and late oranges fresh;
(8)Citrus VIII—Navel Oranges; and
(9)Citrus IX—Any other citrus fruit crop designated in the Special Provisions. *Citrus fruit type (fruit type).* Any of the separate citrus fruit listed in the Special Provisions and contained within one of the citrus fruit crops designated as Citrus I through IX. *Excess wind.* A natural movement of air that has sustained speeds exceeding 58 miles per hour recorded at the U.S. Weather Service reporting station operating nearest to the grove at the time of damage. *Freeze.* The formation of ice in the cells of the fruit caused by low air temperatures. *Harvest.* The severance of mature citrus fruit from the tree by pulling, picking, shaking, or any other means, or collecting the marketable citrus fruit from the ground. *Hurricane.* A windstorm classified by the U.S. Weather Service as a hurricane. *Interstock.* The area of the tree that is grafted to a rootstock. For example, the rootstock may be Sour Orange, and the interstock grapefruit, and the grafted scion Valencia orange. *Potential production.* The amount, converted to boxes, of citrus fruit that would have been produced had damage not occurred.
(a)Including citrus fruit that:
(1)Was harvested before damage occurred;
(2)Remained on the tree after damage occurred;
(3)Except as provided in (b), was missing, damaged, or destroyed from either an insured or uninsured cause;
(4)Was marketed or could be marketed as fresh citrus fruit;
(5)Was harvested prior to inspection by us; or
(6)Was harvested within 7 days after a freeze;
(b)Not including citrus fruit that:
(1)Was missing, damaged, or destroyed before insurance attached for any crop year;
(2)Was damaged or destroyed by normal dropping; or
(3)Any tangerines that normally would not meet the 210 pack size (2 and 4/16 inch minimum diameter) under United States Standards by the end of the insurance period for tangerines. *Scion.* A detached living portion of a plant joined to a stock in grafting. *Top worked.* A buckhorned citrus tree with a new scion grafted onto the interstock. 2. Unit Division
(a)A basic unit, as defined in section 1 of the Basic Provisions, will be divided into additional basic units by each citrus fruit crop designated in the Special Provisions.
(b)Provisions in the Basic Provisions that allow optional units by irrigated and non-irrigated practices are not applicable.
(c)In addition to establishing optional units by section, section equivalent, or FSA farm serial number, optional units may be established if each optional unit is located on non-contiguous land. 3. Insurance Guarantees, Coverage Levels, and Prices for Determining Indemnities In addition to the requirements of section 3 of the Basic Provisions:
(a)You may select only one coverage level for each citrus fruit crop shown in section 1 of these Crop Provisions, or designated in the Special Provisions, that you elect to insure. If different amounts of insurance are available for fruit types within a citrus fruit crop, you must select the same coverage level for each fruit type. For example, if you choose the 75 percent coverage level for one fruit type, you must also choose the 75 percent coverage level for all other fruit types within that citrus fruit crop.
(b)The production reporting requirements contained in section 3 of the Basic Provisions are not applicable.
(c)For the first year of insurance for acreage interplanted with another fruit type or another crop, and any time the planting pattern of such acreage is changed, you must report, by the sales closing date, the following:
(1)The age and fruit type of the interplanted citrus trees, as applicable;
(2)The planting pattern; and
(3)Any other information we request in order to establish your amount of insurance.
(d)We will reduce acreage or the amount of insurance or both, as necessary, based on our estimate of the effect of the interplanted fruit type or another crop on the insured fruit type. If you fail to notify us of any circumstance that may reduce the acreage or amount of insurance, we will reduce the acreage or amount of insurance or both as necessary any time we become aware of the circumstance.
(e)For carryover policies:
(1)Any changes to your coverage must be requested on or before the sales closing date;
(2)Requested changes will take effect on May 1, the first day of the crop year, unless we reject the requested increase based on our inspection, or because a loss occurs on or before April 30 (Rejection can occur at any time we discover loss has occurred on or before April 30); and
(3)If the increase is rejected, coverage will remain at the same level as the previous crop year.
(f)If your citrus fruit was damaged prior to the beginning of the insurance period, your amount of insurance (per acre) will be reduced by the amount of damage that occurred. 4. Contract Changes In accordance with section 4 of the Basic Provisions, the contract change date is January 31 preceding the cancellation date. 5. Cancellation and Termination Dates In accordance with section 2 of the Basic Provisions, the cancellation and termination dates are April 30. 6. Insured Crop
(a)In accordance with section 8 of the Basic Provisions, the crop insured will be all acreage of each citrus fruit crop that you elect to insure, in which you have a share, that is grown in the county shown on the application, and for which a premium rate is quoted in the actuarial documents.
(b)In addition to the citrus fruit not insurable in section 8 of the Basic Provisions, we do not insure any citrus fruit:
(1)That cannot be expected to mature each crop year within the normal maturity period for the fruit type;
(2)Produced by citrus trees that have not reached the fifth growing season after being set out, unless otherwise provided in the Special Provisions or by a written agreement to insure such citrus fruit (In order for the year of set out to be considered as a growing season, citrus trees must be set out on or before April 30 of the calendar year);
(3)Of “Meyer Lemons” and oranges commonly known as “Sour Oranges” or “Clementines”;
(4)Of the Robinson tangerine variety, for any crop year in which you have elected to exclude such tangerines from insurance (You must elect this exclusion prior to the crop year for which the exclusion is to be effective, except that for the first crop year you must elect this exclusion by the later of the sales closing date or the time you submit the application for insurance);
(5)That is produced on citrus trees that have been topworked until the third crop year after topworking. The Special Provisions will specify the appropriate rate class for trees insurable following topworking, but that have not reached full production; or
(6)Of any fruit type not specified as insurable in the Special Provisions or within the definition of “citrus fruit crop.”
(c)Prior to the date insurance attaches, and upon our approval, you may elect to insure or exclude from insurance any insurable citrus acreage that has a potential production of less than 100 boxes per acre. If you elect to:
(1)Insure such acreage, we will consider the potential production to be 100 boxes per acre when determining the amount of loss; or
(2)Exclude such acreage, we will disregard the acreage for all purposes related to this policy.
(d)In addition to the provisions in section 6 of the Basic Provisions, if you fail to notify us of your election to insure or exclude citrus acreage, and the potential production from such acreage is 100 or more boxes per acre, we will determine the percent of damage on all of the insurable acreage for the unit, but will not allow the percent of damage for the unit to be increased by including such acreage.
(e)Potential production will be determined during loss adjustment. 7. Insurable Acreage In lieu of the provisions in section 9 of the Basic Provisions that prohibit insurance attaching to a crop planted with another crop:
(a)Citrus fruit from trees interplanted with another fruit type or another crop is insurable unless we inspect the acreage and determine it does not meet the requirements contained in your policy.
(b)If the citrus fruit is from trees interplanted with another fruit type or another crop, acreage will be prorated according to the percentage of the acres occupied by each of the interplanted fruit types or crops (For example, if grapefruit have been interplanted with oranges on 100 acres and the grapefruit trees are on 50 percent of the acreage, grapefruit will be considered planted on 50 acres and oranges will be considered planted on 50 acres).
(c)The combination of the citrus fruit acreage and the interplanted crop acreage cannot exceed the physical amount of acreage. 8. Insurance Period
(a)In accordance with the provisions of section 11 of the Basic Provisions:
(1)Coverage begins on May 1 of each crop year, unless:
(i)For new or carryover policies, as applicable, we inspect the acreage and determine it does not meet the requirements for insurability contained in your policy (You must provide any information we require for the fruit type, so we may determine the condition of the grove to be insured); or
(ii)For carryover policies, you report additional citrus acreage, or a greater share, such that the amount of insurance will increase by more than 10 percent and we notify you all or a part of your citrus acreage is not insurable.
(2)The calendar date for the end of the insurance period for each crop year, unless specified otherwise in the Special Provisions, is:
(i)February 7 for early and navel oranges, Orlando tangelos and tangerines;
(ii)February 28 for all other tangelos;
(iii)March 31 for mid-season and temple oranges;
(iv)April 30 for lemons, limes;
(v)May 15 for murcott honey oranges; and
(vi)June 30 for grapefruit and late season oranges.
(b)In addition to the provisions of section 11 of the Basic Provisions:
(1)If you acquire an insurable share in any insurable acreage of citrus fruit after coverage begins, but on or before the acreage reporting date of any crop year, and if after inspection we consider the acreage acceptable, then insurance will be considered to have attached to such acreage on the calendar date for the beginning of the insurance period.
(2)If you relinquish your insurable share on any insurable acreage of citrus fruit on or before the acreage reporting date of any crop year, insurance will not be considered to have attached, no premium will be due, and no indemnity payable, for such acreage for that crop year unless:
(i)A transfer of coverage and right to an indemnity, or a similar form approved by us, is completed by all affected parties;
(ii)We are notified by you or the transferee in writing of such transfer on or before the acreage reporting date; and
(iii)The transferee is eligible for crop insurance. 9. Causes of Loss
(a)In accordance with the provisions of section 12 of the Basic Provisions, insurance is provided only against the following causes of loss to citrus fruit that occur within the insurance period:
(1)Fire, unless weeds and other forms of undergrowth have not been controlled or pruning debris has not been removed from the grove;
(2)Freeze;
(3)Hail;
(4)Hurricane;
(5)Tornado;
(6)Excess wind, but only if it causes the individual citrus fruit from Citrus IV, V, VII, and VIII to be unmarketable as fresh fruit; or
(7)Diseases, but only if specified in the Special Provisions.
(b)In addition to the causes of loss excluded in section 12 of the Basic Provisions, we will not insure against damage or loss of production due to:
(1)Damage to the blossoms or trees; or
(2)Inability to market the citrus fruit for any reason other than actual physical damage from an insurable cause specified in this section. For example, we will not pay you an indemnity if you are unable to market due to quarantine, boycott, or refusal of any person to accept production. 10. Settlement of Claim
(a)We will determine your loss on a unit basis. In the event you are unable to provide separate acceptable production records:
(1)For any optional units, we will combine all optional units for which such production records were not provided; or
(2)For any basic units, we will allocate any commingled production to such units in proportion to our liability on the harvested acreage for the units.
(b)If any citrus fruit within a unit is damaged by an insurable cause of loss, we will settle your claim by:
(1)Calculating the amount of insurance for the unit by multiplying the number of acres by the respective dollar amount of insurance per acre for each fruit type and multiplying that result by your share;
(2)Calculating the average percent of damage to the fruit within each respective fruit type, rounded to the nearest tenth of a percent (0.1%) (To determine the percent of damage, the amount of citrus fruit damaged from an insured cause must be converted to boxes and divided by the undamaged potential production);
(3)Subtracting the deductible from the result of section (10)(b)(2);
(4)If the result of section (10)(b)(3) is positive, dividing this result by the coverage level percentage (If the result of section 10(b)(3) is negative, no indemnity will be due);
(5)Multiplying the result of section (10)(b)(4) by the amount of insurance for the unit for the respective fruit type, to determine the value of all damage; and
(6)Totaling all such results of section (10)(b)(5) for all fruit types and subtracting any indemnities paid for the current crop year to determine the amount payable for the unit. (For example, assume a 55-acre unit sustains late season damage. No previous damage has occurred on the unit during the crop year and no fruit has been harvested. The producer elected the 75 percent coverage level and has a 100 percent share. The amount of insurance is $1,180 per acre, based on the 75 percent coverage level, for the citrus crop, fruit type, and age of trees. The amount of potential production is 24,530 boxes and the amount of damaged production is 17,171 boxes. The loss would be calculated as follows: 1. 55 acres × $1,180 = $64,900 amount of insurance for the unit; 2. 17,171 ÷ 24,530 = 70 percent average percent of damage; 3. 70 percent damage − 25 percent deductible (100 percent − 75 percent) = 45 percent; 4. 45 percent ÷ 75 percent = 60 percent adjusted damage; and 5. 60 percent × $64,900 = $38,940 indemnity.
(c)Citrus fruit crops IV, V, VII, and VIII that are seriously damaged by freeze, as determined by a fresh-fruit cut of a representative sample of fruit in the unit in accordance with the applicable provisions of the State of Florida Citrus Fruit Laws, or contained in standards issued by FCIC, and that are not or could not be marketed as fresh fruit, will be considered damaged to the following extent:
(1)If less than 16 percent of the fruit in a sample shows serious freeze damage, the fruit will be considered undamaged; or
(2)If 16 percent or more of the fruit in a sample shows serious freeze damage, the fruit will be considered 50 percent damaged, except that:
(i)For tangerines of Citrus IV, damage in excess of 50 percent will be the actual percent of damaged fruit; and
(ii)Citrus IV (except tangerines), V, VII, and VIII, if it is determined that the juice loss in the fruit exceeds 50 percent, such percent will be considered the percent of damage.
(d)Notwithstanding the provisions of section 10(c) of these crop provisions as to citrus fruit of Citrus IV, V, VII, and VIII, in any unit that is mechanically separated using the specific-gravity (floatation) method into undamaged and freeze-damaged fruit, the amount of damage will be the actual percent of freeze-damaged fruit not to exceed 50 percent and will not be affected by subsequent fresh-fruit marketing. However, the 50 percent limitation on mechanically separated, freeze-damaged fruit will not apply to tangerines of Citrus IV.
(e)Any citrus fruit of Citrus I, II, III, and VI damaged by freeze, but that can be processed into products for human consumption, will be considered as marketable for juice. The percent of damage will be determined by relating the juice content of the damaged fruit to:
(1)The average juice content of the fruit produced on the unit for the three previous crop years based on your records, if they are acceptable to us; or
(2)The following juice content, if acceptable records are not furnished:
(i)Citrus I—52 pounds of juice per box;
(ii)Citrus II—54 pounds of juice per box;
(iii)Citrus III—45 pounds of juice per box; and
(iv)Citrus VI—43 pounds of juice per box;
(f)Any individual citrus fruit on the ground that is not collected and marketed will be considered as 100 percent damaged if the damage was due to an insured cause.
(g)Any individual citrus fruit that is unmarketable either as fresh fruit or as juice because it is immature, unwholesome, decomposed, adulterated, or otherwise unfit for human consumption due to an insured cause will be considered as 100 percent damaged.
(h)Individual citrus fruit of Citrus IV, V, VII, and VIII, that are unmarketable as fresh fruit due to serious damage from hail as defined in the applicable United States Standards for Grades of Florida fruit, or wind damage from a hurricane, tornado or other excess wind storms that results in the fruit not meeting the standards for packing as fresh fruit, will be considered 100 percent damaged. 11. Late and Prevented Planting The late and prevented planting provisions of the Basic Provisions are not applicable. Signed in Washington, DC, on January 31, 2008. Eldon Gould, Manager, Federal Crop Insurance Corporation. [FR Doc. E8-2190 Filed 2-6-08; 8:45 am] BILLING CODE 3410-08-P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 932 [Docket No. AMS-FV-07-0155; FV08-932-1 IFR] Olives Grown in California; Decreased Assessment Rate AGENCY: Agricultural Marketing Service, USDA. ACTION: Interim final rule with request for comments. SUMMARY: This rule decreases the assessment rate established for the California Olive Committee (committee) for the 2008 and subsequent fiscal years from $47.84 to $15.60 per assessable ton of olives handled. The committee locally administers the marketing order which regulates the handling of olives grown in California. Assessments upon olive handlers are used by the committee to fund reasonable and necessary expenses of the program. The fiscal year began January 1 and ends December 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. DATES: Effective February 8, 2008. Comments received by April 7, 2008 will be considered prior to issuance of a final rule. ADDRESSES: Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Fax:
(202)720-8938, or Internet: *http://www.regulations.gov.* Comments should reference the docket number and the date and page number of this issue of the **Federal Register** and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Jennifer R. Garcia, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(559)487-5901, Fax:
(559)487-5906; or E-mail: *Jen.Garcia@usda.gov* or *Kurt.Kimmel@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement No. 148 and Order No. 932, both as amended (7 CFR part 932), regulating the handling of olives grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Department of Agriculture
(USDA)is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California olive handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable olives beginning on January 1, 2008, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule decreases the assessment rate established for the committee for the 2008 and subsequent fiscal years from $47.84 to $15.60 per ton of assessable olives from the applicable crop years. The California olive marketing order provides authority for the committee, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The fiscal year, which is the 12-month period between January 1 and December 31, begins after the corresponding crop year, which is the 12-month period beginning August 1 and ending July 31 of the subsequent year. Fiscal year budget and assessment recommendations are made after the corresponding crop year olive tonnage is reported. The members of the committee are producers and handlers of California olives. They are familiar with the committee's needs and with costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 2007 and subsequent fiscal years, the committee recommended, and USDA approved, an assessment rate that would continue in effect from fiscal year to fiscal year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other information available to USDA. The committee met on December 5, 2007, and unanimously recommended 2008 fiscal year expenditures of $1,588,552 and an assessment rate of $15.60 per ton of assessable olives. In comparison, last year's budgeted expenditures were $965,396. The assessment rate of $15.60 is $32.24 lower than the rate currently in effect. The committee recommended the lower assessment rate because the 2007-08 assessable olive receipts as reported by the California Agricultural Statistics Service
(CASS)are 108,059 tons, which compares to 16,270 tons in 2006-07. The 2006-07 crop was unusually small in size due to unusual weather conditions. The major expenditures recommended by the committee for the 2008 fiscal year include $500,000 for research, $750,000 for marketing activities, and $288,552 for administration. Budgeted expenditures for these items in 2007 were $365,775, $347,450, and $252,171, respectively. The committee recommended a larger 2008 research budget so it can expand its ongoing research to develop a mechanical olive harvesting method. The committee also recommended an increase in the 2008 marketing budget to allow for a restructuring of its marketing program, which will focus on a new Web site and trade advertisements. Recommended increases in the administrative budget are due mainly to a necessary office move and increases in employee benefits. Another $50,000 is budgeted for 2008 for a possible inspection-related research project. The assessment rate recommended by the committee was derived by considering anticipated fiscal year expenses, actual olive tonnage received by handlers during the 2007-08 crop year, and additional pertinent factors. Actual assessable tonnage for the 2008 fiscal year is expected to be higher than the 2007-08 crop receipts of 108,059 tons reported by CASS because some olives may be diverted by handlers to uses that are exempt from marketing order requirements. Income derived from handler assessments, along with funds from the committee's authorized reserve and interest income, would be adequate to cover budgeted expenses. Funds in the reserve would be kept within the maximum permitted by the order of approximately one fiscal year's expenses (§ 932.40). The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the committee or other available information. Although this assessment rate is effective for an indefinite period, the committee would continue to meet prior to or during each fiscal year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of committee meetings are available from the committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The committee's 2008 budget and those for subsequent fiscal years will be reviewed and, as appropriate, approved by USDA. Initial Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 745 producers of olives in the production area and 2 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $6,500,000. Based upon information from the committee, the majority of olive producers may be classified as small entities. Both of the handlers may be classified as large entities. This rule decreases the assessment rate established for the committee and collected from handlers for the 2008 and subsequent fiscal years from $47.84 to $15.60 per ton of assessable olives. The committee unanimously recommended 2008 expenditures of $1,558,552 and an assessment rate of $15.60 per ton. The proposed assessment rate of $15.60 is $32.24 lower than the 2007 rate. The lower assessment rate is necessary because assessable olive receipts for the 2007-08 crop year were reported by CASS to be 108,059 tons, compared to 16,270 tons for the 2006-07 crop year. Actual assessable tonnage for the 2008 fiscal year is expected to be lower because some of the receipts may be diverted by handlers to exempt outlets on which assessments are not paid. Income generated from the $15.60 per ton assessment rate should be adequate to meet this year's expenses when combined with funds from the authorized reserve and interest income. Funds in the reserve would be kept within the maximum permitted by the order of about one fiscal year's expenses (§ 932.40). Expenditures recommended by the committee for the 2008 fiscal year include $500,000 for research, $750,000 for marketing activities, and $288,552 for administration. Budgeted expenditures for these items in 2007 were $365,775, $332,450, and $252,171, respectively. The committee recommended a larger 2008 research budget so it can expand its ongoing research to develop a mechanical olive harvesting method. The committee also recommended an increase in the 2008 marketing budget to allow for a restructuring of its marketing program, which will focus on a new Web site and trade advertisements. Recommended increases in the administrative budget are due mainly to a necessary office move and increases in employee benefits. Another $50,000 is budgeted for a possible inspection-related research project. Prior to arriving at this budget, the committee considered information from various sources, such as the committee's Executive, Market Development, and Research Subcommittees. Alternate spending levels were discussed by these groups, based upon the relative value of various research and marketing projects to the olive industry. The assessment rate of $15.60 per ton of assessable olives was derived by considering anticipated expenses, the volume of assessable olives, and additional pertinent factors. A review of historical information indicates that the grower price for the 2007-08 crop year was approximately $1,007.78 per ton for canning fruit and $378.51 per ton for limited-use sizes, leaving the balance as unusable cull fruit. Approximately 81 percent of a ton of olives are canning fruit sizes and 18 percent are limited use sizes, leaving the balance as unusable cull fruit. Grower revenue on 108,059 total tons of canning and limited-use sizes would be $95,322,099 given the current grower prices for those sizes. Therefore, the assessment revenue for the 2007-08 fiscal year is expected to be approximately 2 percent of grower revenue. This action decreases the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers. In addition, the committee's meeting was widely publicized throughout the California olive industry and all interested persons were invited to attend the meeting and participate in committee deliberations on all issues. Like all committee meetings, the December 5, 2007, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses. This action imposes no additional reporting or recordkeeping requirements on either small or large California olive handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab/html* . Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the act. Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impractical, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the **Federal Register** because:
(1)The 2008 fiscal year began on January 1, 2008, and the marketing order requires that the rate of assessment for each fiscal year apply to all assessable olives handled during such fiscal year;
(2)the committee needs sufficient funds to pay its expenses, which are incurred on a continuous basis; and
(3)handlers are aware of this action, which was discussed by the committee and unanimously recommended at a public meeting, and is similar to other assessment rate actions issued in past years; and
(4)this interim final rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule. List of Subjects in 7 CFR Part 932 Olives, Marketing agreements, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, 7 CFR part 932 is amended as follows: PART 932—OLIVES GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 932 continues to read as follows: Authority: 7 U.S.C. 601-674. 2. Section 932.230 is revised to read as follows: § 932.230 Assessment rate. On and after January 1, 2008, an assessment rate of $15.60 per ton is established for California olives. Dated: February 1, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-2193 Filed 2-6-08; 8:45 am] BILLING CODE 3410-02-P FEDERAL RESERVE SYSTEM 12 CFR Part 201 [Regulation A] Extensions of Credit by Federal Reserve Banks AGENCY: Board of Governors of the Federal Reserve System. ACTION: Final rule. SUMMARY: The Board of Governors of the Federal Reserve System (Board) has adopted final amendments to its Regulation A to reflect the Board's approval of a decrease in the primary credit rate at each Federal Reserve Bank. The secondary credit rate at each Reserve Bank automatically decreased by formula as a result of the Board's primary credit rate action. DATES: The amendments to part 201 (Regulation A) are effective February 7, 2008. The rate changes for primary and secondary credit were effective on the dates specified in 12 CFR 201.51, as amended. FOR FURTHER INFORMATION CONTACT: Jennifer J. Johnson, Secretary of the Board (202/452-3259); for users of Telecommunication Devices for the Deaf
(TDD)only, contact 202/263-4869. SUPPLEMENTARY INFORMATION: The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to the review and determination of the Board. The Board approved requests by the Reserve Banks to decrease by 50 basis points the primary credit rate in effect at each of the twelve Federal Reserve Banks, thereby decreasing from 4.00 percent to 3.50 percent the rate that each Reserve Bank charges for extensions of primary credit. As a result of the Board's action on the primary credit rate, the rate that each Reserve Bank charges for extensions of secondary credit automatically decreased from 4.50 percent to 4.00 percent under the secondary credit rate formula. The final amendments to Regulation A reflect these rate changes. The 50-basis-point decrease in the primary credit rate was associated with a similar decrease in the target for the federal funds rate (from 3.50 percent to 3.00 percent) approved by the Federal Open Market Committee (Committee) and announced at the same time. A press release announcing these actions indicated that: Financial markets remain under considerable stress, and credit has tightened further for some businesses and households. Moreover, recent information indicates a deepening of the housing contraction as well as some softening in labor markets. The Committee expects inflation to moderate in coming quarters, but it will be necessary to continue to monitor inflation developments carefully. Today's policy action, combined with those taken earlier, should help to promote moderate growth over time and to mitigate the risks to economic activity. However, downside risks to growth remain. The Committee will continue to assess the effects of financial and other developments on economic prospects and will act in a timely manner as needed to address those risks. Regulatory Flexibility Act Certification Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Board certifies that the new primary and secondary credit rates will not have a significantly adverse economic impact on a substantial number of small entities because the final rule does not impose any additional requirements on entities affected by the regulation. Administrative Procedure Act The Board did not follow the provisions of 5 U.S.C. 553(b) relating to notice and public participation in connection with the adoption of these amendments because the Board for good cause determined that delaying implementation of the new primary and secondary credit rates in order to allow notice and public comment would be unnecessary and contrary to the public interest in fostering price stability and sustainable economic growth. For these same reasons, the Board also has not provided 30 days prior notice of the effective date of the rule under section 553(d). 12 CFR Chapter II List of Subjects in 12 CFR Part 201 Banks, Banking, Federal Reserve System, Reporting and recordkeeping. Authority and Issuance For the reasons set forth in the preamble, the Board is amending 12 CFR Chapter II to read as follows: PART 201 EXTENSIONS OF CREDIT BY FEDERAL RESERVE BANKS (REGULATION A) 1. The authority citation for part 201 continues to read as follows: Authority: 12 U.S.C. 248(i)-(j), 343 *et seq.* , 347a, 347b, 347c, 348 *et seq.* , 357, 374, 374a, and 461. 2. In § 201.51, paragraphs
(a)and
(b)are revised to read as follows: § 201.51 Interest rates applicable to credit extended by a Federal Reserve Bank. 1 1 The primary, secondary, and seasonal credit rates described in this section apply to both advances and discounts made under the primary, secondary, and seasonal credit programs, respectively.
(a)*Primary credit.* The interest rates for primary credit provided to depository institutions under § 201.4(a) are: Federal Reserve Bank Rate Effective Boston 3.50 Jan. 30, 2008. New York 3.50 Jan. 30, 2008. Philadelphia 3.50 Jan. 30, 2008. Cleveland 3.50 Jan. 30, 2008. Richmond 3.50 Jan. 31, 2008. Atlanta 3.50 Jan. 30, 2008. Chicago 3.50 Jan. 30, 2008. St. Louis 3.50 Jan. 31, 2008. Minneapolis 3.50 Jan. 31, 2008. Kansas City 3.50 Jan. 30, 2008. Dallas 3.50 Jan. 31, 2008. San Francisco 3.50 Jan. 30, 2008.
(b)*Secondary credit.* The interest rates for secondary credit provided to depository institutions under 201.4(b) are: Federal Reserve Bank Rate Effective Boston 4.00 Jan. 30, 2008. New York 4.00 Jan. 30, 2008. Philadelphia 4.00 Jan. 30, 2008. Cleveland 4.00 Jan. 30, 2008. Richmond 4.00 Jan. 31, 2008. Atlanta 4.00 Jan. 30, 2008. Chicago 4.00 Jan. 30, 2008. St. Louis 4.00 Jan. 31, 2008. Minneapolis 4.00 Jan. 31, 2008. Kansas City 4.00 Jan. 30, 2008. Dallas 4.00 Jan. 31, 2008. San Francisco 4.00 Jan. 30, 2008. By order of the Board of Governors of the Federal Reserve System, February 4, 2008. Jennifer J. Johnson, Secretary of the Board. [FR Doc. E8-2209 Filed 2-6-08; 8:45 am] BILLING CODE 6210-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. NM387; Special Conditions No. 25-366-SC] Special Conditions: Boeing Model 767-200, -300, and -300F Series Airplanes; Satellite Communication System With Lithium Ion Battery Installation AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final special conditions; request for comments. SUMMARY: These special conditions are issued for Boeing Model 767-200, -300, and -300F series airplanes. These airplanes as modified by ABX Air Inc. will have a novel or unusual design feature associated with a satellite communication system which uses lithium ion battery technology. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: The effective date of these special conditions is January 25, 2008. We must receive your comments by March 10, 2008. ADDRESSES: You must mail two copies of your comments to: Federal Aviation Administration, Transport Airplane Directorate, Attention: Rules Docket (ANM-113), Docket No. NM387, 1601 Lind Avenue, SW., Renton, Washington 98057-3356. You may deliver two copies to the Transport Airplane Directorate at the above address. You must mark your comments: Docket No. NM387. You can inspect comments in the Rules Docket weekdays, except federal holidays, between 7:30 a.m. and 7 p.m. FOR FURTHER INFORMATION CONTACT: Nazih Khaouly, FAA, Airplane and Flight Crew Interface, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2432; facsimile
(425)227-1149. SUPPLEMENTARY INFORMATION: The FAA has determined that notice and opportunity for prior public comment on these special conditions are unnecessary because the substance of these special conditions has previously been subject to the public comment process. While we received comments on the previously-proposed special conditions and carefully reviewed them, we determined that no changes were needed to the special conditions, as proposed. In addition, notice and opportunity for prior public comment are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. Therefore, the FAA finds that it is unnecessary to provide an additional opportunity to comment and that good cause exists for making these special conditions effective upon issuance. Comments Invited We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel about these special conditions. You can inspect the docket before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except federal holidays. We will consider all comments we receive by the closing date for comments. We will consider comments filed late, if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive. If you want us to let you know we received your comments on these special conditions, send us a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you. Background On July 5, 2007, ABX Air, Inc. of Wilmington, Ohio applied for a supplemental type certificate to install a satellite communication system on Boeing Model 767-200, -300, and -300F series airplanes. The satellite communication system contains the following equipment: • *Wingspeed Corporation* Aircraft Communication Unit, • *Sensor Systems* GPS/Iridium Antennae, • Satellite Phone Handset, • *DAC International* Class II GEN-X Electronic Flight Bag System, and • *RITEC* Airborne Printer At present, there is limited experience with use of rechargeable lithium ion batteries in applications involving commercial aviation. However, other users of this technology, ranging from wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with lithium ion batteries. These problems include overcharging, over-discharging, and flammability of cell components. 1. Overcharging In general, lithium ion batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. This is especially true for overcharging that causes heating and destabilization of the components of the cell, leading to the formation (by plating) of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. Finally, the severity of thermal runaway due to overcharging increases with increasing battery capacity due to the higher amount of electrolyte in large batteries. 2. Over-Discharging Discharge of some types of lithium ion batteries beyond a certain voltage (typically 2.4 volts) can cause corrosion of the electrodes of the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crews as a means of checking battery status—a problem shared with nickel-cadmium batteries. 3. Flammability of Cell Components Unlike nickel-cadmium and lead-acid batteries, some types of lithium ion batteries use liquid electrolytes that are flammable. The electrolyte can serve as a source of fuel for an external fire, if there is a breach of the battery container. These problems experienced by users of lithium ion batteries raise concern about the use of these batteries in commercial aviation. Accordingly, the proposed use of lithium ion batteries in a satellite communication system on Boeing Model 767-200, -300, and -300F series airplanes has prompted the FAA to review the adequacy of existing regulations in 14 CFR 25. Our review indicates that the existing regulations do not adequately address several failure, operational, and maintenance characteristics of lithium ion batteries that could affect the safety and reliability of lithium ion battery installations. The intent of these special conditions is to establish appropriate airworthiness standards for lithium ion batteries in Boeing Model 767-200, -300, and -300F series airplanes modified by ABX Air Inc. and to ensure, as required by 14 CFR 25.601, that these battery installations are not hazardous or unreliable. Accordingly, these special conditions include the following requirements: • Those provisions of 14 CFR 25.1353 which are applicable to lithium ion batteries. • The flammable fluid fire protection provisions of 14 CFR 25.863. In the past, this regulation was not applied to batteries of transport category airplanes, since the electrolytes used in lead-acid and nickel-cadmium batteries are not flammable. • New requirements to address the hazards of overcharging and over-discharging that are unique to lithium batteries. • New Instructions for Continuous Airworthiness that include maintenance requirements to ensure that batteries used as spares are maintained in an appropriate state of charge. Type Certification Basis Under the provisions of 14 CFR 21.101, ABX Air, Inc. must show that the Boeing Model 767-200, -300 and -300F series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A1NM or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for Boeing Model 767-200, -300, and -300F series airplanes includes applicable sections of 14 CFR part 25, effective July 30, 1982, as amended by Amendments 25-1 through 25-45, except for portions of Amendment 25.38. In addition, the certification basis includes certain special conditions, exemptions, equivalent levels of safety, or later amended sections of the applicable part 25 that are not relevant to these special conditions. If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for Boeing Model 767-200, -300, and -300F series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 767-200, -300, and -300F series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36. The FAA issues special conditions, as defined in 14 CFR 11.19, under 14 CFR 11.38, and they become part of the type certification basis in accordance with § 21.101. Special conditions are initially applicable to the models for which they are issued. Should ABX Air, Inc. apply for a supplemental type certificate to modify any other model included on Type Certificate No. A1NM to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model. Novel or Unusual Design Features The Boeing Model 767-200, -300, and 300F series airplanes—as modified by ABX Air Inc. to include a satellite communication system which uses lithium ion battery technology—will incorporate a novel or unusual design feature. Because of rapid improvements in airplane technology, the applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. The satellite communication system will include a lithium ion battery installation. Large, high capacity, rechargeable lithium ion batteries are a novel or unusual design feature in transport category airplanes. This type of battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on large transport category airplanes. The FAA issues these special conditions to require that
(1)all characteristics of the lithium ion battery and its installation that could affect safe operation of the satellite communication system are addressed, and
(2)appropriate maintenance requirements are established to ensure that electrical power is available from the batteries when it is needed. Applicability As discussed above, these special conditions are applicable to the Boeing Model 767-200, -300, and -300F series airplanes as modified by ABX Air Inc. Should ABX Air, Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A1NM to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well. Conclusion This action affects only certain novel or unusual design features of the Boeing Model 767-200, -300, and 300F series airplanes as modified by ABX Air Inc. It is not a rule of general applicability and affects only the applicant which applied to the FAA for approval of these features on the airplane. The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. For this reason and because a delay would significantly affect the certification of the airplane which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable and that good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comments described above. List of Subjects in 14 CFR Part 25 Aircraft, Aviation safety, Reporting and recordkeeping requirements. The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113, 44701, 44702, 44704. The Special Conditions The FAA proposes the following special conditions as part of the type certification basis for Boeing Model 767-200, -300, and 300F series airplanes modified by ABX Air Inc. in lieu of the requirements of 14 CFR 25.1353(c)(1) through (c)(4), Amendment 25-113. Lithium ion batteries and battery installations on Boeing 767-200, -300, and -300F series airplanes must be designed and installed as follows:
(1)Safe cell temperatures and pressures must be maintained during any foreseeable charging or discharging condition and during any failure of the charging or battery monitoring system not shown to be extremely remote. The lithium ion battery installation must preclude explosion in the event of those failures.
(2)Design of the lithium ion batteries must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.
(3)No explosive or toxic gases emitted by any lithium ion battery in normal operation or as the result of any failure of the battery charging system, monitoring system, or battery installation which is not shown to be extremely remote may accumulate in hazardous quantities within the airplane.
(4)Installations of lithium ion batteries must meet the requirements of 14 CFR 25.863(a) through (d).
(5)No corrosive fluids or gases that may escape from any lithium ion battery may damage surrounding structure or any adjacent systems, equipment, or electrical wiring of the airplane in such a way as to cause a major or more severe failure condition, in accordance with 14 CFR 25.1309
(b)and applicable regulatory guidance.
(6)Each lithium ion battery installation must have provisions to prevent any hazardous effect on structure or essential systems caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.
(7)Lithium ion battery installations must have a system to control the charging rate of the battery automatically, so as to prevent battery overheating or overcharging, and,
(i)A battery temperature sensing and over-temperature warning system with a means for automatically disconnecting the battery from its charging source in the event of an over-temperature condition, or
(ii)A battery failure sensing and warning system with a means for automatically disconnecting the battery from its charging source in the event of battery failure.
(8)Any lithium ion battery installation whose function is required for safe operation of the airplane must incorporate a monitoring and warning feature that will provide an indication to the appropriate flight crewmembers whenever the state-of-charge of the batteries has fallen below levels considered acceptable for dispatch of the airplane.
(9)The Instructions for Continued Airworthiness required by 14 CFR 25.1529 must contain maintenance requirements to assure that the lithium ion battery is sufficiently charged at appropriate intervals specified by the battery manufacturer to ensure that batteries whose function is required for safe operation of the airplane will not degrade below specified ampere-hour levels sufficient to power the electronic flight bag
(EFB)applications that are required for continued safe flight and landing. The Instructions for Continued Airworthiness must also contain procedures for the maintenance of lithium ion batteries in spares storage to prevent the replacement of batteries whose function is required for safe operation of the airplane with batteries that have experienced degraded charge retention ability or other damage due to prolonged storage at a low state of charge. Precautions should be included in the Instructions for Continued Airworthiness maintenance instructions to prevent mishandling of the lithium ion battery which could result in short-circuit or other unintentional damage that could result in personal injury or property damage. Note 1: The term, “sufficiently charged” means the charge that is applied to rechargeable lithium ion batteries, which diminishes during the life of batteries with respect to the retentive capacity of the batteries to deliver available power—where capacity is the total quantity of electricity of a cell or battery, expressed in ampere-hours. Battery life is influenced by its internal chemical reaction and by other factors, such as temperature, shock, the number of recharges, etc. Note 2: These special conditions are not intended to replace 14 CFR 25.1353(c), Amendment 25-113 in the certification basis of the ABX, Air Inc supplemental type certificate. These special conditions apply only to lithium ion batteries and their installations. The requirements of 14 CFR 25.1353(c), Amendment 25-113 remain in effect for batteries and battery installations on the ABX Air supplemental type certificate that do not use lithium ion batteries. Compliance with the requirements of this Special Condition must be shown by test or analysis, with the concurrence of the Chicago Aircraft Certification Office. Issued in Renton, Washington, on January 25, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-2224 Filed 2-6-08; 8:45 am] BILLING CODE 4910-13-P SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 200 [Release No. 34-57262] Delegation of Authority to the Director of the Division of Corporation Finance AGENCY: Securities and Exchange Commission. ACTION: Final rule. SUMMARY: The Securities and Exchange Commission is amending its Rules of Organization and Program Management to delegate its authority to the Director of the Division of Corporation Finance to grant or deny exemptions pursuant to Section 36 of the Securities Exchange Act of 1934 from the requirement for registrants in connection with an annual meeting of security holders to furnish an annual report to security holders that contains audited financial statements as required by rules under the Exchange Act under certain limited circumstances. The delegation of authority is intended to conserve Commission resources by permitting the staff to review and act on exemptive applications under Section 36 when appropriate. DATES: *Effective Date:* February 7, 2008. FOR FURTHER INFORMATION CONTACT: Celeste M. Murphy, Special Counsel, at
(202)551-3440, Office of Mergers and Acquisitions, Division of Corporation Finance, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-3628. SUPPLEMENTARY INFORMATION: The Commission today announces an amendment to its Organization and Program Management Rules governing Delegations of Authority to the Director of the Division of Corporation Finance. 1 The amendment adds to Rule 30-1 a new paragraph (e)(18) authorizing the Director to grant or deny exemptions from the requirements of Rule 14a-3(b) and Rule 14c-3(a) under the Exchange Act, pursuant to Section 36 of the Exchange Act, for audited financial statements to be included in the annual report to be furnished to security holders in connection with an annual meeting of security holders. 1 17 CFR 200.30-1. A number of companies have faced the dilemma of being required to hold a meeting of security holders when they are unable to deliver current audited financial statements. These companies may be compelled to hold meetings of their security holders pursuant to the provisions of certain state corporation laws, despite the inability to comply with the requirements of Rule 14a-3(b) and Rule 14c-3(a) under the Exchange Act. Although these situations are infrequent, we recognize the need to flexibly address this conflict in limited circumstances. Section 36(a) provides that “the Commission, by rule, regulation, or order, may conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision or provisions of this title or of any rule or regulation thereunder, to the extent that such exemption is necessary or appropriate in the public interest, and is consistent with the protection of investors.” 2 Section 4A(a) of the Exchange Act grants the Commission “the authority to delegate, by published order or rule, any of its functions to a division of the Commission.” 3 2 15 U.S.C. 78mm(a). 3 15 U.S.C. 78d-1(a). The delegation of authority to the Director is intended to conserve Commission resources by permitting the staff, pursuant to Section 36(a), to review and act on applications for exemption from Rule 14a-3(b) and Rule 14c-3(a) in cases where upon examination, the matter does not appear to present significant issues that have not been addressed previously or to raise questions of fact or policy indicating that the public interest or the interest of investors warrants that the Commission consider the matter. Nevertheless, the staff may submit matters to the Commission for consideration as it deems appropriate. In addition, under Section 4A(b) of the Exchange Act, the Commission retains discretionary authority to review upon its own initiative or, pursuant to Commission Rule 430, upon application by a party adversely affected, any exemption granted or denied by the Director pursuant to delegated authority. 4 4 For information concerning the filing of exemptive relief applications, see Exchange Act Release No. 39624 (February 5, 1998), 63 FR 8101 (February 18, 1998); 17 CFR 240.0-12. The Commission finds, in accordance with Section 553(b)(3)(A) of the Administrative Procedure Act, 5 that this amendment relates solely to agency organization, procedure, or practice, and does not relate to a substantive rule. Accordingly, notice, opportunity for public comment, and publication of the amendment prior to its effective date are unnecessary. 5 5 U.S.C. 553(b)(3)(A). List of Subjects in 17 CFR Part 200 Administrative practice and procedure, Authority delegations (Government agencies), Organization and functions (Government agencies). Text of Amendment In accordance with the preamble, the Commission hereby amends Title 17, Chapter II of the Code of Federal Regulations as follows: PART 200—ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND REQUESTS 1. The authority citation for part 200, subpart A, continues to read in part as follows: Authority: 15 U.S.C. 77o, 77s, 77sss, 78d, 78d-1, 78d-2, 78w, 78ll(d), 78mm, 80a-37, 80b-11, and 7202, unless otherwise noted. 2. Section 200.30-1 is amended by adding paragraph (e)(18) to read as follows: § 200.30-1 Delegation of authority to Director of Division of Corporation Finance.
(e)* * *
(18)To review and, either unconditionally or upon specified terms and conditions, grant or deny exemptions from the requirements of Rules 14a-3(b) and 14c-3(a) (§§ 240.14a-3(b) and 240.14c-3(a) of this chapter) under the Act pursuant to Section 36 of the Act, in cases where upon examination, the matter does not appear to the Director to present significant issues that have not been addressed previously or to raise questions of fact or policy indicating that the public interest or the interest of investors warrants that the Commission consider the matter, where an applicant demonstrates that it:
(i)Is required to hold a meeting of security holders as a result of an action taken by one or more of the applicant's security holders pursuant to state law;
(ii)Is unable to comply with the requirements of Rule 14a-3(b) or Rule 14c-3(a) under the Act for audited financial statements to be included in the annual report to security holders to be furnished to security holders in connection with the security holder meeting required to be held as a result of the security holder demand under state law;
(iii)Has made a good faith effort to furnish the audited financial statements before holding the security holder meeting;
(iv)Has made a determination that it has disclosed to security holders all available material information necessary for the security holders to make an informed voting decision in accordance with Regulation 14A or Regulation 14C (§§ 240.14a-1-240.14b-2 or §§ 240.14c-1-240.14c-101 of this chapter); and
(v)Absent a grant of exemptive relief, it would be forced to violate either state law or the rules and regulations administered by the Commission. Dated: February 4, 2008. By the Commission. Nancy M. Morris, Secretary. [FR Doc. E8-2246 Filed 2-6-08; 8:45 am] BILLING CODE 8011-01-P DEPARTMENT OF LABOR Mine Safety and Health Administration 30 CFR Part 100 RIN 1219-AB57 Criteria and Procedures for Proposed Assessment of Civil Penalties AGENCY: Mine Safety and Health Administration (MSHA), Labor. ACTION: Final rule. SUMMARY: The Mine Safety and Health Administration
(MSHA)is revising its civil penalty assessment amounts to adjust for inflation. The Debt Collection Improvement Act of 1996
(DCIA)requires MSHA to adjust all civil penalties for inflation at least once every four years according to the formula specified in the Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Adjustment Act). The revised penalties apply to citations and orders issued on or after the effective date of this rule. DATES: This final rule is effective on March 10, 2008. FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-3939, *silvey.patricia@dol.gov* , 202-693-9440 (telephone), or 202-693-9441 (facsimile). SUPPLEMENTARY INFORMATION: I. Final Rule The Administrative Procedure Act
(APA)requires that rulemakings be published in the **Federal Register** and requires generally that agencies provide an opportunity for public comment. However, notice and an opportunity for public comment are not required when the agency “for good cause finds” that notice and comment “are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). The Inflation Adjustment Act, as amended by the DCIA, requires MSHA to review and, where appropriate, adjust its civil penalties for inflation at least once every four years. The DCIA prescribes the formula for any such adjustments. The decision whether to make adjustments and the amount of any adjustments are not within MSHA's discretion. MSHA is required to perform mathematical computations based on published cost-of-living data and adjust its maximum penalties accordingly. For this reason, MSHA has determined for good cause that public notice and comment are unnecessary, impractical, or contrary to the public interest and that this rule should be published in final form. In accordance with the APA, this rule is effective 30 days after the date of publication in the **Federal Register** . II. Rulemaking Background On March 22, 2007 (72 FR 13592), MSHA published the final rule, Criteria and Procedures for Proposed Assessment of Civil Penalties (Civil Penalties), that implemented the civil penalty provisions in Sections 5 and 8 of the Mine Improvement and New Emergency Response Act of 2006 (MINER Act) and revised existing civil penalty regulations in part 100 of Title 30 in the Code of Federal Regulations (CFR). Although MSHA significantly increased civil penalties in the final rule, the Agency retained the $60,000 maximum for non-flagrant civil penalties. The Agency also retained the $6,500 maximum daily penalty and the $275 maximum penalty for smoking or carrying smoking materials. III. Discussion of the Final Rule A. General Discussion In passing the Inflation Adjustment Act, Congress noted a concern for civil penalties to keep pace with inflation. Section 5 provides an inflation adjustment formula that defines a “cost-of-living” adjustment as— * * * the percentage (if any) for each civil monetary penalty by which—
(1)the Consumer Price Index for the month of June of the calendar year preceding the adjustment, exceeds
(2)the Consumer Price Index for the month of June of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law. Section 3(3) defines the term “Consumer Price Index”
(CPI)to mean “the Consumer Price Index for all-urban consumers published by the Department of Labor.” Section 5(a) included criteria for rounding the cost-of-living adjustment amount as follows: Any increase * * * shall be rounded to the nearest—
(1)multiple of $10 in the case of penalties less than or equal to $100;
(2)multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000;
(3)multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000;
(4)multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000;
(5)multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000; and
(6)multiple of $25,000 in the case of penalties greater than $200,000. This final rule makes a cost-of-living adjustment to MSHA's proposed civil penalty assessment amounts in accordance with the Inflation Adjustment Act. MSHA is adjusting the following three civil penalties in 30 CFR part 100: The maximum civil penalty, the maximum daily penalty, and the maximum miner smoking penalty. These penalties were last adjusted, as appropriate, in 2003 based on the CPI of the previous year. MSHA adjusted the maximum civil penalty and the maximum daily penalty. The maximum smoking penalty was last adjusted in 1998 from $250 to $275. It was not adjusted in 2003 because the increase under the inflation adjustment formula rounded to zero. MSHA is adjusting the maximum civil penalty and the maximum daily penalty based on the percentage change in the CPI between June of 2003 and June of 2007. MSHA is adjusting the maximum smoking penalty based on the percentage change in the CPI between June 1998 and June 2007. During the four-year period from June 2003 to June 2007, inflation was approximately 13.4%. During the nine-year period from June 1998 to June 2007, inflation was approximately 27.8%. In the final rule, MSHA has adjusted the maximum civil penalty and the maximum daily penalty by 13.4% and the maximum smoking penalty by 27.8%, and rounded each increase in accordance with the Congressional rounding formula. B. Section-by-Section Analysis The following is an analysis of the final rule's effect on existing civil penalty amounts. Section 100.3 Determination of Penalty Amount; Regular Assessment This section addresses the determination of a penalty amount for violations of the Mine Act, as amended, and MSHA's safety and health regulations, under the regular civil penalty assessment provision. Final § 100.3(a)(1) provides the criteria for determining penalty assessments and specifies a maximum dollar amount for a proposed civil penalty assessment. To adjust the existing maximum civil penalty assessment of $60,000 for inflation, MSHA applied the 13.4% inflation increase, which resulted in $8,052. MSHA rounded the increase to $10,000 in accordance with the Inflation Adjustment Act. This final rule increases the maximum civil penalty to $70,000. Section 100.3(g) contains a penalty conversion table that correlates the total points assigned for each criterion listed in this section with a proposed civil penalty dollar amount. The existing rule provides a penalty range of $112 to $60,000, and violations assessed through the regular formula receive the maximum penalty only if they receive 140 points or more. The final rule provides a penalty range of $112 to $70,000, and violations receive the maximum penalty if they receive 144 points or more. Violations receiving 140 or fewer points have no penalty increase because MSHA last adjusted these penalties in March 2007, and the average penalty increase at that time was greater than the amount of inflation. Under the existing penalty conversion table, assessments for violations with 133 to 140 points increase at a constant rate of $3,071 per point. Final § 100.3(g) provides that assessments for violations with 141 or more points increase at the same constant rate of $3,071 per point until the new maximum penalty is reached. The final rule assigns a regularly assessed violation with more than 140 points new penalty amounts of: 141 points, $63,071; 142 points, $66,142; 143 points, $69,213; and 144 or more points, $70,000. Section 100.5 Determination of Penalty Amount; Special Assessment Section 100.5 provides for a special assessment for violations that MSHA determines should not be processed under the regular assessment provision. Once MSHA determines that a special assessment is appropriate, the Agency will base the proposed penalty on the criteria listed in § 100.3(a). Section 100.5(c) addresses penalties which may be assessed daily to an operator who fails to correct a violation for which a citation has been issued under Section 104(a) of the Mine Act within the time allowed. The existing maximum daily penalty assessment is $6,500. MSHA applied the 13.4% inflation increase, which resulted in $872. MSHA rounded the increase to $1,000 in accordance with the Inflation Adjustment Act. This final rule increases the maximum daily penalty to $7,500. Section 100.5(d) addresses penalties for miners who violate mandatory safety standards relating to smoking and smoking materials underground. The existing maximum smoking penalty is $275. MSHA applied the 27.8% inflation increase, which resulted in $77. MSHA rounded the increase to $100 in accordance with the Inflation Adjustment Act. This final rule raises the maximum smoking penalty to $375. IV. Executive Order 12866 Executive Order 12866 requires that regulatory agencies assess both the costs and benefits of significant regulatory actions. Under the Executive Order, a “significant regulatory action” is one meeting any of a number of specified conditions, including the following: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. This rule is not classified as a “significant” regulatory action. MSHA, however, is providing the following summary of the costs and benefits of this regulatory action. A. Population at Risk This final rule will apply to the entire mining industry. Based on 2006 data, this rule covers 2,113 coal mines employing 81,985 miners and 3,708 office workers; and 12,772 metal and nonmetal mines employing 157,850 miners and 26,727 office workers. In addition, this rule covers 2,724 independent contractors in coal mines employing 37,282 workers, and 4,686 independent contractors in metal and nonmetal mines employing 55,945 workers. B. Benefits MSHA has qualitatively determined that this final rule will yield health and safety benefits by keeping civil penalties at a constant level, adjusted for inflation, in accordance with the Inflation Adjustment Act. C. Compliance Costs 1. Summary For purposes of analyzing the economic effects of this final rule, MSHA focuses on the likely change in costs to mine operators and independent contractors that receive civil penalties. The estimated cost of this final rule is the change in dollar amounts paid for civil penalties. There is no real cost of the rule because the increase in the amount of civil penalties adjusts for inflation. However, there is a “nominal” cost attributable to the rule. A nominal cost reflects the increase in absolute dollars, unadjusted for any change in the price level. MSHA addresses the nominal cost of the rule below. 2. Analysis of Impact of Increased Civil Penalty Assessments This final rule raises the maximum civil penalty, the maximum daily penalty, and the maximum smoking penalty. In its cost analysis, based upon experience, MSHA estimates that the final rule will not have a significant cost impact due to the adjustment of the maximum civil penalty. MSHA has not estimated costs for increases in the maximum daily penalty and maximum smoking penalty. The Agency concludes that they will result in a de minimis cost impact. Three types of violations are affected by an increase in the maximum civil penalty:
(1)Violations processed as special assessments that receive the maximum penalty. Based on historical data on special assessments for the maximum penalty, MSHA estimates an average of 13 violations per year. MSHA assumes that the increased cost would be $10,000 for each special assessment receiving the maximum penalty.
(2)Violations processed as regular assessments with 141 or more points that do not receive a 10% discount for timely abatement. MSHA estimates that five violations per year will be of this type. Violations that receive 141-143 points will receive an average increase of $6,142 under this final rule; violations that receive 144 or more points will receive an increase of $10,000. MSHA estimates that two violations will receive 141-143 points and three will receive 144 or more points, for an average increase of $8,457.
(3)Violations processed as regular assessments with 141 or more points that receive a 10% discount for timely abatement. MSHA estimates that approximately 11 violations per year will be of this type. Violations that receive 141-143 points will receive an average increase of $5,528; violations that receive 144 or more penalty points will receive an increase of $9,000. MSHA estimates that four violations will receive 141-143 points and seven will receive 144 or more points, for an average increase of $7,737. Table IV-1 summarizes MSHA's analysis. Table IV-1. Annual Penalty Increase by Violation Type Type of assessment Violations per year Average increase per violation Annual increase in nominal penalties Special 13 $10000 $130,000 Regular (No Discount) 5 8,457 42,285 Regular (10% Discount) 11 7,737 85,107 Total 29 8,876 257,392 V. Feasibility MSHA has concluded that the requirements of this final rule are technologically and economically feasible. VI. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act (SBREFA) The Regulatory Flexibility Act
(RFA)of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant impact on a substantial number of small entities. As notice and public comment are not required for this rule, a regulatory flexibility analysis is not required. However, MSHA did analyze the impact of this final rule on small entities. The annual cost of the rule for coal mines is $229,286, of which $201,180 would be for coal mines with 1-500 employees. The annual cost of the rule for metal and nonmetal mines is $28,106, of which $23,668 would be for metal and nonmetal mines with 1-500 employees. MSHA has concluded that the final rule will not have a significant impact on a substantial number of small entities. VII. Paperwork Reduction Act of 1995 This final rule does not require any paperwork or information collection. VIII. Other Regulatory Considerations A. The Unfunded Mandates Reform Act of 1995 This final rule does not include any Federal mandate that may result in increased expenditures by State, local, or tribal governments; nor does it increase private sector expenditures by more than $100 million annually; nor does it significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 * et seq.* ) requires no further agency action or analysis. B. Executive Order 13132: Federalism This final rule 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.” Accordingly, Executive Order 13132, Federalism, requires no further agency action or analysis. C. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families This final rule will have no effect on family well-being or stability, marital commitment, parental rights or authority, or income or poverty of families and children. Accordingly, § 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires no further agency action, analysis, or assessment. D. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights This final rule will not implement a policy with takings implications. Accordingly, Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, requires no further agency action or analysis. E. Executive Order 12988: Civil Justice Reform This final rule was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. This final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. MSHA has determined that this final rule meets the applicable standards provided in § 3 of Executive Order 12988. F. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This final rule will have no adverse impact on children. Accordingly, Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, requires no further agency action or analysis. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This final rule does not have “tribal implications” because it does not “have substantial direct effects 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.” Accordingly, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use This final rule has been reviewed for its impact on the supply, distribution, and use of energy because it applies to the coal mining industry. Insofar as this final rule will result in added yearly civil penalty assessments of approximately $229,000 to the coal mining industry, relative to annual revenues of $28.9 billion in 2006, it is not a “significant energy action” because it is not “likely to have a significant adverse effect on the supply, distribution, or use of energy * * * (including a shortfall in supply, price increases, and increased use of foreign supplies).” Accordingly, Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, requires no further Agency action or analysis. I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking MSHA has reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined and certified that the final rule will not have a significant economic impact on a substantial number of small entities. J. Congressional Review Act The Congressional Review Act, codified at 5 U.S.C. 801 et seq., provides generally that “major rules” cannot take effect until 60 days after publication of the rule in the **Federal Register** and delivery of the rule to each House of Congress and to the U.S. Comptroller General. MSHA has concluded, in agreement with the Office of Information and Regulatory Affairs at the Office of Management and Budget, that this rule is not a “major rule” for this purpose. For this reason, the rule will take effect on the date indicated. List of Subjects in 30 CFR Part 100 Mine safety and health, Penalties. Dated: January 31, 2008. Richard E. Stickler, Acting Assistant Secretary for Mine Safety and Health. Under the authority of the Federal Mine Safety and Health Act of 1977, as amended, Chapter I of Title 30, Code of Federal Regulations, part 100 is revised to read as follows: PART 100—CRITERIA AND PROCEDURES FOR PROPOSED ASSESSMENT OF CIVIL PENALTIES 1. The authority citation for part 100 continues to read as follows: Authority: 30 U.S.C. 815, 820, 957. 2. Section 100.3 is amended by revising paragraph (a)(1) introductory text and Table XIV in paragraph (g), to read as follows: § 100.3 Determination of penalty amount; regular assessment.
(a)*General* .
(1)Except as provided in § 100.5(e), the operator of any mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of the Mine Act, as amended, shall be assessed a civil penalty of not more than $70,000. Each occurrence of a violation of a mandatory safety or health standard may constitute a separate offense. The amount of the proposed civil penalty shall be based on the criteria set forth in sections 105(b) and 110(i) of the Mine Act. These criteria are:
(g)* * * Table XIV.—Penalty Conversion Table Points Penalty ($) 60 or fewer 112 61 121 62 131 63 142 64 154 65 167 66 181 67 196 68 212 69 230 70 249 71 270 72 293 73 317 74 343 75 372 76 403 77 436 78 473 79 512 80 555 81 601 82 651 83 705 84 764 85 828 86 897 87 971 88 1,052 89 1,140 90 1,235 91 1,337 92 1,449 93 1,569 94 1,700 95 1,842 96 1,995 97 2,161 98 2,341 99 2,536 100 2,748 101 2,976 102 3,224 103 3,493 104 3,784 105 4,099 106 4,440 107 4,810 108 5,211 109 5,645 110 6,115 111 6,624 112 7,176 113 7,774 114 8,421 115 9,122 116 9,882 117 10,705 118 11,597 119 12,563 120 13,609 121 14,743 122 15,971 123 17,301 124 18,742 125 20,302 126 21,993 127 23,825 128 25,810 129 27,959 130 30,288 131 32,810 132 35,543 133 38,503 134 41,574 135 44,645 136 47,716 137 50,787 138 53,858 139 56,929 140 60,000 141 63,071 142 66,142 143 69,213 144 or more 70,000 3. Section 100.5 is amended by revising paragraphs
(c)and
(d)to read as follows: § 100.5 Determination of penalty amount; special assessment.
(c)Any operator who fails to correct a violation for which a citation has been issued under Section 104(a) of the Mine Act within the period permitted for its correction may be assessed a civil penalty of not more than $7,500 for each day during which such failure or violation continues.
(d)Any miner who willfully violates the mandatory safety standards relating to smoking or the carrying of smoking materials, matches, or lighters shall be subject to a civil penalty of not more than $375 for each occurrence of such violation. [FR Doc. E8-2226 Filed 2-6-08; 8:45 am] BILLING CODE 4510-43-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2002-0034; FRL-8522-4] RIN 2060-AM85 National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is issuing amendments to the national emission standards for hazardous air pollutants (NESHAP) for iron and steel foundries. These final amendments add alternative compliance options for cupolas at existing foundries and clarify several provisions to increase operational flexibility and improve understanding of the final rule requirements. DATES: These final amendments are effective on February 7, 2008. The incorporation by reference of certain publications listed in these amendments is approved by the Director of the Federal Register as of February 7, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2002-0034. All documents in the docket are listed in the Federal Docket Management System index at *http://www.regulations.gov.* 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 *www.regulations.gov* or in hard copy at the National Emission Standards for Hazardous Air Pollutants for Iron and Steel Foundries Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. Phil Mulrine, Sector Policies and Programs Division, Office of Air Quality Planning and Standards (D243-02), Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number:
(919)541-5289; fax number:
(919)541-3207; e-mail address: *mulrine.phil@epa.gov.* SUPPLEMENTARY INFORMATION: Outline The information presented in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. Where can I get a copy of this document? C. Judicial Review II. Background Information III. Summary of the Final Amendments Made Since Proposal A. Emissions Limitations B. Work Practice Standards C. Operation and Maintenance Requirements D. Compliance with Alternative Emissions Limits E. Monitoring Requirements F. Recordkeeping and Reporting Requirements G. Definitions H. Applicability I. Editorial Corrections IV. Summary of Comments and Responses A. Language of Proposed Alternative Emissions Limits B. Mercury Emissions Limit C. Information on Mercury Switch Removal from Scrap Suppliers V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. General Information A. Does this action apply to me? The regulated categories and entities potentially affected by these final amendments include: Category NAICS code 1 Examples of regulated entities Industry 331511 Iron foundries, Iron and steel plants. Automotive and large equipment manufacturers. 331512 Steel investment foundries. 331513 Steel foundries (except investment). Federal government Not affected. State/local/tribal government Not affected. 1 North American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. To determine whether your facility would be regulated by this action, you should examine the applicability criteria in 40 CFR 63.7682 of subpart EEEEE (NESHAP for Iron and Steel Foundries). If you have any questions regarding the applicability of this action to a particular entity, consult either the air permit authority for the entity or your EPA regional representative as listed in 40 CFR 63.13 of subpart A (General Provisions). B. Where can I get a copy of this document? In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web
(WWW)through the Technology Transfer Network (TTN). Following signature, a copy of this final action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: *http://www.epa.gov/ttn/oarpg/.* The TTN provides information and technology exchange in various areas of air pollution control. C. Judicial Review Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of these final amendments is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by April 7, 2008. Under section 307(d)(7)(B) of the CAA, only an objection to these final amendments that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements established by these final amendments may not be challenged separately in any civil or criminal proceedings brought by EPA to enforce these requirements. II. Background Information The NESHAP for iron and steel foundries (40 CFR part 63, subpart EEEEE) establishes emissions limitations and work practice requirements for the control of hazardous air pollutants
(HAP)from foundry operations. The NESHAP implements section 112(d) of the CAA by requiring all iron and steel foundries that are major sources of HAP to meet standards reflecting application of the maximum achievable control technology (MACT). The compliance date for most of the subpart EEEEE requirements was April 23, 2007. After publication of the NESHAP (69 FR 21906, April 22, 2004), the American Foundry Society, the Alliance of Automobile Manufacturers, and the Steel Founders' Society of America filed petitions for reconsideration of the final rule. The American Foundry Society and the Steel Founders' Society of America also filed petitions for review of the final rule ( *Steel Founders' Society of America* v. *U.S. EPA,* No. 04-1190, DC Cir.) and *American Foundry Society* v. * U.S. EPA,* No. 04-1191, DC Cir.). The concerns raised by the petitioners regarding the work practice standards for scrap management have been resolved by rule amendments issued on May 20, 2005 (97 FR 29400). The Steel Founders' Society of America petitioned the court for voluntary dismissal of their petition for review on March 23, 2006, and the court granted that petition on May 2, 2006. Thus, the only challenge to the NESHAP remaining before the court is the American Foundry Society petition for review, No. 04-1191. In accordance with section 113(g) of the CAA, EPA published a notice of a proposed settlement agreement between EPA and the petitioner (72 FR 1986, January 17, 2007) and provided a 30-day comment period which ended on February 16, 2007. The settlement agreement became final on March 9, 2007. On April 17, 2007 (72 FR 19150), we proposed rule amendments which addressed the need for alternative emissions limits for cupolas at existing foundries and clarification of other rule requirements as set forth in Attachment A to the settlement agreement. The proposed amendments also included corrections to a few minor editorial errors. These final amendments are materially the same as the proposed amendments. EPA expects these final amendments to resolve the remaining issues raised by the petitioner. III. Summary of Final Amendments and Changes Made Since Proposal These final amendments include two changes since proposal. The first change is in the wording used to describe the emission limit for the new compliance option for cupola melting furnaces; instead of abbreviating the limit as lb/ ton of particulate matter
(PM)(or total metal HAP), we expressly state the limit as pound of PM (or total metal HAP) per ton of metal charged. We intend this as a clarification, not as a substantive change from what we proposed. We are also correcting a publication error in the definition of “deviation” as published at 72 FR 19164. All other final amendments are exactly as proposed. A. Emissions Limitations 1. New Compliance Options for Cupola Metal Melting Furnaces These final amendments add a new compliance option to § 73.7690(a)(2) of the NESHAP. The new alternative emissions limits for cupola metal melting furnaces at existing iron and steel foundries allows the use of control technologies that are designed on a mass removal basis rather than an outlet concentration basis. The levels of the new alternative emissions limits are the same as proposed: 0.10 pound of PM per ton of metal charged or 0.008 pound of total HAP per ton of metal charged. In response to public comment, we have revised the manner in which the emissions limits are stated in the rule for clarity. We have also revised associated compliance provisions in §§ 63.7732(b)(6) and (c)(6), 63.7734(a)(2)(iii) and (iv), and 63.7743(a)(2)(iii) and
(iv)to refer to the new alternative limits in terms of pounds of PM per ton (lb/ton) of metal charged or pounds of total metal HAP per ton of metal charged instead of lb/ton of PM or lb/ton of total metal HAP, respectively. 2. Fugitive Emissions Opacity Limit These final amendments specify that the opacity limitations apply only to buildings that house iron and steel foundry emissions sources. If nonfoundry operations are housed in the same building as the foundry operations, the foundry must comply with the opacity limits for that building. 3. Triethylamine Emissions Limit These final amendments replace the reference to test conditions (“as determined when scrubbing with fresh acid solution”) with the phrase “according to the performance test procedures in § 63.7732(g)” since § 63.7732(g) contains the requirement to conduct the test when scrubbing with fresh acid solution. B. Work Practice Standards 1. Capture and Collection Systems These final amendments delete the word “standard” from 40 CFR 63.7690(b)(1) to clarify that capture and collection systems are required for emissions sources subject to an emissions limit but not for emissions sources subject to work practice standards. 2. Scrap Management These final amendments specify that “chlorinated” plastics are to be removed from the scrap material (instead of all plastic). These final amendments also revise the requirement in 40 CFR 63.7700(c)(2) for the owner or operator to obtain and maintain onsite a copy of the procedures used by the scrap supplier for either removing accessible mercury switches or for purchasing automobile bodies that have had the switches removed. These final amendments include an alternative procedure that allows the plant to document their attempts to obtain a copy of the procedures from the scrap suppliers servicing their area. We note, however, that under 40 CFR 63.7700(c)(2) the materials acquisition program must specify that the scrap supplier remove accessible mercury switches from the trunks and hoods of any automotive bodies contained in the scrap in addition to accessible lead components such as batteries and wheel weights. It is incumbent on the foundry owner or operator to communicate these specifications to their scrap suppliers. 3. Scrap Preheaters The existing rule requires the owner or operator to install, operate, and maintain a gas-fired preheater according to 40 CFR 63.7700(e)(1) or charge only certain materials according to 40 CFR 63.7700(e)(2). These final amendments revise the language of § 63.7700(e)(1) to clarify that foundries are not required to install gas-fired preheaters when not necessary for foundry operations. It was not our intent to mandate installation of preheaters, but rather to establish requirements for those existing facilities that use scrap preheaters in lieu of selecting the option in 40 CFR 63.7700(e)(2). Therefore, these final amendments clarify § 63.7700(e)(1) by deleting the word “install”. Instead, these final amendments require the owner or operator to operate and maintain a gas-fired preheater where the flame directly contacts the scrap charged. C. Operation and Maintenance Requirements These final amendments clarify that the requirement in 40 CFR 63.7700(e)(2) applies to each capture and collection system and control device for an emissions source subject to a PM, metal HAP, triethylamine (TEA), or volatile organic hazardous pollutants (VOHAP) emissions limit in 40 CFR 63.7690(a). D. Compliance With Alternative Emissions Limits The existing NESHAP establishes PM emissions limits and alternative emissions limits expressed in total metal HAP for cupolas and other foundry processes. These final amendments clarify our original intent to allow foundries to demonstrate compliance with any of the applicable alternative emissions limitations that are provided for a specific emissions source. When multiple alternative emissions limitations are provided for a specific emissions source, iron and steel foundries can demonstrate initial compliance with any of the alternative limits; they are not required to comply with all of the alternative emissions limits at any one time. These final amendments also clarify a facility's ability to change their selected compliance alternative and the procedures needed to effect that change. However, regarding continuous compliance, the facility is expected to continuously comply with the alternative emissions limit that was selected as their compliance option as demonstrated in their most recent performance test. The facility may choose to alter their selected alternative but must continue to comply with the previously selected alternative until they successfully demonstrate compliance with the new alternative emissions limitation. We are also finalizing requirements for determining initial compliance for cupola melting furnaces at existing iron and steel foundries that are subject to the new mass rate emissions limit. The final amendments to 40 CFR 63.7732(b) and
(c)include new equations for determining PM or total metal HAP emissions from cupolas in the lb/ton of metal charged format. Other amendments to 40 CFR 63.7732(b) and
(c)clarify test methods source sampling requirements. 1. Single Performance Test for Control Devices Serving Multiple Units Section 63.7734 of the NESHAP requires iron and steel foundries to demonstrate initial compliance with PM emissions limits by conducting a performance test for each process unit according to the procedures in 40 CFR 63.7732. One petitioner pointed out that a common emissions control system may serve two similar or identical cupolas or serve multiple furnaces or process units. According to the petitioner, a requirement for separate tests of the control device while the emissions sources are operating is redundant and imposes unnecessary costs because the control device should perform the same on each identical furnace. These final amendments resolve the petitioner's concern by adding a new provision to the performance test requirements. As proposed, the final amendment requires foundries to submit a site-specific test plan for the situation described by the petitioner or other situations not expressly considered in 40 CFR 63.7734. The site-specific test plan, which is subject to approval by the Administrator, will explain the procedures that would be followed during the test, such as operation of the unit or units at the maximum operating condition of the control system. The Administrator or delegated authority will determine on a case-by-case basis if one representative furnace/control device configuration may be tested. 2. Sampling Procedure for Electric Arc Furnaces, Electric Induction Furnaces, and Scrap Preheaters As proposed, we are clarifying the sampling instructions in 40 CFR 63.7732(c)(4) and
(5)to state that the initial compliance demonstrations for electric arc metal melting furnaces, electric induction metal melting furnaces, and scrap preheaters must be conducted under normal production conditions. These final amendments require sampling during normal operating conditions, which may include charging, melting, alloying, refining, slagging, and tapping (for a furnace) or charging, heating, and discharging (for a scrap preheater). 3. Minimum Sampling Volume for Total Metal HAP As proposed, these final amendments remove the requirement in 40 CFR 63.7732(c)(2) for a minimum sample volume for test runs by EPA Method 29 (40 CFR part 60, appendix A) because the method already includes such a requirement. 4. Opacity Test Section 63.7732(d) of the existing NESHAP establishes the requirements for opacity tests. These final amendments instruct the certified observer how to take opacity readings by Method 9 (40 CFR part 60, appendix A) for a building that has many openings. As proposed, these final amendments allow the observer to take readings from a limited number of openings or vents that appear to have the highest opacities instead of making observations for each opening or vent from the building or structure. Alternatively, a single observation for the entire building is allowed if the fugitive release points afford such an observation. These final amendments also revise the language of 40 CFR 63.7732(d)(2) to clarify that opacity tests are to be conducted during PM performance tests, but that PM performance tests are not required to occur during the semiannual opacity tests. 5. Alternative Test Method Section 63.7732(g)(v) of the existing NESHAP requires the use of EPA Method 18 (40 CFR part 60, appendix A) to determine the TEA concentration of gases from the TEA cold box mold or core-making line. As proposed, these final amendments allow NIOSH Method 2010, “Amines, Aliphatic” (incorporated by reference—see § 63.14) as an alternative to EPA Method 18 (40 CFR part 60, appendix A) provided the performance requirements outlined in section 13.1 of EPA Method 18 are satisfied. Method 2010 is included in the *NIOSH Manual of Analytical Methods* (4th edition, NIOSH Publication 94-113, August 1994). The manual is available from the Government Printing Office and the National Technical Information Service (NTIS), NTIS publication No. PB95154191. The NIOSH method may also be found on the NIOSH Web site at the following address: *www.cdc.gov/niosh/nmam/method-4000.html* . 6. Procedures for Establishing Operating Limits As proposed, these final amendments clarify the procedures for establishing control device operating limits in 40 CFR 63.7733(b) through
(d)by deleting the reference to the 3-hour average from the test procedures. These final amendments specify that the owner or operator is to compute and record the average operating parameter value for each valid sampling run in which the applicable limit is met. 7. Repeat Performance Tests As proposed, these final amendments revise the requirements for repeat performance in 40 CFR 63.7731(a) to clarify that demonstrating compliance by one method does not preclude a plant from demonstrating compliance using an alternative method at a later date. A plant may elect to demonstrate compliance with an alternative emissions limit during the repeat performance tests conducted at least every 5 years. Furthermore, a plant may elect to conduct a performance test earlier than 5 years in order to change an operating limit or to demonstrate compliance with a different alternative emissions limit. A test conducted for the purpose of changing operating limits is subject to notification requirements in 40 CFR 63.7750(d). E. Monitoring Requirements 1. Baghouse Monitoring Requirements Section 63.7740(b) of the existing NESHAP requires a bag leak detection system for each negative pressure baghouse and for each positive pressure baghouse equipped with a stack where the baghouse is applied to meet any PM or total metal HAP emissions limitation in subpart EEEEE. This provision also requires inspection of each baghouse according to the requirements in 40 CFR 63.7740(b)(1) through (8). As proposed, these final amendments include monitoring requirements for the visual inspection of positive pressure baghouses that are not equipped with a stack. As proposed, these final amendments to 40 CFR 63.7740(b) clarify the text to ensure that the requirements in this paragraph for installing and using a bag leak detection system apply only to negative pressure baghouses and positive pressure baghouses equipped with a stack. The inspection requirements are separated and placed in a new paragraph
(c)and clarified to state that the inspection requirements apply to each baghouse regardless of type. These final amendments to 40 CFR 63.7740 also renumber the paragraphs which follow new paragraph (c). Similar clarifications are made to the requirements for demonstrating continuous compliance in 40 CFR 63.7743(c). 2. Demonstration of Initial Compliance With Bag Leak Detection System Operation and Maintenance Requirements Section 63.7736(c) of the existing NESHAP instructs the owner or operator how to demonstrate initial compliance with the requirements for bag leak detection systems. Under 40 CFR 63.7736(c)(1), the owner or operator must submit the bag leak detection system monitoring plan to the Administrator for approval according to the requirements in 40 CFR 63.7710(b). As proposed, these final amendments to 40 CFR 63.7736(c)(1) revise this provision to clarify that submission of the monitoring plan independent of the operation and maintenance plan is not necessary. Our intent is to include the bag leak detection system information in the operation and maintenance plan to streamline the approval process and avoid the administrative costs associated with a separate submission. In addition, having one integrated plan will provide a centralized reference tool for control device operation and maintenance requirements. 3. Installation, Operation, and Maintenance Requirements for Monitors As proposed, these final amendments revise the requirements for operation and maintenance of continuous parameter monitoring systems to more clearly describe the inspection requirements. Under the operation and maintenance requirements for flow measurement devices in 40 CFR 63.7741(a)(1)(iv), the owner or operator must perform monthly inspections of all flow sensor components for integrity, all electrical connections for continuity, and all mechanical connections for leakage. These final amendments change this provision to require a monthly visual inspection of all components, including all electrical and mechanical connections for proper functioning. The same changes are made to the monthly inspection requirements for other types of monitoring devices in §§ 63.7741(a)(2)(vi), (c)(1)(vi), (c)(2)(iv), (d)(8), and (e)(2)(iv). As proposed, these final amendments also revise the requirement for pressure measurement devices in 40 CFR 63.7741(a)(2)(iii) and 40 CFR 63.7741(c)(1)(iv) for a “daily check of the pressure tap for pluggage.” We are requiring a daily check for pluggage when using a regular pressure tap and a monthly check when using a non-clogging pressure tap. These final amendments also clarify the requirements for pressure measurement devices in 40 CFR 63.7741(a)(2)(iv) and 40 CFR 63.7741(c)(1)(iv) to allow the use of a manometer or equivalent device for calibrations. F. Recordkeeping and Reporting Requirements As proposed, these final amendments clarify two of the recordkeeping requirements in 40 CFR 63.7752(a)(4). The requirement for the annual quantity of chemical binder or coating materials used to make molds and cores is revised to require the annual quantity of chemical binder or coating materials used to coat or make molds and cores. (We inadvertently omitted the word “coat” from the original rule language.) The final requirement for records of the annual quantity of HAP used states that records are required of the annual quantity of HAP used in these chemical binder or coating materials at the foundry, as calculated from the recorded quantities and chemical compositions (from Material Data Safety Sheet or other documentation). This final amendment clarifies that the HAP records requirement is specific to the chemicals used in the mold and core-making and coating operations and not to other HAP materials used at the foundry such as solvents used to clean or degrease equipment. These final amendments to the reporting requirements allow foundries to report the results of the semiannual opacity tests within the semiannual reports rather than having to submit these semiannual documents separately. Other final amendments to the reporting requirements clarify the requirements for an immediate startup, shutdown, and malfunction report by adding the same language used in 40 CFR 63.10(d)(5)(ii). These final amendments require an immediate report if a foundry has a startup, shutdown, or malfunction and exceeds any applicable emissions limitation in 40 CFR 63.7690. G. Definitions We are amending the definition of the term “Deviation” in 40 CFR 63.7765 to clarify that the enforcement authority determines if a deviation is a violation. The proposed amendment appeared at 72 FR 19164: however, due to a publication error, the new language was added after the first sentence of the original definition, rather than at the end. In these final amendments, we are correcting the placement of the new language. As proposed, we are adding definitions of the terms “off blast” and “on blast” to 40 CFR 63.7765. The term “off blast” is defined as those periods of cupola operation when the cupola is not actively being used to produce molten metal. Off-blast conditions include cupola startup procedures as defined in the startup, shutdown, and malfunction plan. Off-blast conditions also include idling conditions when the blast air is turned off or down to the point that the cupola does not produce additional molten metal. The term “on blast” means those periods of cupola operation when combustion (blast) air is introduced to the cupola furnace and the furnace is capable of producing molten metal. On blast conditions are characterized by both blast air introduction and molten metal production. As proposed, these final amendments revise the definition of “total metal HAP” to specify the analytes to be included and how non-detect values are to be used in calculating the total metal HAP quantity. The definition of “total metal HAP” is the sum of the concentrations of antimony, arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, mercury, nickel, and selenium as measured by EPA Method 29 (40 CFR part 60, appendix A). Only the measured concentration of the listed analytes that are present at concentrations exceeding one-half of the quantification limit of the analytical method are used in the sum. If any of the analytes are not detected or are detected at concentrations less than one-half the quantification limit of the analytical method, the concentration of those analytes is assumed to be zero for the purposes of calculating the total metal HAP for this subpart. As proposed, we are also clarifying the definition of “scrap preheater” to differentiate scrap dryers that are used solely to remove moisture from the scrap metal from scrap preheaters. The revised definition of “scrap preheater” states that scrap dryers, which are used solely to remove water from metal scrap that does not contain any volatile impurities or other tramp materials, are not considered to be scrap preheaters for purposes of this subpart. H. Applicability As proposed, we are revising the applicability provisions in 40 CFR 63.7681 to reference the definition of “major source” in 40 CFR 63.2. This amendment clarifies that when we refer to a “major source” of hazardous air pollutants in 40 CFR 63.7681, we are referring to the definition of major source in 40 CFR 63.2, and not, for example, to the definition of major source in 40 CFR 51.166. I. Editorial Corrections As proposed, we are correcting a grammatical error in 40 CFR 63.7710(b), which should refer to an emissions source subject to *a* (rather than “an”) PM, metal HAP, TEA, or VOHAP emissions limit in 40 CFR 63.7690(a). A comma is added to 40 CFR 63.7734(a)(11). The words “as possible” are added to 40 CFR 63.7741(a)(2)(i). The final amendments also correct a misspelling of the word “calendar” in 40 CFR 63.7700(c)(3)(iii). IV. Summary of Comments and Responses A. *Language of Proposed Alternative Emissions Limits* *Comment:* One commenter expressed support for the proposed alternative standards for PM or total metal HAP and conforming amendments. However, the commenter believed that the wording of the proposed limit for total metal HAP is ambiguous even though the meaning is clear in context. According to the commenter, the proposed limit for total metal HAP (0.008 lb/ton of total metal HAP) could be construed to mean that the standard is 0.008 pounds of some unspecified substance per ton of total metal HAP emitted. The commenter recommended that EPA clarify the language to read “0.008 pounds of total metal HAP per ton (lb/ton) of metal charged” which would be consistent with the language in § 63.7690(a)(ii) for the proposed alternative PM limit. *Response:* Section 63.7690(a)(2)(ii) of the proposed amendments establishes the alternative limit for PM as 0.10 pound of PM per ton (lb/ton) of metal charged; the lb/ton abbreviation is then used in § 63.7690(a)(2)(iv) for the total metal HAP limit. While we agree with the commenter that the meaning is clear in context, we have revised the language for the total metal HAP limit to read according to the commenter's suggestion. For additional clarity, we have revised the wording of both limits when they appear in conforming amendments to read “pound of PM per ton (lb/ton) of metal charged” and “pound of total metal HAP per ton (lb/ton) of metal charged.” B. Mercury Emissions Limit *Comment:* One commenter recommended that EPA adopt stand-alone mercury emissions standards similar to those in New Jersey. 1 The commenter explained that the rule requires iron and steel melters (at both foundries and steel production plants) to meet a mercury emissions limit of 35 milligrams per ton (mg/ton) of steel produced or, in the alternative, reduce mercury emissions by 75 percent using a mercury control apparatus. The emission limit, which becomes effective in January 2010, can be achieved through source separation measures and, if necessary, additional exhaust controls. According to the commenter, the emissions limit determines the success of the source separation program and the need for add-on mercury control measures on the melter exhaust. The commenter stated that one foundry had recently installed an activated carbon injection system for mercury control and a baghouse serving the cupola and that test results show greater than 90 percent mercury control and emissions less than 3 mg/ton. According to the commenter, other facilities with existing fabric filter control are testing carbon injection and have reported compliance with the mercury emissions limit but have not submitted formal test results. 1 The State of New Jersey Department of Environmental Protection mercury regulations for iron and steel scrap melting specify that mercury emissions from each melter shall not exceed 35 megagrams per ton of steel produced. Alternatively, mercury emissions as measured at the exit of the mercury control apparatus must be reduced by at least 75 percent (N.J.A.C. 7:27-27.6). These rules have been upheld by the Appellate Division of the State Superior Court. *Response:* As described in the preamble to the final NESHAP for Iron and Steel Foundries (69 FR 21906, April 22, 2004), the control systems used at iron and steel foundries at the time the NESHAP was developed were not effective in reducing mercury emissions. The pollution prevention measure of removing mercury switches from automotive scrap was determined to be a cost-effective “beyond the MACT floor” requirement and was included as a requirement in the final NESHAP as part of the scrap selection and inspection program. The final NESHAP was projected to reduce mercury emissions by 2,800 pounds per year at a cost of $3.6 million per year (which includes increased cost of scrap for removing the mercury switches). We recognize that there are other mercury-containing devices in automotive scrap so that the pollution prevention program required by the final NESHAP does not eliminate all mercury from the scrap. At the time the NESHAP was developed, we considered requirements for more stringent mercury reduction requirements, either through additional scrap inspection and selection inspection requirements specific to other mercury-containing devices or through innovative mercury controls. Based on the small quantities of mercury in these other devices, these options were determined to be cost-ineffective. A re-evalulation of the MACT floor for the Iron and Steel NESHAP in light of new control systems added to iron and steel foundries since the NESHAP was first promulgated is outside the scope of the current package of amendments. We did not include or take comment on a separate mercury limit in our April 17, 2007 Notice of Proposed Rulemaking. Therefore, we are not including specific emission limits for mercury in the final amendments. A technology review of the MACT standards is required by the CAA eight years after promulgation. These newly installed mercury controls will be considered in detail during this technology review. C. Information on Mercury Switch Removal From Scrap Suppliers *Comment:* One commenter stated that EPA should not revise § 63.7700(b)(2) to eliminate the requirement that facilities buy scrap only from suppliers willing to provide a copy of their procedures for ensuring that mercury switches are removed from automobile bodies that they supply. The commenter believed that no supplier will do this unless foundries require it because suppliers that do provide a copy of their procedures will be at a disadvantage to suppliers that either do not remove the mercury switches or are unwilling to document their removal procedures. According to the commenter, under the proposed amendments, suppliers would not be penalized as they are under the existing rule. The commenter stated that this proposed amendment increases mercury emissions and that EPA did not provide an estimate of the health, environmental, and economic impacts of the increase. The commenter also claimed that because of limitations currently enforced on some sources, the proposed amendment reduces the stringency of the rule below the MACT floor for new sources and possibly for existing sources. According to the commenter, the proposed amendment is inconsistent with the CAA. *Response:* The amendment does not absolve the iron and steel foundry from the responsibility to use automotive scrap that has had accessible mercury switches removed. In previous amendments to the NESHAP (70 FR 29400, May 20, 2005), we included provisions for foundries to perform inspections at the scrap supplier. Thus, the foundry should be able to verify whether the supplier in fact removes accessible mercury switches. The reason for the amendment is to clarify that EPA is not imposing a regulatory burden on the scrap supplier through this rule. EPA is not requiring scrap suppliers to provide the foundry with written procedures for ensuring the mercury switches are removed. Nevertheless, because we require foundries to purchase only automotive scrap that has had accessible mercury switches removed from the trunks and hoods of automobile bodies, a foundry is much more likely to do business with a scrap supplier that supplies written procedures than with one that does not. It is incumbent on the foundry to document their attempt to obtain written procedures and to ensure, through site inspections or other means, that any automotive scrap that they purchase from their suppliers has had accessible mercury switches removed from the trunks and hoods. V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose any new information collection burden. These final amendments add a new compliance alternative, allow a new alternative test method, and clarify requirements in the existing rule. One amendment to the baghouse monitoring requirements clarifies our original intent to require inspections of positive pressure baghouses not equipped with a stack. No new burden is associated with this requirement because the burden was included in the approved information collection request
(ICR)for the existing rule. However, the Office of Management and Budget
(OMB)has previously approved the information collection requirements contained in the existing regulation (40 CFR part 63, subpart EEEEE) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, *et seq.* and has assigned OMB control number 2060-0543, EPA ICR number 2096.03. A copy of the OMB-approved ICR may be obtained from Susan Auby, Collection Strategies Division, U.S. EPA (2822T), 1200 Pennsylvania Ave., NW., Washington, DC 20460, by e-mail at *auby.susan@epa.gov,* or by calling
(202)566-1672. 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, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR part 63 are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule would not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For the purposes of assessing the impacts of these final amendments on small entities, small entity is defined as:
(1)A small business that meets the Small Business Administration size standards for small businesses found at 13 CFR 121.201 (less than 500 employees for NAICS codes 331511, 331512, and 331513);
(2)a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of these final amendments on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant *adverse* economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. There would not be any adverse impacts on any source (including any small entity) as a result of the final amendments because the final amendments do not create any new requirements or burdens that were not already included in the economic impact assessment for the existing rule. These final amendments relieve regulatory burden for all entities as a result of the operational flexibility afforded by the alternative compliance option, alternative test method, and provisions allowing plants to combine multiple reports into a single submission. We have therefore concluded that these final amendments will relieve regulatory burden for all affected small entities. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that these final amendments do 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. The final amendments are expected to result in an overall reduction in expenditures for the private sector and are not expected to impact State, local, or tribal governments. Thus, the final amendments are not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that these final amendments contain no regulatory requirements that might significantly or uniquely affect small governments. These final amendments contain no requirements that apply to such governments, and impose no obligations upon them. E. Executive Order 13132: Federalism Executive Order 13132 (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the 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.” These final amendments do not have federalism implications. They 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. These final amendments do not impose any requirements on State and local governments. Thus, Executive Order 13132 does not apply to these final amendments. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” These final amendments do not have tribal implications, as specified in Executive Order 13175. These final amendments impose no requirements on tribal governments. Thus, Executive Order 13175 does not apply to these final amendments. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, EPA must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. These final amendments are not subject to Executive Order 13045 because they are based on technology performance and not on health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use These final amendments are not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because they are not a significant regulatory action under Executive Order 12866. I. National Technology Transfer Advancement Act As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113, Section 12(d), 15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. The VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency does not use available and applicable VCS. These final amendments involve technical standards. Therefore the Agency conducted a search to identify potential VCS in addition to the EPA and alternative method. However, we identified no such standards and none were brought to our attention in comments. Therefore EPA has decided to use an alternative methodology, the NIOSH Method 2010, “Amines, Aliphatic” (incorporated by reference in § 63.14) for EPA Method 18 (40 CFR part 60, appendix A) to determine the TEA concentration of gases from the TEA cold box mold or core making line provided the performance requirements outlined in section 13.1 of EPA Method 18 are satisfied. For the methods required or referenced by these final amendments, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures under §§ 63.7(f) and 63.8(f) of subpart A of the General Provisions. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that these final amendments will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because they do not affect the level of protection provided to human health or the environment. These final amendments do not relax the control measures on sources regulated by the rule and therefore will not cause emissions increases from these sources. 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 Congress and to the Comptroller General of the United States. EPA will submit a report containing these final amendments 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 final amendments 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). These final amendments will be effective on February 7, 2008. List of Subjects in 40 CFR Part 63 Environmental protection, Air pollution control, Hazardous substances, Incorporation by reference, Reporting and recordkeeping requirements. Dated: January 23, 2008. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, part 63, title 40, chapter I, of the Code of Federal Regulations is amended as follows: PART 63—[AMENDED] 1. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart A—[Amended] 2. Section 63.14 is amended by adding paragraph (k)(2) to read as follows: § 63.14 Incorporations by reference.
(k)* * *
(2)The following method as published in the National Institute of Occupational Safety and Health (NIOSH) test method compendium, “NIOSH Manual of Analytical Methods”, NIOSH publication no. 94-113, Fourth Edition, August 15, 1994.
(i)NIOSH Method 2010, “Amines, Aliphatic,” Issue 2, August 15, 1994, IBR approved for § 63.7732(g)(1)(v) of Subpart EEEEE of this part.
(ii)[Reserved] Subpart EEEEE—[Amended] 3. Section 63.7681 is amended by revising the second sentence to read as follows: § 63.7681 Am I subject to this subpart? * * * Your iron and steel foundry is a major source of HAP for purposes of this subpart if it emits or has the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year or if it is located at a facility that emits or has the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year as defined in § 63.2. 4. Section 63.7690 is amended by: a. Revising paragraphs
(a)introductory text; b. Revising paragraph (a)(2); c. Revising paragraph (a)(7); d. Revising paragraphs (a)(11)(i) and (ii); and e. Revising paragraph (b)(1) introductory text to read as follows: § 63.7690 What emissions limitations must I meet?
(a)You must meet the emissions limits or standards in paragraphs (a)(1) through
(11)of this section that apply to you. When alternative emissions limitations are provided for a given emissions source, you are not restricted in the selection of which applicable alternative emissions limitation is used to demonstrate compliance.
(2)For each cupola metal melting furnace at an existing iron and steel foundry, you must not discharge emissions through a conveyance to the atmosphere that exceed either the limit for PM in paragraph (a)(2)(i) or
(ii)of this section or, alternatively the limit for total metal HAP in paragraph (a)(2)(iii) or
(iv)of this section:
(i)0.006 gr/dscf of PM; or
(ii)0.10 pound of PM per ton (lb/ton) of metal charged, or
(iii)0.0005 gr/dscf of total metal HAP; or
(iv)0.008 pound of total metal HAP per ton (lb/ton) of metal charged.
(7)For each building or structure housing any iron and steel foundry emissions source at the iron and steel foundry, you must not discharge any fugitive emissions to the atmosphere from foundry operations that exhibit opacity greater than 20 percent (6-minute average), except for one 6-minute average per hour that does not exceed 27 percent opacity.
(11)* * *
(i)You must not discharge emissions of TEA through a conveyance to the atmosphere that exceed 1 ppmv, as determined according to the performance test procedures in § 63.7732(g); or
(ii)You must reduce emissions of TEA from each TEA cold box mold or core making line by at least 99 percent, as determined according to the performance test procedures in § 63.7732(g).
(b)* * *
(1)You must install, operate, and maintain a capture and collection system for all emissions sources subject to an emissions limit for VOHAP or TEA in paragraphs (a)(8) through
(11)of this section. 5. Section 63.7700 is amended by: a. Revising the last sentence in paragraph (b); b. Revising paragraphs (c)(1)(i) and (ii); c. Revising the last sentence in paragraph (c)(2); d. Revising paragraph (c)(3)(iii); and e. Revising paragraph (e)(1) to read as follows: § 63.7700 What work practice standards must I meet?
(b)* * * Any post-consumer engine blocks, post-consumer oil filters, or oily turnings that are processed and/or cleaned to the extent practicable such that the materials do not include lead components, mercury switches, chlorinated plastics, or free organic liquids can be included in this certification.
(c)* * *
(1)* * *
(i)For scrap charged to a scrap preheater, electric arc metal melting furnace, or electric induction metal melting furnace, specifications for scrap materials to be depleted (to the extent practicable) of the presence of used oil filters, chlorinated plastic parts, organic liquids, and a program to ensure the scrap materials are drained of free liquids; or
(ii)For scrap charged to a cupola metal melting furnace, specifications for scrap materials to be depleted (to the extent practicable) of the presence of chlorinated plastic, and a program to ensure the scrap materials are drained of free liquids.
(2)* * * You must either obtain and maintain onsite a copy of the procedures used by the scrap supplier for either removing accessible mercury switches or for purchasing automobile bodies that have had mercury switches removed, as applicable, or document your attempts to obtain a copy of these procedures from the scrap suppliers servicing your area.
(3)* * *
(iii)The inspection procedures must include provisions for rejecting or returning entire or partial scrap shipments that do not meet specifications and limiting purchases from vendors whose shipments fail to meet specifications for more than three inspections in one calendar year.
(e)* * *
(1)You must operate and maintain a gas-fired preheater where the flame directly contacts the scrap charged; or 6. Section 63.7710 is amended by revising the first sentence in paragraph
(b)introductory text to read as follows: § 63.7710 What are my operation and maintenance requirements?
(b)You must prepare and operate at all times according to a written operation and maintenance plan for each capture and collection system and control device for an emissions source subject to a PM, metal HAP, TEA, or VOHAP emissions limit in § 63.7690(a). * * * 7. Section 63.7731 is amended by revising the first sentence in paragraph
(a)to read as follows: § 63.7731 When must I conduct subsequent performance tests?
(a)You must conduct subsequent performance tests to demonstrate compliance with all applicable PM or total metal HAP, VOHAP, and TEA emissions limitations in § 63.7690 for your iron and steel foundry no less frequently than every 5 years and each time you elect to change an operating limit or to comply with a different alternative emissions limit, if applicable. * * * 8. Section 63.7732 is amended by: a. Revising paragraph (a); b. Redesignating Equations 1 through 5 as Equations 3 through 7; c. Revising paragraphs
(b)introductory text, (b)(4), and (b)(5) and adding paragraph (b)(6) containing Equation 1; d. Revising paragraphs
(c)introductory text, (c)(2), (c)(4), and (c)(5) and adding paragraph (c)(6) containing Equation 2; e. Revising paragraph
(d)introductory text, adding two sentences to the end of paragraph (d)(1), and revising paragraph (d)(2); f. Revising paragraph (e)(3); g. Revising paragraphs (f)(2)(ix) and (f)(3); h. Revising paragraphs (g)(1)(v), (g)(2), and (g)(4); i. Revising paragraphs (h)(2)(ii), (h)(3)(ii), and (h)(3)(iii); and j. Adding paragraph
(i)to read as follows: § 63.7732 What test methods and other procedures must I use to demonstrate initial compliance with the emissions limitations?
(a)You must conduct each performance test that applies to your iron and steel foundry based on your selected compliance alternative, if applicable, according to the requirements in § 63.7(e)(1) and the conditions specified in paragraphs
(b)through
(i)of this section.
(b)To determine compliance with the applicable emissions limit for PM in § 63.7690(a)(1) through
(6)for a metal melting furnace, scrap preheater, pouring station, or pouring area, follow the test methods and procedures in paragraphs (b)(1) through
(6)of this section.
(4)For electric arc and electric induction metal melting furnaces, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, melting, alloying, refining, slagging, and tapping.
(5)For scrap preheaters, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, heating, and discharging.
(6)Determine the total mass of metal charged to the furnace or scrap preheater. For a cupola metal melting furnace at an existing iron and steel foundry that is subject to the PM emissions limit in § 63.7690(a)(ii), calculate the PM emissions rate in pounds of PM per ton (lb/ton) of metal charged using Equation 1 of this section: ER07FE08.000 Where: EF PM = Mass emissions rate of PM, pounds of PM per ton (lb/ton) of metal charged; C PM = Concentration of PM measured during performance test run, gr/dscf; Q = Volumetric flow rate of exhaust gas, dry standard cubic feet per minute (dscfm); M charge = Mass of metal charged during performance test run, tons; t test = Duration of performance test run, minutes; and 7,000 = Unit conversion factor, grains per pound (gr/lb).
(c)To determine compliance with the applicable emissions limit for total metal HAP in § 63.7690(a)(1) through
(6)for a metal melting furnace, scrap preheater, pouring station, or pouring area, follow the test methods and procedures in paragraphs (c)(1) through
(6)of this section.
(2)A minimum of three valid test runs are needed to comprise a performance test.
(4)For electric arc and electric induction metal melting furnaces, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, melting, alloying, refining, slagging, and tapping.
(5)For scrap preheaters, sample only during normal production conditions, which may include, but are not limited to the following cycles: Charging, heating, and discharging.
(6)Determine the total mass of metal charged to the furnace or scrap preheater during each performance test run and calculate the total metal HAP emissions rate (pounds of total metal HAP per ton (lb/ton) of metal charged) using Equation 2 of this section: ER07FE08.001 Where: EF TMHAP = Emissions rate of total metal HAP, pounds of total metal HAP per ton (lb/ton) of metal charged; C TMHAP = Concentration of total metal HAP measured during performance test run, gr/dscf; Q = Volumetric flow rate of exhaust gas, dscfm; M charge = Mass of metal charged during performance test run, tons; t test = Duration of performance test run, minutes; and 7,000 = Unit conversion factor, gr/lb.
(d)To determine compliance with the opacity limit in § 63.7690(a)(7) for fugitive emissions from buildings or structures housing any iron and steel foundry emissions source at the iron and steel foundry, follow the procedures in paragraphs (d)(1) and
(2)of this section.
(1)* * * The certified observer may identify a limited number of openings or vents that appear to have the highest opacities and perform opacity observations on the identified openings or vents in lieu of performing observations for each opening or vent from the building or structure. Alternatively, a single opacity observation for the entire building or structure may be performed, if the fugitive release points afford such an observation.
(2)During testing intervals when PM performance tests, if applicable, are being conducted, conduct the opacity test such the opacity observations are recorded during the PM performance tests.
(e)* * *
(3)For a cupola metal melting furnace, correct the measured concentration of VOHAP, TGNMO, or TOC for oxygen content in the gas stream using Equation 3 of this section: ER07FE08.002 Where: C VOHAP = Concentration of VOHAP in ppmv as measured by Method 18 in 40 CFR part 60, appendix A or the concentration of TGNMO or TOC in ppmv as hexane as measured by Method 25 or 25A in 40 CFR part 60, appendix A; and %O 2 = Oxygen concentration in gas stream, percent by volume (dry basis).
(f)* * *
(2)* * *
(ix)Calculate the site-specific VOC emissions limit using Equation 4 of this section: ER07FE08.003 Where: C VOHAP,avg = Average concentration of VOHAP for the source test in ppmv as measured by Method 18 in 40 CFR part 60, appendix A or the average concentration of TGNMO for the source test in ppmv as hexane as measured by Method 25 in 40 CFR part 60, appendix A; and C CEM = Average concentration of total hydrocarbons in ppmv as hexane as measured using the CEMS during the source test.
(3)For two or more exhaust streams from one or more automated conveyor and pallet cooling lines or automated shakeout lines, compute the flow-weighted average concentration of VOHAP emissions for each combination of exhaust streams using Equation 5 of this section: ER07FE08.004 Where: C w = Flow-weighted concentration of VOHAP or VOC, ppmv (as hexane); C i = Concentration of VOHAP or VOC from exhaust stream “i”, ppmv (as hexane); n = Number of exhaust streams sampled; and Q i = Volumetric flow rate of effluent gas from exhaust stream “i,”, dscfm.
(g)* * *
(1)* * *
(v)Method 18 to determine the TEA concentration. Alternatively, you may use NIOSH Method 2010 (incorporated by reference—see § 63.14) to determine the TEA concentration provided the performance requirements outlined in section 13.1 of EPA Method 18 are satisfied. The sampling option and time must be sufficiently long such that either the TEA concentration in the field sample is at least 5 times the limit of detection for the analytical method or the test results calculated using the laboratory's reported analytical detection limit for the specific field samples are less than 1/5 of the applicable emissions limit. When using Method 18, the adsorbent tube approach, as described in section 8.2.4 of Method 18, may be required to achieve the necessary analytical detection limits. The sampling time must be at least 1 hour in all cases.
(2)If you use a wet acid scrubber, conduct the test as soon as practicable after adding fresh acid solution and the system has reached normal operating conditions.
(4)If you are subject to the 99 percent reduction standard, calculate the mass emissions reduction using Equation 6 of this section: ER07FE08.005 Where: E i = Mass emissions rate of TEA at control device inlet, kilograms per hour (kg/hr); and E o = Mass emissions rate of TEA at control device outlet, kg/hr.
(h)* * *
(2)* * *
(ii)Calculate the flow-weighted average emissions limit, considering only the regulated streams, using Equation 5 of this section, except C w is the flow-weighted average emissions limit for PM or total metal HAP in the exhaust stream, gr/dscf; and C i is the concentration of PM or total metal HAP in exhaust stream “i”, gr/dscf.
(3)* * *
(ii)Measure the flow rate and PM or total metal HAP concentration of the combined exhaust stream both before and after the control device and calculate the mass removal efficiency of the control device using Equation 6 of this section, except E i is the mass emissions rate of PM or total metal HAP at the control device inlet, lb/hr and E o is the mass emissions rate of PM or total metal HAP at the control device outlet, lb/hr.
(iii)Meet the applicable emissions limit based on the calculated PM or total metal HAP concentration for the regulated emissions sources using Equation 7 of this section: ER07FE08.006 Where: C released = Calculated concentration of PM (or total metal HAP) predicted to be released to the atmosphere from the regulated emissions source, gr/dscf; and C i = Concentration of PM (or total metal HAP) in the uncontrolled regulated exhaust stream, gr/dscf.
(i)To determine compliance with an emissions limit for situations when multiple sources are controlled by a single control device, but only one source operates at a time, or other situations that are not expressly considered in paragraphs
(b)through
(h)of this section, a site-specific test plan should be submitted to the Administrator for approval according to the requirements in § 63.7(c)(2) and (3). 9. Section 63.7733 is amended by revising paragraphs (b)(2), (c)(2), and (d)(2) to read as follows: § 63.7733 What procedures must I use to establish operating limits?
(b)* * *
(2)Compute and record the average pressure drop and average scrubber water flow rate for each valid sampling run in which the applicable emissions limit is met.
(c)* * *
(2)Compute and record the average combustion zone temperature for each valid sampling run in which the applicable emissions limit is met.
(d)* * *
(2)Compute and record the average scrubbing liquid flow rate for each valid sampling run in which the applicable emissions limit is met. 10. Section 63.7734 is amended by: a. Revising paragraph
(a)introductory text; b. Revising paragraph (a)(2)(ii); c. Adding paragraphs (a)(2)(iii) and (iv); d. Revising paragraphs (a)(7) and (a)(11) to read as follows: § 63.7734 How do I demonstrate initial compliance with the emissions limitations that apply to me?
(a)You have demonstrated initial compliance with the emissions limits in § 63.7690(a) by meeting the applicable conditions in paragraphs (a)(1) through
(11)of this section. When alternative emissions limitations are provided for a given emissions source, you are not restricted in the selection of which applicable alternative emissions limitation is used to demonstrate compliance.
(2)* * *
(ii)The average total metal HAP concentration in the exhaust stream, determined according to the performance test procedures in § 63.7732(c), did not exceed 0.0005 gr/dscf; or
(iii)The average PM mass emissions rate, determined according to the performance test procedures in § 63.7732(b), did not exceed 0.10 pound of PM per ton (lb/ton) of metal charged; or
(iv)The average total metal HAP mass emissions rate, determined according to the performance test procedures in § 63.7732(c), did not exceed 0.008 pound of total metal HAP per ton (lb/ton) of metal charged.
(7)For each building or structure housing any iron and steel foundry emissions source at the iron and steel foundry, the opacity of fugitive emissions from foundry operations discharged to the atmosphere, determined according to the performance test procedures in § 63.7732(d), did not exceed 20 percent (6-minute average), except for one 6-minute average per hour that did not exceed 27 percent opacity.
(11)For each TEA cold box mold or core making line in a new or existing iron and steel foundry, the average TEA concentration, determined according to the performance test procedures in § 63.7732(g), did not exceed 1 ppmv or was reduced by 99 percent. 11. Section 63.7736 is amended by revising paragraph (c)(1) to read as follows: § 63.7736 How do I demonstrate initial compliance with the operation and maintenance requirements that apply to me?
(c)* * *
(1)You have submitted the bag leak detection system monitoring information to the Administrator within the written O&M plan for approval according to the requirements of § 63.7710(b); 12. Section 63.7740 is amended by: a. Revising paragraph (b); b. Redesignating paragraphs
(c)through
(g)as
(d)through (h); and c. Adding paragraph
(c)to read as follows: § 63.7740 What are my monitoring requirements?
(b)For each negative pressure baghouse or positive pressure baghouse equipped with a stack that is applied to meet any PM or total metal HAP emissions limitation in this subpart, you must at all times monitor the relative change in PM loadings using a bag leak detection system according to the requirements in § 63.7741(b).
(c)For each baghouse, regardless of type, that is applied to meet any PM or total metal HAP emissions limitation in this subpart, you must conduct inspections at their specified frequencies according to the requirements specified in paragraphs (c)(1) through
(8)of this section.
(1)Monitor the pressure drop across each baghouse cell each day to ensure pressure drop is within the normal operating range identified in the manual.
(2)Confirm that dust is being removed from hoppers through weekly visual inspections or other means of ensuring the proper functioning of removal mechanisms.
(3)Check the compressed air supply for pulse-jet baghouses each day.
(4)Monitor cleaning cycles to ensure proper operation using an appropriate methodology.
(5)Check bag cleaning mechanisms for proper functioning through monthly visual inspections or equivalent means.
(6)Make monthly visual checks of bag tension on reverse air and shaker-type baghouses to ensure that bags are not kinked (kneed or bent) or lying on their sides. You do not have to make this check for shaker-type baghouses using self-tensioning (spring-loaded) devices.
(7)Confirm the physical integrity of the baghouse through quarterly visual inspections of the baghouse interior for air leaks.
(8)Inspect fans for wear, material buildup, and corrosion through quarterly visual inspections, vibration detectors, or equivalent means. 13. Section 63.7741 is amended by: a. Revising paragraphs (a)(1)(iv), (a)(2)(i), (a)(2)(iii), (a)(2)(iv), and (a)(2)(vi); b. Revising paragraph
(b)introductory text; c. Revising paragraphs (c)(1)(iii), (c)(1)(iv), (c)(1)(vi), and (c)(2)(iv); d. Revising paragraph (d)(8); and e. Revising paragraph (e)(2)(iv) to read as follows: § 63.7741 What are the installation, operation, and maintenance requirements for my monitors?
(a)* * *
(1)* * *
(iv)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(2)* * *
(i)Locate the pressure sensor(s) in or as close as possible to a position that provides a representative measurement of the pressure and that minimizes or eliminates pulsating pressure, vibration, and internal and external corrosion.
(iii)Check the pressure tap for pluggage daily. If a “non-clogging” pressure tap is used, check for pluggage monthly.
(iv)Using a manometer or equivalent device such as a magnahelic or other pressure indicating transmitter, check gauge and transducer calibration quarterly.
(vi)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(b)For each negative pressure baghouse or positive pressure baghouse equipped with a stack that is applied to meet any PM or total metal HAP emissions limitation in this subpart, you must install, operate, and maintain a bag leak detection system according to the requirements in paragraphs (b)(1) through
(7)of this section.
(c)* * *
(1)* * *
(iii)Check the pressure tap for pluggage daily. If a “non-clogging” pressure tap is used, check for pluggage monthly.
(iv)Using a manometer or equivalent device such as a magnahelic or other pressure indicating transmitter, check gauge and transducer calibration quarterly.
(vi)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(2)* * *
(iv)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(d)* * *
(8)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning.
(e)* * *
(2)* * *
(iv)At least monthly, visually inspect all components, including all electrical and mechanical connections, for proper functioning. 14. Section 63.7743 is amended by: a. Adding a second sentence to the end of paragraph
(a)introductory text and removing the colon after the first sentence in paragraph
(a)in text and adding period in its place; b. Revising paragraph (a)(2)(ii) and adding paragraphs (a)(2)(iii) and (iv); c. Revising paragraph (a)(7); and d. Revising paragraph
(c)introductory text and paragraphs (c)(1) and
(2)to read as follows: § 63.7743 How do I demonstrate continuous compliance with the emissions limitations that apply to me?
(a)* * * When alternative emissions limitations are provided for a given emissions source, you must comply with the alternative emissions limitation most recently selected as your compliance alternative.
(2)* * *
(ii)Maintaining the average total metal HAP concentration in the exhaust stream at or below 0.0005 gr/dscf; or
(iii)Maintaining the average PM mass emissions rate at or below 0.10 pound of PM per ton (lb/ton) of metal charged; or
(iv)Maintaining the average total metal HAP mass emissions rate at or below 0.008 pound of total metal HAP per ton (lb/ton) of metal charged.
(7)For each building or structure housing any iron and steel foundry emissions source at the iron and steel foundry, maintaining the opacity of any fugitive emissions from foundry operations discharged to the atmosphere at or below 20 percent opacity (6-minute average), except for one 6-minute average per hour that does not exceed 27 percent opacity.
(c)For each baghouse,
(1)Inspecting and maintaining each baghouse according to the requirements of § 63.7740(c)(1) through
(8)and recording all information needed to document conformance with these requirements; and
(2)If the baghouse is equipped with a bag leak detection system, maintaining records of the times the bag leak detection system sounded, and for each valid alarm, the time you initiated corrective action, the corrective action taken, and the date on which corrective action was completed. 15. Section 63.7750 is amended by adding a sentence to the end of paragraph
(e)introductory text to read as follows: § 63.7750 What notifications must I submit and when?
(e)* * * For opacity performance tests, the notification of compliance status may be submitted with the semiannual compliance report in § 63.7751(a) and
(b)or the semiannual part 70 monitoring report in § 63.7551(d). 16. Section 63.7751 is amended by revising paragraph
(c)to read as follows: § 63.7751 What reports must I submit and when?
(c)Immediate startup, shutdown, and malfunction report. If you had a startup, shutdown, or malfunction during the semiannual reporting period that was not consistent with your startup, shutdown, and malfunction plan and the source exceeds any applicable emissions limitation in § 63.7690, you must submit an immediate startup, shutdown, and malfunction report according to the requirements of § 63.10(d)(5)(ii). 17. Section 63.7752 is amended by revising paragraph (a)(4) to read as follows: § 63.7752 What records must I keep?
(a)* * *
(4)Records of the annual quantity of each chemical binder or coating material used to coat or make molds and cores, the Material Data Safety Sheet or other documentation that provides the chemical composition of each component, and the annual quantity of HAP used in these chemical binder or coating materials at the foundry as calculated from the recorded quantities and chemical compositions (from Material Data Safety Sheets or other documentation). 18. Section 63.7765 is amended by: a. Revising the definition for “Deviation”; b. Adding, in alphabetical order, definitions for “Offblast” and “On blast”; and c. Revising the definitions “Scrap preheater” and adding “Total metal HAP” to read as follows: § 63.7765 What definitions apply to this subpart? *Deviation* means any instance in which an affected source or an owner or operator of such an affected source:
(1)Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emissions limitation (including operating limits), work practice standard, or operation and maintenance requirement;
(2)Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any iron and steel foundry required to obtain such a permit; or
(3)Fails to meet any emissions limitation (including operating limits) or work practice standard in this subpart during startup, shutdown, or malfunction, regardless of whether or not such failure is permitted by this subpart. A deviation is not always a violation. The determination of whether a deviation constitutes a violation of the standard is up to the discretion of the entity responsible for enforcement of the standards. *Off blast* means those periods of cupola operation when the cupola is not actively being used to produce molten metal. Off blast conditions include cupola startup when air is introduced to the cupola to preheat the sand bed and other cupola startup procedures as defined in the startup, shutdown, and malfunction plan. Off blast conditions also include idling conditions when the blast air is turned off or down to the point that the cupola does not produce additional molten metal. *On blast* means those periods of cupola operation when combustion (blast) air is introduced to the cupola furnace and the furnace is capable of producing molten metal. On blast conditions are characterized by both blast air introduction and molten metal production. *Scrap preheater* means a vessel or other piece of equipment in which metal scrap that is to be used as melting furnace feed is heated to a temperature high enough to eliminate volatile impurities or other tramp materials by direct flame heating or similar means of heating. Scrap dryers, which solely remove moisture from metal scrap, are not considered to be scrap preheaters for purposes of this subpart. *Total metal HAP* means, for the purposes of this subpart, the sum of the concentrations of antimony, arsenic, beryllium, cadmium, chromium, cobalt, lead, manganese, mercury, nickel, and selenium as measured by EPA Method 29 (40 CFR part 60, appendix A). Only the measured concentration of the listed analytes that are present at concentrations exceeding one-half the quantitation limit of the analytical method are to be used in the sum. If any of the analytes are not detected or are detected at concentrations less than one-half the quantitation limit of the analytical method, the concentration of those analytes will be assumed to be zero for the purposes of calculating the total metal HAP for this subpart. 19. Table 1 to subpart EEEEE is amended by revising the entry for § 63.9 to read as follows: Table 1 to Subpart EEEEE of Part 63.—Applicability of General Provisions to Subpart EEEEE * * * * * * * Citation Subject Applies to subpart EEEEE? Explanation * * * * * * * 63.9 Notification requirements Yes Except: for opacity performance tests, Subpart EEEEE allows the notification of compliance status to be submitted with the semiannual compliance report or the semiannual part 70 monitoring report. * * * * * * * [FR Doc. E8-1979 Filed 2-6-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 001005281-0369-02] RIN 0648-XF24 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Closure AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; closure. SUMMARY: NMFS closes the commercial run-around gillnet fishery for king mackerel in the exclusive economic zone
(EEZ)in the southern Florida west coast subzone. This closure is necessary to protect the Gulf king mackerel resource. DATES: The closure is effective 6 a.m., local time, February 5, 2008, through 6 a.m., January 20, 2009. FOR FURTHER INFORMATION CONTACT: Susan Gerhart, telephone: 727-824-5305, fax: 727-824-5308, e-mail: *Susan.Gerhart@noaa.gov* . SUPPLEMENTARY INFORMATION: The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP, on April 30, 2001 (66 FR 17368, March 30, 2001), NMFS implemented a commercial quota of 2.25 million lb (1.02 million kg) for the eastern zone (Florida) of the Gulf migratory group of king mackerel. That quota is further divided into separate quotas for the Florida east coast subzone and the northern and southern Florida west coast subzones. On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the eastern zone into northern and southern subzones, and established their separate quotas. The quota implemented for the southern Florida west coast subzone is 1,040,625 lb (472,020 kg). That quota is further divided into two equal quotas of 520,312 lb (236,010 kg) for vessels in each of two groups fishing with run-around gillnets and hook-and-line gear (50 CFR 622.42(c)(1)(i)(A)( *2* )( *i* )). The southern subzone is that part of the Florida west coast subzone which from November 1 through March 31 extends south and west from 26°19.8′ N. lat. (a line directly west from the Lee/Collier County, FL, boundary), to 25°20.4′ N. lat. (a line directly east from the Monroe/Miami-Dade County, FL, boundary), i.e., the area off Collier and Monroe Counties. From April 1 through October 31, the southern subzone is that part of the Florida west coast subzone which is between 26°19.8′ N. lat. (a line directly west from the Lee/Collier County, FL, boundary) and 25°48′ N. lat. (a line directly west from the Collier/Monroe County, FL, boundary), i.e., the area off Collier County. Under 50 CFR 622.43(a)(3), NMFS is required to close any segment of the king mackerel commercial fishery when its quota has been reached, or is projected to be reached, by filing a notification at the Office of the **Federal Register** . NMFS has determined that the commercial quota of 520,312 lb (236,010 kg) for Gulf group king mackerel for vessels using run-around gillnet gear in the southern Florida west coast subzone was reached on February 4, 2008. Accordingly, the commercial fishery for king mackerel for such vessels in the southern Florida west coast subzone is closed at 6 a.m., local time, February 5, 2008, through 6 a.m., January 20, 2009, the beginning of the next fishing season, i.e., the day after the 2009 Martin Luther King Jr. Federal holiday. Classification This action responds to the best available information recently obtained from the fisheries. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to close the fishery constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the closure. NMFS also finds good cause that the implementation of this action cannot be delayed for 30 days. There is a need to implement this measure in a timely fashion to prevent an overrun of the commercial run-around gillnet fishery for king mackerel in the southern Florida west coast subzone, given the capacity of the fishing fleet to harvest the quota quickly. Any delay in implementing this action would be contrary to the Magnuson-Stevens Act and the FMP. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is waived. This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: February 4, 2008. Alan D. Risenhoover, Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 08-554 Filed 2-4-08; 2:33 pm]
Connectionstraces to 54
Traces to 54 documents
U.S. Code
CFR
62 references not yet in our index
  • 5 CFR 752
  • 5 CFR 315
  • 5 CFR 432
  • 197 F.3d 1144
  • Pub. L. 106-117
  • 113 Stat. 1575
  • 5 CFR 550
  • 3 CFR 1959
  • 7 CFR 319
  • 7 CFR 457
  • 7 CFR 3015
  • 7 CFR 11
  • 7 CFR 457.107
  • 7 CFR 932
  • 7 USC 601-674
  • 12 CFR 201
  • 14 CFR 25
  • 14 CFR 34
  • 14 CFR 36
  • 17 CFR 200
  • 30 CFR 100
  • 40 CFR 63
  • 40 CFR 63.7682
  • 40 CFR 63.7690(b)(1)
  • 40 CFR 63.7700(c)(2)
  • 40 CFR 63.7700(e)(1)
  • 40 CFR 63.7700(e)(2)
  • 40 CFR 63.7690(a)
  • 40 CFR 63.7732(b)
  • 40 CFR 63.7732
  • 40 CFR 63.7734
  • 40 CFR 63.7732(c)(4)
  • 40 CFR 63.7732(c)(2)
  • 40 CFR 60
  • 40 CFR 63.7732(d)(2)
  • 40 CFR 63.7733(b)
  • 40 CFR 63.7731(a)
  • 40 CFR 63.7750(d)
  • 40 CFR 63.7740(b)(1)
  • 40 CFR 63.7740(b)
+ 22 more
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Fed. Reg.Notices
U.S.C.§ 7511
U.S.C.§ 1302
U.S.C.§ 3651
U.S.C.§ 1104
U.S.C.§ 8151
U.S.C.§ 2506
U.S.C.§ 3304
U.S.C.§ 3321
F. App'x197 F.3d 1144
Cite5 CFR 752
Cite5 CFR 315
Cites 116 · showing 12Cited by 0 across 0 sources
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